Georgia-Suwanee-2935 Shawnee Industrial Way Lease - AMB Property LP and Intelligent Systems for Retail Inc.
AMB PROPERTY, L.P.
INDUSTRIAL SINGLE TENANT LEASE
DATED
MARCH 4, 1999
BETWEEN
AMB PROPERTY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
AND
INTELLIGENT SYSTEMS FOR RETAIL, INC.
A CALIFORNIA CORPORATION
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TABLE OF CONTENTS
Page No.
--------
1. Basic Provisions............................................................................1
1.1 Parties............................................................................1
1.2 Premises...........................................................................1
1.3 Term...............................................................................1
1.4 Base Rent..........................................................................1
1.5 Tenant's Share of Operating Expenses...............................................1
1.6 Tenant's Estimated Monthly Rent Payment............................................1
1.7 Security Deposit...................................................................1
1.8 Permitted Use......................................................................1
1.9 Guarantor..........................................................................1
1.10 Addenda and Exhibits...............................................................1
1.11 Address for Rent Payments..........................................................1
2. Premises....................................................................................2
2.1 Letting............................................................................2
2.2 CC&R's.............................................................................2
2.3 Construction of Tenant Improvements................................................2
2.4 Landlord Warranty..................................................................2
3. Term........................................................................................2
3.1 Term...............................................................................2
3.2 Commencement Date Certificate......................................................2
4. Rent........................................................................................3
4.1 Base Rent..........................................................................3
4.2 Operating Expenses.................................................................3
5. Security Deposit............................................................................3
6. Use.........................................................................................3
6.1 Permitted Use......................................................................3
6.2 Hazardous Substances...............................................................4
(a) Definition; Reportable Uses Require Consent...............................4
(b) Duty to Inform Landlord...................................................4
(c) Tenant Indemnification....................................................4
(d) Landlord Indemnity........................................................4
6.3 Tenant's Compliance with Requirements..............................................5
6.4 Inspection; Compliance with Law....................................................5
7. Maintenance, Repairs, Trade Fixtures and Alterations........................................5
7.1 Tenant's Obligations...............................................................5
7.2 Landlord's Obligations.............................................................6
7.3 Alterations........................................................................6
7.4 Surrender/Restoration..............................................................6
8. Insurance; Indemnity........................................................................7
8.1 Payment of Premiums................................................................7
8.2 Tenant's Insurance.................................................................7
8.3 Landlord's Insurance...............................................................7
8.4 Waiver of Subrogation..............................................................8
8.5 Indemnity..........................................................................8
8.6 Exemption of Landlord from Liability...............................................8
9. Damage or Destruction.......................................................................9
9.1 Termination Right..................................................................9
9.2 Damage Caused by Tenant...........................................................9
10. Real Property Taxes.........................................................................9
10.1 Payment of Real Property Taxes.....................................................9
10.2 Real Property Tax Definition.......................................................9
10.3 Additional Improvements............................................................9
10.4 Joint Assessment...................................................................9
10.5 Tenant's Property Taxes............................................................9
11. Utilities...................................................................................9
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12. Assignment and Subletting...................................................................9
12.1 Landlord's Consent Required........................................................9
12.2 Rent Sharing.......................................................................10
13. Default; Remedies...........................................................................10
13.1 Default of Tenant..................................................................10
13.2 Remedies of Landlord...............................................................10
13.3 Late Charges.......................................................................10
14. Condemnation................................................................................11
15. Estoppel Certificate and Financial Statements...............................................11
15.1 Estoppel Certificate...............................................................11
15.2 Financial Statement................................................................11
16. Additional Covenants and Provisions.........................................................11
16.1 Severability.......................................................................11
16.2 Interest on Past-Due Obligations...................................................11
16.3 Time of Essence....................................................................11
16.4 Landlord Liability.................................................................11
16.5 No Prior or Other Agreements.......................................................11
16.6 Notice Requirements................................................................11
16.7 Date of Notice.....................................................................12
16.8 Waivers............................................................................12
16.9 Holdover...........................................................................12
16.10 Cumulative Remedies................................................................12
16.11 Binding Effect; Choice of Law......................................................12
16.12 Landlord...........................................................................12
16.13 Attorneys' Fees and Other Costs....................................................12
16.14 Landlord's Access; Showing Premises; Repairs.......................................12
16.15 Signs..............................................................................12
16.16 Termination: Merger................................................................13
16.17 Quiet Possession...................................................................13
16.18 Subordination; Attornment; Non-Disturbance.........................................13
16.19 Rules and Regulations..............................................................13
16.20 Security Measures..................................................................13
16.21 Intentionally Deleted..............................................................13
16.22 Conflict...........................................................................14
16.23 Offer..............................................................................14
16.24 Amendments.........................................................................14
16.25 Multiple Parties...................................................................14
16.26 Authority..........................................................................14
16.27 Counterparts.......................................................................14
16.28 Memorandum of Lease................................................................14
3
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GLOSSARY
The following terms in the Lease are defined in the paragraphs opposite
the terms.
TERM DEFINED IN PARAGRAPH
---- --------------------
Additional Rent 4.1
Applicable Requirements 6.3
Assign 12.1
Base Rent 1.4
Basic Provisions 1.1
Building 1.2
Building Operating Expenses 4.2(b)
Building Systems 7.1
CC&Rs 2.1
Code 12.1(a)
Commencement Date 1.3
Condemnation 14
Confirmation Certificate 3.3
Default 13.1
Expiration Date 1.3
Equipment 7.2
Hazardous Substances 6.2(a)
Indemnity 8.5
Industrial Center 1.2
Industrial Park Operating Expenses 4.2(c)
Landlord 1.1
Landlord Entities 6.2(c)
Landlord Responsible Parties 6.2(d)
Lease 1.1
Lenders 6.4
Mortgage 16.18
Operating Expenses 4.2
Party/Parties 1.1
Permitted Use 1.8
Premises 1.2
Premises Operating Expenses 4.2(b)
Prevailing Party 16.13
Real Property Taxes 10.2
Rent 4.1
Rent Commencement Date 4.1
Reportable Use 6.2(a)
Requesting Party 15.1
Responding Party 15.1
Rules and Regulations 16.19
Security Deposit 1.7, 5
Taxes 10.2
4
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Tenant 1.1
Tenant Acts 9.2
Tenant Entities 6.2(d)
Tenant Improvements 2.2
Tenant Responsible Parties 6.2(c)
Tenant's Share 1.5
Term 1.3
5
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AMB PROPERTY, L.P.
INDUSTRIAL SINGLE TENANT LEASE
1. BASIC PROVISIONS ("Basic Provisions").
1.1 Parties: This Lease ("Lease") dated as of March 4, 1999, is made by and
between AMB Property, L.P., a Delaware limited partnership, ("Landlord") and
Intelligent Systems for Retail, Inc., a California corporation ("Tenant")
(collectively, the "Parties," or individually a "Party").
1.2 Premises: The Premises are the real property described on Exhibit A
attached hereto together with a building ("Building") containing approximately
350,000 square feet. The Premises are located at 2935 Shawnee Industrial Way in
Gwinnett County, State of Georgia. The Premises are located in the industrial
center commonly known as Shawnee Ridge (the "Industrial Center"). Tenant shall
have exclusive rights to the Premises.
1.3 Term: This Lease is for a term ("Term") commencing on the day following
the date Landlord acquires title to the Premises ("Commencement Date") and
ending ("Expiration Date") ten years and three months after the last day of the
month in which the Landlord acquired title to the Premises. Tenant shall have
two options to extend the Term pursuant to the Option Addendum attached hereto.
1.4 Base Rent: Base Rent shall be $111,635.17 per month.
1.5 Tenant's Share of Operating Expenses ("Tenant's Share"):
(a) Industrial Park Operating Expenses 5.85%
(b) Premises Operating Expenses 100%
1.6 Tenant's Estimated Monthly Rent Payment: Following is the estimated
monthly Rent payment to Landlord pursuant to the provisions of this Lease. This
estimate is made at the inception of the Lease and is subject to adjustment
pursuant to the provisions of this Lease:
--------------------------------------------------------------------------
(a) Base Rent (Paragraph 4.1) $ 111,635.17
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(b) Industrial Park Operating 945.17
Expenses (Paragraph 4.2(c))
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(c) Landlord's Environmental
Monitoring and Insurance
Program Fee $ -0-
--------------------------------------------------------------------------
(d) Landlord Insurance (Paragraph 8.3) $ 1,167.00
--------------------------------------------------------------------------
(e) Real Property Taxes (Paragraph 10) $ 10,208.00
--------------------------------------------------------------------------
(f) Property Management Reimbursement $ 893.00
--------------------------------------------------------------------------
Estimated Monthly Payment $ 124,848.34
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1.7 Security Deposit: $84,335 ("Security Deposit").
1.8 Permitted Use ("Permitted Use"): The Premises may be used for offices,
central commissary (food preparation/processing center, including but not
limited to kitchen facilities, baking, cooking, meat and seafood cutting and
product preparation); general warehousing, both ambient and cold storage, and
sale and distribution of any and all consumer goods and products, including
prepackaged beer, wine and alcohol for off-premises consumption only; and all
other legal uses.
1.9 Guarantor: Not Applicable
1.10 Addenda and Exhibits: Attached hereto are the following Addenda and
Exhibits, all of which constitute a part of this Lease and which are
incorporated herein by this reference, including:
(a) Addenda: Remedies Addendum
Option Addendum
(b) Exhibits: Exhibit A: Diagram of Premises
Exhibit B: Commencement Date Certificate
Exhibit C-1 and C-2: Agreement of General
Contractor/Subcontractor
Exhibit D: Consent to Installation and Removal of
Personal Property
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Exhibit E: Subordination, Nondisturbance and
Attornment Agreement
Exhibit F: Estoppel Certificate
Exhibit G: Short Form Memorandum of Lease
1.11 Address for Rent Payments: All amounts payable by Tenant to Landlord
shall until further notice from Landlord be paid to AMB Property, L.P. at the
following address:
c/o IDI Services Group, Inc.
3424 Peachtree Road, N.E., Suite 1500
Atlanta, Georgia 30326
2. PREMISES.
2.1 Letting. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises upon all of the terms, covenants and conditions set forth
in this Lease. Any statement of square footage set forth in this Lease or that
may have been used in calculating Base Rent and/or Operating Expenses is an
approximation which Landlord and Tenant agree is reasonable and the Base Rent
and Tenant's Share based thereon is not subject to revision whether or not the
actual square footage is more or less.
2.2 CC&R's. The Premises are subject to the terms and conditions of a
"Declaration of Easements and Covenants for Shawnee Ridge" (CC&Rs"). Tenant
shall abide by the CC&R's as amended from time to time. Without the consent of
Tenant, Landlord shall not consent to any amendment to the CC&R's that
materially affects the use of the Premises or Tenant's business operations.
2.3 Construction of Tenant Improvements. Following the Commencement Date,
Tenant at its cost may install such improvements ("Tenant Improvements") as may
be required by Tenant for the conduct of its business. On the Rent Commencement
Date, Landlord shall pay $2,000,000 to Tenant as partial reimbursement for the
Tenant Improvements. Landlord shall have no further obligations to pay for or
reimburse Tenant for the cost of the Tenant Improvements. Prior to commencing
construction of the Tenant Improvements, Tenant shall (i) prepare and furnish to
Landlord copies of the plans and specifications for the Tenant Improvements and
(ii) deliver to Landlord agreements, substantially in the forms attached hereto
as Exhibits C-1 and C-2, executed by each general contractor and each general
contractor's principal subcontractors and suppliers. Landlord shall have the
right to approve, which approval will not be unreasonably withheld, (1) any
improvement which impairs the structural integrity of the Building and (2) the
configuration and location of offices. With respect to the offices, Landlord
will not be considered unreasonable in withholding its consent if the location
and configuration of the offices and the utilities serving those offices would
not, without substantial modifications, be suitable for another tenant. The
Tenant Improvements shall be constructed in a good and workmanlike manner, pest,
vermin and rodent free, in accordance with the standards of the construction
industry in which the Premises are located for first class industrial warehouse
space and in accordance with the CC&Rs and all applicable laws, ordinances,
statutes, codes, regulations, rules or orders of any federal, state or local
governmental or quasi-governmental agency, authority, instrumentality or
regulatory body having jurisdiction over all or any portion of the Premises
including, without limitation, the Americans With Disabilities Act, as amended
("ADA") and all Applicable Requirements. Tenant shall be responsible for
supervision of the work and materials provided and its subcontractors,
materialmen, laborers and employees and shall indemnify, defend, protect, and
save Landlord harmless from any liens or other claims relating to costs of
construction, or any claims for personal injury or property damage arising from
construction of the Tenant Improvements. For purposes of financing the Tenant
Improvements, upon the request of Tenant, Landlord shall execute a "Consent to
Installation and Removal of Personal Property" substantially in the form
attached hereto as Exhibit D.
2.4 Landlord Warranty. Landlord warrants that as of the date of this Lease,
the Building was constructed in accordance with the Gwinnett County Building
Codes The Premises are zoned M-1. Landlord shall pay the cost of any structural
modification to the Building which is required by any law or ordinance unless
the requirement for the structural modification is required as a result of (i)
the Tenant Improvements, (ii) any alterations to the Building or Premises or
(iii) Tenant's unique use of the Premises as opposed to uses of Property in
general. Landlord shall assign to Tenant all Building and equipment warranties
assigned to Landlord upon Landlord's acquisition of the Premises.
3. TERM.
3.1 Term. The Commencement Date, Expiration Date and Term of this Lease are
as specified in Paragraph 1.3. If Landlord is unable to acquire title to the
Premises by close of business on March 31, 1999, either party may terminate this
Lease by written notice delivered to the other party no later than April 1,
1999; provided, however, that if Tenant reasonably
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concludes that the matter impeding the closing is of such a nature that it can
reasonably be expected to be resolved in the immediate future without an
expenditure of funds in addition to those funds already budgeted by Landlord for
the acquisition of the Premises, then Tenant may require Landlord to proceed
diligently to cure such impediment and Landlord shall not have the unilateral
right to terminate this Lease. Landlord will use all commercially reasonable
efforts to acquire title by March 31, 1999, and to promptly cure, subject to the
foregoing limitation relating to expenditure of funds, any impediment to close
of escrow at the election of Tenant. Landlord shall not be required to acquire
title to the Premises if as a result of its "due diligence" it believes or has
reason to believe (a) the Premises are or may be affected by Hazardous
Substances or (b) the improvements are not free of defects, constructed in a
good and workman like manner, and in accordance with Gwinnett County Code and
Americans With Disabilities Act. In the event of termination pursuant to this
Section, the Security Deposit shall forthwith be restored to Tenant and the
parties shall be discharged of all liabilities and obligations hereunder.
3.2 Commencement Date Certificate. At the request of Landlord, Tenant shall
execute and deliver to Landlord a completed certificate ("Commencement Date
Certificate") in the form attached hereto as Exhibit B.
4. RENT.
4.1 Base Rent. Tenant shall pay to Landlord Base Rent and other monetary
obligations of Tenant to Landlord under the terms of this Lease (such other
monetary obligations are herein referred to as "Additional Rent") in lawful
money of the United States, without offset or deduction, except as otherwise
expressly provided herein, in advance on or before the first day of each month.
Tenant shall commence paying Base Rent on the ninety-first day following the
Commencement Date. ("Rent Commencement Date") Base Rent and Additional Rent for
any period during the term hereof which is for less than one full month shall be
prorated based upon the actual number of days of the month involved. Payment of
Base Rent and Additional Rent shall be made to Landlord at its address stated
herein or to such other persons or at such other addresses as Landlord may from
time to time designate in writing to Tenant. Base Rent and Additional Rent are
collectively referred to as "Rent." All monetary obligations of Tenant to
Landlord under the terms of this Lease are deemed to be Rent.
4.2 Operating Expenses.
(a) Tenant shall pay to Landlord on the first day of each month during the
term hereof, in addition to the Base Rent, Tenant's Share of the Industrial Park
Operating Expenses and Tenant's share of Premises Operating Expenses.
(b) "Premises Operating Expenses" are:
(i) Real Property Taxes.
(ii) Premiums for insurance policies maintained by Landlord under
Paragraph 8 hereof.
(iii) Landlord's Environmental Monitoring and Insurance Program Fee.
(iv) Property management fees in an amount equal to .8% of Base Rent.
(v) If Tenant fails to maintain the Premises, any expense incurred by
Landlord for such maintenance.
(c) Industrial Park Operating Expenses are that portion of the amounts
payable by Landlord pursuant to the CC&Rs that are applicable to the Premises.
(d) Tenant's share of Industrial Park Operating Expenses and Premises
Operating Expenses is set forth in Paragraph 1.5.
(e) Tenant shall pay monthly in advance on the same day as the Base Rent is
due Tenant's Share of estimated Industrial Park and Premises Operating Expenses
in the amount set forth in Paragraph 1.6. Landlord shall deliver to Tenant
within 90 days after the expiration of each calendar year a reasonably detailed
statement showing Tenant's Share of the actual Industrial Park and Premises
Operating Expenses incurred during the preceding year. If Tenant's estimated
payments under this Paragraph 4.2(e) during the preceding year exceed Tenant's
Share as indicated on said statement, Tenant shall be credited the amount of
such overpayment against Tenant's Share of Industrial Park and Premises
Operating Expenses next becoming due. If Tenant's estimated payments under this
Paragraph 4.2(e) during said preceding year were less than Tenant's Share as
indicated on said statement, Tenant shall pay to Landlord the amount of the
deficiency within 45 days after delivery by Landlord to Tenant of said
statement. At any time Landlord may adjust the amount of the estimated Tenant's
Share of Industrial Park and Premises Operating Expenses to reflect Landlord's
estimate of such expenses for the year.
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5. SECURITY DEPOSIT.
Tenant shall deposit with Landlord upon Tenant's execution hereof the
Security Deposit set forth in Paragraph 1.7 as security for Tenant's faithful
performance of Tenant's obligations under this Lease. If Tenant fails to pay
Base Rent or Additional Rent or otherwise defaults under this Lease (as defined
in Paragraph 13.1), Landlord may use the Security Deposit for the payment of any
amount due Landlord or to reimburse or compensate Landlord for any liability,
cost, expense, loss, or damage (including attorneys' fees) which Landlord may
suffer or incur by reason thereof. Tenant shall on demand pay Landlord the
amount so used or applied so as to restore the Security Deposit to the amount
set forth in Paragraph 1.7. Landlord shall not be required to keep all or any
part of the Security Deposit separate from its general accounts. Landlord shall,
at the expiration or earlier termination of the term hereof and after Tenant has
vacated the Premises, return to Tenant that portion of the Security Deposit not
used or applied by Landlord. No part of the Security Deposit shall be considered
to be held in trust, to bear interest, or to be prepayment for any monies to be
paid by Tenant under this Lease.
6. USE.
6.1 Permitted Use. Tenant shall use and occupy the Premises only for the
Permitted Uses set forth in Paragraph 1.8. Tenant shall not commit any nuisance,
permit the emission of any objectionable noise or (subject to the last sentence
of this Paragraph 6.1) odor, suffer any waste, make any use of the Premises
which is contrary to any law or ordinance or which will invalidate or increase
the premiums for any of Landlord's insurance. Tenant shall obtain and keep in
full force and effect all licenses, including alcoholic beverage licenses that
may be required by any public agency in connection with Tenant's proposed use of
the Premises. Tenant may wash and wax its delivery vehicles on the Premises and
store foods, pallets, drums or any other materials outside the Building,
provided all such vehicle maintenance and storage shall be in compliance with
the CC&Rs and all materials stored outside the Building shall be screened from
the view of the public and other tenants of the Industrial Park. Tenant may emit
food preparation aromas, provided the aromas would not commonly be considered
noxious and such emissions are not in violation of the CC&Rs or Applicable
Requirements.
6.2 Hazardous Substances.
(a) Definition; Reportable Uses Require Consent. The term, "Hazardous
Substance," as used in this Lease, shall mean any product, substance, chemical,
material, or waste whose presence, nature, quantity, and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release, or
effect, 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
Landlord to any governmental agency or third party under any applicable statute
or common law theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil, or any products or by-products
thereof. Tenant shall not engage in any activity in or about the Premises which
constitutes a Reportable Use (as hereinafter defined) of Hazardous Substances
without the express prior written consent of Landlord and compliance in a timely
manner (at Tenant's sole cost and expense) with all Applicable Requirements (as
defined in Paragraph 6.3). "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
business plan is required to be filed with, any governmental authority, and
(iii) the presence in, on, or about the Premises of a Hazardous Substance with
respect to which any Applicable Requirements require that a notice be given to
persons entering or occupying the Premises or neighboring properties.
Notwithstanding the foregoing, Tenant may, without Landlord's prior consent, but
upon notice to Landlord and in compliance with all Applicable Requirements, use
any ordinary and customary materials reasonably required to be used by Tenant in
the normal course of the Permitted Use, so long as such use is not a Reportable
Use and does not expose the Premises or neighboring properties to any meaningful
risk of contamination or damage, or expose Landlord to any liability therefor.
In addition, Landlord may (but without any obligation to do so) condition its
consent to any Reportable Use of any Hazardous Substance by Tenant upon Tenant's
giving Landlord such additional assurances as Landlord, in its reasonable
discretion, deems necessary to protect itself, the public, the Premises, and the
environment against damage, contamination, injury, and/or liability therefor,
including but not limited to the
4
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installation (and, at Landlord's option, removal on or before Lease expiration
or earlier termination) of reasonably necessary protective modifications to the
Premises (such as concrete encasements) and/or the deposit of an additional
Security Deposit.
Irrespective of the fact that the materials identified in this sentence may
constitute Hazardous Substances, Tenant may use and store (a) nominal amounts of
ordinary household cleaners and janitorial supplies which are not regulated by
any environmental laws, and (b) consumer sized closed containers of retail
products, including but not limited to cleaning agents, garden supplies, pest
products, hardware supplies, all available for sale in the ordinary course of
Tenant's business, all of which will be contained inside of closed plastic
transport totes.
(b) Duty to Inform Landlord. If Tenant knows, or has reasonable cause to
believe, that a Hazardous Substance is located in, under, or about the Premises
or the Building, Tenant shall immediately give Landlord written notice thereof,
together with a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action, or proceeding given
to, or received from, any governmental authority or private party concerning the
presence, spill, release, discharge of, or exposure to such Hazardous Substance.
Tenant shall not cause or permit any Hazardous Substance to be spilled or
released in, on, under, or about the Premises (including, without limitation,
through the plumbing or sanitary sewer system).
(c) Tenant Indemnification. Unless caused by or contributed to by Landlord
or Landlord Entities, Tenant shall indemnify, protect, defend and hold Landlord,
Landlord's affiliates, Lenders, and the officers, directors, shareholders,
partners, employees, managers, independent contractors, attorneys and agents of
the foregoing ("Landlord Entities") and the Premises harmless from and against
any and all damages, liabilities, judgments, costs, claims, liens, expenses,
penalties, loss of permits and reasonable attorneys' and reasonable consultants'
fees arising out of or involving any Hazardous Substances (i) brought onto the
Premises by Tenant or by any of Tenant's employees, agents, contractors,
servants, visitors, suppliers or invitees (such employees, agents, contractors,
servants, visitors, suppliers and invitees are herein collectively referred to
as "Tenant Responsible Parties") or at Tenant's direction, or (ii) released on
any other property by Tenant or Tenant Responsible Parties. Tenant's obligations
under this Paragraph 6.2(c) shall include, but not be limited to, the effects of
any contamination or injury to person, property or the environment created or
suffered by Tenant or Tenant Responsible Parties, and the cost of investigation
(including consultants' and attorneys' fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved.
Tenant's obligations under this Paragraph 6.2(c) shall survive the expiration or
earlier termination of this Lease.
(d) Landlord Indemnity. Unless caused by or contributed to by Tenant or
Tenant Responsible Parties, Landlord shall indemnify, protect, defend and hold
Tenant, Tenant's affiliates, and the officers, invitees, directors,
shareholders, partners, employees, managers, independent contractors, attorneys
and agents of the foregoing ("Tenant Entities") and the Premises harmless from
and against any and all damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, loss of permits and attorneys' and consultants' fees
arising out of or involving any Hazardous Substance (i) brought onto the
Premises by the Landlord or by any of Landlord's employees, agents, contractors
or invitees (collectively "Landlord Responsible Parties") unless at the
direction of Tenant or (ii) present on the Premises as of the Commencement Date
and not caused or contributed to by Tenant. Landlord's obligations under this
Paragraph 6.2(d) shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Landlord, and the cost of investigation (including consultants' and
attorneys' fees and testing), removal, remediation, restoration and/or abatement
thereof, or of any contamination therein involved. Landlord's obligations under
this Paragraph 6.2(d) shall survive the expiration or earlier termination of
this Lease.
6.3 Tenant's Compliance with Requirements. Tenant shall, at Tenant's sole
cost and expense, fully, diligently, and in a timely manner comply with all
"Applicable Requirements," which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements, and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Landlord's
engineers and/or consultants, relating to (a) industrial hygiene, (b)
environmental conditions on, in, under, or about the Premises, including soil
and groundwater conditions, and (c) the use, generation, manufacture,
production, installation, maintenance, removal, transportation, storage, spill,
or release of any Hazardous Substance, now in effect or which may hereafter come
into effect.
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Tenant shall, within 5 days after receipt of Landlord's written request, provide
Landlord with copies of all documents and information evidencing Tenant's
compliance with any Applicable Requirements, and shall immediately upon receipt
notify Landlord in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint, or report
pertaining to or involving failure by Tenant or the Premises to comply with any
Applicable Requirements.
6.4 Inspection; Compliance with Law. In addition to Landlord's
environmental monitoring and insurance program, the cost of which is included in
Operating Expenses, Landlord and the holders of any mortgages, deeds of trust,
or ground leases on the Premises ("Lenders") shall have the right to enter the
Premises at any time in the case of an emergency, and otherwise at reasonable
times and on 24 hours' notice, for the purpose of inspecting the condition of
the Premises and for verifying compliance by Tenant with this Lease and all
Applicable Requirements. Landlord shall be entitled to employ experts and/or
consultants in connection therewith to advise Landlord with respect to Tenant's
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Premises. The cost and expenses of any such
inspections shall be paid by the party requesting same unless a violation of
Applicable Requirements exists or is imminent, or the inspection is requested or
ordered by a governmental authority. Tenant shall upon request reimburse
Landlord or Landlord's Lender, as the case may be, for the costs and expenses of
such inspections.
7. MAINTENANCE, REPAIRS, TRADE FIXTURES AND ALTERATIONS.
7.1 Tenant's Obligations. Subject to the provisions of Paragraph 7.2
(Landlord's Obligations), Paragraph 9 (Damage or Destruction) and Paragraph 14
(Condemnation), Tenant shall, at Tenant's sole cost and expense and at all
times, keep the Premises and every part thereof in good order, condition and
repair (whether or not such portion of the Premises requiring repair, or the
means of repairing the same, are reasonably or readily accessible to Tenant and
whether or not the need for such repairs occurs as a result of Tenant's use, the
elements or the age of such portion of the Premises). Subject to Landlord's
warranty obligations under Paragraph 7.2, Tenant's repair obligations under this
Paragraph 7.1 include, without limiting the generality of the foregoing, all
equipment or facilities specifically serving the Premises, such as plumbing,
heating, air conditioning, ventilating, electrical, lighting facilities,
boilers, fired or unfired pressure vessels, fire hose connectors if within the
Premises, fixtures, interior walls, ceilings, floors, windows, doors, plate
glass, and skylights ("Building Systems"). Tenant's obligations shall include
restorations, replacements or renewals when necessary to keep the Premises and
all improvements thereon or a part thereof in good order, condition and state of
repair. Without relieving Tenant of its obligation to perform regular preventive
maintenance on such Building Systems, if a single repair, or replacement of a
Building System which is not also a Tenant Improvement is required during the
last two (2) years of this Lease, and the cost of such repair exceeds six (6)
months' Base Rent, Tenant may instead terminate this Lease unless Landlord
notifies Tenant, in writing, within ten (10) days after receipt of Tenant's
termination notice that Landlord has elected to pay the difference between the
actual cost thereof and the amount equal to six (6) months' Base Rent. If Tenant
elects termination, Tenant shall deliver to Landlord written notice specifying a
termination date at least ninety (90) days thereafter. Such termination date
shall, however, in no event be earlier than the last day that Tenant could use
the Premises without commencing such repairs. Landlord may on an annual basis
inspect the roof and require Tenant to make any repairs and to conduct any
preventive maintenance that a qualified roof inspector may reasonably recommend
in order to maximize the useful life of the roof.
7.2 Landlord's Obligations. Subject to the provisions of Paragraph 6 (Use),
Paragraph 7.1 (Tenant's Obligations), this Paragraph 7.2, Paragraph 9 (Damage or
Destruction) and Paragraph 14 (Condemnation), Landlord at its expense and not
subject to reimbursement pursuant to Paragraph 4.2 or other Paragraph hereunder,
shall keep in good order, condition and structural repair the roof structure,
foundations, and exterior walls of the Building unless the reason for repairs is
due to damage caused by Tenant or Tenant Responsible Parties.
Landlord warrants, for a period of ninety (90) days following the
Commencement Date, that all equipment or facilities serving the Premises
("Equipment") shall operate and perform in their intended manner and be
defect-free. Landlord shall during such 90-day period repair or replace any
Equipment which is not free of defects or does not operate in the manner for
which it was designed; provided, Landlord shall not be required to repair or
replace Equipment which
<PAGE> 12
is not so operating if the failure to operate is due to damage caused by Tenant
or Tenant Responsible Parties.
7.3 Alterations. Upon completion of the Tenant Improvements, Tenant agrees
not to make or allow to be made any structural alterations or physical additions
in or to the Premises without first obtaining the written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. After completion of
Tenant's initial Tenant Improvements, Tenant shall be allowed to make
nonstructural alterations or modifications in or to the Premises without
obtaining Landlord's prior consent provided that such alterations or
modifications are purely decorative or: (i) such alterations or modifications do
not cost more than $50,000 in any one instance; (ii) that taken together with
any other such alterations or modifications made by Tenant, the aggregate cost
of the same does not exceed $500,000 over the Term of this Lease; (iii) Tenant
provides Landlord with prior written notice of its intention to make such
alterations or additions stating in reasonable detail the nature and extent of
the same and the estimated cost of the same and (iv) Tenant delivers to Landlord
agreements, substantially in the forms attached hereto as Exhibits C-1 and C-2,
executed by each general contractor and each general contractor's principal
subcontractors and suppliers. In the event that Tenant desires to make
nonstructural alterations or modifications costing more than $50,000 in any one
instance or which in the aggregate over the Term of this Lease taken together
with other alterations or modifications made by Tenant will cause all of
Tenant's alterations or modifications within the Term of this Lease to exceed
$500,000, Tenant first must obtain the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed, but may be made upon such
reasonable terms and conditions as Landlord deems necessary, taking into
consideration the nature and extent of such alterations or modifications and the
Term remaining in this Lease. Whether or not Landlord's consent is required for
any alterations or modifications made by Tenant to the Premises, Tenant shall,
within thirty (30) days following completion of such work, notify Landlord of
the cost of such alterations or modifications so that Landlord can, and Landlord
shall at Tenant's cost, increase the property insurance coverage on the Premises
and/or Building, as the case may be, to include such alterations or
modifications. Tenant shall also increase property damage insurance on the
contents of the Premises as required above.
In making any alterations, decorations, additions, installations or
improvements to or in the Premises, Tenant shall employ only such contractors as
are qualified to perform the same in a good workmanlike and professional manner.
All such work done by Tenant shall be performed and installed in such a manner
that the same shall comply with the CC&Rs and all provisions of law, ordinances
and all rules and regulations of any and all agencies and authorities having
jurisdiction over the Premises. Notwithstanding the foregoing, in no event shall
Tenant have the right to create or permit there to be established any lien or
encumbrance of any nature against the Premises or the Building for said
improvement or improvements by Tenant. Tenant shall fully pay the cost of any
improvement or improvements made or contracted for by Tenant. Tenant shall keep
the Property and the Premises free of any and all mechanics and materialmen's
liens. If Tenant shall contest the validity of any such lien, claim or demand,
then Tenant shall, at its sole expense defend and protect itself, Landlord 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
Landlord shall require, Tenant shall furnish a surety bond in an amount equal to
one and one-half times the amount of such contested lien, claim or demand,
indemnifying Landlord against liability for the same. If Landlord elects to
participate in any such action, Tenant shall pay Landlord's attorneys' fees and
costs. Any improvements, decorations, fixtures, equipment, hardware or other
similar matters which have been made to the Premises by Tenant shall at
Landlord's option and Tenant's cost and expense be removed at the end of the
Lease Term. Tenant shall repair any damage to the Premises occasioned by such
removal. With respect to the Tenant Improvements and any other alterations or
improvements for which Landlord's consent is required, Landlord shall notify
Tenant after its review of the plans and specifications for the Tenant
Improvements and when it gives consent whether Tenant will be required to remove
such Tenant Improvements and alterations or modifications at the end of the
Lease Term. To the extent that Landlord does not request the removal, all such
items shall become the property of Landlord and shall remain upon the Premises
at the termination of this Lease by lapse of time, or otherwise, without
compensation or allowance or credit to Tenant.
7.4 Surrender/Restoration. Tenant shall surrender the Premises by 11:59
P.M. on the end of the last day of the Lease term or any earlier termination
date, clean and free of debris and in good operating order, condition and state
of repair ordinary wear and tear, and damage or
<PAGE> 13
destruction covered by insurance or caused by or contributed to by Landlord, its
agents, contractors or employees excepted. Without limiting the generality of
the above, Tenant shall remove those items Landlord has notified Tenant,
pursuant to Paragraph 7.3, to remove and all personal property, trade fixtures
and remove or cut flush floor bolts, patch all floors and cause all lights to be
in operating condition.
8. INSURANCE; INDEMNITY.
8.1 Payment of Premiums. The cost of the premiums for insurance policies
maintained by Landlord under this Paragraph 8 shall be a Premises Operating
Expense pursuant to Paragraph 4.2 hereof. Premiums for policy periods commencing
prior to, or extending beyond, the term of this Lease shall be prorated to
coincide with the corresponding Commencement Date or Expiration Date.
8.2 Tenant's Insurance.
(i) At its sole cost and expense, Tenant shall maintain in full force
and effect during the Term of the Lease the following insurance coverages
insuring against claims which may arise from or in connection with the Tenant's
operation and use of the Premises.
(a) Commercial General Liability with minimum limits of
$1,000,000 per occurrence and $3,000,000 general aggregate for bodily injury,
personal injury and property damage and, if Tenant has (or is required under
applicable law to have) a liquor license and is selling or distributing
alcoholic beverages on the Premises, then Tenant shall maintain liquor liability
coverage in appropriate amounts. If such Commercial General Liability insurance
contains a general aggregate limit, it shall apply separately to the Premises.
(b) Workers' Compensation insurance with statutory limits and
Employers Liability with a $1,000,000 per accident limit for bodily injury or
disease.
(c) Automobile Liability covering all owned, non-owned and hired
vehicles with a $1,000,000 per accident limit for bodily injury and property
damage.
(d) Property insurance on a full replacement cost basis with no
coinsurance penalty provision against all risks of loss to (1) any improvements
to the Premises, excluding the interior offices, the electrical distribution
system and the fire suppression system, (2) trade fixtures, and (3) business
personal property.
(e) Business interruption insurance against all risks of loss,
including off premises power failure covering a period of not less than one
year.
(f) Boiler and machinery insurance covering damage to or
destruction of machinery and equipment located on the Premises or in the
Improvements that is used for heating, refrigerating, ventilating,
air-conditioning power generation and similar purposes, in an amount not less
than one hundred percent (100%) of the actual replacement value of such
machinery and equipment.
(ii) Tenant shall deliver to Landlord certificates including copies of
all required additional insured endorsements of all insurance reflecting
evidence of required coverages prior to initial occupancy and 30 days prior to
expiration of any policy.
(iii) If, in the reasonable opinion of Landlord's insurance advisor,
the amount or scope of such coverage is deemed inadequate at any time during the
Term, Tenant shall increase such coverage to such commercially reasonable
amounts or scope as Landlord's advisor deems adequate; provided, that in no
circumstance shall the amount or scope of such coverage be increased more
frequently than every three years.
(iv) All insurance required under Paragraph 8.2 (a) shall be available
as primary and non-contributory, (b) shall provide for severability of
interests, (c) shall be issued by insurers, licensed to do business in the state
in which the Premises are located and which are rated A-: VII or better by
Best's Key Rating Guide, (d) shall be endorsed to include Landlord, Landlord
entities and Landlord's lenders, as additional insureds (Commercial General
Liability only), and (e) shall be endorsed to provide at least 30 days' prior
notification of cancellation or material change in coverage to said additional
insureds.
8.3 Landlord's Insurance.
(i) Landlord shall maintain in full force and effect during the term
of the Lease the following insurance coverages insuring Landlord against claims
which may arise from or in connection with the Landlord's ownership,
maintenance, and use of the Premises. Premiums for any such insurance shall,
pursuant to Paragraph 8, be a Premises Operating Expense.
(a) Commercial General Liability with minimum limits of
$1,000,000 per occurrence and $3,000,000 general aggregate for bodily injury,
personal injury, and property damage;
<PAGE> 14
(b) Pollution Legal Liability Insurance including contractual
liability, cleanup costs and defense all in connection with any loss arising
from the Premises. Coverage shall be maintained in an amount of at least
$1,000,000 per loss with an aggregate limit applicable to the Premises of
$3,000,000. Coverage shall apply to sudden and non-sudden pollution.
(c) Worker's Compensation Insurance with statutory limits and
employer's liability with a $1,000,000-per-accident limit for bodily injury or
disease;
(d) Automobile liability covering all owned, nonowned, and hired
vehicles with a $1,000,000-per-accident limit for bodily injury and property
damage;
(e) Risk of direct physical loss, including flood, insurance
covering the Building shell and the offices, electrical distribution system and
fire suppression system of the Premises and improvements other than Tenant
Improvements on a full-replacement-cost basis with no co-insurance provision and
business interruption insurance with a limit of liability representing loss of
at least six months of income.
(ii) Landlord shall deliver to Tenant certificates of all
insurance reflecting evidence of required coverages prior to initial occupancy,
and 30 days prior to expiration of any policy, Landlord shall furnish a
certificate evidencing that such expired policy has been replaced.
(iii) All insurance required under Paragraph 8.3(i)(b), (c),
and (d) shall: (a) be available as primary and non-contributory insurance
coverage, (b) provide for severability of interests, (c) be issued by insurers,
licensed to do business in the state in which the Premises are located and which
are rated A: VII or better by Best's Key Rating Guide, and (d) be endorsed to
include Tenant and Tenant's officers, directors and employees as additional
insureds under the commercial general liability policy to the extent of the
indemnities provided in Paragraph 8.5 hereof.
8.4 Waiver of Subrogation. To the extent permitted by law and without
affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
on account of any and all claims Landlord or Tenant may have against the other
with respect to property insurance actually carried, or required to be carried
hereunder, to the extent of the proceeds realized from such insurance coverage.
8.5 Indemnity.
(a). Tenant shall protect, indemnify, defend and hold Landlord and
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of:
(i) any damage to any property (including but not limited to
property of any Landlord Entity) or death or injury to any person occurring in
or about the Premises, the Building or the Industrial Center to the extent that
such injury or damage shall be caused by or arise from any actual or alleged
act, fault or omission by or of Tenant or Tenant Responsible Parties.
(ii) the conduct or management of any work or anything whatsoever
done by the Tenant on or about the Premises or from transactions of the Tenant
concerning the Premises;
(iii) Tenant's failure to comply with any and all governmental
laws, ordinances and regulations applicable to the condition or use of the
Premises or its occupancy the compliance with which are the responsibility of
Tenant hereunder or under such laws; or
(iv) any breach or default of the part of Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease.
(b). Landlord shall protect, indemnify, defend and hold the Tenant and
Tenant Entities harmless from and against any and all loss, claims, liability or
costs (including court costs and attorney's fees) incurred by reason of:
(i) any damage to any property (including but not limited to
property of any Tenant Entity) or death or injury to any person occurring in or
about the Premises, the Building or the Industrial Center to the extent that
such injury or damage shall be caused by or arise from any actual or alleged act
or omission by or of Landlord or Landlord Entities;
(ii) the negligent conduct or management of any work or anything
whatsoever done by the Landlord on or about the Premises or from Landlord's
negligence in the transactions of the Landlord concerning the Premises;
(iii) Landlord's failure to comply with any and all governmental
laws, ordinances and regulations applicable to the condition or use of the
Premises or its occupancy which are the responsibility of Landlord hereunder or
under such laws; or
<PAGE> 15
(iv) any breach or default of the part of Landlord in the
performance of any covenant or agreement on the part of the Landlord to be
performed pursuant to this Lease.
The provisions of this Paragraph 8.5 shall survive the termination of this
Lease with respect to any claims or liability accruing prior to such
termination.
8.6 Exemption of Landlord from Liability. Except to the extent caused by
the negligence or willful misconduct of Landlord and without waiving Landlord's
obligation to maintain the insurance it is required to maintain under this
Article 8, or Tenant's rights to seek recovery therefrom, Landlord and Landlord
Entities shall not be liable for and Tenant waives any claims against Landlord
Entities for injury or damage to the person or the property of Tenant, Tenant's
employees, contractors, invitees, customers or any other person in or about the
Premises, Building or Industrial Center from any cause whatsoever, including,
but not limited to, damage or injury which is caused by or results from (i)
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures or (ii) from the condition of
the Premises, other portions of the Building or Industrial Center. Landlord
shall not be liable for any damages arising from any act or neglect of any other
tenant of Landlord nor from the failure by Landlord to enforce the provisions of
any other lease in the Industrial Center. Notwithstanding Landlord's negligence
or breach of this Lease, Landlord shall under no circumstances be liable for
injury to Tenant's business, for any loss of income or profit therefrom or any
indirect, consequential or punitive damages. The foregoing exemption from
Landlord liability shall in no event relieve Landlord from any of its
obligations hereunder.
9. DAMAGE OR DESTRUCTION.
9.1 Termination Right. Tenant shall give Landlord immediate written notice
of any damage to the Premises. Subject to the provisions of Paragraph 9.2,
Landlord shall in a timely fashion and in no event later than 60 days from the
date on which Landlord receives notice of the damage, commence repairs and
thereafter diligently pursue completion of the repairs. If the extent of the
damage is such that there is or will be substantial and material interference
with the conduct by Tenant of its business at the Premises and the anticipated
time for completion of the repairs which will permit Tenant to resume normal
business operations exceeds 365 days from the date on which Landlord received
notice of the damage, Tenant may on notice to Landlord delivered prior to
commencement of repairs terminate this Lease effective 30 days after delivery of
such notice to Landlord. Such termination shall not excuse the performance by
Tenant of those covenants which under the terms hereof survive termination. Rent
shall be abated in proportion to the degree of interference during the period
that there is such substantial interference with the conduct of Tenant's
business at the Premises. Abatement of rent and Tenant's right of termination
pursuant to this provision shall be Tenant's sole remedy for failure of Landlord
to keep in good order, condition, and repair the foundations and exterior walls
of the Building, and roof structure. Landlord shall promptly deliver to Tenant
all reports and other materials related to the repairs. Tenant may also consult
with and obtain bids from other contractors for the repair of the damages.
9.2 Damage Caused by Tenant. Tenant's termination rights under Paragraph
9.1 shall not apply if the damage to the Premises or Building is the result of
any negligent act or omission of Tenant or of any of Tenant Responsible Parties
("Tenant Acts"). Any damage resulting from a Tenant Act shall be promptly
repaired by Tenant, except to the extent covered by Landlord's insurance.
Landlord at its option may at Tenant's expense repair any damage caused by
Tenant Acts. Except to the extent Landlord receives proceeds from rent
interruption insurance, Tenant shall continue to pay all rent and other sums due
hereunder and shall be liable to Landlord for all damages that Landlord may
sustain resulting from a Tenant Act.
10. REAL PROPERTY TAXES.
10.1 Payment of Real Property Taxes. Landlord shall pay the Real Property
Taxes due and payable during the term of this Lease and, except as otherwise
provided in Paragraph 10.3, any such amounts shall be included in the
calculation of Premises Operating Expenses in accordance with the provisions of
Paragraph 4.2.
10.2 Real Property Tax Definition. As used herein, the term "Real Property
Taxes" is any form of tax or assessment, general, special, ordinary, or
extraordinary, imposed or levied upon (a) the Premises, (b) any interest of
Landlord in the Premises or Building, (c) Landlord's right to rent or other
income from the Premises or Building, and/or (d) Landlord's business of
<PAGE> 16
leasing the Premises. Real Property Taxes include (i) any license fee,
commercial rental tax, excise tax, improvement bond or bonds, levy, or tax; and
(ii) any tax or charge which replaces or is in addition to any of such
above-described "Real Property Taxes." Real Property Taxes for tax years
commencing prior to, or extending beyond, the term of this Lease shall be
prorated to coincide with the corresponding Commencement Date and Expiration
Date. Real Property Taxes shall exclude inheritance and gift taxes.
10.3 Additional Improvements. Operating Expenses shall not include Real
Property Taxes attributable to improvements placed upon the Industrial Center by
other tenants or by Landlord for the exclusive enjoyment of such other tenants.
Notwithstanding Paragraph 10.1 hereof, Tenant shall, however, pay to Landlord at
the time Operating Expenses are payable under Paragraph 4.2, the entirety of any
increase in Real Property Taxes if assessed by reason of improvements placed
upon the Premises by Tenant or at Tenant's request.
10.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed.
10.5 Tenant's Property Taxes. Tenant shall pay prior to delinquency all
taxes assessed against and levied upon Tenant's improvements, fixtures,
furnishings, equipment and all personal property of Tenant contained in the
Premises or stored within the Industrial Center.
11. UTILITIES. Tenant shall pay directly for all utilities and services supplied
to the Premises, including but not limited to electricity, telephone, security,
gas and cleaning of the Premises, together with any taxes thereon. All such
utilities and services shall be separately metered.
12. ASSIGNMENT AND SUBLETTING.
12.1 Landlord's Consent Required.
(a) Except as expressly provided hereunder, Tenant shall not assign,
transfer, mortgage or otherwise transfer or encumber (collectively, "assign") or
sublet all or any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent which consent shall not be unreasonably
withheld, conditioned or delayed. Relevant criteria in determining reasonability
of consent include, but are not limited to, credit history of a proposed
assignee or sublessee, negative references from prior landlords, any change or
intensification of use of the Premises and any limitations imposed by the
Internal Revenue Code and the Regulations promulgated thereunder relating to
Real Estate Investment Trusts. Assignment or subletting shall not release Tenant
from its obligations hereunder. Tenant shall not (i) sublet or assign or enter
into other arrangements such that the amounts to be paid by the sublessee or
assignee thereunder would be based, in whole or in part, on the income or
profits derived by the business activities of the sublessee or assignee; (ii)
sublet the Premises or assign this Lease to any person in which Landlord owns an
interest, directly or indirectly (by applying constructive ownership rules set
forth in Section 856(d)(5) of the Internal Revenue Code (the "Code"); or (iii)
sublet the Premises or assign this Lease in any other manner which could cause
any portion of the amounts received by Landlord pursuant to this Lease or any
sublease to fail to qualify as "rents from real property" within the meaning of
Section 856(d) of the Code, or which could cause any other income received by
Landlord to fail to qualify as income described in Section 856(c)(2) of the
Code. The requirements of this Paragraph 12.1 shall apply to any further
subleasing by any subtenant.
(b) Tenant shall have the right without consent of Landlord but with
prior written notice to Landlord to assign this Lease or sublet all or a portion
of the Premises to an entity which is controlled by Tenant (i.e., an entity of
which Tenant owns more than 50% of the outstanding shares), which controls
Tenant (i.e. an entity which owns more than 50% of the Tenant's shares, such as
a parent relationship) or which is under common control with Tenant (such as a
brother-sister or affiliate relationship), whether through operation of law or
otherwise, provided such entity, in the case of an assignment, assumes all the
obligations of Tenant under the Lease. Irrespective of any such assignment,
Tenant shall remain liable for the full and faithful performance of each and
every covenant to be performed by Tenant hereunder.
(c) A change in the control of Tenant shall constitute an assignment
requiring Landlord's consent. The transfer, on a cumulative basis, of 50% or
more of the voting or management control of Tenant shall constitute a change in
control for this purpose.
12.2 Rent Sharing. Fifty percent of any Base Rent received by Tenant from
an assignee or sublessee which is in excess of the Base Rent payable under this
Lease shall be paid by Tenant to Landlord.
<PAGE> 17
13. DEFAULT; REMEDIES.
13.1 Default of Tenant. The occurrence of any one of the following events
shall constitute an event of default on the part of Tenant ("Default"):
(a) The abandonment of the Premises by Tenant for a period of five (5)
consecutive business days, provided, so long as Tenant continues to pay rent and
perform all its other obligations hereunder, a cessation of operation shall not
constitute a Default;
(b) Failure to pay any installment of Base Rent, Additional Rent or
any other monies due and payable hereunder, said failure continuing for a period
of five (5) days after the same is past due;
(c) A general assignment by Tenant for the benefit of creditors;
(d) The filing of a voluntary petition in bankruptcy by Tenant, the
filing of a voluntary petition for an arrangement, the filing of a petition,
voluntary or involuntary, for reorganization, or the filing of an involuntary
petition by Tenant's creditors, which is not dismissed within thirty (30) days;
(e) Receivership, attachment, of other judicial seizure of the
Premises or all or substantially all of Tenant's assets on the Premises, which
is not dismissed within thirty (30) days;
(f) Failure of Tenant to maintain insurance as required by Paragraph
8.2 for a period of ten (10) days after Tenant receives written notice from
Landlord of such failure;
(g) Any breach by Tenant of its covenants under Paragraph 6.2;
(h) Failure in the performance of any of Tenant's covenants,
agreements or obligations hereunder (except those failures specified as events
of Default in other Paragraphs of this Paragraph 13.1 which shall be governed by
such other Paragraphs), which failure continues for 30 days after written notice
thereof from Landlord to Tenant provided that, if Tenant has exercised
reasonable diligence to cure such failure and such failure cannot be cured
within such 30-day period despite reasonable diligence, Tenant shall not be in
default under this subparagraph unless Tenant fails thereafter diligently and
continuously to prosecute the cure to completion; and
(i) Any transfer of a substantial portion of the assets of Tenant, or
any incurrence of a material obligation by Tenant, unless such transfer or
obligation is undertaken or incurred in the ordinary course of Tenant's business
or in good faith for equivalent consideration, or with Landlord's consent.
13.2 Remedies of Landlord. In the event of any Default by Tenant, Landlord
shall have the remedies set forth in the Addendum attached hereto entitled
"Landlord's Remedies in Event of Tenant Default."
13.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges. Accordingly, if any installment of Rent or
other sum due from Tenant shall not be received by Landlord or Landlord's
designee within 10 business days after such amount shall be due, then, without
any requirement for notice to Tenant, Tenant shall pay to Landlord a late charge
equal to 5% of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's Default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of exercise of said power (all
of which are herein called "condemnation"), this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title or possession,
whichever first occurs. If the portion of the Premises taken results in a
substantial and material interference with the operation of Tenant's business,
Tenant may, at Tenant's option, to be exercised in writing within 30 days after
Landlord shall have given Tenant written notice of such taking (or in the
absence of such notice, within 30 days after the condemning authority shall have
taken possession) terminate this Lease as of the date the condemning authority
takes such possession. If Tenant does not terminate this Lease in accordance
with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the Base Rent and Additional Rent
shall be
<PAGE> 18
reduced in the same proportion as the rentable floor area of the Premises taken
bears to the total rentable floor area of the Premises. No reduction of Base
Rent or Additional Rent shall occur if the condemnation does not apply to any
portion of the Premises. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be allocated between Landlord and Tenant in
accordance with the law of the State of Georgia. In the event that this Lease is
not terminated by reason of such condemnation, Landlord shall to the extent of
its net severance damages in the condemnation matter, repair any damage to the
Premises caused by such condemnation authority. Landlord, at its sole cost and
expense, shall be responsible for the payment of any amount in excess of such
net severance damages required to complete such repair.
15. ESTOPPEL CERTIFICATE AND FINANCIAL STATEMENTS.
15.1 Estoppel Certificate. Each party (herein referred to as "Responding
Party") shall within 10 business days after written notice from the other Party
(the "Requesting Party") execute, acknowledge and deliver to the Requesting
Party, to the extent it can truthfully do so, an estoppel certificate in the
form attached hereto as Exhibit F, plus such additional information,
confirmation and/or statements as may be reasonably requested by the Requesting
Party. In no event shall any such document requested pursuant to this Paragraph
15.1 obligate Tenant to any additional responsibilities or obligations, nor
waive or limit any rights of Tenant, under this Lease.
15.2 Financial Statement. If Landlord desires to finance, refinance, or
sell the Premises, Tenant shall deliver to any potential lender or purchaser
designated by Landlord such financial statements of Tenant as may be reasonably
required by such lender or purchaser, including but not limited to Tenant's
financial statements for the past 3 years. All such financial statements shall
be received by Landlord and such lender or purchaser upon receipt by Tenant of
an executed confidentiality agreement and shall be used only for the purposes
herein set forth.
16. ADDITIONAL COVENANTS AND PROVISIONS.
16.1 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall not affect the validity
of any other provision hereof.
16.2 Interest on Past-Due Obligations. Any monetary payment due Landlord
hereunder not received by Landlord within 10 days following the date on which it
was due shall bear interest from the date due at 10% per annum, but not
exceeding the maximum rate allowed by law in addition to the late charge
provided for in Paragraph 13.3.
16.3 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.
16.4 Landlord Liability. Tenant, its successors and assigns, shall not
assert nor seek to enforce any claim for breach of this Lease against any of
Landlord's assets other than Landlord's interest in the Premises. Tenant agrees
to look solely to such interest for the satisfaction of any liability or claim
against Landlord under this Lease. In no event whatsoever shall Landlord (which
term shall include, without limitation, any general or limited partner,
trustees, beneficiaries, officers, directors, or stockholders of Landlord) ever
be personally liable for any such liability.
16.5 No Prior or Other Agreements. This Lease contains all the agreements
between the Parties with respect to any matter mentioned herein, and supersedes
all oral, written prior or contemporaneous agreements or understandings.
16.6 Notice Requirements. All notices required or permitted by this Lease
shall be in writing and sent by certified or registered mail or U.S. Postal
Service Express Mail (or by nationally recognized overnight courier provider
with signed receipts), with postage prepaid, or by facsimile transmission during
normal business hours, and shall be deemed sufficiently given if served in a
manner specified in this Paragraph 16.6. 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 purposes. A copy of all notices required or
permitted to be given to Landlord hereunder shall be concurrently transmitted to
such party or parties at such addresses as Landlord may from time to time
hereafter designate by written notice to Tenant.
16.7 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. Notices
delivered by United States Express Mail
<PAGE> 19
or nationally recognized overnight courier that guarantees next day delivery
shall be deemed given 24 hours after delivery of the same to the United States
Postal Service or courier. If any notice is transmitted by facsimile
transmission or similar means, the same shall be deemed served or delivered upon
telephone or facsimile confirmation of receipt of the transmission thereof,
provided a copy is also delivered via overnight delivery or certified mail. If
notice is received on a Saturday or a Sunday or a legal holiday, it shall be
deemed received on the next business day.
16.8 Waivers. No waiver by Landlord of a Default by Tenant shall be deemed
a waiver of any other term, covenant or condition hereof, or of any subsequent
Default by Tenant of the same or any other term, covenant or condition hereof.
No waiver by Tenant of a Default by Landlord shall be deemed a waiver of any
other term, covenant or condition hereof, or of any subsequent Default by
Landlord of the same or any other term, covenant or condition hereof.
16.9 Holdover. Tenant has no right to retain possession of the Premises or
any part thereof beyond the expiration or earlier termination of this Lease. If
Tenant holds over with the consent of Landlord: (i) the Base Rent payable shall
be increased to 150% of the Base Rent applicable during the month immediately
preceding such expiration or earlier termination; (ii) Tenant's right to
possession shall terminate on 30 days' notice from Landlord or Tenant and (iii)
all other terms and conditions of this Lease shall continue to apply. Nothing
contained herein shall be construed as a consent by Landlord to any holding over
by Tenant.
16.10 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies in
law or in equity.
16.11 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. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
county in which the Premises are located.
16.12 Landlord. The covenants and obligations contained in this Lease on
the part of Landlord are binding on Landlord, its successors and assigns, only
during and in respect of their respective period of ownership of such interest
in the Premises. In the event of any transfer or transfers of such title to the
Premises, Landlord (and in case of any subsequent transfers or conveyances, the
then grantor) shall, provided the grantee assumes all of the executory
obligations of Landlord under this Lease, be concurrently freed and relieved
from and after the date of such transfer or conveyance, without any further
instrument or agreement, of all liability with respect to the performance of any
future covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed. So long as an AMB-affiliated entity retains an
ownership interest in the Premises, AMB Property Corporation or an entity owned
or controlled by AMB Property Corporation shall remain the managing party of
such affiliated entity.
16.13 Attorneys' Fees and Other Costs. If any Party brings an action or
proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) in any such proceeding shall be entitled
to reasonable attorneys' fees. The term "Prevailing Party" shall include,
without limitation, a Party who substantially obtains or defeats the relief
sought. Tenant shall reimburse Landlord on demand for all reasonable legal,
engineering and other professional services expenses actually incurred by
Landlord in connection with all requests by Tenant for consent or approval
hereunder, provided that Tenant shall have first approved their respective
costs. Unless the request for consent to an assignment or sublease involves a
change of use or substantial changes to the Building, legal fees of Landlord to
review a consent to assignment or sublease shall not exceed $350.00.
16.14 Landlord's Access; Showing Premises; Repairs. Subject to the
restrictions set forth hereinabove, Landlord and Landlord's agents shall have
the right to enter the Premises at any time, in the case of an emergency, and
otherwise at reasonable times upon 24 hours' notice for the purpose of showing
the same to prospective purchasers, lenders, or tenants, and making such
alterations, repairs, improvements or additions to the Premises or to the
Building, as Landlord may reasonably deem necessary. Landlord may at any time
place on or about the Premises or Building any ordinary "For Sale" signs and
Landlord may at any time during the last 180 days of the term hereof place on or
about the Premises any ordinary "For Lease" signs. Provided that Tenant's use,
occupancy and enjoyment is not disturbed hereunder, all such activities of
Landlord shall be without abatement of rent or liability to Tenant.
16.15 Signs. Tenant shall not place any signs at or upon the exterior of
the Premises or the Building, except that Tenant may, with Landlord's prior
written consent (not to be unreasonably withheld, conditioned or delayed),
install (but not on the roof) such signs as are
<PAGE> 20
reasonably required to advertise Tenant's own business so long as such signs are
in a location designated by Landlord and comply with sign ordinances and the
CC&Rs signage criteria. Subject to the same criteria, Landlord may place a sign
on the Building stating that the Building is owned and managed by Landlord.
16.16 Termination: Merger. Unless specifically stated otherwise in writing
by Landlord, the voluntary or other surrender of this Lease by Tenant, the
mutual termination or cancellation hereof, or a termination hereof by Landlord
for Default by Tenant, shall automatically terminate any sublease or lesser
estate in the Premises; provided, however, Landlord shall, in the event of any
such surrender, termination or cancellation, have the option to continue any one
or all of any existing subtenancies. In the event Landlord elects to continue
any one or all of any existing subtenancies, Tenant shall be released from any
and all future liabilities. Landlord's failure within 10 days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest shall constitute Landlord's election to have such
event constitute the termination of such interest.
16.17 Quiet Possession. Upon payment by Tenant of the Base Rent and
Additional Rent for the Premises and the performance of all of the covenants,
conditions and provisions on Tenant's part to be observed and performed under
this Lease, Tenant shall have quiet possession of the Premises for the entire
term hereof subject to all of the provisions of this Lease.
16.18 Subordination; Attornment; Non-Disturbance.
(a) Subordination. Subject to the non-disturbance provisions of
Paragraph 16.18(c) below, this Lease shall be subject and subordinate to any
ground lease, mortgage, deed of trust, or other hypothecation or mortgage
(collectively, "Mortgage") now or hereafter placed by Landlord upon the real
property of which the Premises are a part, to any and all advances made on the
security thereof, and to all renewals, modifications, consolidations,
replacements, and extensions thereof. Tenant agrees that any person holding any
Mortgage shall have no duty, liability, or obligation to perform any of the
obligations of Landlord under this Lease. In the event of Landlord's default
with respect to any such obligation, Tenant will give any Lender, whose name and
address have previously been furnished in writing to Tenant, notice of a default
by Landlord. Tenant may not exercise any remedies for default by Landlord unless
and until Landlord and the Lender shall have received written notice of such
default and a reasonable time (not less than 90 days) shall thereafter have
elapsed without the default having been cured. If any Lender shall elect to have
this Lease superior to the lien of its Mortgage and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such Mortgage. The
provisions of a Mortgage relating to the disposition of condemnation and
insurance proceeds shall prevail over any contrary provisions contained in this
Lease.
(b) Attornment. Subject to the nondisturbance provisions of
subparagraph (c) of this Paragraph 16.18, Tenant agrees to attorn to a Lender or
any other party who acquires ownership of the Premises by reason of a
foreclosure of a Mortgage. In the event of such foreclosure, such new owner
shall not: (i) be liable for any act or omission of any prior landlord or with
respect to events occurring prior to acquisition of ownership, (ii) be subject
to any offsets or defenses which Tenant might have against any prior Landlord,
or (iii) be liable for security deposits or be bound by prepayment of more than
one month's rent.
(c) Non-Disturbance. With respect to a Mortgage entered into by
Landlord after the execution of this Lease, Tenant's subordination of this Lease
shall be subject to receiving assurance (a "nondisturbance agreement") from the
Mortgage holder that Tenant's possession and this Lease will not be disturbed so
long as Tenant is not in default and attorns to the record owner of the
Premises. Attached as Exhibit E is a form of Nondisturbance Agreement which is
acceptable to Tenant. Tenant shall agree to any reasonable amendments to this
form which may be required by Lender, provided that Tenant's rights shall not be
diminished nor its obligations increased by reason of such modifications.
(d) Self-Executing. The agreements contained in this Paragraph 16.18
shall be effective without the execution of any further documents; provided,
however, that upon written request from Landlord or a Lender in connection with
a sale, financing, or refinancing of Premises, Tenant and Landlord shall execute
such further writings as may be reasonably required to separately document any
such subordination or nonsubordination, attornment, and/or nondisturbance
agreement, as is provided for herein. Subject to the non-disturbance provisions
of Paragraph 16.18(c), Landlord is hereby irrevocably vested with full power to
subordinate this Lease to a Mortgage.
16.19 Rules and Regulations. Tenant agrees that it will abide by and to
cause Tenant Responsible Parties to abide by all reasonable rules and
regulations ("Rules and Regulations")
<PAGE> 21
which Declarant or its successors under the CC&Rs may make from time to time for
the management, safety, care, and cleanliness of the Industrial Park, the
parking and unloading of vehicles and the preservation of good order, as well as
for the convenience of other occupants or tenants of the Industrial Center and
their invitees.
16.20 Security Measures. Tenant acknowledges that the rental payable to
Landlord hereunder does not include the cost of guard service or other security
measures. Landlord has no obligations to provide same. Tenant assumes all
responsibility for the protection of the Premises, Tenant, its agents and
invitees and their property from the acts of third parties.
16.21 Intentionally Deleted
16.22 Conflict. Any conflict between the printed provisions of this Lease
and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions, so long as initialed by both parties.
16.23 Offer. Preparation of this Lease by either Landlord or Tenant or
Landlord's agent or Tenant's agent and submission of same to Tenant or Landlord
shall not be deemed an offer to lease. This Lease is not intended to be binding
until executed and delivered by all Parties hereto.
16.24 Amendments. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification.
16.25 Multiple Parties. Except as otherwise expressly provided herein, if
more than one person or entity is named herein as Tenant, the obligations of
such persons shall be the joint and several responsibility of all persons or
entities named herein as such Tenant.
16.26 Authority. Each person signing on behalf of Landlord or Tenant
warrants and represents that she or he is authorized to execute and deliver this
Lease and to make it a binding obligation of Landlord or Tenant.
16.27 Counterparts. This Lease may be executed in counterparts, each of
which shall be deemed to be an original, but such counterparts when taken
together shall constitute but one agreement.
16.28 Memorandum of Lease. Either party may, at its expense, record a Short
Form Memorandum of Lease in the form attached hereto as Exhibit G. At the time
Landlord delivers to Tenant an executed Short Form Memorandum of Lease, Tenant
shall deliver to Landlord an executed quitclaim deed, in recordable form,
quitclaiming Tenant's interest in the Premises. Landlord shall not record such
quitclaim deed until this Lease has terminated.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
LANDLORD: TENANT:
AMB PROPERTY, L.P. INTELLIGENT SYSTEMS FOR RETAIL, INC.
a Delaware limited partnership a California corporation
By: AMB Property Corporation,
a Maryland corporation
By: /S/ LUIS A. BELMONTE By: /S/ LOUIS H. BORDERS
-------------------------------- ------------------------------
Luis A. Belmonte Louis H. Borders
Title: Vice President Title: President and CEO
Telephone: (617) 531-9000 Telephone: (650) 524-2200
Facsimile: (617) 531-9001 Facsimile: (650) 524-4801
Executed at: San Francisco, California Executed at: _____________, California
on: on:
------------------------------------ ----------------------------------------
Witness: Witness:
------------------------------ -----------------------------------
Address for Notices: Address for Notices:
AMB Property Corporation 1241 E. Hillsdale, Suite 210
60 State Street, Suite 3700 Foster City, California 94404
Boston, Massachusetts 02109 Attention: David S. Rock
Attention: Kent Greenawalt
<PAGE> 22
REMEDIES ADDENDUM
<PAGE> 23
OPTIONS ADDENDUM
<PAGE> 24
EXHIBIT A
Diagram of Premises
<PAGE> 25
EXHIBIT B
Commencement Date Certificate
<PAGE> 26
ADDENDUM
LANDLORD'S REMEDIES IN THE EVENT OF TENANT DEFAULT
(STATE OF GEORGIA)
Notwithstanding anything to the contrary contained within the foregoing
document, the following shall apply:
(a) In the event of any Default by Tenant, Landlord may, at
Landlord's option, without any demand or notice whatsoever (except as expressly
required in Paragraph 13 of the Lease):
(i) Terminate this Lease by giving Tenant notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination and all rights of Tenant under this
Lease and in and to the Premises shall terminate. Tenant shall remain liable
for all obligations under this Lease arising up to the date of such
termination, and Tenant shall surrender the Premises to Landlord on the date
specified in such notice; or
(ii) Terminate this Lease as provided in subparagraph (a)(i)
above and recover from Tenant all damages Landlord may incur by reason of
Tenant's default, including, without limitation, an amount which, at the date
of such termination, is calculated as follows: (1) the value of the excess, if
any, of (A) the Base Rent, Additional Rent and all other sums which would have
been payable hereunder by Tenant for the period commencing with the day
following the date of such termination and ending with the Expiration Date had
this Lease not been terminated (the "Remaining Term"), over (B) the aggregate
reasonable rental value of the Premises for the Remaining Term (which excess,
if any shall be discounted to present value at the "Treasury Yield" as defined
below for the Remaining Term); plus (2) the cost of recovering possession of
the Premises and all other expenses incurred by Landlord due to Tenant's
default, including, without limitation, reasonable attorney's fees; plus (3)
the unpaid Base Rent and Additional Rent earned as of the date of termination
plus any interest and late fees due hereunder, plus other sums of money and
damages owing on the date of termination by Tenant to Landlord under this Lease
or in connection with the Premises. The amount as calculated above shall be
deemed immediately due and payable. The payment of the amount calculated in
subparagraph (ii)(1) shall not be deemed a penalty but shall merely constitute
payment of liquidated damages, it being understood and acknowledged by Landlord
and Tenant that actual damages to Landlord are extremely difficult, if not
impossible, to ascertain. "Treasury Yield" shall mean the rate of return in
percent per annum of Treasury Constant Maturities for the length of time
specified as published in document H.15(519) (presently published by the Board
of Governors of the U.S. Federal Reserve System titled "Federal Reserve
Statistical Release") for the calendar week immediately preceding the calendar
week in which the termination occurs. If the rate of return of Treasury
Constant Maturities for the calendar week in question is not published on or
before the business day preceding the date of the Treasury Yield in question is
to become effective, then the Treasury Yield shall be based upon the rate of
return of Treasury Constant Maturities for the length of time specified for the
most recent calendar week for which such publication has occurred. If no rate of
return for Treasury Constant Maturities is published for the specific length of
time specified, the Treasury Yield for such length of time shall be the weighted
average of the rates of return of Treasury Constant Maturities most nearly
corresponding to the length of the applicable period specified. If the
publishing of the rate of return of Treasury Constant Maturities is ever
discontinued, then the Treasury Yield shall be based upon the index which is
published by the Board of Governors of the U.S. Federal Reserve System in
replacement thereof or, if no such replacement index is published, the index
which, in Landlord's reasonable determination, most nearly corresponds to the
rate of return of Treasury Constant Maturities. In determining the aggregate
reasonable rental value pursuant to subparagraph+ (ii)(1)(B) above, the parties
hereby agree that, at the time Landlord seeks to enforce this remedy, all
relevant factors should be considered, including, but not limited to, (a)+ the
length of time remaining in the Term, (b)+ the then current market conditions in
the general area in which the Building is located, (c)+ the likelihood of
reletting the Premises for a period of time equal to the remainder of the Term,
(d)+ the net effective rental rates then being obtained by landlords for similar
type space of similar size in similar type buildings in the general area in
which the Building is located, (e)+ the vacancy levels in the general area in
which the Building is located, (f)+ current levels of new
<PAGE> 27
construction that will be completed during the remainder of the Term and how
this construction will likely affect vacancy rates and rental rates and (g)
inflation; or
(iii) Without terminating this Lease declare immediately due and
payable the sum of the following: (1) the present value (calculated using the
"Treasury Yield") of all Base Rent and Additional Rent due and coming due under
this Lease for the entire Remaining Term (as if by the terms of this Lease they
were payable in advance), plus (2) the cost of recovering and reletting the
Premises and all other expenses incurred by Landlord in connection with
Tenant's default, plus (3) any unpaid Base Rent. Additional Rent and other
rentals, charges, assessments and other sums owing by Tenant to Landlord under
this Lease or in connection with the Premises as of the date this provision is
invoked by Landlord, plus (4) interested in all such amounts from the date at
the Interest Rate, and Landlord may immediately proceed to distrain, collect,
or bring action for such sum, or may file a proof of claim in any bankruptcy of
insolvency proceedings to enforce payment thereof; provide, however, that such
payment shall not be deemed a penalty or liquidated damages, but shall merely
constitute payment in advance of all Base Rent and Additional Rent payable
hereunder throughout the Term, and provided further, however, that upon
Landlord receiving such payment, Tenant shall be entitled to receive from
Landlord all rents received by Landlord from other assignees, tenants and
subtenants on account of said Premises during the remainder of the Term
(provided that the monies to which Tenant shall so become entitled shall in no
event exceed the entire amount actually paid by Tenant to Landlord pursuant to
this subparagraph (iii), less all costs, expenses and attorneys' fees of
Landlord incurred but not yet reimbursed by Tenant in connection with
recovering and reletting the Premises; or
(iv) Without terminating this Lease, in its own name but as agent for
Tenant, enter into and upon and take possession of the Premises or any part
thereof. Any property remaining in the Premises may be removed and stored in a
warehouse or elsewhere at the cost of, and for the account of, Tenant without
Landlord being deemed guilty of trespass or becoming liable for any loss or
damage which may be occasioned thereby unless caused by Landlord's negligence.
Thereafter, Landlord may, but shall not be obligated to, lease to a third party
the Premises or any portion thereof as the agent of Tenant upon such terms and
conditions as Landlord may deem necessary or desirable in order to relet the
Premises. The remainder of any rentals received by Landlord from such reletting,
after the payment of any indebtedness due hereunder from Tenant to Landlord, and
the payment of any costs and expenses of such reletting, shall be held by
Landlord to the extent of and for application in payment of future rent owed by
Tenant, if any, as the same may become due and payable hereunder. If such
rentals received from such reletting shall at any time or from time to time be
less than sufficient to pay to Landlord the entire sums then due from Tenant
hereunder. Tenant shall pay any such deficiency to Landlord. Notwithstanding any
such reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for any such previous default provided same has not been
cured; or
(v) Without terminating this Lease, and with or without notice to
Tenant, enter into and upon the Premises and, without being liable for
prosecution or any claim for damages therefor, maintain the Premises and repair
or replace any damage thereto or do anything or make any payment for which
Tenant is responsible hereunder. Tenant shall reimburse Landlord immediately
upon demand for any expenses which Landlord incurs in thus effecting Tenant's
compliance under this Lease and Landlord shall not be liable to Tenant for any
damages with respect thereto; or
(vi) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant or property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same so
long as a Default exists under this Lease; or
(vii) With or without terminating this Lease, allow the Premises to
remain unoccupied and collect rent from Tenant as it come due; or
(viii) Pursue such other remedies as are available at law or equity.
<PAGE> 28
(b) If this Lease shall terminate as a result of or while there exists a
Default hereunder, any funds of Tenant held by Landlord may be applied by
Landlord to any damages payable by Tenant (whether provided for herein or by
law) as a result of such termination or default.
(c) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be a
bar to the maintenance of any subsequent actions or proceedings for the
recovery of such sum or sums so omitted.
(d) No agreement to accept a surrender of the Premises and no act or
omission by Landlord or Landlord's agents during the Term shall constitute an
acceptance or surrender of the Premises unless made in writing and signed by
Landlord. No re-entry or taking possession of the Premises by Landlord shall
constitute an election by Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant. No provision of this Lease shall
be deemed to have been waived by either party unless such waiver is in writing
and signed by the party making such waiver. Landlord's acceptance of Base Rent
or Additional Rent in full or in part following a Default hereunder shall not
be construed as a waiver of such Default. No custom or practice which may grow
up between the parties in connection with the terms of this Lease shall be
construed to waive or lessen either party's right to insist upon strict
performance of the terms of this Lease, without a written notice thereof to the
other party.
(e) If a Default shall occur, Tenant shall pay to Landlord, on demand,
all expenses incurred by Landlord as a result thereof, including reasonable
attorneys' fees, court costs and expenses actually incurred.
<PAGE> 29
OPTIONS ADDENDUM
Lease dated as of March 4, 1999, by and between
AMB Property, L.P., and Intelligent Systems for Retail, Inc.
A. Tenant shall have the option to extend the term hereof for two (2)
additional five (5) year periods (the "Option Terms") following the expiration
of the initial term (the "Initial Term"), by giving written notice of exercise
of such option as provided in Paragraph 16.6 of the Lease. The terms and
conditions of this Lease shall apply during each Option Term except for (i)
Base Rent which will be adjusted as provided in this Options Addendum and (ii)
the Property Management Reimbursement which shall be 1% of the Base Rent as
adjusted by this Option Addendum.
B. To exercise each Option, Tenant shall provide written notice to Landlord
not earlier than 270 days prior to the end of the Initial Term or First Option
Term, whichever is applicable, nor later than 180 days prior to the end of the
Initial Term or First Option Term, whichever is applicable. Failure of Tenant
to timely exercise its first Option shall terminate its second Option.
C. The monthly Base Rent for the First Option Term shall be adjusted by
multiplying $84,335 times the change, if any, in the Consumer Price Index of
the Bureau of Labor Statistics of the U.S. Department of Labor for All Urban
Consumers, U.S. City Average, all items (1982-1984 = 100), herein referred to
as the "CPI." The rent shall be adjusted by multiplying $84,335 times a
fraction, the denominator of which shall be the CPI of the calendar month most
recently published prior to adjustment, and the numerator of which shall be the
CPI published for the month of March 1999. The sum so calculated shall
constitute the new monthly Base Rent hereunder for each year of the First
Option Term, but in no event shall such new monthly Base Rent increase by less
than $8433.50 nor more than $16,867 as a result of such calculation.
D. The new Base Rent for each year of the Second Option Term shall be fixed
at the commencement of that Option Term and shall be ninety-five (95%) percent
of the fair market rental ("Fair Market Rental" as hereinafter defined) of the
Premises at the commencement date of the Second Option Term (the "Adjustment
Date"). Under no circumstances shall the monthly Base Rent for the Second
Option Term be less than the last month's Base Rent payable in the First Option
Term.
E. "Fair Market Rental" shall mean the rate being charged to similarly
situated tenants for comparable space in similar buildings in, and in the
immediate vicinity of the Northeast Metropolitan Atlanta area, with similar
amenities excluding from consideration the Tenant Improvements. Fair Market
Rental as of the Adjustment Date shall be determined by Landlord with written
notice (the "Notice of Option Term Rent") given to Tenant not later than thirty
(30) days following receipt of the Option Notice, subject to Tenant's right to
arbitration as hereinafter provided.
F. If Tenant disputes the amount claimed by Landlord as Fair Market Rental,
Tenant may require that Landlord submit the dispute to arbitration. Tenant
shall notify Landlord of its demand for arbitration in writing within fifteen
(15) days after service of the Notice of Option Term Rent. Tenant's demand for
arbitration shall include the designation by Tenant of its appointed
arbitrator, who shall be commercial real estate agent or broker with at least
five (5) years full-time experience who is familiar with the Fair Market Rental
of similar space in comparable buildings in the above-specified area.
G. Within ten (10) days of receipt of Tenant's demand for arbitration,
Landlord shall designate in writing its appointed arbitrator, who shall be
similarly qualified. Within ten (10) days thereafter, the two arbitrators shall
select a third, neutral arbitrator, who shall be similarly qualified and shall
have had no prior business or social relationship of any kind with either party.
H. Within thirty (30) days after the appointment of the neutral arbitrator,
each party arbitrator shall simultaneously submit to the neutral arbitrator its
proposed Fair Market Rent. The neutral arbitrator shall select the one proposal
which most closely approximates the neutral arbitrator's independent assessment
of the Fair Market Rental of the Premises. The arbitrator's authority is
limited to selecting one of the parties' proposed Fair Market Rental figures,
and s/he shall have no authority to set a compromise rental figure. The
decision of the arbitrator shall be final and binding on the parties. Each
party shall pay the costs and fees of its arbitrator, and shall share in the
costs and fees of the neutral arbitrator.
I. Failure on the part of Tenant to demand arbitration within fifteen (15)
days following receipt of the Notice of Option Term Rent from Landlord shall
bind Tenant to the Fair Market Rental as determined by Landlord. Should Tenant
elect to arbitrate and should the arbitration not have been concluded prior to
the Adjustment Date, Tenant shall pay the monthly rent to Landlord after the
Adjustment Date, adjusted to reflect the Fair Market Rental as Landlord has so
determined. If the amount of the Fair Market Rental as determined by
arbitration is greater than or less than Landlord's determination, then any
adjustment required to adjust the amount previously paid shall be made by the
appropriate party within ten (10) days after such determination of Fair Market
Rental.
<PAGE> 30
EXHIBIT A
[2935 SHAWNEE INDUSTRIAL WAY, SUWANEE, GA FLOOR PLAN]
<PAGE> 31
EXHIBIT B
MEMORANDUM OF LEASE TERM DATES
To: AMB PROPERTY, L.P.
c/o IDI Services Group, Inc.
3424 Peachtree Road, N.E., Suite 1500
Atlanta, Georgia 30326
Re: Lease dated March __, 1999 ("Lease") between AMB Property, L.P. a Delaware
Limited Partnership ("Landlord") and Intelligent Systems for Retail, Inc.,
a California corporation ("Tenant") concerning the Property described as
2935 Shawnee Industrial Way, in Gwinnett County, Georgia:
In accordance with the terms of the Lease, we wish to advise and/or confirm as
follows:
1) That the Premises have been accepted herewith by the Tenant as being
substantially complete in accordance with the Lease and that there is no
known deficiency in construction.
2) That the Tenant has possession of the Premises and acknowledges that under
the provisions of the Lease the Term of said Lease commenced on
____________, 1999 and ends on ______________, 2009, subject to the options
to extend contained in the Lease.
3) That in accordance with the subject Lease, Rent shall commence to accrue on
___________, 1999.
TENANT:
INTELLIGENT SYSTEMS FOR RETAIL, INC.
A California Corporation
By
-----------------------------------
Named Printed:
-----------------------
Title:
-------------------------------
Dated:
-------------------------------
Landlord: Tenant:
[SIG] [SIG]
<PAGE> 32
EXHIBIT C-1
AGREEMENT OF GENERAL CONTRACTOR
AMB Property, L.P., a Delaware limited partnership ("Landlord") has
entered into a lease with Intelligent Systems for Retail, Inc., a California
corporation ("Tenant"). As a material inducement to Landlord to allow Tenant to
construct tenant improvements in the Premises subject to the Lease,
__________________, the general contractor for Tenant, hereby certifies to and
agrees for the benefit of Landlord as follows: The general contractor is
working solely for and is the agent of the Tenant. The Landlord's contract and
agreement, i.e., the lease, is with the Tenant and not with the general
contractor. The Landlord has agreed to pay to Tenant a certain allowance in
accordance with the terms of the Lease but such allowance represents only a
portion of the estimated total cost of the improvements to be constructed for
Tenant by the general contractor. The general contractor will look solely to
the Tenant for payment under the contract between the Tenant and the general
contractor. The general contractor acknowledges that the Tenant is not the
agent of the Landlord for purposes of obtaining completion of the work
described in the contract between the Tenant and the general contractor and
that the general contractor has no claim against all or any portion of the
Tenant's allowance or any other funds or assets of Landlord unless and until
they are paid over to Tenant. Without limitation, the general contractor
acknowledges and agrees that the general contractor has no contract, express or
implied, with Landlord for the performance of the work that is subject to its
contract with Tenant and general contractor has no claim of lien against the
property of Landlord that will be improved by the work it will perform for
Tenant.
Executed this ____ day of ______________, 1999.
GENERAL CONTRACTOR:
------------------------------
Name of General Contractor
By:
---------------------------
Name:
----------------------
Title:
---------------------
<PAGE> 33
EXHIBIT C-2
AGREEMENT OF SUBCONTRACTOR
AMB Property, L.P., a Delaware limited partnership ("Landlord"), has
entered into a lease with Intelligent Systems for Retail, Inc., a California
corporation ("Tenant"). As a material inducement to Landlord to allow Tenant to
construct tenant improvements in the Premises subject to the Lease, __________
_______________, ("Subcontractor") hereby certifies to and agrees for the
benefit of Landlord as follows: The Subcontractor is working for and is the
agent of either ___________________ ("General Contractor") or the Tenant. The
Landlord's contract and agreement, i.e., the lease, is with the Tenant and not
with the General Contractor or Subcontractor. The Landlord has agreed to pay to
Tenant a certain allowance in accordance with the terms of the Lease but such
allowance represents only a portion of the estimated total cost of the
improvements to be constructed for Tenant by the General Contractor. The
Subcontractor will look to the Tenant or General Contractor for payment under
the contract between the General Contractor and Subcontractor. The
Subcontractor acknowledges that the Tenant is not the agent of the Landlord for
purposes of obtaining completion of the work described in the contract between
the Tenant and the General Contractor and that the Subcontractor has no claim
against all or any portion of the Tenant's allowance or any other funds or
assets of Landlord unless and until they are paid over to Tenant. Without
limitation, the Subcontractor acknowledges and agrees that the Subcontractor
has no contract, express or implied, with Landlord for the performance of the
work that is subject to its contract with General Contractor and has not claim
of lien against the property of Landlord that will be improved by the work it
will perform for Tenant.
Executed this _____ day of ____________, 1999.
CONTRACTOR:
------------------------------------
Name of Contractor
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
<PAGE> 34
EXHIBIT D
COUNTY RECORDER: )
RECORDING REQUESTED BY )
AND WHEN RECORDED RETURN TO: )
)
Lender )
Address 1 )
Address 2 )
)
)
LENDER: )
)
________________________________________________________________________________
CONSENT TO INSTALLATION AND REMOVAL OF PERSONAL PROPERTY
(LANDLORD)
THIS CONSENT TO INSTALLATION AND REMOVAL OF PERSONAL PROPERTY (this
"Consent"), dated _______________, is given by AMB Property, L.P., a Delaware
Limited Partnership ("Landlord") to ________________________, a California
corporation ("Lender"), to permit Lender to finance the acquisition of certain
personal property (the "Equipment") described in a Loan Agreement dated
_______________, by and between Lender and Intelligent Systems for Retail,
Inc., ("Borrower"). The Equipment includes all tenant improvements made to or
in the premises by Borrower as permitted by that certain "Industrial Single
Tenant Lease" dated as of March __, 1999 (the "Lease"), between Landlord and
Borrower respecting real property commonly known as 2935 Shawnee Industrial
Way, in Gwinnett County, Georgia, and more particularly described in ANNEX A
hereto (the "Premises"), whether or not said tenant improvements are installed
pursuant to or described as "Personal Property" in the Lease or otherwise, and
whether or not said tenant improvements are affixed to the Premises. The
Equipment does not include and Lender shall have no rights as to the interior
offices, electrical distribution system, HVAC, dock levelers and fire
suppression system ("Excluded Property"). The Excluded Property is not subject
to this Consent.
Landlord, Lender and Borrower hereby agree as follows:
1. The Equipment may (but shall not be required to) be affixed to the
Premises and is and shall remain personal property, and not be a fixture,
notwithstanding the manner is which it is attached or affixed to the Premises.
2. The title to the Equipment shall remain solely in Borrower, subject
to the first priority security interest of Lender. Landlord agrees, regardless
of the time, place or manner of any filings, that Lenders' interests, security
interests, and liens in the Equipment are superior to that of Landlord.
3. Lender may at any time prior to the termination of the Lease enter
upon the Premises, upon at least 10 days written notice to Landlord, to remove
the Equipment at any time whenever it is necessary to protect its interest.
Lender shall promptly repair any damage to the Premises caused by said removal,
except painting and redecorating. Lender shall indemnify, protect, defined and
hold Landlord harmless from any liability or claims by Borrower or third
parties against Landlord arising out of said removal.
If Landlord's elects to terminate the Lease because of a default by Borrower in
the performance by Borrower of its obligations under the Lease, Lender shall
have a period ("Removal Period") of 90 days from the date Lender receives a
notice of Landlord's termination election ("Default Notice") to cause the
Equipment to be removed from the Premises. During such 15-day period, Lender
shall not be obligated to pay rent. Lender shall have a period of 15 days from
receipt of a Default Notice to deliver irrevocable written notification to
Landlord ("Removal Notice") of whether or not Lender shall exercise its rights,
but not the obligation, exercisable in its sole discretion, to cause the
Equipment to be removed from the Premises. Lender shall cause any damage to the
Premises caused by removal (except painting and redecorating) to be repaired on
or before the last day of the Removal Period. If Lender elects to remove the
Equipment it shall pay to Landlord with the Removal Notice an amount equal to
one month's rent payable under the Lease. Thereafter, until Lender has removed
all the Equipment and repaired all damages caused by such removal, Lender shall
pay on the same day each month thereafter an amount equal to one month's rent
payable under the Lease. If Lender does not timely deliver a Removal Notice to
Landlord with the rent required by this paragraph 3 or, if having delivered
such Renewal Notice and rent, fails to complete the removal within the Removal
Period or pay each month the rent as herein required (unless prohibited from
doing so by order of a court of competent jurisdiction, whether as a result of
a bankruptcy proceeding or otherwise), Landlord may remove and dispose of the
Equipment in any manner it deems appropriate, wholly without liability to
Lender for any damage to the Equipment or any impairment of Lender's security
interest. Landlord shall be under no obligation to store the Equipment.
1
<PAGE> 35
4. Landlord agrees to send Lender a copy of any written notice of
default sent Borrower concerning Borrower's obligations to Landlord with
respect to the Premises. Lender shall have the right, but not the obligation,
to cure any defaults of Borrower. Landlord agrees that so long as such defaults
are cured within the time periods set forth in the Lease, the Lease will remain
in full force and effect against Borrower; provided that if the Borrower's
default includes a failure to pay rent. Lender shall have a period of 10 days
from delivery of a Default Notice to cure a monetary default. Landlord agrees
that Borrower may, upon notice to Landlord, assign the Lease to Lender without
Landlord's consent provided that Lender assumes in writing the obligations of
Borrower under the Lease. Lender may thereafter assign or sublease the Premises
with Landlord's consent (which will not be unreasonably withheld), provided
that (i) any subsequent assignee shall assume in writing the obligations of
Borrower under the Lease; (ii) the use of the Premises by the assignee or
sublessee is permitted by use provisions in the Lease and does not violate any
applicable government rule, ordinance or regulation; (iii) the assignee or
sublessee is in Lender's reasonable business judgment of reputable business
character and, after taking into consideration the security for transferee's
performance, prospectively capable of performing its financial obligations
under the Lease and (iv) the assignee assumes the obligations of the Borrower
under the Lease. Landlord acknowledges that any transferee with a financial
condition not materially worse than that of Borrower on the date hereof
satisfies (iii) above. Any assignment or subletting by Lender shall not be
subject to the bonus rent or Landlord rent sharing provisions of Article 12 of
the Lease; provided, however, that such bonus rent provisions will apply once
Lender has received an amount equal to the aggregate accelerated total of all
amounts due it from Borrower, net of costs and expenses.
5. Landlord waives any present or future right, title, lien, interest,
or right of levy or distraint for rent in and to the Equipment for as long as
Lender shall own or have a security interest in it, notwithstanding the manner
in which it is attached or affixed to the Premises or other real property.
6. Landlord agrees that any note secured now or hereafter by a deed of
trust on, or mortgage of, the Premises will be endorsed to indicate that the
mortgage securing said note does not extend to the Equipment.
7. Landlord warrants and represents that (i) the Lease is its only
agreement with Borrower relating to the Premises; (ii) has all requisite power
and authority to execute and perform this Consent; (iii) it is the sole owner
of the Landlord's interest under the Lease; (iv) it has no knowledge that any
default has occurred under the Lease; (v) it is not aware of any litigation,
adverse claim, or condemnation proceeding respecting the Premises; (vi) the
Lease is in full force and effect; (vii) the Premises are not subject to any
mortgage or other security interest in favor of any person which has not
executed a consent to installation and removal acceptable to Lender and (viii)
Landlord has all necessary power and authority to enter hereinto and perform
its obligations hereunder, and no consents of others are required that have not
been obtained.
8. Lender shall have a claim to any eminent domain award attributable to
the Equipment, whether or not paid to Landlord.
9. Landlord, shall during the Removal Period and subject to the payment
of rent as provided in Paragraph 3 hereof permit Lender to conduct an ordinary
liquidation auction of the Equipment on the Premises. Such auction shall be
subject to Landlord's reasonable requirements.
10. Landlord acknowledges that it has reviewed Borrower's plan of
business and operations and is satisfied that operation of said business and
operations as stated therein shall not be a violation of the Lease.
11. This agreement is binding upon the undersigned's heirs, devises,
legatees, successors and assigns and inures to the benefit of Lender, its
successors and assigns.
12. Except to the extent expressly set forth herein, nothing herein shall
be construed as compromising any of Landlords rights under the Lease, including
without limitation, its rights and remedies in the event of a default by
Borrower in the performance of its covenants under the Lease.
13. Upon satisfaction of Borrower's obligations to Lender or expiration
of the Removal Period, Lender shall execute, in recordable form, and deliver to
Landlord any document, including a quit claim deed to the Premises, reasonably
required by Landlord to remove from the public records the lien of this Consent
on the Premises.
14. All notices required or permitted by this Consent shall be in writing
and sent by certified or registered mail or U.S. Postal Service Express Mail
(or by nationally recognized overnight courier provider with signed receipts),
with postage prepaid, or by facsimile transmission during normal business
hours, and shall be deemed sufficiently given if served in a manner specified
in this Paragraph 14. The addresses noted adjacent to a Party's signature on
this Consent shall be that Party's address for delivery or mailing of notices.
Any Party may be written
2
<PAGE> 36
notice to the others specify a different address for notice purposes. A copy of
all notices required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such party or parties at such addresses as Landlord
may from time to time hereafter designate by written notice to the other
Parties.
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. Notices delivered by United
States Express Mail or nationally recognized overnight courier that guarantees
next day delivery shall be deemed given 24 hours after delivery of the same to
the United States Postal Service or courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon telephone or facsimile confirmation of receipt of the
transmission thereof, provided a copy is also delivered via hand or overnight
delivery or certified mail. If notice is received on a Saturday or a Sunday or
a legal holiday, it shall be deemed received on the next business day.
IN WITNESS WHEREOF, Landlord, Lender and Borrower have executed this
Consent as of the date and year first written above.
LANDLORD LENDER
By: _______________________ By: _______________________
Name: _____________________ Name: _____________________
Title: ____________________ Title: ____________________
Telephone number: Telephone number:
Facsimile number: Facsimile number:
Address: Address:
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
BORROWER
By: _______________________
Name: _____________________
Title: ____________________
Telephone number:
Facsimile number:
Address:
___________________________
___________________________
___________________________
CONSENT OF MORTGAGEE:
The undersigned ____________, being the mortgage of the Premises, does hereby
consent to all of the foregoing:
[PUT IN SIGNATURE BLOCK]
NOTARY ACKNOWLEDGMENTS REQUIRED
3
<PAGE> 37
ANNEX A
LEGAL DESCRIPTION OF PREMISES
4
<PAGE> 38
EXHIBIT E
COUNTY RECORDER: )
RECORDING REQUESTED BY )
AND WHEN RECORDED RETURN TO: )
)
)
Address 1 )
Address 2 )
)
)
)
)
________________________________________________________________________________
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS NONDISTURBANCE AGREEMENT (the "Agreement") is made and entered into
this ______ day of _______________, 1999, by and between INTELLIGENT SYSTEMS
FOR RETAIL, INC., a California Corporation ("Tenant") and _____________________,
a ____________________ ("Lender") and AMB PROPERTY L.P., a Delaware limited
partnership, ("Landlord").
RECITALS
WHEREAS, Landlord executed a lease dated as of March __, 1999 in favor of
Tenant (the "Lease"), a memorandum of which may be recorded simultaneously
herewith covering a certain Demised Premises therein described located on a
parcel of real estate, a legal description of which is attached hereto and
incorporated herein by this reference as Exhibit "A," (said parcel of real
estate and the Demised Premises being sometimes collectively referred to herein
as the "Property"), and
WHEREAS, Landlord has executed a _________________________________ (the
"Mortgage") dated _________________, and recorded on ____________________ at
Volume ___, page ___, of the _________________ Records of ____________________
County, State of _______________, in favor of Lender, payable upon the terms and
conditions described therein; and
WHEREAS, it is a condition of said loan that said Mortgage shall
unconditionally be and remain at all times a lien or charge upon the Property,
prior and superior to the Lease and to the leasehold estate created thereby; and
WHEREAS, the parties hereto desire to assure Tenant's possession and
control of the Property under the Lease upon the terms and conditions therein
contained;
NOW, THEREFORE, for and in consideration of the mutual covenants and
premises herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and confessed by the parties
hereto, the parties hereto do hereby agree as follows:
AGREEMENT:
1 The Lease is and shall be subject and subordinate to the Mortgage,
and to all renewals, modifications, consolidations, replacements and
extensions thereof, and to all future advances made thereunder.
2 Should Lender become the owner of the Property, or should the
Property be sold by reason of foreclosure or other proceedings
brought to enforce the Mortgage which encumbers the Property, or
should the Property be transferred by deed in lieu of foreclosure, or
should any portion of the Property be sold under a trustee's sale,
the Lease shall continue in full force and effect as a direct lease
between the then owner of the Property covered by the Mortgage and
Tenant, upon, and subject to, all of the terms, covenants and
conditions of the Lease for the balance of the term thereof
remaining, including any extensions therein provided. Tenant does
hereby agree to attorn to Lender or to any such owner as its
landlord, and Lender hereby agrees that it will accept such
attornment.
3 Notwithstanding any other provision of this Agreement, Lender shall
not be (a) liable for any default of any landlord under the Lease
(including Landlord), except that Lender agrees to cure any default
of Landlord that is continuing as of the date Lender forecloses the
Property within thirty (30) days from the date Tenant delivers
written notice to Lender of such continuing default, unless such
default is of such a nature to reasonably require more than thirty
(30) days to cure, and then Lender shall be permitted such additional
time as is reasonably necessary to effect such cure, provided
Landlord diligently and continuously proceeds to cure such default;
(b) subject to any offsets or defenses which have accrued prior to
the date of foreclosure, unless Tenant shall have delivered to Lender
written notice of the default which gave rise to such offset or
defense and permitted Lender the same right to cure such default as
permitted
1
<PAGE> 39
Landlord under the Lease; (c) bound by any Rent that Tenant may have paid
under the Lease more than one (1) month in advance; (d) bound by any
amendment or modification of the Lease hereafter made without Lender's
prior written consent; (e) responsible for the return of any security
deposit delivered to Landlord under the Lease and not subsequently
received by Lender.
4 If Lender sends written notice to Tenant to direct its Rent payments under
the Lease to Lender instead of Landlord, then Tenant agrees to follow the
instructions set forth in such written instructions and to deliver Rent
payments to Lender; however, Landlord and Lender agree that Tenant shall
be credited under the Lease for any Rent payments sent to Lender pursuant
to such written notice.
5 All notices which may or are required to be sent under this Agreement
shall be in writing and shall be sent by first-class certified U.S. Mail,
postage prepaid return receipt requested, and sent to the party at the
address appearing below or such other address as any party shall hereafter
inform the other party by written notice given as set forth above.
TENANT:
Intelligent Systems for Retail, Inc.
1241 E. Hillsdale Blvd., Suite 210
Foster City, CA 94404
ATTENTION: David S. Rock
WITH A COPY TO:
Judith J. Rentschler
Rentschler & Trust
989 E. Hillsdale Blvd., Suite 160
Foster City, CA 94404
All notices delivered as set forth above shall be deemed effective three (3)
days from the date deposited in the U.S. mail.
6 Said Mortgage shall not cover or encumber and shall not be construed as
subjecting in any manner to the lien thereof any of Tenant's Improvements
(other then interior office, electrical distribution system, file
suppression system and HVAC) or trade fixtures, furniture, equipment or
other personal property at any time placed or installed in the Demised
Premises. In the event the Property or any part thereof shall be taken
for public purposes by condemnation or transfer in lieu thereof or the
same are damaged or destroyed, the rights of the parties to any
condemnation award or insurance proceeds shall be determined and
controlled by the applicable provisions of the Lease.
7 This Agreement shall inure to the benefit of and be binding upon the
parties hereto, their successors in interest, heirs and assigns and any
subsequent owner of the Property secured by the Mortgage.
8 Should any action or proceeding be commenced to enforce any of the
provisions of this Agreement or in connection with its meaning, the
prevailing party in such action shall be awarded, in addition to any other
relief it may obtain, its reasonable costs and expenses, not limited to
taxable costs, and reasonable attorneys' fees.
9 Tenant shall not be joined as a party/defendant in any action which may be
instituted or taken by reason or under the default of the performance of
the terms, covenants, conditions or agreements set forth in the Mortgage.
(SIGNATURES ON NEXT PAGE)
2
<PAGE> 40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
LENDER: _________________________
By ______________________________
Name Printed: ___________________
Title: __________________________
TENANT: INTELLIGENT SYSTEMS FOR
RETAIL, INC., a California Corporation
By ______________________________
Name Printed: ___________________
Title: __________________________
LANDLORD:
AMB PROPERTY, L.P.,
a Delaware limited partnership
By ______________________________
Name Printed: ___________________
Title: __________________________
3
<PAGE> 41
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
4
<PAGE> 42
EXHIBIT F
ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("CERTIFICATE"), dated as of _________,
19__, is executed by INTELLIGENT SYSTEMS FOR RETAIL, INC. ("TENANT") to confirm
the status of the Lease described below.
RECITALS
A. The real property subject hereto is known and described as ___________
___________, located in the City of ___________________, County of___________,
State of California (the "PROPERTY").
B. Tenant and Landlord have entered into that certain Lease Agreement,
dated as of ___________ (together with all amendments, modifications,
supplements, guarantees and restatements thereof, the "LEASE"), for a portion
of the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
NOW, THEREFORE, Tenant certifies and represents as follows:
I. LEASE.
Attached hereto as Exhibit 1 is a true, correct and complete copy of the Lease,
including the following amendments, modifications, supplements, guarantees and
restatements thereof, which together represent all of the amendments,
modifications, supplements, guarantees and restatements thereof: _______________
________________________________________________________________________________
_________________. (If none, please state "None.")
II. LEASED PREMISES.
Pursuant to the Lease, Tenant leases those certain premises (the "LEASED
PREMISES") consisting of approximately _______________ (_________) rentable
square feet within the Property, as more particularly described in the Lease.
In addition, pursuant to the terms of the Lease, Tenant has the [non-exclusive]
right to use [____ parking spaces/the parking area] located on the Property
during the term of the Lease. [Cross out any inapplicable portions of the
preceding sentence.]
III. LEASE IN FULL FORCE AND EFFECT.
The Lease has been duly authorized, executed and delivered by Tenant, is in
full force and effect, has not been terminated, and constitutes a legally valid
instrument, binding and enforceable against Tenant in accordance with its
terms, subject only to applicable limitations imposed by laws relating to
bankruptcy and creditor's rights. Tenant has accepted possession and is
currently occupying the Leased Premises.
IV. COMPLETE AGREEMENT.
The Lease constitutes the complete agreement between Landlord and Tenant for
the Leased Premises and the Property, except as modified by the Lease
amendments noted above (if any), has not been modified, altered or amended.
V. LEASE TERM.
The term of the Lease commenced on ________________ and ends on _____________,
subject to the following options to extend: ____________________________________
____________________________________________ (If none, please state "None.")
VI. PURCHASE RIGHTS.
Tenant has no option, right of first refusal, right of first offer, or other
right to acquire or purchase all or any portion of the Leased Premises or all
or any portion of, or interest in, the Property, except as follows: ____________
___________________________________________________________________________. (If
none, please state "None.")
1
<PAGE> 43
VII. RIGHTS OF TENANT.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of the
Leased Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other than
as Tenant under the Lease.
VIII. RENT AND OTHER CHARGES.
(a) The obligation to pay rent under the Lease commenced on
__________. The rent under the Lease is current, and Tenant is not in default
in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the amount
of ______________________ Dollars ($_______) per month. Tenant has not received
and is not, presently, entitled to any abatement, refunds, rebates, concessions
or forgiveness of rent or other charges, free rent, partial rent, or credits,
offsets or reductions in rent, except as follows:
--------------------------------------------------------------------------------
------------------------------------------------------------. (If none, please
state "None").
(c) Tenant's estimated share of Building operating expenses (insurance,
real estate taxes and administrative and overhead expenses) is ___________
percent (___%) and of Project operating expenses is _________________ percent
(___%), and together these operating expenses are currently being paid at the
rate of __________________ Dollars ($________) per month, payable
to:___________________.
(d) There are no existing defenses or offsets against rent due or to
become due under the terms of the Lease, and there presently is no default or
other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, nor is there a state
of facts which with the passage of time or the giving of notice or both could
ripen into a default on the part of Tenant, or to the best knowledge of Tenant,
could ripen into a default on the part of Landlord under the Lease, except as
follows:
--------------------------------------------------------------------------------
---------------------------------------------------------. (If none, please
state "None.")
IX. SECURITY DEPOSIT.
The amount of Tenant's security deposit presently held by Landlord under the
Lease is ____________________ Dollars ($_________). No portion of the security
deposit has been applied to rent or other charges.
X. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is
_________________ Dollars ($________), covering the period from _____________
to ________________.
XI. INSURANCE.
All insurance, if any, required to be maintained by Tenant under the Lease is
presently in effect.
XII. PENDING ACTIONS.
There is not pending or, to the knowledge of Tenant, threatened against or
contemplated by the Tenant, any petition in bankruptcy, whether voluntary or
otherwise, any assignment for the benefit of creditors, or any petition seeking
reorganization or arrangement under the federal bankruptcy laws or those of any
state.
XIII. TENANT IMPROVEMENTS.
As of the date of this Certificate, to the best of Tenant's knowledge, Landlord
has performed all obligations required of Landlord pursuant to the Lease; no
offsets, counterclaims, or defenses of Tenant under the Lease exist against
Landlord; and no events have occurred that, with the passage of time or the
giving of notice, would constitute a basis for offsets, counterclaims, or
defenses against Landlord, except as follows: __________________________
--------------------------------------------------------------------------------
--------------------------------------------. (If none, please state "None.")
XIV. ASSIGNMENTS BY LANDLORD.
Tenant has received no notice of any assignment, hypothecation or pledge of the
Lease or rentals under the Lease by Landlord. Tenant hereby consents to an
assignment of the lease and rents to be executed by Landlord to Buyer and
acknowledges that said assignment does not violate the provisions of the Lease.
2
<PAGE> 44
XV. ASSIGNMENTS BY TENANT.
Tenant has not sublet or assigned the Leased Premises or the Lease or any
portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Premises. The address for notices to be sent
to Tenant is as set forth in the Lease.
The statements in this Estoppel Certificate may be relied on by the landlord,
buyer, and any lender who extends credit in connection with the purchase of the
building.
Tenant has executed this Certificate as of the date first written above by the
person named below, who is duly authorized to do so.
TENANT: INTELLIGENT SYSTEMS FOR RETAIL, INC.
a California Corporation
By ______________________________
Name Printed: ___________________
Its: ____________________________
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<PAGE> 45
EXHIBIT G
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Judith J. Rentschler, Esq.
Rentschler & Tursi
989 E. Hillsdale Boulevard
Suite 160
Foster City, California 94404
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into as of March ___, 1999,
by and between AMB PROPERTY, L.P., a Delaware Limited Partnership ("Landlord")
and INTELLIGENT SYSTEMS FOR RETAIL, INC., a California Corporation ("Tenant").
Landlord hereby leases to Tenant, and Tenant leases to Landlord, on the
terms and conditions set forth in that certain Industrial Single Tenant Lease
as amended (the "Lease") by and between Landlord and Tenant, all terms and
conditions of which are hereby incorporated into this Memorandum of Lease by
reference as though fully set forth herein, of that property commonly known and
described as 2935 Shawnee Industrial Way, in Gwinnett County, Georgia, and more
particularly described on Annex A attached hereto and incorporated herein by
this reference.
This Memorandum of Lease shall in no way modify the terms and/or
conditions of the Lease.
Dated: March __, 1999 LESSOR:
AMB PROPERTY, L.P.,
A Delaware Limited Partnership
By: AMB PROPERTY
CORPORATION,
A Maryland Corporation
By: /s/ LUIS A. BELMONTE
---------------------------
Luis A. Belmonte
Vice President
Dated: March __, 1999 LESSEE:
INTELLIGENT SYSTEMS FOR
RETAIL, INC.,
A California Corporation
By: /s/ LOUIS H. BORDERS
---------------------------
Louis H. Borders
President and CEO
<PAGE> 46
ANNEX A
[Insert Legal Description of Property]