EXHIBIT 10.20
LEASE AGREEMENT
BETWEEN
HILLWOOD METRO NO. 10, L.P., A TEXAS LIMITED PARTNERSHIP
AND LCS LAND PARTNERS II, LTD., A TEXAS LIMITED PARTNERSHIP
LANDLORD
AND
D&K HEALTHCARE RESOURCES, INC.,
A DELAWARE CORPORATION
TENANT
LAKESIDE TRADE CENTER, BUILDING 1
August ______, 2003
Initial: L_____ T_____
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TABLE OF CONTENTS
1. PREMISES, PROJECT AND TERM
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS
3. COMMON AREAS AND COMMON AREA CHARGES
4. TAXES
5. LANDLORD'S REPAIRS
6. TENANT'S REPAIRS AND MAINTENANCE
7. ALTERATIONS
8. SIGNS
9. UTILITIES
10. INSURANCE
11. FIRE AND CASUALTY DAMAGE
12. LIABILITY AND INDEMNIFICATION
13. USE
14. INSPECTION
15. ASSIGNMENT AND SUBLETTING
16. CONDEMNATION
17. HOLDING OVER
18. QUIET ENJOYMENT
19. EVENTS OF DEFAULT
20. REMEDIES
21. MORTGAGES
22. MECHANIC'S LIENS
23. HAZARDOUS MATERIALS
24. LANDLORD'S LIEN
25. NOTICES AND RENT PAYMENTS
26. MISCELLANEOUS
27. RENEWAL OPTION
28. EARLY OCCUPANCY
29. RIGHT OF FIRST OFFER
30. EARLY TERMINATION RIGHT
31. FIRE SPRINKLER SYSTEM
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EXHIBITS
EXHIBIT "A" ...............................PROJECT SITE PLAN SHOWING PREMISES
EXHIBIT "B" ................................LEGAL DESCRIPTION OF PROJECT LAND
EXHIBIT "C" ......................................................WORK LETTER
EXHIBIT "C-1" .......................TENANT IMPROVEMENTS OUTLINE SPECIFICATIONS
EXHIBIT "D" .............................MEMORANDUM OF ACCEPTANCE OF PREMISES
EXHIBIT "E" ...........SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT "F" ............................................INTENTIONALLY DELETED
EXHIBIT "G" ................................................FIRST OFFER SPACE
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LIST OF CERTAIN DEFINED TERMS
Base Rent....................................................... Paragraph 2A
Building........................................................ Paragraph 1A
Capital Items................................................... Paragraph 3E
Commencement Date............................................... ▇▇▇▇▇▇▇▇▇ ▇▇
Common Areas.................................................... ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇ Charges............................................. Paragraph 3E
Event of Default................................................ Paragraph 19
Force Majeure................................................... Paragraph 26C
Land............................................................ Paragraph 1A
Leasehold Improvements.......................................... Exhibit "C"
Permitted Use................................................... Paragraph 13
Premises........................................................ Paragraph 1A
Prime Rate...................................................... Paragraph 20E
Project......................................................... Paragraph 1A
Reimbursable Expenses........................................... Paragraph 2C
SNDA............................................................ Paragraph 21
Taking.......................................................... Paragraph 16
Taxes........................................................... Paragraph 4A
Tenant Delays................................................... Exhibit "C"
Tenant's Affiliates............................................. Paragraph 15B
Term............................................................ Paragraph 1B
Toxic or Hazardous Materials.................................... Paragraph 23A
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BASIC LEASE INFORMATION
Lease Date: August __, 2003
Tenant: D&K Healthcare Resources, Inc., a Delaware
corporation
Tenant's Contact: Telephone: (______)_____________
Landlord: Hillwood Metro No. 10, L.P., a Texas limited
partnership and LCS Land Partners II, Ltd., a Texas
limited partnership
Landlord's Contact: c/o Hillwood Investment Properties
Three Lincoln Centre
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: Hillwood Development Company, LLC
Three Lincoln Centre
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Premises: The Premises (herein so called) contain approximately
rentable 70,100 square feet in Landlord's
approximately rentable 266,100 square foot
multi-tenant building (the "Building") known as
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇, and are shown by
the crosshatched area on the Project Site Plan
attached hereto as EXHIBIT "A". The Building is
located on the approximately 14.39 acres of land (the
"Land") described on EXHIBIT "B" attached hereto. The
address of the Premises is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇.
Project: The Project (herein so called) includes the Land, the
Building and all other improvements located or to be
located on the Land, including without limitation the
Common Areas described in Paragraph 3A.
Term: Eighty-Four (84) months, commencing on the
Commencement Date (which is estimated to be October
1, 2003 and ending at 5:00 p.m. on the last day of
the eighty-fourth (84th) month, subject to adjustment
and earlier termination as provided in the Lease.
Base Rent: Months 1-5, $0.00; Months 6-41 $28,390.50 ($4.86 per
square foot per annum); Months 42-44, $0.00; Months
45-60 $28,390.50 ($4.86 per square foot per annum);
Months 61-84, $30,785.59 ($5.27 per square foot per
annum) payable at the address specified in Paragraph
25A.
Tenant's initial proportionate
share of Taxes under
Paragraph 4A: $3,388.17 per month
Tenant's initial proportionate
share of cost of insurance
under Paragraph 10A: $292.08 per month
Tenant's initial proportionate
share of Common Area
Charges under Paragraph 3E: $1,168.33 per month
Security Deposit under Paragraph 2B: $33,239.08
Tenant's Proportionate Share: 26.34% which is the percentage
obtained by dividing (i) the 70,100
square feet of area in the Premises
by (ii) the 266,100 square feet of
area in the Building.
Broker or Agent (See Paragraph 24I): ▇▇▇▇▇▇ ▇▇▇▇ Company, representing
Landlord.
▇▇▇▇▇▇ ▇▇▇▇ Company, representing
Tenant.
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into as of the __ day of August,
2003, by and between Hillwood Metro No. 10, L.P., a Texas limited partnership
and LCS Land Partners II, Ltd., a Texas limited partnership ("Landlord"), and
D&K Healthcare Resources, Inc., a Delaware corporation ("Tenant");
WITNESSETH:
1. PREMISES, PROJECT AND TERM.
A. In consideration of the mutual obligations of Landlord and
Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes from
Landlord, the "Premises" (herein so called), containing approximately 70,100
square feet as shown by the crosshatched area on the Project Site Plan attached
hereto as Exhibit "A", together with all rights, privileges, easements,
appurtenances, and amenities belonging to or in any way pertaining to the
Premises, to have and to hold, subject to the terms, covenants and conditions in
this Lease. The Premises are a part of Landlord's multi-tenant real property
development known as Lakeside Trade Center, Building 1 (the "Building"), located
on approximately 14.39 acres (the "Land") described on Exhibit "B" attached
hereto and made a part hereof. The "Project" (herein so called) includes the
Land, the approximately 266,100 square foot Building and all other improvements
located or to be located on the Land, including the common areas described in
Paragraph 3A.
B. The term of this Lease (the "Term") shall be eighty-four (84)
months, commencing on the Commencement Date (hereinafter defined and which is
estimated to be October 1, 2003) and shall end at 5:00 p.m. on the last day of
the eighty-fourth (84th) full calendar month after the Commencement Date,
subject to adjustment and earlier termination as provided in this Lease.
C. The "Commencement Date" shall be the date that is the earlier
of (i) the date on which Tenant first occupies the Premises for the purpose of
conducting its business, or (ii) the date upon which the Leasehold Improvements
(hereinafter defined) have been substantially completed in accordance with the
provisions of EXHIBIT "C" attached hereto and incorporated herein by reference.
After the Commencement Date, Landlord will forward to Tenant a letter
documenting the delivery of the Premises and any other factual matters
pertaining to this Lease in the form attached hereto as EXHIBIT "D".
D. Notwithstanding the fact that the Term of this Lease and
Tenant's obligation to pay rent does not commence until the Commencement Date,
this Lease shall nevertheless be binding upon the parties in accordance with its
terms when executed by Landlord and Tenant.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS.
A. Tenant agrees to pay to Landlord base rent ("Base Rent") for
the Premises, in advance, without demand, deduction or set off, at the following
rates and amounts during the Term hereof:
Monthly Annual Per Square Foot
Months Base Rent Base Rent Per Annum
------ --------- --------- --------------
▇ - ▇ -▇- -▇- -▇-
▇ - ▇▇ $28,390.50 $340,686.00 $4.86
▇▇ - ▇▇ -▇- -▇-
▇▇ - 60 $28,390.50 $340,686.00 $4.86
61 - 84 $30,785.59 $369,427.00 $5.27
The Base Rent for the sixth month of the Term, plus the other monthly
charges set forth in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, shall be due and payable on the
Commencement Date and subsequent monthly installments shall be due and payable
on or before the first day of each calendar month succeeding the Commencement
Date, except that all payments due hereunder for any fractional calendar month
shall be prorated. Base Rent and other payments due hereunder shall be payable
at the address specified pursuant to Paragraph 25.
B. In addition, Tenant agrees to deposit with Landlord on the
date hereof the sum of Thirty-Three Thousand Two Hundred Thirty-Nine and 08/100
Dollars ($33,239.08), which shall be held by Landlord as security for the
performance of Tenant's obligations under this Lease, it being expressly
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understood and agreed that this security deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Tenant's default. Upon
each occurrence of an Event of Default (hereinafter defined), Landlord may use
all or part of the security deposit to pay past due rent or other payments due
Landlord under this Lease, and the cost of any other damage, injury, expense or
liability caused by such Event of Default without prejudice to any other remedy
provided herein or provided by law. On demand, Tenant shall pay Landlord the
amount that will restore the security deposit to its original amount. The
security deposit shall be deemed the property of Landlord, but any remaining
balance of such security deposit shall be returned by Landlord to Tenant within
sixty (60) days after the end of the Term, subject to adjustment and earlier
termination as provided in this Lease.
C. In addition to Base Rent and Tenant's other obligations
hereunder, Tenant agrees to pay its Proportionate Share (as defined in the Basic
Lease Information) of the following costs and expenses (collectively, the
"Reimbursable Expenses"): (i) Taxes (hereinafter defined) payable by Landlord
pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, (▇▇) the cost of jointly metered utilities
payable pursuant to ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, (▇▇▇) the cost of maintaining insurance
pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, (▇▇) Common Area Charges (hereinafter defined)
payable by Tenant in accordance with Paragraph 3 below, including without
limitation any expenses that are designated as capital expenditures by generally
accepted accounting principles ("GAAP"), provided that any such capital
expenditures will be amortized over the useful life, as determined by GAAP, of
such capital expenditures, and such amortization will be included in Common Area
Charges for each year of such useful life falling within the Term of this Lease
(to the extent that the useful life of a capital expenditure exceeds the
expiration of the Term, Tenant will have no obligation to pay Landlord such
amount following such expiration), and (v) the cost of any repair, replacement,
or capital expenditures required under any governmental law or regulation that
was not applicable to the Building at time of original construction. During each
month of the Term of this Lease, on the same day that Base Rent is due
hereunder, Tenant shall escrow with Landlord an amount equal to 1/12th of
Tenant's proportionate share of such Reimbursable Expenses, as estimated by
Landlord. Tenant authorizes Landlord to use the funds deposited with Landlord
under this ▇▇▇▇▇▇▇▇▇ ▇▇ to pay such Reimbursable Expenses. Landlord shall be
entitled to revise its projection in the exercise of its reasonable business
judgment and consistent with its past practices of such Reimbursable Expenses at
any time and if Landlord so revises such projection, Tenant shall pay to
Landlord, on the same day as Base Rent is due hereunder (and on the first day of
each calendar month during the Free-Rent Period), an amount equal to 1/12th of
Tenant's proportionate share of such Reimbursable Expenses pursuant to
Landlord's revised estimate thereof. By April 30 of each calendar year (or as
soon thereafter as may be practicable) during the Term hereof Landlord shall
determine the actual Reimbursable Expenses for the preceding calendar year and
shall notify Tenant thereof. If the Tenant's total escrow payments are less than
Tenant's actual proportionate share of all such Reimbursable Expenses, Tenant
shall pay the difference to Landlord within ten (10) days after demand. If the
total escrow payments of Tenant are more than Tenant's actual proportionate
share of all such Reimbursable Expenses, Landlord shall retain such excess and
credit it against Tenant's next annual escrow payments, except that if the Lease
Term has ended, Landlord shall refund any such excess to Tenant within thirty
(30) days after the Lease expiration date.
D. Following the first full calendar year of the Term, Tenant's
proportionate share of "controllable" Common Area Charges for any calendar year
shall not exceed the amount of Tenant's proportionate share of "controllable"
Common Area Charges for the immediately preceding calendar year by more than ten
percent (10%). For the purposes hereof, the term "controllable" Common Area
Charges shall mean all Common Area Charges in the reasonable control of
Landlord, excluding (without limitation) taxes, insurance and utilities.
E. Landlord agrees to keep and maintain books and records
reflecting the Reimbursable Expenses in accordance with sound accounting
principles consistently applied. Tenant shall have the right, upon at least five
(5) days advance written notice to Landlord ("Audit Notice") and at Tenant's
sole expense, to audit Landlord's books and records in order to verify actual
Reimbursable Expenses. Any such audit shall be performed during Landlord's
normal business hours. Landlord shall have the right to dispute the result of
any such audit by Tenant. If Landlord so disputes such audit, and if Landlord
and Tenant are unable to resolve such dispute within thirty (30) days, then the
dispute shall be submitted to a reputable independent accounting firm reasonably
acceptable to Landlord and Tenant ("Firm") for resolution. The reasonable
determination of the Firm shall be binding on Landlord and Tenant. If the
parties' mutual agreement as to the Reimbursable Expenses in question, or the
determination of the Firm (as applicable), establishes that Tenant underpaid or
overpaid its proportionate share of Reimbursable Expenses (as required pursuant
to this Lease), then Landlord shall refund to Tenant any such overpayment, or
Tenant shall pay to Landlord any such underpayment (as applicable), promptly
upon the agreement of the parties or conclusion of such determination (as the
case may be). In addition, if the Firm is engaged as provided hereinabove and
the determination of such Firm establishes: (i) that Tenant overpaid or
underpaid its proportionate share of Reimbursable Expenses by five percent (5%)
or more, then (A) Landlord shall pay all costs of
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engaging the Firm and Tenant's reasonable expenses in connection with such audit
in case of any such overpayment (provided that Landlord's obligation to pay such
costs and expenses shall not apply to any overpayment made with respect to the
first year of the Term of this Lease in which case Tenant shall pay all such
costs and expenses), and (B) Tenant shall pay all costs of engaging the Firm and
Landlord's reasonable expenses in connection with such audit in case of any such
underpayment; or (ii) that the variance was less than five percent (5%), Tenant
shall pay the entire cost of engaging the Firm in connection with such audit. In
all other circumstances (other than those provided in the immediately preceding
sentence) each party shall pay its own expenses in connection with any such
audit. Notwithstanding anything to the contrary contained herein, Tenant's
obligation to pay all amounts, and to perform all of its other obligations,
under this Lease shall not be abated, suspended or otherwise affected during the
pendency of the audit, dispute, reconciliation and determination procedure set
forth above. Notwithstanding the foregoing, Tenant shall have the right to audit
Landlord's books and records only with respect to the Reimbursable Expenses for
the calendar year immediately preceding the year in which Tenant gives the Audit
Notice (but in no event with respect to periods prior to the Commencement Date).
Payment by Tenant of Reimbursable Expenses shall not be deemed to constitute a
waiver by Tenant of its rights to audit Reimbursable Expenses. This paragraph
shall survive the termination of the Lease for a period one year.
3. COMMON AREAS AND COMMON AREA CHARGES.
A. As used in this Lease, "Common Areas" shall mean all areas
within the Project which are available for the common use of tenants of the
Project and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and planted
areas. Landlord, from time to time, may change the size, location, nature and
use of any of the Common Areas, convert Common Areas into leasable areas,
construct additional parking facilities (including parking structures) in the
Common Areas, and increase or decrease Common Area land and/or facilities. Such
activities are permitted if they do not materially affect Tenant's use of or
access to the Premises or materially affect the parking available to Tenant.
B. Tenant shall have the nonexclusive right (in common with other
tenants and all others to whom Landlord has granted or may grant such rights) to
use the Common Areas for the purposes intended, subject to such reasonable rules
and regulations as Landlord may establish from time to time. Tenant shall abide
by such rules and regulations and shall use commercially reasonable efforts to
cause others who use the Common Areas with Tenant's express or implied
permission to abide by Landlord's rules and regulations. At any time, Landlord
may, after providing Tenant with advance written notice, temporarily close
portions of the Common Areas to perform any acts in the Common Areas as is
required in connection with repairs, or in connection with improvements which,
in Landlord's reasonable judgment, are desirable to improve the Project.
Landlord will exercise good faith commercially reasonable efforts to minimize
interference with use of the Common Areas in connection with any such work.
Tenant shall not interfere with the rights of Landlord, other tenants or any
other person entitled to use the Common Areas.
C. Except as may be clearly marked and indicated on the Project
Site Plan attached hereto as EXHIBIT "A", Tenant's parking shall not be
reserved. Parking shall be limited to vehicles no larger than standard size
automobiles or pickup utility vehicles, which shall be parked only in striped
parking spaces and not in driveways, loading areas or other locations not
specifically designated for parking. Handicapped spaces shall only be used by
those legally entitled to such use. Tenant shall not cause large trucks or other
large vehicles to be parked within the Project or on the adjacent public
streets, except that temporary parking of large delivery vehicles or storage of
trailers shall be permitted adjacent to Tenant's dock doors. If a trailer
parking area is included in the Project, Tenant shall be entitled to use those
trailer parking spaces clearly marked and indicated to be for Tenant's use on
the attached Project Site Plan for the parking and storage of large delivery
vehicles and/or trailers.
D. Landlord shall maintain the Common Areas in good order,
condition and repair and shall operate the Project, in Landlord's reasonable
discretion, as a first-class industrial/commercial real property development.
E. In addition to other amounts required to be paid by Tenant
hereunder, Tenant shall pay to Landlord Tenant's proportionate share of the
following costs and expenses (collectively, the "Common Area Charges"):
(1) The cost of repair and maintenance of the roof of the
Building (unless the Building has a standing seam metal roof, in which case
Landlord shall be responsible for roof repair and maintenance pursuant to
Paragraph 5 below).
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(2) The cost of repair, maintenance and replacement of
(i) the exterior of the Building (including painting), other than those
structural repairs and replacements for which Landlord is responsible pursuant
to Paragraph 5; (ii) all mechanical, electrical, plumbing, sewer, sprinkler and
other life safety equipment and systems forming a part of the Building or the
Project (other than the cost of repair, replacement and maintenance of the items
which are Tenant's responsibility pursuant to Paragraph 6 which shall be paid
entirely by Tenant as provided in Paragraph 6); and (iii) all other Common Areas
and facilities constituting a part of the Building or the Project (including,
but not limited to, all paved areas in and about the Building).
(3) The cost of maintenance and replacement of the grass,
shrubbery and other landscaping in and about the Building and/or the Project.
(4) The cost of operating and maintaining in a good,
neat, clean and sanitary condition all parking areas, driveways, alleys and
grounds in and about the Building (including trash removal).
(5) The cost of assessments under any applicable
Declaration of Covenants, Restrictions and Easements (as may be amended from
time to time) which are assessed by the applicable property owners association.
Currently, the Premises are not subject to any such assessments.
(6) The cost of operating and maintaining any property,
facilities or services provided for the common use of Tenant and other tenants
of the Building or the Project, which costs shall include, without limitation,
security services (if furnished by Landlord).
(7) Management fees incurred by Landlord in connection
with the Project in the amount of two percent (2%) of the monthly Base Rent for
each month of the Lease Term (and on the first day of each calendar month during
the Free-Rent Period); provided, however, that during the Free-Rent Period the
monthly management fees shall be equal to two percent (2%) of the Base Rent due
for the sixth month of the Term.
Common Area Charges shall not include the following: (i) except as expressly
provided in Paragraph 2C, costs of items considered capital repairs,
replacements, improvements and equipment under GAAP consistently applied or
otherwise ("Capital Items"); (ii) those structural repairs and replacements for
which Landlord is responsible pursuant to Paragraph 5; (iii) costs incurred by
Landlord for the repair of damage to the Property, to the extent that Landlord
is reimbursed by insurance proceeds, (iv) any sums paid to Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in or to the
Building to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis; (v)
notwithstanding any contrary provision of the Lease, including, without
limitation, any provision relating to Capital Items, any and all costs arising
from the presence of hazardous materials or substances (as defined by applicable
laws in effect on the date hereof) in or about the Premises or the Project; (vi)
expenses for which any other tenant of the Building is responsible under the
terms of its lease.
4. TAXES.
A. Landlord agrees to pay all taxes, assessments and governmental
charges of any kind and nature (collectively referred to herein as "Taxes") that
accrue against the Premises, and/or the Land and/or improvements of which the
Premises are a part. For purposes of this Lease, the term "Taxes" shall mean the
actual amounts paid by Landlord after taking into account the benefits of any
applicable tax abatements or rebates. If at any time during the Term of this
Lease, there shall be levied, assessed or imposed on Landlord a capital levy or
other tax directly on the rents received herefrom and/or a franchise tax,
assessment, levy or charge measured by or based, in whole or in part, upon such
rents from the Premises and/or the Land and improvements of which the Premises
are a part, then all such taxes, assessments, levies or charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"Taxes" for the purposes hereof. Landlord shall have the right to employ an
independent tax-consulting firm to attempt to assure a fair tax burden on the
Building and grounds within the applicable taxing jurisdiction. Tenant agrees to
pay its proportionate share of the commercially reasonable cost of such
consultant.
B. Tenant shall be liable for all taxes levied or assessed
against any personal property or fixtures placed in the Premises. If any such
taxes are levied or assessed against Landlord or Landlord's property and (i)
Landlord pays the same or (ii) the assessed value of Landlord's property is
increased by inclusion of such personal property and fixtures and Landlord pays
the increased taxes, then, upon demand Tenant shall pay to Landlord such taxes.
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C. Tenant hereby waives any right it may have under Section
41.413 of the Texas Tax Code to protest the appraised value of all or any
portion of the Premises and the Building, and any right it may have under
Section 42.015 of the Texas Tax Code to appeal an order of the appraisal review
board with respect to all or any portion of the Premises and/or the Building.
Tenant agrees that Landlord shall have the sole right to protest any appraisals
of the Premises and the Building. Tenant also hereby waives any right it may
have to receive a copy of any notice received by Landlord of reappraisal of all
or any portion of the Premises and/or the Building, including without limitation
any notice required under Section 41.413(d) of the Texas Tax Code. Tenant agrees
that Landlord shall not be liable to Tenant for any damages for Landlord's
failure to send to Tenant a copy of any notice of reappraisal concerning the
Premises and/or the Building, irrespective of any obligation under applicable
law of Landlord to provide such notice. Notwithstanding the foregoing, if Tenant
protests, challenges or appeals any valuation for property tax purposes of all
or any portion of the Premises and/or the Building, and such valuation increases
from the value protested, appealed or challenged, Tenant agrees to indemnify
Landlord on an after-tax basis for any property taxes due as a result of such
increase.
D. Landlord agrees to use commercially reasonable efforts to
comply with (i) the Chapter 381 Agreement (which relates to tax abatements) by
and between LCS Land Partners II, LTD., Hillwood Metro No. 10, L.P. and ▇▇▇▇▇▇
County dated August of 2001, (ii) the Town of Flower Mound and LCS Land Partners
II, LTD., and Hillwood Metro No. 10, L.P., Chapter 380 Partnership Agreement,
and (iii) any other tax abatement agreement to which Landlord is or becomes a
party.
5. LANDLORD'S REPAIRS. Tenant understands and agrees that
Landlord's maintenance, repair and replacement obligations are limited to those
expressly set forth in this Paragraph 5. Landlord, at its own cost and expense,
shall be responsible only for replacement and repair of the roof, the foundation
and the structural members of the exterior walls of the Building, reasonable
wear and tear excluded. The term "walls" as used herein shall not include
windows, glass or plate glass, doors, special store fronts or office entries,
except that Landlord will be responsible for repair of any window breakage
caused by structural movement or caused by the direct negligence or fault of
Landlord. Tenant shall immediately give Landlord written notice of defect or
need for repairs under this Paragraph 5, after which Landlord shall have
reasonable opportunity to repair same or cure such defect.
6. TENANT'S REPAIRS AND MAINTENANCE.
A. Except as provided in Paragraph 5 (Landlord's Repairs),
Paragraph 11 (Fire and Casualty Damage) and Paragraph 16 (Condemnation), and
except for express obligations under this Lease and for normal wear and tear,
Tenant, at its own cost and expense, shall (i) maintain all parts of the
Premises (including, but not limited to, the floor slab of the Premises and the
mechanical, electrical, plumbing, sewer, sprinkler and other life safety
equipment, fixtures and systems forming a part of the Premises), in good, neat,
clean, sanitary and operable condition and (ii) promptly make all necessary
repairs and replacements to the Premises in a good and workmanlike manner. In
addition to the foregoing, Tenant shall, at its sole expense (subject to
Paragraph 11D), repair any damage to the Premises or the Building caused by acts
or omissions of Tenant or Tenant's employees, agents or invitees, or caused by
Tenant's default hereunder.
B. In addition to Tenant's other obligations hereunder, Tenant,
at its own cost and expense, shall enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor reasonably approved
by Landlord for servicing all hot water, heating and air conditioning and
elevator systems and equipment within or serving the Premises. The service
contract must include all services suggested by the equipment manufacturer in
its operations/maintenance manual and an executed copy of such contract must be
provided to Landlord prior to the date Tenant takes possession of the Premises.
To the extent they may be assigned, Landlord hereby assigns to Tenant all
guaranties and warranties related to the HVAC System and hot water equipment.
7. ALTERATIONS. Tenant shall not make any alterations, additions
or improvements to the Premises without the prior written consent of Landlord,
which shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, Tenant shall not be required to obtain Landlord's consent for
repainting, recarpeting, or other alterations totaling less than $10,000.00 in
any single instance or series of related alterations performed within a
six-month period, provided that such alterations do not affect the configuration
or location of any exterior or interior walls of the Building, the HVAC System,
the Building's structure, or the Building's electrical, plumbing, or other
mechanical systems. Additionally, Tenant, at its own cost and expense, may erect
such shelves, bins, machinery and trade fixtures as it desires provided that:
(i) such items do not alter the basic character of the Premises or the Building
and/or improvements of which the Premises are a part; (ii) such items do not
overload or damage the Premises, the Building or such improvements; (iii) such
items may be removed without injury to the
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Premises; and (iv) the construction, erection or installation thereof complies
with all applicable governmental laws, ordinances, regulations and with
Landlord's reasonable specifications and requirements. All alterations,
additions, improvements and partitions erected by Tenant shall be and remain the
property of Tenant during the Term of this Lease. All shelves, bins, machinery
and trade fixtures installed by Tenant shall be removed on or before the earlier
to occur of the date of termination of this Lease or vacating of the Premises by
Tenant, at which time Tenant shall restore the Premises to their original
condition excluding reasonable wear and tear. All alterations, installations,
removals and restoration shall be performed in a good and workmanlike manner so
as not to damage or alter the primary structure or structural qualities of the
Building and other improvements situated on the Premises or of which the
Premises are a part. Notwithstanding anything to the contrary contained herein,
it is agreed that the use of and access to the roof of the Building is expressly
reserved to Landlord and is expressly denied to Tenant. Tenant shall not
penetrate the roof of the Building in any manner, nor install or construct any
alterations, additions or improvements thereon, nor otherwise use or occupy the
roof at any time during the Term hereof, unless given prior written approval
from Landlord.
8. SIGNS. Any signage, decorations, advertising media, blinds,
draperies, window treatments, bars, and security installations Tenant desires
for the Premises shall be subject to Landlord's prior written approval (not to
be unreasonably withheld or delayed) and may be submitted to Landlord prior to
the Commencement Date. Tenant shall repair, paint, and/or replace the Building
fascia surface to which its signs are attached upon vacation of the Premises, or
the removal or alteration of its signage, all at Tenant's sole cost and expense.
Tenant shall not (i) make any changes to the exterior of the Premises, (ii)
install any exterior lights, decorations, balloons, flags, pennants, banners or
painting, or (iii) erect or install any signs, windows or door lettering,
placards, decorations or advertising media of any type which can be viewed from
the exterior of the Premises, without Landlord's prior written consent (not to
be unreasonably withheld or delayed). All signs, decorations, advertising media,
blinds, draperies and other window treatment or bars or other security
installations visible from outside the Premises shall conform in all respects to
the criteria established by Landlord and to the requirements of all covenants,
conditions and restrictions applicable to the Premises and the Building.
9. UTILITIES. Tenant shall timely pay for all water, gas, heat,
light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or at the Premises, together with any taxes, penalties,
deposits, surcharges or the like pertaining to the Tenant's use of the Premises.
Tenant shall pay all security deposits required by utility companies for any
services separately metered to the Premises. The parties agree that gas and
electricity will be separately metered to the Premises. Tenant shall pay its
proportionate share of all charges for jointly metered utilities (including, but
not limited to the cost of utilities consumed in connection with providing
electrical power for the Building's canopy lighting, the lighting of the parking
facilities and other common areas and facilities associated with the Building,
the Building's fire pump room and irrigation system, as well as other
electricity gauged by the "house meter"). Landlord shall not be liable for any
interruption or failure of utility service on the Premises. Landlord shall use
commercially reasonable efforts to restore any interruption or failure of
utility service to the Building or the Premises to the extent that Landlord
controls such utility service.
10. INSURANCE.
A. Landlord shall maintain insurance covering the Building of
which the Premises are a part in an amount not less than the "replacement cost"
thereof insuring against the perils and costs of Fire, lightning, Extended
Coverage, vandalism and Malicious Mischief and such other insurance as Landlord
shall deem necessary. The above insurance will include a wavier of subrogation
in favor of Tenant. Landlord will provide Tenant with a certificate of insurance
evidencing the coverage, the wavier of subrogation and providing Tenant a 30 day
prior notice of cancellation.
B. Tenant at its own expense, shall maintain during the Term of
this Lease a policy or policies of worker's compensation and comprehensive
general liability insurance, including personal injury and property damage,
including contractual coverage, in the amount of Two Million Dollars
($2,000,000.00) for property damage and Two Million Dollars ($2,000,000.00) per
occurrence for personal injuries or death of persons occurring in or about the
Premises. Tenant, at its own expense also shall maintain during the Term of this
Lease (i) fire and extended coverage insurance covering the replacement cost of
all alterations, additions, partitions and improvements installed or placed on
the Premises by Tenant or by Landlord on behalf of Tenant, and all of Tenant's
personal property contained within the Premises and (ii) business interruption
insurance insuring loss of profits in the event of an insured peril damaging the
Premises. Said policies shall (i) name Landlord as an additional insured and
insure Landlord's contingent liability under this Lease (except for the worker's
compensation policy, which instead shall include a waiver of subrogation
endorsement in favor of Landlord), (ii) be issued by an insurance company which
holds a General Policy Rating of A-12 or better, as set forth in the most
current issue of "Best Key Rating Guide" or an equivalent rating, (iii) provide
that said insurance shall
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not be cancelled unless thirty (30) days prior written notice shall have been
given to Landlord. In addition, such insurance provided by Tenant shall be
primary coverage for Landlord when any policy issued to Landlord is similar or
duplicate in coverage, and Landlord's policy shall be excess over Tenant's
policies. All insurance policies carried by Tenant hereunder shall expressly
provide (by endorsement or otherwise) that Landlord's rights thereunder shall be
assignable to Landlord's mortgagee who shall be shown as an additional insured
thereon. Said policy or policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the Term of the Lease and upon each
renewal of said insurance.
C. Tenant will not permit the Premises to be used for any purpose
or in any manner that would (i) void the insurance thereon, (ii) increase the
insurance risk, or (iii) cause the disallowance of any sprinkler credits,
including without limitation, use of the Premises for the receipt, storage or
handling of any product, material or merchandise that is explosive or highly
inflammable. If any increase in the cost of any insurance on the Premises or the
Building of which the Premises are a part is caused by Tenant's use of the
Premises, or because Tenant vacates the Premises, then Tenant shall pay the
amount of such increase to Landlord.
11. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the Building should be damaged or destroyed
by fire or other peril, Tenant immediately shall give written notice to
Landlord. If the Building should be totally destroyed or so damaged thereby
that, in Landlord's reasonable estimation, rebuilding or repairs cannot be
completed within the earlier of (i) one hundred eighty (180) days after
Landlord's receipt of substantially all insurance proceeds with respect to such
damage or (ii) two hundred and ten (210) days after such casualty, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease, effective upon the date of the occurrence of such damage.
B. If the Building should be damaged by any peril which would be
covered by the insurance which Landlord is required to maintain under
Paragraph 10A above, and this Lease is not terminated pursuant to Paragraph 11A
above, Landlord shall restore the Premises to substantially its previous
condition, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
that may have been constructed, erected or installed in, or about the Premises
for the benefit of, or by or for Tenant. Effective upon the date of the
occurrence of such damage and ending upon substantial completion of Landlord's
restoration of the Premises, if the Premises are untenantable in whole or part
during such period, the rent shall be reduced to such extent as may be fair and
reasonable under all of the circumstances. If such repairs and rebuilding have
not been substantially completed within the earlier of (i) one hundred eighty
(180) days after the date of Landlord's receipt of substantially all insurance
proceeds (subject to Force Majeure Delays [hereinafter defined] and any delays
caused by Tenant or its employees, agents or contractors) or (ii) two hundred
and ten (210) days after such casualty (subject to Force Majeure Delays
[hereinafter defined] and any delays caused by Tenant or its employees, agents
or contractors), Tenant, as Tenant's exclusive remedy, may terminate this Lease
by delivering written notice of termination to Landlord at any time prior to
such substantial completion, in which event the rights and obligations hereunder
shall cease and terminate (except as expressly provided to the contrary herein).
C. Notwithstanding anything herein to the contrary (i) in no
event shall Landlord be required to expend a sum greater than the net insurance
proceeds actually received by Landlord with respect to the damage in question in
connection with Landlord's repair and restoration obligations hereunder, and
(ii) in the event the holder of any indebtedness secured by a mortgage or deed
of trust covering the Premises requires that the insurance proceeds be applied
to such indebtedness, then Landlord shall have the right to terminate this Lease
by delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made known by any such holder, whereupon all rights
and obligations hereunder shall cease and terminate (except as expressly
provided to the contrary herein).
D. Landlord and Tenant hereby waive and release each other (but
only to the extent of the insurance coverage required to be maintained by the
respective parties hereunder) of and from any and all rights of recovery, claim,
action or cause of action, against each other, their agents, officers and
employees, for any liability, loss or damage that may occur to the Premises,
improvements or the Building, or personal property (building contents) within
the Building and/or Premises as the result of any fire or other casualty
required to be insured against under this Lease. Each party to this Lease agrees
immediately after execution of this Lease to give each insurance company, which
has issued to it policies of fire and extended coverage insurance, written
notice of the terms of the mutual waivers contained in this subparagraph and to
have the insurance policies properly endorsed to reflect such waivers.
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12. LIABILITY AND INDEMNIFICATION. EXCEPT FOR ANY CLAIMS, RIGHTS
OF RECOVERY AND CAUSES OF ACTION THAT TENANT HAS RELEASED, LANDLORD SHALL
INDEMNIFY, PROTECT, HOLD TENANT, ITS AGENTS, EMPLOYEES, PARTNERS, DIRECTORS,
OFFICERS AND ANY AFFILIATES OF THE ABOVEMENTIONED PARTIES (COLLECTIVELY THE
"TENANT AFFILIATES") HARMLESS AND DEFEND TENANT AGAINST ANY AND ALL OBLIGATIONS,
SUITS, LOSSES, JUDGMENTS, ACTIONS, DAMAGES, CLAIMS OR LIABILITY (INCLUDING,
WITHOUT LIMITATION, ALL COSTS, REASONABLE ATTORNEYS' FEES, AND EXPENSES INCURRED
IN CONNECTION THEREWITH) IN CONNECTION WITH ANY LOSS, INJURY OR DAMAGE TO ANY
PERSON IN, ON OR ABOUT THE PREMISES OR ANY PART THEREOF AND/OR THE BUILDING OF
WHICH THE PREMISES ARE A PART, WHEN SUCH LOSS, INJURY OR DAMAGE SHALL BE CAUSED
BY THE ACT, NEGLECT, FAULT, OR OMISSION OF ANY DUTY WITH RESPECT TO THE SAME BY
LANDLORD, ITS AGENTS, SERVANTS AND EMPLOYEES (EXCEPT TO THE EXTENT THE
INDEMNIFIED LOSS IS CAUSED BY TENANT'S NEGLIGENCE OR INTENTIONAL ACTS, IN WHICH
EVENT THIS INDEMNITY SHALL NOT APPLY TO THE ALLOCABLE SHARE OF SUCH LOSS
RESULTING FROM TENANT'S NEGLIGENCE OR INTENTIONAL ACTS). EXCEPT FOR ANY CLAIMS,
RIGHTS OF RECOVERY AND CAUSES OF ACTION THAT LANDLORD HAS RELEASED, TENANT SHALL
INDEMNIFY, PROTECT, HOLD HARMLESS AND DEFEND LANDLORD, ITS AGENTS, EMPLOYEES,
PARTNERS, DIRECTORS, OFFICERS AND ANY AFFILIATES OF THE ABOVEMENTIONED PARTIES
(COLLECTIVELY THE "LANDLORD AFFILIATES") FROM AND AGAINST ANY AND ALL
OBLIGATIONS, SUITS, LOSSES, JUDGMENTS, ACTIONS, DAMAGES, CLAIMS OR LIABILITY
(INCLUDING, WITHOUT LIMITATION, ALL COSTS, REASONABLE ATTORNEYS' FEES, AND
EXPENSES INCURRED IN CONNECTION THEREWITH) IN CONNECTION WITH ANY LOSS, INJURY
OR DAMAGE (I) TO ANY PERSON OR PROPERTY WHATSOEVER OCCURRING IN, ON OR ABOUT THE
PREMISES OR ANY PART THEREOF AND/OR OF THE BUILDING OF WHICH THE PREMISES ARE A
PART, WHEN SUCH LOSS, INJURY OR DAMAGE SHALL BE CAUSED BY THE ACT, NEGLECT,
FAULT OF, OR OMISSION OF ANY DUTY WITH RESPECT TO THE SAME BY TENANT, ITS
AGENTS, SERVANTS, EMPLOYEES, OR INVITEES, EXCEPT TO THE EXTENT THE INDEMNIFIED
LOSS IS CAUSED BY LANDLORD'S NEGLIGENCE OR INTENTIONAL ACTS, IN WHICH EVENT THIS
INDEMNITY SHALL NOT APPLY TO THE ALLOCABLE SHARE OF SUCH LOSS RESULTING FROM
LANDLORD'S NEGLIGENCE OR INTENTIONAL ACTS. IF ANY CLAIM IS MADE AGAINST LANDLORD
OR LANDLORD AFFILIATES OR TENANT OR TENANT AFFILIATES, WHICH IS SUBJECT TO
INDEMNIFICATION PROTECTION HEREUNDER, THE INDEMNIFYING PARTY, AT ITS SOLE COST
AND EXPENSE, SHALL DEFEND ANY SUCH CLAIM, SUIT OR PROCEEDING BY OR THROUGH
ATTORNEYS REASONABLY SATISFACTORY TO THE INDEMNITEE. THE PROVISIONS OF THIS
PARAGRAPH 12 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS LEASE WITH
RESPECT TO ANY CLAIMS OR LIABILITY OCCURRING PRIOR TO SUCH EXPIRATION OR
TERMINATION.
13. USE.
A. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant, and for such other lawful
purposes as may be incidental thereto (the "Permitted Use"). Tenant acknowledges
that it does not intend to use the Premises to serve the public. Outside storage
is prohibited without Landlord's prior written consent. Tenant shall comply with
the requirements of all deed restrictions, restrictive covenants and other
covenants, conditions and restrictions affecting the Building and/or the Land.
Landlord agrees it will not cause or, to the extent within Landlord's reasonable
control, permit, any matter to be filed of record subsequent to the date hereof
which would interfere with the Permitted Use, or otherwise materially change
Tenant's obligations hereunder. Tenant shall use commercially reasonable efforts
to not permit any persistent, objectionable or unpleasant odors, smoke, dust,
gas, noise or vibrations to emanate from the Premises, nor take any other action
that would constitute a nuisance or would unreasonably interfere with, or
endanger Landlord or any other tenants of the Building.
B. During the Term, Landlord shall, at its sole cost and expense
(and not subject to reimbursement by Tenant), comply with all laws, statutes,
ordinances, orders, rules regulations, directives and requirements of, and the
provisions of all licenses, permits (special or otherwise), approvals and
certificates issued by, all federal, state, county and city governments,
departments, bureaus, boards, agencies, offices, commissions and other
subdivisions thereof, or of any official thereof, or of any other governmental,
public or quasi-public authority, whether now or hereafter in force (including,
without limitation, the Americans With Disabilities Act ("ADA")) (collectively
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"Governmental Requirements"), in each case to the extent applicable to the
Project or that may require structural or nonstructural modifications to be
performed either inside or outside of the Premises (but subject to Tenant's
obligations specified below in this Paragraph 13B). During the Term, Tenant
shall, at its sole cost and expense comply with all Governmental Requirements,
in each case to the extent applicable to the Project or that may require
structural or nonstructural modifications to be performed either inside or
outside of the Premises if such Governmental Requirements apply by reason of the
Tenant's use of the Premises or the Common Area. Landlord hereby represents and
warrants that, as of the Commencement Date, the Building, Land and Premises and
the related real estate shall fully comply with all Governmental Requirements
existing on the Commencement Date.
14. INSPECTION. Landlord and Landlord's agents and representatives
shall have the right to enter the Premises at any time, upon prior reasonable
notice, to (i) inspect the Premises, (ii) make such repairs as may be required
or permitted pursuant to this Lease, and (iii) show the Premises to prospective
purchasers of, or parties who are anticipated to provide financing with respect
to, the Building. Notwithstanding the foregoing, Landlord shall have the right
to enter the Premises at any time, without notice to Tenant, in case of an
emergency posing a threat to persons or property. During the period that is six
(6) months prior to the end of the Lease Term, upon telephonic notice to Tenant,
Landlord and Landlord's representatives may enter the Premises during business
hours for the purpose of showing the Premises. In addition, Landlord shall have
the right to erect a suitable sign on the Premises stating the Premises are
available. Tenant shall notify Landlord in writing at least thirty (30) days
prior to vacating the Premises and shall arrange to meet with Landlord for a
joint inspection of the Premises prior to vacating. If Tenant fails to give such
notice or to arrange for such inspection, then Landlord's inspection of the
Premises shall be deemed correct for the purpose of determining Tenant's
responsibility for repairs and restoration of the Premises.
15. ASSIGNMENT AND SUBLETTING
A. Tenant shall not assign (either voluntarily, nor permit
assignment by operation of law), sublet, transfer or encumber this Lease, or any
interest therein, without the prior written consent of Landlord, not to be
unreasonably withheld or delayed. Any attempted assignment, subletting, transfer
or encumbrance by Tenant in violation of the terms and covenants of this
Paragraph shall be void. In the event Tenant desires to sublet the Premises, or
any portion thereof, or assign this Lease, Tenant shall give written notice
thereof to Landlord at least thirty (30) days prior to the proposed commencement
date of such subletting or assignment, which notice shall set forth the name of
the proposed sublessee or assignee, the relevant terms of any sublease or
assignment and copies of financial reports and other relevant financial
information of the proposed sublessee or assignee.
B. Tenant may assign this Lease or sublease the Premises, without
Landlord's consent and without being subject to Paragraph 15C or Paragraph 15D
below, to any corporation or limited partnership or limited liability company
which controls, is controlled by or is under common control with Tenant, or to
any corporation resulting from the merger of or consolidation with Tenant
("Tenant's Affiliate"). In such case, any Tenant's Affiliate shall assume in
writing all of Tenant's obligations under this Lease.
C. In addition to, but not in limitation of, Landlord's right to
approve of any sublessee or assignee, Landlord shall have the option, in the
event of any proposed subletting or assignment, to terminate this Lease, or in
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice thereof within thirty (30) days following
Landlord's receipt of Tenant's written notice as required above. If this Lease
shall be terminated with respect to the entire Premises pursuant to this
Paragraph, the Term of this Lease shall end on the date stated in Tenant's
notice as the effective date of the sublease or assignment as if that date had
been originally fixed in this Lease for the expiration of the Term hereof;
provided, however, that effective on such date Tenant shall pay Landlord all
amounts, as estimated by Landlord, payable by Tenant to such date with respect
to taxes, insurance, repairs, maintenance, restoration and other obligations,
costs or charges which are the responsibility of Tenant hereunder. Further, upon
any such cancellation Landlord and Tenant shall have no further obligations or
liabilities to each other under this Lease, except with respect to obligations
or liabilities which have accrued hereunder as of such cancellation date (in the
same manner as if such cancellation date were the date originally fixed in this
Lease for the expiration of the Term hereof) and except for those obligations
and liabilities which, by the express terms of this Lease, are to survive any
expiration or termination hereof. If Landlord recaptures only a portion of the
Premises under this Paragraph, the Base Rent during the unexpired Term hereof
shall ▇▇▇▇▇ proportionately based on the rent per square foot contained in this
Lease as of the date immediately prior to such recapture.
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D. Upon the occurrence of an assignment or subletting, whether or
not consented to by Landlord, or mandated by judicial intervention, Tenant
hereby assigns, transfers and conveys to Landlord fifty percent (50%) of all
rents or other sums received or receivable by Tenant under any such assignment
or sublease, which are in excess of the rents and other sums payable by Tenant
under this Lease (or in case of a sublease, which are in excess of the rents and
other sums payable by Tenant with respect to the portion of the Premises that is
subleased); provided that before Landlord is entitled to participation in such
excess, Tenant shall be entitled to recover from the excess reasonable costs and
expenses directly incurred by Tenant in connection with the execution and
performance of such assignment or sublease, including real estate broker's
commissions, commercially reasonable legal fees and costs of renovation or
construction of tenant improvements required under such assignment or sublease.
Tenant agrees to pay such amounts required to be paid to Landlord hereunder
within fifteen (15) days after receipt by Tenant.
E. If this Lease is assigned to any person or entity pursuant to
the provisions of the United States Bankruptcy Code, 11 U.S.C. Section __ 101
et. seq. (the "Bankruptcy Code"), any and all monies or other consideration
payable or otherwise to be delivered in connection with such assignment shall be
paid or delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the benefit of Landlord
and be promptly paid or delivered to Landlord. Any person or entity to which
this Lease is assigned pursuant to the provisions of the Bankruptcy Code, shall
be deemed, without further act or deed, to have assumed all of the obligations
arising under this Lease on and after the date of such assignment. Any such
assignee shall upon demand execute and deliver to Landlord an instrument
confirming such assumption.
F. Any assignee of Tenant's interest in this Lease, by accepting
any such assignment, shall be deemed to have assumed Tenant's obligations
hereunder arising from and after the effective date of the assignment. No
assignment, subletting or other transfer, whether consented to by Landlord or
not or permitted hereunder, shall relieve Tenant of its liability hereunder. If
an Event of Default occurs while the Premises or any part thereof are sublet,
then Landlord, in addition to any other remedies herein provided, or provided by
law, may collect directly from the sublessee all rents payable by the sublessee
to Tenant under the sublease and apply such rent against any sums due Landlord
hereunder. No such collection shall be construed to constitute a novation or a
release of Tenant from the further performance of Tenant's obligations
hereunder.
16. CONDEMNATION. If any portion of the Premises is taken for any
public or quasi-public use by right of eminent domain or private purchase in
lieu thereof (a "Taking"), and, as a result thereof, Tenant is unable to conduct
its business operations in the Premises in a manner reasonably comparable to
that conducted before the Taking, then either party may terminate this Lease by
delivering to the other written notice thereof within 30 days after the Taking,
in which case rent shall be abated during the unexpired portion of the Term,
effective on the date of such Taking. All compensation awarded for any Taking
shall be the property of Landlord and Tenant assigns any interest it may have in
any such award to Landlord; however, Landlord shall have no interest in any
award made to Tenant for loss of business or goodwill or for tenant improvements
paid for by Tenant and not paid for by the Leasehold Improvement Allowance (as
defined in Exhibit C) the taking of Tenant's trade fixtures or Tenant's moving
expenses, if a separate award for such items is made to Tenant. If a Taking
occurs and this Lease is not terminated as provided in this Paragraph 16, then
(i) Landlord shall restore, as soon as reasonably practical under the
circumstances, the Premises to substantially the same condition as it existed
before the Taking to the extent reasonably practicable; however, Landlord's
obligation to so restore the Premises shall be limited to the award Landlord
receives in respect of such Taking, and (ii) the rent payable hereunder during
the unexpired portion of this Lease shall be reduced to such extent as may be
fair and reasonable under all of the circumstances.
17. HOLDING OVER. At the termination of this Lease by its
expiration or otherwise, Tenant immediately shall deliver possession of the
Premises to Landlord with all repairs and maintenance required herein to be
performed by Tenant completed. If, for any reason, Tenant retains possession of
the Premises or any part thereof after such termination, Tenant shall pay to
Landlord all damages sustained by Landlord resulting from retention of
possession by Tenant, including without limitation the loss of any proposed
subsequent tenant for any portion of the Premises. However, Landlord may, at its
option, serve written notice upon Tenant that such holding over constitutes
either (i) the creation of a month to month tenancy, upon the terms and
conditions set forth in this Lease, or (ii) creation of a tenancy at sufferance,
in any case upon the terms and conditions set forth in this Lease; provided,
however, that the monthly rental (or daily rental under (ii)) shall, in addition
to all other sums which are to be paid by Tenant hereunder, whether or not as
additional rent, be equal to 150% of the rental being paid monthly to Landlord
under this Lease immediately prior to such termination (prorated in the case of
(ii) on the basis of a 365 day year for each day Tenant remains in possession).
If no such
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notice is served, then a tenancy at sufferance shall be deemed to be created at
the rent in the preceding sentence. No holding over by Tenant, whether with or
without consent of Landlord, shall operate to extend this Lease except as
otherwise expressly provided. The preceding provisions of this Paragraph 17
shall not be construed as consent for Tenant to retain possession of the
Premises in the absence of written consent thereto by Landlord.
18. QUIET ENJOYMENT. Landlord has the authority to enter into this
Lease and so long as Tenant pays all amounts due hereunder and performs all
other covenants and agreements herein set forth, Tenant shall peaceably and
quietly have, hold and enjoy the Premises for the Term hereof without hindrance
from Landlord subject to the terms and provisions of this Lease. If this Lease
is a sublease, then Tenant agrees to take the Premises subject to the provisions
of the prior leases.
19. EVENTS OF DEFAULT. The following events (herein individually
referred to as an "Event of Default") each shall be deemed to be an event of
default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the Base Rent
herein reserved when due, or any other payment or reimbursement to Landlord
required herein when due, and such failure shall continue for a period of five
(5) business days after Tenant's receipt of written notice that such payment was
due; provided that if Tenant fails to pay Base Rent or any Additional Rent on
time more than two (2) times in any twelve (12) month period, an Event of
Default shall occur notwithstanding that such payments have been made within the
applicable cure period.
B. The Tenant or any guarantor of the Tenant's obligations
hereunder shall: (i) become insolvent; (ii) admit in writing its inability to
pay its debts; (iii) make a general assignment for the benefit of creditors;
(iv) commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, 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 (v) take any action to
authorize or in contemplation of any of the actions set forth above in this
Paragraph.
C. Any case, proceeding or other action against the Tenant or any
guarantor of the Tenant's obligations hereunder shall be commenced seeking: (i)
to have an order for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent; (ii) reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors; (iii)
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, and such case, proceeding or
other action (a) results in the entry of an order for relief against it which is
not fully stayed within seven (7) business days after the entry thereof or (b)
shall remain un-dismissed for a period of forty-five (45) days.
D. Tenant shall vacate, desert, or abandon all or a substantial
portion of the Premises without giving Landlord at least thirty (30) days
advance written notice, whether or not Tenant is in default in payment of the
rental payments due under this Lease.
E. Tenant shall fail to discharge any lien placed upon the
Premises in violation of Paragraph 22 hereof within thirty (30) days after any
such lien or encumbrance is filed against the Premises.
F. Tenant shall fail to comply with any term, provision or
covenant of this Lease (other than those listed above in this Paragraph 19), and
shall not cure such failure within thirty (30) days after written notice thereof
to Tenant (or if the failure cannot be corrected, through the exercise of
reasonable diligence, within such thirty (30) day period, if Tenant does not
commence to correct same within such thirty (30) day period and thereafter
diligently prosecute same to completion).
G. Tenant, its bankruptcy trustee, or any entity authorized by
court order to act on behalf of Tenant, shall reject this Lease under 11 U.S.C.
sec. 365(a) or any other provision of Title 11 of the United States Code, or the
deemed rejection of this Lease by operation of law under 11 U.S.C. sec.
365(d)(4). Any such rejection of this Lease terminates this Lease, without
notice of any kind to Tenant, effective on the later of: (1) the date Tenant
vacates the Premises following such rejection; (2) the date the Bankruptcy Court
with jurisdiction over Tenant's bankruptcy case enters an order on its docket
authorizing Tenant to reject this Lease; or (3) the date this Lease is deemed
rejected under 11 U.S.C. sec. 365(d)(4).
20. REMEDIES.
A. Upon each occurrence of an Event of Default, Landlord shall
have the option to pursue,
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without any notice or demand, any one or more of the following remedies and/or
any other remedies to which Landlord is entitled at law or in equity:
(1) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to do so,
Landlord may, without any further notice and without prejudice to any other
remedy Landlord may have for possession or arrearages in rental, enter upon and
take possession of the Premises and remove Tenant and its effects, in a
commercially reasonable manner, without being liable for prosecution or any
claim for damages therefor, and Tenant shall indemnify Landlord for all loss and
damage which Landlord may suffer by reason of such termination, whether through
inability to relet the Premises or otherwise, including any loss of rental for
the remainder of the Term.
(2) If the Event of Default relates to nonpayment of Base
Rent or any other monetary sum due hereunder, or the desertion, vacation or
abandonment of the Premises, terminate this Lease, in which event Tenant's
default shall be deemed a total and entire breach of Tenant's obligations under
this Lease and Tenant immediately shall become liable for damages in an amount
equal to the excess of (i) the total rental for the remainder of the Term,
discounted at the Prime Rate (hereinafter defined) to the then present value,
together with all other expenses incurred by Landlord in connection with
Tenant's default, all sums due pursuant to Paragraph 20B below, and the unpaid
rental due as of the date of termination, over (ii) the fair market rental value
of the Premises for the balance of the Term, discounted at the Prime Rate to the
then present value. For the purposes of clause (i) above, the components of
monthly rent (other than Base Rent) for the remainder of the Term shall be
deemed to be equal to the respective monthly amounts thereof as were due and
payable during the month in which the Lease was terminated. It is acknowledged,
intended and agreed that the amounts which Landlord is entitled to recover under
this Paragraph 20A(2) constitute liquidated damages and not a penalty for
Tenant's defaults related to nonpayment of rental, or the desertion, vacation or
abandonment of the Premises. Such amounts constitute the parties' best, good
faith, and reasonable estimate of the damages which would be suffered by
Landlord in the event any such default occurs, the exact amount of such damages
being difficult or impractical to calculate.
(3) Enter upon and take possession of the Premises as
Tenant's agent without terminating this Lease and without being liable for
prosecution or any claim for damages therefor, and Landlord may relet the
Premises as Tenant's agent and receive the rental therefor, in which event
Tenant shall pay to Landlord on demand all sums due pursuant to Paragraph 20B
below, together with any deficiency that may arise by reason of such reletting.
(4) Do whatever Tenant is obligated to do under this
Lease and enter the Premises, without being liable for prosecution or any claim
for damages therefor, to accomplish such purpose. Tenant shall reimburse
Landlord immediately upon demand for any expenses which Landlord incurs in thus
effecting compliance with this Lease on Tenant's behalf, together with interest
thereon at the Prime Rate (hereinafter defined) plus 2% from the date Landlord
incurs the expense in question until Landlord is reimbursed therefor.
(5) Without notice, alter the locks and any other
security device or devices which allow Tenant access to the Premises or the
Building, and Landlord shall not be required to provide a new key or right of
access to Tenant, and restrict or terminate any right to use parking facilities
associated with the Building as well as utility services to the Premises. This
Paragraph 20A(5) is intended to and shall supersede the provisions of Section
93.002 of the Texas Property Code.
B. Upon the occurrence of an Event of Default, in addition to any
other sum provided to be paid herein, Tenant also shall be liable for and shall
pay to Landlord: (i) brokers' fees incurred by Landlord in connection with
reletting the whole or any part of the Premises; (ii) the costs of removing and
storing Tenant's or other occupant's property; (iii) the costs of repairing,
altering, remodeling or otherwise putting the Premises into condition acceptable
to a new tenant or tenants to the extent commercially reasonable; (iv) all
reasonable expenses incurred in marketing the Premises and (v) all reasonable
expenses incurred by Landlord in enforcing or defending Landlord's rights and/or
remedies. If either party hereto institutes any action or proceeding to enforce
any provision hereof by reason of any alleged breach of any provision of this
Lease, the prevailing party shall be entitled to receive from the losing party
all reasonable attorneys' fees and all court costs in connection with such
proceeding.
C. In the event Tenant fails to make any payment due hereunder
within ten (10) days after payment is due, to help defray the additional cost to
Landlord for processing such late payments, Tenant shall pay to Landlord on
demand a late charge in an amount equal to five percent (5%) of such payment;
and the failure to pay such amount within five (5) days after demand therefor
shall be an additional Event of Default hereunder. Notwithstanding the
foregoing, Tenant shall be entitled to two (2) late payments
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during any twelve (12) month period without application of said late charge. The
provision for such late charge shall be in addition to all of Landlord's other
rights and remedies hereunder or at law and shall not be construed as liquidated
damages or as limiting Landlord's remedies in any manner.
D. Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises by Landlord, whether by agreement or by operation of
law, it being understood that such surrender can be effected only by the written
agreement of Landlord and Tenant. Tenant and Landlord further agree that
forbearance by Landlord to enforce its rights pursuant to this Lease, at law or
in equity, shall not be a waiver of Landlord's right to enforce one or more of
its rights in connection with that or any subsequent default.
E. The term "Prime Rate" as used herein shall mean the per annum
"prime rate" of interest as published, on the date on which this Lease is
terminated in accordance with this Paragraph 20, by The Wall Street Journal,
Southwest Edition, in its listing of "Money Rates," or if The Wall Street
Journal is not published on the date on which this Lease is terminated, then the
"prime rate" of interest as published in The Wall Street Journal on the most
recent date prior to the date on which this Lease is so terminated.
F. If Landlord fails to perform any of its obligations hereunder
within thirty (30) days after written notice from Tenant specifying in detail
such failure (or if the failure cannot be corrected, through the exercise of
reasonable diligence, within such thirty (30) day period, if Landlord does not
commence to correct same within such thirty (30) day period and thereafter
diligently prosecute same to completion), Tenant's sole and exclusive remedy
shall be an action for actual (excluding consequential and punitive) damages.
Unless and until Landlord fails to so cure any default after such notice, Tenant
shall not have any remedy or cause of action by reason thereof. All obligations
of Landlord hereunder will be construed as covenants, not conditions; and all
such obligations will be binding upon Landlord only during the period of its
possession of the Premises and not thereafter. The term "Landlord" shall mean
only the owner, for the time being of the Premises, and in the event of the
transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged from all covenants and obligations of the
Landlord thereafter accruing, but such covenants and obligations shall be
binding during the Lease Term upon each new owner for the duration of such
owner's ownership. Notwithstanding any other provision hereof, Landlord shall
not have any personal liability hereunder. In the event of any breach or default
by Landlord of any term or provision of this Lease, Tenant agrees to look solely
to the equity or interest then owned by Landlord in the Premises or of the
Building of which the Premises are a part. Notwithstanding the foregoing, if
Tenant obtains a judgment against Landlord for a breach of this Section 20(F)
and Landlord fails to pay such judgment within 30 days after its receipt of
notice that the judgment has become final, then Tenant shall be entitled to
offset against the Base Rent payable under this Lease the amount of such
judgment.
G. If Landlord repossesses the Premises pursuant to the authority
herein granted, then Landlord shall have the right to (i) keep in place and use
or (ii) remove and store, all of the furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or third party having a lien thereon. Landlord also shall have
the right to relinquish possession of all or any portion of such furniture,
fixtures, equipment and other property to any person ("Claimant") who presents
to Landlord a copy of any instrument represented by Claimant to have been
executed by Tenant (or any predecessor of Tenant) granting Claimant the right
under various circumstances to take possession of such furniture, fixtures,
equipment or other property, without the necessity on the part of Landlord to
inquire into the authenticity or legality of said instrument. The rights of
Landlord herein stated shall be in addition to any and all other rights that
Landlord has or may hereafter have at law or in equity; and Tenant stipulates
and agrees that the rights herein granted Landlord are commercially reasonable.
H. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease, whether
or not expressly denominated as rent, shall constitute rent.
I. This is a contract under which applicable law excuses Landlord
from accepting performance from (or rendering performance to) any person or
entity other than Tenant.
21. MORTGAGES. Tenant accepts this Lease subject and subordinate
to any mortgages and/or deeds of trust now or at any time hereafter constituting
a lien or charge upon the Premises or the improvements situated thereon or the
Building; provided, however, that Landlord agrees to obtain and deliver to
Tenant a subordination, non-disturbance and attornment agreement ("SNDA") in
substantially the form of EXHIBIT "E" attached hereto and made a part hereof, or
other form reasonably acceptable to Landlord and Tenant, executed by any current
mortgagee with respect to the Building, within thirty (30) days following
receipt by Landlord of Tenant's written request given at any time following the
date
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hereof. Tenant agrees to enter into the SNDA with such mortgagee promptly upon
Landlord's request therefor. Notwithstanding the foregoing, if the mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to have Tenant's
interest in this Lease superior to any such instrument, then by notice to Tenant
from such mortgagee, trustee or holder, this Lease shall be deemed superior to
such lien, whether this Lease was executed before or after said mortgage or deed
of trust. Tenant, at any time hereafter, within ten (10) business days after
receipt of written demand, shall execute any commercially reasonable SNDA that
may be required by any future mortgagee or beneficiary under a mortgage or deed
of trust hereafter placed upon the Building, for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage or deed of trust,
provided Tenant's rights under this Lease are not disturbed pursuant to the
terms thereof. If any future mortgagee or beneficiary under a mortgage or deed
of trust hereafter placed upon the Building desires to subordinate its mortgage
or deed of trust to this Lease, Tenant agrees that it shall promptly execute
such instruments as may be reasonably required by such mortgagee or beneficiary
in order to effect such subordination.
22. MECHANIC'S LIENS. Tenant has no authority, express or implied,
to create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord or Tenant in the
Premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs. Tenant covenants and agrees that
it will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the Premises and that it will save and hold Landlord harmless
from any and all loss, cost or expense based on or arising out of asserted
claims or liens against the leasehold estate or against the right, title and
interest of the Landlord in the Premises or under the terms of this Lease.
Tenant agrees to give Landlord prompt written notice of the placing of any lien
or encumbrance against the Premises. Notwithstanding anything to the contrary
set forth in this Lease, in the event that such lien is not released and removed
within thirty (30) days after the date notice of such lien is delivered by
Landlord to Tenant, Landlord, at its sole option, may immediately take all
action necessary to release and remove such lien, without any duty to
investigate the validity thereof, and all sums, costs and expenses, including
reasonable attorneys' fees and costs, incurred by Landlord in connection with
such lien shall be deemed additional rent -under this Lease and shall
immediately be due and payable by Tenant. Notwithstanding the foregoing, if any
mechanics' or materialmen's lien ("M&M Lien") is ever asserted or placed against
or attaches to the Premises or any portion thereof as a result of any act or
omission of Tenant or its agents, then in lieu of paying the claim relating to
such M&M Lien Tenant shall have the right to contest the assertion, placement or
attachment of such M&M Lien so long as (i) prior to any such contest (and no
later than thirty (30) days after such lien has been filed) Tenant at its sole
expense provides to Landlord a bond indemnifying against such M&M Lien that
complies with applicable laws and removes the M&M Lien, and (ii) Tenant contests
such M&M Lien diligently and in good faith; provided, however, the foregoing
right of Tenant to contest any such M&M Lien shall not impair or otherwise
affect Tenant's indemnification obligations with respect to such M&M Lien. If
any lien is asserted against the Premises due to acts of Landlord or its agents
or contractors, Tenant shall not be obligated to remove such lien (it being
agreed that the removal of such lien shall be Landlord's obligation).
23. HAZARDOUS MATERIALS. Tenant shall never incorporate into, or
dispose of, at, in or under the Premises, the Building or the Land, any toxic or
hazardous materials (as defined hereafter). Tenant further agrees not to use at,
place in, or store at the Premises any toxic or hazardous materials, except for
those toxic or hazardous materials that are either (a) office supplies, (b)
kitchen cleaning materials that are generally considered to be a household
cleaner and are purchased in a container not larger than one (1) gallon or (c)
other materials or products lawfully used in the ordinary course of Tenant's
business (e.g., fuel, rubbing alcohol, and other products related to
pharmaceutical distribution) and then only if (i) all such toxic or hazardous
materials, supplies and materials are properly labeled and contained, (ii) all
such toxic or hazardous materials are stored, handled, transported and disposed
of in accordance with accepted industry standards and all applicable laws, rules
and regulations, and (iii) if a material safety data sheet is required under
applicable laws to accompany the toxic or hazardous materials, supplies or
materials, a copy of such current material safety data sheet is provided to
Landlord. For purposes of this Lease, "toxic or hazardous materials" shall mean
hazardous or toxic chemicals or any materials containing hazardous or toxic
chemicals at levels or content which cause such materials to be classified as
hazardous or toxic as then prescribed by the industry standards or by the then
current levels or content as set from time to time by the U.S. Environmental
Protection Agency ("EPA") or the U.S. Occupational Safety and Health
Administration ("OSHA") or as defined under 29 CFR 1910 or 29 CFR 1925 or other
applicable governmental laws, rules or regulations. In the event there is a
spill of toxic or hazardous materials (other than permitted office supplies and
kitchen cleaning supplies) at the Premises, or, if caused by Tenant or persons
acting under Tenant, the Building or the Land, Tenant shall notify Landlord of
the method, time and procedure for any cleanup and removal of such toxic or
hazardous materials; and, Landlord shall have the right to require reasonable
changes in such method, time or procedure. In the event there is a spill of a
toxic or hazardous material that comes from office
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supplies in the Premises, Tenant shall notify Landlord if the spill would in any
way endanger or pose a threat to Tenant's employees, Building maintenance or
custodial personnel, other Building tenants or the general public. In the event
of any breach of this provision by Tenant or any contamination of the Premises,
the Building or the Land, by Tenant, Tenant shall pay all costs for the removal
or abatement or cleanup of any toxic or hazardous materials at the Premises, the
Building and the Land. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been any release of hazardous
materials caused by Tenant and/or Tenant's invitees, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges if such requirement applies to the Premises. In addition, Tenant shall
execute affidavits, representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge and belief regarding the presence of
toxic or hazardous materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this Lease from any
release of toxic or hazardous materials on the Premises occurring while Tenant
is in possession or elsewhere if caused by Tenant or persons acting under
Tenant. This Paragraph 23A shall survive the expiration or any termination of
this Lease.
24. INTENTIONALLY DELETED.
25. NOTICES AND RENT PAYMENTS. Each provision of this instrument
or of any applicable governmental laws, ordinances, regulations and other
requirements with reference to the sending, mailing or delivering of notice or
the making of any payment by Landlord to Tenant, or with reference to the
sending, mailing or delivering of any notice or the making of any payment by
Tenant to Landlord, shall be deemed to be complied with when and if the
following steps are taken:
A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord c/o Hillwood Investment
Properties, Three Lincoln Centre, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
or at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith. Tenant's obligation to pay rent and any
other amounts to Landlord under the terms of this Lease shall not be deemed
satisfied until such rent and other amounts have been actually received by
Landlord. In addition to Base Rent due hereunder, all sums of money and all
payments due Landlord hereunder shall be deemed to be additional rental owed to
Landlord.
B. All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address of the Premises set forth in
the Basic Lease Information, or at such other address within the continental
United States as Tenant may specify from time to time by written notice
delivered in accordance herewith.
C. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth in the
Basic Lease Information. Any such notices shall be either (a) sent by overnight
delivery using a nationally recognized overnight courier, in which case notice
shall be deemed delivered one business day after deposit with such courier, (b)
sent by telefax, in which case notice shall be deemed delivered upon
transmission of such notice provided that an original of such facsimile is also
sent to the addressee by means described in clauses (a) or (c), or (c) sent by
personal delivery, in which case notice shall be deemed delivered upon receipt
or refusal of delivery. A party's address may be changed by written notice to
the other party; provided, however, that no notice of a change of address shall
be effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice. Notices given by counsel to
Landlord shall be deemed given by Landlord and notices given by counsel to
Tenant shall be deemed given by Tenant.
26. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way define, limit or
otherwise describe the scope or intent of this Lease, or any provision hereof,
or in any way affect the interpretation of this Lease.
B. The terms, provisions and covenants contained in this Lease
shall run with the land and shall apply to, inure to the benefit of, and be
binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
Building and property that are the subject of this Lease. Upon any Landlord's
conveyance of the Building or the Land, and the assignment of its rights under
this Lease, to another party ("Successor"), such Landlord shall be released from
its obligations hereunder and the Successor shall become the "Landlord"
hereunder from and after the date of any such conveyance and
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assignment and shall thereafter have all of the rights and obligations of the
Landlord hereunder, in accordance with the terms hereof, during the period of
its ownership of the Building. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
such party to enter into this Lease.
C. Landlord shall not be held responsible for delays in the
performance of its obligations hereunder when caused by material shortages,
weather, acts of God, labor disputes or other causes beyond the reasonable
control of Landlord (collectively, the "Force Majeure Delays").
D. Tenant agrees, from time to time, within ten (10) days after
request by Landlord, to deliver to Landlord or Landlord's designee, a
certificate of occupancy, financial statements and an estoppel certificate
stating (1) that this Lease is in full force and effect, (2) the date to which
rent is paid, (3) that there is no default on the part of Landlord or Tenant
under this Lease, (4) that Tenant does not have any right of offset, claims or
defenses to the performance of its obligations under this Lease, and (5) such
other factual matters pertaining to this Lease as may be requested by Landlord.
Tenant hereby irrevocably appoints Landlord as attorney-in-fact for the Tenant
with full power and authority to execute and deliver in the name of Tenant such
estoppel certificate if Tenant fails to deliver the same within such ten (10)
day period and such certificate as signed by Landlord or Landlord's designee, as
the case may be, shall be fully binding on Tenant, unless Tenant fails to
deliver a contrary certificate within five (5) days after receipt by Tenant of a
copy of the certificate executed by Landlord or Landlord's designee, as the case
may be, on behalf of Tenant.
E. This Lease constitutes the entire understanding and agreement
of the Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. If any conflict exists between any Basic Lease Information and the
Lease, then the Lease shall control. This Lease may not be altered, changed or
amended except by an instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of
the expiration or earlier termination of the Term of this Lease shall survive
the expiration or earlier termination of the Term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the Term hereof, and prior to Tenant
vacating the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises, including without
limitation, all heating and air conditioning systems and equipment thereon, in
good condition and repair, reasonable wear and tear excluded. Tenant shall also,
prior to vacating the Premises, pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for real estate taxes and insurance
premiums, common area maintenance, utility and other charges for the year in
which the Lease expires or terminates. All such amounts shall be used and held
by Landlord for payment of such obligations of Tenant hereunder, with Tenant
being liable for any additional costs therefor upon demand by Landlord, or with
any excess to be returned to Tenant after all such obligations have been
determined and satisfied as the case may be. Any security deposit held by
Landlord shall be credited against the amounts due from Tenant under this
Paragraph 26F.
G. If any clause or provision of this Lease is illegal, invalid
or unenforceable under present or future laws effective during the Term of this
Lease, 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 it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, 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.
H. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
I. When this Lease is signed by and delivered to both Landlord
and Tenant, Landlord shall pay a real estate commission to Landlord's Broker
named in the Basic Lease Information as provided in the written agreement
between Landlord and Landlord's Broker. When this Lease is signed by and
delivered to both Landlord and Tenant, Landlord shall also pay a real estate
commission to Tenant's
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Broker named in the Basic Lease Information as provided in the written agreement
between Landlord and Tenant's Broker. Landlord and Tenant each warrant that they
have dealt with no other real estate brokers in connection with this transaction
except those specified in the Basic Lease Information. Each party agrees to
indemnify and hold the other party harmless from and against any claims by any
other broker, agent or other persons claiming a commission or other form of
compensation by virtue of having dealt with the indemnifying party other than
those specified in the Basic Lease Information with regard to this leasing
transaction.
J. If and when included within the term "Landlord", as used in
this instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions of Paragraph 25 hereof to the
same effect as if each had received such notice.
K. By taking possession of the Premises, Tenant shall be deemed
to have: (a) acknowledged that the Premises and the improvements to be
constructed pursuant to EXHIBIT "C" attached hereto are substantially complete
except for "punch list" items (if any) and are accepted "as is" and "with all
faults"; (b) accepted the Premises as suitable for the purposes for which the
Premises are leased; and (c) acknowledged that the Premises are in a good and
satisfactory condition. Landlord expressly disclaims, and Tenant hereby waives
to the full extent permitted by law, any implied warranty that the Premises or
the Building are suitable for Tenant's intended commercial purpose, and any and
all other implied warranties (whether arising by virtue of statute, case law or
otherwise). The foregoing shall not be construed to relieve Landlord from its
obligations which are expressly set forth in this Lease.
L. Submission of this Lease shall not be deemed to be a
reservation of the Premises. Landlord shall not be bound hereby until its
delivery to Tenant of an executed copy hereof signed by Landlord, already having
been signed by Tenant, and until such delivery Landlord reserves the right to
exhibit and lease the Premises to other prospective tenants. Notwithstanding
anything contained herein to the contrary, Landlord may withhold delivery or
possession of the Premises from Tenant until such time as Tenant has paid to
Landlord the security deposit required by Paragraph 2B hereof.
M. Landlord and Tenant agree that the terms and conditions of
this Lease are confidential and the parties hereto agree not to disclose the
terms of this Lease to any third party (other than to its attorneys and
accountants and other than to parties who propose to purchase or finance the
Building, or the Project, or who propose to become investors in Landlord) except
as may be required by law or by the order of a court of competent jurisdiction.
N. Tenant agrees that Landlord or an affiliate of Landlord may
include Tenant's name and logo in marketing literature for the Project, and
other developments owned and/or operated by Landlord or an affiliate of
Landlord, for the limited purpose of informing third parties that Tenant is
occupying the Project or the larger development of which the Project is a part.
27. RENEWAL OPTION. Provided that Tenant is not in material
default of any of the terms, covenants and conditions hereof beyond the
expiration of applicable notice and cure periods set forth herein, and the
Premises (or a part thereof) has not been sublet, without written consent from
Landlord, Tenant will have the right and option to extend the original Lease
Term for one (1) further term of three (3) years. Such extension of the original
Lease Term shall be on the same terms, covenants and conditions as provided for
in the original Lease Term except for this Paragraph 27 and except that the
rental rate specified in Paragraph 2A of this Lease during the extended term
shall be at the fair market rental in effect at the beginning of the extended
term on equivalent properties, of equivalent size, in equivalent areas ("Fair
Market Rent"). Tenant will deliver written notice to Landlord of Tenant's intent
to exercise the renewal option granted herein not more than twelve (12) months
nor less than nine (9) months prior to the expiration of the original Lease
Term. In the event Tenant fails to deliver such written notice within the time
period set forth above, Tenant's right to extend the term hereunder shall expire
and be of no further force and effect. In the event Landlord and Tenant fail to
agree in writing upon the Fair Market Rent within thirty (30) days after
exercise by Tenant of the renewal option, the renewal option will be null and
void.
28. EARLY OCCUPANCY. Subject to governmental approval, Landlord
shall allow, on such terms and conditions established by Landlord in its sole
and absolute discretion, Tenant to occupy a portion of the Premises
approximately forty-five (45) days prior to the Commencement Date, provided
Initial: L_____ T_____
22
that such early occupancy: (i) shall be for the sole purpose of installing
racking and other furniture, fixtures and equipment; (ii) shall not interfere
with the construction of the Premises; and (iii) shall be subject to all of the
terms and conditions of this Lease (including, but not limited to, Tenant's
indemnification obligations and Tenant's obligations to carry insurance) other
than the payment of Base Rent and other monthly charges the payment of which
shall commence as provided herein. During the early-occupancy period, Tenant
will be responsible for providing and paying for its own utility services (e.g.,
gas, electric, water and telephone) for its activities and for providing
security for any of its property located on the Project. DURING TENANT'S EARLY
OCCUPANCY AS PROVIDED IN THIS ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ALL RISK OF DAMAGE TO
AND THEFT OF PROPERTY AND INJURY TO PERSONS, IN, ON, OR ABOUT THE PREMISES FROM
ANY CAUSE WHATSOEVER AND AGREES THAT LANDLORD AND THE LANDLORD AFFILIATES SHALL
NOT BE LIABLE FOR, AND ARE HEREBY RELEASED FROM ANY RESPONSIBILITY FOR, ANY
DAMAGE TO OR THEFT OF PROPERTY OR INJURY TO PERSONS, WHICH DAMAGE, THEFT OR
INJURY IS SUFFERED BY TENANT OR BY OTHER PERSONS CLAIMING THROUGH TENANT.
29. RIGHT OF FIRST OFFER. If at any time during the Term Landlord
desires to lease the space identified on Exhibit "G" (the "First Offer Space"),
then (provided that Tenant is not in default hereunder beyond the expiration of
any applicable grace period) Landlord will give Tenant written notice of the
terms on which Landlord would be willing to lease the First Offer Space ("First
Offer Notice"). Tenant will have a period of five (5) business days after
receipt of such First Offer Notice within which to give Landlord written notice
of Tenant's election to lease the subject space upon the same terms and
provisions specified in the First Offer Notice. If Tenant so elects to accept
the offer, Tenant will have a period of three (3) business days after receipt
from Landlord of an amendment to this Lease incorporating the terms of the First
Offer Notice into this Lease, within which to execute such amendment. The form
of amendment submitted by Landlord shall include the business points relating to
the First Offer Space, but shall not change the other provisions of the Lease
generally applicable to the Premises separately from said business points. In
the event that Tenant fails to respond to the First Offer Notice or fails to
execute a lease amendment as provided above, then Landlord will have the right
to enter into a lease with any third party upon the same terms and conditions
submitted in the First Offer Notice; provided that if Landlord fails to enter
into any such lease with any third party within ninety (90) days following the
date of the First Offer Notice, Landlord must again comply with the requirements
of this Paragraph 29. If Landlord enters into a lease with any third party as
provided above, then the Tenant's rights under this Paragraph 29 shall
terminate.
30. EARLY TERMINATION RIGHT.
Tenant shall have the right to terminate this Lease as to all of the
Premises, which termination shall become effective (at Tenant's election) on the
last day of the 68th month of the Term ("Termination Date"), provided that (i)
no Event of Default has occurred and is continuing as of the applicable
Termination Date and (ii) Tenant delivers to Landlord a written notice of
termination ("Termination Notice") on or before the last day of the 12th month
prior to the applicable Termination Date. The Termination Notice shall include a
payment to Landlord in the sum of $255,000 ("Termination Payment").
31. FIRE SPRINKLER SYSTEM. The fire sprinkler system within the
Premises shall be sufficient to service the Premises with at least a four hour
fire wall between tenants within the Building with no openings unprotected from
penetrations. Neither the Premises, the Building (as a whole) nor any single
tenant shall have any space that would exceed the current standards for fire
sprinklers as established by the National Fire Protection Association and
Industrial Risk Insurers. The fire sprinkler system shall be in service at all
times. Landlord agrees to notify Tenant (i) promptly of any inadvertent shut
down of the sprinkler system and (ii) at least one business day in advance of
any planned shutdown.
Initial: L_____ T_____
23
EXECUTED BY LANDLORD, this ____ day of August, 2003.
HILLWOOD METRO NO. 10, L.P.,
a Texas limited partnership
By: Hillwood Operating, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Executive Vice President
LCS LAND PARTNERS II, LTD.,
a Texas limited partnership
By: Hillwood Operating, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Executive Vice President
EXECUTED BY TENANT, this ____ day of August, 2003.
D&K HEALTHCARE RESOURCES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and CFO
Initial: L_____ T_____
24
EXHIBIT "A"
PROJECT SITE PLAN
Initial: L_____ T_____
25
EXHIBIT "B"
PROJECT LAND LEGAL DESCRIPTION
BEING 14.39 acres of land situated in the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Survey, Abstract No.
1251, Town of Flower Mound, ▇▇▇▇▇▇ County, Texas, and being all of ▇▇▇ ▇▇, ▇▇▇▇▇
A out of an 81.083 acre tract of land conveyed to LCS Land Partners II, Ltd. and
Hillwood Metro No. 10, L.P., as recorded in Cabinet U, Page 554 of the Plat
Records of ▇▇▇▇▇▇ County, Texas (P.R.D.C.T.), said 14.39 acre tract of land
being more particularly described by metes and bounds as follows:
BEGINNING at a 5/8-inch found iron rod with cap stamped "GORRONDONA & ASSOC.
INC." for the northeast corner of said 81.083 acre tract;
THENCE South 00 degrees 52 minutes 50 seconds East, along the east line of said
81.083 acre tract, a distance of 580.03 feet to a 1/2-inch set iron rod with
yellow plastic cap stamped "HALFF ASSOC. INC." (hereinafter referred to as "with
cap") for corner on the north right of way line of Enterprise Road (a 60 foot
dedicated right of way) as recorded in Cabinet U, Page 484 of the P.R.D.C.T.
THENCE South 89 degrees 26 minutes 36 seconds West, departing said east line and
along said north right of way line, a distance of 1,090.00 feet to a 1/2-inch
set iron rod with cap for corner;
THENCE North 00 degrees 33 minutes 24 seconds West, departing said north right
of way line, a distance of 572.03 feet to a 1/2-inch set iron rod with cap for
corner on the north line of said 81.083 acre tract;
THENCE North 89 degrees 01 minute 18 seconds East, along the north line of said
81.083 acre tract, a distance of 1,086.75 feet to the POINT OF BEGINNING
containing 626,932 square feet or 14.39 acres, more or less.
Initial: L_____ T_____
26
EXHIBIT "C"
WORK LETTER
(Allowance)
(a) Tenant has participated, and will continue to participate in
preliminary space-planning meetings with Landlord and Landlord's architect, and
will submit all of its requirements for improvements to the Premises desired by
Tenant (the "Leasehold Improvements") to Landlord by July 25, 2003, which
Leasehold Improvements must conform to the Tenant Improvements Outline
Specifications attached hereto as EXHIBIT "C-1". Landlord will cause its
architect to prepare and submit plans and specifications for the Leasehold
Improvements (the "Leasehold Improvement Plans") to Tenant not later than three
(3) days thereafter. Tenant shall have one (1) day after receipt to approve the
Leasehold Improvement Plans or to give comments to Landlord, approval of Tenant
hereunder not to be unreasonably withheld or delayed. If Tenant makes such
comments, Landlord shall have three (3) days to revise the Leasehold Improvement
Plans and resubmit them to Tenant. Tenant shall have one (1) day after receipt
of the resubmitted Leasehold Improvement Plans to approve the Leasehold
Improvement Plans, and this process of preparation, submittal and review shall
continue until such plans are approved, provided however that the parties will
cooperate with all due diligence to cause the Leasehold Improvement Plans to be
completed and mutually approved on or before August 1, 2003. The Leasehold
Improvement Plans must comply with (i) the Town of Flower Mound Fire and
Building Codes, (ii) State of Texas Accessibility Standards, (iii) Americans
with Disability Act legislation, (iv) all other laws, codes and governmental
regulations applicable thereto, and (v) be of quality similar to other Class A
office/warehouse buildings in the vicinity. All changes in the Leasehold
Improvements must receive the prior written approval of Landlord, not to be
unreasonably withheld (provided, however, Landlord may in its sole discretion
disapprove any proposed change in the Leasehold Improvements which would alter
the footprint of the building, materially change or deviate from the building
design criteria, materially increase the amount of office space, impair the
structural integrity of the building, or alter the general character of the
building as a warehouse/distribution facility), pursuant to a written change
order executed by Landlord and Tenant. If Tenant proposes a change order,
Landlord agrees to advise Tenant within 10 days after Tenant's request, of the
cost of implementing the change order and the number of days of Tenant Delay (if
any) that Landlord anticipates will result as a consequence of implementing the
change order. If Tenant fails to approve such change order within five (5) days
after Landlord's delivery of cost and completion time estimates, Tenant shall be
deemed to have withdrawn the proposed change. All improvements and alterations
resulting from changes to the Leasehold Improvements which are implemented
pursuant to the foregoing provisions shall be removed by Tenant at its expense
at or prior to the expiration or termination of this Lease (or termination of
Tenant's right of possession), in the manner provided for the removal of
alterations under the Lease, if Landlord requires in writing (at the time of
approving such changes) that removal is required. The amount of delay due to a
change order requested by Tenant shall equal the actual number of days of delay
resulting from such change. Nothing contained herein shall be deemed to
constitute Landlord's consent to, or Landlord's agreement that it will approve,
any change order proposed by Tenant. If Landlord approves a change order
requested by Tenant (the "Approved Change Order"), Tenant shall be responsible
for all expenses in connection with the change order (including the cost of
prosecuting the change order and revising the Leasehold Improvement Plans) as
provided above.
(b) When the Leasehold Improvement Plans have been approved,
Landlord agrees to bid the Leasehold Improvement Plans to at least three (3)
subcontractors in each major trade. Landlord and the general contractor will
select the subcontractors with Tenant's reasonable input. Tenant will have ten
(10) days from submittal by Landlord to approve the Leasehold Improvement
construction cost bid. There will be no construction management fee charged to
Tenant by Landlord. The costs of the Leasehold Improvements to be constructed in
accordance with the Leasehold Improvement Plans is referred to as the "Leasehold
Improvement Work Costs". Landlord will be responsible and will pay for all
Leasehold Improvement Work Costs up to Seven Hundred Twenty-One Thousand Eight
Hundred Forty-Nine and No/100 Dollars ($721,849.00) (the "Leasehold Improvement
Allowance"), and Tenant will be responsible and will pay for all Leasehold
Improvement Work Costs in excess of the Leasehold Improvement Allowance, such
excess cost being referred to as "Tenant's Cost". Tenant will pay one-half of
Tenant's Cost to Landlord within five (5) days after the general contractor bid
costs have been mutually approved by Landlord and Tenant, and one-half within
five (5) days following the date of substantial completion of the Leasehold
Improvements. Tenant shall be permitted to apply no more than $5,000 of the
Leasehold Improvement Allowance to the architectural and engineering fees
associated with the Leasehold Improvement Plans. Tenant will be responsible for
any architectural and engineering fees in excess of $5,000.00.
(c) Landlord will use reasonable diligence to substantially
complete the Leasehold Improvements by October 1, 2003 (the "Estimated
Completion Date"). If the Commencement Date has
Initial: L_____ T_____
27
not occurred by the Estimated Completion Date (which Estimated Completion Date
shall be extended by one day for each day constituting a Tenant Delay
[hereinafter defined] or Force Majeure Delay [as defined in the Lease]), then
Tenant shall be entitled to receive, as liquidated damages and its sole and
exclusive remedy, two days of free base rent for each day that shall elapse
between the Estimated Completion Date and the Commencement Date. Landlord will
have no obligation to "fast track" any work, but may do so at its option. Any
increased costs resulting from any "fast-tracking" will be paid by Landlord. As
used herein, the term "Substantial Completion Date" of the Improvements will
mean the date that such improvements have been completed in accordance with the
Leasehold Improvement Plans, except for punch list items. The Substantial
Completion Date shall be conclusively evidenced by issuance of a temporary
certificate of occupancy or other documentation allowing Tenant to lawfully
occupy the Premises. If the Substantial Completion Date has not occurred by
November 1, 2003 (which date shall be extended by one day for each day of Force
Majeure Delay and/or Tenant Delay), the Commencement Date shall be adjusted to
March 1, 2004. When the Leasehold Improvements have been substantially
completed, Landlord will notify Tenant in writing. Within ten (10) days
thereafter, Tenant will submit to Landlord in writing a punch list of items
needing completion or correction. Landlord will use its reasonable diligence to
complete such items within thirty (30) days after the receipt of such notice. If
Tenant, its employees, agents or contractors cause construction to be delayed,
the Commencement Date will be the date that substantial completion would have
occurred if such delays ("Tenant Delays") had not taken place. Tenant Delays
include, but are not limited to, delays resulting from any of the following:
(i) Failure of Tenant or its architects, engineers, space
planners or others employed by Tenant to timely and reasonably comply with the
schedule for preparation of the Leasehold Improvement Plans specified in
paragraph (b) above;
(ii) Changes made by Tenant either before or during
construction of the Improvements if the changes result in the Improvements being
substantially completed later than they would have been substantially completed
absent such changes;
(iii) Landlord's inability to obtain, or delay in
obtaining, a building permit, final Building Inspection Report or other required
governmental approval, inspection, license or certificate or any necessary
approval of any architectural control committee or other association required
under covenants, conditions or restrictions applicable to the Building, and such
inability is due to Tenant's failure to reasonably cooperate in the approval
process (including Tenant's failure to agree in a timely manner to make changes
to the Leasehold Improvement Plans, if and as required by such authorities);
(iv) Failure of Tenant to fully execute the Lease on or
before August 1, 2003;
(v) Failure of Tenant to fully and finally approve the
Leasehold Improvement Plans on or before August 1, 2003; and
(vi) Failure of Tenant to approve the Leasehold
Improvement construction cost bid within ten (10) days from submittal by
Landlord.
(e) If the Commencement Date established in accordance with this
EXHIBIT "C" occurs later than the Estimated Completion Date, Landlord will not
be in default and Tenant will accept the Premises upon issuance of the aforesaid
temporary certificate of occupancy.
(f) Notwithstanding anything in this Lease to the contrary, all
dates and time periods for Landlord's performance under this will be subject to
extension for the period of any Tenant Delays and Force Majeure Delays.
(g) All Improvements will be owned by Landlord and will remain on
the Land at the expiration or early termination of this Lease.
Initial: L_____ T_____
28
EXHIBIT "C-1"
TENANT IMPROVEMENTS OUTLINE SPECIFICATIONS
- 5,348 SF Office
- 4hr firewall between tenants within the building with no openings
unprotected from penetrations (painted white)
- A/C warehouse including R-19 insulation
- Insulate 10 each existing dock doors
- 25fc of metal halide warehouse lighting based on an un-racked facility
- 9 each 25,000# mechanical dock levelers and dock seals
- 4 each swing arm dock lights
- 800 amp electrical service
- 8 each 20 amp disconnects for battery chargers
- 5 each quad electrical outlets and data junction boxes at dock doors
- 1 each exterior disconnect for compactor
- Wiring of existing fans and louvers
- Burglar bars on existing fans, louvers, and clerestories
- Upper and lower cabinets in mail room
Initial: L_____ T_____
29
EXHIBIT "D"
Date
[Tenant]
Re: Lease Agreement dated _______________ between [Landlord] and [Tenant]
Property Located at _________________________________________
Dear ______________:
Enclosed, please find a copy of the Temporary Certificate of Occupancy for the
facility listed above. This letter will serve to document our agreement
regarding certain terms of the lease for the referenced premises:
a. The Commencement Date is ____________________.
b. The Premises contain __________ square feet of area.
c. The Building contains __________ square feet of area.
d. Tenant's Proportionate Share is __________%.
Your agreement to these terms will be understood unless you notify me otherwise.
For your convenience, I have enclosed a rent schedule, which shows when your
rental payments are due. We do not send out monthly invoices. All rental
payments are due by the 1st of each month and should be made payable to Landlord
c/o Hillwood Investment Properties.
Please mail your payments to the following address:
Hillwood Investment Properties
Three Lincoln Centre
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If you have any questions, please do not hesitate to call me at (▇▇▇) ▇▇▇-▇▇▇▇.
I look forward to working with you. Welcome to your new facility!
Sincerely,
Enclosures
Initial: L_____ T_____
30
EXHIBIT "E"
SNDA
SUBORDINATION, ATTORNMENT AND
NON-DISTURBANCE AGREEMENT
STATE OF ____________________)
COUNTY OF ___________________)
THIS SUBORDINATION, ATTORNMENT, AND NON-DISTURBANCE AGREEMENT (this
"Agreement") is made and entered into as of the ____ day of _________, 2002, by
and between ____________________________ ("Tenant"), and _________________
("Lender").
R E C I T A L S:
Tenant is the present tenant under that certain Lease Agreement dated
_________________, ____ (hereinafter the "Lease"), with respect to an
approximately ________ square feet of floor space located on the parcel of real
property more particularly described in Exhibit A attached hereto and made a
part hereof. The premises demised to Tenant under the Lease, as more
particularly described therein, are referred to herein as the "Premises."
___________________________________, as the landlord under the Lease
(the "Landlord"), has obtained a loan from Lender, which is secured by a first
Deed of Trust and Security Agreement covering the Premises and an Assignment of
Rents and Leases which collaterally assign to Lender all leases relating
thereto. Said Deed of Trust and Security Agreement and Assignment of Rents and
Leases, as the same may hereafter be amended, increased, renewed, extended,
spread, consolidated, severed, restated, or otherwise changed from time to time
(the consent of Tenant to which shall not be required), are referred to herein
as the "Security Instruments." As a condition to making such loan, Lender has
required that Tenant execute this instrument. The Deed of Trust and the
Assignment of Rents and Leases are recorded at___________________, of the Real
Property Records of ______________ County, ______________.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and as an inducement to Lender to extend financing to the
Landlord, the parties hereto do mutually covenant and agree as follows:
1. SUBORDINATION. The Lease shall at all times be subject and
subordinate in all respects to the Security Instruments, the lien and security
interest imposed by the Security Instruments, and all advances made under the
Security Instruments.
2. LENDER'S RIGHT TO CURE. Notwithstanding anything to the
contrary in the Lease or this Agreement, Tenant shall give prompt written notice
to Lender of any default or breach by Landlord under the Lease that are of such
a nature as to give Tenant a right to terminate the Lease, to reduce rent, or to
credit or offset any amounts against future rents. After Lender receives such
notice, Lender shall have a period of sixty (60) days beyond the time available
to Landlord under the Lease in which to cure the breach or default by Landlord.
Lender shall have no obligation to cure (and shall have no liability or
obligation for not curing) any breach or default by Landlord.
3. NON-DISTURBANCE. So long as Tenant is not in default in the
payment of rent, additional rent, or other charges or conditions of the Lease,
Tenant shall not be disturbed by Lender in Tenant's possession, enjoyment, use,
and occupancy of the Premises during the original or any renewal term of the
Lease or any extension or modification thereof.
4. PAYMENT OF RENTS TO LENDER. Upon Lender's written request and
without regard to contrary instructions from Landlord, Tenant agrees that it
will make the payments to be made by Tenant under the Lease directly to Lender.
Prior to the time that Lender shall succeed to the interest of Landlord in the
Premises as described in Section 5 below, receipt of such payments by Lender
shall not relieve
Initial: L_____ T_____
31
Landlord of its obligations under the Lease nor operate to make Lender
responsible for the performance thereof, and Tenant shall continue to look
solely to Landlord for performance of such obligations.
5. ATTORNMENT. If the interest of Landlord in the Premises shall
be acquired by Lender or any other successor landlord through foreclosure, deed
in lieu of foreclosure, or by any other method, and Lender shall succeed to the
interest of Landlord under the Lease, then the Lease shall continue in full
force and effect and shall not be terminated or disturbed except in accordance
with the terms thereof. Tenant shall thereupon be bound to Lender, and Lender
shall be bound to Tenant, under all the terms, covenants, and conditions of the
Lease for the balance of the term thereof remaining, and any extensions or
renewals thereof, with the same force and effect as if Lender was the original
landlord under the Lease. Tenant does hereby attorn to Lender as its landlord,
said attornment to be effective and self-operative without the execution of any
additional documents by the parties hereto immediately upon Lender's succeeding
to the interest of Landlord under the Lease.
6. PROTECTION OF LENDER. Notwithstanding anything to the contrary
in the Lease or the Security Instruments, Lender shall not be liable for or
bound by any of the following matters:
(a) except for any default or breach of which Lender has been
notified pursuant to Section 2 hereof but has failed to cure,
any default or breach in the Landlord's obligations under the
Lease occurring prior to the time Lender succeeds to the
interest of Landlord in the Premises;
(b) any payment of rent (including fixed rent, percentage rent, or
additional rent) that Tenant might have made to Landlord more
than thirty (30) days before the date such rent was first due
and payable under the Lease with respect to any period after
the time Lender succeeds to the interest of Landlord in the
Premises;
(c) any deposit or security which was delivered to Landlord but
which was not subsequently delivered to Lender;
(d) any modification or amendment to the Lease, or any waiver of
any terms of the Lease, made without Lender's prior written
consent as required by the Security Instruments;
(e) any consensual or negotiated surrender, cancellation, or
termination of the Lease, in whole or in part, agreed upon
between Landlord and Tenant, made without Lender's prior
written consent as required by the Security Instruments; or
(f) any obligation of Landlord under the Lease to make, pay for,
or reimburse Tenant for any construction, alterations,
demolition, or other improvements or work at the
______________, including the Premises (other than day-to-day
maintenance and repairs).
(g) Neither (Lender) nor any other party who from time to time
shall be included in the definition of Lender hereunder, shall
have any liability or responsibility under or pursuant to the
terms of this Agreement after it ceases to own an interest in
the Premises. Nothing in this Agreement shall be construed to
require Lender to see to the application of the proceeds of
the loan, and Lessee's agreements set forth herein shall not
be impaired on account of any modification of the documents
evidencing and securing the loan. Lessee acknowledges that
Lender is obligated only to Borrower to make the loan only
upon the terms and subject to the conditions set forth in the
Security Instruments between Lender and Borrower pertaining to
the loan. Lessee further acknowledges and agrees that neither
Lender nor any purchaser of the Premises at foreclosure sale
or any grantee of the Premises named in a deed-in-lieu of
foreclosure, nor any heir, legal representative, successor, or
assignee of Lender or any such purchaser or grantee, has or
shall have any personal liability for the obligations of
Tenant under the Lease; provided, however, that the Lessee may
exercise any other right or remedy provided thereby or by law
in the event of any failure by Tenant to perform any such
material obligation.
7. NOTICES. All notices, demands, or requests, and responses
thereto, required or permitted to be given pursuant to this Agreement shall be
in writing and shall be given or served by the United States mail, postage
prepaid and certified with return receipt requested, or by a nationally
recognized overnight courier service, addressed as follows:
If to Lender:
___________________________
Initial: L_____ T_____
32
___________________________
___________________________
___________________________
___________________________
If to Tenant:
___________________________
___________________________
___________________________
___________________________
or at such other single address in the United States as either party may by
notice in writing designate. Any notice shall be effective the next business day
after being sent by overnight courier service and five (5) business days after
being sent by certified mail (return receipt requested).
8. SUCCESSORS AND ASSIGNS. This Agreement shall bind and benefit
the parties, their successors and assigns. If Lender assigns the Security
Instruments, then upon delivery to Tenant of written notice thereof accompanied
by the assignee's written assumption of all obligations under this Agreement,
all liability of the assignor shall terminate.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Lender and Tenant regarding the subordination of the Lease to
the Security Instruments and the rights and obligations of Tenant and Lender as
to the subject matter of this Agreement.
10. INTERACTION WITH LEASE WITH SECURITY INSTRUMENTS. If this
Agreement conflicts with the Lease, then this Agreement shall govern as between
Tenant and Lender, including upon any attornment pursuant to this Agreement.
This Agreement supersedes, and constitutes full compliance with, any provisions
in the Lease that provide for subordination of the Lease to, or for delivery of
nondisturbance agreements by the holder of, the Security Instruments. Lender
confirms that Lender has consented to Landlord's entering into the Lease.
11. INTERPRETATION; GOVERNING LAW. The interpretation, validity,
and enforcement of this Agreement shall be governed by and construed under the
internal laws of the State of California.
12. AMENDMENTS. This Agreement may be amended, discharged, or
terminated, or any of its provisions waived, only by a written instrument
executed by the party to be charged.
13. EXECUTION. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
14. WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ANY RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY
CLAIMS, CROSS-CLAIMS OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE LEASE, OR THE SECURITY INSTRUMENTS. TENANT
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF LENDER OR LENDER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF JURY TRIAL PROVISION.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be duly executed, as of the day and year first
above written.
TENANT:
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
Date of execution:____________________
Initial: L_____ T_____
33
LENDER:
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
Date of execution:____________________
STATE OF ________________________ )
COUNTY OF _______________________ )
This instrument was acknowledged before me on _________________, ____
by ________________, __________________ of ________________ on behalf of
___________________________.
______________________________________
Notary Public
My commission expires:________________
[NOTARIAL SEAL]
STATE OF ________________________ )
COUNTY OF _______________________ )
This instrument was acknowledged before me on _______________, ____ by
___________________________, on behalf of said association.
______________________________________
Notary Public
My commission expires:________________
[NOTARIAL SEAL]
Initial: L_____ T_____
34
EXHIBIT A
TO
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
Initial: L_____ T_____
35
EXHIBIT "F"
INTENTIONALLY DELETED
Initial: L_____ T_____
36
EXHIBIT "G"
FIRST OFFER SPACE
Initial: L_____ T_____
37