EXHIBIT 99.1
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SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT
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This Second Amendment to Industrial Lease Agreement (this "Second
Amendment") is made and entered into effective as of August 17, 2005 (the
"Effective Date"), by DCT DFW, LP, a Delaware limited partnership ("Landlord")
and Rockwell Medical Technologies, Inc., a Michigan corporation ("Tenant").
RECITALS
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A. Tenant is presently leasing under that certain Industrial Lease
Agreement dated March 30, 2000 between Tenant and Landlord's
predecessor-in-interest, DFW Trade Center III Limited Partnership ("Original
Lease"), as amended by that certain First Amendment to Industrial Lease
Agreement dated May 8, 2000 ("First Amendment"; the Original Lease as amended by
the First Amendment being collectively known as the "Lease"), certain premises
containing 51,113 square feet of space (the "Demised Premises") in the building
known as DFW - Building H located at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxx;
and
B. Landlord and Tenant desire to extend the term of the Lease for
the Demised Premises on the terms and conditions set forth below.
AGREEMENT
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In consideration of the mutual covenants contained in this Second
Amendment and the Lease, Landlord and Tenant hereby agree as follows:
1. Extension of Term. Subject to and upon the terms and conditions
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set forth herein, the Term of the Lease, which presently expires on August 27,
2005, is hereby extended for a period of sixty (60) months commencing on August
28, 2005 and expiring on Xxxxxx 00, 0000 (xxx "Xxxxxxx Xxxx").
2. Rent. Commencing on August 28, 2005, the Monthly Base Rent
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Installment for the Demised Premises during the Renewal Term shall be as
follows:
Annual Rent Monthly Base
per Square Rent
Term Dates Foot Installments
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August 28, 2005 through August 31, 2007, inclusive $ 3.05 $ 12,991.22
September 1, 2007 through August 31, 2010, inclusive $ 3.20 $ 13,630.13
3. Security Deposit. Section 5 of the Lease is hereby amended in
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its entirety to read as follows:
Within 15 days from the execution of the Second Amendment to Industrial
Lease Agreement dated as of August 17, 2005 between DCT DFW, LP, as
Landlord, and Tenant ("Second Amendment"), Tenant shall deposit with
Landlord a Security Deposit in the amount of $19,934, as security for
the full and faithful performance of Tenant's obligations under this
Lease. The parties agree that, unless otherwise required by law,
Landlord shall not be required to keep said Security Deposit separate
from its general funds, nor pay any interest thereon to Tenant. Such
Security Deposit shall not be construed as an advance payment of Base
Rent or as a measure of Landlord's damages in the event of an Event of
Default by Tenant under this Lease.
In the event of an Event of Default by Tenant under this Lease, Landlord
may apply all or a portion of said Security Deposit for the payment of
any sum or for the payment of any amount which Landlord expends by
reason of such Event of Default. If any portion of said Security Deposit
is so applied, Tenant shall deposit with Landlord, within five (5) days
after receipt of Landlord's written demand, an amount sufficient to
restore said Security Deposit to its original amount. Upon the
expiration of this Lease, Landlord shall return said Security Deposit to
Tenant; provided that Tenant has paid to Landlord all sums owing to
Landlord under this Lease, Tenant has performed all of its obligations
hereunder and Tenant has returned the Demised Premises to Landlord in as
good and satisfactory condition as when Tenant took possession,
excepting normal wear and tear.
4. Operating Expenses and Additional Rent. Section 6 of the Lease
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is hereby amended by inserting at the end thereof new subsections (d) and (e) as
follows:
(d) Notwithstanding anything in the Lease to the contrary,
it is understood and agreed that for purposes of calculating Tenant's
Operating Expense Percentage for Operating Expenses in any calendar
year, the maximum amount of Controllable Expenses (as hereinafter
defined) shall be limited to the percentages of the actual amount of
Controllable Expenses in calendar year 2005, calculated on a cumulative,
compounding basis, as set forth below:
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% OF THE ACTUAL AMOUNT OF
CALENDAR CONTROLLABLE EXPENSES IN
YEAR CALENDAR YEAR 2005
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2005 100%
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2006 108%
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2007 117%
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2008 126%
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2009 136%
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2010 147%
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As used herein, the term "Controllable Expenses" shall mean the cost of
landscaping, cleaning the Building Common Area and trash removal from
the Building Common Area. Tenant's liability for (i) Operating Expenses
which are not Controllable Expenses, (ii) real estate taxes and
assessments, and (iii) Landlord's insurance shall not be similarly
limited, and therefore, Tenant shall remain fully liable in each Lease
Year for the whole amount of Tenant's Operating Expenses Percentage for
(i) Operating Expenses which are not Controllable Expenses, (ii) real
estate taxes and assessments and (iii) Landlord's insurance.
(e) Upon Tenant's written request, which request must be
made within sixty (60) days following Tenant's receipt of Landlord's
statement of Operating Expenses, Landlord shall provide photocopies of
major expenditures, as well as other standard Landlord reports to
substantiate such costs. In addition, Tenant may also review the books
and records supporting the statement of Operating Expenses in the office
of the Landlord's agent, during normal business hours, upon giving
Landlord ten (10) days advance written notice within sixty (60) days
following Tenant's receipt of Landlord's statement of Operating
Expenses. Such review shall be limited to one time in any one year
period.
(f) If Landlord and Tenant agree that Landlord's calculation
of Tenant's share of Operating Expenses for the inspected calendar year
was incorrect, the parties shall enter into a written agreement
confirming such error and then, and only then, Tenant shall be entitled
to a credit against future Base Rent for said overpayment (or a refund
of any overpayment if the Term has expired) or Tenant shall pay to
Landlord the amount of any underpayment, as the case may be.
5. Assignment and Sublease. Section 29 of the Lease is hereby
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amended by inserting at the end of subsection (a) the following:
Notwithstanding anything to the contrary in this Section 29, if no Event
of Default has occurred and is continuing under this Lease, then upon
thirty (30) days prior written notice to Landlord, Tenant may, without
Landlord's prior written consent, assign this Lease to an entity into
which Tenant is merged or consolidated or to an entity to which
substantially all of Tenant's assets are transferred or to an entity
controlled by or is commonly controlled with Tenant, provided (i) such
merger, consolidation, or transfer of assets is for a good business
purpose and not principally for the purpose of transferring Tenant's
leasehold estate, and (ii) the assignee or successor entity has a
tangible net worth, calculated in accordance with generally accepted
accounting principles (and evidenced by financial statements in form
reasonably satisfactory to Landlord) at least equal to the tangible net
worth of Tenant immediately prior to such merger, consolidation or
transfer. The term "controlled by" or "commonly controlled with" shall
mean the possession, direct or indirect, of the power to direct, or the
cause the direction of, the management and policies of such controlled
person or entity; the ownership, directly or indirectly, of more than
fifty percent (50%) of the voting securities of, or possession of the
right to vote, in the ordinary direction of its affairs, more than fifty
percent (50%) of the voting interest in, any person or entity shall be
presumed to constitute such control.
6. Renewal Option. Section 2 of Exhibit C of the Lease is hereby
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deleted and is restated in its entirety as follows:
Tenant may at its option extend the Term of this Lease for the
Demised Premises for one (1) additional period of five (5) years
("Extension Term") upon the same terms contained in this Lease, except
for the amount of the Monthly Base Rent Installment and any tenant
improvement allowance payable during the Extension Term.
(a) The Monthly Base Rent Installment during the Extension
Term shall be the then prevailing market rate for equivalent properties
of an equivalent size in the vicinity of the DFW sub-market commencing
on the first day of the Extension Term.
(b) To exercise its option, Tenant must deliver an initial
non-binding notice to Landlord not less than six (6) months and no more
than twelve (12) months prior to the proposed commencement of the
Extension Term. At some point between six (6) and nine (9) months prior
to the proposed commencement of the Extension Term, Landlord shall
calculate and inform Tenant of the Monthly Base Rent Installment for the
Demised Premises. Such calculation shall be final and shall not be
recalculated at the actual commencement of the Extension Term if any.
Tenant shall give Landlord final binding notice of intent to exercise
its option to extend within fifteen (15) days after receiving Landlord's
calculation of the Monthly Base Rent Installment. If Tenant fails to
give either its initial nonbinding notice or its final binding notice
timely, Tenant will be deemed to have waived its option to extend.
(c) Tenant's option to extend this Lease is subject to the
conditions that: (i) on the date that Tenant delivers its final binding
notice exercising its option to extend, there is no Event of Default by
Tenant under this Lease, and (ii) Tenant shall not have assigned this
Lease, or sublet any portion of the Demised Premises under a sublease
which is in effect at any time during the final 12 months prior to the
Extension Term.
7. Right of First Offer. Exhibit C of the Lease is hereby further
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amended by inserting at the end thereof a new Section 4 reading as follows:
4. Right of First Offer.
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(a) "Offered Space" shall mean space on same floor as the
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Demised Premises of the Building, contiguous to the Demised Premises, as
shown on Exhibit A to this Second Amendment.
(b) Provided that as of the date of the giving of the First
Offer Notice (defined below), (i) Tenant is the Tenant originally named
herein, (ii) Tenant actually occupies all of the Demised Premises
originally demised under this Lease and any premises added to the
Demised Premises, and (iii) no Event of Default has occurred and is
continuing, if at any time during the Term any portion of the Offered
Space is vacant and unencumbered by any rights of any third party, then
Landlord, before offering such Offered Space to anyone, other than the
tenant then occupying such space (or its affiliates), shall offer to
Tenant the right to include the Offered Space within the Demised
Premises on the same terms and conditions upon which Landlord intends to
offer the Offered Space for lease. Notwithstanding anything to the
contrary in the Lease, the right of first offer granted to Tenant under
this Section 4 shall be subject and subordinate to (i) the rights of all
tenants at the Project under existing leases, and (ii) the herein
reserved right of Landlord to renew or extend the term of any lease with
the tenant then occupying such space (or any of its affiliates), whether
pursuant to a renewal or extension option in such lease or otherwise.
(c) Such offer shall be made by Landlord to Tenant in a
written notice (hereinafter called the "First Offer Notice") which offer
shall designate the space being offered and shall specify the terms
which Landlord intends to offer with respect to any such Offered Space.
Tenant may accept the offer set forth in the First Offer Notice by
delivering to Landlord an unconditional acceptance (hereinafter called
"Tenant's Notice") of such offer within five (5) business days after
delivery by Landlord of the First Offer Notice to Tenant. Time shall be
of the essence with respect to the giving of Tenant's Notice. If Tenant
does not accept (or fails to timely accept) an offer made by Landlord
pursuant to the provisions of this Section 4 with respect to the Offered
Space designated in the First Offer Notice, Landlord shall be under no
further obligation with respect to such space by reason of this Section
4.
(d) Tenant must accept all Offered Space offered by Landlord
at any one time if it desires to accept any of such Offered Space and
may not exercise its right with respect to only part of such space. In
addition, if Landlord desires to lease more than just the Offered Space
to one tenant, Landlord may offer to Tenant pursuant to the terms hereof
all such space which Landlord desires to lease, and Tenant must exercise
its rights hereunder with respect to all such space and may not insist
on receiving an offer for just the Offered Space.
(e) If Tenant at any time declines any Offered Space offered
by Landlord, Tenant shall be deemed to have irrevocably waived all
further rights under this Section 4, and Landlord shall be free to lease
the Offered Space to third parties including on terms which may be less
favorable to Landlord than those offered to Tenant.
8. Relocation. Section 31 of the Lease is hereby deleted in its
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entirety.
9. Tenant Improvements. The Demised Premises are hereby accepted by
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Tenant in its "AS-IS", "WHERE IS" and "WITH ALL FAULTS" condition and Tenant is
not entitled to any improvement by Landlord or to any other allowance or credit
from Landlord for improvements to the Demised Premises. Notwithstanding the
previous sentence Landlord, at its sole cost and expense, shall install four (4)
mechanical pit levelers at certain dock doors in the Demised Premises, the
location of which will be mutually agreed upon by Landlord and Tenant.
10. Brokers. Tenant hereby represents and warrants to Landlord that
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Tenant has not engaged or dealt with any broker, finder, or agent in connection
with the negotiation and/or execution of this Second Amendment other than
Xxxxxxx & Xxxxxxx ("Tenant's Broker"), and IDI Services Group ("Landlord's
Broker") and, except for Tenant's Broker and Landlord's Broker, Tenant agrees to
indemnify and save Landlord harmless from any claim, demand, damage, liability,
cost or expense (including, without limitation, attorneys' fees) paid or
incurred by Landlord as a result of any claim for brokerage or other commissions
or fees made by any broker, finder, or agent, whether or not meritorious,
employed or engaged or claiming employment or engagement by, through, or under
Tenant. Both Tenant's Broker and Landlord's Broker shall be compensated by
Landlord pursuant to the terms of separate commission agreements.
11. Notices. As of the Effective Date, Landlord's address for
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notices as specified in the Lease, is hereby amended as follows:
Dividend Capital Trust
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
12. Status of Lease Obligations. Tenant acknowledges and certifies
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that as of the date hereof, Landlord has performed all covenants and obligations
on the part of Landlord to be performed under the Lease and that Tenant has no
claims or right of offset against Landlord.
13. Full Force and Effect. Except as expressly modified herein, all
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of the terms and provisions of the Lease shall remain in full force and effect
and binding upon the parties thereto, and Tenant hereby ratifies and confirms
the Lease as modified herein.
14. Capitalized Terms. Capitalized terms used herein that also
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appear in the Lease shall have the same meaning as in the Lease unless otherwise
defined herein.
15. Conflicts. In the event of any conflict between the terms and
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provisions of the Lease and the terms and provisions of this Second Amendment,
the terms and provisions of this Second Amendment shall control.
16. Counterparts/Facsimiles. This Second Amendment may be executed
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in any number of counterparts, each of which shall be deemed an original, and
all of such counterparts shall constitute one agreement. To facilitate execution
of this Second Amendment, the parties may execute and exchange facsimile
counterparts of the signature pages and facsimile counterparts shall serve as
originals.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
The parties have executed this Second Amendment as of the date first
written above, the execution and delivery thereof having been duly authorized.
LANDLORD: TENANT:
DCT DFW, XX Xxxxxxxx Medical Technologies, Inc.
By: DCT DFW GP, LLC, a
Delaware limited liability company,
its general Partner
By: Dividend Capital Operating
Partnership LP, a Delaware limited
partnership, its sole member
By: Dividend Capital Trust Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Senior Vice President President &
Chief Executive Officer
Date: August 17, 2005 Date: August 17, 2005
EXHIBIT A
