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Exhibit
10.28
FIRST AMENDMENT
TO
STANDARD
INDUSTRIAL/COMMERCIAL
MULTI-TENANT
LEASE—MODIFIED NET
This FIRST AMENDMENT TO
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE—MODIFIED
NET (“Amendment”) is dated as of July 26, 2007, by
and between LBA REALTY FUND II—WBP II, LLC, a Delaware
limited liability company (“Lessor”), as
successor-in-interest to Bedford Property Investors, Inc.
(“Bedford”), and LESLIE’S POOLMART, INC., a
Delaware corporation (“Lessee”), formerly
LESLIE’S POOLMART (INC.), a California corporation
(“Corporation”).
R E C
I T A L S :
A. Bedford and Corporation
entered into that certain Standard Industrial/Commercial
Multi-Tenant Lease—Modified Net dated November 26, 1996
(the “Lease”), pursuant to which Lessor currently
leases to Lessee that certain space known as 1595 Dupont Avenue,
Ontario, California (the “Premises”). The Building is
part of the development known as Dupont Industrial Center (the
“Project”). The Premises contains approximately 183,244
aggregate square feet of Rentable Area. Lessor has succeeded to
Bedford’s interest as Lessor under the Lease. Corporation has
merged out of existence into LESLIE’S POOLMART, INC., a
Delaware corporation.
B. Defined terms which are
used in this Amendment without definition have the meanings given
to them in the Lease.
C. Lessee exercised, by
written notice dated as of July 21, 2006 (the “Extension
Notice”), Lessee’s first of two (2) options to
renew the Lease, and Lessee and Lessor hereby agree to extend the
Original Term of the Lease for one (1) period of five
(5) years upon the terms and conditions set forth below.
Lessee and Lessor have agreed to modify and extend the first option
term to ninety-five (95) months.
A G R
E E M E N T :
NOW, THEREFORE, in
consideration of the foregoing Recitals, the mutual covenants and
agreements contained in this Amendment and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Lessor and Lessee hereby agree as follows:
1. First Extended
Term. Lessor and Lessee agree that the Term of the Lease which
expired January 31, 2007 shall be extended for ninety-five
(95) months (the “First Extended Term”),
commencing as of February 1, 2007 (the “Extended Term
Commencement Date”) and expiring on December 31, 2014,
unless sooner terminated pursuant to the terms of the Lease. Lessee
shall have the right to extend the First Extended Term for one
(1) remaining additional and consecutive period of five
(5) years upon written notice to Lessor delivered not more
than twelve (12) months, and not less than nine
(9) months, prior to the First Extended Term expiration date
and otherwise upon the terms and conditions as set forth in
Paragraph 18 of the Addendum to Lease dated November 26,
1996.
2. Base Rent.
Effective as of the Extended Term Commencement Date and during the
First Extended Term, Lessee shall pay Base Rent for the Premises to
Lessor in accordance with the following schedule:
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Lease Period (in
Months)*
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Base Rent per Month |
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01-12
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$ |
21,646.58 |
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13-30
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$ |
64,135.40 |
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31-54
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$ |
67,342.17 |
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55-78
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$ |
70,709.28 |
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79-95
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$ |
74,244.75 |
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Measured from the Extended Term Commencement Date |
3. Condition of Premises:
Allowance for Lessee’s Work. Lessor shall have no
obligation whatsoever to alter or improve the condition of the
Premises and Lessee hereby
accepts the Premises “AS
IS”. Notwithstanding the above and subject to Lessee’s
execution of this Amendment, within thirty (30) days after the
date hereof, Lessor shall pay to Lessee an allowance in the amount
of Two Hundred Twenty-Five Thousand and no/100 Dollars
($225,000.00) for improvements to the Premises previously performed
by Lessee.
4. Lessee’s Pro Rata
Share. As of the Extended Term Commencement Date and continuing
for the duration of the First Extended Term, Lessee occupies 100%
of the Building and Lessee’s Pro Rata Share of the Project is
40.6%, based upon 183,244 square feet of Rentable Area in the
Premises and 451,192 total square feet of Rentable Area in the
Project.
5. Right to Lease
Additional Space .
(a) Subject to the terms of
this Paragraph 5, Lessee shall have an on-going right to lease
(“ Lessee’s Right to Lease ”) additional
space in the Project to the extent such space becomes available for
lease to third parties during the First Extended Term and following
the expiration of any lease for such space, including the
expiration of all renewal or extension options (“ First
Offer Space ”). Lessee’s Right to Lease is subject
and subordinate to the current rights of all other existing tenants
of the Building or Project with prior expansion or lease rights
relative to any First Offer Space and Lessee’s Right to Lease
is superior to future rights granted to future tenants of the
Building or Project relative to any First Offer Space.
(b) Upon written request from
Lessee, Lessor will give Lessee written notice of any qualified
First Offer Space in the Project which is then available or is
expected to come available within six (6) months after the
date of Lessee’s request and the date the existing tenant or
occupant, if any, is expected to vacate such space (“
Lessor’s Availability Notice ”). Within five
(5) days following delivery of Lessor’s Availability
Notice, Lessee will have the right to request from Lessor in
writing a written stat
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