Exhibit-10.68


 


 


INDUSTRIAL LEASE
AGREEMENT


 


 


THIS LEASE AGREEMENT (the
“Lease”) is made as of the “Lease Date” (as defined in Section 37 herein) by
and between 11640 HARRELL, LLC, a Delaware limited liability company
(“Landlord”), and SYRATECH CORPORATION, a Delaware corporation (“Tenant”) (the
words “Landlord” and “Tenant” to include their respective legal
representatives, successors and permitted assigns where the context requires or
permits).


 


 


W I T N E S S E T
H:


 


1.             Basic Lease Provisions.  The following constitute the basic provisions of this Lease:


 


	
  (a)

  	
  Demised Premises
  Address:

  	
  11640 Harrel Street

  
	
   

  	
   

  	
  Mira Loma, California

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  Demised Premises Square
  Footage:  As of the Lease Date, the
  Demised Premises will contain approximately 886,052 square feet, which is the
  same as the Building Square Footage. 
  Accordingly, on the Lease Date, this Lease will cover 100% of the
  leasable area of the Building.  The
  Demised Premises Square Footage will reduce in accordance with
  Section 2.1 of this Lease and may also reduce in accordance with
  Sections 2.2 and 2.3 of this Lease.

  
	
   

  	
   

  
	
  (c)

  	
  Building Square
  Footage:  approximately 886,052 sq.
  ft.

  
	
   

  	
   

  
	
  (d)

  	
  [INTENTIONALLY OMITTED]

  
	
   

  	
   

  
	
  (e)

  	
  Monthly Base Rent
  Installments (subject to reduction in accordance with Sections 2.1, 2.2
  and 2.3 and increase in accordance with Section 4.1):

  
	
   

  	
   

  
	
   

  	
  Lease Months one (1)
  through six (6)

  	
  $256,955.08

  
	
   

  	
   

  	
  (plus any prorated
  amount for any partial month at the beginning of the Term)

  
	
   

  	
   

  	
   

  
	
   

  	
  Lease Months seven (7)
  through eighteen (18)

  	
  $186,774.50

  
	
   

  	
   

  	
   

  
	
   

  	
  Lease Months nineteen
  (19) through sixty-six (66)

  	
  $122,974.50

  
	
   

  	
   

  
	
   

  	
   

  
	
  (f)

  	
  Lease Commencement
  Date:

  	
  The Lease Date.

  
	
   

  	
   

  
	
  (g)

  	
  Base Rent Commencement
  Date:

  	
  The Lease Commencement
  Date.

  
	
   

  	
   

  
	
  (h)

  	
  Expiration Date:  The date which is sixty-six (66) Lease
  Months after the Lease Commencement Date (subject to adjustment in accordance
  with Section 3).

  
	
   

  	
   

  
	
  (i)

  	
  Primary Term:  Sixty-six (66) Lease Months after the
  Lease Commencement Date (subject to adjustment in accordance with
  Section 3).

  
	
   

  	
   

  
	
  (j)

  	
  Tenant’s Operating Expense
  Percentage:  As of the Lease
  Commencement Date, the Tenant’s Operating Expense Percentage will be
  100%.  As the Demised Premises Square
  Footage reduces over the Term in accordance with the provisions of this
  Lease, the Tenant’s Operating Expense Percentage will be computed, as of any
  particular date, by dividing the Demised Premises Square Footage in effect on
  that date by the Building Square Footage.

  
	
   

  	
   

  
	
  (k)

  	
  Security Deposit:  One Million Nine Hundred Thousand Dollars
  ($1,900,000.00),   payable by Tenant as of the Lease Date, by delivery to Landlord
  of a letter of credit in the manner required by Section 5.  As provided in Section 5, the amount
  of the Security Deposit will, so long as no Event of Default (as defined in
  Section 22) has occurred and is then continuing, be reduced concurrently
  with reduction of Base Rent resulting from reduction of the Demised Premises
  Square Footage pursuant to Sections 2.1, 2.2, 2.3.

  
							



 

















 


	
  (l)

  	
  Permitted Use:  Storage, warehousing and distribution of
  seasonal and non-seasonal giftware, home decorative items, picture frames,
  decorative storage items, table-top items including crystal, glass, stainless
  steel flatware and serving pieces, lighting and lawn and garden décor and
  furniture pieces and general office use related thereto.

  
	
   

  	
   

  
	
  (m)

  	
  Address for notice:

  
	
   

  	
   

  
	
   

  	
  Landlord:

  	
  11640 HARRELL, LLC

  
	
   

  	
   

  	
  c/o Industrial
  Developments International, Inc.

  
	
   

  	
   

  	
  3424 Peachtree Road,
  N.E.

  
	
   

  	
   

  	
  Suite 1500

  
	
   

  	
   

  	
  Atlanta, Georgia 30326

  
	
   

  	
   

  	
  Attention:  Mr. Timothy J. Gunter

  
	
   

  	
   

  	
  Telephone:  (404) 479-4000

  
	
   

  	
   

  	
  Fax:  (404) 231-3968

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tenant:

  	
  SYRATECH CORPORATION

  
	
   

  	
   

  	
  175 McClellan Highway

  
	
   

  	
   

  	
  East Boston, MA  02128

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to the
  attention of

  
	
   

  	
   

  	
  the Legal Department at
  that

  
	
   

  	
   

  	
  same address

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (n)

  	
  Address for rental payments:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11640 HARRELL, LLC

  
	
   

  	
   

  	
  c/o IDI Services Group,
  LLC

  
	
   

  	
   

  	
  P.O. Box 281464

  
	
   

  	
   

  	
  Atlanta, Georgia
  30384-1464

  



 


2.             Demised Premises.  For and in consideration of the rent hereinafter reserved and the
mutual covenants hereinafter contained, Landlord does hereby lease and demise
unto Tenant, and Tenant does hereby hire, lease and accept, from Landlord all
upon the terms and conditions hereinafter set forth the following premises,
referred to as the “Demised Premises”, as outlined on Exhibit A attached
hereto and incorporated herein:  as of
the Lease Date, approximately 886,052 square feet of space (approximately 6050
square feet of which is office space) and an unfinished, second story mezzanine
(“Mezzanine”) (which may, at the option and expense of Tenant, be completed and
utilized by Tenant in the manner provided in Section 18(c)), having an
address as set forth in Section 1(a), located within an existing building (the
“Building”), which contains a total of approximately 886,052 square feet and is
located at 11640 Harrel Street, Mira Loma, California; provided, however, that
the Demised Premises Square Footage will reduce in accordance with
Section 2.1 and may reduce in accordance with Sections 2.2 and
2.3.  The Building is located on a
parcel of land (“Land”) containing approximately 43.58 acres.  On the Lease Date, Tenant will be entitled
to utilize all available parking spaces now located on the Land for passenger
vehicles.  When the Demised Premises
reduces to 644,050, pursuant to Sections 2.1 or 2.2, Tenant will be entitled to
utilize up to 300 parking spaces for passenger vehicles.   When the Demised Premises reduces to
424,050, pursuant to Sections 2.1 or 2.2, Tenant will be entitled to utilize up
to 250 parking spaces for passenger vehicles. 
When the Demised Premises reduces to 644,050 pursuant to Sections 2.1 or
2.2, Tenant will have the right (i) at the expense of Tenant, to install a
fence at the rear of the Building to separate the truck court which is adjacent
to the reduced Demised Premises from the truck court adjacent to the portion of
the Building just vacated by Tenant (and thereby making the truck court areas
exclusive to the adjoining portions of the Building) and (ii) after
installation of such a fence, to exclusive use of the curb cut on Wineville
Road which serves the southern side of the Building and the westernmost curb
cut on Harrel Street which serves the front of the Building.  Landlord may, at its option and expense,
elect to install such a fence in order to separate the truck court being used
by Tenant from the truck court to be used by other tenants in the
Building.  After installation of the
fence, by Landlord or Tenant, Landlord will have the right to grant to other
tenants in the Building the exclusive right to use the two easternmost curb
cuts on Harrel Street.  If, after
installation of the fence and while this Lease remains in effect, Landlord
leases space in the Building which has been vacated by Tenant in accordance
with this Lease, Landlord will include in such lease an acknowledgment by the
tenant of the exclusive rights granted to Tenant in the Wineville Road curb cut
and the westernmost curb cut on Harrel Street. 
After the Demised Premises reduces to 424,050, the fence separating the
truck court will be moved westerly, at the expense and by the party which first
installed the


 


2

















 


fence, to coincide as
closely as possible with the location of the demising wall within the reduced
Demised Premises, thereby adjusting the exclusive truck court areas.  Tenant shall have the right to stage and
store shipping containers only in the portion of the truck court area on the
south side of the Building which immediately adjoins the portion of the
Building which is occupied by Tenant.  Likewise, tenants in portions of the Building vacated by Tenant
pursuant to this Lease will be granted the right to park trailers or stage and
store shipping containers only the truck court area on the south side of the
Building which immediately adjoins the portion of the Building which is
occupied by those tenants.


 


2.1           Automatic Reductions in Demised
Premises Square Footage.     The
Demised Premises Square Footage will, except as hereinafter provided in this
Section 2.1, automatically reduce as follows (subject, however, to other
reductions which may first occur pursuant to Sections 2.2 and 2.3):


 


(a)           On the first day of the seventh (7th)
Lease Month, the Demised Premises will automatically reduce to the westernmost
644,050 square feet in the Building; and


 


(b)           On the first day of the nineteenth
(19th) Lease Month, the Demised Premises will automatically reduce
to the westernmost 424,050 square feet in the Building.


 


The automatic reductions
in the Demised Premises Square Footage effected by this Section 2.1 are
not intended to be cumulative with the reductions which may occur pursuant to
Sections 2.2 or 2.3 prior to the dates specified in this Section 2.1.  If a reduction occurs first under
Section 2.2 or 2.3, there will be no reduction pursuant to this Section 2.1.


 


Neither of the reductions
in the Demised Premises Square Footage contemplated by this Section 2.1
will occur, regardless of the date, unless (i) Tenant has fully and
finally vacated the portion of the Demised Premises Square Footage which is being
removed from the Demised Premises by virtue of the reduction and (ii) the
portion of the Demised Premises being vacated is then Broom Clean (as
hereinafter defined).  The term “Broom
Clean”, as used in this Lease, shall mean, as to any portion of the Demised
Premises which is being vacated by Tenant pursuant to any right or duty
expressly provided  in this Lease, that
(1) such space has been fully and completely vacated by Tenant, i.e.
Tenant has completely removed all personal property, inventory, racking, trade
fixtures, equipment and machinery, (2) all damage to the space caused by such
removal has been repaired (including the grinding to floor level of any bolts
or other metal left from removal of racking and filling of holes caused by such
removal with appropriate material), (3) after completion of such removal
and repairs, such space must otherwise be in the same condition as on the Lease
Date, normal wear and tear alone excepted 
and (4) the space must be free of trash and debris and be “broom
clean”.  Landlord will inspect the
Demised Premises on the scheduled reduction date (or earlier if Tenant has
vacated prior to that date and given written notice to Landlord).  If, on the date specified for a reduction of
the Demised Premises Square Footage, the portion to be vacated is still
occupied or used by Tenant or is not Broom Clean, the effective date of the
reduction will automatically be postponed until the date on which Tenant
completely vacates and the space is Broom Clean, as verified by Landlord after
receipt of written notice from Tenant that such conditions have been
satisfied.  Nothing in this
Section 2.1 is intended to imply or create any right of Tenant to hold
over, beyond the prescribed date for vacating, in any space in the Building
which is to be vacated by Tenant in accordance with any provision of this
Lease.  Any such holdover by Tenant
which occurs without the prior written consent of Landlord will be a material
breach by Tenant of its obligations under this Lease and will entitle Landlord
to give notice to Tenant pursuant to Section 22 of this Lease.  As of the effective date of either reduction
of the Demised Premises Square Footage pursuant to this Section 2.1, the
Demised Premises will, for all purposes under this Lease, including, without
limitation, the calculation of Monthly Base Rent Installments and the Tenant’s
Operating Expense Percentage, no longer include the portion of the Demised
Premises Square Footage vacated by Tenant. 
Reductions in the Monthly Base Rental Installments pursuant to this
Section 2.1 will be calculated at the rate of $.29 per square foot per
month.


 


2.2           Reduction of Demised Premises
Square Footage at Option of Tenant.


 


(a)           Tenant shall have the right and
option, in accordance with this Section 2.2(a) and with respect to the
period extending through the end of the sixth (6th) Lease Month, to
reduce the Demised Premises Square Footage to the westernmost 644,050 square
feet of the Building, effective as of any day of the Term from and after the
first day of the fourth (4th) Lease Month and extending through the
last day of the sixth (6th) Lease Month (after which time the
Demised Premises will automatically reduce to the westernmost 644,050 square
feet of the Building in accordance with Section 2.1).  No reduction of the Demised Premises Square
Footage may occur pursuant to this Section 2.2(a) prior to the first day
of the fourth (4th) Lease Month. 
If Tenant desires to exercise its option to reduce the Demised Premises
Square Footage pursuant to this Section 2.2(a), Tenant must give to
Landlord written notice of such exercise not less than sixty (60) calendar days
preceding the date on which Tenant desires the reduction to be effective (which
may not, in any event, be earlier than the first day of the fourth (4th)
Lease Month); provided, however, that, as a condition of the reduction being
effective, the portion of the Demised Premises being vacated must be Broom
Clean.  Landlord will inspect the
Demised Premises on the date specified in the exercise notice for reduction of
the Demised Premises Square Footage (or earlier if Tenant has vacated prior to
that date and given written notice to Landlord).  If, on the date specified in the exercise notice for reduction of
the Demised Premises Square Footage, the portion to be vacated is still
occupied or used by


 


3

















 


Tenant or is not Broom
Clean, the effective date of the reduction will automatically be postponed
until the date on which Tenant completely vacates and the space is Broom Clean,
as verified by Landlord after receipt of written notice from Tenant that such
conditions have been satisfied.  Nothing
in this Section 2.2(a) is intended to imply or create any right of Tenant
to hold over, beyond the prescribed date for vacating, in any space in the
Building which is to be vacated by Tenant in accordance with any provision of
this Lease.  Any such holdover by Tenant
which occurs without the prior written consent of Landlord will be a material
breach by Tenant of its obligations under this Lease and will entitle Landlord
to give notice to Tenant pursuant to Section 22 of this Lease.  As of the effective date of the reduction of
the Demised Premises Square Footage pursuant to this Section 2.2(a), the
Demised Premises will, for all purposes under this Lease, including, without
limitation, the calculation of Monthly Base Rent Installments and the
calculation of the Tenant’s Operating Expense Percentage, no longer include the
portion of the Demised Premises Square Footage vacated by Tenant.  Reductions in the Monthly Base Rental
Installments pursuant to this Section 2.2(a) will be calculated at the
rate of $.29 per square foot per month.


 


(b)           Tenant shall have the right and
option, in accordance with this Section 2.2(b) and with respect to the
period beginning on the first (1st) day of the seventh (7th)
Lease Month and extending through the end of the eighteenth (18th)
Lease Month, to reduce the Demised Premises Square Footage to the westernmost
424,050 square feet of the Building, effective as of any day of the Term from
and after the first day of the seventh (7th) Lease Month and
extending through the last day of the eighteenth (18th) Lease Month
(after which time the Demised Premises will automatically reduce to the
westernmost 424,050 square feet of the Building in accordance with
Section 2.1).  No reduction of the
Demised Premises Square Footage may occur pursuant to this Section 2.2(a)
prior to the first day of the seventh (7th) Lease Month.  If Tenant desires to exercise its option to
reduce the Demised Premises Square Footage pursuant to this
Section 2.2(b), Tenant must give to Landlord written notice of such
exercise not less than sixty (60) calendar days preceding the date on which
Tenant desires the reduction to be effective (which may not, in any event, be
earlier than the first day of the seventh (7th) Lease Month);
provided, however, that, as a condition of the reduction being effective, the
portion of the Demised Premises being vacated must be Broom Clean.  Landlord will inspect the Demised Premises
on the date specified in the exercise notice for reduction of the Demised
Premises Square Footage (or earlier if Tenant has vacated prior to that date
and given written notice to Landlord). 
If, on the date specified in the exercise notice for reduction of the
Demised Premises Square Footage, the portion to be vacated is still occupied or
used by Tenant or is not Broom Clean, the effective date of the reduction will
automatically be postponed until the date on which Tenant completely vacates
and the space is Broom Clean, as verified by Landlord after receipt of written
notice from Tenant that such conditions have been satisfied.  Nothing in this Section 2.2(b) is
intended to imply or create any right of Tenant to hold over, beyond the
prescribed date for vacating, in any space in the Building which is to be
vacated by Tenant in accordance with any provision of this Lease.  Any such holdover by Tenant which occurs
without the prior written consent of Landlord will be a material breach by
Tenant of its obligations under this Lease and will entitle Landlord to give
notice to Tenant pursuant to Section 22 of this Lease.  As of the effective date of the reduction of
the Demised Premises Square Footage pursuant to this Section 2.2(b), the
Demised Premises will, for all purposes under this Lease, including, without
limitation, the calculation of Monthly Base Rent Installments and the
calculation of the Tenant’s Operating Expense Percentage, no longer include the
portion of the Demised Premises Square Footage vacated by Tenant.  Reductions in the Monthly Base Rental
Installments pursuant to this Section 2.2(b) will be calculated at the
rate of $.29 per square foot per month.


 


2.3           Reduction of Demised Premises
Square Footage at Option of Landlord. 
Landlord shall have the right and option, in accordance with this
Section 2.3 and with respect to the period extending through the end of
the sixth (6th) Lease Month, to reduce the Demised Premises Square
Footage to the westernmost 644,050 square feet of the Building, effective as of
any day of the Term from and after the first day of the fifth (5th) Lease Month
and extending through the last day of the sixth (6th) Lease Month
(after which time the Demised Premises will automatically reduce to the westernmost
644,050 square feet of the Building in accordance with Section 2.1).  No reduction of the Demised Premises Square
Footage may occur pursuant to this Section 2.3 prior to the first day of
the fifth (5th) Lease Month.  If
Landlord desires to exercise its option to reduce the Demised Premises Square
Footage pursuant to this Section 2.3, Landlord must give to Tenant written
notice of such exercise not less than one hundred  (120) calendar days preceding the date on which Landlord desires
the reduction to be effective (which may not, in any event, be earlier than the
first day of the fifth (5th) Lease Month).  If Landlord gives such notice, Tenant shall, not later than the
one hundred twentieth (120th) calendar day following receipt of the
notice, completely vacate all of the Demised Premises except the westernmost
644,050 square feet thereof and leave the vacated portion in Broom Clean
condition.  Landlord will inspect the
Demised Premises on the date specified in its exercise notice for reduction of
the Demised Premises Square Footage (or earlier if Tenant has vacated prior to
that date and given written notice to Landlord).  If, on the date specified in the exercise notice for reduction of
the Demised Premises Square Footage, the portion to be vacated is still
occupied or used by Tenant or is not Broom Clean, the effective date of the
reduction will automatically be postponed until the date on which Tenant
completely vacates and the space is Broom Clean, as verified by Landlord after
receipt of written notice from Tenant that such conditions have been satisfied;
provided, however, that such failure by Tenant shall constitute a failure by
Tenant to perform a material obligation under this Lease and will entitle
Landlord to give notice to Tenant pursuant to Section 22 of this
Lease.  As of the effective date of the
reduction of the Demised Premises Square Footage pursuant to this
Section 2.3, the Demised Premises will, for all purposes under this Lease,
including, without limitation, the calculation of Monthly Base Rent


 


4

















 


Installments and the
calculation of the Tenant’s Operating Expense Percentage, no longer include the
portion of the Demised Premises Square Footage vacated by Tenant.  Reductions in the Monthly Base Rental
Installments pursuant to this Section 2.2 will be calculated at the rate
of $.29 per square foot per month.


 


2.4           Relocation of the Demised Premises.  Subject to all the terms and conditions of
this Section 2.4, Landlord will have the right (“Relocation Right”), but
no obligation, at any time during the fourth (4th) through the
eighteenth (18th) Lease Months, to relocate Tenant from the
Building, in the manner hereinafter provided, to Relocation Space (as that term
is hereinafter defined) within a five-mile radius from the Land.  In exercising its rights under this
Section 2.4, Landlord may relocate Tenant from the Building (a) as to
the entire Demised Premises at one time, (b) after the Demised Premises
has been reduced to 644,050 square feet, only with respect to the easternmost
220,000 square feet (“Second Reduction Space”) of the remaining Demised
Premises (thereby leaving Tenant in the westernmost 424,050 feet of the
Building) or (c) if Landlord has first exercised its right under the foregoing
item (b), then with respect to the remaining 424,050 square feet of the
Demised Premises.  The term “Relocation
Space”, as used in this Lease, shall mean space which (1) is comparable in
size and general quality to the Demised Premises (except that the Mezzanine,
even if finished by Tenant in accordance with Section 18(c), need not be
part of the Relocation Space in any way), (2) has an amount of office
space such that the aggregate amount of office space in the Relocation Space
and the Demised Premises (to the extent not being relocated) is not less than
6000 square feet (which may be allocated, in such manner as Tenant reasonably
deems necessary for the conduct of its business, between two buildings if, as
permitted by this Section 2.4, the entire Demised Premises is relocated
and the Relocation Space is located in two buildings), (3) has an ESFR
sprinkler system, (4) has a clear height of not less than thirty (30)
feet; (5)  must be available for the installation by Tenant of equipment
and trade fixtures for a period of ninety (90) days without payment of any rent
by Tenant for the Relocation Space (provided that the landlord for the
Relocation Space may, during such 90-day period, also be performing whatever
work may be required of such landlord to prepare the Relocation Space for
occupancy by Tenant and both parties will reasonably cooperate to coordinate
their activities), (6)  has parking spaces for passenger vehicles in the
same number specified in Section 2 (except that if the Relocation Space is
located in two buildings, the larger space must contain 250 passenger vehicle
spaces allocated to Tenant and the smaller space must contain 125 passenger
vehicle spaces allocated to Tenant), (7) has the same ratio of truck docks
to total square footage as the Demised Premises as of the Lease Date (provided
that Relocation Space need not be cross-docked) , except that if the Relocation
Space is located in two buildings, the larger space must contain forty-five
(45) dock doors available for use by Tenant and the smaller space must contain
twenty-three (23) dock doors available for use by Tenant) and (8) if
located in two buildings, must provide, for the larger space, not less than
forty (40) striped spaces for storage of shipping containers (only one container
per space) and, for the smaller space, not less than twenty (20) striped spaces
for storage of shipping containers (only one container per space).  The requirements set forth in the foregoing
items (1) through (8) are hereinafter sometimes called the “Relocation
Requirements”.  The Relocation Right,
which may not be exercised more than twice, is subject to the conditions and
limitations that (i) as to any exercise of the Relocation Right, Landlord
must give to Tenant written notice of the intention of Landlord to exercise the
Relocation Right not less than four (4) months prior to the date on which
Landlord desires for the relocation to have been completed, (ii) no
relocation may occur during any period during the term of this Lease between
August 1 and January 31, inclusive (“Closed Period”), (iii) the
financial terms of the lease or leases (collectively, “Relocation Lease”) which
will cover the Relocation Space, considered in the aggregate, must not be less
favorable in any material respect than the terms of this Lease (considered on a
prorata basis if less than all of the Demised Premises is being relocated) and
the provisions of the Relocation Lease (including, without limitation, the
expiration of the term) will otherwise conform substantially to the terms of
this Lease, (iv) so long as the Demised Premises contains more than
424,050 square feet, the Relocation Space may be located in two different
buildings, so long as one of the two spaces contains not less than 377,000
square feet, and (v) Landlord will pay to Tenant up to $540,000.00 of
Relocation Expenses (as hereinafter defined) in the manner hereinafter
provided; provided, however, that, with respect to the westernmost 424,050
square feet of the Demised Premises located in the Building, Tenant acknowledges
and agrees that Relocation Space offered in substitution for that portion of
the Demised Premises will be deemed substantially the same, in terms of size,
so long as the Relocation Space contains not less than 377,000 square feet.   Tenant agrees that Tenant will, as
part of any Relocation Lease, agree to provide a security deposit, in the form
of a letter of credit, for six months of gross rent.  If Landlord desires to exercise the Relocation Right, Landlord
will give written notice to Tenant which will (1) specify the proposed
date on which the relocation is to be completed (which may not be any sooner
than four (4) months following the date of the notice and may not require
relocation during the Closed Period) and (2) describe in reasonable detail
the proposed Relocation Space and the terms of the Relocation Lease.  Tenant shall, within ten (10) calendar days
after receipt of such notice, give written notice to Landlord indicating
whether or not Tenant considers the proposed Relocation Space and terms of the
Relocation Lease to be in compliance in all material respects with the
requirements of this Section 2.4. 
If Tenant considers such proposal not to be in compliance with this
Section 2.4 in some material respect, the response of Tenant will specify
the reasons for non-compliance in reasonable detail and also specify the
changes would cause the proposal to be in compliance.  Within ten (10) calendar days after Landlord (or other person or
entity if the Relocation Space is not owned by Landlord) and Tenant reach
agreement on the terms of the Relocation Leases, Landlord will submit to Tenant
(or use a good faith effort to cause another owner to submit) the proposed form
of the Relocation Lease. If Landlord is the owner of all the Relocation Space, then
Landlord and Tenant will negotiate the terms thereof until agreement is reached
and the


 


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Relocation Lease is
executed and delivered.  If Landlord is
not the only owner of the Relocation Space, Tenant agrees to negotiate in good
faith with such other owner and to provide to Landlord copies of all drafts of
all proposed leases and all written comments provided either by Tenant or the
other owner in the process of negotiating the proposed Relocation Lease.  All drafts and comments provided by Tenant
will be sent to Landlord simultaneously with delivery to the other owner.  Drafts and comments from the other owner
will be provided not later than the business day next following receipt by
Tenant.  The Relocation Lease (or a
separate written agreement between Landlord and Tenant if Landlord does not own
any of the Relocation Space) will provide that, when Tenant vacates the Demised
Premises (or, if applicable, the Second Reduction Space) and accepts delivery of
the premises demised by the Relocation Lease, this Lease will terminate and
Landlord will pay to Tenant up to, but not more than, $540,000.00 (“Relocation
Expenses”), as follows:


 


(x)            If the Relocation Space is located
in a building which is owned by Landlord, an affiliate of Landlord or an entity
in which Landlord holds an ownership interest, up to 37.26 cents per square
foot of Relocation Space shall be expended, under the terms of the Relocation
Lease, to cause the Relocation Space to meet the Relocation Requirements;


 


(y)           If the Relocation Space is not
located in a building which is owned by Landlord, an affiliate of Landlord or
an entity in which Landlord holds an ownership interest, Landlord will make
available to Tenant up to 37.26 cents per square foot of Relocation Space for
the purpose of causing the Relocation Space to meet the Relocation Requirement;
and


 


(z)            Up to a maximum of $300,000.00 shall
be paid to Tenant in reimbursement of reasonable moving expenses actually
incurred by Tenant in the process of moving from the Demised Premises to the
Relocation Space.  The reimbursement
will be paid by Landlord to Tenant within ten (10) business days after
(i) Tenant has vacated the portion of the Demised Premises being relocated
and (ii) has received from Tenant reasonable written documentation
supporting the requested reimbursement. 
If Landlord exercises the Relocation Right twice, in accordance with
this Section 2.4, there shall be no requirement that the moving expenses
incurred by Tenant for the first Relocation Space bear any particular
proportion to the total amount available for reimbursement, but the total
amount available will never exceed $300,000.00 under any circumstances.


 


Tenant will be obligated
to accept Relocation Space and the related Relocation Lease if all the
Relocation Space and the Relocation Lease meets the requirements of this
Section 2.4.  If Landlord and
Tenant disagree whether or not proposed Relocation Space or a proposed
Relocation Lease satisfies the requirements of this Section 2.4, such
disagreement must be resolved using the Dispute Resolution Procedure (as
defined in Section 40), with real estate brokers licensed in the State of
California and having not less than ten (10) years experience selling and
leasing property in Riverside County, California, comparable to the Building
acting as Officials (as defined in Section 40), all other means of
resolution of any such disagreement being hereby waived and released by each of
Landlord and Tenant.  Accordingly, a
disagreement between Landlord and Tenant regarding compliance of proposed
Relocation Space or any proposed Relocation Lease with the requirement of this
Section 2.4 may not be the basis of any alleged default or breach of this
Lease by either Landlord or Tenant until a decision is rendered with respect to
such disagreement under the Dispute Resolution Procedure.  Any failure by either Landlord or Tenant to
abide by the outcome of the Dispute Resolution Procedure will constitute a material
breach of this Lease.


 


3.             Term.  To
have and to hold the Demised Premises for a term (the “Term”) commencing on the
Lease Commencement Date and terminating on the Expiration Date as set forth in
Section 1(h).  The term “Lease Month”,
as used in this Lease, shall mean each full calendar month during the Term;
provided that if the Lease Commencement Date is a day other than the first day
of a calendar month, the first Lease Month shall include the partial calendar
month between the Lease Date and the first day of the following calendar month.  As a result, if the Lease Commencement Date
is a day other than the first day of a calendar month, the Monthly Base Rent
Installment for the first Lease Month of the Term shall be calculated on a pro
rata, per diem basis, for the period between the Lease Commencement Date and
the last day of the first (1st) Lease Month.


 


4.             Base Rent. 
Tenant shall pay to Landlord at the address set forth in Section 1(n),
as base rent for the Demised Premises, commencing on the Base Rent Commencement
Date and continuing throughout the Term in lawful money of the United States,
the amounts set forth in Section 1(e) (the “Base Rent”), payable in advance,
without demand and without abatement, reduction, set-off or deduction, on the
first day of each calendar month during the Term.  If the Base Rent Commencement Date shall fall on a day other than
the first day of a calendar month, the Base Rent shall be apportioned pro rata
on a per diem basis (i) for the period between the Base Rent Commencement Date
and the first day of the following calendar month (which pro rata payment shall
be due and payable on the Base Rent Commencement Date), and (ii) for the last
partial month of the Term, if applicable. 
No payment by Tenant or receipt by Landlord of rent hereunder shall be
deemed to be other than on account of the amount due, and no endorsement or
statement on any check or any letter accompanying any check or payment of rent
shall be deemed an accord and satisfaction, and Landlord may accept such check
as payment without prejudice to Landlord’s right to recover the balance of such
installment or payment of rent or pursue any other remedies available to
Landlord.


 


6

















 


4.1           Increase in Base Rent.  The Base Rent will increase as of the first
day of the thirty-seventh (37th) Lease Month, as follows:


 


For the first thirty-six
(36) Lease Months, the rental rate per square foot per month for Base Rent is
$.29. On the first day of the thirty-seventh (37th) Lease Month, the
rental rate per square foot per month, and the corresponding Base Rent and
Monthly Base Rent Installments, shall be increased by either (1) the
percentage increase in the CPI (as hereinafter defined) from the month in which
the Lease Date occurs to the thirty-sixth (36th) Lease Month or
(2) the Minimum Rate of Increase (as hereinafter defined), from the Lease
Date through the last day of the thirty-sixth (36th) Lease Month,
whichever is greater; provided further, however, that the increase may not
exceed the Maximum Rate of Increase (as hereinafter defined).  The increase in Base Rent as of the first
day of the thirty-seventh (37th ) Lease Month shall be determined as
follows:  (i) multiply $.29 per square
foot per month by a fraction, the denominator of which is the CPI for the month
in which the Lease Date occurs and the numerator of which is the CPI for the
thirty-sixth (36th) Lease Month and (ii) multiply the resulting
product times the Demised Premises Square Footage in effect on the first day of
the thirty-seventh (37th) Lease Month, which will produce the
Monthly Base Rent Installment for the thirty-seventh (37th) through
the sixty-sixth (66th) Lease Month; provided, however, that the Base
Rent will increase by the Minimum Rate of Increase, regardless of the CPI, and
will not increase at a rate greater than the Maximum Rate of Increase,
regardless of the CPI.  If the CPI for
thirty-sixth (30th) Lease Month is not published as of the first day
of the thirty-first (31st) Lease Month, then Tenant shall continue
to pay the Base Rent due from Tenant as of the end of the thirtieth (30th)
Lease Month until the index necessary to perform the calculation described
above is published and Landlord is able to calculate the revised amount of Base
Rent due from Tenant.  Upon the
submission of such calculation from Landlord, Tenant shall thereafter pay the
adjusted Base Rent.  Tenant shall also
pay within thirty (30) days after such calculation the difference between what
Tenant has paid in Base Rent for the year in question and what Tenant would
have paid, had the adjustment in question been made and Base Rent at the
adjusted rate paid as of the first day of the thirty-first (31st)
Lease Month.


 


For the purposes of this
Section 4.1,  “CPI” shall mean the
Consumer Price Index published by the Bureau of Labor Statistics of the United
States Department of Labor for All Urban Consumers (CPI-U). U.S. City Average,
All Items Index (1982-84=100).  If the
CPI as now published shall be revised or cease to be compiled and published
during the Term, then the Bureau of Labor Statistics shall be requested to
furnish a statement converting the CPI to a figure that would be comparable to
another index published by the Bureau of Labor Statistics and such other index
shall be used in computing the increase in Base Rent in accordance with this
Section 4.1.  Should the parties
not be able to secure such appropriate conversion or adjustment, they shall
agree on some other index serving the same purpose to adjust the Base
Rent.  If Landlord and Tenant are unable
to agree on another index for a period exceeding thirty (30) days, an
alternative index will be selected using the Dispute Resolution Procedure.  For the purposes of this Section 4.1,
the term “Minimum Rate of Increase” will mean three percent (3%) per annum, on
a non-compounded basis, for the period of time in question.  For the purposes of this Section 4.1,
the term “Maximum Rate of Increase” will mean six percent (6%) per annum, on a
non-compounded basis, for the period of time in question.


 


 


5.             Security Deposit.


 


5.1           General.  Upon Tenant’s execution of this Lease,
Tenant will deliver to Landlord a letter of credit, which meets the
requirements set forth below, in the sum set forth in Section 1(k) (the
“Security Deposit”), as security for the full and faithful performance by
Tenant of each and every term, covenant and condition of this Lease.  The acceptance by Landlord of the Security
Deposit delivered by Tenant shall not render this Lease effective unless and
until Landlord shall have executed and delivered to Tenant a fully executed
copy of this Lease.  To the extent that
any portion of the Security Deposit may ever be held by Landlord in cash, the
Security Deposit may be commingled with Landlord’s other funds or held by
Landlord in a separate interest bearing account, with interest paid to
Landlord, as Landlord may elect.  In the
event that Tenant is in default under this Lease, Landlord may retain the
Security Deposit for the payment of any sum due Landlord or which Landlord may
expend or be required to expend by reason of Tenant’s default or failure to
perform; provided, however, that any such retention by Landlord
shall not be or be deemed to be an election of remedies by Landlord or viewed
as liquidated damages, it being expressly understood and agreed that Landlord
shall have the right to pursue any and all other remedies available to it under
the terms of this Lease or otherwise. 
In the event all or any portion of the Security Deposit is so retained
by Landlord, Tenant shall, within five (5) days of demand therefor from
Landlord, replenish the Security Deposit to the full amount set forth in
Section 1(k).  In the event that Tenant
shall comply with all of the terms, covenants and conditions of this Lease, the
Security Deposit shall be returned to Tenant within thirty (30) days after the
later of (a) the Expiration Date or (b) the date that Tenant delivers
possession of the Demised Premises to Landlord.  In the event of a sale of the Building, Landlord shall have the
right to transfer the Security Deposit to the purchaser, and upon acceptance by
such purchaser, Landlord shall be released from all liability for the return of
the Security Deposit.  Tenant shall not
assign or encumber the Security Deposit, and neither Landlord nor its
successors or assigns shall be bound by any such assignment or
encumbrance.  The letter of credit
required by this Section shall be issued by a bank having, at all times during
the Term, an office in the continental United States, having a creditworthiness
reasonably acceptable


 


7

















 


to Landlord, shall be
irrevocable and unconditional except for a requirement that Landlord execute
and deliver a certificate stating either that an Event of Default has occurred
and is continuing under this Lease or that the expiry date of the letter of
credit will occur in less than thirty (30) days and the Tenant has not
delivered cash in substitution for the letter of credit, shall be expressly
transferable by Landlord (without cost to Landlord) to any person or entity who
succeeds to the interest of Landlord under the Lease, shall permit multiple and
partial drawings, shall contain a so-called “evergreen” provision so that the
letter of credit will be renewed automatically for one year extension terms unless
the issuing bank gives not less than thirty (30) days written notice that the
letter of credit will not be renewed and shall otherwise be in a form
reasonably acceptable to Landlord. The letter of credit, which shall be issued
not more frequently than annually, shall have an expiration date which is not
less than one year following the date of issue; provided that if a letter of
credit is in effect during the last twelve months of the Term, that letter of
credit must have an expiration date which is not less than thirty (30) calendar
days after the Expiration Date.  If
Landlord receives notice from the issuer of a letter of credit that the letter
of credit will not be renewed, Tenant must, within five (5) business days after
Landlord provides Tenant with a copy of such notice, deliver to Landlord either
a substitute letter or credit or cash in the amount of the Security
Deposit.  If Tenant fails so to deliver
either a new letter of credit or cash, Landlord shall have the right to present
the Letter of Credit for payment whether or not an Event of Default has
occurred.  If an Event of Default has
not occurred, then Landlord will hold the proceeds of the Letter of Credit as
though the Security Deposit had been delivered in cash.


 


5.2           Reduction in Security Deposit.  As the Demised Premises Square Footage is
reduced in accordance with the provisions of this Lease, the amount of the
Security Deposit will (so long as no Event of Default has occurred and is then
continuing) likewise be reduced so that, as each reduction of the Demised
Premises Square Footage occurs, the amount of the Security Deposit will be an
amount of money calculated by multiplying six (6) times the sum of (i) the
reduced Monthly Base Rent Installment and (ii) the Monthly Expense Amount
(as hereinafter defined).  The term
“Monthly Expense Amount”, as used in the preceding sentence, shall mean the
monthly payment of Operating Expenses which is being paid by Tenant immediately
after occurrence of the relevant reduction in the Demised Premises Square
Footage.  When the Security Deposit
reduces in accordance with this Section 5.2, Landlord will, so long as no
Event of Default has occurred and is then continuing, release to Tenant within
thirty (30) calendar days thereafter the amount of the reduction.  If the Security Deposit is being held in
cash, Landlord shall release the reduced amount by payment in cash to
Tenant.  If the Security Deposit is then
being held in the form of a letter of credit, Landlord will accept an amendment
of the letter of credit or substitution of a new letter of credit to reflect
the reduction.  Tenant will never, under
any circumstances, be entitled to a reduction in the amount of any letter of
credit being held by Landlord if an Event of Default has occurred and is then
continuing, irrespective of any reduction in the Demised Premises Square
Footage.


 


 


6.             Operating Expenses and Additional Rent.


 


(a)           Tenant agrees to pay as Additional
Rent (as defined in Section 6(b) below) its proportionate share of Operating
Expenses (as hereinafter defined). 
“Operating Expenses” shall be defined as all reasonable expenses
actually incurred by Landlord for operation, repair, replacement and
maintenance as necessary to keep the Building and the common areas, driveways,
and parking areas associated therewith (collectively, the “Building Common
Area”) fully operational and in good order, condition and repair, including but
not limited to, utilities for the Building Common Area, expenses associated
with the driveways and parking areas (including sealing and restriping, and
trash removal), roof (but only with respect to routine maintenance thereof and
not including any cost incurred by Landlord to replace the roof or any other
expenditure on the roof which would be classified as a capital expenditure
under generally accepted accounting principles), security systems, fire
detection and prevention systems, lighting facilities, landscaped areas
(provided that Landlord may not include in Operating Expenses the cost of any
material upgrade of the landscaping in place as of the Lease Date), walkways,
painting and caulking (to the extent required during the Term as part of proper
maintenance of the Building, and not any painting which Landlord may undertake
solely for cosmetic purposes or as part of any general refurbishment of the
Building for marketing or leasing purposes), directional signage, curbs,
drainage strips, sewer lines, all charges assessed against or attributed to the
Building pursuant to any applicable easements, covenants, restrictions, agreements,
declaration of protective covenants or development standards, property
management fees (subject to the limitation hereinafter specified), all real
property taxes and special assessments imposed upon the Building, the Building
Common Area and the land on which the Building and the Building Common Area are
constructed (on an accrual basis, without regard for the date or dates on which
payments of such real property taxes may actually be due), all costs of
insurance paid by Landlord with respect to the Building and the Building Common
Area (including, without limitation, earthquake coverage and commercially
reasonable deductibles), and costs of improvements to the Building and the
Building Common Area required by any law, ordinance or regulation applicable to
the Building and the Building Common Area generally (and not because of the
particular use of the Building or the Building Common Area by Tenant or any
other tenant of the Building, with such costs being borne exclusively by Tenant
or such other tenant, as applicable), which cost shall be amortized on a
straight line basis over the useful life of such improvement, as reasonably
determined by Landlord.  Operating
Expenses shall not include expenses for the costs of any maintenance and repair
required to be performed by Landlord at its own expense under
Section (10)(b).  Further,
Operating Expenses shall not include the costs for capital improvements unless
such costs are incurred for the purpose of causing a material decrease in the
Operating


 


8

















 


Expenses of the Building
or the Building Common Area or are incurred with respect to improvements made
to comply with laws, ordinances or regulations as described above.  The proportionate share of Operating Expenses
to be paid by Tenant shall be a percentage of the Operating Expenses based upon
the proportion that the square footage of the Demised Premises bears to the
total square footage of the Building (such figure referred to as “Tenant’s
Operating Expense Percentage” and set forth in Section 1(j)); provided that, as
to management fees, Tenant shall pay Landlord the management fees directly
attributable to the Rent (as hereinafter defined) payable hereunder with
respect to the Demised Premises, but not to exceed 1.5% of the Rent, and not
Tenant’s Operating Expense Percentage of the management fees payable on the
entire Building.  Notwithstanding the
foregoing, Landlord shall have the right to make a reasonable adjustment in
Tenant’s proportionate share of individual components of Operating Expenses if
Landlord can reasonably demonstrate that Tenant’s Operating Expense Percentage,
when applied to such component, does not equitably allocate to Tenant its share
of said component of Operating Expenses in light of either Tenant’s particular
use or manner of use of the Demised Premises or the nature and extent of any
improvements to the Demised Premises installed by Tenant during the Term in
accordance with this Lease.  Any disagreement
between Landlord and Tenant with respect to any such special allocation shall
be resolved using the Dispute Resolution Procedure, with real estate brokers
licensed in the State of California and having not less than ten (10) years
experience selling and leasing property in Riverside County, California,
comparable to the Building, acting as Officials.  Prior to or promptly after the beginning of each calendar year
during the Term, Landlord shall estimate the total amount of Operating Expenses
to be paid by Tenant during each such calendar year and Tenant shall pay to
Landlord one-twelfth (1/12) of such sum on the first day of each calendar month
during each such calendar year, or part thereof, during the Term.  Within a reasonable time after the end of
each calendar year, Landlord shall submit to Tenant a statement of the actual
amount of Operating Expenses for such calendar year, and the actual amount owed
by Tenant, and within thirty (30) days after receipt of such statement, Tenant
shall pay any deficiency between the actual amount owed and the estimates paid
during such calendar year, or in the event of overpayment, Landlord shall
credit the amount of such overpayment toward the next installment of Operating
Expenses owed by Tenant or remit such overpayment to Tenant if the Term has expired
or has been terminated and no Event of Default exists hereunder.  The obligations in the immediately preceding
sentence shall survive the expiration or any earlier termination of this Lease.  If the Lease Commencement Date shall fall on
other than the first day of the calendar year, and/or if the Expiration Date
shall fall on other than the last day of the calendar year, Tenant’s
proportionate share of the Operating Expenses for such calendar year shall be
apportioned prorata.


 


(b)           Any amounts required to be paid by
Tenant hereunder (in addition to Base Rent) and any charges or expenses
incurred by Landlord on behalf of Tenant under the terms of this Lease shall be
considered “Additional Rent” payable in the same manner and upon the same terms
and conditions as the Base Rent reserved hereunder except as set forth herein
to the contrary (all such Base Rent and Additional Rent being referred to
collectively herein as “Rent”).  Any
failure on the part of Tenant to pay such Additional Rent when and as the same
shall become due shall entitle Landlord to the remedies available to it for
non-payment of Base Rent.  Tenant’s
obligations for payment of Additional Rent shall begin to accrue on the Lease
Commencement Date regardless of the Base Rent Commencement Date.


 


(c)           If applicable in the jurisdiction
where the Demised Premises are located, Tenant shall pay and be liable for all
rental, sales, use and inventory taxes or other similar taxes, if any, on the
amounts payable by Tenant hereunder levied or imposed by any city, state,
county or other governmental body having authority, such payments to be in
addition to all other payments required to be paid Landlord by Tenant under the
terms of this Lease.  Such payment shall
be made by Tenant directly to such governmental body if billed to Tenant, or if
billed to Landlord, such payment shall be paid concurrently with the payment of
the Base Rent, Additional Rent, or such other charge upon which the tax is
based, all as set forth herein.


 


7.             Use of Demised Premises.


 


(a)           The Demised Premises shall be used
for the Permitted Use set forth in Section 1(l) and for no other purpose.


 


(b)           Tenant will permit no liens to attach
or exist against the Demised Premises, and shall not commit any waste.


 


(c)           The Demised Premises shall not be
used for any illegal purposes, and Tenant shall not allow, suffer, or permit
any vibration, noise, odor, light or other effect to occur within or around the
Demised Premises that could constitute a nuisance or trespass for Landlord or
any occupant of the Building or an adjoining building, its customers, agents,
or invitees.  Upon notice by Landlord to
Tenant that any of the aforesaid prohibited uses are occurring, Tenant agrees
to promptly remove or control the same.


 


(d)           Tenant shall not in any way violate
any law, ordinance or restrictive covenant affecting the Demised Premises, and
shall not in any manner use the Demised Premises so as to cause cancellation
of, prevent the use of, or increase the rate of, the fire and extended coverage
insurance policy required hereunder. 
Landlord makes no (and does hereby expressly disclaim any) covenant,
representation or warranty as to the Permitted Use being allowed by or being in
compliance with any applicable laws,


 


9

















 


rules, ordinances or
restrictive covenants now or hereafter affecting the Demised Premises, and any
zoning letters, copies of zoning ordinances or other information from any
governmental agency or other third party provided to Tenant by Landlord or any
of Landlord’s agents or employees shall be for informational purposes only,
Tenant hereby expressly acknowledging and agreeing that Tenant shall conduct
and rely solely on its own due diligence and investigation with respect to the
compliance of the Permitted Use with all such applicable laws, rules,
ordinances and restrictive covenants and not on any such information provided
by Landlord or any of its agents or employees.


 


(e)           In the event insurance premiums
pertaining to the Demised Premises, the Building, or the Building Common Area,
whether paid by Landlord or Tenant, are increased over the least hazardous rate
available due to the nature of the use of the Demised Premises by Tenant,
Tenant shall pay such additional amount as Additional Rent.


 


8.             Insurance.


 


(a)           Tenant covenants and agrees that from
and after the Lease Commencement Date or any earlier date upon which Tenant
enters or occupies the Demised Premises or any portion thereof, Tenant will
carry and maintain, at its sole cost and expense, the following types of
insurance, in the amounts specified and in the form hereinafter provided for:


 


(i)            Liability insurance in the
Commercial General Liability form (including Broad Form Property Damage and
Contractual Liabilities or reasonable equivalent thereto) covering the Demised
Premises and Tenant’s use thereof against claims for bodily injury or death,
property damage and product liability occurring upon, in or about the Demised
Premises, such insurance to be written on an occurrence basis (not a claims
made basis), to be in combined single limits amounts not less than
$3,000,000.00 and to have general aggregate limits of not less than
$10,000,000.00 for each policy year. 
The insurance coverage required under this Section 8(a)(i) shall, in
addition, extend to any liability of Tenant arising out of the indemnities
provided for in Section 11 and, if necessary, the policy shall contain a
contractual endorsement to that effect.


 


(ii)           Insurance covering (A) all of the
items included in the leasehold improvements constructed in the Demised
Premises by or at the expense of Landlord (collectively, the “Improvements”),
including but not limited to demising walls and the heating, ventilating and
air conditioning system and (B) Tenant’s trade fixtures, merchandise and
personal property from time to time in, on or upon the Demised Premises, in an
amount not less than one hundred percent (100%) of their full replacement value
from time to time during the Term, providing protection against perils included
within the standard form of “Special Form” fire and casualty insurance policy,
together with insurance against sprinkler damage, vandalism and malicious
mischief.  Any policy proceeds from such
insurance relating to the Improvements shall be used solely for the repair,
construction and restoration or replacement of the Improvements damaged or
destroyed unless this Lease shall cease and terminate under the provisions of
Section 20.


 


(b)           All policies of the insurance
provided for in Section 8(a) shall be issued in form reasonably acceptable
to Landlord by insurance companies with a rating of not less than “A,” and
financial size of not less than Class XII, in the most current available
“Best’s Insurance Reports”, and licensed to do business in the state in which the
Building is located.  Each and every
such policy:


 


(i)            shall name Landlord, Lender (as
defined in Section 24), and any other party reasonably designated by Landlord,
as an additional insured.  In addition,
the coverage described in Section 8(a)(ii)(A) relating to the Improvements
shall also name Landlord as “loss payee”;


 


(ii)           shall be delivered to Landlord, in
the form of an insurance certificate acceptable to Landlord as evidence of such
policy, prior to the Lease Commencement Date and thereafter within thirty (30)
days prior to the expiration of each such policy, and, as often as any such
policy shall expire or terminate. 
Renewal or additional policies shall be procured and maintained by
Tenant in like manner and to like extent;


 


(iii)          shall contain a provision that the
insurer will give to Landlord and such other parties in interest at least
thirty (30) days notice in writing in advance of any material change,
cancellation, termination or lapse, or the effective date of any reduction in
the amounts of insurance; and


 


(iv)          shall be written as a primary policy
which does not contribute to and is not in excess of coverage which Landlord
may carry.


 


(c)           In the event that Tenant shall fail
to carry and maintain the insurance coverages set forth in this Section 8,
Landlord may upon thirty (30) days notice to Tenant (unless such coverages will
lapse in which event no such notice shall be necessary) procure such policies
of insurance and Tenant shall promptly reimburse Landlord therefor.


 


10

















 


(d)           Landlord and Tenant hereby waive any
rights each may have against the other on account of any loss or damage
occasioned to Landlord or Tenant, as the case may be, their respective
property, the Demised Premises, its contents or to the other portions of the
Building, arising from any risk covered by “Special Form” fire and extended
coverage insurance of the type and amount required to be carried hereunder,
provided that such waiver does not invalidate such policies or prohibit recovery
thereunder.  The parties hereto shall
cause their respective insurance companies insuring the property of either
Landlord or Tenant against any such loss, to waive any right of subrogation
that such insurers may have against Landlord or Tenant, as the case may be.


 


(e)           At all times during the Term of this
Lease Landlord will maintain “all risk” insurance, including named perils such
as wind, hail and flood damage and including earthquake coverage,  in an amount covering the full replacement
value of the Building (excluding footings and foundation) and improvements
which are part of the Building Common Area; provided that such insurance will
have a deductible amount which Landlord deems appropriate and earthquake
coverage shall not be on a replacement cost basis.  The premium cost of such insurance will be included in Operating
Expenses.


 


9.             Utilities. During the Term, Tenant shall promptly
pay as billed to Tenant all rents and charges for water and sewer services and
all costs and charges for gas, steam, electricity, fuel, light, power,
telephone, heat and any other utility or service used or consumed in or
servicing the Demised Premises and all other costs and expenses involved in the
care, management and use thereof as charged by the applicable utility
companies.  All such utilities, except for sewer
and water, shall be separately metered and billed to Tenant, and Tenant shall
establish an account with the utility provider with respect to each such
separately metered utility. Sewer and water shall not be separately metered,
and shall be billed to Tenant by Landlord in Operating Expenses, at Landlord’s
actual cost, in an amount equal to a reasonable estimation of such utilities
actually used by Tenant.  Tenant’s obligation
for payment of all utilities shall commence on the Lease Commencement
Date.  If Tenant fails to pay any
utility bills or charges, Landlord may, at its option and upon reasonable
notice to Tenant, pay the same and in such event, the amount of such payment,
together with interest thereon at the Interest Rate as defined in Section 32
from the date of such payment by Landlord, will be added to Tenant’s next due
payment as Additional Rent.


 


10.           Maintenance and Repairs.


 


(a)           Tenant shall, at its own cost and
expense, maintain in good condition and repair and replace as necessary the
interior of the Demised Premises, including but not limited to the heating, air
conditioning and ventilation systems, glass, windows and doors, sprinkler, all
plumbing and sewage systems, fixtures, interior walls, floors (including floor
slabs), ceilings, storefronts, plate glass, skylights, all electrical
facilities and equipment including, without limitation, lighting fixtures,
lamps, fans and any exhaust equipment and systems, electrical motors, and all
other appliances and equipment (including, without limitation, dock levelers,
dock shelters, dock seals and dock lighting) of every kind and nature located
in, upon or about the Demised Premises, except as to such maintenance, repair
and replacement as is the obligation of Landlord pursuant to Section
10(b).  During the Term, Tenant shall
maintain in full force and effect a service contract for the maintenance of the
heating, ventilation and air conditioning systems with an entity reasonably
acceptable to Landlord.  Any existing
service contracts at the time of execution of this Lease shall be considered as
reasonably accepted by Landlord (provided that, prior to such execution, Tenant
has delivered to Landlord true and complete copies of all such contracts).  Tenant shall deliver to Landlord (i) a copy
of said service contract prior to the Lease Commencement Date, and (ii)
thereafter, a copy of a renewal or substitute service contract within thirty
(30) days prior to the expiration of the existing service contract.  Tenant’s obligation shall exclude any
maintenance, repair and replacement required because of the act or negligence
of Landlord, its employees, contractors or agents, which shall be the
responsibility of Landlord, or for any equipment or other items needing repair
that serve one or more other tenants in the Building (provided that the cost
incurred by Landlord to repair such other equipment and other items will be
included in Operating Expenses).


 


(b)           Landlord shall, at its own cost and
expense, maintain in good condition and repair the foundation (beneath the
floor slab) and structural frame of the Building.  Landlord shall also maintain in good condition and repair the
Building Common Area and the roof of the Building and the cost of such
maintenance and repair shall be included in Operating Expenses.  Landlord shall, at its own cost and expense,
be responsible for replacement of the roof of the Building to the extent
necessary during the Term.  Landlord’s
obligation shall exclude the cost of any maintenance or repair required because
of the act or negligence of Tenant or any of Tenant’s subsidiaries or
affiliates, or any of Tenant’s or such subsidiaries’ or affiliates’ agents,
contractors, employees, licensees or invitees (collectively, “Tenant’s
Affiliates”), the cost of which shall be the responsibility of Tenant.  Landlord will perform its obligations under
this subsection (b) in a manner which will minimize, to the greatest
extent practicable, interference with the operations of Tenant in the Demised
Premises.


 


(c)           Except to the extent that damage is
caused by the negligent action or inaction of Landlord, its employees or
agents, and is not covered by the insurance required to be carried by Tenant
pursuant to the terms of this Lease, Landlord shall not be liable to Tenant or
to any other person for any damage occasioned by failure in any utility system
or by the bursting or leaking of any vessel or pipe in or about the Demised
Premises, or for any damage occasioned by water coming into the Demised Premises
or


 


11

















 


arising from the acts or
neglects of occupants of adjacent property or the public; provided, however,
that if any such damage affects portions or components of the Building which
must be repaired by Landlord pursuant to subsection (b), nothing in this
subsection (c) will relieve Landlord of its obligation to perform required
repairs.  To the extent that any such
vessel or pipe is located within the Building Common Area or serves more than
one Tenant in the Building, Landlord shall cause repairs to performed and the
cost of such repair shall be included in Operating Expenses (provided that
Landlord will use insurance proceeds to pay the cost of repairs to the extent
such proceeds are actually available).


 


11.           Tenant’s Personal Property;
Indemnity.  All of Tenant’s personal
property in the Demised Premises shall be and remain at Tenant’s sole
risk.  Landlord, its agents, employees,
contractors, affiliates, directors, officers, members, shareholders and partners
(collectively, the “Landlord Parties”) shall not be liable for, and Tenant
hereby releases the Landlord Parties from, any and all liability for theft
thereof or any damage thereto occasioned by any act of God or by any acts,
omissions or negligence of any persons. The 
Landlord Parties shall not be liable for any injury to the person or
property of Tenant or other persons in or about the Demised Premises, Tenant
expressly agreeing to indemnify and save the Landlord Parties harmless, in all
such cases, except, in the case of personal injury only, to the extent caused
by the negligence of the Landlord Parties. 
Tenant further agrees to indemnify and reimburse Landlord for any costs
or expenses, including, without limitation, attorneys’ fees, that Landlord
reasonably may incur in investigating, handling or litigating any such claim
against the Landlord Parties by a third person, unless such claim arose from
the negligence of the Landlord Parties. 
The provisions of this Section 11 shall survive the expiration or
earlier termination of this Lease with respect to any damage, injury or death
occurring before such expiration or termination.  Landlord will give to Tenant written notice of any claim actually
known to Landlord which is within the scope of the indemnity by Tenant in this
Section 11; such written notice will be given with reasonable promptness
after Landlord acquires actual knowledge of the claim.


 


12.           Tenant’s Fixtures.  Tenant shall have the right to install in
the Demised Premises trade fixtures required by Tenant or used by it in its
business, and if installed by Tenant, to remove any or all such trade fixtures
from time to time during and upon termination or expiration of this Lease,
provided no Event of Default, as defined in Section 22, then exists; provided,
however, that Tenant shall repair and restore any damage or injury to
the Demised Premises (to the condition in which the Demised Premises existed
prior to such installation) caused by the installation and/or removal of any
such trade fixtures.


 


13.           Signs.  No sign, advertisement or notice shall be
inscribed, painted, affixed, or displayed on the windows or exterior walls of
the Demised Premises or on any public area of the Building, except in such
places, numbers, sizes, colors and styles as are approved in advance in writing
by Landlord, and which conform to all applicable laws, ordinances, or covenants
affecting the Demised Premises, which approval shall not be unreasonably
withheld.  Any and all signs installed
or constructed by or on behalf of Tenant pursuant hereto shall be installed,
maintained and removed by Tenant at Tenant’s sole cost and expense.  Removal of all signs by Tenant shall be
completed prior to expiration or termination of this Lease and Tenant shall, at
the expense of Tenant, repair any damage to the Demised Premises, the Building
or the Building Common Area caused by such removal.  Any of Tenant’s existing signs in place at the Demised Premises
as of the Lease Date shall be considered as approved by Landlord.


 


14.           [INTENTIONALLY OMITTED]


 


15.           Governmental Regulations.  Tenant shall promptly comply throughout the
Term, at Tenant’s sole cost and expense, with all present and future laws,
ordinances, orders, rules, regulations or requirements of all federal, state
and municipal governments and appropriate departments, commissions, boards and
officers thereof (collectively, “Governmental Requirements”) relating to (a)
all or any part of the Demised Premises, and (b) the use or manner of use of
the Demised Premises and the Building Common Area.  Tenant shall also observe and comply with the requirements of all
policies of public liability, fire and other policies of insurance at any time
in force with respect to the Demised Premises. 
Without limiting the foregoing, if as a result of one or more
Governmental Requirements it is necessary, from time to time during the Term,
to perform an alteration or modification of the Demised Premises or the
Building Common Area (a “Code Modification”) which is made necessary as a
result of the specific use being made by Tenant of the Demised Premises, then
such Code Modification shall be the sole and exclusive responsibility of Tenant
in all respects; any such Code Modification shall be promptly performed by
Tenant at its expense in accordance with the applicable Governmental
Requirement and with Section 18 hereof. 
If as a result of one or more Governmental Requirements it is necessary
from time to time during the Term to perform a Code Modification which (i)
would be characterized as a capital expenditure under generally accepted
accounting principles and (ii) is not made necessary as a result of the
specific use being made by Tenant of the Demised Premises (as distinguished
from an alteration or modification which would be required to be made by the
owner of any warehouse-office building comparable to the Building irrespective
of the use thereof by any particular occupant), then (a) Landlord shall have
the obligation to perform the Code Modification at its expense, (b) the cost of
such Code Modification shall be amortized on a straight-line basis over the
useful life of the item in question, as reasonably determined by Landlord, and
(c) Tenant shall be obligated to pay (as Additional Rent, payable in the same
manner and upon the same terms and conditions as the Base Rent reserved
hereunder) for Tenant’s proportionate share of the portion of such amortized
costs attributable to


 


12

















 


the remainder of the
Term, including any extensions thereof. 
Tenant shall promptly send to Landlord a copy of any written notice
received by Tenant requiring a Code Modification.


 


16.           Environmental Matters.


 


(a)           For purposes of this Lease:


 


(i)            “Contamination” as used herein means
the presence of or release of Hazardous Substances (as hereinafter defined)
into any environmental media from, upon, within, below, into or on any portion
of the Demised Premises, the Building, the Building Common Area or the Project
so as to require remediation, cleanup or investigation under any applicable
Environmental Law (as hereinafter defined).


 


(ii)           “Environmental Laws” as used herein
means all federal, state, and local laws, regulations, orders, permits,
ordinances or other requirements, which exist now or as may exist hereafter,
concerning protection of human health, safety and the environment, all as may
be amended from time to time.


 


(iii)          “Hazardous Substances” as used herein
means any hazardous or toxic substance, material, chemical, pollutant,
contaminant or waste as those terms are defined by any applicable Environmental
Laws [including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq. (“CERCLA”) and the
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. (“RCRA”)] and
any solid wastes, polychlorinated biphenyls, urea formaldehyde, asbestos,
radioactive materials, radon, explosives, petroleum products and oil.


 


(b)           Landlord represents that, except as
revealed to Tenant in writing by Landlord, to Landlord’s actual knowledge,
Landlord has not treated, stored or disposed of any Hazardous Substances upon
or within the Demised Premises, nor, to Landlord’s actual knowledge, has any
predecessor owner of the Demised Premises.


 


(c)           Tenant covenants that all its activities,
and the activities of Tenant’s Affiliates (as defined in Section 10(b)),
on the Demised Premises, the Building, or the Project during the Term will be
conducted in compliance with Environmental Laws.  Tenant warrants that it is currently in compliance with all
applicable Environmental Laws and that there are no pending or threatened
notices of deficiency, notices of violation, orders, or judicial or
administrative actions involving alleged violations by Tenant of any
Environmental Laws.  Tenant, at Tenant’s
sole cost and expense, shall be responsible for obtaining all permits or
licenses or approvals under Environmental Laws necessary for Tenant’s operation
of its business on the Demised Premises and shall make all notifications and
registrations required by any applicable Environmental Laws.  Tenant, at Tenant’s sole cost and expense,
shall at all times comply with the terms and conditions of all such permits,
licenses, approvals, notifications and registrations and with any other
applicable Environmental Laws.  Tenant
warrants that it has obtained all such permits, licenses or approvals and made
all such notifications and registrations required by any applicable
Environmental Laws necessary for Tenant’s operation of its business on the
Demised Premises.


 


(d)           Tenant shall not cause or permit any
Hazardous Substances to be brought upon, kept or used in or about the Demised
Premises, the Building, or the Project without the prior written consent of
Landlord, which consent shall not be unreasonably withheld; provided, however,
that the consent of Landlord shall not be required for the use at the Demised
Premises of cleaning supplies, toner for photocopying machines and other
similar materials, in containers and quantities reasonably necessary for and
consistent with normal and ordinary use by Tenant in the routine operation or
maintenance of Tenant’s office equipment or in the routine janitorial service,
cleaning and maintenance for the Demised Premises.  For purposes of this Section 16, Landlord shall be deemed to have
reasonably withheld consent if Landlord determines that the presence of such
Hazardous Substance within the Demised Premises could result in a risk of harm
to person or property or otherwise negatively affect the value or marketability
of the Building or the Project.


 


(e)           Tenant shall not cause or permit the
release of any Hazardous Substances by Tenant or Tenant’s Affiliates into any
environmental media such as air, water or land, or into or on the Demised
Premises, the Building or the Project in any manner that violates any
Environmental Laws.  If such release
shall occur, Tenant shall (i) take all steps reasonably necessary to
contain and control such release and any associated Contamination, (ii) clean
up or otherwise remedy such release and any associated Contamination to the
extent required by, and take any and all other actions required under,
applicable Environmental Laws and (iii) notify and keep Landlord
reasonably informed of such release and response.


 


(f)            Regardless of any consents granted
by Landlord pursuant to Section 16(d) allowing Hazardous Substances upon the
Demised Premises, Tenant shall under no circumstances whatsoever cause or
permit (i) any activity on the Demised Premises which would cause the
Demised Premises to become subject to regulation as a hazardous waste
treatment, storage or disposal facility under RCRA or the regulations
promulgated thereunder, (ii) the discharge of Hazardous Substances into
the storm


 


13

















 


sewer system serving the
Project or (iii) the installation of any underground storage tank or
underground piping on or under the Demised Premises.


 


(g)           Tenant shall and hereby does
indemnify the Landlord Parties and hold the Landlord Parties harmless from and
against any and all expense, loss, and liability suffered by the Landlord
Parties  (except to the extent that such
expenses, losses, and liabilities arise out of the negligence or willful act of
any of the Landlord Parties), by reason of the 
storage, generation, release, handling, treatment, transportation,
disposal, or arrangement for transportation or disposal, of any Hazardous
Substances (whether accidental, intentional, or negligent) by Tenant or
Tenant’s Affiliates or by reason of Tenant’s breach of any of the provisions of
this Section 16.  Such expenses, losses
and liabilities shall include, without limitation, (i) any and all
expenses that the Landlord Parties may incur to comply with any Environmental
Laws; (ii) any and all costs that the Landlord Parties may incur in
studying or remedying any Contamination at or arising from the Demised
Premises, the Building, or the Project; (iii) any and all costs that the
Landlord Parties may incur in studying, removing, disposing or otherwise
addressing any Hazardous Substances; (iv) any and all fines, penalties or
other sanctions assessed upon the Landlord Parties; and (v) any and all
legal and professional fees and costs incurred by the Landlord Parties in
connection with the foregoing.  The
indemnity contained herein shall survive the expiration or earlier termination
of this Lease.


 


17.           Acceptance of Demised Premises.    Tenant hereby unconditionally accepts the
Demised Premises in its condition on the Lease Commencement Date for all
purposes under this Lease.  Tenant
agrees that Landlord will have the right, during the Term, to undertake and
perform the improvements for the Building described on Exhibit B attached
hereto and made a part hereof by this reference; provided, however that
Landlord must perform any such work in a manner which will not substantially
interfere with the use and enjoyment of the Demised Premises by Tenant or the
day-to-day business operation of Tenant at the Demised Premises.  Tenant will cooperate with Landlord in the
efforts by Landlord to meet the requirements of this Section 17. When the
Demised Premises reduces to 424,050 pursuant to Sections 2.1 or 2.1, Tenant
will have the right, at the expense of Tenant, to install additional dock doors
in accordance with the provisions of Section 18 so that the Demised
Premises will, as so reduced, have up to forty-five (45) active dock
doors.  Landlord hereby consents to such
installation and agrees that such doors need not be removed at the end of the
Term, but the requirements of Section 18 will otherwise be observed by
Tenant in the performance of the work required to install the additional dock
doors.


 


18.           Tenant Alterations and Additions.


 


(a)           Tenant shall not make or permit to be
made any alterations, improvements, or additions to the Demised Premises (a
“Tenant’s Change”), without first obtaining on each occasion Landlord’s prior
written consent (which consent Landlord agrees not to unreasonably withhold)
and Lender’s prior written consent (if such consent is required).  As part of its approval process, Landlord
may require that Tenant submit plans and specifications to Landlord, for
Landlord’s approval or disapproval, which approval shall not be unreasonably
withheld.  All Tenant’s Changes shall be
performed in accordance with all legal requirements applicable thereto and in a
good and workmanlike manner with first-class materials.  Tenant shall maintain insurance reasonably
satisfactory to Landlord during the construction of all Tenant’s Changes.  If Landlord at the time of giving its
approval to any Tenant’s Change notifies Tenant in writing that approval is
conditioned upon restoration, then Tenant shall, at its sole cost and expense
and at Landlord’s option upon the termination or expiration of this Lease,
remove the same and restore the Demised Premises to its condition prior to such
Tenant’s Change.  No Tenant’s Change
shall be structural in nature or impair the structural strength of the Building
or reduce its value.  Tenant shall pay
the full cost of any Tenant’s Change and shall give Landlord such reasonable
security as may be requested by Landlord to insure payment of such cost.  Except as otherwise provided herein and in
Section 12, all Tenant’s Changes and all repairs and all other property attached
to or installed on the Demised Premises by or on behalf of Tenant shall
immediately upon completion or installation thereof be and become part of the
Demised Premises and the property of Landlord without payment therefor by
Landlord and shall be surrendered to Landlord upon the expiration or earlier
termination of this Lease.


 


(b)           To the extent permitted by law, all
of Tenant’s contracts and subcontracts for such Tenant’s Changes shall provide
that no lien shall attach to or be claimed against the Demised Premises or any
interest therein other than Tenant’s leasehold interest in the Demised
Premises, and that all subcontracts let thereunder shall contain the same
provision.  Whether or not Tenant
furnishes the foregoing, Tenant agrees to hold Landlord harmless against all
liens, claims and liabilities of every kind, nature and description which may
arise out of or in any way be connected with such work.  Tenant shall not permit the Demised Premises
to become subject to any mechanics’, laborers’ or materialmen’s lien on account
of labor, material or services furnished to Tenant or claimed to have been
furnished to Tenant in connection with work of any character performed or
claimed to have been performed for the Demised Premises by, or at the direction
or sufferance of Tenant and if any such liens are filed against the Demised
Premises, Tenant shall promptly discharge the same; provided, however,
that Tenant shall have the right to contest, in good faith and with reasonable
diligence, the validity of any such lien or claimed lien if Tenant shall give
to Landlord, within fifteen days after demand, such security as may be
reasonably satisfactory to Landlord to assure payment thereof and to prevent
any sale, foreclosure, or forfeiture of Landlord’s interest in the Demised
Premises by reason of non-payment thereof; provided further that on final
determination of


 


14

















 


the lien or claim for
lien, Tenant shall immediately pay any judgment rendered, with all proper costs
and charges, and shall have the lien released and any judgment satisfied.  If Tenant fails to post such security or
does not diligently contest such lien, Landlord may, without investigation of
the validity of the lien claim, discharge such lien and Tenant shall reimburse
Landlord upon demand for all costs and expenses incurred in connection
therewith, which expenses shall include any attorneys’ fees, paralegals’ fees
and any and all costs associated therewith, including litigation through all
trial and appellate levels and any costs in posting bond to effect a discharge
or release of the lien.  Nothing
contained in this Lease shall be construed as a consent on the part of Landlord
to subject the Demised Premises to liability under any lien law now or hereafter
existing of the state in which the Demised Premises are located.


 


(c)           Tenant shall have the right, at the
option and expense of Tenant and subject to the requirements of this
subsection (c), to complete the Mezzanine as additional office space for
the Demised Premises.  The plans and
specifications for such work shall be subject to the prior written approval of
Landlord, which shall not be unreasonably withheld, delayed or
conditioned.  Tenant shall not be
required to remove any such office improvements to the Mezzanine at the
expiration or termination of this Lease. 
The improvement of the Mezzanine will otherwise constitute a Tenant’s
Change governed by the requirements of subsections (a) and (b),
above.  The square footage in the
Mezzanine will not be included in the calculation of Tenant’s Operating Expense
Percentage, whether or not the Mezzanine is completed by Tenant in accordance
with this subsection (c).


 


19.           Services by Landlord.  Landlord shall be responsible for providing
for maintenance of the Building Common Area, and, except as required by Section
10(b) hereof or as otherwise specifically provided for herein, Landlord shall
be responsible for no other services whatsoever.  Tenant, by payment of Tenant’s share of the Operating Expenses,
shall pay Tenant’s pro rata share of the expenses incurred by Landlord
hereunder.


 


20.           Fire and Other Casualty.  In the event the Demised Premises are
damaged by fire or other casualty insured by Landlord, Landlord agrees to
promptly restore and repair the Demised Premises at Landlord’s expense, including
the Improvements to be insured by Tenant, but only to the extent Landlord
receives insurance proceeds therefor (plus the amount of any deductible, which
Landlord must pay), including the proceeds from the insurance required to be
carried by Tenant on the Improvements. 
Notwithstanding the foregoing, in the event that the Demised Premises
are (i) in the reasonable opinion of Landlord, so destroyed that they
cannot be repaired or rebuilt within two hundred ten (210) days after the date
of such damage; or (ii) destroyed by a casualty which is not fully covered
by Landlord’s insurance (plus the amount of any deductible, which Landlord must
pay), or if such casualty is covered by Landlord’s insurance but Lender or
other party entitled to insurance proceeds fails to make such proceeds
available to Landlord in an amount sufficient for restoration of the Demised
Premises, then Landlord shall give written notice to Tenant of such
determination (the “Determination Notice”) within forty-five (45) days of such
casualty.  Either Landlord or Tenant may
terminate and cancel this Lease effective as of the date of such casualty by
giving written notice to the other party within twenty (20) days after Tenant’s
receipt of the Determination Notice. 
Upon the giving of such termination notice, all obligations hereunder
with respect to periods from and after the effective date of termination shall
thereupon cease and terminate.  If no
such termination notice is given, Landlord shall, to the extent of the
available insurance proceeds, promptly make such repair or restoration of the
Demised Premises to a condition which is comparable to the condition of the
Demised Premises immediately prior to such casualty, promptly and in such
manner as not to unreasonably interfere with Tenant’s use and occupancy of the
Demised Premises (if Tenant is still occupying the Demised Premises).  Base Rent and Additional Rent shall abate in
proportion to the loss of use of the Demised Premises suffered by Tenant during
the time that the Demised Premises or any part thereof are unusable by reason
of any such damage thereto.


 


21.           Condemnation.


 


(a)           If all of the Demised Premises is
taken or condemned for a public or quasi-public use, or if a material portion
of the Demised Premises is taken or condemned for a public or quasi-public use
and the remaining portion thereof is not usable by Tenant in the reasonable
opinion of Landlord, this Lease shall terminate as of the earlier of the date
title to the condemned real estate vests in the condemnor or the date on which
Tenant is deprived of possession of the Demised Premises.  In such event, the Base Rent herein reserved
and all Additional Rent and other sums payable hereunder shall be apportioned
and paid in full by Tenant to Landlord to that date, all Base Rent, Additional
Rent, Security Deposit (to the extent not applied by Landlord in accordance
with Section 5) and other sums payable hereunder prepaid for periods
beyond that date shall forthwith be repaid by Landlord to Tenant, and neither
party shall thereafter have any liability hereunder, except that any obligation
or liability of either party, actual or contingent, under this Lease which has
accrued on or prior to such termination date shall survive.


 


(b)           If only part of the Demised Premises
is taken or condemned for a public or quasi-public use and this Lease does not
terminate pursuant to Section 21(a), Landlord shall, to the extent of the award
it receives, restore the Demised Premises to a condition and to a size as
nearly comparable as reasonably possible to the condition and size thereof
immediately prior to the taking, and there shall be an equitable adjustment to
the Base Rent and Additional Rent based on the actual loss of use of the
Demised Premises suffered by Tenant from the taking.


 


15

















 


(c)           Landlord shall be entitled to receive
the entire award in any proceeding with respect to any taking provided for in
this Section 21, without deduction therefrom for any estate vested in Tenant by
this Lease, and Tenant shall receive no part of such award.  Nothing herein contained shall be deemed to
prohibit Tenant from making a separate claim, against the condemnor, to the
extent permitted by law, for the value of Tenant’s moveable trade fixtures,
machinery and moving expenses, provided that the making of such claim shall not
and does not adversely affect or diminish Landlord’s award.


 


22.           Tenant’s Default.


 


(a)           The occurrence of any one or more of
the following events shall constitute an “Event of Default” of Tenant under
this Lease:


 


(i)            if Tenant fails to pay Base Rent or
any Additional Rent hereunder as and when such rent becomes due and such
failure shall continue for more than ten (10) days after Landlord gives written
notice to Tenant of such failure;


 


(ii)           if Tenant fails to pay Base Rent or
any Additional Rent on time more than three (3) times in any period of twelve
(12) months, notwithstanding that such payments have been made within the
applicable cure period after written notice given by Landlord;


 


(iii)          [INTENTIONALLY OMITTED]


 


(iv)          if Tenant permits to be done anything
which creates a lien upon the Demised Premises and fails to discharge or bond
such lien, or post security with Landlord acceptable to Landlord within thirty
(30) days after receipt by Tenant of written notice thereof;


 


(v)           if Tenant fails to maintain in force
all policies of insurance required by this Lease and such failure shall
continue for more than ten (10) days after Landlord gives Tenant written notice
of such failure;


 


(vi)          if any petition is filed by or against
Tenant or any guarantor of this Lease under any present or future section or
chapter of the Bankruptcy Code, or under any similar law or statute of the
United States or any state thereof (which, in the case of an involuntary
proceeding, is not permanently discharged, dismissed, stayed, or vacated, as
the case may be, within sixty (60) days of commencement), or if any order for
relief shall be entered against Tenant or any guarantor of this Lease in any
such proceedings;


 


(vii)         if Tenant or any guarantor of this
Lease becomes insolvent or makes a transfer in fraud of creditors or makes an
assignment for the benefit of creditors;


 


(viii)        if a receiver, custodian, or trustee is
appointed for the Demised Premises or for all or substantially all of the
assets of Tenant or of any guarantor of this Lease, which appointment is not
vacated within sixty (60) days following the date of such appointment;


 


(ix)           Tenant fails to vacate any portion of
the Demised Premises in accordance with the requirements of Sections 2.1,
2.2, 2.3 or 2.4 and such failure continues for ten (10) calendar days after
receipt of written notice from Landlord;


 


(x)            if Tenant fails to perform or
observe any other material term of this Lease and such failure shall continue
for more than thirty (30) days after Landlord gives Tenant written notice of
such failure, or, if such failure cannot be corrected within such thirty (30)
day period, if Tenant does not commence to correct such default within said
thirty (30) day period and thereafter diligently prosecute the correction of
same to completion within a reasonable time.


 


(b)           Upon the occurrence of any one or
more Events of Default, Landlord may, at Landlord’s option, without any demand
or notice whatsoever (except as expressly required in this Section 22):


 


 


(i)      Landlord may terminate this Lease by
giving Tenant written notice of termination, in which event this Lease shall
expire and terminate on the date specified in such notice of termination with
the same force and effect as though the date so specified were the date herein
originally fixed as the termination date of the Term, and all rights of Tenant
under this Lease and in and to the Demised Premises shall expire and terminate
and Tenant shall remain liable for all obligations under this Lease arising up
to the date of such termination, and Tenant shall surrender the Demised
Premises to Landlord on the date specified in such notice, and if Tenant fails
to so surrender Landlord shall have the right, upon prior notice and only to
the extent permitted by law, to enter upon and take possession of the Demised
Premises and to expel or remove Tenant and its effects without being liable for
prosecution or any claim for damages therefor.


 


16

















 


(ii)     In addition to any other remedies available
to Landlord at law or in equity under applicable law (including, without
limitation, the remedies of California Civil Code Section 1951.4 and any
successor statute or similar law), Landlord will have the immediate right and
option to terminate this Lease and all rights of Tenant hereunder.  If Landlord elects to terminate this Lease
then, to the extent permitted under applicable law, Landlord may recover from
Tenant (a) the worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus (b) the worth at the
time of award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of such
rent loss that Tenant proves could have been reasonably avoided; plus
(c) the worth at the time of award of the amount by which the unpaid rent
for the balance of the Term after the time of award exceeds the amount of such
rent loss that Tenant proves could be reasonably avoided; plus (d) any
other amount necessary to compensate Landlord for all the detriment proximately
caused by Tenant’s failure to perform its obligations under this Lease or
which, in the ordinary course of things, results therefrom including, but not
limited to, to the extent permitted under applicable law and actually incurred
by Landlord, reasonable attorneys’ fees and costs; brokers’ commissions; the
costs of repair or reasonable refurbishment, alteration or renovation of the
Demised Premises, and removal (including the repair of any damage caused by
such removal) and storage (or disposal) of Tenant’s personal property,
equipment, fixtures, alterations and any other items which Tenant is required
under this Lease to remove but does not remove, or other costs or economic
concessions provided, paid, granted or incurred by Landlord pursuant to this
Lease.  The unamortized value of such
concessions shall be determined by taking the total value of such concessions
and multiplying such value by a fraction, the numerator of which is the number
of months of the Term not yet elapsed as of the date on which the Lease is
terminated, and the denominator of which is the total number of months of the
Term.  As used in Subsection
22(b)(ii)(a) and (b) above, the “worth at the time of award” is computed by
allowing interest at the Interest Rate (as defined in Section 31).  As used in Subsection 22(b)(ii)(c)
above, the “worth at the time of award” is computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time
of award plus one percent (1%).


 


(iii)    Landlord will also have the right, with or
without terminating this Lease, to re-enter the Demised Premises and remove all
persons and property from the Demised Premises; such property may be removed
and stored in a public warehouse or elsewhere. 
No re-entry or taking possession of the Demised Premises by Landlord
pursuant to this Subsection 22(b)(iii) will be construed as an election to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction.


 


(iv)    Landlord has the remedy described in
California Civil Code Section 1951.4 (lessor may continue lease in effect after
lessee’s breach and abandonment and recover rent as it becomes due, if lessee
has right to sublet or assign, subject only to reasonable limitations).  Accordingly, upon the occurrence of an Event
of Default and abandonment of the Demised Premises by Tenant or in the event
that Landlord elects to re-enter the Demised Premises or takes possession of
the Demised Premises pursuant to legal proceeding or pursuant to any notice
provided by law, then if Landlord does not elect to terminate this Lease, Landlord
may from time to time, without terminating this Lease, either recover all rent
as it becomes due or relet the Demised Premises or any part thereof on terms
and conditions as Landlord in its sole and absolute discretion may deem
advisable with the right to make alterations and repairs to the Demised
Premises in connection with such reletting. 
If Landlord elects to relet the Demised Premises, then rents received by
Landlord from such reletting will be applied; first, to the payment of any
indebtedness other than rent due hereunder from Tenant to Landlord; second, to
the payment of any cost of such reletting; third, to the payment of the
reasonable cost of any alterations and repairs to the Demised Premises incurred
in connection with such reletting; fourth, to the payment of rent due and
unpaid hereunder and the residue, if any, will be held by Landlord and applied
to payment of future rent as the same may become due and payable
hereunder.  Should that portion of such
rents received from such reletting during any month, which is applied to the
payment of rent hereunder, be less than the rent payable during that month by
Tenant hereunder, then Tenant agrees to pay such deficiency to Landlord
immediately upon demand therefor by Landlord. 
Such deficiency will be calculated and paid monthly.


 


(v)     If an Event of Default occurs as a result
of a failure by Tenant to pay any sum of money owed to any party other than
Landlord, for which it is liable under this Lease, or as a result of a failure
by Tenant to perform any other act on its part to be performed hereunder,
Landlord may, without waiving or releasing Tenant from its obligations, but
shall not be obligated to, make any such payment or perform any such other act
to be made or performed by Tenant. 
Tenant agrees to reimburse Landlord upon demand for all reasonable sums
so paid by Landlord and all necessary incidental costs, together with interest
thereon at the Interest Rate, from the date of such payment by Landlord until
reimbursed by Tenant.


 


(vi)    Pursue such other remedies as are available
at law or equity.


 


(c)           If this Lease shall terminate as a
result of or while there exists an Event of 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.


 


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(d)           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.


 


(e)           No agreement to accept a surrender of
the Demised Premises and no act or omission by Landlord or Landlord’s agents
during the Term shall constitute an acceptance or surrender of the Demised
Premises unless made in writing and signed by Landlord.  No re-entry or taking possession of the
Demised 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 an Event of Default hereunder shall not be construed as a waiver of
such Event of 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.


 


(f)            If an Event of Default shall occur,
Tenant shall pay to Landlord, on demand, all expenses actually incurred by
Landlord as a result thereof, including reasonable attorneys’ fees, court costs
and expenses actually incurred.


 


22.1         Landlord Default.  If Landlord fails to perform or observe or
otherwise breaches any term of this Lease and such failure shall continue for
more than thirty (30) days after Tenant gives Landlord written notice of such
failure, or, if such failure does not arise out of a failure by Landlord to pay
a sum of money and cannot reasonably be corrected within such 30-day period, if
Landlord does not commence to correct such default within such 30-day period
and thereafter diligently prosecute the correction of same to completion within
a commercially reasonable time, a “Landlord Event of Default” shall exist under
this Lease.  Upon the occurrence of a
Landlord Event of Default, Tenant may at Tenant’s option, cure the Landlord
Event of Default and the actual cost of such cure shall be payable by Landlord
to Tenant within thirty (30) calendar days after written demand; provided,
however, that if a failure by Landlord to perform or observe any term of this
Lease gives rise to circumstances or conditions which constitute an emergency
threatening human health or safety or substantial damage to the Demised
Premises or Tenant’s personal property, Tenant shall be entitled to take
immediate curative action (prior to the expiration of any notice and cure
period set forth above) to the extent necessary to eliminate the emergency
..  If Landlord does not pay to Tenant
the amount of such cost arising out of a Landlord Event of Default, upon
written demand, Tenant may set off such cost against installments of Base Rent
or other amounts due Landlord under this Lease.  Such cost must be reasonably incurred and must not exceed the
scope of the Landlord Event of Default in question; and if such costs are
chargeable as a result of labor or materials provided directly by Tenant,
rather than by unrelated third parties, the costs shall not exceed the amount
which would have been charged by a qualified third party unrelated to
Tenant.  The quality of all work performed
by Tenant must equal or exceed the quality of Landlord’s Work.  Such costs must be reasonably documented and
copies of such documentation must be delivered to Landlord with the written
demand for reimbursement.  Tenant shall
be permitted to continue to set off against succeeding installments of Base
Rent until the total amount of such cost actually incurred by Tenant has been
recovered by Tenant.  If Tenant elects
to exercise its right of set-off, as provided in this Section 22.1, such
set-off is intended to be the exclusive remedy available to Tenant with respect
to the Landlord Event of Default which gave rise to the set-off.  Accordingly, once Tenant has fully set off
all of the permissible cost of curing the Landlord Event of Default , Landlord
shall no longer be deemed to be in default under this Lease with respect to the
Landlord Event of Default that was the subject of the set off.  Nothing contained in this Section 22.1 shall
create or imply the existence of any obligation by Tenant to cure any Landlord
Event of Default.


 


23.           Landlord’s Right of Entry.  Tenant agrees to permit Landlord and the
authorized representatives of Landlord and of Lender to enter upon the Demised
Premises at all reasonable times for the purposes of inspecting the Demised
Premises and Tenant’s compliance with this Lease, and making any necessary
repairs thereto; provided that, except in the case of an emergency, Landlord
shall give Tenant reasonable prior notice of Landlord’s intended entry upon the
Demised Premises.  Nothing herein shall
imply any duty upon the part of Landlord to do any work required of Tenant
hereunder, and the performance thereof by Landlord shall not constitute a
waiver of Tenant’s default in failing to perform it.  Landlord shall not be liable for inconvenience, annoyance,
disturbance or other damage to Tenant by reason of making such repairs or the
performance of such work in the Demised Premises or on account of bringing
materials, supplies and equipment into or through the Demised Premises during
the course thereof, and the obligations of Tenant under this Lease shall not
thereby be affected; provided, however, that Landlord shall use
reasonable efforts not to disturb or otherwise interfere with Tenant’s
operations in the Demised Premises in making such repairs or performing such
work.  Landlord also shall have the
right to enter the Demised Premises at all reasonable times, after reasonable
notice (which may be given by telephone), to exhibit the Demised Premises to
any prospective purchaser, mortgagee or tenant thereof.


 


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24.           Lender’s Rights.


 


(a)           For purposes of this Lease:


 


(i)            “Lender” as used herein means the
holder of a Mortgage;


 


(ii)           “Mortgage” as used herein means any
or all mortgages, deeds to secure debt, deeds of trust or other instruments in
the nature thereof which may now or hereafter affect or encumber Landlord’s
title to the Demised Premises, and any amendments, modifications, extensions or
renewals thereof.


 


(b)           This Lease and all rights of Tenant
hereunder are and shall be subject and subordinate to the lien and security
title of any Mortgage.  Tenant
recognizes and acknowledges the right of Lender to foreclose or exercise the
power of sale against the Demised Premises under any Mortgage.


 


(c)           Tenant shall, in confirmation of the
subordination set forth in Section 24(b) and notwithstanding the fact that such
subordination is self-operative, and no further instrument or subordination
shall be necessary, upon demand, at any time or times, execute, acknowledge,
and deliver to Landlord or to Lender any and all instruments requested by
either of them to evidence such subordination.


 


(d)           At any time during the Term, Lender
may, by written notice to Tenant, make this Lease superior to the lien of its
Mortgage.  If requested by Lender,
Tenant shall, upon demand, at any time or times, execute, acknowledge, and
deliver to Lender, any and all instruments that may be necessary to make this
Lease superior to the lien of any Mortgage.


 


(e)           If Lender (or Lender’s nominee, or
other purchaser at foreclosure) shall hereafter succeed to the rights of
Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new lease, Tenant shall, if requested by such successor, attorn
to and recognize such successor as Tenant’s landlord under this Lease without
change in the terms and provisions of this Lease and shall promptly execute and
deliver any instrument that may be necessary to evidence such attornment,
provided that such successor shall not be bound by (i) any payment of Base Rent
or Additional Rent for more than one month in advance, except prepayments in
the nature of security for the performance by Tenant of its obligations under
this Lease, (ii) the default of any prior landlord under this Lease,
except to the extent that such default is in existence and continuing at the
time the successor acquires title and Tenant has given to Lender copies of any
notice of the alleged default given to Landlord and (iii) except for the
rights expressly granted to Tenant under Section 22.1, any offset rights
arising out of the default of any prior landlord under this Lease.  Upon such attornment, this Lease shall
continue in full force and effect as a direct lease between each successor
landlord and Tenant, subject to all of the terms, covenants and conditions of
this Lease.


 


(f)            In the event there is a Mortgage at
any time during the Term, Landlord shall use commercially reasonable efforts,
without cost to Landlord, to cause the Lender to enter into a subordination,
nondisturbance and attornment agreement with Tenant reasonably satisfactory to
Tenant and consistent with this Section 24.


 


25.           Estoppel Certificate and Financial
Statement.


 


(a)            Landlord and Tenant agree, at any
time, and from time to time, within fifteen (15) days after written request of
the other, to execute, acknowledge and deliver a statement in writing in
recordable form to the requesting party and/or its designee certifying that:
(i) this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect, as modified),
(ii) the dates to which Base Rent, Additional Rent and other charges have been
paid, (iii) whether or not, to the best of its knowledge, there exists any
failure by the requesting party to perform any term, covenant or condition
contained in this Lease, and, if so, specifying each such failure, (iv) (if
such be the case) Tenant has unconditionally accepted the Demised Premises and
is conducting its business therein, and (v) and as to such reasonable
additional matters as may be requested, it being intended that any such
statement delivered pursuant hereto may be relied upon by the requesting party
and by any purchaser of title to the Demised Premises or by any mortgagee or
any assignee thereof or any party to any sale-leaseback of the Demised
Premises, or the landlord under a ground lease affecting the Demised Premises.


 


(b)           If Landlord desires to finance,
refinance, or sell the Building, Tenant and all guarantors of Tenant’s
obligations hereunder, if any, shall deliver to any potential lender or
purchaser designated by Landlord such financial statements of Tenant and such
guarantors 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 in confidence and shall be
used only for the purposes herein set forth.


 


26.           Landlord Liability.  No owner of the Demised Premises, whether or
not named herein, shall have liability hereunder after it ceases to hold title
to the Demised Premises.  Neither
Landlord nor any of the  Landlord
Parties, whether disclosed or undisclosed, shall be under any personal
liability with respect to


 


19

















 


any of the provisions of
this Lease.  IN THE EVENT LANDLORD IS IN
BREACH OR DEFAULT WITH RESPECT TO LANDLORD’S OBLIGATIONS OR OTHERWISE UNDER
THIS LEASE, TENANT SHALL LOOK SOLELY TO ITS RIGHTS UNDER SECTION 22.1 OF
THIS LEASE AND THE EQUITY OF LANDLORD IN THE BUILDING FOR THE SATISFACTION OF
TENANT’S REMEDIES.  IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT LANDLORD’S LIABILITY UNDER THE TERMS, COVENANTS,
CONDITIONS, WARRANTIES AND OBLIGATIONS OF THIS LEASE SHALL IN NO EVENT EXCEED
LANDLORD’S EQUITY INTEREST IN THE BUILDING.


 


27.           Notices.  Any notice required or permitted to be given
or served by either party to this Lease shall be deemed given when made in
writing, and either (i) personally delivered, (ii) deposited with the United
States Postal Service, postage prepaid, by registered or certified mail, return
receipt requested, or (iii) delivered by licensed overnight delivery service
providing proof of delivery, properly addressed to the address set forth in Section
1(m) (as the same may be changed by giving written notice of the aforesaid in
accordance with this Section 27).  If
any notice mailed is properly addressed with appropriate postage but returned
for any reason, such notice shall be deemed to be effective notice and to be
given on the date of mailing.


 


28.           Brokers.  Tenant represents and warrants to Landlord
that Tenant has not engaged or had any conversations or negotiations with any
broker, finder or other third party concerning the leasing of the Demised
Premises to Tenant who would be entitled to any commission or fee based on the
execution of this Lease.  Tenant hereby
indemnifies Landlord against and from any claims for any brokerage commissions  and all costs, expenses and liabilities in
connection therewith, including, without limitation, reasonable attorneys’ fees
and expenses, for any breach of the foregoing. 
The foregoing indemnification shall survive the termination of this
Lease for any reason.


 


29.           Assignment and Subleasing.


 


(a)           Except as provided in
subsection (d) of this Section 29, Tenant may not assign, mortgage,
pledge, encumber or otherwise transfer this Lease, or any interest hereunder,
or sublet the Demised Premises, in whole or in part, without on each occasion
first obtaining the prior express written consent of Landlord, which consent
Landlord shall not unreasonably withhold. 
Any change in control of Tenant resulting from a merger, consolidation,
stock transfer or asset sale shall be considered an assignment or transfer
which requires Landlord’s prior written consent.  For purposes of this Section 29, by way of example and not
limitation, Landlord shall be deemed to have reasonably withheld consent if
Landlord reasonably determines (i) that the prospective assignee or subtenant is
not of a financial strength similar to Tenant as of the Lease Date, (ii) that
the prospective assignee or subtenant has a poor business reputation, (iii)
that the proposed use of the Demised Premises by such prospective assignee or
subtenant (including, without limitation, a use involving the use or handling
of Hazardous Substances) will negatively affect the value or marketability of
the Building or the Project or (iv) that the prospective assignee or subtenant
is a current tenant in the Project or is a bona-fide third-party prospective
tenant.  Unless the written consent of
Landlord expressly provides the contrary, no assignment of this Lease by Tenant
or sublease of all or any part of the Demised Premises will relieve Tenant of
any of its obligations under the Lease.


 


(b)           If Tenant desires to assign this
Lease or sublet the Demised Premises or any part thereof, Tenant shall give
Landlord written notice no later than forty-five (45) days in advance of the
proposed effective date of any proposed assignment or sublease, specifying (i)
the name and business of the proposed assignee or sublessee, (ii) the amount
and location of the space within the Demised Premises proposed to be subleased,
(iii) the proposed effective date and duration of the assignment or subletting
and (iv) the proposed rent or consideration to be paid to Tenant by such
assignee or sublessee.  Tenant shall
promptly supply Landlord with financial statements and other information as
Landlord may reasonably request to evaluate the proposed assignment or
sublease.  Landlord shall have a period
of thirty (30) days following receipt of such notice and other information
requested by Landlord within which to notify Tenant in writing that Landlord
elects:  (1) to terminate this Lease as
to the space so affected as of the proposed effective date set forth in
Tenant’s notice, in which event Tenant shall be relieved of all further
obligations hereunder as to such space, except for obligations under Sections
11 and 28 and all other provisions of this Lease which expressly survive the
termination hereof; or (2) to permit Tenant to assign or sublet such space; provided,
however, that, if the rent rate agreed upon between Tenant and its
proposed subtenant is greater than the rent rate that Tenant must pay Landlord
hereunder for that portion of the Demised Premises, or if any consideration
shall be promised to or received by Tenant in connection with such proposed
assignment or sublease (in addition to rent), then one half (1/2) of such
excess rent and other consideration (after payment of brokerage commissions,
attorneys’ fees and other disbursements reasonably incurred by Tenant for such
assignment and subletting if acceptable evidence of such disbursements is
delivered to Landlord) shall be considered Additional Rent owed by Tenant to
Landlord, and shall be paid by Tenant to Landlord, in the case of excess rent,
in the same manner that Tenant pays Base Rent and, in the case of any other
consideration, within ten (10) business days after receipt thereof by Tenant;
or (3) to refuse, in Landlord’s reasonable discretion (taking into account all
relevant factors including, without limitation, the factors set forth in the
Section 29(a) above), to consent to Tenant’s assignment or subleasing of such
space and to continue this Lease in full force and effect as to the entire
Demised Premises.  If Landlord should
fail to notify Tenant in writing of such election within the aforesaid thirty
(30) day period, Landlord shall be deemed to have elected option (3)
above.  Tenant agrees to reimburse
Landlord for reasonable legal fees


 


20

















 


and any other reasonable
costs incurred by Landlord in connection with any requested assignment or
subletting, and such payments shall not be deducted from the Additional Rent
owed to Landlord pursuant to subsection (2) above.  Tenant shall deliver to Landlord copies of all documents executed
in connection with any permitted assignment or subletting, which documents
shall be in form and substance reasonably satisfactory to Landlord and which
shall require such assignee to assume performance of all terms of this Lease on
Tenant’s part to be performed.


 


(c)           No acceptance by Landlord of any rent
or any other sum of money from any assignee, sublessee or other category of
transferee shall be deemed to constitute Landlord’s consent to any assignment,
sublease, or transfer.  Permitted
subtenants or assignees shall become liable directly to Landlord for all
obligations of Tenant hereunder, without, however, relieving Tenant of any of
its liability hereunder.  No such
assignment, subletting, occupancy or collection shall be deemed the acceptance
of the assignee, tenant or occupant, as Tenant, or a release of Tenant from the
further performance by Tenant of Tenant’s obligations under this Lease.  Any assignment or sublease consented to by
Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord’s
consent to any subsequent assignment or sublease.


 


(d)           Notwithstanding anything contained in
this Section 29, provided that no Event of Default has occurred and is then
continuing, Tenant shall have the right, upon thirty (30) days prior written
notice to Landlord (but without any requirement for prior written consent by
Landlord), (i) to sublet all or part of the Demised Premises to any person
or entity which is controlled by, under common control with, or which controls
Tenant  (any of such persons entities
being herein called a “Syratech Affiliate”); or (ii) to assign this Lease
to a Syratech Affiliate.  With respect
to any assignment, Tenant shall provide in its notice to Landlord given
pursuant to subsection (b), above, such information as may be reasonably
required by Landlord to determine that the requirements of this subsection (d)
have been satisfied.  The terms
“controls”, “controlled by” or “under common control with”, as used in this
subsection (d), shall mean the ownership of a direct or indirect majority
interest.  With respect to any
assignment or sublease to a Syratech Affiliate, Landlord will not be entitled
to exercise the rights granted to Landlord in items (1), (2) and (3) of
subsection (b), above.  No
assignment or sublease to a Syratech Affiliate, pursuant to this
subsection (d), will relieve Tenant of any of its obligations under this
Lease.


 


30.           Termination or Expiration.


 


(a)           No termination of this Lease prior to
the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord’s right to collect rent for the period prior to termination thereof.


 


(b)           At the expiration or earlier
termination of the Term of this Lease, Tenant shall surrender the Demised
Premises and all improvements, alterations and additions thereto, and keys
therefor to Landlord, clean and neat, and in the same condition as at the Lease
Commencement Date, excepting normal wear and tear, condemnation and casualty
other than that required to be insured against by Tenant hereunder.


 


(c)           If Tenant remains in possession of
the Demised Premises after expiration of the Term, without Landlord’s
acquiescence and without any express agreement of the parties, Tenant shall be
a tenant-at-sufferance at the greater of (i) two hundred percent (200%) of the
then current fair market base rental value of the Demised Premises or (ii) two
hundred percent (200%) of the Base Rent in effect at the end of the Term.  Tenant shall also continue to pay all other
Additional Rent due hereunder, and there shall be no renewal of this Lease by
operation of law.  In addition to the
foregoing, Tenant shall be liable for all damages, direct and consequential,
incurred by Landlord as a result of such holdover.  No receipt of money by Landlord from Tenant after the termination
of this Lease or Tenant’s right of possession of the Demised Premises shall reinstate,
continue or extend the Term or Tenant’s right of possession.


 


31.           [INTENTIONALLY OMITTED]


 


32.           Late Payments.  In the event any installment of rent,
inclusive of Base Rent, or Additional Rent or other sums due hereunder, if any,
is not paid within ten (10) days after receipt by Tenant of written notice of
such nonpayment, Tenant shall pay an administrative fee (the “Administrative
Fee”) equal to four percent (4%) of such past due amount; provided, however,
that, after Landlord gives to Tenant written notice of nonpayment of Base Rent
or Additional Rent two times within any twelve (12) month period, the
Administrative Fee will accrue and be payable automatically for the balance of
such twelve (12) month period with respect to any Base Rent or Additional Rent
which is not paid by Tenant on the date when due, whether or not written notice
is given of such nonpayment.  If any
amount remains past due for more than sixty (60) days, such amount shall, from
and after such sixtieth (60th) day, bear interest, until paid, at
the lesser of (i) the maximum interest rate allowed by law or (ii) a rate of
fifteen percent (15%) per annum (the “Interest Rate”), in order to defray the
additional expenses incurred by Landlord as a result of such late payment.  The Administrative Fee is in addition to,
and not in lieu of, any of Landlord’s remedies under this Lease.


 


21

















 


33.           Rules and Regulations.  Tenant agrees to abide by the rules and
regulations set forth on Exhibit D attached hereto, as well as other
rules and regulations reasonably promulgated by Landlord from time to time, so
long as such rules and regulations are uniformly enforced against all tenants
of Landlord in the Building.


 


34.           Quiet Enjoyment.  So long as Tenant has not committed an Event
of Default hereunder, Landlord agrees that Tenant shall have the right to
quietly use and enjoy the Demised Premises for the Term.


 


35.           Miscellaneous.


 


(a)           The parties hereto hereby covenant
and agree that Landlord shall receive the Base Rent, Additional Rent and all
other sums payable by Tenant hereinabove provided as net income from the
Demised Premises, without any abatement (except as set forth in Section 20 and
Section 21), reduction, set-off (except as provided in Section 22.1),
counterclaim, defense or deduction whatsoever.


 


(b)           If any clause or provision of this
Lease is determined to be illegal, invalid or unenforceable under present or
future laws effective during the Term, then and in that event, it is the
intention of the parties hereto that the remainder of this Lease shall not be
affected thereby, and that in lieu of such illegal, invalid or unenforceable
clause or provision there shall be substituted a clause or provision as similar
in terms to such illegal, invalid or unenforceable clause or provision as may
be possible and be legal, valid and enforceable.


 


(c)           All rights, powers, and privileges
conferred hereunder upon the parties hereto shall be cumulative, but not
restrictive to those given by law.


 


(d)           TIME IS OF THE ESSENCE OF THIS LEASE.


 


(e)           No failure of Landlord or Tenant to
exercise any power given Landlord or Tenant hereunder or to insist upon strict
compliance by Landlord or Tenant with its obligations hereunder, and no custom
or practice of the parties at variance with the terms hereof shall constitute a
waiver of Landlord’s or Tenant’s rights to demand exact compliance with the
terms hereof.


 


(f)            This Lease contains the entire
agreement of the parties hereto as to the subject matter of this Lease and no
prior representations, inducements, letters of intent, promises or agreements,
oral or otherwise, between the parties not embodied herein shall be of any
force and effect.  Any future amendment
to this Lease must be in writing and signed by the parties hereto.  The masculine (or neuter) pronoun, singular
number shall include the masculine, feminine and neuter gender and the singular
and plural number.


 


gf)           This contract shall create the
relationship of landlord and tenant between Landlord and Tenant; no estate
shall pass out of Landlord; Tenant has a usufruct, not subject to levy and
sale, and not assignable by Tenant except as expressly set forth herein.


 


(h)           Under no circumstances shall Tenant
have the right to record this Lease or a memorandum thereof.


 


(i)            The captions of this Lease are for
convenience only and are not a part of this Lease, and do not in any way
define, limit, describe or amplify the terms or provisions of this Lease or the
scope or intent thereof.


 


(j)            This Lease may be executed in
multiple counterparts, each of which shall constitute an original, but all of
which taken together shall constitute one and the same agreement.


 


(k)           This Lease shall be interpreted under
the laws of the State where the Demised Premises are located.


 


(l)            The parties acknowledge that this
Lease is the result of negotiations between the parties, and in construing any
ambiguity hereunder no presumption shall be made in favor of either party.  No inference shall be made from any item
which has been stricken from this Lease other than the deletion of such item.


 


36.           Special Stipulations.  The Special Stipulations, if any, attached
hereto as Exhibit C, are incorporated herein and made a part hereof, and
to the extent of any conflict between the foregoing provisions and the Special
Stipulations, the Special Stipulations shall govern and control.


 


37.           Lease Date.  For purposes of this Lease, the term “Lease
Date” shall mean the later date upon which this Lease is signed by Landlord and
Tenant.


 


22

















 


38.           Authority.  If Tenant is not a natural person, Tenant
shall cause its corporate secretary or general partner, as applicable, to
execute the certificate attached hereto as Exhibit E.  Tenant is authorized by all required
corporate or partnership action to enter into this Lease and the individual(s)
signing this Lease on behalf of Tenant are each authorized to bind Tenant to
its terms.


 


39.           No Offer Until Executed.  The submission of this Lease by Landlord to
Tenant for examination or consideration does not constitute an offer by
Landlord to lease the Demised Premises and this Lease shall become effective,
if at all, only upon the execution and delivery thereof by Landlord and Tenant.
Execution and delivery of this Lease by Tenant to Landlord constitutes an offer
to lease the Demised Premises on the terms contained herein.  The offer by Tenant will be irrevocable
until 6:00 p.m. Eastern time for fifteen (15) days after the date of execution
of this Lease by Tenant and delivery to Landlord.


 


40.           Dispute Resolution Procedure.


 


(a)           In the event that a dispute arises
between Landlord and Tenant under the Lease, and the Lease specifically
provides that the dispute resolution procedure outlined in this Section 40 (the
“Dispute Resolution Procedure”) shall be utilized, the parties shall proceed as
follows:


 


(i)            The party electing to proceed under
the procedures outlined herein (the “Electing Party”) shall give written notice
of such election to the other party (the “Other Party”), and shall designate in
writing the Electing Party’s selection of an individual with the qualifications
outlined in the section of the Lease giving rise to this remedy (the
“Official”) who shall act on the Electing Party’s behalf in determining the
disputed fact.


 


(ii)           Within twenty (20) days after the Other
Party’s receipt of the Electing Party’s selection of an Official, the Other
Party, by written notice to the Electing Party, shall designate an Official who
shall act on the Other Party’s behalf in determining the disputed fact.


 


(iii)          Within twenty (20) days of the
selection of the Other Party’s Official, the two (2) Officials shall render a
joint written determination of the disputed fact.  If the two (2) Officials are unable to agree upon a joint written
determination within such twenty (20) day period, each Official shall render
his or her own written determination and the two Officials shall select a third
Official within such twenty (20) day period. 
In the event the two Officials are unable to select a third Official
within such twenty (20) day period, then either party may apply to a court of
original jurisdiction in San Bernardino County, California for appointment by
such court of such third Official.


 


(iv)          Within twenty (20) days after the
appointment of the third Official, the third Official shall select one of the
determinations of the two (2) Officials originally selected, without
modification or qualification.


 


(v)           If either Landlord or Tenant fails or
refuses to select an Official, the Official selected shall alone determine the
disputed fact.  Landlord and Tenant
agree that they shall be bound by the determination of disputed fact pursuant
to this subsection.  Landlord shall bear
the fee and expenses of its Official, Tenant shall bear the fee and expenses of
its Official, and Landlord and Tenant shall share equally the fee and expense
of the third Official, if any.


 


 


[               IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands under seals,
the day and year first above written.


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
  Date:  As of January 15, 2003

  	
  11640 HARRELL, LLC, a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  BY:  IPA Parallel Acquisition, LLC, a Delaware
  limited liability company, Sole Member

  
	
   

  	
   

  
	
   

  	
  By:  IPA Parallel Fund-GP, LLC, a Delaware
  limited liability company, its Managing Member

  
	
   

  	
   

  
	
   

  	
  By:  IDI-GP, Inc., a Georgia corporation, its
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Henry D. Gregory,
  Jr

  
	
   

  	
   

  	
  Name: 

  	
  Henry D. Gregory Jr.

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


23

















 


	
   

  	
  TENANT:

  
	
   

  	
   

  
	
  Date:  As of January 15, 2003

  	
  SYRATECH CORPORATION, a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Gregory W. Hunt

  
	
   

  	
   

  	
  Name:

  	
  Gregory W. Hunt

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  	
   

  	
  /s/ Faye A. Florence

  
	
   

  	
   

  	
  Name:

  	
  Faye A. Florence

  
	
   

  	
   

  	
  Title:

  	
  Counsel

  
	
   

  	
   

  
	
   

  	
  [CORPORATE SEAL]

  
									



 


24

















 


ATTESTATION


 


 


Landlord – Limited
Liability Company:


 


 


STATE OF GEORGIA


 


COUNTY OF FULTON


 


 


BEFORE ME, a Notary
Public in and for said County, personally appeared Henry D. Gregory, Jr., known
to me to be the person(s) who, as President of IDI-GP, Inc., the Managing
Member of IPA Parallel Fund-GP, LLC, which is the Managing Member of IPA
Parallel Acquisition, LLC, which is the sole member of 11640 HARRELL, LLC, the
limited liability company which executed the foregoing instrument in its
capacity as Landlord, signed the same, and acknowledged to me that he did so
sign said instrument in the name and upon behalf of 11640 Harrell, LLC, as  such officer as aforesaid, that the same is
his free act and deed as such officer, and he was duly authorized thereunto by
the Board of Directors of IDI-GP, Inc., which was duly authorized by the
Executive Committee of IPA Parallel Fund-GP, LLC.


 


IN TESTIMONY WHEREOF, I
have hereunto subscribed my name, and affixed my official seal, this 2nd
day of January, 2002.


 


	
   

  	
   

  	
  /s/ Charlotte Robinson

  
	
   

  	
  Notary Public

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
  10/6/05

  
				



 


 


Tenant - Corporation:


 


 


STATE OF  Massachusetts


 


COUNTY OF  Suffolk


 


BEFORE ME, a Notary
Public in and for said County, personally appeared Gregory W. Hunt and Faye
A. Florence, known to me to be the person(s) who, as Chief Financial
Officer and Vice President and General Counsel, respectively, of SYRATECH
CORPORATION, the corporation which executed the foregoing instrument in its
capacity as Tenant, signed the same, and acknowledged to me that they did so
sign said instrument in the name and upon behalf of said corporation as
officers of said corporation, that the same is their free act and deed as such
officers, respectively, and they were duly authorized thereunto by its board of
directors; and that the seal affixed to said instrument is the corporate seal
of said corporation.


 


IN TESTIMONY WHEREOF, I
have hereunto subscribed my name, and affixed my official seal, this 20th day
of December, 2002.


 


 


	
   

  	
   

  	
  /s/ Theresa A. Losco

  
	
   

  	
  Notary Public

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
  9/20/07

  
				



 


25

















 


LEASE INDEX


 


 


	
  Section

  	
   

  	
  Subject

  
	
   

  	
   

  	
   

  
	
    1

  	
   

  	
  Basic Lease Provisions

  
	
   

  	
   

  	
   

  
	
    2

  	
   

  	
  Demised Premises

  
	
   

  	
   

  	
   

  
	
    3

  	
   

  	
  Term

  
	
   

  	
   

  	
   

  
	
    4

  	
   

  	
  Base Rent

  
	
   

  	
   

  	
   

  
	
    5

  	
   

  	
  Security Deposit

  
	
   

  	
   

  	
   

  
	
    6

  	
   

  	
  Operating Expenses and
  Additional Rent

  
	
   

  	
   

  	
   

  
	
    7

  	
   

  	
  Use of Demised Premises

  
	
   

  	
   

  	
   

  
	
    8

  	
   

  	
  Insurance

  
	
   

  	
   

  	
   

  
	
    9

  	
   

  	
  Utilities

  
	
   

  	
   

  	
   

  
	
  10

  	
   

  	
  Maintenance and Repairs

  
	
   

  	
   

  	
   

  
	
  11

  	
   

  	
  Tenant’s Personal
  Property; Indemnity

  
	
   

  	
   

  	
   

  
	
  12

  	
   

  	
  Tenant’s Fixtures

  
	
   

  	
   

  	
   

  
	
  13

  	
   

  	
  Signs

  
	
   

  	
   

  	
   

  
	
  14

  	
   

  	
  [INTENTIONALLY OMITTED]

  
	
   

  	
   

  	
   

  
	
  15

  	
   

  	
  Governmental
  Regulations

  
	
   

  	
   

  	
   

  
	
  16

  	
   

  	
  Environmental Matters

  
	
   

  	
   

  	
   

  
	
  17

  	
   

  	
  Construction of Demised
  Premises

  
	
   

  	
   

  	
   

  
	
  18

  	
   

  	
  Tenant Alterations and
  Additions

  
	
   

  	
   

  	
   

  
	
  19

  	
   

  	
  Services by Landlord

  
	
   

  	
   

  	
   

  
	
  20

  	
   

  	
  Fire and Other Casualty

  
	
   

  	
   

  	
   

  
	
  21

  	
   

  	
  Condemnation

  
	
   

  	
   

  	
   

  
	
  22

  	
   

  	
  Tenant’s Default

  
	
   

  	
   

  	
   

  
	
  23

  	
   

  	
  Landlord’s Right of
  Entry

  
	
   

  	
   

  	
   

  
	
  24

  	
   

  	
  Lender’s Rights

  
	
   

  	
   

  	
   

  
	
  25

  	
   

  	
  Estoppel Certificate
  and Financial Statement

  
	
   

  	
   

  	
   

  
	
  26

  	
   

  	
  Landlord’s Liability

  
	
   

  	
   

  	
   

  
	
  27

  	
   

  	
  Notices

  
	
   

  	
   

  	
   

  
	
  28

  	
   

  	
  Brokers

  
	
   

  	
   

  	
   

  
	
  29

  	
   

  	
  Assignment and
  Subleasing

  
	
   

  	
   

  	
   

  
	
  30

  	
   

  	
  Termination or
  Expiration

  
	
   

  	
   

  	
   

  
	
  31

  	
   

  	
  [INTENTIONALLY OMITTED]

  
	
   

  	
   

  	
   

  
	
  32

  	
   

  	
  Late Payments

  
	
   

  	
   

  	
   

  
	
  33

  	
   

  	
  Rules and Regulations

  
	
   

  	
   

  	
   

  
	
  34

  	
   

  	
  Quiet Enjoyment

  
	
   

  	
   

  	
   

  
	
  35

  	
   

  	
  Miscellaneous

  
	
   

  	
   

  	
   

  
	
  36

  	
   

  	
  Special Stipulations

  
	
   

  	
   

  	
   

  
	
  37

  	
   

  	
  Lease Date

  
	
   

  	
   

  	
   

  
	
  38

  	
   

  	
  Authority

  
	
   

  	
   

  	
   

  
	
  39

  	
   

  	
  No Offer Until Executed

  
	
   

  	
   

  	
   

  
	
  40

  	
   

  	
  Dispute Resolution
  Procedure

  



 

















 


	
  Exhibit “A”  Demised Premises

  
	
  Exhibit “B”  Work by Landlord

  
	
  Exhibit “C”  Special Stipulations

  
	
  Exhibit “D”  Rules and Regulations

  
	
  Exhibit “E”  Certificate of Authority

  



 

















 


INDUSTRIAL LEASE
AGREEMENT


 


 


BETWEEN


 


11640 HARRELL, LLC


 


AS LANDLORD


 


 


AND


 


 


SYRATECH
CORPORATION


 


AS TENANT


 

















 


EXHIBIT A


 


Demised Premises


 


a-1

















 


EXHIBIT B


 


Work by Landlord


 


 


1.              Clean and repair the floor where necessary,
including installing semi-rigid joint filler and sealing.


 


2.              Cut in new dock doors, including but not
limited to adding dock levelers, dock restraints, lights and dock seals.


 


3.              Repair and upgrade existing landscaping.


 


4.              Paint the exterior building walls and
interior of the vacated space.


 


5.              Repair, seal and stripe asphalt parking.


 


6.              Demo and construct new entry statement on
the east end of the building.


 


7.              Rework warehouse lighting.


 


8.              Split the existing electrical system.


 


9.              Repair damaged truck doors and seals.


 


10.        Divide building fire alarm.


 


11.        Construct new office area to accommodate
other tenant requirements.


 


b-1

















 


EXHIBIT C


 


Special Stipulations


 


The Special Stipulations
set forth herein are hereby incorporated into the body of the lease to which
these Special Stipulations are attached (the “Lease”), and to the extent of any
conflict between these Special Stipulations and the preceding language, these
Special Stipulations shall govern and control.


 


NONE


 


c-1

















 


EXHIBIT D


 


Rules And Regulations


 


 


These Rules and
Regulations have been adopted by Landlord for the mutual benefit and protection
of all the tenants of the Building in order to insure the safety, care and
cleanliness of the Building and the preservation of order therein.


 


1.             The sidewalks shall not be obstructed or used for any
purpose other than ingress and egress. 
No tenant and no employees of any tenant shall go upon the roof of the
Building without the consent of Landlord.


 


2.             No awnings or other projections shall be attached to the
outside walls of the Building.


 


3.             The plumbing fixtures shall not be used for any purpose
other than those for which they were constructed, and no sweepings, rubbish,
rags or other substances, including Hazardous Substances, shall be thrown
therein.


 


4.             No tenant shall cause or permit any objectionable or
offensive odors to be emitted from the Demised Premises.


 


5.             The Demised Premises shall not be used for (i) an auction,
“fire sale”, “liquidation sale”, “going out of business sale” or any similar
such sale or activity, (ii) lodging or sleeping, or (iii) any immoral or
illegal purposes.


 


6.             No tenant shall make, or permit to be made any unseemly
or disturbing noises, sounds or vibrations or disturb or interfere with tenants
of this or neighboring buildings or premises or those having business with
them.


 


7.             Each tenant must, upon the termination of this tenancy,
return to the Landlord all keys of stores, offices, and rooms, either furnished
to, or otherwise procured by, such tenant, and in the event of the loss of any
keys so furnished, such tenant shall pay to the Landlord the cost of replacing
the same or of changing the lock or locks opened by such lost key if Landlord
shall deem it necessary to make such change.


 


8.             Canvassing, soliciting and peddling in the Building and
the Project are prohibited and each tenant shall cooperate to prevent such
activity.


 


9.             Landlord will direct electricians as to where and how
telephone or telegraph wires are to be introduced.  No boring or cutting for wires or stringing of wires will be
allowed without written consent of Landlord. 
The location of telephones, call boxes and other office equipment
affixed to the Demised Premises shall be subject to the approval of Landlord.


 


10.           Parking spaces associated with the
Building are intended for the exclusive use of passenger automobiles.  Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express written permission of Landlord.  Trucks and tractor trailers may only be parked at designated
areas of the Building.  Trucks and
tractor trailers shall not block access to the Building.


 


11.           No tenant shall use any area within
the Project for storage purposes other than the interior of the Demised
Premises.


 


d-1

















 


EXHIBIT E


 


CERTIFICATE OF AUTHORITY


CORPORATION


 


The undersigned,
Secretary of SYRATECH CORPORATION, a Delaware corporation (“Tenant”), hereby
certifies as follows to 11640 HARRELL, LLC, a Delaware limited liability
company (“Landlord”), in connection with Tenant’s proposed lease of premises in
a building located at 11640 Harrel Street, Mira Loma, California (the “Premises”):


 


1.             Tenant is duly organized, validly existing and in good
standing under the laws of the State of Delaware, and duly qualified to do
business in the State of California.


 


2.             That the following named persons, acting individually,
are each authorized and empowered to negotiate and execute, on behalf of
Tenant, a lease of the Premises and that the signature opposite the name of
each individual is an authentic signature:


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (name)

  	
   

  	
  (title)

  	
   

  	
  (signature)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (name)

  	
   

  	
  (title)

  	
   

  	
  (signature)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (name)

  	
   

  	
  (title)

  	
   

  	
  (signature)

  



 


3.             That
the foregoing authority was conferred upon the person(s) named above by the
Board of Directors of Tenant, at a duly convened meeting held
                ,
200 .


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [CORPORATE SEAL]

  
										



 


e-1