Exhibit 10.18
OFFICE LEASE AGREEMENT
between
▇▇▇▇▇▇▇▇▇ Place, L.L.C.
an Arizona limited liability company,
as Landlord,
and
VistaCare, Inc.
a Delaware Corporation
as Tenant
▇▇▇▇▇▇▇▇▇ Place
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Table of Contents
Page
Basic Lease Information 4
ARTICLE 1: Premises 4
ARTICLE 2: Term 5
ARTICLE 3: Rent 6
ARTICLE 4: Additional Rent/Expense Stop 7
ARTICLE 5: Parking & Storage 9
ARTICLE 6: Rent Tax and Personal Property Taxes 10
ARTICLE 7: Payment of Rent/Late Charges 11
ARTICLE 8: Security Deposit 11
ARTICLE 9: Construction of the Premises 12
ARTICLE 10: Alterations 12
ARTICLE 11: Fixtures/Personal Property 12
ARTICLE 12: Liens 12
ARTICLE 13: Use of Premises/Rules and Regulations 13
ARTICLE 14: Rights Reserved by Landlord 14
ARTICLE 15: Quiet Enjoyment 15
ARTICLE 16: Maintenance and Sanitation 16
ARTICLE 17: Utilities and Janitorial Services 16
ARTICLE 18: Entry and Inspection 17
ARTICLE 19: Liability Insurance and Indemnification
of Landlord 18
ARTICLE 20: Casualty Insurance 19
ARTICLE 21: Damage and Destruction of Premises 20
ARTICLE 22: Eminent Domain 22
ARTICLE 23: Assignment and Subletting 22
ARTICLE 24: Sale of Premises by Landlord 23
ARTICLE 25: Subordination/Attornment/Modification/Assignment 23
ARTICLE 26: Right to Cure 23
ARTICLE 27: Estoppel Certificates 24
ARTICLE 28: Default and Conditional Limitations 24
ARTICLE 29: Tenant's Recourse 27
ARTICLE 30: Force Majeure 27
ARTICLE 31: Surrender of Premises 28
ARTICLE 32: Holding Over 28
ARTICLE 33: General Provisions 28
ARTICLE 34: Notices 29
ARTICLE 35: Broker's Commissions 30
EXHIBIT A Floor Plan
EXHIBIT A-1 Garage Plan
EXHIBIT 8 Building Standard Workletter
EXHIBIT C Rules and Regulations
EXHIBIT D Subordination, Non-Disturbance And Attornment Agreement
EXHIBIT E Estoppel Certificate
RIDER 1 Option to Extend
RIDER 2 First Right of Refusal
OFFICE LEASE AGREEMENT
This Lease Agreement is made and entered into this 12 day of April, 1999,
by and between ▇▇▇▇▇▇▇▇▇ Place, L.L.C. an Arizona limited liability company,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred
to as "Landlord," and VistaCare, Inc., a Delaware corporation ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ hereinafter referred to as "Tenant,"
WITNESSETH: In consideration of the rents, covenants and agreements given and
exchanged herein, Landlord leases to Tenant, and Tenant leases and accepts from
Landlord, the office space described in Section 1.1, hereinafter referred to as
the "Premises".
All covenants, agreements, terms and conditions between Landlord and Tenant with
respect to the Premises are contained in this Office Lease Agreement ("Lease")
and the following exhibits and addendum attached hereto and incorporated into
the Lease by this reference:
Exhibit A - Floor Plan.
Exhibit A-1 - Garage Plan
Exhibit B - Building Standard Workletter for Tenant Improvements.
Exhibit C - Rules and Regulations.
Exhibit D - Subordination, Non-Disturbance And Attornment Agreement
Exhibit E - Estoppel Certificate
Rider "1" - Consisting of one page.
Rider "2" - Consisting of one page.
ARTICLE 1: PREMISES
1.1 The Premises are located on the second (2nd) floor of the Building as shown
on Exhibit "A." The Rentable Area of the Premises at Lease Commencement has been
estimated to be 15,000 square feet including Load Factor; and commencing upon
the seventh (7th) full month of the first (1st) Lease year the Premises will be
increased to a total of 20,000 square feet including the Load Factor; provided,
however, if the Rentable
Area or the Load Factor should be greater or less, as a result of design or
construction of the Building, the Premises, other premises or Interior Common
Facilities, the Rentable Area set forth in this Section 1.1 shall be adjusted
accordingly.
1.2 As used in this Lease:
(a) Rentable Area means:
(i) With respect to the Building, the sum of the total area of all
floors in the Building (including Interior Common Facilities but excluding
stairs, elevator shafts, vertical shafts, parking areas and exterior balconies),
computed by measuring to the exterior surface of permanent outside walls.
(ii) With respect to the Premises, the Usable Area of the Premises
multiplied by the Load Factor. No deductions from Rentable Area shall be made
for columns or projections necessary for the Building.
(b) Usable Area means the area of the Premises (or other premises or
space occupiable by tenants whether or not actually occupied) computed by
measuring to the exterior surface of permanent outside walls, to the midpoint of
corridor and demising walls and to the Tenant side of permanent interior and
Interior Common Facility walls (other than corridor walls).
(c) Load Factor means the Rentable Area of the Building divided by the
aggregate Usable Area of all premises and occupiable space in the Building.
(d) Interior Common Facilities means lobbies, corridors, hallways,
elevator foyers, restrooms, mail rooms, mechanical and electrical rooms, janitor
closets and other similar facilities used by tenants or for the benefit of
tenants on a nonexclusive basis.
1.3 Landlord reserves the right to change the Building, the number of floors,
the arrangement and location of the Interior Common Facilities in the Building
and the shape, location, levels, arrangement and dimensions of the Common Areas,
including space reservations in the Automobile Parking Area. Landlord further
reserves the right to change the shape, dimensions and size of the Premises,
provided, however, that no material changes shall be made to the Premises
without the prior written approval of the Tenant. In the event the Tenant does
not approve of such change, its sole remedy shall be to cancel this Lease by
written notice thereof within ten (10) days after
receipt of Landlord's notification of such proposed change, and any security
deposit and prepaid rent, if any, paid by Tenant shall be refunded to the Tenant
and the Landlord shall thereupon be released from any further obligations and
liabilities to Tenant hereunder.
ARTICLE 2: TERM
2.1 The term of this Lease ("Lease Term") shall be for a period of seven (7)
years, two (2) months, plus the remainder of any partial calendar month in which
the term commences.
2.2 Subject to any adjustments under Article V of Exhibit "B", the Lease Term
shall commence on that date (the "Commencement Date") upon which Landlord
notifies Tenant (or the date Tenant has actual notice) that Landlord's
construction obligations under this Lease have been substantially completed and
that the Premises are ready for occupancy, with or without actual entry by
Tenant.
2.3 Within thirty (30) days after Tenant takes possession of the Premises,
both parties agree to execute a written memorandum setting forth the
Commencement Date, the date on which this Lease expires ("Expiration Date") and
the stipulated Rentable Area as adjusted under Section 1.2.
2.4 If the Commencement Date has not occurred within twelve (12) months from
the date of this Lease through no fault of Tenant, whether by completion of
Tenant's Leasehold Improvements or deemed completion pursuant to Article V of
Exhibit "B", either Landlord or Tenant may, by written notice to the other,
terminate this Lease. If either party terminates this Lease under this
paragraph, Landlord shall promptly return any security deposit and prepaid rent,
if any, to Tenant and the parties shall have no further obligation to the other.
2.5 Notwithstanding the above definition of Lease Term, which is used to
conveniently define the period following construction of improvements during
which Tenant shall pay rent, the Lease, all rights and remedies of Landlord and
all obligations of Tenant except the obligation to pay the Minimum Monthly Rent
shall take effect upon the date of this Lease, without actual entry onto the
Premises by Tenant.
ARTICLE 3: RENT
3.1 Beginning with the third (3rd) month of the Lease, Tenant covenants and
agrees to pay to Landlord, without deduction,
setoff, prior notice or demand, for the use and occupancy of the Premises a
minimum monthly rent of Thirty Thousand Six Hundred Twenty Five and 00/100
Dollars ($30,625.00) payable in advance on the first day of each and every
calendar month through the first six (6) months of the Lease Term. Beginning
with the seventh (7th) month of the Lease Term and continuing for the next
thirty two (32) months, Tenant agrees to pay a Minimum Monthly Rent Forty
Thousand Eight Hundred Thirty Three and 33/100 Dollars ($40,833.33) payable in
advance on the first day of each and every month, through the thirty eighth
(38th) month of the Lease Term, beginning with the thirty ninth (39th) month of
the Term and continuing for the next twenty four (24) months, through the sixty
second (62nd) month, Tenant agrees to pay a Minimum Monthly Rent of Forty One
Thousand Six Hundred Sixty Six and 64/100 Dollars ($41,666.64) payable in
advance on the first day of each and every calendar month. Beginning with the
sixty third (63rd) month of the Term and continuing for the next twenty four
(24) months, through the eighty sixth (86th) month, Tenant agrees to pay a
Minimum Monthly Rent of Forty Three Thousand Three Hundred Thirty Three and
33/100 Dollars ($43,333.33) payable in advance on the first day of each and
every calendar month. If the Minimum Monthly Rent commences on a date other than
the first day of a calendar month, the Minimum Monthly Rent for that month shall
be prorated on a per diem basis and be paid to Landlord on the Commencement
Date. If the Rentable Area of the Premises is adjusted in accordance with
Section 1.2, the initial Minimum Monthly Rent shall be adjusted to be one
twelfth of the product obtained by multiplying the actual square foot Rentable
Area, as so adjusted, by Twenty Four and 50/100 Dollars ($24.50) for the first
thirty eight (38) months, Twenty Five and 00/100 Dollars ($25.00) for months
thirty nine (39) through sixty two (62), Twenty Six and 00/100 Dollars ($26.00)
for months sixty three (63) through eighty six (86).
ARTICLE 4: ADDITIONAL RENT/EXPENSE STOP
4.1 Commencing on the thirteenth (13th) month of the Lease Term and continuing
for the Term and any extensions of the Lease, Tenant covenants and agrees to pay
as additional rent, Tenant's Pro Rata Share of Direct Costs during each
Operating Year of the Lease Term.
4.2 The Minimum Monthly Rent includes (and after any rent adjustment under
this Lease will be deemed to include) an amount equal to one-twelfth (1/12th) of
the Expense Stop. Prior to the end of each Operating Year, Landlord shall
provide Tenant with a written statement of Landlord's estimate of Tenant's Pro
Rata
Share of Direct Costs for the next succeeding Operating Year. If the estimate of
Tenant's Pro Rata Share of the Direct Costs exceeds the Expense Stop, Tenant
agrees to pay Landlord, in addition to and concurrently with each payment of the
Minimum Monthly Rent for the next Operating Year, an amount equal to one twelfth
(1/12th) of the excess. Notwithstanding the foregoing, Landlord may, monthly,
provide Tenant with a revised estimate of the Direct Costs for the current
Operating Year. If the revised estimate of Direct Costs exceeds Landlord's
original estimate of Direct Costs for that Operating Year, Tenant agrees to pay
Landlord, in addition to and concurrently with the Minimum Monthly Rent for the
remainder of the Operating Year, Tenant's Pro Rata Share of the excess divided
by the number of remaining months in the Operating Year.
4.3 Within approximately sixty (60) days after the end of each Operating Year,
Landlord shall provide Tenant with a statement showing the actual Direct Costs
for the preceding Operating Year and any adjustments to be made as a result
thereof. If Tenant's Pro Rata Share of the actual Direct Costs paid or incurred
by Landlord during such Operating Year exceeds the estimates of Direct Costs
paid by Tenant during the same Operating Year, Tenant shall pay Landlord the
excess at the time the next succeeding payment of Minimum Monthly Rent is
payable. If the sum of (i) Tenant's estimated payments for the Operating Year
plus (ii) the Expense Stop exceeds Tenant's Pro Rata Share of the Landlord's
actual Direct Costs during such Operating Year, and if Tenant's Pro Rata Share
of Direct Costs exceeds the Expense Stop, Landlord shall apply the excess of
such sum over Landlord's actual Direct Costs to payments next falling due under
this Article. In no event shall the Minimum Monthly Rent be reduced below that
set forth in Section 3.1.
Any other provision of Article 4 to the contrary notwithstanding, commencing on
the first anniversary of the Expense Commencement Date, for purposes of
calculating the Tenant's Pro Rata Share of Direct Costs payable by the Tenant,
any increase in Direct Costs (excluding all increases in costs incurred by
Landlord for utility costs, taxes, assessments, ▇▇▇▇▇▇ Ranch Association Fees
and Landlord's property and liability insurance) for an Operating Year over the
amount of such costs for the preceding Operating Year shall be limited to the
lesser of (i) the actual increase of Adjusted Direct Costs for the Operating
Year or (ii) seven percent (7%) of the prior Operating Year's actual Direct
Costs.
4.4 As used herein, the following terms shall have the meanings set forth
opposite the respective term:
(a) "Expense Stop" means an amount equal to Seven and 00/100 Dollars
($7.00) multiplied by the number of square feet of Rentable Area in the
Premises, which is Landlord's estimate of Tenant's Pro Rata Share of Direct
Costs for the Operating Year in which the Lease Term commences.
(b) "Direct Costs" means and includes:
(1) Those expenses paid or reasonably incurred by Landlord
(whether directly or through independent contractors) for managing, maintaining,
operating and repairing the Building, the Common Areas and the personal property
used in conjunction therewith, including, but not limited to, the cost of
utilities, supplies, insurance, amortization (over the reasonable life of the
item) of the cost of installation of capital investment items which are
installed primarily for the purpose of reducing Direct Costs or which may be
required by any governmental authority; janitorial services; compensation
(including employment taxes, similar government charges and fringe benefits) of
all persons who perform duties in connection with the operation, maintenance and
repair of the Building, the Common Areas and the land upon which the Building
and Common Areas are situated; reasonable management fees, legal and accounting
expenses; costs allocated to Landlord under an agreement for joint operation,
maintenance and use of exterior Common Areas and Automobile Parking Areas
servicing the Building and adjacent property comprising The ▇▇▇▇▇▇ Ranch Town
Center, and any other expense or charges whether or not hereinabove described
which, in accordance with consistently applied generally accepted accounting and
management principles would be considered an expense of managing, maintaining,
operating or repairing the Building and Common Areas; and
(2) All impositions, taxes, ▇▇▇▇▇▇ Ranch Association fees,
assessments (special or otherwise) and other governmental levies and charges of
any and every kind, ordinary or extraordinary, foreseen or unforeseen, assessed
or imposed upon or with respect to the ownership of, or other taxable interest
attributable to, the Building, Common Areas and land upon which they are located
and any improvements, fixtures, equipment and other property of Landlord, real
or personal, located in or used in connection with the operation of the
Building, the Common Areas and the land upon which they are located and any tax
which shall be imposed on any interest or excise in substitution for taxes
commonly known as real estate taxes.
(c) Direct Costs shall not include
(1) Income, estate and inheritance taxes levied against Landlord.
(2) Taxes paid by any tenant under Article 6.
(3) Depreciation, capital investment items (except as provided in
Section 4.4(b)(1)) and debt service.
(4) Costs of leasing space in the Building, including leasing
commissions and leasehold improvement costs.
(5) The cost of utilities separately metered to any tenant or
resulting from Excess Consumption under Article 17 and billed directly to that
tenant.
(6) The cost of special services provided to any tenant and billed
directly to that tenant.
(7) Repairs and maintenance paid by proceeds of insurance or from
tenants.
(d) "Common Areas" means all areas both interior and exterior provided
by Landlord for the common or joint use and benefit of the occupants of the
Building, their employees, agents, customers, and other invitees including but
not limited to the Automobile Parking Area (whether spaces are assigned,
reserved or not) as defined in Article 5 of this Lease, public restroom
facilities, landscaping, plaza decks, driveways, exterior lighting, ramps,
drainage facilities, traffic controls, sidewalks, building lobbies and hallways,
mechanical rooms, elevator shafts and stairways.
(e) "Operating Year" means the year beginning January 1 and ending
December 31.
(f) "Tenant's Pro Rata Share" means that fraction, the numerator of
which is the Rentable Area of the Premises and the denominator of which is the
aggregate Rentable Area of the Building.
4.5 The determination and statement of expenses shall be made by Landlord and
a copy of such statements shall be made available to Tenant upon demand.
4.6 Notwithstanding anything in this Lease to the contrary, no failure by
Landlord to give notices or statements of Direct Costs within the time
specified, and no grant of "free rent" or
parking fee concessions, shall waive Landlord's right to require payment by
Tenant of Direct Costs in excess of the Expense Stop.
ARTICLE 5: PARKING & STORAGE
5.1 Landlord agrees to operate and maintain or cause to be maintained and
operated an Automobile Parking Area during the Lease Term for the benefit and
use of tenants, customers, patrons and employees of tenants of the Building at a
ratio of four (4) spaces for each 1,000 square feet of usable area in the
building. The cost of maintenance, operation, repair and management of the
Automobile Parking Area whether paid by or allocated to Landlord shall be
included in the Direct Costs set forth in Article 4 above. Nothing contained
herein shall be deemed to create liability upon Landlord for any damage to motor
vehicles of customers or employees or from loss of property from within such
motor vehicles.
5.2 Commencing with the third (3rd) month of the Lease and continuing
thereafter, Tenant covenants and agrees at all times during the Lease Term to
lease parking rights for fourteen (14) reserved executive parking spaces in the
Automobile Parking Area (Exhibit A-1) and Tenant agrees to pay for each reserved
space in addition to and concurrently with the Minimum Monthly Rent a fee of
Fifty Five and 00/100 Dollars ($55.00) per month, commencing in accordance with
Section 3.1.
Additionally, commencing with the third (3rd) month of the Lease and continuing
thereafter Tenant covenants and agrees to lease parking rights for not less than
twenty one (21) covered unreserved parking spaces during the Lease Term in the
Automobile Parking Area and Tenant agrees to pay for each unreserved space in
addition to and concurrently with the Minimum Monthly Rent, a fee of Forty and
00/100 Dollars ($40.00) per month commencing in accordance with Section 3.1.
Landlord agrees to provide Tenant not less than four (4) spaces for each 1,000
useable square feet within the premises including executive reserved, covered
reserved, and uncovered unreserved in the Automotive Parking Area.
Parking rates shall be adjusted at the end of the fifth (5th) year of the Lease
Term and at the commencement of each extension term to the current market rates
for like parking spaces in the project.
Landlord shall have the right to reserve and assign parking spaces for Tenant
and other tenants of the Building or to designate parking rights on an
unreserved, non-exclusive basis.
Tenant will receive stickers or cards authorizing parking equal to the number of
vehicles for which parking rights have been leased.
5.3 Landlord shall have the right to establish and from time to time change,
alter and amend, and to enforce against all users of the Automobile Parking
Area, reasonable rules and regulations (including the exclusion of parking from
designated areas and the assignment of spaces to tenants) as may be deemed
necessary and advisable for the proper and efficient operation and maintenance
of said Automobile Parking Area including, without limitation, the hours during
which the Automobile Parking Area shall be open for use.
5.4 Landlord may establish such reasonable charges as Landlord deems
appropriate for the use of the Automobile Parking Area by persons who have not
leased space in the Building. Landlord may establish a system whereby these
persons may present validations issued by tenants in lieu of payment of the
parking charges. If Tenant wishes to provide Tenant's customers and patrons with
validations as part of the validation system, Tenant agrees to pay Landlord, as
additional rent, those charges established by Landlord for use of the validation
system and to comply with such system and all rules and regulations established
by Landlord for Tenant's use and the use of Tenant's customers and patrons of
the validation.
5.5 Landlord may on a space available basis, provide storage space in the
parking garage for Tenant's use. The rental rate shall be sixteen dollars
($16.00) per square foot per annum, plus rent tax during the first five (5)
years of the Term hereof and thereafter the storage space rent shall increase
fifteen percent (15%) at each additional five (5) year anniversary of this
Lease.
ARTICLE 6: RENT TAX AND PERSONAL PROPERTY TAXES
6.1 Tenant covenants and agrees to pay to Landlord, in addition to, and
simultaneously with, any other amounts payable to Landlord under this Lease, a
sum equal to the aggregate of any municipal, county, state or federal excise,
sales, use or transaction privilege taxes now or hereafter legally levied or
imposed against or on account of any or all amounts payable under this Lease by
Tenant or the receipts thereof by Landlord (except taxes which are commonly
referred to as income, estate, or inheritance taxes).
6.2 Tenant shall pay, prior to delinquency, all taxes levied upon fixtures,
furnishings, equipment and personal property placed on the Premises by Tenant.
If any or all Tenant's fixtures, furnishings, equipment or personal property
shall be assessed and taxed with the Landlord's real property, Tenant shall
reimburse Landlord for such taxes within ten (10) days after delivery to Tenant
by Landlord of a statement in writing setting forth the amount of such taxes
applicable to the Tenant's property.
ARTICLE 7: PAYMENT OF RENT/LATE CHARGES
7.1 Tenant shall pay the rentals and all other charges herein specified to
Landlord at the address set forth on page one of this Lease, or to another
person and at another address as Landlord shall from time to time designate in
writing.
Any payment of rent, additional rent or other charge required to be made by
Tenant to Landlord under the terms of this Lease not received within ten (10)
days after the due date (the "Delinquency Date") thereof shall be subject to a
one-time late charge of five percent (5%) of the delinquent amount.
7.2 Any delinquent rent, additional rent or other charge, expense or cost due
and payable from Tenant to Landlord shall bear interest from the Delinquency
Date at the rate equal to the greater of: (a) eighteen percent (18%) per annum
or, (b) a variable rate equal to the Prime Rate (base rate on corporate loans at
large U. S. money center commercial banks) announced daily in the Wall Street
Journal plus four percent (4%).
ARTICLE 8: SECURITY DEPOSIT
8.1 Tenant shall, upon execution and delivery of this Lease, deposit with
Landlord the sum of Twenty Two Thousand Nine Hundred Eighty Seven and 04/100
Dollars ($22,987.04) as security for the full and faithful performance of each
and every term provision, covenant and condition of this Lease. If Tenant is
entitled to a refund of, or monetary credit for, all or part of the security
deposit currently held by the landlord under the Lease Agreement between Tenant
as tenant and GRTC Properties, L.L.C. as landlord, dated June 22, 1998; then
Tenant shall immediately deposit the refund, or an amount equal to the credit,
with Landlord. Such amount deposited with Landlord shall be held by Landlord as
additional security pursuant to this Article 8.
8.2. If Tenant defaults in any of the terms, provisions, covenants and
conditions of this Lease, including but not limited to the payment of Minimum
Monthly Rent, additional rent or other charge, landlord may, but need not, use,
apply or retain the whole or any part of this security not as liquidated damages
but for the payment of any rent or charge in default or for any other sum which
Landlord may spend or be required to spend by reason of Tenant's default. If any
portion of said deposit is so used or applied, Tenant shall, within five (5)
days after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount. Should Tenant
fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the security or any balance of the security shall be
returned to Tenant or, at the option of Landlord, to the last assignee of
Tenant's interest in this Lease within ten (10) days after the Expiration Date
and surrender of the Premises by Tenant. Landlord's rights with reference to the
security deposit shall be in addition to and shall not preclude any other
rights, remedies or recoveries available to Landlord by law or under the terms
of this Lease.
8.3 Tenant agrees that in case the Landlord shall sell or exchange Landlord's
interest in the Premises during the Lease Term, Landlord may pay the deposit to
any subsequent owner and in that event, Tenant hereby releases Landlord from all
liability for the return of such deposit. Landlord shall not be required to
maintain such funds in a segregated account, but may deposit such funds in any
general account of Landlord, provided that such commingling shall in no way
affect Landlord's obligations to Tenant regarding such funds under this Lease.
Tenant shall not be entitled to any interest on the security deposit.
ARTICLE 9: CONSTRUCTION OF THE PREMISES
9.1 Landlord shall construct Tenant's Leasehold Improvements, as defined in
Exhibit "B", in accordance with plans and specifications prepared by Landlord's
architect. The respective obligations, covenants and agreements of Landlord and
Tenant to construct the Premises including the division of responsibilities and
procedures for design and construction and for payment of costs and expenses are
more specifically set forth in Exhibit "B".
9.2 Prior to the Commencement Date, any work performed by Tenant, or any
fixtures or personal property moved onto the Premises, shall be at Tenant's own
risk and neither Landlord
nor Landlord's agents or contractors shall be responsible to Tenant for damage
or destruction of Tenant's Work or property including damage or destruction
occasioned by Landlord's own negligence. Tenant agrees to indemnify Landlord and
hold Landlord harmless against claims made with respect to damage or destruction
of property of third persons moved on the Premises prior to the Commencement
Date at Tenant's request.
ARTICLE 10: ALTERATIONS
After completion of Landlord's construction obligations under Article 9,
Tenant shall not make, or cause to be made any further additions to, or
alterations of the Premises, or any part thereof, without the prior written
consent of Landlord.
ARTICLE 11: FIXTURES/PERSONAL PROPERTY
All trade fixtures installed by Tenant and movable furniture that are not
permanently affixed to the Premises shall remain the property of Tenant and may
be removed by Tenant not later than the Expiration Date, provided that Tenant is
not then in default hereunder. Tenant shall promptly repair, at its own expense,
any damages occasioned by such removal. All cabinetry, built-in appliances, wall
covering, floor covering, window coverings, electrical and plumbing fixtures and
conduits, lighting and other special fixtures that maybe placed upon, installed
in or attached to the Premises by Tenant shall, at the Expiration Date or
earlier termination of this Lease for any reason, be the property of Landlord
and remain upon and be surrendered with the Premises, without disturbance,
molestation or injury unless designated by Landlord to be removed.
ARTICLE 12: LIENS
Tenant shall keep the Premises and the property on which the Premises are
situated free from any liens arising out of work performed, material furnished
or obligations incurred due to Tenant's actions or the failure of Tenant to
comply with any law excluding, however, security interests in Tenant's personal
property. In the event any such lien does attach against the Premises, and
Tenant does not discharge the lien or post bond (which under law would prevent
foreclosure or execution under the lien) within ten (10) days after demand by
Landlord, Landlord may take any action necessary to discharge the lien. Tenant
shall pay Landlord upon demand for or on account of any cost or expense
(including reasonable attorney's fees) incurred by Landlord by reason of
attachment or discharge of such lien
and shall indemnify Landlord against any liability arising out of attachment of
such lien.
ARTICLE 13: USE OF PREMISES/RULES AND REGULATIONS
13.1 Tenant shall use the Premises solely for general business office for
VistaCare only and shall not use or permit the Premises to be used for any other
purpose or purposes except with the prior written consent of Landlord. The
Premises will not be used for any other use without Landlord's prior written
consent.
13.2 Tenant shall comply with all statutes, ordinances, rules, regulations and
orders of all municipal, state and federal authorities now in force or which may
hereafter be in force pertaining to the use of the Premises, including such laws
governing the storage or disposal of hazardous wastes and protection of the
environment. Tenant shall not use or permit the Premises to be used in whole or
in part for any purpose or use in violation of any of the laws, ordinances,
regulations or rules of any public authority at any time applicable thereto.
13.3 Tenant shall not, to the best of Tenant's knowledge:
(a) commit, or suffer to be committed, any waste upon the Premises;
(b) engage in any activity which will increase the existing premium rate
of insurance on the Premises or cause a cancellation of any insurance policy or
permit to remain in or about the Premises any article that may be prohibited by
standard form fire insurance policies;
(c) use the Premises for or carry on or permit any offensive, noisy, or
dangerous trade, business, manufacture or occupation, or any nuisance or
anything against public policy, or interfere with the business of or disturb the
quiet enjoyment of any other tenant in the Building;
(d) use the exterior of the roof or walls of the Premises or Building
for any purpose.
(e) cause or permit any Hazardous Material to be generated, produced,
brought upon, used, stored, treated or disposed of in or about the Premises or
the Building, whether by Tenant, its invitees, agents, employees, contractors or
sublessees. "Hazardous Material" means any flammable items, explosives,
radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "infectious wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any applicable federal, state or local laws or
regulations including, without limitation, oil, petroleum-based products,
paints, solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds, and other chemical products, asbestos, PCBs and similar compounds,
and including any different products and materials which are subsequently found
to have adverse effects on the environment or the health and safety of persons.
13.4 Tenant shall faithfully observe and comply with the rules and regulations
set forth on Exhibit "C" to this Lease, all parking regulations established in
accordance with Article 5 and all modifications of and additions thereto from
time to time put into effect by Landlord.
13.5 Sections 13.3(d) and 14(b) of the Lease notwithstanding, Landlord agrees
Tenant may install a sign consisting of the lettering "VistaCare, Inc." on
Landlord's monument sign at Tenant's sole cost. Tenant's cost for the sign and
installation may, at Tenant's elections, be paid out of the improvements
allowance. The size, colors, materials and location of Tenant's sign shall be
subject to approval by Landlord and in any event shall comply with Landlord's
sign criteria. Furthermore, Tenant's sign or lettering shall comply with all
ordinances, regulations and orders of the City of Scottsdale, Arizona ("City").
Landlord makes no warranty as to approval of tenant's sign by the City and
denial of a sign permit by the City shall impose no additional obligations upon
Landlord. Tenant's rights under this section shall terminate upon Tenant's
vacation of the Premises for a period of twelve months with or without
termination of the Lease or acceptance of the Premises by Landlord.
ARTICLE 14: RIGHTS RESERVED BY LANDLORD
Landlord shall have the following rights, exercisable without notice and
without liability to Tenant for damage or injury to property, persons or
business and without effecting an eviction, constructive or actual, or
disturbance of Tenant's use or possession of the Premises and without giving
rise to any claim for setoff or abatement of rent:
(a) To change the Building's name.
(b) To install, affix and maintain any and all signs on the exterior and
interior of the Building.
(c) To designate and approve, prior to installation, all types of window
shades, blinds, drapes, awnings, window ventilators and other similar equipment,
and to control all internal lighting that may be visible from the exterior of
the Building.
(d) To control all sources from which Tenant may obtain ice, drinking
water, towels, toilet supplies, shoe shining, catering, food and beverages, or
like or other services on the Premises and in general, to reserve to Landlord
the right to control with cause any business and any services in or to the
Building and its tenants.
(e) To retain at all times, and to use in appropriate instances, keys to
all doors within and into the Premises. No locks shall be changed or added
without the prior written consent of Landlord.
(f) To decorate and to make repairs, alterations, additions, changes or
improvements, whether structural or otherwise, in and about the Building, or any
part thereof, and for such purposes to enter upon the Premises and during the
continuance of any of said work to temporarily close doors, entryways, public
space and corridors in the Building, to interrupt or temporarily suspend
Building services and facilities and to change the arrangement and location of
entrances or passageways, doors and doorways, corridors, elevators, stairs,
toilets, or other Interior Common Facilities, all without abatement of rent or
affecting any of Tenant's obligations hereunder, so long as the Premises are
reasonably accessible.
(g) To have and retain a paramount title to the Premises free and clear
of any act of Tenant purporting to burden or encumber them.
(h) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein.
(i) To approve the weight, size and location of safes and other heavy
equipment and articles in and about the Premises and the Building, and to
require all such items and furniture and similar items to be moved into and out
of the Building and
Premises only at such times and in such manner as Landlord shall direct in
writing. Movements of Tenant's property into or out of the Building and within
the Building are entirely at the risk and responsibility of Tenant and shall be
conducted pursuant to Building rules and regulations.
(j) To prohibit the placing of vending or dispensing machines of any
kind except for the exclusive use of Tenant's employees in or about the Premises
without the prior written permission of Landlord.
(k) To have access for tenants of the Building to any mail chutes
located on the Premises according to rules of the United States Postal Service.
(l) To take all such reasonable measures as Landlord may deem advisable
for the security of the Building and its occupants, including without
limitation, the search of all persons entering or leaving the Building, the
evacuation of the Building for cause, suspected cause, or for drill purposes,
the temporary denial of access to the Building, and the restriction of access to
the Building at times other than normal business hours.
Reservation of the rights set forth in this Article shall impose no obligation
or duty upon Landlord to exercise said rights.
ARTICLE 15: QUIET ENJOYMENT
Landlord covenants that upon Tenant's paying the rentals and keeping and
performing all of the terms, covenants and conditions of this Lease, Landlord
will do nothing that will prevent Tenant from peaceably and quietly enjoying,
holding and occupying the Premises during the Lease Term. This covenant shall
not extend to any disturbance, act or condition brought about by any other
tenant in the Building and shall be subject to the rights of Landlord set forth
in this Lease. Tenant agrees this Lease Agreement shall be subordinate to any
Easements, Covenants and Restrictions or any amendments thereto hereafter
imposed upon the property upon which the Building is located. This subordination
agreement shall be self-operative, however, Tenant agrees to execute and deliver
such further instruments necessary to subordinate this Lease to the lien of
Easements, Covenants and Restrictions or amendments hereafter imposed by
Landlord.
ARTICLE 16: MAINTENANCE AND SANITATION
16.1 Subject to Articles 21 and 22 and Tenant's obligations under Sections 16.2
and 16.3, Landlord covenants to maintain the Building in good and tenantable
condition and repair and to make such future improvements to the exterior and
interior required by government regulations. Tenant hereby waives all rights to
make repairs at the expense of Landlord. Landlord's maintenance and repair costs
under this Section 16.1 will be deemed a Direct Cost. The foregoing
notwithstanding, Landlord shall not be liable to Tenant for failure to make
repairs as required herein unless Tenant has previously notified Landlord, in
writing, of the need for such repairs and Landlord has failed to commence said
repairs within fifteen (15) days following receipt of Tenant's written
notification. Landlord shall have no obligation to alter, remodel, improve,
renovate, decorate or paint the Premises except as set forth in Exhibit "B".
16.2 If Landlord would be required to perform any maintenance or make any
repairs under Section 16.1 because of: (a) modifications to the roof, walls,
foundation and floor of the Building from that set forth in Landlord's plans and
specifications which are required by Tenant's design for improvements,
alterations and additions; (b) installation of Tenant's improvements, fixtures
or equipment; (c) Tenant's or Tenant's employees' or customers' negligence or
wrongful act; or, (d) Tenant's failure to perform any agreements contained in
this Lease, Landlord may perform the maintenance or repairs and Tenant shall pay
Landlord the cost thereof plus a reasonable amount for Landlord's overhead upon
receipt of a statement from Landlord. Landlord's costs under this Section shall
not be a Direct Cost for purposes of Article 4.
16.3 Tenant covenants and agrees as it pertains to Tenant's premises to:
(a) pay Landlord, Landlord's cost of maintenance and repair, including
additional janitorial costs, of any Non-Building Standard Improvements and
Non-Building Standard materials and finishes, as defined in Exhibit "B", and
special leasehold improvements in excess of or in addition to Building Standard,
as defined in Exhibit "B".
(b) pay Landlord, Landlord's cost of repair or replacement of all
ceiling and wall finishes (including painting) and floor or window coverings
which require repair or replacement during the Lease Term.
Landlord's costs under this Section will not be deemed a Direct Cost.
ARTICLE 17: UTILITIES AND JANITORIAL SERVICES
17.1 Landlord agrees to furnish to the Premises during normal business hours
Monday through Friday, eleven (11) hour day basis and Saturday 8:00 a.m. to
12:00 p.m., and subject to the rules and regulations of the Building,
electricity suitable for the intended use of the Premises, heat and air
conditioning required in Landlord's judgment for normal use and occupation of
the Premises and janitorial services as outlined on Schedule "D" attached for
the Premises and Common Areas. Landlord further agrees to furnish hot and cold
water to those areas provided for general use of all tenants in the Building.
17.2 As used in this Article 17, "Excess Consumption" means the consumption of
electrical current (including current in excess of 120 volts), water, heat or
cooling in excess of that which would be provided to the Premises were the
Premises to be (i) built out with Building Standard Improvements only; (ii) used
as general office space during normal business hours (five (5) day week, eleven
(11) hour day); and (iii) equipped only with typewriters, desk calculators,
personal computers dictation equipment and copying machines with power
requirements of 30 amperes or less. Tenant will not, without the written consent
of Landlord, use any apparatus or device in the Premises, including but without
limitation thereto, duplicating machines, electronic data processing machines
and machines using electrical current in excess of 110 volts, which will in any
way result in Excess Consumption nor connect, except through existing electrical
outlets, water pipes, ducts or airpipes (if any there be) in the Premises, any
apparatus, or device, for the purposes of using electric current, water,
heating, cooling or air. If Tenant shall require water, heating, cooling, air or
electric current which will result in Excess Consumption, Tenant shall first
procure the consent of Landlord to the use thereof, and Landlord may cause
separate meters to be installed to measure Excess Consumption or establish
another basis for determining the amount of Excess Consumption. Tenant covenants
and agrees to pay for the cost of the Excess Consumption based on Landlord's
cost, plus any additional expense incurred in installing meters or keeping
account of the Excess Consumption, at the same time as payment of the Minimum
Monthly Rent is made. Tenant further agrees to pay Landlord the cost, if any, to
upgrade existing mechanical, electrical, plumbing and air facilities, if
required to provide Excess Consumption, or if required, to increase the
janitorial service, upon receipt of a statement therefor. Excess
Consumption costs will not be a Direct Cost for purposes of Article 4.
17.3 Landlord, except to the extent of its gross negligence or intentional act,
shall not be liable in damages or otherwise in the event of any failure or
interruption of any utility or service supplied to the Premises or Building by a
regulated utility or municipality and no such failure shall entitle Tenant to
terminate this Lease.
ARTICLE 18: ENTRY AND INSPECTION
18.1 Landlord and Landlord's agents shall have the right to enter into and upon
the Premises at all reasonable times for the purpose of inspecting the same;
performing Landlord's maintenance and repair obligations under this Lease;
maintaining or making repairs, alterations, or additions to any other portion of
the Building, including the erection and maintenance of such scaffolding,
canopy, fences and props as may be required; posting notices of non-liability
for alterations, additions or repairs, or of the availability of the Premises
for lease or sale; or exhibiting the Premises to potential tenants and
purchasers. Tenant shall permit Landlord, at any time within one hundred fifty
(150) days prior to the expiration of the Lease Term, to place upon the Premises
any usual or ordinary "For Lease" signs.
18.2 If Tenant shall not be personally present to open and permit an entry into
said Premises, at any time, when for any emergency reason an entry therein shall
be necessary or permissible, Landlord or Landlord's agents may use a master key
to enter, without rendering Landlord or such agents liable therefor, and without
in any manner affecting the obligations and covenants of this Lease. Landlord
shall be permitted to take any action under this Article without any abatement
of rent and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Premises thereby occasioned, nor shall such action by Landlord
be deemed an actual or constructive eviction.
ARTICLE 19: ACCEPTANCE OF THE PREMISES, LIABILITY
INSURANCE AND INDEMNIFICATION OF LANDLORD
19.1 All merchandise, furniture, floor and wall covering and all personal
property and fixtures belonging to Tenant and all persons claiming by or through
Tenant which may be on the Premises shall be at Tenant's sole risk. Tenant
hereby waives all claims against Landlord for loss, injury or damage to all
persons and property on the Premises or the Common Areas from theft, fire,
water, gas or otherwise, including sprinkler leakage or bursting pipes except
for gross negligence of Landlord. Tenant accepts the Premises "as is" and
Landlord makes no warranty as to the condition of the Premises.
19.2 Tenant hereby agrees to indemnify, defend and hold Landlord and any
Mortgagee of Landlord harmless against all Claims arising from: Tenant's
possession, use, maintenance and repair of the Premises; any act or omission of
Tenant or Tenant's invitees, contractors, subtenants, agents and employees
including acts occurring on the Common Areas, irrespective of the insurance
carried by Landlord under Section 19.5; any default of Tenant under this Lease;
or other acts or omissions which result in personal injury, loss of life or
property damage sustained in and about the Premises.
19.3 Upon taking possession of the Premises and thereafter during the Lease
Term, the Tenant shall, at Tenant's sole cost and expense, maintain
comprehensive liability insurance, including, without limitation,
premises/operations liability, products-completed operations, contractual
liability and automobile (including non-owned and hired automobile) coverage,
against Claims for personal injury, death, or property damage occurring in,
upon, or about the Premises. The limits of liability of such insurance shall not
be less than One Million Dollars ($1,000,000) single limit and Three Million
Dollars ($3,000,000) single limit aggregate, or in such higher amounts as
Landlord may require. All such policies of insurance shall name Landlord;
Landlord's Mortgagee; Landlord's partners, officers, agents, employees and
representatives; and such other parties as Landlord may require as additional
insureds but only with respect to legal liability or Claims caused by, arising
out of, or resulting directly or indirectly from the occupancy of the Premises
and operations of the named insureds. Tenant's liability insurance shall be
primary with respect to any liability or Claim arising out of occupancy of the
Premises by Tenant or Tenant's business, and any insurance carried by Landlord
under Section 19.5 shall be noncontributory.
19.4 Tenant's insurance shall be maintained with an insurance company qualified
to do business in the state in which the Premises are located and having a
current A.M. Best manual rating of at least A-XII or better. Tenant's insurance
policies will contain endorsements stating that the insurance will not be
canceled nor will the carrier fail to renew or materially change the policy
without first giving Landlord thirty (30) days written notice. Before entry into
the Premises and before
expiration of any policy, Tenant shall provide Landlord with evidence that
Tenant maintains ▇▇▇▇▇▇▇'▇ compensation insurance and that the other
requirements of this article have been met and that the applicable premiums or
renewal premiums have been paid.
19.5 During the entire Lease Term, Landlord agrees to maintain public liability
insurance against Claims for personal injury, death, or property damage
occurring on the Common Areas. The limits of liability of such insurance shall
be in such amounts as Landlord shall determine, but not less than Two Million
Dollars ($2,000,000.00). The cost of the public liability and property damage
insurance on the Common Areas shall be a Direct Cost under Article 4.
19.6 Landlord shall not be responsible or liable to Tenant for any Claims for
loss or damage caused by the acts or omissions of any persons occupying any
space adjacent to or adjoining the Premises.
19.7 As used in this Article, "Claims" means any claims (including claims based
upon imputed negligence), suits, proceedings, actions, causes of action,
responsibility, liability, demands, judgments and executions.
ARTICLE 20: CASUALTY INSURANCE
20.1 Tenant shall maintain fire and extended coverage insurance (full
replacement value, $1,000.00 maximum deductible) with a business interruption
endorsement, on merchandise, personal property, equipment and trade fixtures
owned or used by Tenant and other property which Tenant may remove on the
Expiration Date. Tenant shall not maintain insurance on any structural portion
of the Premises, roof, demising or interior walls or floors. In event of
violation of this obligation, Tenant agrees all proceeds of Tenant's insurance
policies, except proceeds related to Tenant's personal property or improvements
supplied by Tenant, will be held in trust for the benefit of Landlord.
20.2 Landlord shall maintain fire and full extended coverage insurance ("all
risk" at the full replacement value) including vandalism and malicious mischief,
sprinkler leakage damage and flood and boiler explosion endorsements throughout
the Lease Term on the Building (excluding Tenant's trade fixtures and personal
property) and may name the holder of a first mortgage or deed of trust and any
ground lessor as additional insured. Landlord may elect to self-insure any
component comprising the Common Areas. At Landlord's option, the policy of
insurance may
include a business interruption insurance endorsement for loss of rents. The
cost of the insurance obtained under this Section shall be a Direct Cost under
Article 4 of this Lease. If, however, during the Lease Term premiums for fire
and extended coverage insurance are or may be calculated by rating the premises
of individual tenants within the Building and it is determined that the rate for
the Premises, due to Tenant's special fixtures, Non-Building Standard
Improvements, business or otherwise, is in excess of the rate attributable to
the premises having the lowest rate, Tenant agrees to pay Landlord the
difference between the premium attributable to the Premises and that premium
which would be attributable to the Premises were the Premises rated at the
lowest rate. If the Building is rated as a whole and it is determined that the
premium, due to Tenant's special fixtures, Non-Building Standard Improvements or
business, is in excess of the premium which would have been charged, but for
Tenant's fixtures, improvements or business, Tenant agrees to pay Landlord such
excess. Tenant shall have no rights in said policy procured by Landlord under
this Section and shall not be entitled to be named as insured thereunder.
20.3 Tenant hereby waives any right of recovery from Landlord, and Landlord's
agents, officers and employees, and Landlord hereby waives any right of recovery
from Tenant and Tenant's agents, officers or employees, for any loss or damage
(including consequential loss) resulting from any of the perils insured against
by either's fire and extended coverage insurance policy. Neither Landlord nor
Tenant shall be liable to the other or to any insurance company insuring the
other party (by way of subrogation or otherwise) for any loss or damage to any
building, structure or other tangible property; or any resulting loss of income,
or losses under worker's compensation laws and benefits, even though such loss
or damage might have been occasioned by the negligence of such party, its agents
or employees, if any such loss or damage is covered by insurance benefiting the
party suffering such loss or damage or was required to be covered by insurance
pursuant to this Lease.
ARTICLE 21: DAMAGE AND DESTRUCTION OF PREMISES
21.1 In the event of (a) fire or other casualty damage to the Premises or the
Building during the Lease Term which requires repairs to either the Premises or
the Building, or (b) the Premises or Building being declared unsafe or unfit for
occupancy by any authorized public authority for any reason other than Tenant's
act, use or occupation, which declaration requires repairs to either the
Premises or the Building, Landlord shall commence to make said repairs within
forty-five
(45) days of written notice by Tenant of the necessity therefor. The Minimum
Monthly Rent shall be proportionately reduced while such repairs are being made,
based upon the extent to which the making of such repairs shall interfere with
the business carried on by Tenant in the Premises.
21.2 Landlord's obligation to repair the Premises shall, however, be subject to
the following. If:
(a) during the last year of the Lease Term the Premises or the Building
is damaged as a result of fire or any other insured casualty: or,
(b) the Premises is damaged to the extent of twenty-five percent (25%)
or more of replacement value; or,
(c) the Premises or the Building are damaged or destroyed as a result of
a casualty not insured against; or,
(d) the Building shall be damaged or destroyed by fire or other cause to
the extent of twenty percent or more of the Building's replacement value,
Landlord shall have the right, to be exercised by notice in writing to Tenant
given within ninety (90) days from said occurrence, to cancel and terminate this
Lease. Upon notice to Tenant, the Lease Term shall expire by lapse of time upon
the third day after such notice is given, and Tenant shall vacate the Premises
and surrender the same to Landlord. If Landlord elects to terminate this Lease
under this Section, all rents shall be prorated as of the date of damage or
destruction and Landlord shall be released from liability or obligation to
Tenant. If Landlord, however, elects to make said repairs, and provided Landlord
uses due diligence in making said repairs, this Lease shall continue in full
force and effect and the Minimum Monthly Rent shall be proportionately reduced
as provided in Section 21.1.
21.3 With respect to any destruction (including any destruction necessary in
order to make repairs) which Landlord is obligated to repair or may elect to
repair under the terms of this Article, Tenant waives any statutory or other
right Tenant may have to terminate this Lease as a result of such destruction
and no such destruction shall annul or void this Lease.
21.4 The provisions of this Article shall supersede the obligations of Landlord
to make repairs under Section 16.1 of the Lease. Landlord shall not be obligated
to make repairs to
the extent that the cost thereof exceeds the insurance proceeds or to the extent
such repairs would exceed Building Standard as defined in Exhibit "B".
21.5 Unless the Lease is terminated under this Article, upon substantial
completion of Landlord's restoration obligations, the Minimum Monthly Rent shall
be restored to the amounts which would have been in effect but for the damage or
destruction.
ARTICLE 22: EMINENT DOMAIN
22.1 As used in this Article, "Taking" means a taking of or damage to the
Premises or Building or any part thereof by exercise of the power of eminent
domain, condemnation or sale under the threat of or in lieu of eminent domain or
condemnation.
22.2 If the whole of the Building or the whole of the Premises shall be
acquired by a Taking, or if the whole of the Automobile Parking Area is acquired
by a Taking then this Lease shall terminate as of the date of taking of
possession by the Taking authority.
22.3 If more than ten percent (10%) of the value of the Building is acquired by
a Taking, whether or not any portion of the Premises is so taken, Landlord shall
have the right to terminate this Lease as of the date of such Taking by giving
Tenant ninety (90) days written notice of Landlord's intent to terminate this
Lease.
22.4 If more than twenty-five percent (25%) of the Premises is acquired in a
Taking, either Landlord or Tenant may terminate this Lease upon notice to the
other within ninety (90) days prior to taking of possession. If less than
twenty-five percent (25%) of the Premises is acquired in a Taking and the award
received is sufficient to restore the Premises, subject to Section 22.3,
Landlord shall promptly restore the Premises to a condition comparable to its
condition at the time of such condemnation less the portion acquired in the
Taking, this Lease shall continue in full force and effect with respect to that
part not acquired, and the Minimum Monthly Rent shall be reduced in the
proportion that the rental value of the Premises after the taking bears to the
rental value before the Taking.
22.5 Notwithstanding Section 22.2, if any part of the Automobile Parking Area
shall be acquired by a Taking, Landlord shall have the right to provide
substitute parking facilities acceptable to Tenant and this Lease shall continue
in full force and effect
unless a governmental entity forces the closing of the Building or unless the
substitute parking is unacceptable to Tenant. If a closing is required, this
Lease shall terminate on the date of closing.
22.6 In the event of a Taking as herein before provided, whether whole or
partial, the Tenant shall not be entitled to any part of the award, as damages
or otherwise for diminution in value of the leasehold, reversion or fee, and
Landlord is to receive the full amount of such award. Tenant hereby expressly
waives any right or claim to any part thereof. Tenant shall have no claim
against Landlord for the value of the unexpired Lease Term if the Lease is
terminated under this Article. Although all damages in the event of any
condemnation are to belong to the Landlord, Tenant shall have the right to claim
and recover from the condemning authority, but not from Landlord, such
compensation as may be separately awarded or recoverable by Tenant in Tenant's
own right on account of any damage to Tenant's business by reason of the
condemnation and for or on account of any cost or loss to which Tenant might be
put in removing Tenant's merchandise, furniture, trade fixtures and equipment.
22.7 If this Lease is terminated partially or in total under this Article, all
rents shall be prorated as of the date of Taking including refunds for amounts
paid in advance by Tenant.
ARTICLE 23: ASSIGNMENT AND SUBLETTING
23.1 Tenant shall not transfer or assign this Lease, except as provided below,
or any interest therein, and shall not sublet the Premises or any part thereof,
or any right or privilege appurtenant thereto, including spaces in the
Automobile Parking Area, without Landlord's consent which consent will not be
unreasonably withheld. Tenant shall have the right to assign and/or sublease all
or any portion of the premises without the Landlord's consent for affiliates,
subsidiaries or any entity owned and controlled by the parent corporation.
Consent by Landlord to one assignment, subletting, occupation or use by another
person shall not be deemed to be a consent to any subsequent assignment,
subletting, occupation or use by another person. It shall not be unreasonable
for Landlord to withhold consent if the proposed assignment is for a bank and
trust company or medical or dental use. Neither this Lease nor any interest
therein shall be assignable, as to the interest of Tenant, by operation of law,
without prior written consent of Landlord. Any attempted transfer, assignment or
subletting without the prior written consent of Landlord shall be void and shall
constitute a default under this Lease. Tenant shall retain
all profits from such subleases, provided Tenant remains liable for lease
payments required under the Lease Agreement.
If Tenant is a corporation, an unincorporated association or a partnership,
unless listed on a national stock exchange, the transfer, assignment or
hypothecation of any stock or interest in such corporation, association or
partnership in the aggregate in excess of fifty percent (50%) shall be deemed an
assignment of this Lease.
23.2 If Tenant, with Landlord's prior written approval, assigns this Lease or
sublets the Premises, and the assignee or sublessee maintains the liability
insurance coverage required by Section 19.3, Tenant shall be relieved of such
obligation but no other obligation under this Lease. Tenant agrees to reimburse
Landlord's reasonable out of pocket legal fees incurred in connection with the
processing of any documents necessary to give consent. In the event of default
by any assignee of Tenant or any successor of Tenant in the performance of any
of the terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting or pursuing any remedies against said assignee or
successor.
23.3 The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to Landlord of any or all such
subleases or subtenancies.
ARTICLE 24: SALE OF PREMISES BY LANDLORD
In the event of any sale of the Building or the property upon which the
Building is located or assignment of this Lease by Landlord and subject to
Purchaser's of assignees assuming all of Landlord's obligations under the Lease,
Landlord shall be and is hereby entirely freed and relieved of all liability
under any and all of Landlord's covenants and obligations contained in or
derived from this Lease or arising out of any act, occurrence or omission
occurring after such sale or assignment; and the assignee or purchaser, at such
sale or any subsequent sale of the Premises or assignment of this Lease, shall
be deemed, without any further agreement between the parties and only such
assignee or purchaser, to have assumed and agreed to carry out any and all of
the covenants and obligations of Landlord under this Lease.
ARTICLE 25: SUBORDINATION/ATTORNMENT/MODIFICATION/ASSIGNMENT
Tenant's interest under this Lease shall be subordinate to all terms of
the lien of any ground lease, first deed of trust, first mortgage or security
agreement (hereinafter collectively referred to as "Mortgage") now or hereafter
placed on the Landlord's interest in the Premises, the Building or on the land
upon which the Building is located and any amendments thereto. Landlord shall
deliver to Tenant nondisburbance agreements in the form attached hereto as
Exhibit "D(degree). Tenant agrees to reasonable amendments to this Lease as may
be requested by a lender who proposes to fund permanent financing provided the
amendment does not increase Tenant's monetary obligations under this Lease.
Tenant further consents to an assignment of Landlord's interest in this Lease to
Landlord's lender as required under such financing. If the Premises or the
Building is sold pursuant to default on the Mortgage, or pursuant to a transfer
in lieu of foreclosure, Tenant shall, at the Mortgage holder's or purchaser's
election, not disaffirm this Lease but shall attorn to the Mortgage holder or
purchaser, and if so requested, enter into a new lease for the remainder of the
Lease Term. This Article shall be self-operative, however, Tenant agrees to
execute and deliver, within ten (10) days after request by Landlord, such
further instruments necessary to subordinate this Lease to a lien of any
Mortgage, to acknowledge the consent to assignment and to affirm the attornment
provisions set forth herein.
ARTICLE 26: RIGHT TO CURE
In the event of breach, default, or noncompliance hereunder by Landlord,
Tenant shall, before exercising any right or remedy available to it, give
Landlord written notice of the claimed breach, default, or noncompliance. If
prior to its giving such notice Tenant has been notified in writing (by way of
Notice of Assignment of Rents and Leases, or otherwise) of the address of a
lender which has furnished financing secured by a Mortgage, as defined in
Article 25, on the Premises or the Building, concurrently with giving the
aforesaid notice to Landlord, Tenant shall also give notice by certified mail to
such lender. For the thirty (30) days following such notice (or such longer
period of time as may be reasonably required to cure a matter which, due to its
nature, cannot reasonably be remedied within thirty (30) days), Landlord shall
have the right to cure the breach, default, or noncompliance involved. If
Landlord has failed to cure a default within said period, any such lender shall
have an additional thirty (30) days within which to cure the same or, if such
default cannot be cured within that period,
such additional time as may be necessary if within such thirty (30) day Period
said lender has commenced and is diligently pursuing the actions or remedies
necessary to cure the breach, default, or noncompliance involved (including, but
not limited to, commencement and prosecution of proceedings to foreclose or
otherwise exercise its rights under its mortgage or other security instrument,
if necessary to effect such cure), in which event this Lease shall not be
terminated by Tenant so long as such actions or remedies are being diligently
pursued by said lender.
ARTICLE 27: ESTOPPEL CERTIFICATES
Tenant and Landlord each agrees at any time and from time to time upon
request by the other party, to execute, acknowledge and deliver to the
requesting party a statement within five (5) calendar days of demand in writing
certifying in a form reasonably similar to Exhibit "E" attached hereto (a) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
such modifications), (b) the dates to which the Minimum Monthly Rent and other
charges have been paid in advance, if any, (c) Tenant's acceptance and
possession of the Premises, (d) the commencement of the Lease Term; (e) the rent
provided under the Lease, and (f) that the requesting party is not in default
under this Lease (or if the responding party claims such default, the nature
thereof), (g) that the responding party Tenant claims no offsets against the
rent, and (h) such other information as shall be reasonably necessary to
establish the status of the tenancy created by this Lease. It is intended that
any such statement delivered pursuant to this Article may be relied upon by any
prospective purchaser, Mortgage holder or assignee of any mortgage holder of the
Premises or the Building.
ARTICLE 28: DEFAULT AND CONDITIONAL LIMITATIONS
28.1 The following shall constitute a default under this Lease:
(a) if Tenant fails to pay any installment of the Minimum Monthly Rent
or additional rent herein provided or any other sum required by this Lease to be
paid to Landlord, or any part thereof, within five (5) business days following
Landlord's written notice that the rent or sum is due and unpaid; or
(b) if Tenant fails to perform any other covenants or conditions on its
part agreed to be performed and such failure to perform other covenants shall
continue for thirty (30) days
after notice of such failure from Landlord to Tenant; or except in the event of
a default that requires more than thirty (30) days to cure as long as Tenant has
initiated corrective action and is diligently pursuing cure.
(c) if a petition or proceeding under the federal Bankruptcy Act or any
amendment thereto is filed or commenced by or against Tenant or any guarantor of
this Lease, and if against Tenant, said proceedings shall not be dismissed
within sixty (60) days following commencement thereof; or
(d) if Tenant or any guarantor of this Lease is adjudged insolvent,
makes an assignment for the benefit of its creditors or enters into an
arrangement with its creditors; or
(e) if a writ of attachment or execution is levied on the leasehold
estate hereby created and is not released or satisfied within sixty (60) days
thereafter; or
(f) if a receiver is appointed in any proceeding or action to which
Tenant is a party with authority to take possession or control of the Premises
or the business conducted thereon by Tenant or the property of any guarantor of
this Lease and such receiver is not discharged within a period of thirty (30)
days after his appointment; or
(g) Tenant abandons or vacates the Premises. Abandonment shall be
presumed if the Premises is not occupied by at least two (2) employees of Tenant
four (4) days a week, six (6) hours a day.
28.2 Upon a default of Tenant as defined in Section 28.1 Landlord, or
Landlord's agents and employees shall have the right and option to:
(a) prosecute and maintain an action or actions, as often as Landlord
deems advisable, for collection of rent, other charges and damages as the same
accrue, without entering into possession and without terminating this Lease. No
judgment obtained shall constitute a merger or otherwise bar prosecution of
subsequent actions for rent and other charges and damages as they accrue. Tenant
agrees to pay Landlord all costs of collection of past due rent, including court
costs and attorney's fees.
(b) immediately or at any time thereafter reenter and take possession of
the Premises and remove Tenant, Tenant's agents, any subtenants, licensees,
concessionaires, or invitees and any
or all of their property from the Premises. Reentry and removal may be effected
by summary proceedings or any other action or proceedings at law, by force or
otherwise. Landlord shall not be liable in any way in connection with any action
taken under this paragraph. No action taken, commenced or prosecuted by
Landlord, no execution on any judgment and no act or forbearance on the part of
Landlord in taking or accepting possession of the Premises shall be construed as
an election to terminate this Lease unless Landlord expressly exercises this
option under Section 28.2(c).
Upon taking possession of the Premises Landlord may from time to time, without
termination of this Lease relet the Premises or any part thereof as agent for
Tenant for such rental terms and conditions reasonably consistent with like
space in the market (which may be for a term extending beyond the Lease Term),
with the right to make alterations and repairs to said Premises required for
reletting. The rents received by Landlord from such reletting shall be applied
first to the payment of any costs of reletting and second to the payment of rent
due and unpaid hereunder. The residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and payable
hereunder. If the rents received from such reletting during any month are
insufficient to reimburse Landlord for any costs of reletting or rent due and
payable, Tenant shall pay any deficiency to Landlord. Such deficiency shall be
calculated and paid monthly. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter, elect to terminate this Lease
for such previous breach.
(c) elect to terminate this Lease by written notice to Tenant. In the
event of such termination, Tenant agrees to immediately surrender possession of
the Premises. Upon such termination, Tenant agrees to immediately surrender
possession of the Premises. If Tenant fails or refuses to surrender the
Premises, Landlord may take possession in accordance with Paragraph (b) above.
If Landlord terminates this Lease, Tenant shall have no further interest in this
Lease or in the Premises, however, Tenant shall remain liable to Landlord for
all damages Landlord may sustain by reason of Tenant's default, including
without limitation (1) the cost of reletting the Premises, and (2) either (i) an
amount equal to the rent which, but for termination of this Lease, would have
been payable by Tenant during the remainder of the Lease Term, less any proceeds
from reletting the Premises; or (ii) an amount equal to the present worth
(immediately prior to termination) of the rent which, but for termination of
this Lease, would have been payable during
the remainder of the Lease Term, less the then reasonable rental value of the
Premises, which amount shall be payable to Landlord upon demand. Rent which
would have been payable for the remainder of the Lease Term, shall be calculated
on the basis of the Minimum Monthly Rent and additional rent payable by Tenant
at the time of default plus any future increases which are determinable at the
time of calculation.
(d) obtain the appointment of a receiver in any court of competent
jurisdiction, and the receiver may take possession of any personal property
belonging to the Tenant and used in the conduct of the business of the Tenant
being carried on in the Premises. Tenant agrees that the entry upon the Premises
or possession of said personal property by said receiver shall not constitute an
eviction of the Tenant from the Premises or any portion thereof, and the Tenant
hereby agrees to hold the Landlord safe and harmless from any claim of any
character by any person arising out of or in any way connected with the entry by
said receiver in taking possession of the Premises and/or said personal
property.
28.3 As used in this Article "costs of reletting" means any reasonable costs
necessary to collect past due rent, take possession of the Premises and lease
the Premises to another tenant, including, but not limited to:
(a) legal costs and expenses of collecting past due rent and recovery of
the Premises including court costs and attorney's fees,
(b) brokerage costs for leasing,
(c) costs and expenses of alterations, repairs and improvements,
(d) indebtedness other than minimum rent due from Tenant to Landlord
under this Lease,
(e) costs of protecting the Premises, and
(f) removal and storage of Tenant's property.
28.4 No act or conduct of the Landlord, whether consisting of reentry, taking
possession or reletting the Premises or obtaining appointment of a receiver or
accepting the keys to the Premises, or otherwise, prior to the expiration of the
Lease Term shall be deemed to be or constitute an acceptance of the surrender of
the Premises by the Landlord or an election to
terminate this Lease unless Landlord exercises its election under Section
28.2(c) of this Lease. Such acceptance or election by Landlord shall only be
effected, and must be evidenced, by written acknowledgment of acceptance of
surrender or notice of election to terminate signed by Landlord.
28.5 Subject to Tenant's rights to cure outlined in Article 28.1, Tenant agrees
that in the event it is due to render performance in accordance with any term or
condition of this Lease and it fails to render such performance within ten (10)
days after written notification thereof is given in accordance-with the notice
provision hereof or immediately if required for protection of the Premises,
Landlord shall have the right, but not the obligation, to render such
performance and to charge all costs and expenses incurred in connection
therewith to Tenant. All amounts so charged shall be considered additional rent
and shall be due and payable immediately to Landlord upon presentment of a
statement to Tenant indicating the amount and nature of such cost or expense.
28.6 No remedy herein conferred upon Landlord shall be considered exclusive of
any other remedy, but the same shall be cumulative and shall be in addition to
every other remedy given hereunder, or now or hereafter existing at law or in
equity or by statute. No delay or omission of Landlord to exercise any right or
power arising from any default shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein.
28.7 Any requirement that Landlord provide a consent or approval under this
Lease shall be subject to the condition that at the time the approval or consent
is requested that Tenant shall not be in default under this Lease, and no
circumstances shall exist, which with the giving of notice and the passage of
any grace period would constitute a default by Tenant under this Lease.
ARTICLE 29: TENANTS RECOURSE
Anything in this Lease to the contrary notwithstanding, Tenant agrees that
it shall look solely to the estate and property of Landlord in the land and
buildings comprising the Building, subject to prior rights of any mortgagee of
the Building or any part thereof, for the collection of any judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default or breach by Landlord under this Lease, and no other procedures for the
satisfaction of Tenant's remedies. Neither Landlord, nor any partner thereof or
therein nor any of their respective heirs, successors or assigns, shall have any
personal liability of any kind or nature, directly or indirectly under or in
connection with this Lease.
ARTICLE 30: FORCE MAJEURE
Except as otherwise provided in Exhibit "B", if either party hereto shall
be delayed or prevented from the performance of any act required hereunder by
reason of acts of God, strikes, lockouts, labor troubles, civil disorder,
in-ability to procure materials, restrictive governmental laws or regulations or
other cause without fault and beyond the control of the party obligated,
performance of such act shall be excused for the period of delay and then for a
period of time reasonably necessary to perform the act; provided, however,
nothing in this Article shall excuse Tenant from the prompt payment of any
rental or other charge required of Tenant hereunder.
ARTICLE 31: SURRENDER OF PREMISES
At the Expiration Date, Tenant shall surrender the Premises in good order
and condition, reasonable wear and tear and casualty damage excepted, and shall
deliver all keys to Landlord. Before surrendering the Premises, Tenant shall
remove all of its personal property and trade fixtures and such alterations or
additions to the Premises made by Tenant as may be specified for removal by
Landlord, and shall repair any damage caused by such property or the removal
thereof. If Tenant fails to remove its personal property and fixtures upon the
Expiration Date, the same shall, at Landlord's election, be deemed abandoned and
shall become the property of Landlord. Tenant shall further surrender to
Landlord any Automobile Parking Area cards issued under Article 5.
ARTICLE 32: HOLDING OVER
If Tenant shall hold over after the Expiration Date, or any extension
thereof, Tenant shall become a tenant on a month-to-month basis at a minimum
rental equal to the monthly rental paid during the last year of the Lease Term,
plus any increases per Article 4, for the first ninety (90) days of the hold
over and thereafter at a minimum rental of one and one-half times the latest
amount determined under Article 3 plus any increases under Article 4, which
rental shall be payable in advance on the first day of such holdover period and
on the first day of each month thereafter, upon all the terms, covenants and
conditions herein specified.
ARTICLE 33: GENERAL PROVISIONS
33.1 This Lease shall be construed in accordance with the laws of the State of
Arizona. Venue for resolution of any dispute arising under this Lease shall be
Maricopa County, Arizona.
33.2 If Tenant is composed of more than one person or entity, then the
obligations of such entities or parties shall be joint and several.
33.3 If any term, covenant, condition or provision of this Lease is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
33.4 The various headings and numbers herein and the grouping of the provisions
of this Lease into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
33.5 Time is of the essence of this Lease.
33.6 In the event either party initiates legal proceedings to enforce any right
or obligation under this Lease or to obtain relief for the breach of any
covenant hereof, the party ultimately prevailing in such proceedings shall be
entitled to recover from the defaulting party the costs of such proceedings,
including reasonable attorneys' fees as determined by the court and not by a
jury. If either party is involuntarily made a party defendant to any litigation
concerning this Lease or the Premises by reason of any act or omission of the
other party, that party shall indemnify and hold the defendant party harmless
from all liability by reason thereof, including Landlord's reasonable costs and
attorneys' fees.
33.7 This Lease, and any Exhibit or Addendum attached hereto, set forth all the
covenants, promises, agreements, conditions or undertakings, either oral or
written, between the Landlord and Tenant. No subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by both parties. If a provision of the Addendum
and this Lease are in conflict, the provision of the Addendum shall govern.
33.8 Subject to Article 23, the covenants herein contained shall apply to and
bind the heirs, successors, executors, administrators and assigns of all the
parties hereto.
33.9 No covenant, term or condition of this Lease shall be waived except by
written waiver of Landlord, and the forbearance or indulgence by Landlord in any
regard whatsoever shall not constitute a waiver of the covenant, term or
condition to be performed by Tenant to which the same shall apply, and until
complete performance by Tenant of such covenant, term or condition, Landlord
shall be entitled to invoke any remedy available under this Lease or by law
despite such forbearance or indulgence. The waiver by Landlord of any breach or
term, covenant or condition hereof shall apply to and be limited to the specific
instance involved and shall not be deemed to apply to any other instance or to
any subsequent breach of the same or any other term, covenant or condition
hereof. Acceptance of rent by Landlord during a period in which Tenant is in
default in any respect other then payment of rent shall not be deemed a waiver
of the other default. Any payment made in arrears shall be credited to the
oldest amount outstanding and no contrary application will waive this right.
33.10 The use of a singular term in this Lease shall include the plural and the
use of the masculine, feminine or neuter genders shall include all others.
ARTICLE 34: NOTICES
Wherever in this Lease it is required or permitted that notice or demand
be given or served by either party to or on the other, such notice or demand
shall be given or served and shall not be deemed to have been duly given or
served unless in writing and delivered personally or forwarded by certified
mail, return receipt requested, if to Landlord, at the address set forth on page
one of this Lease; and if to Tenant, (a) until the Commencement Date, at the
address on page one; and (b) following the Commencement Date, at the Premises.
Either party may change such address by written notice by certified mail to the
other. Service of any notice or demand shall be deemed completed forty-eight
(48) hours after deposit thereof in the United States Postal Service or, if
delivered in person, upon receipt thereof.
ARTICLE 35: BROKER'S COMMISSIONS
▇▇▇ & Associates has an exclusive Listing Agreement with Landlord for the
leasing of the property. Tenant and Landlord each represent and warrant there
are no other claims for brokerage commissions or fees in connection with this
Lease. Tenant and Landlord each agree to indemnify the other against
and hold it harmless from all liabilities arising from such claims; including
any attorney's fees connected therewith.
IN WITNESS WHEREOF, the parties have duly executed this Lease as of the
day and year first above written.
TENANT: VistaCare, Inc.
By: /s/ ▇. ▇. ▇▇▇▇▇
-------------------------------
Its: CFO
LANDLORD ▇▇▇▇▇▇▇▇▇ Place, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Its: Member
LANDLORD
STATE OF ARIZONA)
:ss
County of Maricopa)
The foregoing instrument was acknowledged before me this 12 day of April, 1999,
by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Member of ▇▇▇▇▇▇▇▇▇ Place, L.L.C. on behalf of the
company.
/s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Notary Public
My Commission Expires: June 9, ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇)
:ss
County of Maricopa)
The foregoing instrument was acknowledged before me this 9th day of April, 1999,
by ▇▇▇▇▇ ▇. ▇▇▇▇▇.
/s/ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Notary Public
My Commission Expires: 9/2/02
EXHIBIT "A"
FLOOR PLAN
(Diagram)
EXHIBIT A-1 GARAGE PLAN
To be inserted at a later date
EXHIBIT "B"
BUILDING STANDARD WORKLETTER
BUILDING STANDARD SHELL AND ALLOWANCE
This Exhibit "B" sets forth the respective obligations of, and the procedures to
be followed by, Landlord and Tenant in the design and construction of those
improvements which will prepare the Premises for Tenant's use and occupancy
("Leasehold Improvements"), including the payment of design and construction
costs.
I. DEFINITIONS
1.0 As used in the Lease and this Exhibit "B":
1.0.1 The term "Building Standard Improvements" refers to those
improvements set forth in Section 3.4 of this Exhibit.
1.0.2 The term "Building Standard" refers to those brands, designs,
finishes or techniques selected by Landlord for construction of the Building
Standard Improvements.
1.0.3 The term "non-Building Standard" means brands, designs,
finishes and techniques other than those selected by Landlord.
1.0.4 The term "non-Building Standard Improvements" means
improvements to the Premises in addition to those improvements set forth in
Section 3.4 of this Exhibit.
1.0.5 "Usable Area" means the area of the Premises computed by
measuring to the exterior surface of permanent outside walls, to the midpoint of
corridor and demising walls and to the Tenant side of permanent interior and
Interior Common Facility walls (other than corridor walls) but excluding the
square foot area of stairwells and elevator shafts, measured from the exterior
of the walls.
II. GENERAL PROCEDURES FOR PREPARING PLANS AND SPECIFICATIONS
2.0 Landlord's Space Planner will prepare a Space Plan for the Premises.
Unless a Space Plan for the Premises has already been approved by Landlord and
Tenant, Tenant agrees, within three business days of execution of this Lease, to
meet with Landlord's Space Planner and to provide at the meeting criteria for
preparation of a Space Plan. Criteria includes:
2.0.1 Approximate location of all partitions, doors, electrical and
telephone outlets and switches. Special requirements for electrical and
telephone circuits.
2.0.2 Type and color of wall and floor covering.
2.0.3 Details of all millwork, corridor entrances, water and drain
supply requirements and non-Building Standard electrical outlets.
2.0.4 Information on non-Building Standard Improvement HVAC
requirements (special heat generating equipment).
2.0.5 Weight and location of exceptionally heavy equipment.
2.0.6 Dimensions of all equipment to be built in.
2.0.7 Keying schedule.
2.0.8 Lighting arrangement.
Tenant will provide Landlord with Tenant's final approval of the Space
Plan or specific objections thereto on or before May 15, 1999. If the approved
Space Plan is different from Exhibit "A" to the Lease, the approved Space Plan
shall be substituted for Exhibit "A" and become part of this Lease.
2.1 Upon approval of the Space Plan, Landlord agrees to provide
construction drawings and specifications for Tenant's partition layout,
reflected ceiling, telephone and electrical outlets and switches, finish
schedule and other work required for Tenant's Leasehold Improvements. Mechanical
and electrical drawings and specifications (for installation of air conditioning
system and duct work, and heating and electrical facilities) for the work
required for Tenant's Leasehold Improvements will be prepared concurrently with
construction of the Premises.
2.2 All non-Building Standard work or Improvements desired by Tenant
shall in Landlord's opinion, equal or exceed the quality established by the
Building Standard Improvements as listed herein.
2.3 All plans and specifications plus Landlord's price summary of
competitive bids from three (3) contractors approved by Landlord and Tenant for
construction of Tenant's Leasehold
Improvements, shall be submitted to Tenant for review and for Tenant's written
approval which Tenant will issue within five days of receipt of the plans,
specifications and price. In addition, such plans are expressly subject to
Landlord's written approval, which Landlord covenants it will not unreasonably
withhold or delay. Landlord shall pre-approve ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jokake, and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as Tenant Improvement contractors. Landlord will approve Wespac
upon receipt of qualification materials.
2.4 Following approval by Tenant, any changes, modifications or
alterations of or to Tenant's drawings and specifications requested by Tenant
shall be subject to Landlord's approval. Any additional charges, expenses or
costs, including Landlord's architect's fees, incurred by Landlord in approving
said changes, modifications or alterations shall be paid by Tenant. No changes,
modifications or alterations of or to any approved drawings shall be made
without the written consent of the Landlord after written request therefor by
the Tenant.
2.5 Landlord will cause said plans to be filed with the appropriate
governmental agencies, in such form as may be required for construction and
occupancy. Landlord and Tenant each agree to use their best reasonable efforts
to provide information and approvals to the Space Planner so that the
construction plans are submitted to the City of Scottsdale on or before June 15,
1999.
2.6 One entrance door to the Premises will bear the Tenant's designated
name and suite number. All door signs and directory entries shall be in
Landlord's Building Standard format purchased by the Tenant from a graphics
fabricator designated by Landlord.
III. LANDLORD'S OBLIGATIONS TO CONSTRUCT AND PAY FOR IMPROVEMENTS
3.0 Section 3.3 contains a general description of the Building
construction, and limitations of same, which will be provided by Landlord at
Landlord's expense. Selection of structural systems, materials and finishes will
be by Landlord. A detailed description of Landlord's construction is set forth
in Landlord's plans and specifications for the Building which are available for
review by Tenant and Tenant's architect or engineer.
3.1 If the work described in Tenant's drawings and specifications
requires additions or changes to Landlord's plans and specifications or
additions or changes to Landlord's construction obligations under this Article
III, Tenant agrees to pay Landlord any increased costs resulting from the
additions or changes, including construction expenses and architectural and
engineering costs.
3.2 Landlord's construction and standard finishes are designed for
normal office use. Any reference to construction by Landlord to Code
requirements shall be deemed to mean Code requirements for normal office use.
3.3 Landlord shall provide a Shell Office Building to contain the
Premises as hereinafter set forth:
3.3.1 All structural wall, floor and roof support systems to support
office floor live loads including partitions, ceilings, etc., of seventy (70)
pounds per square foot.
3.3.2 All exterior glass, wall finishes and weather protection
systems.
3.3.3 Common toilet facilities, per code, common lobbies, foyers,
stairs and elevators.
3.3.4 Automobile parking facilities including paving lighting and
mechanical ventilation of parking structure.
3.3.5 Central plant heating and air conditioning with main supply to
tenant suites, including air handling equipment equal to a design capacity of
one (1) ton per each 330 useable square feet. The air handling equipment shall
be delivered to the premises and stacked on the floor. Distribution ductwork is
not included.
3.3.6 Main electrical service to Building and distribution of
electrical power from main service to predetermined distribution points on each
floor.
3.3.7 Electrical grid system to feed lighting. Installation and
connection of light fixtures is not included.
3.3.8 Main fire sprinkler piping with heads established on a
predetermined pattern.
3.4 The Building Standard Improvements set forth in Paragraphs 3.4.1
through 3.4.15 are those leasehold improvements
necessary to allow tenants to take occupancy of premises for general office
purposes. In lieu of Landlord's construction of leasehold improvements to the
Premises with the Building Standard Improvements, Landlord and Tenant have
agreed that the Premises will be constructed in accordance with the plans
prepared under Article 2, against the Leasehold Improvement Allowance provided
for at Section 4.0 of this Exhibit "B". Landlord's Building Standard
Improvements are set forth below for the purpose of establishing the leasehold
improvements which would ordinarily be supplied by Landlord. Tenant's Leasehold
Improvements which are substantially equivalent to the Building Standard
Improvements set forth in this Section 3.4 in terms of quantity, function and
cost, will be deemed to be Building Standard Improvements for purposes of
Articles 16, 17 and 20 of the Lease and Section 5.3 of this Exhibit "B".
3.4.1 Public Corridor Partitions: Building Standard, 5/8" thick,
gypsum board attached to each side of 2-1/2" metal studs on 24" centers with
acoustic insulation built from floor to deck above, in the amount of one linear
foot per 60 square feet of Usable Area contained within the Premises. Corridor
partitions will be furnished Building Standard base molding on Tenant side only.
3.4.2 Non-Public Partitions: Building Standard, 5/8" thick ceiling
high gypsum board attached to each side of 2-1/2" metal studs on 24" centers, in
the amount of one linear foot per 10 square feet of Usable Area contained within
the Premises. Non-public partitions will be furnished with Building Standard
base molding on both sides.
3.4.3 Entry Door, Frame and Hardware: Building Standard, 8'-4."
solid core UL 20 minute wood door and UL 20 minute aluminum door frames with
self-closer, stainless steel lever handle passage set, deadlock, ball bearing
hinges and door stop. Entry doors shall be located where shown on the plans
described in Paragraph 2.1 hereof in the amount of one door per tenant suite.
3.4.4 Interior Doors, Frames and Hardware: Building Standard, 8'-4"
aluminum frames, solid core wood doors and hardware, in the amount of one door
per 300 square feet of Usable Area contained within the Premises. Hardware shall
include lever handle passage sets, hinges and door stops for openings on all
interior doors.
3.4.5 Painting: All wall surfaces, covered with one eggshell enamel
latex finish coat in colors selected by
Tenant from Building Standard paint selection, limited to one color in each
room, area or non-public corridor.
3.4.6 Ceiling: Building Standard, 2' x 2' acoustical tile on
mechanically suspended exposed grid system, as required throughout Premises.
3.4.7 Lighting: Building Standard, 2' x 4', recessed fluorescent
prismatic lighting fixture, in the amount of one per 80 square feet of Usable
Area contained within the Premises, and including single pole switches in the
amount of one per ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ feet.
3.4.8 Electrical Services: Building Standard, electrical facilities
sufficient for a connected load of 2 ▇▇▇▇▇ general use, 3 ▇▇▇▇▇ overhead
fluorescent lighting per square foot of Usable Area within the Premises.
3.4.9 Duplex Electrical Outlets: Building Standard, wall mounted
duplex electrical outlets (120 volts) in the amount of one per 125 square feet
of Usable Area contained within the Premises.
3.4.10 Telephone Outlets: Building Standard, roughed-in electrical
provisions for wall mounted telephone outlets in the amount of one per 200
square feet of Usable Area contained within the Premises.
3.4.11 Finished Floors (Tenant's Spaces): Building Standard
carpeting in colors selected by Tenant from Landlord's Building Standard
selection and limited to one color in each room, area or corridor.
3.4.12 Heating, Ventilating and Air Conditioning: Building Standard,
including duct work and air diffusers in the amount of one linear foot of
diffuser per 200 square feet of Usable Area contained within the Premises.
3.4.13 Window Covering: Building Standard architectural miniblinds
on all exterior windows.
3.4.14 Interior Wall Finish: Install gypsum wallboard finish on
interior side of exterior walls.
3.4.15 Sprinkler System: Standard grid system per Code and
Landlord's plans. Modifications (additions, relocations, raising or lowering) of
standard system to accommodate Tenant's requirements are to be done by
Landlord's
fire sprinkler contractor at Tenant's expense and in accordance with
underwriter's requirements.
IV. CONSTRUCTION OF TENANTS LEASEHOLD IMPROVEMENTS
4.0 Landlord agrees to construct Tenant's Leasehold Improvements in
accordance with the drawings and specifications prepared by Landlord under
Article II against a Leasehold Improvement Allowance in an amount equal to the
number of square feet of Usable Area multiplied by twenty seven dollars
($27.00).
4.1 All mechanical, structural, electrical or plumbing modifications to
the Building required by Tenant shall be performed by Landlord's contractor or
contractors approved by Landlord.
4.2.1 There shall be charged against the Allowance the sum of (i)
architectural and engineering fees incurred by Landlord under Article II of this
Exhibit "B"; (ii) architectural and engineering fees and construction costs
incurred by Landlord under Section 3.1 of this Exhibit "B"; (iii) Landlord's
cost of construction of Tenant's Leasehold Improvements under Section 4.0 of
this Exhibit "B", whether incurred before or after execution of the Lease
(including without limitation labor, materials, overhead, general conditions,
sales tax, bonds and permits and plan check fees); (iv) the cost of any other
Tenant's work (including preparation of drawings and specifications for Tenant's
Leasehold Improvements) done by Landlord for Tenant and (v) the cost of
providing or upgrading water, heating, cooling, air or electrical facilities for
the remainder of the Building should Tenant's Leasehold Improvements require
Excess Consumption (as defined in Section 17.2 of the Lease) from existing
facilities, but only to the extent necessary to compensate for Tenant's Excess
Consumption.
4.2.2 If the sum of the costs set forth in clauses (i) through (v)
of Section 4.2.1 above exceeds the amount of the Leasehold Improvement Allowance
by less than five dollars ($5.00) per square foot, Tenant agrees to pay Landlord
such excess upon receipt of a statement therefor from Landlord at the time of
occupancy and if the excess is five dollars ($5.00) or more per square foot,
Tenant agrees to pay Landlord such excess upon receipt of a statement therefor
from Landlord at commencement of construction.
4.3 No portion of the Leasehold Improvement Allowance shall be paid for
any item of construction which is not permanently attached to the Premises.
Except that if the sum of
the costs set forth in clauses (i) through (v) Section 4.2.1 are less than the
Leasehold Improvement Allowance, Landlord shall pay the difference to Tenant as
a moving expense.
V. COMPLETION OF TENANTS IMPROVEMENTS
5.1 Landlord agrees to obtain any Certificate of Occupancy required by
the local building department or other governmental agency.
5.2 The term "Substantial Completion" as used in this Exhibit "B" or in
the Lease means that state of completion of the Premises which will allow Tenant
to begin Tenant's occupation of the Premises without material interference from
Landlord's contractor or material delay caused by Landlord's failure to have
completed Landlord's work under Section 3.4 of this Exhibit.
5.3 Notwithstanding any time period established herein for the
submission and approval of Tenant's plans or for the construction of
improvements, the Lease Term and Tenant's obligation to pay rent shall commence
as set forth in Section 2.2 of the Lease; provided, however, if the Commencement
Date is deter mined under Section 2.2 of the Lease by the date of Substantial
Completion, the Commencement Date will be accelerated one day for each day
Substantial Completion is delayed by reason of:
5.3.1 Tenant's failure to provide the space layout criteria required
under Section 2.0 of this Exhibit or to approve the Space Plan within the time
period set forth.
5.3.2 Tenant's failure to approve drawings and specifications or the
price for non-Building Standard Improvements in accordance with Section 2.3 of
this Exhibit.
5.3.3 Tenant's request for non-Building Standard materials, finishes
or installations or non-Building Standard Improvements, including planning,
procurement and construction delays.
5.3.4 Tenant's changes in Space Plan or drawings and specifications
after initial approval.
5.3.5 The performance of any construction planning or architectural
work by a person, firm or corporation employed by Tenant and the completion of
said work by said person, firm
or corporation including delays to Landlord's contractor caused by Tenant's
contractor.
5.3.6 Delays caused by Tenant to submit complete construction
documents to the City of Scottsdale in accordance with Section 2.5 of this
Exhibit or causing delays in resubmitting corrections of said plans to the City.
5.3.7 Failure to approve start of construction of the Tenant's
Improvements upon receipt of notice from Landlord that construction of the work
may commence.
It is Landlord's and Tenant's intention that Substantial Completion shall
be deemed to have occurred upon that date which would be the date of Substantial
Completion were the Premises to be constructed with Building Standard
Improvements only.
EXHIBIT "C"
RULES AND REGULATIONS
1. No automobile, recreational vehicle or any other type of vehicle or
equipment shall remain upon the Common Areas longer than twenty-four (24) hours
and no vehicle or equipment of any kind shall be dismantled or repaired or
serviced on the Common Areas. All vehicle parking shall be restricted to areas
designated and marked for vehicle parking. The foregoing restrictions shall not
be deemed to prevent temporary parking for loading or unloading of vehicles in
designated areas.
2. Signs will conform to sign standards and criteria established from time to
time by Landlord. No other signs, placards, pictures, advertisements, names or
notices shall be inscribed, displayed or printed or affixed on or to any part of
the outside or inside of the building without the written consent of Landlord
and Landlord shall have the right to remove any such non-conforming signs,
placards, pictures, advertisements, names or notices without notice to and at
the expense of Tenant.
3. No antenna, aerial, discs, dishes or other such device shall be erected on
the roof or exterior walls of the Premises, or on the grounds, without the
written consent of the Landlord in each instance. Any device so installed
without such written consent shall be subject to removal without notice at any
time.
4. No loudspeakers, televisions, phonographs, radios or other devices shall
be used in a manner so as to be heard or seen outside of the Premises without
the prior written consent of the Landlord.
5. The outside areas immediately adjoining the Premises shall be kept clean
and free from dirt and rubbish of Tenant by the Tenant to the satisfaction of
Landlord and Tenant shall not place or permit any obstruction in such areas or
in the Common Areas or permit any materials to be left or stored in such areas
or in the Common Areas, or permit any work to be performed outside the Premises.
6. No open storage shall be permitted in the Center.
7. All garbage and refuse shall be placed in containers placed at the
location designated for refuse collection, in the manner specified by Landlord.
Refuse containers shall not be moved from the enclosure to any other area. No
trash, garbage, or
construction debris or materials shall be brought into the Center from other
locations or disposed of in refuse containers provided for the Center.
8. No vending machine or machines of any description shall be installed,
maintained or operated upon the Common Areas.
9. Tenant shall not disturb, solicit or canvass any occupant of the Building
and shall cooperate to prevent same.
10. No noxious or offensive trade or activity shall be carried on in any part
of the Common Areas nor shall anything be done thereon which would in any way
interfere with the quiet enjoyment of each of the other tenants of the Center or
which would increase the rate of insurance or overburden utility facilities from
time to time existing in the Center.
11. Landlord reserves the right to make such reasonable amendments to these
rules and regulations from time to time as are nondiscriminatory and not
inconsistent with the Lease.
EXHIBIT D
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is entered into on ___________, 1999, between the undersigned
VistaCare, Inc., a Delaware corporation, such party together with its successors
and assigns including, without limitation, with respect to any individual, such
individual's heirs, administrators, legal representatives and executors, all of
the preceding being collectively herein referred to as "Tenant") and AMERICAN
NATIONAL INSURANCE COMPANY (such party together with its successors and assigns
including, without limitation, any purchaser at any foreclosure sale of the
Mortgage, defined below, being herein collectively referred to as "American
National"), whose address is: Attention: Mortgage and Real Estate Investment
Department, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
A. Tenant is the Lessee under the Lease which, together with any and
all modifications and amendments thereto, is completely described on EXHIBIT "A"
attached hereto and incorporated herein (collectively the "Lease").
▇. ▇▇▇▇▇▇▇▇▇ Place, L.L.C., an Arizona limited Liability company,
(together with its successors and assigns including, without limitation, with
respect to any individual, such individual's heirs,-administrators, legal
representatives and executors being herein collectively referred to as
"Borrower"), the Lessor or successor to Lessor under the Lease, has requested
American National to make to Borrower a mortgage loan secured or to be secured
by a mortgage or deed of trust from Borrower to American National (such mortgage
or deed of trust collectively together with all renewals, increases,
replacements, consolidations, modifications and extensions thereof, the
"Mortgage"), covering the property (the "Property") described on EXHIBIT "B"
attached hereto and incorporated herein wherein the premises covered by the
Lease are located.
C. American National is willing to make the requested mortgage loan,
provided Tenant executes this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and in order to induce American National to make the
requested mortgage loan, Tenant and American National hereby agree and covenant
as follows:
1. The Lease and the lien thereof are and shall at all times continue
to be subject and subordinate in all respects to the lien of the Mortgage and
all rights, privileges and provisions in favor of American National thereunder.
Tenant further waives all rights and claims to assert that the Lease or any
provision thereof is superior to the lien or to any other provision of the
Mortgage.
2. So long as Tenant is not in breach or default (beyond any period in
the Lease given to Tenant to cure such breach or default) in the payment of rent
or additional sums or in the performance of any of the other terms, covenants or
conditions of the Lease on Tenant's part to be performed, Tenant's possession
under the Lease and Tenant's rights and privileges thereunder, or under any
extensions or renewals thereof which may be effected in accordance with any
option therefor contained in the Lease, shall not be diminished or interfered
with by American National acting pursuant to the Mortgage, and Tenant's
occupancy shall not be disturbed by American National during the term of the
Lease or any such extensions or renewals thereof in accordance with any
extension or renewal options contained in the Lease.
3. If the interests of Borrower in the Property or the Lease shall be
acquired by American National by foreclosure, by deed in lieu of foreclosure or
by any other method; and American National succeeds to the interests of Borrower
under the Lease, then provided that and so long as Tenant is not in default in
the payment of any sums due from Tenant under the Lease or in the performance of
any other obligation of Tenant under the Lease, the Lease and the rights of
Tenant thereunder shall continue in full force and effect and shall not be
terminated, diminished, interfered with or disturbed except in accordance with
the terms of the Lease, and except that [Tenant shall be bound to American
National under all of the terms, covenants and conditions of the Lease for the
balance of the term thereof remaining, and any extensions or renewals thereof
which may be effected in accordance with any option therefor contained in the
Lease, with the same force and effect as if American National were the original
Lessor under the Lease, and Tenant does hereby attorn to American National as
its Lessor, said attornment to be effective and self-operative without the
execution of any other
instruments on the part of either party hereto immediately upon American
National's succeeding to the interest of Borrower under the Lease; provided,
however, that unless otherwise required by applicable law, Tenant shall be under
no obligation to pay rent to American National by virtue of this Agreement until
Tenant receives written notice from American National that American National has
succeeded to the interests of Borrower under the Lease or exercised its
assignment of rents. It is the intention of the parties hereto for this purpose
to incorporate the Lease into this Agreement by reference for all purposes with
the same force and effect as if set forth at length herein.
4. If American National shall succeed to the interests of Borrower
under the Lease, American National shall be bound to Tenant under all of the
terms, covenants and conditions of the Lease, and Tenant shall, from and after
American National's succession to the interests of Borrower under the Lease,
have the same remedies against American National for the breach or default by
American National of any agreement contained in the Lease that Tenant might have
had under the Lease against Borrower for Borrower's breach or default provided,
however, that American National shall not be:
(a) liable for any act or omission of any prior or succeeding landlord
(including Borrower); or
(b) liable for the return of any security deposit unless actually
received by American National;
(c) subject to any offsets or defenses which Tenant might have against
any prior or succeeding landlord (including Borrower);
(d) bound by any rent or additional sums which Tenant might have paid
for more than one month in advance to any prior or succeeding landlord
(including Borrower);
(e) bound by any agreement, amendment or modification of the Lease or
any cancellation or termination of the Lease by any prior landlord (including
Borrower), made without American National's prior written consent;
(f) liable for the completion of any construction on the Property or
Tenant Improvements to the leased premises commenced, or agreed or represented
to by any prior or succeeding landlord (including Borrower); or
(g) bound by any provision of the Lease restricting the use of other
properties owned by American National, as Landlord.
5. Tenant from and after the date hereof shall send a copy of any
notice or statement of a breach or default (including matters which, but for the
passage of time, the giving of notice, or both, would be a breach or default)
under the Lease or any notices or statement of any intention to cancel or
terminate the Lease by certified mail, return receipt requested to American
National at the address shown above at the same time such notice or statement is
sent to Borrower. Tenant further agrees that, in the event of any act or
omission by Borrower or other occurrence which would give Tenant the right to
cancel or terminate the Lease or to claim a partial or total eviction (either
actual or constructive), or in the event of any other breach or default by
Borrower under the terms of the Lease, promptly thereupon, Tenant shall so
notify American National by certified mail, return receipt requested, at the
address above.
6. American National shall have the option, within a reasonable time,
but not less than sixty (60) days following receipt by American National of
notice as provided in paragraph 5 above, to cure any such act, omission, breach,
or default of Borrower described in such paragraph 5, including if necessary,
the commencement and prosecution of foreclosure proceedings, and Tenant agrees
to accept the performance of American National in lieu of the performance of
Borrower and that the Lease shall thereby remain in full force and effect.
Tenant shall not exercise any such right to terminate or claim eviction or any
other rights or remedies available at law or in equity for default or breach of
the Lease or act or omission by Borrower in connection with the Lease, unless
and until Tenant has notified American National as provided in paragraph 5
hereof and until the time for American National to commence and complete such
cure has elapsed.
7. Tenant hereby agrees that for so long as the Mortgage encumbers or
is a lien on the Property, or any portion thereof, and thereafter, should
American National acquire the Property, or any portion thereof, no covenant,
agreement or other obligation of the Landlord which is to be performed or
complied with beyond the boundaries of the Property and no act or omission or
occurrence which occurs beyond the boundaries of the Property (including,
without limitation, any restrictions prohibiting Landlord's or its affiliates or
other related persons or entities from competing, operating or leasing in
completion with Tenant or to cause or restrict certain actions
or activities on other property not encumbered by the Mortgage) shall be a
breach or default under the Lease nor permit Tenant to cancel or terminate the
Lease or ▇▇▇▇▇ or reduce any rent or other sums. Nothing in this Section 7 shall
prevent Tenant from seeking or obtaining a restraining order or injunction
against such breach, default, act, omission or occurrence or from obtaining a
monetary judgment against Borrower or any successor landlord other than American
National for any such breach, default, act, omission or occurrence.
8. In the event the Tenant becomes the owner of the Property or any
portion thereof, there shall be no merger of the leasehold interest and the fee
interest and the Lease shall remain in existence and, without limiting the
foregoing, American National shall be permitted to collect rent thereunder if a
breach or default occurs under the Mortgage or any indebtedness secured thereby
or any assignment of leases and/or rents by and/or executed in connection with
any of the preceding. Nothing in this Agreement shall be construed to permit a
transfer of Tenant's interest not expressly permitted by the Lease.
9. This Agreement may not be amended or modified orally or in any other
manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective successors
and assigns including, any applicable, heirs, administrators, legal
representatives and executors.
10. Tenant agrees that it will not, without the written consent of
American National, pay rent or any other sums becoming due under the Lease more
than one (1) month in advance.
11. Tenant agrees that the Mortgage and the indebtedness secured thereby
may be increased, rearranged, renewed, extended, consolidated and modified from
time to time by agreement between Borrower and American National, and American
National may exercise any one or more of its rights under the Mortgage from time
to time at American National's discretion, all without notice to or consent of
Tenant, and this Agreement shall continue in full force and effect as to all
such renewals, extensions, increases, rearrangements, consolidations and
modifications and all such exercises of rights.
12. In no event shall American National be personally liable as landlord
under the Lease either by virtue of any assignment of the Lease, the exercise of
any right thereunder or
hereunder, the foreclosure of its lien on the Property, the acquisition of the
Property or the collection of any rent or other sums under the Lease as Owner or
Mortgagee and Tenant shall look solely to the real estate that is the subject of
the Lease and to no other assets of American National for satisfaction of any
liability in respect of the Lease; but Tenant shall have reserved to it all
other remedies available to it at law or in equity.
13. Except as otherwise described in Exhibit "A" above, the Lease has
not been amended or modified and is in full force and effect as originally
executed, and there are no side letters or other arrangements, whether or not
constituting amendments to the Lease, for Tenant inducements or otherwise.
14. The Lease is in full force and effect. Neither Borrower nor Tenant
is in breach or default under any provision of the Lease nor is Tenant aware of
any act, omission or occurrence which, but for the passage of time, the giving
of notice, or both, which would constitute a breach or default or would permit
the Tenant to terminate the Lease or reduce or ▇▇▇▇▇ any rent thereunder.
Borrower has complied fully and completely with all of Borrower's covenants,
warranties and other obligations under the Lease to the date hereof. Tenant is
fully obligated to pay, and is paying, the rent and other sums due from Tenant
under the Lease, and is fully obligated to perform and is performing all of the
obligations of Tenant under the Lease, without right of counterclaim, offset or
other defense.
15. Where appropriate, all references to the singular shall include the
plural and vice versa and all references to any gender shall include the others.
16. This Agreement may not be waived, amended or modified except by
subsequent written agreement signed by the party to be bound.
17. The words "breach" and "default" are used interchangeably in this
Agreement for convenience of drafting and there is no distinction between the
meaning of either word.
18. This Agreement satisfies Borrower's obligation, if any, to provide a
subordination, non-disturbance and attornment agreement, or similar document,
pursuant to the Lease.
19. This Agreement may be executed in multiple counterparts, each of
which shall be an original instrument and which, taken together, constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
VISTACARE, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇
---------------------------
Name: ▇. ▇. ▇▇▇▇▇
--------------------------
Title: CFO
-------------------------
AMERICAN NATIONAL INSURANCE COMPANY
By:
---------------------------
Name:
--------------------------
Title:
-------------------------
[ALL SIGNATURES TO BE ACKNOWLEDGED AND IN RECORDABLE FORM FOR THE STATE WHERE
THE PROPERTY IS LOCATED. THIS MAY REQUIRE ADDITIONAL ATTESTATION, WITNESSES,
MODIFICATIONS TO ACKNOWLEDGMENTS AND/OR ADDITIONAL ACKNOWLEDGMENTS.]
STATE OF Arizona
----------------
COUNTY OF Maricopa
---------------
This instrument was acknowledged before me on this the 9th day of April,
1999 by ▇▇▇▇▇ ▇. ▇▇▇▇▇, CFO, of VistaCare, Inc. on behalf of said corporation.
/s/ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Notary Public in and for
The State of Arizona
------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Typed or printed name of Notary
My Commission Expires: ▇/▇/▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
This instrument was acknowledged before me on this the day of
, 1999 by , , of AMERICAN NATIONAL INSURANCE
COMPANY, a Texas insurance corporation, on behalf of said corporation.
-------------------------------------------
Notary Public in and for The State of Texas
-------------------------------------------
Typed or printed name of Notary
My Commission Expires:
-----------
EXHIBIT "A"
TO
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
DATED:
----------------------
The lease referred to in the foregoing Agreement is a Lease Agreement made
and entered into , 1999, between ▇▇▇▇▇▇▇▇▇ Place, L.L.C. as
Lessor, and VistaCare, Inc., as Lessee. The Lease has been amended and modified
as follows:
[NO AMENDMENTS OR MODIFICATIONS]
EXHIBIT "B"
TO
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
PROPERTY DESCRIPTION
▇▇▇▇▇▇▇▇▇ PLACE
▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, according to Book 217 of Maps, Page 21,
records of Maricopa County, Arizona.
An easement for ingress and egress to and from the land and Via ▇▇ ▇▇▇▇▇▇▇ and
San Alerto Street, dedicated public streets, over the West 12 feel of ▇▇▇▇ ▇▇
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, according to Book 217 of Maps, page 21, records of
Maricopa County, Arizona, pursuant to the 12 foot public utility and access
easement as set forth on the Plat and the easement recorded in Docket 14498,
page 395.
EXHIBIT "E"
ESTOPPEL CERTIFICATE
Tenant: VistaCare, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Landlord: ▇▇▇▇▇▇▇▇▇ Place, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lender: American National Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage and Real Estate Investment Department
Premises: Approximately 15,000 square feet located on the second floor of
the Office Building
Lease: The Lease Agreement dated April 12, 1999 between Landlord and Tenant
for space in the Premises.
IN ORDER TO INDUCE LENDER TO TAKE ACTION IN CONNECTION WITH A LOAN
("LOAN")SECURED BY A LIEN ON THE PREMISES AND THE ASSIGNMENT OF THE CAPTIONED
LEASE, AND UNDERSTANDING THAT LENDER IS RELYING ON THE REPRESENTATIONS AND
WARRANTIES AND AGREEMENTS IN TAKING ACTION IN CONNECTION WITH THE LOAN
REQUESTED, TENANT MAKES THE FOLLOWING REPRESENTATIONS, WARRANTIES AND
AGREEMENTS:
1. Tenant hereby certifies, as true and correct, the following
representations and warranties:
(a) The Lease and all amendments thereto (collectively referred to as
the "Lease"), a copy of which is attached as EXHIBIT "A", is the true,
correct and complete agreement between Landlord and Tenant with respect to
the space
described in the Lease. Other than as evidenced by the attached documents,
the Lease has not been amended or modified and is in full force and
effect.
(b) The Tenant, and no other person or entity, is presently or, upon the
Commencement Date of the Lease as provided in Section 1 (g) below, will be
occupying the entire space covered by the Lease for the purposes
designated therein; and the Tenant is fully obligated to pay the rental
and all other sums provided for therein, and is fully obligated to perform
all other obligations of Tenant under the Lease, all without right of
counterclaim, offset, defense or otherwise. The first month's rent in the
amount of $40,833.93 will be paid on ___________, 1999.
(c) As of the date hereof, neither Landlord nor Tenant is in default
under the terms and conditions of the Lease.
(d) Tenant has not prepaid any rent.
(e) Tenant has not received a notice that Landlord has made any other
assignment, pledge or hypothecation of the Lease or of any sums due
thereunder.
(f) The Commencement Date of the term of the Lease will be __________,
1999 as provided in the Lease. The term of the Lease will expire five
years after the Commencement Date unless sooner terminated as provided in
the Lease.
(g) Other than as described hereto as part of EXHIBIT "A", there are no
side letters or other arrangements, whether or not constituting amendments
to the Lease, for Tenant inducements such as rebates of or reduction in
the rental provided for in the Lease.
(h) Tenant will be required to pay Landlord a Security Deposit of
$40,833.03.
2. Tenant agrees that without the written consent of Lender it will not (a)
modify, extend or in any manner alter the terms of the Lease; (b) pay the rent
or any other sums becoming due under the terms of the Lease more than one (1)
month in advance; or (c) accept any termination, merger or cancellation of the
Lease or Landlord's waiver of, or release from the performance of any
obligations or liabilities under the Lease.
3. Should Lender advise Tenant that Landlord is in breach or default in the
indebtedness to Lender and request that payment
of all future rentals be made directly to Lender, Tenant agrees that it shall
make all future rental payments and other sums under the Lease directly to
Lender until instructed otherwise by Lender.
4. Tenant agrees that it will furnish to Lender at the address written above
copies of all notices or communications sent to Landlord under the Lease. Said
notice shall be sent registered or certified mail at the address shown above.
Tenant agrees that in the event of any breach or default by the Landlord under
the Lease, Tenant shall notify Lender in writing of such event.
5. Tenant agrees that, upon Lender's receipt of written notice as provided in
paragraph 4 above that Landlord is in breach or default under the terms of the
Lease, Lender shall have the option within a reasonable time, but not less than
sixty (60) days, to cure any default on the part of Landlord; and Tenant agrees
not to take any action to terminate the Lease within such time period, and to
accept the performance of Lender in lieu or the performance of Landlord.
6. Tenant understands and acknowledges that (a) Landlord shall execute or has
executed an absolute assignment of the Lease and other leases in favor of
Lender; (b) notwithstanding said assignment, all rental and other sums due under
the Lease shall continue to be paid in accordance with the terms of the Lease
until and unless Tenant is notified to the contrary in writing by Lender; and
(c) the interest of Landlord in the Lease shall be or has been assigned to
Lender under the terms provided in said absolute assignment or the deed of trust
securing the Loan, and Lender assumes no duty, liability or obligation under the
Lease, either by virtue of said absolute assignment, the exercise thereof or by
any subsequent receipt or collection of rental or any other sums due thereunder.
7. This certificate shall inure to the benefit of Lender, its successors and
assigns, and shall be binding upon Tenant and Tenant's heirs, legal
representatives, successors and assigns. This certificate shall not be deemed to
alter or modify any of the terms and conditions of the Lease except to the
extent specifically set forth herein.
8. The words "breach" and "default" are used interchangeably in this
certificate and there is no distinction between the meaning.
DO NOT EXECUTE THIS CERTIFICATE UNLESS A TRUE, CORRECT AND COMPLETE COPY
OF YOUR LEASE AND ALL AMENDMENTS THERETO ARE
ATTACHED. LENDER IS RELYING ON YOUR STATEMENTS AND AGREEMENTS CONTAINED IN THIS
CERTIFICATE IN TAKING ACTIN RESPECTING LANDLORD'S LOAN REQUEST.
EXECUTED this the day of , 1999.
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TENANT: VistaCare, Inc.
By: /s/ ▇. ▇. ▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇
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Title: CFO
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EXHIBIT "A"
TO
ESTOPPEL CERTIFICATE
This will be a copy of the executed Lease.
RIDER "1"
OPTION TO EXTEND
Rider 1 to Lease dated 12 April, 1999 between ▇▇▇▇▇▇▇▇▇ Place, L.L.C.
("Landlord"), and VistaCare, Inc.("Tenant").
1. Option to Extend. Provided that Tenant is not in breach or default beyond
any applicable cure periods, of any of the terms, conditions, covenants,
obligation or provisions of the Lease to which this Rider is attached, and that
no event shall have occurred or state of facts exists which if continued uncured
will, with the lapse of time or the delivery of notice, or both, constitute an
Event of Default, then Tenant shall have, and is hereby granted, the option to
extend the Initial Term for two (2) additional periods of three (3) years (the
"First Renewal Term" and the "Second Renewal Term"). Except as set forth in
Section 2 of this Rider, Tenant's occupancy of the Premises during any Renewal
Term shall be governed by all of the terms, conditions, covenants and provisions
of the Lease to which this Rider is attached except that Tenant shall have no
further option to extend the Initial Term after the expiration of the Second
Renewal Term. If Tenant desires to exercise its option to extend the Initial
Term, or the First Renewal Term it must give Landlord notice in writing ("Option
Notice") of its intent to do so at least six (6) months prior to the expiration
of the Initial Term or the First Renewal Term.
2. Minimum Monthly Rent During The Renewal Term. The Minimum Monthly Rent and
parking rates for the First and Second Renewal Terms shall be at the square foot
rental rate or parking rate then being charged by Landlord to new occupants of
space in ▇▇▇▇▇▇▇▇▇ Place similar in size to that being occupied by Tenant.
3. Definitions. Capitalized terms used in this Rider without definition shall
have the definition assigned to such terms in the lease to which this Rider is
attached, unless the context requires otherwise.
4. Full Force and Effect. Except as specifically modified by this Rider, the
lease to which this Rider is attached remains in full force and effect.
RIDER "2"
FIRST RIGHT OF REFUSAL
Rider 2 to Lease dated 12 April, 1999 between ▇▇▇▇▇▇▇▇▇ Place, L.L.C.
("Landlord"), and Vista Care, Inc. ("Tenant").
Landlord grants to Tenant a right of first refusal as follows. If, during
the term of this Lease Landlord receives a bona fide offer from a party
(hereinafter called the "Outside Lessee") for the lease of any portion on the
second floor of the Building (hereinafter called the "First Refusal Premises"),
which offer Landlord desires to accept (hereinafter called the "Outside Offer"),
or if Landlord shall make a bona fide offer to a third party (such party also
herein called the "Outside Lessee"), for the lease of all or any portion of the
First Refusal Premises, which the Outside Lessee decides to accept (also called
the "Outside Offer"), Landlord shall give written notice of such Outside Offer
to Tenant. Tenant shall then have ten (10) business days from the date
Landlord's written notice is received in which to give written notice to
Landlord electing to lease that portion of the First Refusal Premises which is
the subject of the Outside Offer, upon the terms, conditions and rental rates as
contained in the Outside Offer; provided, however, the term for the lease of the
applicable portion of the First Refusal Premises shall at Tenant's option be
coterminous with and expire at the same time as the term then remaining under
the Lease, as extended; provided, further, if the then remaining term of the
Lease as extended is less than five (5) years, and if Tenant exercises its
option as herein granted, Landlord and Tenant will extend the term of the Lease
(and the term of any other space in the Building which is then being leased by
Tenant) to a point which is five (5) years after the exercise of the Option.
Such extension shall be upon the same terms and conditions as are then in effect
for all of the premises then being leased, other than the First Refusal
Premises, which shall be leased upon the terms set forth in the Outside Offer,
as provided above; provided however, in the event Tenant exercises its option
within the first twelve (12) months of the Term of this Lease, the terms,
conditions and rental rates shall be the same as those for the Premises. In the
event Tenant shall elect to lease all or a portion of the First Refusal
Premises, Landlord and Tenant shall within ten (10) working days after such
election execute and deliver to each other a lease to document Tenant's lease of
the First Refusal Premises, effective upon the execution of such Lease. In the
event Tenant shall not elect to lease the applicable portion of First Refusal
Premises, the Landlord may lease such First
Refusal Premises to the Outside Lessee upon the same terms and conditions which
were offered to Tenant (provided, however, the Minimum Monthly Rent may be any
amount more and up to ten percent (10%) less that what was offered to Tenant),
and Tenant forfeits any rights thereto, provided, however the rights of first
refusal shall continue as to all other portions of the First Refusal Premises
and as to the portion which is the subject of the Outside offer at the
expiration of term of the Outside Lessee's lease. Notwithstanding the foregoing,
if the portion of the First Refusal Premises which is the subject of the Outside
Offer is not leased in accordance with the terms, conditions and rental rates as
set forth in the Outside Offer (provided, however, the Minimum Monthly Rent may
be any amount more and up to ten percent (10%) less than what was offered to
Tenant), within one hundred twenty (120) days of the expiration of Tenant's
option right to lease the applicable portion of the First Refusal Premises,
which is subject to the Outside offer, Landlord shall re-offer the space to
Tenant in the same manner as required above prior to leasing it to any other
person or entity, including the Outside Lessee.