THIRD AMENDMENT
THIS
THIRD AMENDMENT (hereinafter referred to as this
“Amendment”) is made this __27th__ day of _February,
2018_, by and between ICON OWNER POOL 1 SF NON-BUSINESS PARKS, LLC,
a Delaware limited liability company (“Landlord”), and
AEHR TEST SYSTEMS, a California corporation
(“Tenant”).
WITNESSETH:
WHEREAS, Landlord
(successor in interest to CWCA SCOTT CREEK 28, L.L.C., formerly
known as WALTON CWCA SCOTT CREEK 28, L.L.C., successor in interest
to SCOTT CREEK THREE TRUST) and Tenant are party to that certain
Multi-Tenant Office Triple Net Lease, dated as of July __, 1999
[
sic
] (the “Original
Lease”), as amended by that certain First Amendment, dated as
of April 1, 2008 (the “First Amendment”), as further
amended by that certain Second Amendment, dated as of November 3,
2014 (the “Second Amendment”, and collectively with the
Original Lease, and the First Amendment, the “Lease”,
as may be further amended or modified from time to time), pursuant
to which Landlord leases to Tenant certain premises consisting of
approximately 51,289 rentable square feet with a common address of
400 Kato Terrace, Fremont, California, as more particularly
described in the Lease (the “Premises”), and located in
the Project commonly known as Scott Creek Business Park.
Capitalized terms used herein but not otherwise defined shall have
the meanings ascribed thereto in the Lease.
WHEREAS, the Lease
Term is scheduled to expire on June 30, 2018, and Landlord and
Tenant desire to extend the existing Lease Term for an additional
sixty-one (61) full calendar months from such expiration date and
to amend the terms and conditions of the Lease as hereinafter
provided.
AGREEMENT:
NOW,
THEREFORE, in consideration of ten dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties, and the mutual covenants
set forth herein, the parties hereto agree as follows:
1.
Extension of Lease Term
. The Lease Term
is hereby extended for a period of sixty-one (61) full calendar
months, commencing as of July 1, 2018 (the “Third Extended
Lease Term Commencement Date”), and expiring on July 31, 2023
(the “Third Extended Lease Term”). From and after the
date hereof, the “Lease Term” shall be deemed to
include the Third Extended Lease Term.
2.
Base Rent
.
(a)
Base Rent Schedule
.
Effective as of the Third Extended Lease Term Commencement Date,
the monthly Base Rent for the Premises payable by Tenant to
Landlord during the Third Extended Lease Term is as
follows:
|
From:
|
To:
|
Base
Rent (per month)
|
|
July
1, 2018
|
June
30, 2019
|
$58,982.35
|
|
July
1, 2019
|
June
30, 2020
|
$60,751.82
|
|
July
1, 2020
|
June
30, 2021
|
$62,574.38
|
|
July
1, 2021
|
June
30, 2022
|
$64,451.61
|
|
July
1, 2022
|
July
31, 2023
|
$66,385.16
|
Except
as otherwise set forth in this Amendment, all other terms and
conditions with respect to the payment of Base Rent, Direct
Expenses, or any other sums due and payable by Tenant under the
Lease shall remain as set forth thereunder.
(b)
Base Rent Abatement Period
.
Notwithstanding the foregoing subsection (a), Tenant’s
obligation to pay Base Rent shall be conditionally abated as
follows (the “Base Rent Abatement
Period”):
|
From:
|
To:
|
Base
Rent
(per
month)
|
Base
Rent Abated
(per
month)
|
Base
Rent Due and Payable
(per
month)
|
|
July
1, 2018
|
July
31, 2018
|
$58,982.35
|
$58,982.35
|
$0.00
|
During
the Base Rent Abatement Period, Tenant’s obligation to pay
Direct Expenses and any and all other charges pursuant to the terms
of the Lease shall continue in full force and effect without
abatement of any kind. The abatement of Base Rent described above
is expressly conditioned on Tenant’s performance of its
obligations under the Lease throughout the Lease Term. If there is
an event of default by Tenant under the Lease and such event of
default leads to the enforcement of any remedies against Tenant
(including the termination of the Lease prior to the expiration of
the Lease Term), then Tenant shall immediately pay to Landlord on
demand, in addition to all other amounts and damages to which
Landlord is entitled, the amount of Base Rent which would otherwise
have been due and payable during any portion of the Base Rent
Abatement Period.
3.
Letter of Credit
.
3.1.
Effective as of the
date hereof, Section 8 of the Summary (defined in the Original
Lease), Article 21 of the Original Lease, Section 3 and Section 4
of the First Amendment, and Section 4 of the Second Amendment are
hereby deemed null and void and of no further force and
effect.
3.2.
Concurrently with
Tenant’s execution and delivery of this Amendment, Tenant
shall deliver to Landlord, at Tenant’s sole cost and expense,
an unconditional, irrevocable, standby letter of credit (the
“Second Letter of Credit”) with an expiration date no
earlier than one (1) year after the Third Extended Lease Term
Commencement Date in the amount of Seventy-Nine Thousand Nine
Hundred Ninety-Nine and 5/100ths Dollars ($79,999.05) (the
“Second Letter of Credit Amount”), in the form attached
hereto as
Exhibit A
or in such other form as is reasonably acceptable to Landlord.
Tenant shall keep the Second Letter of Credit in place until the
date that is at least ninety (90) days following
the expiration or earlier
termination of the Lease. The Second Letter of Credit shall secure
the full and faithful performance of each provision of the Lease to
be performed by Tenant pursuant to the following terms and
conditions.
3.2.1.
The
Second Letter of Credit shall state on its face that,
notwithstanding the stated expiration date, the term of the Second
Letter of Credit shall be automatically renewed for successive,
additional one (1) year periods unless, at least ninety (90) days
prior to any such date of expiration, the issuing bank shall have
given written notice to Landlord, by certified mail, return receipt
requested at the Landlord’s address for notices under the
Lease, or such other address as Landlord shall have given to the
issuing bank, that the Second Letter of Credit will not be renewed.
The failure of Tenant to cause the Second Letter of Credit to be
renewed or reissued at least sixty (60) days prior to the
expiration thereof shall constitute an event of default by Tenant
under the Lease.
3.2.2.
The
Second Letter of Credit shall be issued by a financial institution
reasonably acceptable to Landlord, which financial institution
shall be a bank that accepts deposits, maintains accounts, will
negotiate letters of credit, and whose deposits are insured by the
FDIC. The Second Letter of Credit must be presentable in Chicago,
Illinois or such other United States location reasonably acceptable
to Landlord. If the financial institution that issues the Second
Letter of Credit makes a general assignment for the benefit of
creditors, or commences any case, proceeding or other action
seeking to have an order for relief entered on its behalf as a
debtor or to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution
or composition of it or its debts or seeking appointment of a
receiver, trustee, custodian or other similar official for it or
for all or of any substantial part of its property, or loses or has
its charter revoked, goes into receivership, or is otherwise taken
over by any regulatory agency which oversees such issuer, then
Tenant shall, promptly, but in no event later than ten (10) days
after the occurrence of such event, deliver a replacement Second
Letter of Credit to Landlord in the full Second Letter of Credit
Amount and otherwise in accordance with the requirements set forth
in this Section 3.2, and promptly upon Landlord’s receipt of
the replacement Second Letter of Credit, Landlord shall return to
Tenant the Second Letter of Credit being replaced.
3.2.3.
If
Tenant fails to perform fully and timely all or any of
Tenant’s covenants and obligations set forth in the Lease,
including, without limitation, Tenant’s failure to renew the
Second Letter of Credit at least ninety (90) days prior to the
expiration thereof, or if Tenant has filed a voluntary petition
under the federal bankruptcy code or an involuntary petition has
been filed against Tenant under the federal bankruptcy code,
Landlord may, without notice to Tenant, execute one or more drafts
on the Second Letter of Credit and apply all or any portion of the
Second Letter of Credit toward fulfillment of Tenant’s
unperformed covenants and/or obligations, including any Rent
payable by Tenant that is not paid when due; provided, however,
that a failure of Tenant to renew the Second Letter of Credit in
accordance with this Section 3.2 shall entitle Landlord to execute
a draft for the entire amount of the Second Letter of Credit and
such proceeds shall be deemed the property of Landlord until such
time as Tenant delivers a replacement Second Letter of Credit to
Landlord in the full Second Letter of Credit Amount and otherwise
in accordance with the requirements set forth in this Section 3.2,
and promptly upon Landlord’s receipt of the replacement
Second Letter of Credit, Landlord shall apply the amount of
proceeds drawn from the issuing bank upon Tenant’s failure to
renew the Second Letter of Credit against the next due
installment(s) of Base Rent under the Lease. Any proceeds drawn
shall constitute the property of Landlord and need not be
segregated from Landlord’s other assets. If, as a result of
any application or use by Landlord of all or any part of the Second
Letter of Credit, the amount of the Second Letter of Credit shall
be less than the Second Letter of Credit Amount, Tenant shall,
within ten (10) days thereafter, provide Landlord with additional
letter(s) of credit in an amount equal to the deficiency, and any
such additional (or replacement) letter of credit shall comply with
all of the provisions of this section and if Tenant fails to comply
with the foregoing, notwithstanding anything to the contrary
contained in the Lease, the same shall constitute an immediate
event of default by Tenant.
3.2.4.
Ninety
(90) days after Tenant vacates the Premises, upon the expiration or
sooner termination of the Lease, if Tenant is not then in default,
Landlord shall return to Tenant the Second Letter of Credit (and
any unapplied cash balance of the Second Letter of Credit that had
been previously drawn upon); provided that Landlord may retain the
Second Letter of Credit (or previously drawn proceeds therefrom)
until such time as any Rent and Additional Rent due from Tenant for
known defaults in accordance with the Lease has been determined and
paid in full by Tenant.
3.2.5.
In
no event or circumstance shall the Second Letter of Credit or any
renewal thereof or any proceeds thereof be deemed to be or treated,
or intended to serve as a “security deposit” within the
meaning of any applicable law or statute. Tenant hereby waives the
provisions of any applicable law, statute, ordinance, or other
governmental rule, regulation or requirement which establishes the
time frame by which Landlord must refund collateral or security for
performance of a tenant’s obligations under a lease. Tenant
agrees and acknowledges that Tenant has no property interest
whatsoever in the Second Letter of Credit or the proceeds thereof
and that, in the event Tenant becomes a debtor under any chapter of
the Federal Bankruptcy Code, neither Tenant, any trustee, nor
Tenant’s bankruptcy estate shall have any right to restrict
or limit Landlord’s claim and/or rights to the Second Letter
of Credit and/or the proceeds thereof by application of Section
502(b)(6) of the federal bankruptcy code or otherwise.
3.2.6.
Should
the Permitted Use be amended to accommodate a change in the
business of Tenant or to accommodate a subtenant or assignee,
Landlord shall have the right to increase the Second Letter of
Credit to the extent necessary, in Landlord’s reasonable
judgment, to account for any increased risk to the Premises or
increased wear and tear that the Premises may suffer as a result
thereof. If a change in control of Tenant occurs during the Lease
and following such change the financial condition of Tenant is, in
Landlord’s reasonable judgment, materially reduced, Tenant
shall deposit such additional monies with Landlord as shall be
sufficient to cause the Second Letter of Credit to be at a
commercially reasonable level based on said change in financial
condition.
3.2.7.
Tenant
acknowledges that Landlord has the right to sell, mortgage or
otherwise convey its interests in the Land and the Building and in
the Lease. Tenant agrees that in the event of any such sale,
mortgage or other transfer, Landlord shall have the right to
transfer, assign and/or endorse the Second Letter of Credit to
Landlord’s master lessors, ground lessors, mortgagees or
other transferees or assignees and, so long as such master lessors,
ground lessors, mortgagees or other transferees or assignees are
given physical possession of the Second Letter of Credit and assume
the obligations of Landlord under the Lease with respect to same.
Tenant shall look solely to such parties for the return of the
Second Letter of Credit in accordance with the terms of the Lease.
Tenant agrees further that, upon Landlord’s written request,
it shall have the Second Letter of Credit issued, at Tenant’s
sole cost and expense, in favor of Landlord’s master lessor,
ground lessor, mortgagee or other transferee or assignee to be held
by any such party in accordance with the terms of the
Lease.
4.
AS-IS Condition; Tenant’s
Work
.
(a)
AS-IS
Condition
. Tenant hereby acknowledges and agrees that it has
accepted the Premises as of the date hereof, and will continue to
accept the Premises as of the Third Extended Lease Term
Commencement Date, in AS-IS, WHERE-IS condition without any
representation or warranty of any kind made by Landlord in favor of
Tenant.
(b)
Tenant’s Work
.
Notwithstanding the foregoing subsection (a), Tenant may complete
the work set forth on
Exhibit B
attached hereto in
accordance with the terms and conditions set forth on such
exhibit.
5.
Insurance
. Effective solely with respect
to the period from and after the Third Extended Lease Term
Commencement Date, the Section 10.3, Section 10.4, and Section 10.5
of the Original Lease are hereby amended and restated in their
entirety as follows:
“10.3
Tenant’s
Insurance
. Tenant, at its sole cost and expense, shall
maintain during the Lease Term the following insurance:
(1) commercial general liability insurance applicable to the
Premises and its appurtenances providing, on an occurrence basis, a
minimum combined single limit of $1,000,000 primary per occurrence
and $2,000,000 annual aggregate; and in the event property of
Tenant’s invitees or customers are kept in, or about the,
Premises, Tenant shall maintain warehouser’s legal liability
or bailee customers insurance for the full value of the property of
such invitees or customers as determined by the warehouse contract
between Tenant and its customer; (2) special cause of loss
form property insurance covering the full replacement cost of all
property and improvements installed or placed in the Premises by or
on behalf of Tenant, and shall include coverage for damage or other
loss caused by fire or other peril, including vandalism and
malicious mischief, theft, water damage of any type, including
sprinkler leakage or stoppage of pipes, and explosion, and
providing business interruption coverage for a period of one year;
(3) workers’ compensation insurance as required by the
state in which the Premises is located and in amounts as may be
required by applicable statute and shall include a waiver of
subrogation in favor of Landlord; (4) employers liability
insurance of at least $1,000,000; (5) business automobile
liability insurance having a combined single limit of not less than
$1,000,000 per occurrence insuring Tenant against liability arising
out of the ownership maintenance or use of any owned, hired or
nonowned automobiles; and (6) an umbrella liability policy or
excess liability policy having a limit of not less than $3,000,000,
which policy shall be in “following form” and shall
provide that if the underlying aggregate is exhausted, the excess
coverage will drop down as primary insurance. Such umbrella
liability policy or excess liability policy shall include coverage
for additional insureds.
10.4
Form of
Policies
. Any company writing any of Tenant’s
insurance shall have an A.M. Best rating of not less than A-VIII
and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed
excess over Tenant’s policies). All commercial general
liability and, if applicable, warehouser’s legal liability or
bailee customers insurance policies of Tenant shall (a) name
Tenant as a named insured and Landlord, its property manager, and
other designees of Landlord as the interest of such designees shall
appear, as additional insureds; and (b) be primary insurance
as to all claims thereunder and provide that any insurance carried
by Landlord is excess and non-contributing with Tenant’s
insurance. The limits and types of insurance maintained by Tenant
shall not limit Tenant’s liability under this Lease. Tenant
shall provide Landlord with certificates of such insurance as
required under this Lease prior to or upon the date of
commencement, and thereafter upon renewals prior to the expiration
of the insurance coverage. Such certificates shall be on forms
currently designated “ACORD 25” (Certificate of
Liability Insurance) and “ACORD 28” (Evidence of
Commercial Property Insurance) or the equivalent. Attached to the
ACORD 25 (or equivalent) there shall be an endorsement naming
Landlord, its property manager, and other designees of Landlord as
additional insureds, and attached to the ACORD 28 (or equivalent)
there shall be an endorsement designating Landlord as a loss payee
with respect to Tenant’s property insurance on any
Tenant-insured improvements, and each such endorsement shall be
binding on Tenant’s insurance company. Acceptance by Landlord
of delivery of any certificates of insurance does
not
constitute
approval or
agreement by Landlord that the insurance requirements of this
section have been met, and failure of Landlord to identify a
deficiency from evidence provided will not be construed as a waiver
of Tenant’s obligation to maintain such insurance. In the
event any of the insurance policies required to be carried by
Tenant under this Lease shall be cancelled prior to the expiration
date of such policy, or if Tenant receives notice of any
cancellation of such insurance policies from the insurer prior to
the expiration date of such policy, Tenant shall:
(i) immediately deliver notice to Landlord that such insurance
has been, or is to be, cancelled, (ii) shall promptly replace
such insurance policy in order to assure no lapse of coverage shall
occur, and (iii) shall deliver to Landlord a certificate of
insurance for such policy.
10.5
Subrogation
.
Whenever (1) any loss, cost, damage or expense is incurred by
either Landlord or Tenant or by anyone claiming by, through or
under Landlord or Tenant in connection with the Premises, and
(2) such party is covered in whole or in part by property or
business interruption insurance (or would have been covered but for
such party’s failure to maintain the property or business
interruption coverage required in this Section 9; or would
have been covered but for such party’s election to
self-insure as expressly permitted hereunder, if applicable) with
respect to such loss, cost, damage or expense, then the party so
insured (or so required) hereby waives (on its own behalf and on
behalf of its insurer) any claims against and releases the party
from any liability said other party may have on account of such
loss, cost, damage or expense. All insurance which is carried by
either party to insure against damage or loss to property shall
include provisions denying to each respective insurer rights of
subrogation and recovery against the other
party.”
6.
Landlord’s Notice Address
.
Landlord’s address for notices set forth in the Lease is
hereby deleted in its entirety and is replaced with the
following:
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c/o GLP
US Management LLC
Two
North Riverside Plaza, Suite 2350
Chicago, IL
60606
Attn:
Lease Administration
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With a
copy to
:
c/o
GLP US Management LLC
5000
Birch Street, Suite 505
Newport
Beach, CA 92660
Attention:
Regional Director
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7.
Address For Rent Payment.
The address
for rent payment and wire instructions set forth in the Lease are
hereby deleted in their entirety and are replaced with the
following:
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US Mail
:
ICON
OWNER POOL 1 SF NON-BUSINESS PARKS, LLC
PO BOX
843950
LOS
ANGELES, CA 90084-3950
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Wire and ACH
Instructions
:
BANK NAME: WELLS FARGO BANK
CITY/STATE: SAN FRANCISCO CA
ABA# 121000248
ACCOUNT # 4155756281
ACCOUNT
NAME: ICON OWNER POOL 1 SF
NON-BUSINESS
PARKS, LLC
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8.
Additional Changes
. Effective as of the
date hereof, Section 4.2.6(e) of the Original Lease, and Section 7
of the Second Amendment are hereby deemed null and void and of no
further force and effect.
9.
Roof
. Notwithstanding anything to the
contrary in the Lease, Landlord may elect, in its sole discretion
and from time to time, to install (or permit the installation of)
telecommunication equipment, solar equipment and panels, and any
other equipment for any other uses on the roof of the
Premises.
10.
OFAC
. Tenant hereby represents and
warrants that, to the best of its knowledge, neither Tenant, nor
any persons or entities holding any legal or beneficial interest
whatsoever in Tenant, are (i) the target of any sanctions
program that is established by Executive Order of the President or
published by the Office of Foreign Assets Control, U.S. Department
of the Treasury (“OFAC”); (ii) designated by the
President or OFAC pursuant to the Trading with the Enemy Act, 50
U.S.C. App. § 5, the International Emergency Economic
Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public
Law 107-56, Executive Order 13224 (September 23, 2001) or any
Executive Order of the President issued pursuant to such statutes;
or (iii) named on the following list that is published by OFAC:
“List of Specially Designated Nationals and Blocked
Persons.” If the foregoing representation is untrue at any
time during the Lease Term, an event of default will be deemed to
have occurred, without the necessity of notice to the defaulting
party.
11.
California
. To allow for compliance with
building performance benchmarking and disclosure laws and
regulations (including, but not limited to, compliance with
California Public Resources Code §25402.10 and similar or
successor laws), Tenant, promptly upon request, shall deliver to
Landlord (or, at Landlord’s option, execute and deliver to
Landlord an instrument enabling Landlord to obtain from such
provider) any data about Tenant’s utility consumption.
To Landlord's actual knowledge, the
Premises has not undergone an inspection by a certified access
specialist. For purposes of the preceding sentence, Landlord's
actual knowledge shall mean and be limited to the actual knowledge
of the person who is Landlord's asset manager (not the Building's
property manager) on the date this Amendment is executed by
Landlord, without any duty of inquiry or investigation, and such
asset manager shall have no personal liability if such
representation is untrue. California Civil Code Section 1938
provides in relevant part as follows: “A Certified
Access
Specialist (CASp) can inspect
the subject premises and determine whether the subject premises
comply with all of the applicable construction-related
accessibility standards under state law. Although state law does
not require a CASp inspection of the subject premises, the
commercial property owner or lessor may not prohibit the lessee or
tenant from obtaining a CASp inspection of the subject premises for
the occupancy or potential occupancy of the lessee or tenant, if
requested by the lessee or tenant. The parties shall mutually agree
on the arrangements for the time and manner of the CASp inspection,
the payment of the fee for the CASp inspection, and the cost of
making any repairs necessary to correct violations of
construction-related accessibility standards within the
premises.” Nothing in this paragraph or California Civil Code
Section 1938 shall relieve or modify Tenant’s obligations
with respect to (i) compliance with all applicable laws, statutes,
ordinances, or other governmental rules, regulations or
requirements,
including without
limitation, construction-related accessibility standards, as set
forth in the Lease, or (ii) payment of Direct Expenses as set forth
in the Lease. Tenant hereby agrees that any Tenant-initiated CASp
inspection (i) shall be at Tenant’s sole cost and expense,
and (ii) shall take place during normal business hours following
reasonable prior written notice to Landlord. Any information
contained in a CASp report shall be maintained as
confidential.
12.
Tenant’s Broker
. Tenant represents
and warrants that it has dealt with no broker, agent or other
person in connection with this transaction and that no broker,
agent or other person brought about this transaction other than
CBRE. Tenant agrees to indemnify and hold Landlord harmless from
and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing
transaction.
13.
No Offer
. Submission of this Amendment
by Landlord is not an offer to enter into this Amendment, but
rather is a solicitation for such an offer by Tenant. Landlord
shall not be bound by this Amendment until Landlord and Tenant have
fully executed and delivered this Amendment.
14.
Authority
. Tenant represents and
warrants to Landlord that Tenant has been and is qualified to do
business in the state in which the Premises is located, that the
entity has the full right and authority to enter into this
Amendment, and that all persons signing on behalf of the entity
were authorized to do so by appropriate actions.
15.
Severability
. If any clause or provision
of this Amendment is illegal, invalid or unenforceable under
present or future laws, then and in that event, it is the intention
of the parties hereto that the remainder of this Amendment shall
not be affected thereby. It is also the intention of the parties to
this Amendment that in lieu of each clause or provision of this
Amendment that is illegal, invalid or unenforceable, there be
added, as a part of this Amendment, 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.
16.
Counterparts and Delivery
. This
Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of such
counterparts shall constitute one Amendment. Execution copies of
this Amendment may be delivered by facsimile or email, and the
parties hereto agree to accept and be bound by facsimile signatures
or scanned signatures transmitted via email hereto, which
signatures shall be considered as original signatures with the
transmitted Amendment having the binding effect as an original
signature on an original document. Notwithstanding the foregoing,
Tenant shall, upon Landlord’s request, deliver original
copies of this Amendment to Landlord at the address set forth in
such request. Neither party may raise the use of a facsimile
machine or scanned document or the fact that any signature was
transmitted through the use of a facsimile machine or email as a
defense to the enforcement of this Amendment.
17.
Conflict; Ratification
. Insofar as the
specific terms and provisions of this Amendment purport to amend or
modify or are in conflict with the specific terms, provisions and
exhibits of the Lease, the terms and provisions of this Amendment
shall govern and control. Landlord and Tenant hereby agree that (a)
this Amendment is incorporated into and made a part of the Lease,
(b) any and all references to the Lease hereinafter shall include
this Amendment, and (c) the Lease, and all terms, conditions and
provisions of the Lease, are in full force and effect as of the
date hereof, except as expressly modified and amended
hereinabove.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE
FOLLOWS.]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly authorized, executed
and delivered as of
the day and year first set forth above.
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TENANT:
AEHR
TEST SYSTEMS,
a
California corporation
By
/s/ David
Fucci
Name:
David
Fucci
Title:
Vice President of
Operations
By
________________________________
Name:
________________________________
Title:
________________________________
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LANDLORD:
ICON
OWNER POOL 1 SF
NON-BUSINESS PARKS,
LLC,
a
Delaware limited liability company
By: GLP
US Management LLC,
a
Delaware limited liability company,
as
agent for Landlord
By:
/s/ Robert Munson
Name:
Robert Munson
Title:
SVP-Regional
Director
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EXHIBIT
A
FORM OF LETTER OF CREDIT
________________________________
[Name
of Financial Institution]
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Irrevocable
Standby
Letter
of Credit
No.
_________________________
Issuance
Date:
________________
Expiration
Date:
_______________
Applicant: AEHR
TEST SYSTEMS
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Beneficiary
ICON
OWNER POOL 1 SF NON-BUSINESS PARKS, LLC
c/o GLP
US Management LLC
Two
North Riverside Plaza, Suite 2350
Chicago,
Illinois 60606
Attention:
Treasury Department
cc:
ICON
OWNER POOL 1 SF NON-BUSINESS PARKS, LLC
c/o GLP US Management LLC
5000 Birch Street, Suite 505
Newport Beach, CA 92660
Attention: Regional Director
Ladies/Gentlemen:
We
hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of the above referenced Applicant in the
amount of Seventy-Nine Thousand Nine Hundred Ninety-Nine and
5/100ths U.S. Dollars ($79,999.05) available for payment at sight
by your draft drawn on us when accompanied by the following
documents:
1. An
original copy of this Irrevocable Standby Letter of
Credit.
2. Beneficiary’s
dated statement purportedly signed by an authorized signatory or
agent reading: "This draw in the amount of ______________________
U.S. Dollars ($____________) under your Irrevocable Standby Letter
of Credit No. ____________________ represents funds due and owing
to us pursuant to the terms of that certain lease by and between
ICON OWNER POOL 1 SF NON-BUSINESS PARKS, LLC, a Delaware limited
liability company, as landlord, and AEHR TEST SYSTEMS, a California
corporation, as tenant, and/or any amendment to the lease or any
other agreement between such parties related to the
lease."
It is a
condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one (1) year period upon
the expiration date set forth above and upon each anniversary of
such date, unless at least ninety (90) days prior to such
expiration date or applicable anniversary thereof, we notify you in
writing, by certified mail return receipt requested or by
recognized overnight courier service at the addresses set forth
above, that we elect not to so renew this Irrevocable Standby
Letter of Credit. In addition to the foregoing, we understand and
agree that you shall be entitled to draw upon this Irrevocable
Standby Letter of Credit in accordance with 1 and 2 above in the
event that we elect not to renew this Irrevocable Standby Letter of
Credit. We further
acknowledge
and agree that: (a) upon receipt of the documentation required
herein, we will honor your draws against this Irrevocable Standby
Letter of Credit without inquiry into the accuracy of
Beneficiary’s signed statement and regardless of whether
Applicant disputes the content of such statement; (b) this
Irrevocable Standby Letter of Credit shall permit partial draws
and, in the event you elect to draw upon less than the full stated
amount hereof, the stated amount of this Irrevocable Standby Letter
of Credit shall be automatically reduced by the amount of such
partial draw; and (c) you shall be entitled to transfer your
interest in this Irrevocable Standby Letter of Credit from time to
time and more than one time without our approval and without
charge. In the event of a transfer, we reserve the right to require
reasonable evidence of such transfer as a condition to any draw
hereunder.
Presentation made
under and in compliance with the terms and conditions of this
Letter of Credit received at our office prior to 10:00 a.m. central
time on a banking day will be duly honored on the next banking day.
Presentation made under and in compliance with the terms and
conditions of this Letter of Credit received at our office after
10:00 a.m. central time on a banking day will be duly honored on
the second banking day following presentation.
All
charges and fees associated with this Irrevocable Standby Letter of
Credit, including upon any transfer of the Letter of Credit, shall
be for the account of Applicant.
This
Irrevocable Standby Letter of Credit is subject to the
International Standby Practices (ISP98) ICC Publication
No. 590.
We
hereby engage with you to honor drafts and documents drawn under
and in compliance with the terms of this Irrevocable Standby Letter
of Credit.
All
communications to us with respect to this Irrevocable Standby
Letter of Credit must be addressed to our office located at
_________________________________________________________________
to the attention of
__________________________________.
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Very
truly yours,
____________________________
[name]
[title]
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EXHIBIT B
TENANT’S WORK
(a)
AS-IS Condition
. Tenant shall lease the
Premises from Landlord on an “AS-IS” basis, without any
representation or warranty of any kind made by Landlord in favor of
Tenant and without change or modification thereto of any kind other
than the work described in this exhibit.
(b)
Tenant’s Work
. Notwithstanding the
foregoing subsection (a), Landlord shall contribute up to a maximum
amount of $51,289.00 (the “Allowance”) towards
Tenant’s alterations and improvements to the Premises as
specified below (collectively, the “Tenant’s
Work”):
1.
Paint the existing
office portion of the Premises.
2.
Install flooring
within the office portion of the Premises in lieu of existing
flooring.
(c)
Landlord’s Approval; Tenant’s
Obligations
. The Tenant’s Work shall be subject to the
terms of Article 8 of the Original Lease. In addition to obtaining
Landlord’s consent as and when required pursuant to Article 8
of the Original Lease, Tenant shall obtain Landlord’s prior
written consent for any of the Tenant’s Work for which Tenant
will seek reimbursement from the Allowance. In all cases, Tenant
shall deliver plans and specifications for the Tenant’s Work,
and any other documentation reasonably requested by Landlord, to
Landlord for approval prior to commencing any of the Tenant’s
Work. All of the Tenant’s Work shall be constructed and
undertaken in a good and workmanlike manner and in compliance with
all applicable laws, statutes, ordinances, or other governmental
rules, regulations or requirements, and Tenant shall perform, at
its expense, any alteration or modification required by any
applicable laws as a result of the Tenant’s Work. Landlord
may monitor the construction of the Tenant’s Work, subject to
the obligation to provide prior notice to Tenant of any entry onto
the Premises (except in the case of emergency, in which case no
prior notice is required). In the event the scope of work requested
by Tenant is such that Landlord elects to engage a third-party
architect, engineer, or other similar consultant or professional to
review such proposed work, Tenant shall reimburse Landlord for its
actual, reasonable out-of-pocket costs in reviewing plans and
specifications and in monitoring the construction for compliance
with such approved plans and specifications. Landlord’s right
to approve the Tenant’s Work and to monitor construction
shall be solely for its own benefit, and Landlord shall have no
duty to see that the Tenant’s Work complies with any
applicable law, statute, ordinance, or other governmental rule,
regulation or requirement. In addition, Landlord may collect a
construction management fee in an amount which shall be calculated
based upon the scope of the Tenant’s Work as described herein
and any additional work requested by Tenant and agreed to by
Landlord, taking into account costs generally payable for similar
services within the market area in which the Building is located,
and such fee shall be paid, in part or in whole, from the Allowance
with any amount not covered by the Allowance to be paid by Tenant
directly to Landlord (or, at Landlord’s election, to
Landlord’s property manager). Landlord shall provide Tenant
with a good faith estimated cost of the expected construction
management fee; provided, however, Tenant hereby agrees and
acknowledges that the estimated cost of such fee is an estimate
only and Landlord makes no guaranty or warranty that such estimate
will be accurate.
(d)
Allowance
. The Allowance may be used
only for the hard costs and Eligible Soft Costs (as hereinafter
defined) of construction of the Tenant’s Work pursuant to the
approved plans and specifications. “Eligible Soft
Costs” shall be deemed to be costs and expenses incurred by
Tenant which are directly and primarily related to the
Tenant’s Work and which relate solely to the work of any
architect, space planner, engineer, or similar construction
professional or which are direct payments made to applicable
authorities for permitting and license fees; provided, however,
that in no event shall the Eligible Soft Costs exceed fifteen
percent (15%) of the total Allowance or be used for services
provided in connection with the negotiation of the Lease. For the
avoidance of doubt, Eligible Soft Costs shall expressly exclude any
financing costs, attorneys’ fees, or other costs and expenses
not expressly permitted hereunder. In no event will the Allowance
be used to pay for moving or storage expenses or furniture,
racking, equipment, cabling, telephone systems or any other item of
personal property which is not intended to be permanently affixed
to the Premises. Payment of the Allowance shall be made by Landlord
to Tenant within thirty (30) days following the last to occur of:
(i) completion of the Tenant’s Work, (ii) Landlord’s
receipt of
Tenant’s
invoice substantiating the costs related thereto, (iii)
Landlord’s receipt of final lien waivers from all contractors
and subcontractors who performed the Tenant’s Work, and (iv)
Landlord’s receipt of a copy of the final permit approved by
the applicable governing authority for any work which requires the
same. Landlord shall be under no obligation to pay for any of the
Tenant’s Work in excess of the Allowance. Further, the
Allowance shall only be available for Tenant’s use for work
performed and submitted for reimbursement in accordance with the
terms of this exhibit on or prior to December 31, 2018, at which
time Tenant hereby waives any and all rights to any unused portion
of the Allowance.