Exhibit 99.1-Purchase and Sale Agreement
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESROW INSTRUCTIONS ("Agreement") is
made and entered into effective as of this 8th day of November, 2004 ("Effective
Date"), by and between Amistar Corporation, a California corporation ("Seller")
and PG Acquisitions, LLC, a California limited liability company ("Buyer") and
is based on the following facts.
A. Seller owns that certain improved real property consisting of
approximately 5.65 acres of land and improved by an industrial
building containing approximately 80,257 square feet located
at 237 ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ of San Diego,
State of California described as San Diego County Assessor
Parcel Number ▇▇▇-▇▇▇-▇▇-▇▇ and more particularly described on
Exhibit "A" attached hereto and by this reference made a part
hereof (the "Real Property").
B. As used herein, the term "Real Property" includes all right,
title and interest of Seller in and to any appurtenant
easements, property owner's association rights, air rights,
rights of way, water rights and all other tangible and
intangible rights associated therewith.
C. Seller wishes to sell the Real Property to Purchaser and
Purchaser wishes to purchase the Real Property on the terms
and conditions contained in this Agreement.
NOW, THEREFORE, incorporating the foregoing recitals, and in
consideration of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer agree that the terms and conditions of
this Agreement and the instructions to the First American Title Insurance
Company ("Escrow Holder"), with regard to the escrow ("Escrow") created pursuant
hereto are as follows.
1. PURCHASE AND SALE. Subject to the terms, covenants and conditions
of this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from
Seller all of the following (collectively hereinafter called the "Property"):
(a) all right, title and interest of Seller in and to the Real Property; (b) all
right, title and interest of Seller in and to any permanent fixtures; (c) to the
extent assignable, all other right, title and interest of Seller in tangible and
intangible property (but as to intangible property without any representation or
warranty) benefiting the Real Property other than personal property and trade
fixtures used by Seller in the normal course of its business.
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2. PURCHASE PRICE. The purchase price ("Purchase Price") for the
Property shall be Seven Million Eight Hundred Thousand Dollars ($7,800,000.00)
which shall be paid in accordance with the terms of Paragraph 3 below.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price for the Property
shall be paid by Buyer as set forth below in this Paragraph 3.
3.1 DEPOSITS.
3.1.1 INITIAL DEPOSIT. Within two (2) Business Days
after the Effective Date, Buyer shall deposit or cause to be deposited with
Escrow Holder immediately available funds in the amount of One Hundred Fifty
Thousand Dollars ($150,000.00) ("Initial Deposit"). Escrow Holder shall invest
the Initial Deposit in a federally insured, interest-bearing account and all
interest accruing thereon shall be credited to Buyer. From and after the
Effective Date and continuing until 5:00 p.m., Pacific Time on that date which
is Thirty (30) calendar days after the Effective Date (the "Due Diligence
Period") Buyer shall have the right to investigate and evaluate the Property and
shall have the right in its sole and absolute discretion to cancel this
Agreement and Escrow for any reason whatsoever. In such event Buyer shall
deliver written notice of its election to cancel to Seller and Escrow Holder
prior to the expiration of the Due Diligence Period. The parties acknowledge
that, subject to the mutual agreement of the parties, the Due Diligence Period
may need to be extended if environmental testing is reasonably recommended by
Buyer's environmental consultant; provided, however, no intrusive testing shall
be permitted without the prior written consent of Seller. In the event Buyer
exercises the cancellation right described in this Paragraph 3.1.1, the Initial
Deposit shall be refunded to Buyer forthwith and the parties shall have no
further obligation to each other except the indemnification provisions that
survive the termination of this Agreement.
3.1.2 SECOND DEPOSIT. If Buyer does not elect to
terminate this Agreement prior to the expiration of the Due Diligence Period,
Buyer shall (within one Business Day of such expiration) make an additional
deposit (the "Second Deposit") into Escrow of One Hundred Thousand Dollars
($100,000.00). The First Deposit and Second Deposit together with any interest
earned thereon are hereinafter collectively referred to as the "Deposit". From
and after the expiration of the Due Diligence Period the Deposit shall be
non-refundable to Buyer unless the transaction contemplated by this Agreement is
not consummated as the result of Seller's default or the failure of a material
condition precedent to Buyer's obligations set forth in Paragraph 7 of this
Agreement which are not within the control of Buyer. Upon the Close of Escrow,
the Deposit shall be credited toward payment of the Purchase Price.
3.2 BALANCE OF PROCEEDS. Not less than one (1)
Business Day before the Close of Escrow, Buyer shall deposit or cause to be
deposited, with Escrow Holder, in immediately available funds, the balance of
the Purchase Price, plus or minus Buyer's share of closing costs and charges set
forth below in Paragraph 10 and Buyer's share of prorations set forth on the
Proration and Expense Schedule (as defined below in Paragraph 11) payable
pursuant to this Agreement.
4. ESCROW.
4.1 OPENING OF ESCROW. For the purposes of this Agreement, the
Escrow shall be deemed opened ("Opening of Escrow") on the date Escrow Holder
receives a fully executed copy of this Agreement, which shall occur no later
than two (2) Business Days following the Effective Date. Escrow Holder shall
promptly notify Buyer and Seller in writing of the date established for each of
the following: i) the Opening of Escrow; ii) the expiration of the Due Diligence
Period; and iii) the Close of Escrow. Buyer and Seller agree to execute, deliver
and be bound by any reasonable or customary supplemental escrow instructions or
other instruments reasonably required by Escrow Holder to consummate the
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transaction contemplated by this Agreement; provided, however, that no such
instruments shall be inconsistent or in conflict with, amend or supersede any
portion of this Agreement. If there is any conflict or inconsistency between the
terms of such instruments and the terms of this Agreement, then the terms of
this Agreement shall control.
4.2 CLOSE OF ESCROW. For purposes of this Agreement, the
"Close of Escrow" shall be the date that the Grant Deed (as defined below in
Paragraph 9.1.1) is recorded in the Official Records of the County of San Diego
(the "Official Records"). The Close of Escrow shall occur on or before
forty-five calendar days following the expiration of the Due Diligence Period
(the "Closing Date").
5. CONDITION OF TITLE. As a condition precedent to the Close of Escrow
solely for Buyer's benefit, title to the Property shall be conveyed to Buyer by
Seller by the Grant Deed subject only to the following approved conditions of
title (collectively the "Approved Title Conditions").
5.1 TAXES. A lien to secure payment of real estate taxes not
delinquent shall constitute an Approved Title Condition.
5.2 APPROVED MATTERS. Matters affecting the Property created
by or with the written consent of Buyer shall constitute Approved Title
Conditions.
5.3 ADDITIONAL MATTERS. Exceptions which are disclosed by the
Report (as defined below in Paragraph 7.1) and which are approved or deemed
approved by Buyer in accordance with the terms of Paragraph 7.1 shall constitute
Approved Title Conditions.
5.4 SUPPLEMENTAL TAXES. The lien of supplemental taxes
assessed pursuant to Chapter 3.5 commencing with Section 75 of the California
Revenue and Taxation Code as a result of the transfer of title to Buyer, but not
with respect to prior construction or any prior changes in ownership, shall
constitute an Approved Title Condition.
5.5 GRANT DEED. The matters set forth in the Grant Deed
attached hereto.
6. TITLE POLICY. Title to the Property shall be delivered to Buyer
subject to the Approved Title Conditions. Evidence of delivery of such title
shall be the issuance by the Title Company of its standard form California Land
Title Association, standard Owner's Title Insurance Policy (the "Title Policy")
insuring title to the Property in Buyer, with coverage in the amount of the
Purchase Price, and subject also to the standard exclusions and exceptions from
said policy.
7. CONDITIONS FOR THE BENEFIT OF BUYER. The Close of Escrow and Buyer's
obligation to consummate the transaction contemplated by this Agreement are
subject to the timely satisfaction or waiver of each of the conditions set forth
in this Paragraph 7 which are conditions precedent solely for Buyer's benefit or
this Agreement shall terminate, and to the extent any of such conditions are not
within the control of Buyer, the Deposit shall be returned to Buyer, and neither
party shall have any rights or obligations under this Agreement except those
that expressly survive the termination of this Agreement.
7.1 TITLE. Prior to the expiration of the Due Diligence
Period, Buyer, in its sole discretion, shall have approved the legal description
of the Property and the following documents prepared and delivered to Buyer by
First American Title Insurance Company (the "Title Company"): (a) a standard
preliminary title report issued by the Title Company with respect to the
Property (the "Report"); and (b) copies of all recorded documents referred to in
the Report. No later than ten (10) days after Buyer's receipt of the Report,
Buyer shall give written notice (the "Buyer Title Notice") to Seller and Escrow
Holder, disapproving any items identified as exceptions in the Report and
identifying the items disapproved (the "Disapproved Title Items"). No later than
three (3) business days following Seller's receipt of the Buyer Title Notice
("Seller Response Date"), Seller shall have the right to elect either to (A)
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cure the Disapproved Title Items, or (B) not cure the Disapproved Title Items.
Seller's failure to give timely written notice to Buyer of Seller's election to
cure any Disapproved Title Items shall conclusively be presumed to be Seller's
election not to cure such Disapproved Title Items. If Seller elects or is deemed
to have elected not to cure Buyer's Disapproved Title Items, then Buyer shall
have until the expiration of the Due Diligence Period to deliver to Seller
written notice of Buyer's disapproval of any Disapproved Title Items which
Seller elects or is deemed to have elected not to cure, and Buyer's failure to
do so shall be deemed to constitute Buyer's approval of all matters of title
reflected in the Report relating to the Property.
7.2 INVESTIGATION. Prior to the expiration of the Due
Diligence Period Buyer shall have the right to approve or disapprove, in Buyer's
sole discretion, the results of Buyer's inspections, investigations, tests and
studies, including, without limitation, investigations with regard to zoning,
building codes and other governmental regulations, architectural inspections,
hazardous materials investigations, engineering tests, and soils, seismic and
geologic reports with respect to the Property, inspections of all or any portion
of the Improvements (including, without limitation, structural, mechanical and
electrical systems, roofs, pavement, landscaping and public utilities), and any
other physical inspections and/or investigations as Buyer may elect to make or
obtain; provided, however, no intrusive environmental testing shall be permitted
without the prior written consent of Seller (collectively the "Tests") by
delivering written notice thereof to Seller and Escrow Holder by the expiration
of the Due Diligence Period. Buyer's failure to disapprove the results of the
Tests shall be deemed to constitute Buyer's approval thereof. Buyer shall
provide at least twenty-four (24) business hours prior written notice to Seller
of Buyer's desire to enter the Property. Buyer's tests and inspections may only
be done at reasonable times and subject to the rights of occupants of the
Property providing access to Buyer and its consultants. Buyer and its
consultants shall perform all of Buyer's tests, inspections and work in such a
manner as to minimize the inconvenience and disruption of the use and enjoyment
of the Property and areas providing access to and from the Property, and to the
occupants of the Property. Following any entry or work by Buyer, unless
otherwise directed in writing by Seller, Buyer shall return the Property to the
condition it was in prior to such entry or work including, as may be directed by
Seller, the recompaction and/or removal of any excavated or disrupted soil, dirt
and materials. Buyer shall indemnify, defend (with counsel reasonably approved
by Seller), protect and hold harmless Seller of and from any and all claims,
demands, losses, costs, expenses (including, without limitation, reasonable
attorneys' fees), damages, liabilities, judgment or recoveries, including,
without limitation, those for injury to persons or property, arising out of or
relating to Buyer's or its consultants' entry upon the Property. Buyer's
obligations under this Paragraph 7.2 shall survive the termination of this
Agreement or the Close of Escrow. Buyer and its consultants shall maintain
commercial liability insurance policies (in an amount not less than One Million
Dollars ($1,000,000)) insuring against claims arising in connection with the
inspections of the Property being conducted by Buyer. Prior to entering upon the
Property, Buyer shall deliver to Seller a certificate of insurance evidencing
the existence of the aforesaid policies and naming Seller and Seller's lender as
additional insureds.
7.3 COVENANTS. By the Closing Date, Seller shall not be in
default in the performance of any material covenant or agreement to be performed
by Seller under this Agreement.
7.4 REPRESENTATIONS AND WARRANTIES. Subject to the provisions
of Paragraph 13 of this Agreement, all representations and warranties of Seller
contained in this Agreement shall be true and correct as of the Effective Date
and as of the Close of Escrow with the same effect as if those representations
and warranties were made at and as of the Close of Escrow and shall survive the
Close of Escrow for a period of one (1) year and shall be of no further force
and effect thereafter.
7.5 REVIEW AND APPROVAL OF MATERIALS. Within five (5) days of
the Effective Date, Seller shall make available to Buyer for Buyer's inspection,
review, copying and approval all of the following materials in Seller's
possession or under Seller's control to the extent they pertain, directly or
indirectly to the Property: (a) all bills and other notices pertaining to any
real estate taxes or personal property taxes for the current year and the three
(3) years immediately preceding the Effective Date; (b) all reports regarding
soil conditions, ground water, wetlands, underground storage tanks, subsurface
conditions and/or other environmental or physical conditions in Seller's
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possession or under Seller's control; (c) all engineering and architectural
plans and specifications, drawings, studies and surveys in Seller's possession
or under Seller's control; (d) all subdivision plans, plats, variances, parcel
maps, development agreements, licenses, permits, certificates, authorizations
and approvals issued by any governmental authority in connection with the
construction, ownership, use and/or occupancy of the Property (collectively, the
Materials). Buyer shall have until the expiration of the Due Diligence Period to
review and approve the Materials in its sole discretion, and Buyer's failure to
disapprove the Materials by delivering timely written notice thereof to Seller
shall be deemed to constitute Buyer's approval thereof. Buyer hereby
acknowledges that neither Seller, nor any agents, representatives, employees or
attorneys of Seller have made any representations or warranties, direct or
implied, verbal or written with respect to the accuracy, completeness or
reliability of the Materials. Buyer hereby expressly releases Seller, Seller's
agents, representatives, employees and attorneys from any and all claims,
losses, proceedings, damages, causes of action, liability, costs or expenses
(including, without limitation, attorneys' fees) arising from, in connection
with or caused by (a) Buyer's reliance upon any of the Materials, or statements,
representations or assertions contained therein, and (b) the inaccuracy,
incompleteness or unreliability of any of the Materials.
8. CONDITIONS FOR THE BENEFIT OF SELLER. The Close of Escrow and
Seller's obligation to consummate the transaction contemplated by this Agreement
are subject to the timely satisfaction or waiver of the conditions precedent set
forth in this Paragraph 8 which are solely for Seller's benefit by the dates
designated below or this Agreement shall terminate and neither party shall have
any rights or obligations under this Agreement except those that expressly
survive the termination of this Agreement. The foregoing notwithstanding, if
Buyer's only material breach is a failure to provide the SNDA executed by its
lender, in such event, Buyer shall be entitled to a return of the Deposit.
8.1 REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Buyer contained in this Agreement shall be true and correct as of
the Effective Date and as of the Close of Escrow with the same effect as if
those representations and warranties were made at and as of the Close of Escrow
and shall survive the Close of Escrow for a period of one (1) year and shall be
of no further force and effect thereafter.
8.2 COVENANTS. By the Closing Date, Buyer shall not be in
default in the performance of any covenant or agreement to be performed by Buyer
under this Agreement.
8.3 NO BANKRUPTCY OR DISSOLUTION. At no time on or before the
Closing Date shall any of the following ("Bankruptcy/Dissolution Event") have
occurred with respect to Buyer: (a) the commencement of a case under Title 11 of
the U.S. Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or other similar law; or, (b) the
appointment of a trustee or receiver of any property interest.
8.4 LEASE BACK OF PROPERTY. The parties shall have each
executed and delivered counterpart originals of a lease (the "Lease") to the
Property (and initial rent and security deposits required therewith, which, at
Seller's option shall be disbursed to Buyer, as Lessor, from funds which would
otherwise be disbursed to Seller at the Close of Escrow) wherein Seller is the
"Lessee" and Buyer is the "Lessor" in form and substance the same as attached
hereto as Exhibit "B" and by this reference made a part hereof. The Lease shall
include an addendum providing Lessee with a right of first refusal with regard
to the resale of the Property by Buyer in form and substance the same as
attached hereto as Exhibit "C" and by this reference made a part hereof.
8.5 MEMORANDUM/SNDA. The parties shall have each executed and
delivered counterpart originals of a memorandum of lease which shall include a
reference to the right of first refusal (the "Memorandum of Lease"), and Buyer
shall have caused its lender to provide Seller, in its capacity as the lessee
under the Lease, with a nondisturbance agreement in recordable form, which SNDA
shall specifically recognize Seller's right of first refusal (the "SNDA"). Each
of the Memorandum of Lease and the SNDA shall be in form and content reasonably
satisfactory to Seller.
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9. Deliveries to Escrow Holder.
9.1 DELIVERIES BY SELLER. At least one (1) Business Day prior
to the Close of Escrow, Seller shall deposit or cause to be deposited with
Escrow Holder the following documents and instruments:
9.1.1 GRANT DEED. Seller shall deliver to Escrow Holder a
Grant Deed for the Property in the form attached hereto as Exhibit "D", duly
executed by Seller and acknowledged (the "Grant Deed").
9.1.2 FIRPTA. Seller shall deliver to Escrow Holder a standard
Certificate of Transferor's Certification of Non-Foreign Status and California
Franchise Tax Board Form 597-W duly executed by Seller (the "FIRPTA
Certificates").
9.1.3 LEASE. Seller shall deliver two (2) original
counterparts of the Lease (and monies then due thereunder, which, at Seller's
option shall be disbursed to Buyer, as Lessor, from funds which would otherwise
be disbursed to Seller at the Close of Escrow).
9.1.4 TENANT NOTICES. Since Seller occupies the Property, no
notices to third party tenants are required in connection with the Close of
Escrow.
9.2 DELIVERIES BY BUYER. Except as otherwise indicated below,
at least one (1) Business Day prior to the Close of Escrow, Buyer shall deposit
or cause to be deposited with Escrow Holder the following:
9.2.1 PURCHASE PRICE. Buyer shall deliver to Escrow
Holder funds which are to be applied toward payment of the Purchase Price in the
amounts and at the times designated above in Paragraph 3 (as adjusted by the
Proration and Expense Schedule).
9.2.2 LEASE. Buyer shall deliver two (2) original
counterparts of the Lease.
9.2.3 MEMORANDUM OF LEASE. Buyer shall deliver one
(1) fully executed and notarized original counterpart of the Memorandum of
Lease.
9.2.4 SNDA. Buyer shall deliver Buyer's and its
lender's fully executed and notarized counterpart of the SNDA.
10. COSTS AND EXPENSES. If the transaction contemplated by this
Agreement is consummated, then (a) Seller shall bear the following costs and
expenses: (i) the premium for the Title Policy , (ii) one-half (1/2) of Escrow
Holder's fees, (iii) County and City documentary transfer taxes and grant deed
recordation fees, (iv) the cost of recording any reconveyances and releases, and
v) Seller's share of prorations; and (b) Buyer shall bear the following costs
and expenses: (i) one-half (1/2) of Escrow Holder's fee; and (ii) Buyer's share
of prorations. If, as a result of no fault of Buyer or Seller, Escrow fails to
close, Buyer and Seller shall share equally all of Escrow Holder's fees and
charges; however, if the transaction fails to close as the result of the default
of either party, then such defaulting party shall bear all of Escrow Holder's
fees and expenses. Each party shall bear the cost of its own attorneys and
consultants.
11. Prorations and Credits.
11.1 ITEMS TO BE PRORATED. The following shall be prorated
between Seller and Buyer as of 12:01 a.m. on the Closing Date:
11.1.1 TAXES. All nondelinquent real estate taxes and
assessments on the Property shall be prorated as of the Close of Escrow based on
the actual current tax ▇▇▇▇. All delinquent taxes and all delinquent
assessments, if any, on the Property shall be paid at the Close of Escrow from
funds accruing to Seller. All supplemental taxes billed after the Close of
Escrow for periods prior to the Close of Escrow shall be paid promptly by Buyer,
and Seller shall promptly reimburse Buyer for the portion of such taxes
attributable to periods prior to the Close of Escrow. The provisions of this
Paragraph 11.1 shall survive the Close of Escrow.
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11.1.2 CALCULATION. The pro-rations and payments
shall be made on the basis of a schedule of expenses, prorations and adjustments
("Proration and Expense Schedule") approved by Buyer and Seller prior to
Closing. In the event any prorations or apportionments made under this Paragraph
11 shall prove to be incorrect for any reason, then any party shall be entitled
to an adjustment to correct the same. Any item which cannot be finally prorated
because of the unavailability of information shall be tentatively prorated on
the basis of the best data then available and prorated when the information is
available. All prorations for the calendar month in which the Close of Escrow
occurs shall be prorated for said month based upon the actual number of days in
such month. The obligation to make apportionments and prorations shall survive
the Close of Escrow.
12. DISBURSEMENTS AND OTHER ACTIONS BY ESCROW HOLDER. Upon the Close of
Escrow, Escrow Holder shall promptly undertake all of the following in the
manner and order set forth below:
12.1 RECORDING. Escrow Holder shall cause the Grant Deed, the
Memorandum of Lease, the SNDA and any other documents which the parties hereto
may mutually direct to be recorded in the Official Records and obtain conformed
copies thereof for distribution to Buyer and Seller.
12.2 DISBURSE FUNDS. Escrow Holder shall credit all matters
addressed in Paragraphs 3 and 10 and prorate all matters addressed in Paragraph
11 based upon the Proration and Expense Schedule and disburse the balance of the
funds pursuant to a mutually acceptable settlement statement.
12.3 DOCUMENTS TO SELLER. Escrow Holder shall disburse to
Seller conformed copies of the Grant Deed, the Memorandum of Lease and the SNDA.
12.4 DOCUMENTS TO BUYER. Escrow Holder shall deliver to Buyer
the original FIRPTA Certificate executed by Seller and each other document (or
copies thereof) deposited into Escrow by Seller pursuant hereto and conformed
copies of the Grant Deed.
12.5 TITLE COMPANY. Escrow Holder shall direct the Title
Company to issue the Title Policy(ies) to Buyer.
13. Representations and Warranties
13.1 Seller's Representations and Warranties.
(A) Except as otherwise expressly provided herein
Buyer hereby acknowledges and agrees that the sale of the Property
hereunder is and will be made on an "as is" and "where is" basis.
(B) Seller makes the following representations and
warranties each of which shall be true as of the Close of Escrow and each
of which shall survive the Close of Escrow for a period of one (1) year and
shall be of no further force or effect thereafter.
13.1.1 POWER. Seller has the legal power, right and
authority to enter into this Agreement and the instruments referenced herein,
and to consummate the transaction contemplated hereby.
13.1.2 REQUISITE ACTION. All requisite action
(corporate, partnership and otherwise) has been taken by Seller in connection
with entering into this Agreement, the instruments referenced herein, and the
consummation of the transaction contemplated hereby; and, no consent of any
member, partner, shareholder, creditor, investor, judicial or administrative
body, governmental authority or other party is required for Seller to consummate
the transaction contemplated by this Agreement.
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13.1.3 INDIVIDUAL AUTHORITY. The individuals
executing this Agreement on behalf of Seller are authorized to do so by all
necessary action of Seller. Seller shall, prior to the expiration of the Due
Diligence Period, deliver a Secretary's Certificate evidencing that the Board of
Directors of Seller has authorized Seller to enter into and consummate this
transaction.
13.1.4 NO CONFLICT. Neither the execution and
delivery of this Agreement and the documents and instruments referenced herein,
nor the incurrence of the obligations set forth herein, nor the consummation of
the transaction contemplated herein, nor compliance with the terms of this
Agreement and the documents and instruments referenced herein conflict with or
result in the material breach of any terms, conditions or provisions of, or
constitute a material default under, any material bond, note, other evidence of
indebtedness, contract, indenture, mortgage, deed of trust, loan, partnership
agreement, lease or other material agreement or instrument to which Seller is a
party or affecting the Property.
13.1.5 HAZARDOUS MATERIALS. Except as disclosed in
the Materials, to Seller's actual knowledge, Seller has not received any written
notice and has no actual knowledge of the presence of any Hazardous Materials on
or under the Property or improvements thereon which violate current applicable
laws. As used herein, "Hazardous Materials" shall mean asbestos, any petroleum
fuel and any hazardous or toxic substance, material or waste which is or becomes
regulated by any local governmental authority, the State of California or the
United States Government, including, but not limited to, any material or
substance defined as a "hazardous waste," "extremely hazardous waste,"
"restricted hazardous waste," "hazardous material," or "toxic pollutant" under
the California Health and Safety Code and/or under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601,
ET SEQ. Without limiting the generality of the foregoing, to Seller's actual
knowledge, the Property has not been and is not in violation of any federal,
state or local law, ordinance or regulation relating to industrial hygiene,
worker health and safety, or to the environmental condition of the Property
(collectively, the "Environmental Laws"); to Seller's actual knowledge, no
substances or materials that are governed by the Environmental Laws have been
deposited on the Property in an amount or in a manner that would violate any
Environmental Law; neither Seller nor, to Seller's actual knowledge, any third
parties have used, generated, manufactured, stored or disposed of any Hazardous
Materials on or about the Property or transported any such substances to or from
the Property except in conformance with the Environmental Laws; to Seller's
actual knowledge, there has been no discharge; migration or release of any
Hazardous materials from or onto the Property in a manner that would violate any
Environmental Law; and to Seller's actual knowledge there are not now, nor have
there ever been, any above-ground or underground storage tanks on or beneath the
Property.
13.1.6 ACTIONS PENDING. To Seller's actual knowledge,
Seller has not received written notice of any actions, suits, or proceedings
(including, without limitation, any condemnation, eminent domain, or similar
proceedings) existing, pending, involving, or threatened against the Property.
13.1.7 NOTICES. To Seller's actual knowledge, Seller
has received no uncured written notice from any governmental authority
alleging that the operation, use or ownership of the Property violates any fire,
zoning, health, building code or other ordinance, law or regulation or order of
any government or any agency, body or subdivision thereof.
13.1.8 DEFAULTS. To Seller's actual knowledge, Seller
has received no written notice of any uncured default by Seller under any of the
Service Agreements; and, all Service Agreements are now in full force and
effect.
13.1.9 TENANTS/SUBTENANT/LICENSEES. Seller warrants
and represents that Seller is the sole occupant of the Property and that there
are no tenants, subtenants or licensees with regard to the Property, except ddn
Corporation, a subsidiary of Seller.
13.1.10 OTHER MATTERS. Seller has no actual knowledge
of any conditions pertaining to the Property which constitute a violation of any
municipal, state or federal law, regulation or ruling, including but not limited
to, environmental laws, building codes, or land use laws or ordinances.
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As used in this Agreement, the phrase "to
Seller's actual knowledge" or words of similar import means the current actual
knowledge, without independent investigation or inquiry, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ who are the people within Seller's organization who Seller
represents are most familiar with the subject matter of Seller's representations
and warranties set forth herein. The representations and warranties of Seller
set forth in this Paragraph 13.1 shall not merge with the Grant Deed and shall
survive the Close of Escrow for a period of one (1) year and shall be of no
further force or effect thereafter.
13.2 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer makes the
following representations and warranties each of which shall be true as of the
Close of Escrow and each of which shall survive the Close of Escrow for a period
of one (1) year and shall be of no further force or effect thereafter.
13.2.1 POWER. Buyer has the legal power, right and
authority to enter into this Agreement and the instruments referenced herein,
and to consummate the transaction contemplated hereby.
13.2.2 REQUISITE ACTION. All requisite action has
been taken by Buyer in connection with entering into this Agreement, the
instruments referenced herein, and the consummation of the transaction
contemplated hereby; and no additional consent of any member, partner,
shareholder, creditor, investor, judicial or administrative body, governmental
authority or other party is required for Buyer to consummate the transaction
contemplated by this Agreement.
13.2.3 INDIVIDUAL AUTHORITY. The individual executing
this Agreement is the Managing Member of Buyer and on behalf of Buyer is
authorized to do so by all necessary action of Buyer.
13.2.4 NO CONFLICT. Neither the execution and
delivery of this Agreement and the documents and instruments referenced herein,
nor the incurrence of the obligations set forth herein, nor the consummation of
the transaction contemplated herein, nor compliance with the terms of this
Agreement and the documents and instruments referenced herein conflict with or
result in the material breach of any terms, conditions or provisions of, or
constitute a material default under, any material bond, note, other evidence of
indebtedness, contract, indenture, mortgage, deed of trust, loan, partnership
agreement, lease or other material agreement or instrument to which Buyer is a
party.
13.2.5 Buyer represents and warrants to Seller that
Buyer has substantial experience with real property. Buyer expressly
acknowledges and represents to Seller THAT, EXCEPT FOR SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 13.1 OF THIS AGREEMENT AND
SUBJECT TO THE LIMITATIONS SET FORTH IN THIS AGREEMENT, AS A MATERIAL INDUCEMENT
TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER, BUYER IS PURCHASING
THE PROPERTY IN AN "AS IS, WHERE IS" PHYSICAL CONDITION AND IN AN "AS IS, WHERE
IS" STATE OF REPAIR, WITH ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN and,
in connection therewith, (i) Buyer does hereby waive, and Seller does hereby
disclaim, all warranties of any type or kind whatsoever with respect to the
Property, whether express or implied, including, by way of description but not
limitation, those of fitness for a particular purpose and use; (ii) Seller is
not liable or bound in any manner by any verbal or written statements,
representations, real estate brokers' "set-ups" or information pertaining to the
Property or the operation, layout, expenses, condition, income, rents,
agreements, licenses, easements, instruments, documents or service contracts or
relating to the specific matters and items set forth hereinabove furnished by
any real estate broker, advisor, consultant, agent, employee, or other person;
9
and (iii) Buyer and Seller each acknowledge and agree that any express written
disclosures made by Seller prior to the Close of Escrow, shall constitute notice
to Buyer of the matter disclosed and Seller shall have no further liability
thereafter with respect thereto if Buyer consummates any of the transactions
contemplated hereby. Buyer hereby waives the benefit of any statute, law or
decision that would in any way detract, reduce or diminish from giving full
force and effect to the provisions of this Paragraph. Buyer expressly
acknowledges and represents to Seller that (i) except for Seller's express
representations and warranties set forth in Paragraph 13.1 of this Agreement and
subject to the limitations set forth in this Agreement, Buyer is relying upon
Buyer's own independent investigation of the Property in entering into this
Agreement and purchasing the Property and that Buyer will by the expiration of
the period for satisfaction of Buyer's contingencies fully and thoroughly
investigate and inspect each and every physical, economic and other aspect of
the Property, and all factors relevant thereto, including, without limitation,
the physical condition of the Property, and structures and improvements located
thereon, including, but not limited to, any related engineering and structural
information; the composition, condition and buildability of the Property's soil,
including, but not limited to, any related geological, environmental and toxic
information; size and dimensions of the Property, including, but not limited to,
any existing architectural and site plans; accuracy and adequacy of the legal
description of the Property; the Property's compliance with all applicable laws,
including, but not limited to, environmental laws, rules and regulations and any
other aspect of the Property dealing with Hazardous Materials and the American
with Disabilities Act; the Property's fitness for any particular purpose, use or
enjoyment; the feasibility of development of the Property, including, but not
limited to, the Property's land use and development rights, development
restrictions and conditions that are or may be imposed by governmental agencies,
marketing studies and cost to complete studies; availability and adequacy of all
utilities, including but not limited to, water, electricity, sewer, gas, and
telephone; all documents, encumbrances and matters affecting the title of the
Property; all federal, state, county, municipal and local laws, rules and
regulations affecting the Property; all legal requirements such as taxes,
assessments, zoning, use permits, building codes and certificates of occupancy;
the rights and obligations of any tenants or occupants of the Property; and the
existence of insurance contracts, contracts for work in progress, governmental
agreements and approvals and agreements with associations affecting or
concerning the Property; (ii) should Buyer not have sufficient opportunity to so
investigate, Buyer shall elect not to consummate the transactions contemplated
herein; and (iii) the consummation of such transactions by Buyer shall
conclusively establish such opportunity.
14. Operation of Property.
14.1 OPERATION OF THE PROPERTY. Seller shall continue to
maintain the Property and all improvements thereon in a commercially prudent
manner during the normal course of Seller's business at Seller's sole cost and
expense pending the Close of Escrow. Until the Close of Escrow or earlier
termination of this Agreement, Seller shall not enter into any lease, sublease,
license or any renewal or amendment of any of the foregoing (except for any such
agreements which are terminable on no more than 30 days' notice and without
payment of any premium or penalty) pertaining to all or any portion of the
Property without the written consent of Buyer, which consent can be granted or
withheld in Buyer's sole discretion. In the event Buyer consents to any such
lease, sublease, license or any renewal or amendment thereof, Seller shall
observe all covenants and conditions required of Seller therein and shall be
solely responsible for all obligations arising in connection therewith until the
Close of Escrow.
14.2 INSURANCE. All insurance policies carried by Seller with
respect to the Property and in effect as of the date of this Agreement shall
remain continuously in full force and effect through the day upon which the
Close of Escrow occurs.
15. Intentionally Omitted.
16. Enforcement and Legal Fees.
16.1 BUYER'S DEFAULT. BUYER AND SELLER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY
SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE
OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A
REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE
EVENT OF BUYER'S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE
DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677 AND SHALL NOT CONSTITUTE
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE 3275 OR 3369.
10
___\s\ SB______________ \s\ PG_________________
SELLERS INITIALS BUYERS INITIALS
16.2 SELLER'S DEFAULT. If Seller defaults under this
Agreement, Buyer shall be entitled to such relief as afforded by law, excluding
any punitive damages award, but not limited to specific performance.
17. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered, sent by
overnight mail (Federal Express or the like) or sent by registered or certified
mail, postage prepaid, return receipt requested, telegraphed, delivered or sent
by telex, telecopy, facsimile, fax or cable and shall be effective upon receipt
at the appropriate address.
If to Seller: Amistar Corporation
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: PG Acquisitions, LLC
Attn: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy To: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇.▇., LLM
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Holder: First American Title Company
Attn: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notice of change of address shall be given by written notice in the manner
detailed in this Paragraph 17. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to constitute receipt of the notice, demand, request or
communication sent.
11
18. BROKERS. If the purchase and sale transaction contemplated by this
Agreement is consummated in accordance with the terms hereof, then, upon the
Close of Escrow, Seller shall pay a real estate brokerage commission equal to
three and one-half percent (3 1/2%) of the Purchase Price to ▇▇▇▇▇ & ▇▇▇▇▇|BRE
Commercial and San Diego Commercial pursuant to a separate agreement between
Seller and ▇▇▇▇▇ & ▇▇▇▇▇|BRE Commercial. Each party hereto agrees to indemnify,
defend and hold harmless the other party from and against any and all losses,
liens, claims, judgments, liabilities, costs, expenses or damages (including
reasonable attorneys' fees and court costs) of any kind or character arising out
of or resulting from any agreement, arrangement or understanding alleged to have
been made by such party or on its behalf with any broker or finder in connection
with this Agreement or the transaction contemplated hereby. The foregoing
indemnity shall survive the Closing or the earlier termination of this
Agreement.
19. LEGAL FEES. If either Buyer or Seller brings any action or suit
against the other for any matter relating to or arising out of this Agreement,
then the prevailing party in such action or dispute, whether by final judgment
or out of court settlement, shall be entitled to recover from the other party
all costs and expenses of suit, including reasonable attorneys' and expert
witness fees at trial and on appeal. Any judgment or order entered in any final
judgment shall contain a specific provision providing for the recovery of all
costs and expenses of suit, including reasonable attorneys' and expert witness
fees incurred in enforcing, perfecting and executing such judgment. For the
purposes of this paragraph, such costs shall include, without limitation,
reasonable attorneys' fees, costs and expenses incurred in the following: (a)
post judgment motions; (b) contempt proceedings; (c) garnishment, levy, and
debtor and third party examinations; (d) discovery; and (e) bankruptcy
litigation.
20. TAX DEFERRED EXCHANGE. As an accommodation to the other party, the
parties hereto agree to cooperate with each other if either or both of them
elect to consummate the transaction contemplated by this Agreement as a
like-kind exchange of property pursuant to Section 1031 or 1033 of the Internal
Revenue Code of 1986, as amended (the "Exchange"), which cooperation shall
include executing documents therefor, provided that the requesting party is not
in default of its obligations under this Agreement and the following terms and
conditions are satisfied: i) the non-exchanging party shall in no way be
obligated to pay any costs in connection therewith; ii) in no way shall the
Closing be contingent or otherwise subject to the consummation of the Exchange;
and, iii) the Escrow shall timely close in accordance with the terms of this
Agreement despite any failure, for any reason, to consummate the Exchange.
21. NATURAL HAZARDS DISCLOSURE. Seller shall comply with the Natural
Hazard Disclosure Act, California Government Code Sections 8589.3, 8589.4, and
51183.5, and California Public Resources Code Sections 2621.9, 2694, and 4136,
and any successor statutes or laws (the "Act"). Within ten (10) days of the
Effective Date, Seller shall provide Buyer with a Natural Hazard Disclosure
Statement ("Disclosure Statement"). The providing of the Disclosure Statement
shall in no way alter the "AS-IS" "WHERE-IS" nature of this transaction.
22. DESTRUCTION/CONDEMNATION.
22.1 MATERIAL CASUALTY. Prior to the Close of Escrow, and
notwithstanding the pendency of this Agreement, the entire risk of loss or
damage by fire or other casualty shall be borne and assumed by Seller, except as
otherwise provided in this Section 22. If, prior to the Close of Escrow, any
part of the Property is damaged or destroyed by fire or other casualty, Seller
shall notify Buyer of such fact promptly after learning of the damage or
destruction. If such damage or destruction is "material," Buyer shall have the
option to terminate this Agreement upon written notice to the Seller given not
later than ten (10) Business Days after receipt of Seller's notice. For purposes
of damage and destruction, "material" shall be deemed to be any damage or
12
destruction where the cost of repair or replacement is estimated to be Fifty
Thousand Dollars ($50,000.00) or more, if such damage or destruction is not an
insured casualty or Two Hundred Thousand Dollars ($200,000.00) or more if such
damage or destruction is an insured casualty. If this Agreement is so
terminated, the provisions of Paragraph 7 shall govern. If Buyer does not
exercise its option to terminate this Agreement, Seller shall assign and/or turn
over, and Buyer shall be entitled to receive and keep, all insurance proceeds
(and Buyer shall apply all of such proceeds towards the cost of restoring the
Property), if any, payable to it with respect to such destruction, and the
parties shall proceed to the Close of Escrow pursuant to the terms hereof or as
otherwise agreed by the parties.
22.2 MINOR CASUALTY. If the damage is not material, Seller
shall, in the event of an uninsured casualty, credit Buyer at the Close of
Escrow with an amount equal to the cost of repairing the damage, and, in the
event of an insured casualty, Seller shall assign to Buyer all casualty
insurance proceeds thereto, and, in each instance, the parties shall proceed to
the Close of Escrow pursuant to the terms hereof without modification of the
terms of this Agreement and without any reduction in the Purchase Price, Buyer
shall apply all of such proceeds towards the cost of restoring the Property. The
cost of repairing any damage shall be determined by an architect and contractor
selected by Seller and reasonably approved by Buyer, and Buyer or Seller may
elect to extend the Close of Escrow for up to ten (10) days to obtain an
estimate of the cost of repairing the damage. The provisions of this Paragraph
22.2 shall survive the Close of Escrow.
22.3 CONDEMNATION. In the event that the Property or any
material part thereof becomes the subject of a pending or threatened
condemnation proceeding prior to the Close of Escrow, Seller shall immediately
advise Buyer thereof. In the event of such pending or threatened condemnation,
Buyer shall have the option to either i) take title in accordance with the terms
and conditions of this Agreement (without the delay of the Closing Date) and
negotiate with the said condemning authority for the condemnation award and
receive the benefits thereof without affecting the Purchase Price; or, ii)
terminate this Agreement upon written notice to Seller given not later than ten
(10) Business Days after receipt of Seller's notice of such pending or
threatened proceeding. If this Agreement is so terminated, the provisions of
Paragraph 7 shall govern.
23. MISCELLANEOUS.
23.1 ASSIGNMENT. Buyer shall have the right to assign its
rights under this Agreement to any person or entity with which its managing
member has a 50% or more financial interest upon written notice to Seller. Buyer
may not otherwise assign, transfer or convey its rights or obligations under
this Agreement at any time without the prior written consent of Seller, which
Seller shall not unreasonably withhold.
23.2 SUCCESSORS AND ASSIGNS. Subject to the restrictions set
forth above in Paragraph 23.1, this Agreement shall be binding upon and shall
inure to the benefit of the permitted successors and assigns of the parties
hereto.
23.3 REQUIRED ACTIONS OF BUYER AND SELLER. Buyer and Seller
agree to execute such instruments and documents and to diligently undertake such
actions as may be required in order to consummate the purchase and sale herein
contemplated and shall use their commercially reasonable efforts to accomplish
the Close of Escrow in accordance with the provisions hereof.
23.4 COMPUTATION OF TIME PERIODS. If any date or time period
provided for in this Agreement is or ends on a Saturday, Sunday or federal,
state or legal holiday, then such date shall automatically be extended until
5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or
federal, state or legal holiday. Any day other than a Saturday, Sunday or
federal, state or legal holiday is defined herein as "Business Day".
13
23.5 CAPTIONS. Any captions to, or headings of, the paragraphs
or subparagraphs of this Agreement are solely for the convenience of the parties
hereto, are not a part of this Agreement, and shall not be used for the
interpretation or determination of the validity of this Agreement or any
provision hereof.
23.6 NO THIRD PARTY BENEFICIARIES. Except as otherwise
expressly provided herein, the execution and delivery of this Agreement shall
not be deemed to confer any rights upon, nor obligate any of the parties hereto,
to any person or entity other than the parties hereto.
23.7 WAIVER. The waiver or failure to enforce any provision of
this Agreement shall not operate as a waiver of any future breach of any such
provision or any other provision hereof.
23.8 APPLICABLE LAW/VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the State of California. Venue for
any litigation brought in connection with this Agreement shall only be proper in
the Superior Court of California, San Diego (Vista branch) or Riverside County,
California.
23.9 CONSTRUCTION. The parties hereto hereby acknowledge and
agree that (a) each party hereto is of equal bargaining strength, (b) each such
party has actively participated in the drafting, preparation and negotiation of
this Agreement, ( c) each such party has consulted with such party's own,
independent counsel, and such other professional advisors as such party has
deemed appropriate, relating to any and all matters contemplated under this
Agreement, (d) each such party and such party's counsel and advisors have
reviewed this Agreement, ( e) each such party has agreed to enter into this
Agreement following such review and the rendering of such advice, and (f) any
rule of construction to the effect that ambiguities are to be resolved against
the drafting parties shall not apply in the interpretation of this Agreement, or
any portions hereof, or any amendments hereto.
23.10 EXHIBITS AND SCHEDULES. The exhibits and schedules
attached hereto are hereby incorporated herein by this reference for all
purposes.
23.11 AMENDMENT TO THIS AGREEMENT. The terms of this Agreement
may not be modified or amended except by an instrument in writing executed by
each of the parties hereto. No subsequent agreement, representation, or promise
made by either party hereto, or by or to an employee, officer, agent or
representative of either party hereto shall be of any effect unless it is in
writing and executed by the party to be bound thereby.
23.12 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute but one and the same instrument.
23.13 ENTIRE AGREEMENT. This Agreement (including all exhibits
attached hereto) supersedes any prior agreements, negotiations and
communications, oral or written, and contains the entire agreement between, and
the final expression of, Buyer and Seller with respect to the subject matter
hereof.
23.14 FACSIMILE SIGNATURES. Buyer and Seller each (i) has
agreed to permit the use, from time to time, of facsimile signatures in order to
expedite the transaction contemplated by this Agreement; (ii) intends to be
bound by its respective telecopied signature; (iii) is aware that the other
party will rely on the facsimile signature; and, (iv) acknowledges such reliance
and waives any defenses to the enforcement of the documents and notices
effecting the transaction contemplated by this Agreement based on the fact that
a signature or notice was sent by facsimile.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
BUYER
PG ACQUISITIONS, LLC,
a California limited liability company
By: \S\ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Managing Member
SELLER
AMISTAR CORPORATION,
a California corporation
By: \S\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Its: PRESIDENT
------------------------------------
15
Acceptance by Escrow Holder:
First American Title Insurance Company hereby acknowledges
that it has received a fully executed original or original executed counterparts
of the foregoing Agreement of Purchase and Sale and Joint Escrow Instructions
and agrees to act as Escrow Holder thereunder and to be bound by and strictly
perform the terms thereof as such terms apply to Escrow Holder.
Dated: ________, 2004 First American Title Insurance Company
By:_____________________________
Its:_____________________________
16
EXHIBIT LIST
Exhibit "A" -- Description Property
Exhibit "B" -- Lease
Exhibit "C" - Right of First Refusal Addendum
Exhibit "D" --Form of Grant Deed
17
EXHIBIT "A"
PROPERTY DESCRIPTION
(TO BE ATTACHED)
EXHIBIT "B"
AIR COMMERCIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE -- NET
(DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes only
SEPTEMBER 15, 2004 , is made by and between PG ACQUISITIONS, LLC ("LESSOR") and
AMISTAR CORPORATION, A CALIFORNIA CORPORATION ("LESSEE"), (collectively the
"PARTIES," or individually a "PARTY").
1.2 PREMISES: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, and commonly
known as 237 VIA ▇▇▇▇ ▇▇▇▇, SAN ▇▇▇▇▇▇, located in the County of SAN DIEGO ,
State of CALIFORNIA, and generally described as (describe briefly the nature of
the property and, if applicable, the "PROJECT", if the property is located
within a Project) AN APPROXIMATELY 80,257 SQUARE FOOT CORPORATE HEADQUARTER
FACILITY ON AN APPROXIMATELY 5.65 ACRE PARCEL OF LAND ("PREMISES"). (See also
Paragraph 2)
1.3 TERM: TEN (10) years and ZERO (0) months ("TERM") commencing UPON
THE CLOSE OF ESCROW PURSUANT TO THE PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
Instructions between LESSOR and LESSEE dated ("COMMENCEMENT DATE") and ending ON
THE ANNIVERSARY DATE TEN (10) YEARS AFTER THE COMMENCEMENT DATE ("EXPIRATION
DATE"). (See also Paragraph 3).
1.4 EARLY POSSESSION: N/A ("EARLY POSSESSION DATE"). (See also
Paragraphs 3.2 and 3.3).
1.5 BASE RENT: $52,167.00 PER MONTH ("BASE RENT"), payable on the FIRST
day of each month commencing ON THE COMMENCEMENT DATE. (See also Paragraph 4)
[X] If this box is checked, there are provisions in this Lease for the Base Rent
to be adjusted.
1.6 BASE RENT AND OTHER MONIES PAID UPON EXECUTION:
(a) BASE RENT: $52,167.00 for the period MONTH ONE (1) OF THE
LEASE TERM.
(b) SECURITY DEPOSIT: $417,336 *SEE ADDENDUM #52 ("SECURITY
DEPOSIT"). (See also Paragraph 5)
(c) ASSOCIATION FEES: $ N/A for the period __________________.
(d) OTHER: $ N/A for ___________________.
(e) TOTAL DUE UPON EXECUTION OF THIS LEASE: $469,504.00.
1.7 AGREED USE: CORPORATE OFFICES, MANUFACTURING, ASSEMBLY, AND
WAREHOUSE FACILITY AND ALL LEGAL RELATED USES. (See also Paragraph 6)
1.8 INSURING PARTY: Lessor is the "INSURING PARTY" unless otherwise
stated herein. (See also Paragraph 8)
1.9 REAL ESTATE BROKERS: (See also Paragraph 15)
(a) REPRESENTATION: The following real estate brokers (the
"BROKERS") and brokerage relationships exist in this transaction (check
applicable boxes):
[ ] N/A repesents Lessor exclusively ("LESSOR'S BROKER")
[ ] N/A represents Lessee exclusively ("LESSEE'S BROKER")
[ ] N/A represents both Lessor and LESSEE ("DUAL AGENCY")
B-1
(b)PAYMENT TO BROKERS: Upon execution and delivery of this
Lease by both Parties, Lessor shall pay to the Broker the fee agreed to in their
separate written agreement (or if there is no such agreement, the sum of N/A or
N/A % of the total Base Rent) for the brokerage services rendered by the
Brokers.
1.10 GUARANTOR. The obligations of the Lessee under this Lease are to
be guaranteed by N/A ("GUARANTOR"). (See also Paragraph 37)
1.11 ATTACHMENTS. Attached hereto are the following, all of which
constitute a part of this Lease: |X| an Addendum consisting of Paragraphs 51
through 59,INCLUSIVE ;
[X] a plot plan depicting the Premises; Exhibit A
[ ] a current set of the Rules and Regulations;
[ ] a Work Letter;
[X] other (specify): EXHIBIT B - RIGHT OF FIRST REFUSAL ADDENDUM
EXHIBIT C - MEMORANDUM OF LEASE
2. PREMISES.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of size set forth in this Lease, or that may have
been used in calculating Rent, is an approximation which the Parties agree is
reasonable and any payments based thereon are not subject to revision whether or
not the actual size is more or less. NOTE: LESSEE IS ADVISED TO VERIFY THE
ACTUAL SIZE PRIOR TO EXECUTING THIS LEASE.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee broom clean
and free of debris on the Commencement Date or the Early Possession Date,
whichever first occurs ("START DATE"), and, so long as the required service
contracts described in Paragraph 7.1(b) below are obtained by Lessee and in
effect within thirty days following the Start Date, warrants that the existing
electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air
conditioning systems ("HVAC"), loading doors, sump pumps, if any, and all other
such elements in the Premises, other than those constructed by Lessee, shall be
in good operating condition on said date and that the structural elements of the
roof, bearing walls and foundation of any buildings on the Premises (the
"BUILDING") shall be free of material defects. If a non-compliance with said
warranty exists as of the Start Date, or if one of such systems or elements
should malfunction or fail within the appropriate warranty period, Lessor shall,
as Lessor's sole obligation with respect to such matter, except as otherwise
provided in this Lease, promptly after receipt of written notice from Lessee
setting forth with specificity the nature and extent of such non-compliance,
malfunction or failure, rectify same at Lessor's expense. The warranty periods
shall be as follows: (i) 6 months as to the HVAC systems, and (ii) 90 days as to
the remaining systems and other elements of the Building. If Lessee does not
give Lessor the required notice within the appropriate warranty period,
correction of any such non-compliance, malfunction or failure shall be the
obligation of Lessee at Lessee's sole cost and expense.
2.3 COMPLIANCE. Lessor warrants that the improvements on the Premises
comply with the building codes, applicable laws, covenants or restrictions of
record, regulations, and ordinances ("APPLICABLE REQUIREMENTS") that were in
effect at the time that each improvement, or portion thereof, was constructed.
Said warranty does not apply to the use to which Lessee will put the Premises,
modifications which may be required by the Americans with Disabilities Act or
any similar laws as a result of Lessee's use (see Paragraph 50), or to any
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Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to
be made by Lessee. NOTE: LESSEE IS RESPONSIBLE FOR DETERMINING WHETHER OR NOT
THE APPLICABLE REQUIREMENTS, AND ESPECIALLY THE ZONING, ARE APPROPRIATE FOR
LESSEE'S INTENDED USE, AND ACKNOWLEDGES THAT PAST USES OF THE PREMISES MAY NO
LONGER BE ALLOWED. If the Premises do not comply with said warranty, Lessor
shall, except as otherwise provided, promptly after receipt of written notice
from Lessee setting forth with specificity the nature and extent of such
non-compliance, rectify the same at Lessor's expense. If Lessee does not give
Lessor written notice of a non-compliance with this warranty within 6 months
following the Start Date, correction of that non-compliance shall be the
obligation of Lessee at Lessee's sole cost and expense. If the Applicable
Requirements are hereafter changed so as to require during the term of this
Lease the construction of an addition to or an alteration of the Premises and/or
Building, the remediation of any Hazardous Substance, or the reinforcement or
other physical modification of the Unit, Premises and/or Building ("CAPITAL
EXPENDITURE"), Lessor and Lessee shall allocate the cost of such work as
follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital
Expenditures are required as a result of the specific and unique use of the
Premises by Lessee as compared with uses by tenants in general, Lessee shall be
fully responsible for the cost thereof, provided, however that if such Capital
Expenditure is required during the last 2 years of this Lease and the cost
thereof exceeds 6 months' Base Rent, Lessee may instead terminate this Lease
unless Lessor notifies Lessee, in writing, within 10 days after receipt of
Lessee's termination notice that Lessor has elected to pay the difference
between the actual cost thereof and an amount equal to 6 months' Base Rent. If
Lessee elects termination, Lessee shall immediately cease the use of the
Premises which requires such Capital Expenditure and deliver to Lessor written
notice specifying a termination date at least 90 days thereafter. Such
termination date shall, however, in no event be earlier than the last day that
Lessee could legally utilize the Premises without commencing such Capital
Expenditure.
(b) If such Capital Expenditure is not the result of the
specific and unique use of the Premises by Lessee (such as, governmentally
mandated seismic modifications), then Lessor and Lessee shall allocate the
obligation to pay for such costs pursuant to the provisions of Paragraph 7.1(d);
provided, however, that if such Capital Expenditure is required during the last
2 years of this Lease or if Lessor reasonably determines that it is not
economically feasible to pay its share thereof, Lessor shall have the option to
terminate this Lease upon 90 days prior written notice to Lessee unless Lessee
notifies Lessor, in writing, within 10 days after receipt of Lessor's
termination notice that Lessee will pay for such Capital Expenditure. If Lessor
does not elect to terminate, and fails to tender its share of any such Capital
Expenditure, Lessee may advance such funds and deduct same, with Interest, from
Rent until Lessor's share of such costs have been fully paid. If Lessee is
unable to finance Lessor's share, or if the balance of the Rent due and payable
for the remainder of this Lease is not sufficient to fully reimburse Lessee on
an offset basis, Lessee shall have the right to terminate this Lease upon 30
days written notice to Lessor.
(c) Notwithstanding the above, the provisions concerning
Capital Expenditures are intended to apply only to non-voluntary, unexpected,
and new Applicable Requirements. If the Capital Expenditures are instead
triggered by Lessee as a result of an actual or proposed change in use, change
in intensity of use, or modification to the Premises then, and in that event,
Lessee shall either: (i) immediately cease such changed use or intensity of use
and/or take such other steps as may be necessary to eliminate the requirement
for such Capital Expenditure, or (ii) complete such Capital Expenditure at its
own expense. Lessee shall not, however, have any right to terminate this Lease.
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2.4 ACKNOWLEDGEMENTS. Lessee acknowledges that: (a) it has been advised
by Lessor and/or Brokers to satisfy itself with respect to the condition of the
Premises (including but not limited to the electrical, HVAC and fire sprinkler
systems, security, environmental aspects, and compliance with Applicable
Requirements and the Americans with Disabilities Act), and their suitability for
Lessee's intended use, (b) Lessee has made such investigation as it deems
necessary with reference to such matters and assumes all responsibility therefor
as the same relate to its occupancy of the Premises, and (c) neither Lessor,
Lessor's agents, nor Brokers have made any oral or written representations or
warranties with respect to said matters other than as set forth in this Lease.
2.5 LESSEE AS PRIOR OWNER/OCCUPANT. The warranties made by Lessor in
Paragraph 2 shall be of no force or effect if immediately prior to the Start
Date Lessee was the owner or occupant of the Premises. In such event, Lessee
shall be responsible for any necessary corrective work. Lessee hereby
acknowledges that is shall be deemed to be the owner and occupant of the
Premises immediately prior to the Start Date and that therefore none of the
warranties contained in Paragraph 2 above shall be deemed to have been given nor
shall they have any force or effect whatsoever.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION.
3.3 DELAY IN POSSESSION.
3.4 LESSEE COMPLIANCE. Lessor shall not be required to deliver
possession of the Premises to Lessee until Lessee complies with its obligation
to provide evidence of insurance (Paragraph 8.5). Pending delivery of such
evidence, Lessee shall be required to perform all of its obligations under this
Lease from and after the Start Date, including the payment of Rent,
notwithstanding Lessor's election to withhold possession pending receipt of such
evidence of insurance. Further, if Lessee is required to perform any other
conditions prior to or concurrent with the Start Date, the Start Date shall
occur but Lessor may elect to withhold possession until such conditions are
satisfied.
4. RENT.
▇.▇.▇▇▇▇ DEFINED. All monetary obligations of Lessee to Lessor under
the terms of this Lease (except for the Security Deposit) are deemed to be rent
("RENT").
4.2 PAYMENT. Lessee shall cause payment of Rent to be received by
Lessor in lawful money of the United States on or before the day on which it is
due, without offset or deduction (except as specifically permitted in this
Lease). Rent for any period during the term hereof which is for less than one
full calendar month shall be prorated based upon the actual number of days of
said month. Payment of Rent shall be made to Lessor at its address stated herein
or to such other persons or place as Lessor may from time to time designate in
writing. Acceptance of a payment which is less than the amount then due shall
not be a waiver of Lessor's rights to the balance of such Rent, regardless of
Lessor's endorsement of any check so stating. In the event that any check,
draft, or other instrument of payment given by Lessee to Lessor is dishonored
for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any
Late Charge and Lessor, at its option, may require all future payments to be
made by Lessee to be by cashier's check. Payments will be applied first to
accrued late charges and attorney's fees, second to accrued interest, then to
Base Rent and Operating Expense Increase, and any remaining amount to any other
outstanding charges or costs.
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4.3 ASSOCIATION FEES.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof the
Security Deposit as security for Lessee's faithful performance of its
obligations under this Lease. If Lessee is in Breach under this Lease, Lessor
may use, apply or retain all or any portion of said Security Deposit for the
payment of any amount due Lessor or to reimburse or compensate Lessor for any
liability, expense, loss or damage which Lessor may suffer or incur by reason
thereof. If Lessor uses or applies all or any portion of the Security Deposit,
Lessee shall within 10 days after written request therefor deposit monies with
Lessor sufficient to restore said Security Deposit to the full amount required
by this Lease. Should the Agreed Use be amended to accommodate a material change
in the business of Lessee or to accommodate a sublessee or assignee, Lessor
shall have the right to increase the Security Deposit to the extent necessary,
in Lessor's reasonable judgment, to account for any increased wear and tear that
the Premises may suffer as a result thereof. If a change in control of Lessee
occurs during this Lease and Lessee is not a publicly traded company, and
following such change the financial condition of Lessee is, in Lessor's
reasonable judgment, significantly reduced, Lessee shall deposit such additional
monies with Lessor as shall be sufficient to cause the Security Deposit to be at
a commercially reasonable level based on such change in financial condition.
Subject to the provisions of Article 52, Lessor shall not be required to keep
$156,501.00 of the Security Deposit in an interest bearing account. Within 14
days after the expiration or termination of this Lease, if Lessor elects to
apply the Security Deposit only to unpaid Rent, and otherwise within 30 days
after the Premises have been vacated pursuant to Paragraph 7.4(c) below, Lessor
shall return that portion of the Security Deposit not used or applied by Lessor.
No part of the Security Deposit shall be considered to be held in trust, or to
be prepayment for any monies to be paid by Lessee under this Lease.
6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the Agreed
Use, or any other legal use which is reasonably comparable thereto, and for no
other purpose. Lessee shall not use or permit the use of the Premises in a
manner that is unlawful, creates damage, waste or a nuisance, or that disturbs
occupants of or causes damage to neighboring premises or properties. Lessor
shall not unreasonably withhold or delay its consent to any written request for
a modification of the Agreed Use, so long as the same will not impair the
structural integrity of the improvements on the Premises or the mechanical or
electrical systems therein, and/or is not significantly more burdensome to the
Premises. If Lessor elects to withhold consent, Lessor shall within 7 days after
such request give written notification of same, which notice shall include an
explanation of Lessor's objections to the change in the Agreed Use.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS
SUBSTANCE" as used in this Lease shall mean any product, substance, or waste
whose presence, use, manufacture, disposal, transportation, or release, either
by itself or in combination with other materials expected to be on the Premises,
is either: (i) potentially injurious to the public health, safety or welfare,
the environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substances shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, and/or crude oil or any products, by-products or fractions
thereof. Lessee shall not engage in any activity in or on the Premises which
constitutes a Reportable Use of Hazardous Substances without the express prior
written consent of Lessor and timely compliance (at Lessee's expense) with all
Applicable Requirements. "REPORTABLE USE" shall mean (i) the installation or use
of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice, registration or
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business plan is required to be filed with, any governmental authority, and/or
(iii) the presence at the Premises of a Hazardous Substance with respect to
which any Applicable Requirements requires that a notice be given to persons
entering or occupying the Premises or neighboring properties. Notwithstanding
the foregoing, Lessee may use any ordinary and customary materials reasonably
required to be used in the normal course of the Agreed Use, ordinary office
supplies (copier toner, liquid paper, glue, etc.) and common household cleaning
materials, so long as such use is in compliance with all Applicable
Requirements, is not a Reportable Use, and does not expose the Premises or
neighboring property to any meaningful risk of contamination or damage or expose
Lessor to any liability therefor. In addition, Lessor may condition its consent
to any Reportable Use upon receiving such additional assurances as Lessor
reasonably deems necessary to protect itself, the public, the Premises and/or
the environment against damage, contamination, injury and/or liability,
including, but not limited to, the installation (and removal on or before Lease
expiration or termination) of protective modifications (such as concrete
encasements) and/or increasing the Security Deposit. Notwithstanding anything to
the contrary contained in this Lease, Lessor hereby consents to the storage and
use of such Reportable Use Hazardous Substances as are currently used in
Lessee's operation, including and limited to: lead based solder dross, machine
coolant and oil, isopropyl alcohol, and lead solder debris; provided that such
Hazardous Substances are maintained, used and disposed of in compliance with all
Applicable Requirements, including but not limited to maintaining any necessary
Material Data Safety Sheets, obtaining all necessary permits, and making all
required regulatory filings.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable
cause to believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises, other than as previously consented to by Lessor,
Lessee shall immediately give written notice of such fact to Lessor, and provide
Lessor with a copy of any report, notice, claim or other documentation which it
has concerning the presence of such Hazardous Substance.
(c) LESSEE REMEDIATION. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under, or about the
Premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Lessee's expense, comply with all Applicable Requirements and take
all investigatory and/or remedial action reasonably recommended, whether or not
formally ordered or required, for the cleanup of any contamination of, and for
the maintenance, security and/or monitoring of the Premises or neighboring
properties, that was caused or materially contributed to by Lessee, or
pertaining to or involving any Hazardous Substance brought onto the Premises
during the term of this Lease, by or for Lessee, or any third party except for
the negligence or willful misconduct of Lessor, its employees or agents.
(d) LESSEE INDEMNIFICATION. Lessee shall indemnify, defend and
hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless
from and against any and all loss of rents and/or damages, liabilities,
judgments, claims, expenses, penalties, and attorneys' and consultants' fees
arising out of or involving any Hazardous Substance brought onto the Premises by
or for Lessee, or any third party (provided, however, that Lessee shall have no
liability under this Lease with respect to underground migration of any
Hazardous Substance under the Premises from adjacent properties not caused or
contributed to by Lessee and for the negligence or willful misconduct of Lessor,
its employees or agents. Lessee's obligations shall include, but not be limited
to, the effects of any contamination or injury to person, property or the
environment created or suffered by Lessee, and the cost of investigation,
removal, remediation, restoration and/or abatement, and shall survive the
expiration or termination of this Lease. NO TERMINATION, CANCELLATION OR RELEASE
AGREEMENT ENTERED INTO BY LESSOR AND LESSEE SHALL RELEASE LESSEE FROM ITS
OBLIGATIONS UNDER THIS LEASE WITH RESPECT TO HAZARDOUS SUBSTANCES, UNLESS
SPECIFICALLY SO AGREED BY LESSOR IN WRITING AT THE TIME OF SUCH AGREEMENT.
(e) LESSOR INDEMNIFICATION.
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(f) INVESTIGATIONS AND REMEDIATIONS. At all times during the
term of this Lease, Lessee shall have responsibility and shall pay for any
investigations or remediation measures required by governmental entities having
jurisdiction with respect to the existence of Hazardous Substances on the
Premises except for the negligence or willful misconduct of Lessor, its
employees or agents.
(g) LESSOR TERMINATION OPTION.
6.3 LESSEE'S COMPLIANCE WITH APPLICABLE REQUIREMENTS. Except as
otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully,
diligently and in a timely manner, materially comply with all Applicable
Requirements, the requirements of any applicable fire insurance underwriter or
rating bureau, and the recommendations of Lessor's engineers and/or consultants
which relate in any manner to the such Requirements, without regard to whether
such Requirements are now in effect or become effective after the Start Date.
Lessee shall, within 10 days after receipt of Lessor's written request, provide
Lessor with copies of all permits and other documents, and other information
evidencing Lessee's compliance with any Applicable Requirements specified by
Lessor, and shall immediately upon receipt, notify Lessor in writing (with
copies of any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving the failure of
Lessee or the Premises to comply with any Applicable Requirements.
6.4 INSPECTION; COMPLIANCE. Lessor and Lessor's "LENDER" (as defined in
Paragraph 30) and consultants shall have the right to enter into Premises at any
time, in the case of an emergency, and otherwise at reasonable times after
reasonable notice, for the purpose of inspecting the condition of the Premises
and for verifying compliance by Lessee with this Lease. The cost of any such
inspections shall be paid by Lessor, unless a violation of Applicable
Requirements, or a Hazardous Substance Condition (see paragraph 9.1) found to
exist or be imminent, or the inspection is requested or ordered by a
governmental authority. Except for any negligent act or willful misconduct of
Lessor, its employees or agents, or in such case, Lessee shall upon request
reimburse Lessor for the cost of such inspection, so long as such inspection is
reasonably related to the violation or contamination. In addition, Lessee shall
provide copies of all relevant material safety data sheets (MSDS) to Lessor
within 10 days of the receipt of a written request therefor.
7. MAINTENANCE; REPAIRS, UTILITY INSTALLATIONS; TRADE FIXTURES AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) IN GENERAL. Subject to the provisions of Paragraph 2.2
(Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable
Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), and 14
(Condemnation), Lessee shall, at Lessee's sole expense, keep the non-structural
portions of the Premises, Utility Installations (intended for Lessee's exclusive
use, no matter where located), and Alterations in good order, condition and
repair (whether or not the portion of the Premises requiring repairs, or the
means of repairing the same, are reasonably or readily accessible to Lessee, and
whether or not the need for such repairs occurs as a result of Lessee's use, any
prior use, the elements or the age of such portion of the Premises), including,
but not limited to, all equipment or facilities, such as plumbing, HVAC
equipment, electrical, lighting facilities, boilers, pressure vessels, fire
protection system, fixtures, walls (interior and exterior), ceilings, roofs,
roof drainage systems, floors (excluding floor slabs), windows, doors, plate
glass, skylights, landscaping, driveways, parking lots, fences, retaining walls,
signs, sidewalks and parkways located in, on, or adjacent to the Premises.
Lessee, in keeping the Premises in good order, condition and repair, shall
exercise and perform good maintenance practices, specifically including the
procurement and maintenance of the service contracts required by Paragraph
7.1(b) below. Lessee's obligations shall include restorations, replacements or
renewals when necessary to keep the non-structural portions of the Premises and
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all improvements thereon or a part thereof in good order, condition and state of
repair, ordinary wear and tear an damage by casualty excepted. Lessee shall,
during the term of this Lease, keep the exterior appearance of the Building in a
first-class condition (including, e.g. graffiti removal) consistent with the
exterior appearance of other similar facilities of comparable age and size in
the vicinity, including, when necessary, the exterior repainting of the
Building. Notwithstanding the foregoing or anything else contained in this Lease
to the contrary, Lessee accepts the property in its current "as is" and "where
is" condition as of the Commencement Date and except as expressly set forth in
this Lease, Lessor shall have no obligation to repair, replace or modify any
non-structural portion of the Building or the Premises. This is intended to be
an Absolute Net Lease which means that Lessee is responsible for every cost and
expense of the Building and the Premises, except as provided under Paragraph 7.2
below. Lessee's obligations to repair and maintain include, but are not limited
to the roof, parking lot, minor repairs to the structural portions of the
Building and the Premises, whether such repairs are now known, foreseen or
anticipated.
(b) SERVICE CONTRACTS. Lessee shall, at Lessee's sole expense,
procure and maintain contracts, with copies to Lessor, in customary form and
substance for, and with contractors specializing and experienced in the
maintenance of the following equipment and improvements, if any, if and when
installed on the Premises: (i) HVAC equipment, (ii) boiler, and pressure
vessels, (iii) fire extinguishing systems, including fire alarm and/or smoke
detection, (iv) landscaping and irrigation systems, (v) roof covering and
drains, (vi) clarifiers (vii) basic utility feed to the perimeter of the
Building, and (viii) any other equipment, if reasonably required by Lessor.
However, if Lessee Breaches such obligation, Lessor reserves the right, upon
notice to Lessee, to procure and maintain any or all of such service contracts,
and if Lessor so elects, Lessee shall reimburse Lessor, upon demand, for the
cost thereof.
(c) FAILURE TO PERFORM. If Lessee fails to perform Lessee's
obligations under this Paragraph 7.1, Lessor may enter upon the Premises after
10 days' prior written notice to Lessee (except in the case of an emergency, in
which case no notice shall be required), perform such obligations on Lessee's
behalf, and put the Premises in good order, condition and repair, and Lessee
shall promptly pay to Lessor a sum equal to 115% of the cost thereof.
(d) REPLACEMENT. Subject to Lessee's indemnification of Lessor
as set forth in Paragraph 8.7 below, and without relieving Lessee of liability
resulting from Lessee's failure to exercise and perform good maintenance
practices, if an item described in Paragraph 7.1(b) cannot be repaired, then
such item shall be replaced by Lessee at Lessee's sole cost and expense without
offset, abatement or adjusted to rent.
7.2 LESSOR'S OBLIGATIONS. It is intended by the Parties hereto that
Lessor have no obligation, in any manner whatsoever, to repair and maintain the
Premises, or the equipment therein, all of which obligations are intended to be
that of the Lessee. It is the intention of the Parties that the terms of this
lease govern the respective obligations of the Parties as to maintenance and
repair of the Premises, and they expressly waive the benefit of any statute now
or hereafter in effect to the extent it is inconsistent with the terms of this
Lease. Notwithstanding anything to the contrary contained in this Lease, and
except for Lessee's negligence or willful misconduct, Landlord shall be
responsible for major repairs, including replacement if needed, of the
structural portions of the Building and the Premises to include the foundation,
bearing walls and structural portions of the roof. Lessor shall also be
responsible for the repair of any damage which arises as a result of Lessor's or
its employee's or agent's negligence or willful misconduct.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
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(a) DEFINITIONS. The term "UTILITY INSTALLATIONS" refers to
all floor and window coverings, air and/or vacuum lines, power panels,
electrical distribution, security and fire protection systems, communication
cabling, lighting fixtures, HVAC equipment, plumbing, and fencing in or on the
Premises. The term "TRADE FIXTURES" shall mean Lessee's machinery and equipment
that can be removed without doing material damage to the Premises. The term
"ALTERATIONS" shall mean any modification of the improvements, other than
Utility Installations or Trade Fixtures, whether by addition or deletion.
"LESSEE OWNED ALTERATIONS AND/OR UTILITY INSTALLATIONS" are defined as
Alterations and/or Utility Installations made by Lessee that are not yet owned
by Lessor pursuant to Paragraph 7.4(a).
(b) CONSENT. Lessee shall not make any Alterations or Utility
Installations to the Premises without Lessor's prior written consent. Lessee
may, however, make non-structural Utility Installations to the interior of the
Premises (excluding the roof) without such consent but upon notice to Lessor, as
long as they are not visible from the outside, do not involve puncturing,
relocating or removing the roof or any existing walls, will not affect the
electrical, plumbing, HVAC, and/or life safety systems, and the cumulative cost
thereof does not exceed a sum equal to one moth's Base Rent in any one calendar
year. Notwithstanding the foregoing, Lessee may make Utility Installations to
the Lessee's manufacturing and production area in the interior of the building
without Lessor's consent as long as the modifications do not make the Premises
less functional and any Utility installations are done in accordance with
applicable codes and laws. Notwithstanding the foregoing, Lessee shall not make
or permit any roof penetrations and/or install anything on the roof without the
prior written approval of Lessor. Lessor may, as a precondition to granting such
approval, require Lessee to utilize a contractor chosen and/or approved by
Lessor. Any Alterations or Utility Installations that Lessee shall desire to
make and which require the consent of the Lessor shall be presented to Lessor in
written form with detailed plans. Consent shall be deemed conditioned upon
Lessee's: (i) acquiring all applicable governmental permits, (ii) furnishing
Lessor with copies of both the permits and the plans and specifications prior to
commencement of the work, and (iii) compliance with all conditions of said
permits and other Applicable Requirements in a prompt and expeditious manner.
Any Alterations or Utility Installations shall be performed in a workmanlike
manner with good and sufficient materials. Lessee shall promptly upon completion
furnish Lessor with as-built plans and specifications. For work which costs an
amount in excess of one month's Base Rent, Lessor may condition its consent upon
Lessee providing a lien and completion bond in an amount equal to 100% of the
estimated cost of such Alteration or Utility Installation.
(c) LIENS; BONDS. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use on the Premises, which claims are or may be secured by any
mechanic's or materialmen's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than 10 days notice prior to the commencement
of any work in, on or about the Premises, and Lessor shall have the right to
post notices of non-responsibility. If Lessee shall contest the validity of any
such lien, claim or demand, then Lessee shall, at its sole expense defend and
protect itself, Lessor and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond
in an amount equal to 100% of the amount of such contested lien, claim or
demand, indemnifying Lessor against liability for the same. If Lessor elects to
participate in any such action, Lessee shall pay Lessor's attorneys' fees and
costs.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require removal or
elect ownership as hereinafter provided, all Alterations and Utility
Installations made by Lessee shall be the property of Lessee, but considered a
part of the Premises. Lessor may, at any time, elect in writing to be the owner
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of all or any specified part of the Lessee Owned Alterations and Utility
Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all
Lessee Owned Alterations and Utility Installations shall, at the expiration or
termination of this Lease, become the property of Lessor and be surrendered by
Lessee with the Premises.
(b) REMOVAL. By delivery to Lessee of written notice from
Lessor not earlier than 90 and not later than 30 days prior to the end of the
term of this Lease, Lessor may require that any or all Lessee Owned Alterations
or Utility Installations be removed by the expiration or termination of this
Lease. Lessor may require the removal at any time of all or any part of any
Lessee Owned Alterations or Utility Installations made without the required
consent.
(c) SURRENDER; RESTORATION. Lessee shall surrender the
Premises by the Expiration Date or any earlier termination date, with all of the
improvements, parts and surfaces thereof broom clean and free of debris, and in
good operating order, condition and state of repair, ordinary wear and tear and
damage by casualty excepted. "Ordinary wear and tear" shall not include any
damage or deterioration that would have been prevented by good maintenance
practice. Notwithstanding the foregoing, if this Lease is for 12 months or less,
then Lessee shall surrender the Premises in the same condition as delivered to
Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee
shall repair any damage occasioned by the installation, maintenance or removal
of Trade Fixtures, Lessee owned Alterations and/or Utility Installations,
furnishings, and equipment as well as the removal of any storage tank installed
by or for Lessee. Lessee shall completely remove from the Premises any and all
Hazardous Substances brought onto the Premises by or for Lessee, or any third
party (except Hazardous Substances which were deposited via underground
migration from areas outside of the Premises, or if applicable, the Project)
even if such removal would require Lessee to perform or pay for work that
exceeds statutory requirements. Trade Fixtures shall remain the property of
Lessee and shall be removed by Lessee. Any personal property of Lessee not
removed on or before the Expiration Date or any earlier termination date shall
be deemed to have been abandoned by Lessee and may be disposed of or retained by
Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises
pursuant to this Paragraph 7.4(c) without the express written consent of Lessor
shall constitute a holdover under the provisions of Paragraph 26 below.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT FOR INSURANCE. Lessee shall pay for all insurance required
under Paragraph 8 except to the extent of the cost attributable to liability
insurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 per
occurrence. Premiums for policy periods commencing prior to or extending beyond
the Lease term shall be prorated to correspond to the Lease term. Payment shall
be made by Lessee to Lessor within 10 days following receipt of an invoice.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force a
Commercial General Liability policy of insurance protecting Lessee and Lessor as
an additional insured against claims for bodily injury, personal injury and
property damage based upon or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be on an occurrence basis providing single limit coverage in an amount not
less than $1,000,000 per occurrence with an annual aggregate of not less than
$2,000,000, an "Additional Insured-Managers or Lessors of Premises Endorsement"
and contain the "Amendment of the Pollution Exclusion Endorsement" for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not contain
any intra-insured exclusions as between insured persons or organizations, but
shall include coverage for liability assumed under this Lease as an "insured
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contract" for the performance of Lessee's indemnity obligations under this
Lease. The limits of said insurance shall not, however, limit the liability of
Lessee nor relieve Lessee of any obligation hereunder. All insurance carried by
Lessee shall be primary to and not contributory with any similar insurance
carried by Lessor, whose insurance shall be considered excess insurance only.
(b) CARRIED BY LESSOR. Lessor shall maintain liability
insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of,
the insurance required to be maintained by Lessee. Lessee shall not be named as
an additional insured therein.
8.3 PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall obtain
and keep in force a policy or policies in the name of Lessor, with loss payable
to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the
Premises. The amount of such insurance shall be equal to the full replacement
cost of the Premises, as the same shall exist from time to time, or the amount
required by any Lender, but in no event more than the commercially reasonable
and available insurable value thereof. If Lessor is the Insuring Party, however,
Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's
personal property shall be insured by Lessee under Paragraph 8.4 rather than by
Lessor. If the coverage is available and commercially appropriate, such policy
or policies shall insure against all risks of direct physical loss or damage
(except the perils of flood and/or earthquake), including coverage for debris
removal and the enforcement of any Applicable Requirements requiring the
upgrading, demolition, reconstruction or replacement of any portion of the
Premises as the result of a covered loss. Said policy or policies shall also
contain an agreed valuation provision in lieu of any coinsurance clause, waiver
of subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest to where the Premises are located. If such insurance coverage has a
deductible clause, the deductible amount shall not exceed $10,000 per
occurrence, and Lessee shall be liable for such deductible amount in the event
of an Insured Loss.
(b) RENTAL VALUE. The Insuring Party shall obtain and keep in
force a policy or policies in the name of Lessor with loss payable to Lessor and
any Lender, insuring the loss of the full Rent for one year with an extended
period of indemnity for an additional 180 days ("Rental Value insurance"). Said
insurance shall contain an agreed valuation provision in lieu of any coinsurance
clause, and the amount of coverage shall be adjusted annually to reflect the
projected Rent otherwise payable by Lessee, for the next 12 month period. Lessee
shall be liable for any deductible amount in the event of such loss.
(c) ADJACENT PREMISES. If the Premises are part of a larger
building, or of a group of buildings owned by Lessor which are adjacent to the
Premises, the Lessee shall pay for any increase in the premiums for the property
insurance of such building or buildings if said increase is caused by Lessee's
acts, omissions, use or occupancy of the Premises.
8.4 LESSEE'S PROPERTY; BUSINESS INTERRUPTION INSURANCE.
(a) PROPERTY DAMAGE. Lessee shall obtain and maintain
insurance coverage on all of Lessee's personal property, Trade Fixtures, and
Lessee Owned Alterations and Utility Installations. Such insurance shall be full
replacement cost coverage with a deductible of not to exceed $10,000.00 per
occurrence. The proceeds from any such insurance shall be used by Lessee for the
replacement of personal property, Trade Fixtures and Lessee Owned Alterations
and Utility Installations. Lessee shall provide Lessor with written evidence
that such insurance is in force.
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(b) BUSINESS INTERRUPTION. Lessee shall obtain and maintain
loss of income and extra expense insurance in amounts as will reimburse Lessee
for direct or indirect loss of earnings attributable to all perils commonly
insured against by prudent lessees in the business of Lessee or attributable to
prevention of access to the Premises as a result of such perils.
(c) NO REPRESENTATION OF ADEQUATE COVERAGE. Lessor makes no
representation that the limits or forms of coverage of insurance specified
herein are adequate to cover Lessee's property, business operations or
obligations under this Lease.
8.5 INSURANCE POLICIES. Insurance required herein shall be by companies
duly licensed or admitted to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least B+, V, as set forth in the most current issue of "Best's
Insurance Guide", or such other rating as may be required by a Lender. Lessee
shall not do or permit to be done anything which invalidates the required
insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor
certified copies of policies of such insurance or certificates evidencing the
existence and amounts of the required insurance. No such policy shall be
cancelable or subject to modification except after 30 days prior written notice
to Lessor. Lessee shall, at least 30 days prior to the expiration of such
policies, furnish Lessor with evidence of renewals or "insurance binders"
evidencing renewal thereof, or Lessor may order such insurance and charge the
cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon
demand. Such policies shall be for a term of at least one year, or the length of
the remaining term of this Lease, whichever is less. If either Party shall fail
to procure and maintain the insurance required to be carried by it, the other
Party may, but shall not be required to, procure and maintain the same.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages against the other, for loss of or damage
to its property arising out of or incident to the perils required to be insured
against herein. The effect of such releases and waivers is not limited by the
amount of insurance carried or required, or by any deductibles applicable
hereto. The Parties agree to have their respective property damage insurance
carriers waive any right to subrogation that such companies may have against
Lessor or Lessee, as the case may be, so long as the insurance is not
invalidated thereby.
8.7 INDEMNITY. Except for Lessor's gross negligence or willful
misconduct, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground lessor, partners and
Lenders, from and against any and all claims, loss of rents and/or damages,
liens, judgments, penalties, reasonable attorneys' and consultants' fees,
expenses and/or liabilities arising out of, involving, or in connection with,
the use and/or occupancy of the Premises by Lessee. If any action or proceeding
is brought against Lessor by reason of any of the foregoing matters, Lessee
shall upon notice defend the same at Lessee's expense by counsel reasonably
satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense.
Lessor need not have first paid any such claim in order to be defended or
indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Except for Lessor's gross
negligence or willful misconduct, Lessor shall not be liable for injury or
damage to the person or goods, wares, merchandise or other property of Lessee,
Lessee's employees, contractors, invitees, customers, or any other person in or
about the Premises, whether such damage or injury is caused by or results from
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, HVAC or lighting fixtures, or from any other cause, whether the said
injury or damage results from conditions arising upon the Premises or upon other
portions of the building of which the Premises are a part, or from other sources
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or places. Lessor shall not be liable for any damages arising from any act or
neglect of any other tenant of Lessor nor from the failure of Lessor to enforce
the provisions of any other lease in the Project. Without limiting the
generality of the foregoing, Lessor's negligence or breach of this Lease, Lessor
shall under no circumstances be liable for injury to Lessee's business or for
any loss of income or profit therefrom.
8.9 FAILURE TO PROVIDE INSURANCE. Lessee acknowledges that any failure
on its part to obtain or maintain the insurance required herein will expose
Lessor to risks and potentially cause Lessor to incur costs not contemplated by
this Lease, the extent of which will be extremely difficult to ascertain.
Accordingly, for any month or portion thereof that Lessee does not maintain the
required insurance and/or does not provide Lessor with the required binders or
certificates evidencing the existence of the required insurance and such failure
is not cured within ten (10) days after written notice to Lessee, the Base Rent
shall be automatically increased by an amount equal to 10% of the then existing
Base Rent or $100, whichever is greater. The parties agree that such increase in
Base Rent represents fair and reasonable compensation for the additional risk/
costs that Lessor will incur by reason of Lessee's failure to maintain the
required insurance. Such increase in Base Rent shall in no event constitute a
waiver of Lessee's Default or Breach with respect to the failure to maintain
such insurance, prevent the exercise of any of the other rights and remedies
granted hereunder, nor relieve Lessee of its obligation to maintain the
insurance specified in this Lease.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction
to the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations, which can reasonably be repaired in 6 months or less from
the date of the damage or destruction. Lessor shall notify Lessee in writing
within 30 days from the date of the damage or destruction as to whether or not
the damage is Partial or Total.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which cannot reasonably be repaired in 6
months or less from the date of the damage or destruction. Lessor shall notify
Lessee in writing within 30 days from the date of the damage or destruction as
to whether or not the damage is Partial or Total.
(c) "INSURED LOSS" shall mean damage or destruction to
improvements on the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which was caused by an event required to be
covered by the insurance described in Paragraph 8.3(a), irrespective of any
deductible amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or
rebuild the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of Applicable Requirements, and
without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence
or discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises which requires repair, remediation, or restoration.
9.2 PARTIAL DAMAGE - INSURED LOSS. If a Premises Partial Damage that is
an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such
damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
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full force and effect; provided, however, that Lessee shall, at Lessor's
election, make the repair of any damage or destruction the total cost to repair
of which is $10,000 or less, and, in such event, Lessor shall make any
applicable insurance proceeds available to Lessee on a reasonable basis for that
purpose. Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such repair, the
Insuring Party shall promptly contribute the shortage in proceeds (except as to
the deductible which is Lessee's responsibility) as and when required to
complete said repairs. In the event, however, such shortage was due to the fact
that, by reason of the unique nature of the improvements, full replacement cost
insurance coverage was not commercially reasonable and available, Lessor shall
have no obligation to pay for the shortage in insurance proceeds or to fully
restore the unique aspects of the Premises unless Lessee provides Lessor with
the funds to cover same, or adequate assurance thereof, within 10 days following
receipt of written notice of such shortage and request therefor. If Lessor
receives said funds or adequate assurance thereof within said 10 day period, the
party responsible for making the repairs shall complete them as soon as
reasonably possible and this Lease shall remain in full force and effect. If
such funds or assurance are not received, Lessor may nevertheless elect by
written notice to Lessee within 10 days thereafter to: (i) make such restoration
and repair as is commercially reasonable with Lessor paying any shortage in
proceeds, in which case this Lease shall remain in full force and effect, or
(ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitled
to reimbursement of any funds contributed by Lessee to repair any such damage or
destruction. Premises Partial Damage due to flood or earthquake shall be subject
to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but
the net proceeds of any such insurance shall be made available for the repairs
if made by either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If a Premises Partial Damage that
is not an Insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense),
Lessor may either: (i) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) terminate this Lease by giving written notice to Lessee within
30 days after receipt by Lessor of knowledge of the occurrence of such damage.
Such termination shall be effective 60 days following the date of such notice.
In the event Lessor elects to terminate this Lease, Lessee shall have the right
within 10 days after receipt of the termination notice to give written notice to
Lessor of Lessee's commitment to pay for the repair of such damage without
reimbursement from Lessor. Lessee shall provide Lessor with said funds or
satisfactory assurance thereof within 30 days after making such commitment. In
such event this Lease shall continue in full force and effect, and Lessor shall
proceed to make such repairs as soon as reasonably possible after the required
funds are available. If Lessee does not make the required commitment, this Lease
shall terminate as of the date specified in the termination notice.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs, this Lease shall terminate 60 days following
such Destruction. If the damage or destruction was caused by the gross
negligence or willful misconduct of Lessee, Lessor shall have the right to
recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last 6 months of
this Lease there is damage for which the cost to repair exceeds one month's Base
Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective
60 days following the date of occurrence of such damage by giving a written
termination notice to Lessee within 30 days after the date of occurrence of such
damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable
option to extend this Lease or to purchase the Premises, then Lessee may
preserve this Lease by, (a) exercising such option and (b) providing Lessor with
any shortage in insurance proceeds (or adequate assurance thereof) needed to
make the repairs on or before the earlier of (i) the date which is 10 days after
Lessee's receipt of Lessor's written notice purporting to terminate this Lease,
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or (ii) the day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds (or
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall, at Lessor's commercially reasonable expense, repair such damage as soon
as reasonably possible and this Lease shall continue in full force and effect.
If Lessee fails to exercise such option and provide such funds or assurance
during such period, then this Lease shall terminate on the date specified in the
termination notice and Lessee's option shall be extinguished.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) ABATEMENT. In the event of Premises Partial Damage or
Premises Total Destruction or a Hazardous Substance Condition for which Lessee
is not responsible under this Lease, the Rent payable by Lessee for the period
required for the repair, remediation or restoration of such damage shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired, but not to exceed the proceeds received from the Rental Value
insurance. All other obligations of Lessee hereunder shall be performed by
Lessee, and Lessor shall have no liability for any such damage, destruction,
remediation, repair or restoration except as provided herein.
(b) REMEDIES. If Lessor shall be obligated to repair or
restore the Premises and does not commence, in a substantial and meaningful way,
such repair or restoration within 90 days after such obligation shall accrue,
Lessee may, at any time prior to the commencement of such repair or restoration,
give written notice to Lessor and to any Lenders of which Lessee has actual
notice, of Lessee's election to terminate this Lease on a date not less than 60
days following the giving of such notice. If Lessee gives such notice and such
repair or restoration is not commenced within 30 days thereafter, this Lease
shall terminate as of the date specified in said notice. If the repair or
restoration is commenced within such 30 days, this Lease shall continue in full
force and effect. "Commence" shall mean either the unconditional authorization
of the preparation of the required plans, or the beginning of the actual work on
the Premises, whichever first occurs.
9.7 TERMINATION; ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be
made concerning advance Base Rent and any other advance payments made by Lessee
to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's
Security Deposit as has not been, or is not then required to be, used by Lessor.
9.8 WAIVE STATUTES. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
with respect to the termination of this Lease and hereby waive the provisions of
any present or future statute to the extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 DEFINITION. As used herein, the term "REAL PROPERTY TAXES" shall
include any form of assessment; real estate, general, special, ordinary or
extraordinary, or rental levy or tax (other than inheritance, personal income or
estate taxes); improvement bond; and/or license fee imposed upon or levied
against any legal or equitable interest of Lessor in the Premises or the
Project, Lessor's right to other income therefrom, and/or Lessor's business of
leasing, by any authority having the direct or indirect power to tax and where
the funds are generated with reference to the Building address and where the
proceeds so generated are to be applied by the city, county or other local
taxing authority of a jurisdiction within which the Premises are located. Real
Property Taxes shall also include any tax, fee, levy, assessment or charge, or
any increase therein: (i) imposed by reason of events occurring during the term
of this Lease, including but not limited to, a change in the ownership of the
Premises, but excluding a transfer or conveyance of ownership interests in
Lessor or a transfer or conveyance of the Premises to an entity controlled or
affiliated with Lessor, and (ii) levied or assessed on machinery or equipment
provided by Lessor to Lessee pursuant to this Lease.
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10.2 PAYMENT OF TAXES. In addition to Base Rent, Lessee shall pay to
Lessor an amount equal to the Real Property Tax installment due at least 20 days
prior to the applicable delinquency date. If any such installment shall cover
any period of time prior to or after the expiration or termination of this
Lease, Lessee's share of such installment shall be prorated. In the event Lessee
incurs a late charge on any Rent payment, Lessor may estimate the current Real
Property Taxes, and require that such taxes be paid in advance to Lessor by
Lessee monthly in advance with the payment of the Base Rent. Such monthly
payments shall be an amount equal to the amount of the estimated installment of
taxes divided by the number of months remaining before the month in which said
installment becomes delinquent. When the actual amount of the applicable tax
▇▇▇▇ is known, the amount of such equal monthly advance payments shall be
adjusted as required to provide the funds needed to pay the applicable taxes. If
the amount collected by Lessor is insufficient to pay such Real Property Taxes
when due, Lessee shall pay Lessor, upon demand, such additional sum as is
necessary. Advance payments may be intermingled with other moneys of Lessor and
shall not bear interest. In the event of a Breach by Lessee in the performance
of its obligations under this Lease, then any such advance payments may be
treated by Lessor as an additional Security Deposit.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property Taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be conclusively determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available.
10.4 PERSONAL PROPERTY TAXES. Lessee shall pay, prior to delinquency,
all taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee. When possible, Lessee shall cause its Lessee Owned Alterations and
Utility Installations, Trade Fixtures, furnishings, equipment and all other
personal property to be assessed and billed separately from the real property of
Lessor. If any of Lessee's said property shall be assessed with Lessor's real
property, Lessee shall pay Lessor the taxes attributable to Lessee's property
within 10 days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. UTILITIES AND SERVICES. Lessee shall pay for all water, gas, heat, light,
power, telephone, trash disposal and other utilities and services supplied to
the Premises, together with any taxes thereon. If any such services are not
separately metered or billed to Lessee, Lessee shall pay a reasonable
proportion, to be determined by Lessor, of all charges jointly metered or
billed. There shall be no abatement of rent and Lessor shall not be liable in
any respect whatsoever for the inadequacy, stoppage, interruption or
discontinuance of any utility or service due to riot, strike, labor dispute,
breakdown, accident, repair or other cause beyond Lessor's reasonable control or
in cooperation with governmental request or directions.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law
assign, transfer, mortgage or encumber (collectively, "ASSIGN OR ASSIGNMENT") or
sublet all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent, which may be given or withheld in
Lessor's reasonable discretion.
(b) Unless Lessee is a corporation and its stock is publicly
traded on a national stock exchange or the NASDAQ exchange, a change in the
control of Lessee shall constitute an assignment requiring consent. The
transfer, on a cumulative basis, of 25% or more of the voting control of Lessee
shall constitute a change in control for this purpose.
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(c) The involvement of Lessee or its assets in any
transaction, or series of transactions (by way of merger, sale, acquisition,
financing, transfer, leveraged buy-out or otherwise), whether or not a formal
assignment or hypothecation of this Lease or Lessee's assets occurs, which
results or will result in a reduction of the Net Worth of Lessee by an amount
greater than 25% of such Net Worth as it was represented at the time of the
execution of this Lease or at the time of the most recent assignment to which
Lessor has consented, or as it exists immediately prior to said transaction or
transactions constituting such reduction, whichever was or is greater, shall be
considered an assignment of this Lease to which Lessor may withhold its consent.
"NET WORTH OF LESSEE" shall mean the net worth of Lessee (excluding any
guarantors) established under generally accepted accounting principles.
(d) Notwithstanding anything to the contrary contained in this
Lease, Lessee shall have the right, without Lessor's consent, to assign this
Lease or sublease all or any portion of the Premises to (each a "Permitted
Transferee") (i) a corporation with which it may merge or consolidate, (ii) any
entity which controls, is controlled by, or is under common control with,
Lessee, (iii) a purchaser of all or substantially all of Lessee's assets;
provided that in the event of any such assignment, Lessee shall continue to
remain liable under this Lease. Lessee shall have the right to enter into
license agreements with its customers for temporary use of less than 4,000
square feet for each customer for storage of inventory. An assignment or
subletting without required consent shall, at Lessor's option, be a Default
curable after notice per Paragraph 13.1(c), or a noncurable Breach without the
necessity of any notice and grace period. If Lessor elects to treat such
unapproved assignment or subletting as a noncurable Breach, Lessor may either:
(i) terminate this Lease, or (ii) upon 30 days written notice, increase the
monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event
of such Breach and rental adjustment, (i) the purchase price of any option to
purchase the Premises held by Lessee shall be subject to similar adjustment to
110% of the price previously in effect, and (ii) all fixed and non-fixed rental
adjustments scheduled during the remainder of the Lease term shall be increased
to 110% of the scheduled adjusted rent.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Without limiting the foregoing, no assignment or
subletting shall: (i) be effective without the express written assumption by
such assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, or (iii) alter the primary
liability of Lessee for the payment of Rent or for the performance of any other
obligations to be performed by Lessee.
(b) Lessor may accept Rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of Rent or performance shall constitute a waiver or estoppel
of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting.
(d) In the event of any Default or Breach by Lessee, Lessor
may proceed directly against Lessee, any Guarantors or anyone else responsible
for the performance of Lessee's obligations under this Lease, including any
assignee or sublessee, without first exhausting Lessor's remedies against any
other person or entity responsible therefor to Lessor, or any security held by
Lessor.
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(e) Each request for consent to an assignment or subletting
shall be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not limited
to the intended use and/or required modification of the Premises, if any,
together with a fee of $500 as consideration for Lessor's considering and
processing said request. Lessee agrees to provide Lessor with such other or
additional information and/or documentation as may be reasonably requested. (See
also Paragraph 36)
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be deemed to
have assumed and agreed to conform and comply with each and every term,
covenant, condition and obligation herein to be observed or performed by Lessee
during the term of said assignment or sublease, other than such obligations as
are contrary to or inconsistent with provisions of an assignment or sublease to
which Lessor has specifically consented to in writing.
(g) Except for a Permitted Transferee, Lessor's consent to any
assignment or subletting, if any, shall not transfer to the assignee or
sublessee any Option or Right of First Refusal granted to the original Lessee by
this Lease unless such transfer is specifically consented to by Lessor in
writing. (See Paragraph 39.2)
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all Rent payable on any sublease, and Lessor may collect
such Rent and apply same toward Lessee's obligations under this Lease; provided,
however, that until a Breach shall occur in the performance of Lessee's
obligations, Lessee may collect said Rent. In the event that the amount
collected by Lessor exceeds Lessee's obligations any such excess shall be
refunded to Lessee. Lessor shall not, by reason of the foregoing or any
assignment of such sublease, nor by reason of the collection of Rent, be deemed
liable to the sublessee for any failure of Lessee to perform and comply with any
of Lessee's obligations to such sublessee. Lessee hereby irrevocably authorizes
and directs any such sublessee, upon receipt of a written notice from Lessor
stating that a Breach exists in the performance of Lessee's obligations under
this Lease, to pay to Lessor all Rent due and to become due under the sublease.
Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to
Lessor without any obligation or right to inquire as to whether such Breach
exists, notwithstanding any claim from Lessee to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its
option, require sublessee to attorn to Lessor, in which event Lessor shall
undertake the obligations of the sublessor under such sublease from the time of
the exercise of said option to the expiration of such sublease; provided,
however, Lessor shall not be liable for any prepaid rents or security deposit
paid by such sublessee to such sublessor or for any prior Defaults or Breaches
of such sublessor.
(c) Any matter requiring the consent of the sublessor under a
sublease shall also require the consent of Lessor.
(d) No sublessee shall further assign or sublet all or any
part of the Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the Default
of Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against Lessee
for any such Defaults cured by the sublessee.
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13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. A "DEFAULT" is defined as a failure by the Lessee
to comply with or perform any of the terms, covenants, conditions or Rules and
Regulations under this Lease. A "BREACH" is defined as the occurrence of one or
more of the following Defaults, and the failure of Lessee to cure such Default
within any applicable grace period:
(a) The abandonment of the Premises; or the vacating of the
Premises without providing a commercially reasonable level of security, or where
the coverage of the property insurance described in Paragraph 8.3 is jeopardized
as a result thereof, or without providing reasonable assurances to minimize
potential vandalism.
(b) The failure of Lessee to make any payment of Rent or any
Security Deposit required to be made by Lessee hereunder, whether to Lessor or
to a third party, when due, to provide reasonable evidence of insurance or
surety bond, or to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of 3
business days following written notice to Lessee.
(c) The failure by Lessee to provide (i) reasonable written
evidence of compliance with Applicable Requirements, (ii) the service contracts,
(iii) the rescission of an unauthorized assignment or subletting, (iv) an
Estoppel Certificate, (v) a requested subordination, (vi) evidence concerning
any guaranty and/or Guarantor, (vii) any document requested under ▇▇▇▇▇▇▇▇▇ ▇▇,
(▇▇▇▇) material safety data sheets (MSDS), or (ix) any other documentation or
information which Lessor may reasonably require of Lessee under the terms of
this Lease, where any such failure continues for a period of 10 days following
written notice to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions
or provisions of this Lease, or of the rules adopted under Paragraph 40 hereof,
other than those described in subparagraphs 13.1(a), (b) or (c), above, where
such Default continues for a period of 30 days after written notice; provided,
however, that if the nature of Lessee's Default is such that more than 30 days
are reasonably required for its cure, then it shall not be deemed to be a Breach
if Lessee commences such cure within said 30 day period and thereafter
diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the
making of any general arrangement or assignment for the benefit of creditors;
(ii) becoming a "DEBTOR" as defined in 11 U.S.C. ss.101 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, the same is
dismissed within 60 days); (iii) the appointment of a trustee or receiver to
take possession of substantially all of Lessee's assets located at the Premises
or of Lessee's interest in this Lease, where possession is not restored to
Lessee within 30 days; or (iv) the attachment, execution or other judicial
seizure of substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where such seizure is not discharged within 30
days; provided, however, in the event that any provision of this subparagraph
(e) is contrary to any applicable law, such provision shall be of no force or
effect, and not affect the validity of the remaining provisions.
(f) The discovery that any financial statement of Lessee or of
any Guarantor given to Lessor was materially false.
(g) If the performance of Lessee's obligations under this
Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination of a
Guarantor's liability with respect to this Lease other than in accordance with
the terms of such guaranty, (iii) a Guarantor's becoming insolvent or the
subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the
guaranty, or (v) a Guarantor's breach of its guaranty obligation on an
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anticipatory basis, and Lessee's failure, within 60 days following written
notice of any such event, to provide written alternative assurance or security,
which, when coupled with the then existing resources of Lessee, equals or
exceeds the combined financial resources of Lessee and the Guarantors that
existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee is in Breach of any of its affirmative duties
or obligations, within 10 days after written notice (or in case of an emergency,
without notice), Lessor may, at its option, perform such duty or obligation on
Lessee's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and
expenses incurred by Lessor in such performance upon receipt of an invoice
therefor. In the event of a Breach, Lessor may, with or without further notice
or demand, and without limiting Lessor in the exercise of any right or remedy
which Lessor may have by reason of such Breach:
(a) Terminate Lessee's right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession to Lessor. In such event Lessor shall be
entitled to recover from Lessee: (i) the unpaid Rent which had been earned at
the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that the Lessee proves
could have been reasonably avoided; (iii) the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee'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 the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of the District within which the Premises are located
at the time of award plus one percent. Efforts by Lessor to mitigate damages
caused by Lessee's Breach of this Lease shall not waive Lessor's right to
recover damages under Paragraph 12. If termination of this Lease is obtained
through the provisional remedy of unlawful detainer, Lessor shall have the right
to recover in such proceeding any unpaid Rent and damages as are recoverable
therein, or Lessor may reserve the right to recover all or any part thereof in a
separate suit. If a notice and grace period required under Paragraph 13.1 was
not previously given, a notice to pay rent or quit, or to perform or quit given
to Lessee under the unlawful detainer statute shall also constitute the notice
required by Paragraph 13.1. In such case, the applicable grace period required
by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and
the failure of Lessee to cure the Default within the greater of the two such
grace periods shall constitute both an unlawful detainer and a Breach of this
Lease entitling Lessor to the remedies provided for in this Lease and/or by said
statute.
(b) Continue the Lease and Lessee's right to possession and
recover the Rent as it becomes due, in which event Lessee may sublet or assign,
subject only to reasonable limitations. Acts of maintenance, efforts to relet,
and/or the appointment of a receiver to protect the Lessor's interests, shall
not constitute a termination of the Lessee's right to possession.
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(c) Pursue any other remedy now or hereafter available under
the laws or judicial decisions of the state wherein the Premises are located.
The expiration or termination of this Lease and/or the termination of Lessee's
right to possession shall not relieve Lessee from liability under any indemnity
provisions of this Lease as to matters occurring or accruing during the term
hereof or by reason of Lessee's occupancy of the Premises.
13.3 INDUCEMENT RECAPTURE.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease,
the exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent
shall not be received by Lessor within 5 days after such amount shall be due and
within another 5 days after written notice by Lessor (however, Lessor shall only
be required to provide a maximum of one written notice every two calendar years,
otherwise no written notice is required), then, without any additional
requirement for notice to Lessee, Lessee shall immediately pay to Lessor a
one-time late charge equal to 6% of each such overdue amount or $100, whichever
is greater. The Parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of such late
payment. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent the exercise of any of the other rights and remedies granted hereunder.
In the event that a late charge is payable hereunder, whether or not collected,
for 3 consecutive installments of Base Rent, then notwithstanding any provision
of this Lease to the contrary, Base Rent shall, at Lessor's option, become due
and payable quarterly in advance.
13.5 INTEREST. Any monetary payment due Lessor hereunder, other than
late charges, not received by Lessor, when due as to scheduled payments (such as
Base Rent) or within 30 days following the date on which it was due for
non-scheduled payment, shall bear interest from the date when due, as to
scheduled payments, or the 31st day after it was due as to non-scheduled
payments. The interest ("INTEREST") charged shall be computed at the rate of 10%
per annum but shall not exceed the maximum rate allowed by law. Interest is
payable in addition to the potential late charge provided for in Paragraph 13.4.
13.6 BREACH BY LESSOR.
(a) NOTICE OF BREACH. Lessor shall not be deemed in breach of
this Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph, a reasonable
time shall in no event be less than 30 days after receipt by Lessor, and any
Lender whose name and address shall have been furnished Lessee in writing for
such purpose, of written notice specifying wherein such obligation of Lessor has
not been performed; provided, however, that if the nature of Lessor's obligation
is such that more than 30 days are reasonably required for its performance, then
Lessor shall not be in breach if performance is commenced within such 30 day
period and thereafter diligently pursued to completion.
(b) PERFORMANCE BY LESSEE ON BEHALF OF LESSOR. In the event
that neither Lessor nor Lender cures said breach within 30 days after receipt of
said notice, or if having commenced said cure they do not diligently pursue it
to completion, then Lessee may elect to cure said breach at Lessee's expense and
offset from Rent the actual and reasonable cost to perform such cure, provided
however, that such offset shall not exceed an amount equal to the greater of one
month's Base Rent or the Security Deposit, reserving Lessee's right to seek
reimbursement from Lessor. Lessee shall document the cost of said cure and
supply said documentation to Lessor.
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14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(collectively "CONDEMNATION"), this Lease shall terminate as to the part taken
as of the date the condemning authority takes title or possession, whichever
first occurs. If more than 10% of the Building, or more than 25% of that portion
of the Premises not occupied by any building, is taken by Condemnation, Lessee
may, at Lessee's option, to be exercised in writing within 10 days after Lessor
shall have given Lessee written notice of such taking (or in the absence of such
notice, within 10 days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Base Rent shall be reduced in proportion
to the reduction in utility of the Premises caused by such Condemnation.
Condemnation awards and/or payments shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold, the value of the part taken, or for severance damages; provided,
however, that Lessee shall be entitled to any compensation for Lessee's
relocation expenses, loss of business goodwill and/or Trade Fixtures, without
regard to whether or not this Lease is terminated pursuant to the provisions of
this Paragraph. All Alterations and Utility Installations made to the Premises
by Lessee, for purposes of Condemnation only, shall be considered the property
of the Lessee and Lessee shall be entitled to any and all compensation which is
payable therefor. In the event that this Lease is not terminated by reason of
the Condemnation, Lessor shall repair any damage to the Premises caused by such
Condemnation.
15. BROKERAGE FEES
15.1 ADDITIONAL COMMISSION.
15.2 ASSUMPTION OF OBLIGATIONS.
15.3 REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS. Lessee
and Lessor each represent and warrant to the other that it has had no dealings
with any person, firm, broker or finder (other than the Brokers, if any) in
connection with this Lease, and that no one other than said named Brokers is
entitled to any commission or finder's fee in connection herewith. Lessee and
Lessor do each hereby agree to indemnify, protect, defend and hold the other
harmless from and against liability for compensation or charges which may be
claimed by any such unnamed broker, finder or other similar party by reason of
any dealings or actions of the indemnifying Party, including any costs,
expenses, attorneys' fees reasonably incurred with respect thereto.
16. ESTOPPEL CERTIFICATES.
(a) Each Party (as "RESPONDING PARTY") shall within 10 days
after written notice from the other Party (the "REQUESTING PARTY") execute,
acknowledge and deliver to the Requesting Party a statement in writing in form
similar to the then most current "ESTOPPEL CERTIFICATE" form published by the
AIR Commercial Real Estate Association, plus such additional information,
confirmation and/or statements as may be reasonably requested by the Requesting
Party.
(b) If the Responding Party shall fail to execute or deliver
the Estoppel Certificate within such 10 day period, the Requesting Party may
execute an Estoppel Certificate stating that: (i) the Lease is in full force and
effect without modification except as may be represented by the Requesting
Party, (ii) there are no uncured defaults in the Requesting Party's performance,
and (iii) if Lessor is the Requesting Party, not more than one month's rent has
been paid in advance. Prospective purchasers and encumbrancers may rely upon the
Requesting Party's Estoppel Certificate, and the Responding Party shall be
estopped from denying the truth of the facts contained in said Certificate.
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(c) If Lessor desires to finance, refinance, or sell the
Premises, or any part thereof, Lessee and all Guarantors shall deliver to any
potential lender or purchaser designated by Lessor such financial statements as
may be reasonably required by such lender or purchaser, including but not
limited to Lessee's financial statements for the past 3 years. All such
financial statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. DEFINITION OF LESSOR. The term "LESSOR" as used herein shall mean the owner
or owners at the time in question of the fee title to the Premises, or, if this
is a sublease, of the Lessee's interest in the prior lease. In the event of a
transfer of Lessor's title or interest in the Premises or this Lease, Lessor
shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor. Except as provided in Paragraph 15, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid, the
prior Lessor shall be relieved of all liability with respect to the obligations
and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing, the obligations and/or covenants in this Lease to be
performed by the Lessor shall be binding only upon the Lessor as hereinabove
defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. DAYS. Unless otherwise specifically indicated to the contrary, the word
"days" as used in this Lease shall mean and refer to calendar days.
20. LIMITATION ON LIABILITY. The obligations of Lessor under this Lease shall
not constitute personal obligations of Lessor or its partners, members,
directors, officers, agents, EMPLOYEES, or shareholders, and Lessee shall look
to the Premises, whether or NOT OWNED by Lessor, and to no other assets of
Lessor, for the satisfaction of any liability of Lessor with respect to this
Lease, and shall not seek recourse against Lessor's partners, members,
directors, officers or shareholders, or any of their personal assets for such
satisfaction.
21. TIME OF ESSENCE. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
22. NO PRIOR OR OTHER AGREEMENTS. This Lease contains all agreements between the
Parties with respect to any matter mentioned herein, and no other prior or
contemporaneous agreement or understanding shall be effective.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this
Lease or applicable law shall be in writing and may be delivered in person (by
hand or by courier) or may be sent by regular, certified or registered mail or
U.S. Postal Service Express Mail, with postage prepaid, or by facsimile
transmission, and shall be deemed sufficiently given if served in a manner
specified in this Paragraph 23. The addresses noted adjacent to a Party's
signature on this Lease shall be that Party's address for delivery or mailing of
notices. Either Party may by written notice to the other specify a different
address for notice, except that upon Lessee's taking possession of the Premises,
the Premises shall constitute Lessee's address for notice. A copy of all notices
to Lessor shall be concurrently transmitted to such party or parties at such
addresses as Lessor may from time to time hereafter designate in writing.
23.2 DATE OF NOTICE. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail the notice shall be deemed given 48 hours after the same is
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addressed as required herein and mailed with postage prepaid. Notices delivered
by United States Express Mail or overnight courier that guarantee next day
delivery shall be deemed given 24 hours after delivery of the same to the Postal
Service or courier. Notices transmitted by facsimile transmission or similar
means shall be deemed delivered upon telephone confirmation of receipt
(confirmation report from fax machine is sufficient), provided a copy is also
delivered via delivery or mail. If notice is received on a Saturday, Sunday or
legal holiday, it shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
of the same or of any other term, covenant or condition hereof. Lessor's consent
to, or approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by Lessee, or be construed as the basis of an estoppel to enforce the provision
or provisions of this Lease requiring such consent. The acceptance of Rent by
Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by
Lessee may be accepted by Lessor on account of moneys or damages due Lessor,
notwithstanding any qualifying statements or conditions made by Lessee in
connection therewith, which such statements and/or conditions shall be of no
force or effect whatsoever unless specifically agreed to in writing by Lessor at
or before the time of deposit of such payment.
25. DISCLOSURES REGARDING THE NATURE OF A REAL ESTATE AGENCY RELATIONSHIP
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or termination of this Lease.
In the event that Lessee holds over, then the Base Rent shall be increased to
125% of the Base Rent applicable immediately preceding the expiration or
termination. Nothing contained herein shall be construed as consent by Lessor to
any holding over by Lessee.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS; CONSTRUCTION OF AGREEMENT. All provisions of this
Lease to be observed or performed by Lessee are both covenants and conditions.
In construing this Lease, all headings and titles are for the convenience of the
Parties only and shall not be considered a part of this Lease. Whenever required
by the context, the singular shall include the plural and vice versa. This Lease
shall not be construed as if prepared by one of the Parties, but rather
according to its fair meaning as a whole, as if both Parties had prepared it.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the Parties,
their personal representatives, successors and assigns and be governed by the
laws of the State in which the Premises are located. Venue for any litigation
between the Parties hereto concerning this Lease shall only be proper in i) the
Superior Court of San Diego County, North County Branch, Vista, California,
Superior Court of California, Riverside County.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. Subject to the provisions of Paragraph 30.3 below,
this Lease and any Option granted hereby shall be subject and subordinate to any
ground lease, mortgage, deed of trust, or other hypothecation or security device
(collectively, "SECURITY DEVICE"), now or hereafter placed upon the Premises, to
any and all advances made on the security thereof, and to all renewals,
modifications, and extensions thereof. Lessee agrees that the holders of any
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such Security Devices (in this Lease together referred to as "LENDER") shall
have no liability or obligation to perform any of the obligations of Lessor
under this Lease. Any Lender may elect to have this Lease and/or any Option
granted hereby superior to the lien of its Security Device by giving written
notice thereof to Lessee, whereupon this Lease and such Options shall be deemed
prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 ATTORNMENT. In the event that Lessor transfers title to the
Premises, or the Premises are acquired by another upon the foreclosure or
termination of a Security Device to which this Lease is subordinated (i) Lessee
shall, subject to the non-disturbance provisions of Paragraph 30.3, attorn to
such new owner, and upon request, enter into a new lease, containing all of the
terms and provisions of this Lease, with such new owner for the remainder of the
term hereof, or, at the election of such new owner, this Lease shall
automatically become a new Lease between Lessee and such new owner, upon all of
the terms and conditions hereof, for the remainder of the term hereof, and (ii)
Lessor shall thereafter be relieved of any further obligations hereunder and
such new owner shall assume all of Lessor's obligations hereunder, except that
such new owner shall not: (a) be liable for any act or omission of any prior
lessor or with respect to events occurring prior to acquisition of ownership;
(b) be subject to any offsets or defenses which Lessee might have against any
prior lessor, (c) be bound by prepayment of more than one month's rent, or (d)
be liable for the return of any security deposit paid to any prior lessor.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor prior to or after the execution of this Lease, Lessee's subordination of
this Lease shall be subject to receiving a commercially reasonable
non-disturbance agreement (a "NON-DISTURBANCE AGREEMENT") from the Lender which
Non-Disturbance Agreement provides that Lessee's possession of the Premises, and
this Lease, including any options to extend the term hereof, will not be
disturbed so long as Lessee is not in Breach hereof and attorns to the record
owner of the Premises. Further, prior to the Commencement Date of this Lease,
Lessor shall obtain a Non-Disturbance Agreement from the holder of any
pre-existing Security Device which is secured by the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents; provided,
however, that, upon written request from Lessor or a Lender in connection with a
sale, financing or refinancing of the Premises, Lessee and Lessor shall execute
such further writings as may be reasonably required to separately document any
subordination, attornment and/or Non-Disturbance Agreement provided for herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or proceeding
involving the Premises whether founded in tort, contract or equity, or to
declare rights hereunder, the Prevailing Party (as hereafter defined) in any
such proceeding, action, or appeal thereon, shall be entitled to reasonable
attorneys' fees. Such fees may be awarded in the same suit or recovered in a
separate suit, whether or not such action or proceeding is pursued to decision
or judgment. The term, "PREVAILING PARTY" shall include, without limitation, a
Party or Broker who substantially obtains or defeats the relief sought, as the
case may be, whether by compromise, settlement, judgment, or the abandonment by
the other Party or Broker of its claim or defense. The attorneys' fees award
shall not be computed in accordance with any court fee schedule, but shall be
such as to fully reimburse all attorneys' fees reasonably incurred. In addition,
Lessor shall be entitled to attorneys' fees, costs and expenses incurred in the
preparation and service of notices of Default and consultations in connection
therewith, whether or not a legal action is subsequently commenced in connection
with such Default or resulting Breach ($200 is a reasonable minimum per
occurrence for such services and consultation).
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32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times after reasonable prior notice for the purpose
of showing the same to prospective purchasers, lenders, or tenants, and if
Lessee Breaches in its Absolute Net Lease obligations hereunder, making such
alterations, repairs, improvements or additions to the Premises as Lessor may
deem necessary or desirable and the erecting, using and maintaining of
utilities, services, pipes and conduits through the Premises and/or other
premises. All such activities shall be without abatement of rent or liability to
Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, any auction
upon the Premises without Lessor's prior written consent. Lessor shall not be
obligated to exercise any standard of reasonableness in determining whether to
permit an auction.
34. SIGNS. Lessor may place on the Premises ordinary "For Sale" signs at any
time and ordinary "For Lease" signs during the last 6 months of the term hereof.
Except for ordinary "for sublease" signs, Lessee shall not place any sign upon
the Premises without Lessor's prior written consent. All signs must comply with
all Applicable Requirements.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, that Lessor may elect to continue any one or all
existing subtenancies. Lessor's failure within 10 days following any such event
to elect to the contrary by written notice to the holder of any such lesser
interest, shall constitute Lessor's election to have such event constitute the
termination of such interest.
36. CONSENTS. Except as otherwise provided herein, wherever in this Lease the
consent of a Party is required to an act by or for the other Party, such consent
shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs
and expenses (including but not limited to architects', attorneys', engineers'
and other consultants' fees) incurred in the consideration of, or response to, a
request by Lessee for any Lessor consent, including but not limited to consents
to an assignment, a subletting or the presence or use of a Hazardous Substance,
shall be paid by Lessee upon receipt of an invoice and supporting documentation
therefor. Lessor's consent to any act, assignment or subletting shall not
constitute an acknowledgment that no Default or Breach by Lessee of this Lease
exists, nor shall such consent be deemed a waiver of any then existing Default
or Breach, except as may be otherwise specifically stated in writing by Lessor
at the time of such consent. The failure to specify herein any particular
condition to Lessor's consent shall not preclude the imposition by Lessor at the
time of consent of such further or other conditions as are then reasonable with
reference to the particular matter for which consent is being given. In the
event that either Party disagrees with any determination made by the other
hereunder and reasonably requests the reasons for such determination, the
determining party shall furnish its reasons in writing and in reasonable detail
within 10 business days following such request.
37. GUARANTOR.
37.1 EXECUTION. The Guarantors, if any, shall each execute a guaranty
in the form most recently published by the AIR Commercial Real Estate
Association, and each such Guarantor shall have the same obligations as Lessee
under this Lease.
B-26
37.2 DEFAULT. It shall constitute a Default of the Lessee if any
Guarantor fails or refuses, upon request to provide: (a) evidence of the
execution of the guaranty, including the authority of the party signing on
Guarantor's behalf to obligate Guarantor, and in the case of a corporate
Guarantor, a certified copy of a resolution of its board of directors
authorizing the making of such guaranty, (b) current financial statements, (c)
an Estoppel Certificate, or (d) written confirmation that the guaranty is still
in effect.
38. QUIET POSSESSION. Subject to payment by Lessee of the Rent and performance
of all of the covenants, conditions and provisions on Lessee's part to be
observed and performed under this Lease, Lessee shall have quiet possession and
quiet enjoyment of the Premises during the term ▇▇▇▇▇.
▇▇. OPTIONS.
40. MULTIPLE BUILDINGS. If the Premises are a part of a group of buildings
controlled by Lessor, Lessee agrees that it will abide by and conform to all
reasonable rules and regulations which Lessor may make from time to time for the
management, safety, and care of said properties, including the care and
cleanliness of the grounds and including the parking, loading and unloading of
vehicles, and to cause its employees, suppliers, shippers, customers,
contractors and invitees to so abide and conform. Lessee also agrees to pay its
fair share of common expenses incurred in connection with such rules and
regulations.
41. SECURITY MEASURES. Lessee hereby acknowledges that the Rent payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. RESERVATIONS. Lessor reserves to itself the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights and
dedications that Lessor deems necessary, and to cause the recordation of parcel
maps and restrictions, so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that there was no legal obligation on the part of said Party to pay such sum or
any part thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay.
44. AUTHORITY; MULTIPLE PARTIES; EXECUTION.
(a) If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual executing
this Lease on behalf of such entity represents and warrants that he or she is
duly authorized to execute and deliver this Lease on its behalf. Each party
shall, within 30 days after request, deliver to the other party satisfactory
evidence of such authority.
B-27
(b) If this Lease is executed by more than one person or
entity as "Lessee", each such person or entity shall be jointly and severally
liable hereunder. It is agreed that any one of the named Lessees shall be
empowered to execute any amendment to this Lease, or other document ancillary
thereto and bind all of the named Lessees, and Lessor may rely on the same as if
all of the named Lessees had executed such document.
(c) This Lease may be executed by the Parties in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
typewritten or handwritten provisions shall be controlled by the typewritten or
handwritten provisions.
46. OFFER. Preparation of this Lease by either Party or their agent and
submission of same to the other Party shall not be deemed an offer to lease to
the other Party. This Lease is not intended to be binding until executed and
delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by a Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
48. WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT
OF THIS LEASE. LESSEE'S INITIALS: _______ LESSOR'S INITIALS:________
49. MEDIATION AND ARBITRATION OF DISPUTES. An Addendum requiring the Mediation
and/or the Arbitration of all disputes between the Parties and/or Brokers
arising out of this Lease [ ] IS [X] IS NOT attached to this Lease.
50. AMERICANS WITH DISABILITIES ACT. Since compliance with the Americans with
Disabilities Act (ADA) is dependent upon Lessee's specific use of the Premises,
Lessor makes no warranty or representation as to whether or not the Premises
comply with ADA or any similar legislation. In the event that Lessee's use of
the Premises requires modifications or additions to the Premises in order to be
in ADA compliance, Lessee agrees to make any such necessary modifications and/or
additions at Lessee's expense.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at:________________________________________________ Executed at:__________________________________________________
On:_________________________________________________________ On:___________________________________________________________
By LESSOR: By LESSEE:
PG Acquisitions, LLC (or Assignee) Amistar Corporation, a California Corporation
---------------------------------- ---------------------------------------------
B-28
By: By:
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Name Printed: ▇▇▇▇ ▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇▇ ▇▇▇▇▇
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Ttile: Managing Member Title: President
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By: By:
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Name Printed: Name Printed:
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Title: Title:
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Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Address: 237 Via ▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Telephone:(▇▇▇) ▇▇▇-▇▇▇▇ Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇ Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
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Federal ID No. ▇▇-▇▇▇▇▇▇▇ Federal ID No.
BROKER: BROKER:
________________________________________________ ________________________________________________
________________________________________________ ________________________________________________
Attn:___________________________________________ Attn:___________________________________________
Title:__________________________________________ Title:__________________________________________
Address:________________________________________ Address:________________________________________
Telephone:( )_______________________________ Telephone:( )_______________________________
Facsimile:( )_______________________________ Facsimile:( )_______________________________
Federal ID No.__________________________________ Federal ID No.__________________________________
ADDENDUM TO THE STANDARD INDUSTRIAL/COMMERCIAL SINGLE-LESSEE LEASE NET DATED
SEPTEMBER 15, 2004, FOR THE PROPERTY LOCATED AT 237 VIA ▇▇▇▇ ▇▇▇▇, SAN MARCOS,
CALIFORNIA BY AND BETWEEN PG ACQUISITIONS, LLC, AS "LESSOR" AND AMISTAR
CORPORATION, A CALIFORNIA CORPORATION, AS "LESSEE"
51. MONTHLY BASE RENT & ANNUAL ADJUSTMENTS:
---------------------------------------
The monthly installments of Base Rent, as set forth in Paragraph 1.5 of
the Basic Provisions, shall be adjusted upward on the commencement of
each annual anniversary of the Commencement Date of the Lease Term
(said date(s) of rental adjustment hereinafter called the "Adjustment
Date"), as follows:
B-29
The base for computing the adjustment is the Consumer Price Index for
All Urban Consumers, San Diego, as published monthly by the United
States Department of Labor, Bureau of Labor Statistics ("Index"), which
is published for the third month prior to the date on which the Term of
this Lease commences ("Beginning Index"). If the Index published for
the third month prior to each Adjustment Date ("Comparison Index") has
increased over the Beginning Index, the new amount for the monthly
installments of Base Rent shall be set by multiplying the monthly Base
Rent, as set forth in Paragraph 1.5 of the Basic Provisions, by a
fraction, the numerator of which is the Comparison Index and the
denominator of which is the Beginning Index. In no case shall the
monthly installments of Base Rent ever be less than the installment of
Base Rent for the month immediately preceding each Adjustment Date.
Following any adjustment of the monthly Base Rent as provided herein,
Lessor shall give Lessee written notice of the new monthly base rental.
Notwithstanding anything contained herein to the contrary, each annual
increase shall be at least 2% and no more than 5% over the Base Rent
for the prior year.
If the Index is changed so that the base is changed, the Index shall be
converted in accordance with the conversion factor published by the
United States Department of Labor, Bureau of Labor Statistics. If the
Index is discontinued or revised during the primary term, or any
extension thereof, such other governmental index or computation with
which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the Index had not been discontinued
or revised. If there is no such replacement, then Lessor shall select
the Price Index which is most comparable to the Index. Lessee shall
have the right to consent to the replacement Price Index, which consent
shall not be unreasonably withheld or delayed.
52. SECURITY DEPOSIT:
-----------------
The Security Deposit due upon execution of this Lease shall be
$417,336. Up to $260,835.00 of the Security Deposit may be returned to
Lessee if Lessee is not in Breach of the Lease and upon Lessee
attaining certain financial performance goals, as follows:
1. Upon Lessee achieving two consecutive quarters of
profitability with a cumulative total profit for both quarters
of at least $313,000.00, a portion of the Security Deposit in
the amount of $104,334.00 shall be returned to Lessee from
Lessor.
2. Upon Lessee achieving i) annual profitability of at least
$625,000.00, and ii) profitability in at least three of the
four consecutive quarters, a portion of the Security Deposit
in the amount of $156,501.00 shall be returned to Lessee from
Lessor.
3. Notwithstanding anything herein to the contrary, in no event
will the Security Deposit held be Lessor be less than an
amount equal to $156,501.00.
4. Subject to the approval of Lessor's lender, Lessor will hold
up to $260,835.00 of the non-refunded Security Deposit in a
separate interest bearing account at Lessor's choice of
banking institution. Interest on the account, less banking
fees associated with the account, will accrue to Lessee and
will be paid to Lessee annually. In the event that Lessor's
lender does not approve holding the security deposit in an
account controlled by Lessor then Lessee shall not be entitled
to any interest on any portion of the Security Deposit.
B-30
5. Lessee's profitability shall be determined based on financial
statements prepared in accordance with Generally Accepted
Accounting Principles (GAAP) and certified to be accurate by
an independent Certified Public Accountant reasonably approved
by Lessor.
53. RENTAL PAYMENTS:
----------------
Rental payments are due the first business day of the month, subject to
Paragraph 1.5, and payable to:
PG Acquisitions, LLC (or other entity constituting Lessor)
c/o The ▇▇▇▇▇▇▇ Group, LLC
ATTN: Income Properties Division
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
54. LESSEE IMPROVEMENTS:
--------------------
Lessor shall not provide Lessee with a Lessee Improvement Allowance,
Premises are being leased in "as is" condition.
55. SIGNAGE:
--------
Lessee shall be granted standard sign rights for the subject Premises.
All costs associated with the design, installation, permitting and
removal of said signage shall be paid by Lessee. Said signage shall be
mutually agreed upon between Lessee and Lessor and in accordance with
the standard sign criteria, codes and regulations of the project and
the City of San Marcos. Upon lease expiration, Lessee shall be
responsible for removing all signage on the Premises and repairing any
damage to the building. Notwithstanding the foregoing, Lessor hereby
approves Lessee's existing signage at the Premises.
56. REPRESENTATION OF COUNSEL / CONSTRUCTION OF AGREEMENT:
------------------------------------------------------
The parties acknowledge that they have been represented, or have had
the opportunity to be represented, by the counsel of their own choice.
Neither party is relying upon any legal advice from the other party's
counsel regarding the subject matter thereof. Both parties acknowledge
that they understand the terms and conditions hereof and the terms and
conditions of all other documents and agreements executed in connection
herewith and that they sign the same freely. The Lease and this
Addendum and any ambiguities or uncertainties contained herein shall be
equally and fairly interpreted for the benefit of and against all
parties to this Agreement and shall further be construed and
interpreted without reference to the identity of the party or parties
preparing this document, it being expressly understood and agreed that
the parties hereto participated equally in the negotiation and
preparation of this Agreement or have had equal opportunity to do so.
Accordingly, the parties hereby waive the legal effect of California
Civil Code Section 1654 or any successor and/or amended statute which
in part states that in cases of uncertainty, the language of the
contract should be interpreted most strongly against the party who
caused the uncertainty to exist.
B-31
57. WAIVER OF DUTY TO KEEP PREMISES LESSEEABLE:
-------------------------------------------
Lessee hereby expressly waives the provisions of Civil Code Sections
1941 and 1942 and any other statute or law (1) requiring Lessor to put
or maintain the leased premises in a condition fit for human occupancy
and to repair all subsequent dilapidations of the premises that render
them unLesseeable and (2) granting Lessee the right to offset against
the rent due under this lease expenditures by Lessee for repairs.
58. LESSOR'S LIEN:
--------------
Lessor hereby waives any Lessor lien it might hold, statutory,
constitutional, contractual or otherwise to any inventory, fixtures,
equipment or other personal property owned or leased by Lessee which
property belonging to Lessee is now or hereafter located at the
Premises. Lessor agrees to execute any instrument, releases or other
documents that may be necessary to evident the waiver and release of
any such liens.
59. MEMORANDUM OF LEASE:
--------------------
Concurrently with the execution of this Lease, Lessor and Lessee shall
enter into the Memorandum of Lease attached hereto as Exhibit C, which
Memorandum of Lease shall be recorded in the Official Records of San
Diego County, California no later than the Commencement Date.
CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by ▇▇▇▇▇ & ▇▇▇▇▇|BRE
Commercial as to the sufficiency or tax consequences of this document or the
transaction to which it relates. These are questions for your attorney. 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.
AGREED AND ACCEPTED:
LESSEE LESSOR
Amistar Corporation, PG Acquisitions, LLC
a California Corporation
By:___________________ By:_____________________
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title:__________________ Title:____________________
President Managing Member
Date: Date:
----------------------------------------------------------------------
By: By:
----------------------------------------------------------------------
Title: Title:
----------------------------------------------------------------------
Date: Date:
B-32
EXHIBIT "C"
RIGHT OF FIRST REFUSAL ADDENDUM
This RIGHT OF FIRST REFUSAL ADDENDUM (this "Addendum") is incorporated into and
subject to all of the terms and conditions of that certain lease (the "Lease")
dated _November 8, 2004 to which this Addendum is attached by and between
Amistar Corporation, a California corporation as "Lessee" and PG Acquisitions,
LLC, a California limited liability company as "Lessor". Lessor and Lessee are
parties to that certain Purchase and Sale Agreement and Joint Escrow
Instructions dated on or about November 8, 2004 (the "Purchase Agreement")
wherein Lessor purchased the Property (described therein and which is the
subject of the Lease) from Lessee. In connection with the negotiation of the
Purchase Agreement, Lessor agreed that as a part of the Lease, Lessor would
grant Lessee a right of first refusal (the "ROFR") to repurchase the Property on
terms and conditions set forth in this Addendum. All capitalized terms in this
Addendum shall have the same meaning as set forth in the Purchase Agreement and
Lease except as expressly stated to the contrary.
WHEREFORE, for good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. GRANT OF RIGHT OF FIRST REFUSAL. Except as otherwise provided
herein, Lessee shall have an on-going right of first refusal with respect to any
proposed sale, conveyance or other transfer, whether direct or indirect of all
or any portion of the Property. If Lessor proposes to sell, convey or otherwise
transfer, whether directly or indirectly, all or any portion of the Property,
Lessor shall first deliver to Lessee a bona fide and comprehensive letter of
intent, memorandum or other like instrument, signed by both Lessor and the
proposed transferee, setting forth all the material terms and conditions of the
proposed transaction, including, without limitation, price, payment terms,
closing date, feasibility period, any option, lease or other rights, all
contingencies, representations and warranties, releases and other material
covenants with reasonably specificity (the "ROFR Notice"). Lessor represents and
warrants that the terms and conditions specified in the ROFR Notice shall have
been arrived at through arms-length negotiations with a bona fide, willing and
able transferee. Within five (5) business days after Lessee's receipt of the
ROFR Notice, Lessee shall have the right to give written notice to Lessor notice
(the "ROFR Acceptance Notice") of its election to purchase the Property at the
same price and on the same terms and conditions set forth in the ROFR Notice.
Any provision herein to the contrary notwithstanding, the ROFR Notice shall be
transmitted by Lessor to Lessee by means of all of the following (i) certified
mail with return receipt requested; (ii) facsimile transmission; and, (iii)
email to ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇. The address or facsimile number for any such
transmission shall be the same as set forth for notices in the Purchase
Agreement and can be changed in the same manner set forth in the Purchase
Agreement. Lessee's email address for purposes of receiving the ROFR Notice can
be changed in the same manner as changes of address can be effected as set forth
C-1
in the Purchase Agreement. Any provision herein to the contrary notwithstanding,
Lessee shall only have the right to exercise the ROFR if (i) the proposed sale
by Lessor is to a person or entity that is not affiliated with Lessor, but shall
apply to any subsequent transfers, sales or conveyances of the Property by such
affiliated person or entity and shall be deemed to include any transfer of
ownership interests in such affiliated entity; (ii) Lessee or any permitted
transferee is then in occupancy of the Property pursuant to the terms and
conditions of the Lease; and (iii) Lessee is not in Breach under the Lease. As
used herein the term "affiliated" refers to a limited liability company,
corporation, partnership, trust, foundation or other entity in which Lessor or
any member, manager or owner thereof holds no less than 50% of the economic
interest. Any provision herein to the contrary notwithstanding, if Lessee
validly exercises the ROFR, the escrow pertaining to the ensuing repurchase
transaction shall close on the terms and conditions contained in the ROFR
Notice, except that (i) the closing date shall be sixty (60) days following the
delivery by Lessor to Lessee of the ROFR Notice. To exercise the ROFR, Lessee
must deliver the ROFR Acceptance Notice within said 5 business days it being
understood that time is expressly of the essence with regard to the exercise, if
at all, by Lessee of the ROFR. If Lessee does validly exercise its ROFR, the
parties shall within ten (10) business days thereof draft, execute and deliver
to First American Title Insurance Company, a Purchase and Sale Agreement
conforming with to the terms and conditions contained in ROFR Notice and this
Addendum. Lessor shall deliver to Lessee a draft of such Purchase and Sale
Agreement no later than five (5) business days after the date Lessee validly
exercises the ROFR. If Lessee does not elect to purchase the Property on terms
and conditions set forth in the ROFR Notice, then Lessor may transfer the
Property to the proposed transferee on the terms and conditions set forth in the
ROFR Notice. If the proposed transfer does not close within ninety (90) days
after the closing date specified in the ROFR Notice or in the event of any
changes to the terms and conditions set forth in the ROFR Notice, Lessor shall
again comply with the terms of the right of first refusal set forth in this
Paragraph 1. The term of the ROFR as described herein shall commence upon the
Close of Escrow (as defined in the Purchase Agreement) and shall continue until
the elapsing of the original term of the Lease. The ROFR shall be of no force or
effect during any extensions of the term of the Lease, if any.
LESSOR
PG Acquisitions, LLC,
a California limited liability company
By: \S\ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Managing Member
LESSEE
Amistar Corporation,
a California corporation
By: \S\ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
--------------------------------------
Its: PRESIDENT
-------------------------------------
C-2
EXHIBIT "D"
FORM OF GRANT DEED
RECORDING REQUESTED BY: )
AND WHEN RECORDED MAIL TO )
AND MAIL TAX STATEMENTS TO: )
)
)
-------------------------------------)------------------------------------------
(Above Space for Recorder's Use Only)
GRANT DEED
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant to Section 11932 of the Revenue
and Taxation Code, as amended.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
___________________________________, hereby Grants to
_________________________________, that certain real property in the City of
San Marcos, County of San Diego, State of California, which is more
particularly described on Exhibit "A" (the "Property") which is attached
hereto, subject to all matters of record or any matters that would be
disclosed by an accurate survey.
IN WITNESS WHEREOF, the Grantor has caused this Deed to be executed as of
the ___day of _______________, 2004.
(Seller)
STATE OF CALIFORNIA )
)
COUNTY OF RIVERSIDE )
------------------------)
On ___________________ before me, _____________, a Notary Public in and for
said state, personally appeared ______________________, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the persons
whose names are subscribed to the within instrument and acknowledged to me
that they executed the same in their authorized capacity, and that by their
signatures on the instrument, the person, or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(Attach ▇▇▇▇▇▇▇ "▇")
▇-▇