EXHIBIT 99.2
Carrinaton Laboratories, Inc. Headquarters Lease, 0000 Xxxxxx Xxxx Xxxx,
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City of Irving, Dallas County, Texas
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of the ____ day of
December, 2005 ("Effective Date"), by and between:
(i) THE XXXXX FAMILY TRUST, dated June 18, 1980, with principal office
and place of business at 0000 Xxxxxx Xxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000,
THE JUICE TRUST, dated January 24, 1996, with principal office and
place of business at 000 Xxxx Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000
(The Xxxxx Family Trust and The Juice Trust collectively being the
"Landlord"); and
(ii) XXXXXXXXXX LABORATORIES, INC., a Texas corporation, with a mailing
address of 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxx 00000 ("Tenant").
WITNESSETH:
Landlord leases to Tenant, for the purpose of operating Tenant's
headquarters office facility and such other uses as may be permitted by this
Lease, and subject to the terms and conditions of the Rent Addendum attached
hereto, and Tenant rents from Landlord the following described premises,
(hereinafter "Premises") located at 0000 Xxxxxx Xxxx Xxxx, Xxxx of Irving,
Dallas County, Texas and being more particularly described in Exhibit "A"
attached hereto and made a part hereof, together with all rights and
privileges appurtenant thereto as may be necessary or convenient to Tenant's
business, inclusive of all easements benefiting the Premises. Premises shall
include all improvements and structures whether now existing or hereafter
constructed thereon, but shall not include Tenant's Property.
The following additional stipulations are hereby declared to be covenants
of this Lease and shall, unless otherwise expressly stated, be applicable at
all times throughout the term of this Lease and any extension or renewal
thereof:
1. DEFINITIONS
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For purposes of this Lease, the following terms shall have the
definitions ascribed to them:
"ADA" shall mean the Americans with Disabilities Act (42 U.S.C. S 12101
et. seq.) and the regulations and Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto, as the same may be amended from time to
time.
"Default" shall have the meaning assigned to such term in Paragraph 13(a)
of this Lease.
"Early Lease Termination Date" shall have the meaning assigned to such
term in Paragraph 19 of this Lease.
"Effective Date" shall mean the date set forth at the beginning of
this Lease.
"Escrow Funds" shall have the meaning assigned to such term in Paragraph
13(g)(i) of this Lease.
"Landlord" shall mean The Xxxxx Family Trust, dated June 18, 1980, and
The Juice Trust, dated January 24, 1996, and their successors and assigns.
"Lease" shall include this Lease Agreement and all amendments hereto,
if any, entered into from time to time hereafter, together with the Rent
Addendum and exhibits attached hereto.
"Lease Termination Fee" shall have the meaning assigned to such term in
Paragraph 19 of this Lease.
"Lease Year" shall mean a fiscal period beginning on the Effective Date
(and each anniversary thereof) and expiring on the last day of the twelfth
(12th) month thereafter. In the event the Effective Date is not the first
(1st) day of a calendar month, then each successive Lease Year shall
commence on the first (1st) day of the calendar month following the
Effective Date.
"Material Taking" shall have the meaning assigned to such term in
Paragraph 6 of this Lease.
"Noxious or Offensive Use" shall have the meaning assigned to such term
in Paragraph 17 of this Lease.
"Permitted Exceptions" shall have the meaning assigned to such term in
Paragraph 9 of this Lease.
"Permitted Use" shall have the meaning assigned to such term in Paragraph
17 of this Lease.
"Premises" shall have the meaning assigned to such term in the Recitals
to this Lease.
"Rent" shall mean the rent payable under this Lease as set forth in the
Rent Addendum attached hereto and incorporated herein, and shall include
Annual Rent (as defined in the Rent Addendum) and all other items described
in this Lease as "additional rent".
"Subleases" shall have the meaning assigned to such term in Paragraph 17
of this Lease.
"Tenant" shall include the named Tenant and any assignee thereof pursuant
to an assignment under and to the extent provided in Paragraph 17 of this
Lease.
"Tenant's Condemnation Claims" shall have the meaning assigned to such
term in Paragraph 6(c) of this Lease.
"Tenant's Property" shall have the meaning assigned to such term in
Paragraph 3(a)(i) of this Lease.
"Termination Date" shall have the meaning assigned to such term in
Paragraph 2(a) of this Lease.
2. TERM AND RENT
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(a) Term. The term of this Lease shall begin on the Effective Date and
shall expire at midnight on that date which is fifteen (15) years following
the Effective Date (hereinafter the "Termination Date"), unless previously
terminated or renewed or extended as provided herein. In the event that
the Effective Date is not the first day of a calendar month, then the
Termination Date shall be that date which is fifteen (15) years following
the first day of the calendar month immediately following the month in
which the Effective Date shall occur
(b) Rent. Rent shall be due and payable as provided in the Rent
Addendum attached hereto and incorporated herein.
3. ALTERATIONS AND IMPROVEMENTS INVESTMENT TAX CREDIT MECHANIC'S LIENS,
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LANDLORD'S DISCLAIMER
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(a) Alterations and Improvements.
(i) Tenant's Property. Tenant shall be permitted to install, use on and
about, and remove from the Premises at any time and from time to time all
trade fixtures and other personal property (exclusive of lighting,
electrical, and heating and air conditioning improvements) which are not
a component of the building located or to be located on the Premises
(hereinafter referred to as the "Tenant's Property"), all of which at all
times shall remain the property of Tenant with the right of removal (subject
to Paragraph 3(d) below) at the expiration of this Lease. Tenant's Property
shall include: (1) removable decor items and office equipment; (2) building
lettering, signs, sign posts, and sign standards; (3) unattached laboratory
equipment; and (4) laboratory equipment attached to the building by bolts
and screws and/or by utility connections, including without limitation,
walls-in refrigerators and freezers, remote refrigeration systems, exhaust
systems and hoods, and water heaters
(ii) Subsequent Improvements. In addition to Tenant's rights with
respect to Tenant's Property as set forth in Paragraph 3(a)(i) above, Tenant
shall also have the right to make any additions, alterations, changes and
improvements, structural and nonstructural, including but not limited to
construction of additional buildings and additions to the then existing
buildings, as Tenant shall desire; provided, however, (A) for all structural
changes, or for any changes or improvements costing in excess of One Hundred
Fifty Thousand Dollars ($150,000.00), (i) Tenant shall submit plans of all
changes to Landlord at least thirty (30) days in advance of the proposed
construction date, which plans shall be subject to Landlord's reasonable
approval, and (ii) Tenant shall provide Landlord with reasonable evidence of
Tenant's financial ability to pay for such changes; (B) all such
construction shall be completed in a workmanlike manner and in material
compliance with all laws (including without limitation the ADA), building
codes and ordinances applicable thereto, and, at Tenant's sole expense, in
compliance with any applicable recommendations set forth in that certain
Phase I Environmental Site Assessment Report dated November 14, 2005, and
prepared by EBI Consulting, as EBI Project #11054342 (including, without
limitation, any applicable Operations and Maintenance Plan obtained or
developed pursuant thereto), and (C) such additions, alterations, changes
and improvements (whether structural or non-structural) shall not reduce
the square footage of the buildings on the Premises. Landlord must approve
or disapprove the changes within thirty (30) days following receipt of
the plans or the plans will be deemed approved provided that there is a
conspicuous notation upon said plans advising Landlord of the consequences
of its failure to respond within the aforesaid thirty (30) days.
Notwithstanding anything to the contrary contained in the foregoing, Tenant
shall be obligated to furnish Landlord with prior written notice of any
proposed alteration, addition or improvement to the Premises regardless of
whether Landlord's consent is required therefor.
(iii) Upon Termination, Subletting or Assignment. Subject to the
requirements of this Paragraph 3, Tenant shall have the right, at its option
and expense, to redecorate or otherwise remodel the Premises upon any
termination hereof or upon any permitted subletting or assignment in such
manner as will avoid the appearance of the Tenant's headquarters office
facility operated under this Lease, or enable the Premises to be used for a
Permitted Use; provided, however, that in addition to the other requirements
of this Xxxxxxxxx 0, Xxxxxx shall not impair the structural condition of the
Premises, or reduce the square footage of the buildings on the Premises.
(iv) Landlord's Property. Upon termination, subletting, or assignment
referred to in Paragraph 3(a )(iii) above, (A) all improvements except for
Tenant's Property, (B) unless Landlord and Tenant have agreed otherwise in
advance of installation or construction, all subsequent improvements
referred to in Paragraph 3(a)(ii) above, and (C) any and all other
additions, alterations, changes and improvements of any type, shall be
deemed to be a part of the Premises and the sole property of Landlord.
(b) Mechanic's and Other Liens. Tenant shall not do or suffer anything
to be done whereby the Premises, or any part thereof, may be encumbered by a
mechanic's, materialman's, or other lien for work or labor done, services
performed, materials, appliances, or power contributed, used, or furnished
in or to the Premises or in connection with any operations or any other
activity of Tenant. If, whenever and as often as any lien is filed against
the Premises, or any part thereof, purporting to be for or on account of any
labor done, materials or services furnished in connection with any work in
or about the Premises, done by, for or under the authority of Tenant, or
anyone claiming by, through or under Tenant, Tenant shall discharge the same
of record within thirty (30) days after service upon Tenant of notice of the
filing thereof; provided, however, Tenant shall have the right to (i) remove
the lien as an encumbrance upon the Premises by bonding same in accordance
with applicable law, and (ii) contest any such lien, provided that Tenant
shall diligently prosecute any such contest. Tenant shall at all times
effectively stay or prevent any official or judicial sale of the Premises
under execution or otherwise, and, if unsuccessful, satisfy any final
judgment against Tenant adjudging or enforcing such lien or, if successful,
procure record satisfaction or release thereof.
(c) Landlord's Disclaimer. All of Tenant's Property placed in or upon
the Premises by Tenant shall remain the property of Tenant with the right
to remove and replace the same at any time during the term of this Lease.
Landlord, if requested by Tenant, agrees to execute and deliver a statement
acknowledging that Landlord has no security interest in Tenant's Property.
(d) Asbestos Survey. In the event that Tenant restores, repairs,
alters, renovates, or improves the Premises as provided under this Lease
(including without limitation under Paragraphs 3, 4, 5 and 6 of this Lease)
which includes the demolition, cutting into or other material disturbance of
the improvements on the Premises that could reasonably result in the release
of asbestos, then Tenant shall provide prior written notification thereof to
Landlord, and shall conduct, or cause to be conducted, a complete asbestos
survey (including the collection and laboratory analysis of any and all
suspect material) of the Premises prior to any such restoration, repair,
alteration, renovation or improvement to the Premises. Any disturbance or
removal of asbestos or repairs to the Premises resulting from the findings
of said survey shall comply with all applicable laws and shall be at
Tenant's sole cost and expense. Tenant shall provide to Landlord a copy
of any reports obtained by Tenant in connection with such asbestos survey.
4. DESTRUCTION OF PREMISES INSURANCE
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(a) If the Premises or the building located upon the Premises are
totally destroyed or so damaged that rebuilding or repairs cannot be
completed within two hundred seventy (270) days after the date of such
damage (as reasonably estimated by Landlord's architect), Tenant may
terminate this Lease by providing written notice to Landlord within thirty
(30) days following the damage. If this Lease is terminated by Tenant, Rent
will be abated during the unexpired portion of this Lease, effective upon
the date of the occurrence of such damage; and Tenant will assign its rights
in the insurance proceeds applicable to the Building to Landlord. All
insurance proceeds applicable to Tenant's Property will remain the property
of Tenant. If the repair and/or restoration of the Premises or the Building
can be completed within two hundred seventy (270) days after the date of
such damage (and Tenant has not otherwise terminated this Lease to the
extent it has the right so to do), this Lease shall continue in full force
and effect; and Tenant shall, as promptly as possible, restore, repair or
rebuild the Premises to substantially the same condition as it existed
before the damage or destruction, including any improvements or alterations
required to be made by any governmental body, county or city agency, due to
any changes in code or building regulations. Tenant shall for this purpose
use all, or such part as may be necessary, of the insurance proceeds
received from insurance policies required to be carried under the provision
of Paragraph 4(b) of this Lease. If such insurance proceeds are not
sufficient to pay such costs, Tenant shall pay such deficit. Tenant shall
not have the right to terminate this Lease as provided above in this
Paragraph 4(a) unless (i) the damage or destruction of the Premises was
caused by a peril which was insured against as required by the provisions
of Paragraph 4(b) of this Lease; and (ii) at the time of such damage and
destruction the said insurance policies required to be carried by Tenant
were in the amount of the full replacement cost of such improvements and
in full force and effect; (iii) the insurer has confirmed coverage and
its obligation to pay; and (iv) Tenant pays to Landlord the amount of any
deductible under said insurance policies applicable to such damage and
destruction. If Tenant defaults in its obligation to carry insurance in the
amounts required under Paragraph 4(b) of this Lease, then, prior to Tenant's
termination of this Lease and in addition to the requirements set forth in
the preceding sentence, Tenant shall be obligated to pay toward said
reconstruction or to Landlord the difference between the amount of insurance
proceeds actually paid and the insurance proceeds which would have been made
available if the insurance required to be carried under Paragraph 4(b) were
in effect as of the date of such casualty.
(b) Tenant, at its expense and as additional rent hereunder, shall
throughout the term of this Lease and any extension or renewal thereof, keep
the Premises insured with (i) "Special Form Causes of Loss" coverage (as
such term is used in the insurance industry), at least as broad as the most
commonly available ISO Special Cause of Loss Form, including coverage for
glass breakage, vandalism and malicious mischief, and builder's risk (if the
Premises are to be constructed pursuant to the terms of this Lease) for one
hundred percent (100%) insurable replacement value with no co-insurance
penalty, with any deductible in excess of Fifty Thousand Dollars
($50,000.00) per occurrence to be approved by Landlord and, (ii) "Ordinance
and Law Coverage" with limits of (i) not less than the building value for
Coverage A (loss to the undamaged portion of the building), (ii) not less
than fifteen percent (15%) of the building value for Coverage B (Demolition
Cost Coverage), and (iii) not less than fifteen percent (15%) of the
building value for Coverage C (Increased Cost of Construction Coverage).
(c) Tenant shall maintain throughout the term of this Lease and any
extension thereof, at its own expense and as additional rent, commercial
general liability insurance covering the Premises at least as broad as the
most commonly available ISO Commercial General Liability policy form
(occurrence basis) covering bodily injury, property damage and personal
and advertising injury, for the joint benefit of and insuring Tenant and
Landlord, with limits not less than Ten Million Dollars ($10,000,000.00) per
occurrence, with a general aggregate of not less than Ten Million Dollars
($10,000,000.00), with any deductible in excess of Twenty-Five Thousand
Dollars ($25,000.00) to be approved by Landlord.
(d) Tenant shall maintain throughout the term of this Lease and any
extension thereof, at its own expense, business interruption insurance
covering risk of loss due to the occurrence of any of the hazards insured
against under Tenant's "all risk" coverage insurance and providing coverage
in an amount sufficient to permit the payment of Rents, taxes, insurance and
operating expenses payable hereunder for a period (in such case) of not less
than twelve(12) months.
(e) Tenant shall maintain throughout the term of this Lease and any
extension thereof, at its own expense, worker's compensation insurance as
and to the extent required by applicable law.
(f) In the event the Premises are located in an area identified by the
National Flood Insurance Program as an area having "special flood hazards"
(zones beginning with "A" or "V"), Tenant shall maintain throughout the term
of this Lease and any extension thereof, flood insurance for Premises to the
maximum limits available from the National Flood Insurance Program, with any
deductible in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) to
be approved by Landlord.
(g) In the event the Premises are located in a major earthquake damage
area and earthquake insurance is available, Tenant shall maintain throughout
the term of this Lease, and any extension thereof, earthquake insurance for
the full replacement value of the Premises, with any deductible in excess of
Fifty Thousand Dollars ($50,000.00) to be approved by Landlord.
(h) Tenant shall maintain such other insurance on or in connection
with the Premises as reasonably required from time to time by Landlord, or
Landlord's lender, which is commonly obtained in connection with properties
similar to and in the same area as the Premises and which is commercially
reasonable to obtain.
(i) All insurance companies providing the coverage required under this
Paragraph 4 shall be selected by Tenant and shall be rated A minus (A-) or
better by Best's Insurance Rating Service (or equivalent rating service if
not available), shall be authorized to write insurance policies in the state
in which the Premises is located, and shall be acceptable to Landlord in
Landlord's reasonable discretion. Tenant shall provide Landlord with copies
of all policies or certificates of such coverage for the insurance coverages
referenced in this Paragraph 4, and all commercial general liability and
umbrella liability or excess liability policies shall name Landlord (and if
Landlord is either a general or limited partnership, all general partners)
and any mortgagee designated by Landlord as an additional insured. Any such
coverage for additional insureds shall be primary and non-contributory with
any insurance carried by Landlord or any other additional insured hereunder.
All property insurance policies shall name Landlord (and if Landlord is
either a general or limited partnership, all general partners) as an
additional insured and shall provide that all losses shall be payable as
herein provided. Any mortgagee designated by Landlord in a written notice
to Tenant must be named on the policy as a mortgagee with respect to real
property and/or as a lender's loss payee with respect to personal property
and shall provide that all losses be payable as herein provided. All such
policies of insurance shall provide that the amount thereof shall not be
reduced and that none of the provisions, agreements or covenants contained
therein shall be modified or canceled by the insuring company or companies
without ten (10) days prior written notice being given to Landlord.
(j) In the event of a casualty in which the insurance proceeds are
One Hundred Thousand Dollars ($100,000.00) or less, all insurance proceeds
shall be paid directly to Tenant. In the event of a casualty in which the
insurance proceeds are greater than One Hundred Thousand Dollars
($100,000.00), all insurance proceeds relating to property insurance (and
not general liability) shall be paid by check jointly payable to Landlord
and any mortgagee designated by Landlord, and held in Trust for the benefit
of Tenant, and made available to Tenant to pay for repair and restoration of
the Premises. Except as provided in this Lease, following a casualty, Tenant
shall cause the Premises to be restored and repaired as provided in this
Lease, whether or not the insurance proceeds are sufficient to pay for such
restoration. In the event the insurance proceeds are not sufficient to pay
for the restoration of the Premises according to the terms of this Lease,
the Tenant shall pay the difference between the total cost of the
restoration and any insurance proceeds before any insurance proceeds shall
be applied to the restoration. Such policy or policies of insurance may
also cover loss or damage to Tenant's Property, and the insurance proceeds
applicable to Tenant's Property shall not be paid to Landlord or any
mortgagee but shall accrue and be payable solely to Tenant.
5. MAINTENANCE AND REPAIR
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(a) Tenant shall, during the term of this Lease and any renewals
thereof, (i) maintain the Premises and all buildings and improvements
thereon (interior and exterior, structural and otherwise and including,
without limitation, the roof, foundation, floor slab and parking areas)
in good order and repair; (ii) not commit waste or permit impairment or
deterioration of the Premises (normal wear and tear excepted); (iii) keep
Tenant's Property in good repair and replace trade fixtures, equipment,
machinery and appliances on the Premises when necessary to keep such
items in good repair; (iv) comply in all material respects with all laws,
ordinances, regulations and requirements of any governmental body applicable
to the Premises; (v) provide prompt notification to Landlord of any material
adverse changes to the Premises of which Tenant has knowledge, such as
material changes in any enviromnental condition, including the presence
of biocontaminants, such as, but not limited to mold, and shall promptly
undertake reasonable remediation (and preventative) actions in connection
therewith; and (vi) subject to the provisions of Paragraph 4(a) and
Paragraph 6 herein, return the Premises and all buildings and improvements
thereon at the expiration of the term of this Lease or any extension thereof
in as reasonably as good condition as when received, ordinary wear and tear
excepted.
(b) Tenant agrees that Landlord shall have no obligation under this
Lease to make any repairs or replacements (including the replacement of
obsolete components) to the Premises or the buildings or improvements
thereon, or any alteration, addition, change, substitution or improvement
thereof or thereto, whether structural or otherwise. The terms "repair"
and "replacement" include, without limitation, the replacement of any
portions of the Premises which have outlived their useful life during the
term of this Lease (or any extensions thereof). Landlord and Tenant intend
that the Rent received by Landlord shall be free and clear of any expense
to Landlord for the construction, care, maintenance (including common area
maintenance charges and charges accruing under easements or other agreements
relating to the Premises), operation, repair, replacement, alteration,
addition, change, substitution and improvement of or to the Premises and any
building and improvement thereon. Upon the expiration or earlier termination
of this Lease, Tenant shall remain responsible for, and shall pay to
Landlord, any cost, charge or expense for which Tenant is otherwise
responsible for hereunder attributable to any period (prorated on a daily
basis) prior to the expiration or earlier termination of this Lease.
(c) Tenant acknowledges and agrees that the Premises are and shall
be leased by Landlord to Tenant in its present "AS IS" condition, and that
Landlord makes absolutely no representations or warranties whatsoever with
respect to the Premises or the condition thereof. Tenant acknowledges that
Landlord has not investigated and does not warrant or represent to Tenant
that the Premises are fit for the purposes intended by Tenant or for any
other purpose or purposes whatsoever, and Tenant acknowledges that the
Premises are to be leased to Tenant in their existing condition, i.e.,
"AS IS", on and as of the Effective Date.
(d) Reference is hereby made to that Property Condition Report dated
November 11, 2005, and prepared by EBI Consulting Project #11054342 (the
"Property Condition Report"). In addition to, and not in lieu of, Tenant's
other maintenance, repair and replacement obligations set forth in this
Lease, Tenant shall be obligated to perform the maintenance, repair and
replacement obligations described in the Property Condition Report as
requiring immediate maintenance, repair or replacement by no later than
ninety (90) days following the Effective Date. To the extent Tenant performs
any maintenance, repair or replacement that may be recommended in the
Property Condition Report (whether the same be immediate or otherwise),
Tenant shall furnish to Landlord reasonably satisfactory evidence of the
completion of such maintenance, repair and replacement obligations promptly
following the completion of one or more aspects of the same, together with
copies of paid invoices relating to the same.
6. CONDEMNATION
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(a) In the event of a Material Taking during the term of this Lease
or any extension or renewal thereof, Tenant shall have the option of
terminating this Lease as of a date no earlier than the date of such Taking,
such termination date to be specified in a notice of termination which must
be given by Tenant to Landlord not later than the last to occur of (i)
fourteen (14) days prior to the date of the Taking or the date on which
possession of the Premises, or part thereof, must be surrendered to the
condemning authority or its designee, whichever is earlier, or (ii) thirty
(30) days after Landlord advises Tenant in writing as to such condemnation,
and describing the extent and terms of the Taking.
As used here in, "Taking" shall mean shall mean (a) any taking of all
or any part of the Premises for any public or quasi public use under any
governmental law, ordinance, regulation or by right of eminent domain, or
(b) any sale to the condemning authority under threat of condemnation.
"Material Taking" shall mean (i) a Taking of more than 20% of the building
on the Premises, or more than 20% of the parking spaces on the Premises, or
more than 40% of the land), or (ii) a Taking, following which Tenant can
demonstrate to Landlord's reasonable satisfaction that the Premises cannot
be operated for the Permitted Use in a manner which does not, as the sole
result of such condemnation, materially increase the cost of Tenant's
business operations in the Premises, or (iii) if all reasonable access to
the adjacent roadways from the existing or comparable curb cuts shall be
taken, or (iv) a Taking that results in the Premises failing to satisfy
applicable zoning requirements or any restrictive covenants applicable to
the Premises and Tenant, using reasonable efforts, is unable to obtain a
waiver or variance thereof.
(b) In the event of any Taking which does not give rise to an option to
terminate, or in the event of a Taking which does give rise to an option to
terminate and Tenant does not elect to terminate, Landlord shall be entitled
to the compensation awarded and shall, to the extent required, make the
award available to Tenant and Tenant shall, to the extent of the award from
such Taking (which term "award" shall mean the net proceeds awarded by a
court or net purchase price under a sale in lieu of condemnation after
deducting expenses reasonably incurred by Landlord in the settlement or
trial of the eminent domain matter, including, but not limited to, third
party costs incurred by Landlord in connection therewith), promptly restore
or repair the Premises and all improvements thereon (except those items of
Tenant's Property which Tenant is permitted to remove under the terms of
this Lease) to the same condition as existed immediately prior to such
Taking insofar as is reasonably possible. If the estimated cost of
restoration or repair shall exceed the amount of Landlord's award, at
Landlord's election, (i) Tenant shall deposit with Landlord the amount of
such excess (the "Excess Deposit") in which event Tenant shall receive a
dollar for dollar credit in the amount of such Excess Deposit against the
next maturing installments of Rent payable hereunder or (ii) Landlord shall
be responsible for funding the amount by which the cost of restoration or
repair exceeds the amount of Landlord's award. The award and any excess
shall be held in trust by Landlord and used, to the extent required, for the
purpose of such restoration or repair. A just and proportionate part of the
Rent payable hereunder shall be abated from the date of such Taking until
ten (10) days after Tenant has restored same and thereafter the Rent shall
be reduced in proportion to the reduction in the then rental value of the
Premises after the Taking in comparison with the rental value prior to the
Taking. If the award shall exceed the amount spent or to be spent promptly
to effect such restoration, repair or replacement, such excess shall
unconditionally belong to Landlord and shall be paid to Landlord.
(c) In the event of any partial Taking where this Lease is not
terminated, Tenant shall have the right to recover from the condemning
authority (i) any compensation attributable to any improvements constructed
by Tenant on the Premises subsequent to the effective date of this Lease
that result in an expansion of the Building or the addition of new buildings
or related improvements on the Premises and (ii) such compensation as is
specifically awarded to Tenant (A) to reimburse Tenant for any cost which
Tenant may incur in removing Tenant's Property from the Premises or for
the loss of Tenant's Property in the Taking, and (B) for loss of Tenant's
business (collectively, "Tenant's Condemnation Claims"). Except as set forth
in the preceding sentence, Tenant shall not be entitled (except for use in
reconstruction) to any part of the compensation or award given Landlord for
the Taking of the fee of the Premises or any damages resulting therefrom.
(d) If this Lease is terminated by reason of a Taking, then Landlord
shall be entitled to receive the entire award in any such condemnation or
eminent domain proceedings or purchase in lieu thereof, exclusive of
Tenant's Condemnation Claims, and Tenant hereby assigns to Landlord all
of its right, title and interest in and to all and any part of such award,
exclusive of Tenant's Condemnation Claims. Landlord shall further be
entitled to direct and control any settlement negotiations or litigation
relating to eminent domain proceedings or purchase in lieu thereof except
with respect to Tenant's Condemnation Claims, and Tenant hereby assigns to
Landlord all of its right or interest in such negotiations or litigation,
except with respect to Tenant's Condemnation Claims. Tenant shall be
entitled to receive any award specifically awarded to Tenant for Tenant's
Condemnation Claims.
7. TAXES AND ASSESSMENTS
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(a) Tenant shall pay prior to delinquency all taxes and assessments
which may be levied upon or assessed against the Premises and all taxes and
assessments of every kind and nature whatsoever arising in any way from the
use, occupancy, possession or transfer of ownership (excluding, however, any
documentary stamp or transfer taxes incurred by Landlord (or a successor
landlord) in connection with a transfer of ownership) of the Premises or
assessed against the improvements situated thereon, together with all taxes
levied upon or assessed against Tenant's Property. To that end, Landlord
shall not be required to pay any taxes or assessments whatsoever which
relate to or may be assessed against this Lease, the Rent and other amounts
due hereunder, the Premises, improvements and Tenant's Property; provided,
however, that any taxes or assessments which may be levied or assessed
against the Premises for a period ending after the termination hereof shall
be prorated between Landlord and Tenant as of such date. Landlord shall be
solely responsible for payment of any (i) income, profit or similar tax that
may be imposed upon or assessed against Landlord with respect to the Rent
and income derived from this Lease, under any law now in force or hereafter
enacted, or (ii) any inheritance, estate, succession, gift or any form of
transfer tax which may be assessed or levied on a transfer of the Premises
(excluding any real estate assessments based on value after a transfer to a
third party), or (iii) assessments pursuant to restrictive covenants which
are not Permitted Exceptions or otherwise approved in writing by Tenant.
(b) Within thirty (30) days after Tenant receives the paid receipted tax
bills for the Premises, Tenant shall furnish Landlord with copies thereof.
Tenant may, at its option, contest in good faith and by appropriate and
timely legal proceedings any such tax and assessment; provided, however,
that Tenant shall indemnify and hold harmless Landlord from any loss or
damage resulting from any such contest, and all reasonable third party
expenses of same (including, without limitation, all reasonable third party
attorneys' and paralegal fees, court and other costs) shall be paid solely
by Tenant. Notwithstanding the foregoing, in no event shall Tenant be
obligated to pay or indemnify Landlord with respect to any loss, damage or
expense arising from the gross negligence or willful misconduct of Landlord.
8. COMPLIANCE, UTILITIES, SURRENDER
(a) Tenant, at its expense: shall promptly comply in all material
respects with all municipal, county, state, federal and other governmental
requirements and regulations (including but not limited to the requirements
and regulations of the ADA) applicable to the Premises, whether or not
compliance therewith shall require structural or other changes in the
Premises, but only to the extent Tenant is permitted under this Lease to
make such required changes; will procure and maintain all permits, licenses
and other authorizations required for the use of the Premises or any part
thereof then being made and for the lawful and proper installation,
operation and maintenance of all equipment and appliances necessary or
appropriate for the operation and maintenance of the Premises; and shall
comply in all material respects with all easements, restrictions,
reservations and other instruments of record applicable to the Premises
which constitute Permitted Exceptions or have been otherwise approved in
writing by Tenant, including without limitation, any requirement in such
instruments on behalf of the owner or occupant of the Premises to procure
and maintain insurance. Tenant shall indemnify and save Landlord harmless
from all expenses and damages by reason of any notices, orders, violations
or penalties filed against or imposed upon the Premises, or against Landlord
as owner thereof, because of Tenant's failure to comply with this paragraph,
except to the extent arising from Landlord's gross negligence or willful
misconduct.
(b) Tenant shall pay all charges for heat, water, gas, sewage,
electricity and other utilities used or consumed on the Premises and shall
contract for the same in its own name. Landlord shall not be liable for any
interruption or failure in the supply of any such utility service to the
Premises except to the extent caused by Landlord's willful misconduct, or by
the affirmative, voluntary actions of Landlord (unrelated to an emergency
situation) which cause termination of any such utility service without
Tenant's prior consent.
(c) Tenant shall peacefully surrender possession of the Premises, the
buildings and other improvements thereon to Landlord at the expiration, or
earlier termination, of the original term or any extended or renewed term of
this Lease. No act by Landlord shall be deemed an acceptance of a surrender
of the Premises (including, without limitation, a claim or assertion of a
surrender by operation of law or similar claim or assertion), and no
agreement to accept a surrender of the Premises shall be valid unless it is
in writing and signed by Landlord.
9. QUIET ENJOYMENT
---------------
Landlord covenants and warrants that Landlord has full power and
authority to enter into this Lease, and that Tenant shall have and enjoy
full, quiet and peaceful possession of the Premises, its appurtenances and
all rights and privileges incidental thereto during the term hereof and any
renewals or extensions, subject to the provisions of this Lease and the
matters on Exhibit "E" attached hereto (the "Permitted Exceptions") and any
other matters specifically approved by Tenant in writing. Landlord agrees to
cause the holder of any mortgage now or hereafter relating to the Premises
to execute and deliver to Tenant a Subordination and Nondisturbance
Agreement substantially in the form contemplated by Paragraph 18 of this
Lease and attached to this Lease as Exhibit "C", as such form may be revised
in connection with the reasonable comments of Landlord's mortgagee.
Notwithstanding the foregoing, however, upon reasonable prior notice,
but in no event less than twenty-four (24) hours (except in the case of an
emergency), Landlord may enter the Premises during Tenant's business hours
for purposes of inspection, and to show the Premises to prospective
purchasers, lenders and, during the last six (6) months of the Term,
tenants.
10. OPTION TO RENEW
---------------
Provided Tenant is not in Default of this Lease either at the time of
exercise of an option term, or at the commencement of an option term, Tenant
shall have two (2) successive five (5) year options to extend this Lease for
up to an additional ten (10) years in total (each such option term being for
five (5) years) upon the same terms, covenants, and conditions as set forth
herein provided and rental at the rate determined in accordance with
Paragraph 3 of the Rent Addendum. In the event Tenant elects to exercise
each such five (5) year option(s), Tenant shall give written notice to
Landlord thereof not less than one hundred eighty (180) days prior to the
Termination Date, or the expiration of the first option term, if applicable.
Should Tenant fail to give Landlord such timely written notice during the
required period, this Lease shall terminate on the Termination Date.
11. [INTENTIONALLY OMITTED]
-----------------------
12. TENANT REPRESENTATIONS
----------------------
Tenant hereby represents and warrants to Landlord, as of the Effective
Date, as follows:
(a) Tenant is duly organized and validly existing under the laws of the
state of its formation. Tenant has the power, and its representatives have
been duly authorized, to enter into the transactions contemplated by this
Lease, and all necessary approvals required to consummate this Lease have
been obtained.
(b) Tenant has not received written notice of any threatened and there
is no pending litigation relating to Tenant or any affiliate of Tenant which
might affect in any material respect either the performance by Tenant of
its obligations under this Lease or the operation of Tenant's contemplated
business on the Premises, or which might have a material adverse affect upon
the financial condition of Tenant.
(c) To Tenant's knowledge, Tenant is not in material violation of any
agreement, law, ordinance, regulation, ruling, court order or other
governmental enactment regarding the Premises, and performance by Tenant
with its obligations under this Lease will not place Tenant in violation
of any such matter in any material respect.
(d) This Lease has been duly executed and delivered by Tenant,
constitutes the valid and binding obligation of Tenant, and is enforceable
against Tenant according to its terms.
(e) To Tenant's knowledge, neither Tenant nor its affiliates are in
violation of any laws relating to terrorism or money laundering, including
Executive Order No. 13224 on Terrorist Financing (effective September 24,
2001, (the "Executive Order") and the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Public Law 107-56, the "Patriot Act"). Neither Tenant nor its
affiliates is a "Prohibited Person," which is defined as follows: (i) a
person or entity that is listed in the Annex to, or is otherwise subject to
the provisions of the Executive Order and relating to Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism; (ii) a person or entity owned or controlled by, or acting
for or on behalf of, any person or entity that is listed in the Annex to, or
is otherwise subject to the provisions of, the Executive Order; (iii) a
person or entity with whom Landlord is prohibited from dealing or otherwise
engaging in any transaction by any terrorism or money laundering law,
including the Executive Order and the Patriot Act; (iv) a person or entity
who commits, threatens or conspires to commit or supports "terrorism" as
defined in the Executive Order; (v) a person or entity that is named as a
"specially designated national and blocked person" on the most current list
published by the U.S. Treasury Department Office of Foreign Assets Control
at its official website, xxxx://xxx.xxxxx.xxx/xxxx/xxxxxx.xxx or at any
replacement website or other replacement official publication of such list;
and (vi) a person or entity who is affiliated with a person or entity listed
above. Neither Tenant nor any of its affiliates is or will, knowingly (i)
conduct any business or engage in any transaction or dealing with any
Prohibited Person, including the making or receiving any contribution of
funds, goods or services to or for the benefit of any Prohibited Person,
(ii) deal in, or otherwise engage in any transaction relating to, any
property or interests in property blocked pursuant to the Executive Order;
or (iii) engage in or conspire to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in the Executive Order or the Patriot Act.
(f) To Tenant's knowledge, Tenant has not received from any
governmental authority written notice of any material violation of any
document filed of record against the Premises, that has not been corrected.
13. DEFAULT
-------
(a) If any one or more of the following events occur, said event or
events shall hereby be referred to as a "Default":
(i) If Tenant fails to pay Rent or any other charges required under
this Lease when same shall become due and payable, and such failure
continues for ten (10) days or more after written notice from Landlord.
(ii) INTENTIONALLY DELETED.
(iii) If Tenant shall fail to perform or observe any term, condition,
covenant, agreement, or obligation required under this Lease and such
failure continues for thirty (30) days after written notice from Landlord
(except that such thirty (30) day period shall be automatically extended
for such additional period of time as is reasonably necessary to cure such
failure, if such failure of performance cannot be cured within such period,
provided Tenant is in the process of diligently curing the same).
(iv) INTENTIONALLY DELETED.
(v) If Tenant shall make an assignment for the benefit of creditors
or file a petition, in any federal or state court, in bankruptcy or
reorganization, or make an application in any such proceedings for the
appointment of a trustee or receiver for all or any portion of its property.
(vi) If any petition shall be filed under federal or state law against
Tenant in any bankruptcy, reorganization, or insolvency proceedings, and
said proceedings shall not be dismissed or vacated within ninety (90) days
after such petition is filed.
(vii) If a receiver or trustee shall be appointed under federal or state
law for Tenant, or any guarantor of Tenant's obligations hereunder, for all
or any portion of the property of either of them, and such receivership or
trusteeship shall not be set aside within sixty (60) days after such
appointment.
(b) Upon the happening of any one or more of the aforementioned
Defaults which are not cured within the cure period applicable thereto,
if any, Landlord shall have the right, in addition to any other rights
and remedies, to terminate this Lease by giving written notice of same to
Tenant. Upon such notice, this Lease shall cease and expire, and Tenant
shall surrender the Premises to Landlord. Landlord may also terminate
Tenant's right to occupy all or any part of the Premises, with or without
terminating this Lease, and with or without re-entering or repossessing
the Premises. Further, in the event of Tenant's Default under this Lease,
Landlord may, by notice to Tenant, accelerate the monthly installments of
Rent due hereunder for the remaining term of this Lease, in which event
such amount, together with any sums then in arrears, shall immediately
be due and payable to Landlord. If Landlord does accelerate the Rent due
hereunder, then the accelerated Rent shall be equal to the Rent which
accrued prior to the date of termination, plus the Rent that would have
accrued during the balance of the term (not including any renewal term(s)
not theretofore exercised by Tenant) of this Lease (as if this Lease had
not been terminated), less the fair rental value of the Premises for the
corresponding period, plus any and all reasonable expenses which Landlord
may have incurred in re-letting the Premises including, but not limited to,
direct costs incurred by Landlord in re-letting the Premises (including
without limitation property management and site inspection costs),
reasonable alterations to the building to protect the integrity of existing
improvements or to facilitate re-letting of the existing improvements and
the Premises, leasing commissions, construction costs, and reasonable
architectural, engineering, legal and accounting fees. The accelerated Rent
(but not the Rent accrued prior to the date of termination) and the fair
rental value of the Premises shall each be discounted to present value at an
annual interest rate equal to the Prime Rate (as used herein, "Prime Rate"
shall be the prime rate established by the Bank of America, N.A., New York
office, from time to time, or if such rate is no longer published or
available, a comparable interest rate as selected by Landlord in its sole
discretion). The foregoing liquidated damages shall be in lieu of the
payment of loss and damage Landlord may suffer by reason of such termination
as provided above but which shall not be in lieu of or reduce in any way any
amount (including accrued Rent) or damages due to breach of any covenant
(whether or not liquidated) payable by Tenant to Landlord which accrued
prior to the termination of this Lease. Tenant hereby expressly agrees
that its occupation of the Premises after any such termination constitutes
forcible detainer (or equivalent) as is defined by the law in force in the
jurisdiction in which the Premises are located. Tenant further agrees that
in the event of a Default, any monies deposited by Tenant with Landlord, if
any, shall be immediately and irrevocably assigned and released to Landlord
(without further action by Landlord or Tenant) to be applied by Landlord
against any and all of Tenant's obligations under this Lease, in any manner
as Landlord may determine.
(c) If this Lease, or Tenant's right to possess the Premises, shall
terminate as provided hereinabove, Landlord may re-enter the Premises and
remove Tenant, its agents and subtenants, together with all or any of
Tenant's Property, by suitable action at law, or by force. Tenant waives any
right to the service of any notice of Landlord's intention to re-enter and
Landlord shall not be liable in any way in connection with any action it
takes pursuant to this paragraph. Notwithstanding such re-entry or removal,
Tenant's liability under this Lease shall survive and continue.
(d) In case of re-entry, repossession or termination of this Lease,
Tenant shall remain liable for Rent, any additional rent and all other
charges provided for in this Lease for the otherwise remaining term of this
Lease, and any and all third party expenses which Landlord may have incurred
in re-entering the Premises including, but not limited to, alterations to
the building, leasing, construction, architectural, legal and accounting
fees. Landlord shall have the right, but not the obligation, to relet
the whole or part of the Premises upon terms which Landlord, in its sole
discretion, deems appropriate and Tenant shall be responsible for all third
party expenses incurred by Landlord in reletting or attempting to relet and
all rent collected for reletting shall be credited against all of Tenant's
obligations hereunder.
(e) In the event of a Default, Landlord may, at its sole option, enter
upon the Premises, if deemed necessary by Landlord in its sole discretion,
and/or do whatever may be deemed necessary by Landlord in its sole
discretion to cure such failure by Tenant. Tenant shall pay to Landlord
within five (5) business days of Landlord's request, all reasonable third
party costs incurred by Landlord in connection with Landlord's curing of
such failure. In addition to the above costs, in the event Landlord does
not receive payment from Tenant within ten (10) days of the due date, then
interest at the rate of eighteen percent (18%) per annum or, if less, the
highest rate allowable by law, shall be due and payable with respect to such
payment from the due date thereof until Landlord receives such payment.
(f) In the event Landlord engages legal counsel in connection with the
enforcement of any of the terms and provisions of this Lease in connection
with a Default, then, in addition to all other sums due from Tenant to
Landlord under this Lease, Tenant shall pay to Landlord any and all
reasonable third party attorneys' fees, paralegal fees, and legal costs
and reasonable third party expenses incurred by Landlord, whether or not
judicial proceedings are filed, and including on appeal and in any
bankruptcy proceedings, in connection with such Default.
(g) Notwithstanding the foregoing, in the event (i) Tenant fails (beyond
any applicable cure periods set forth herein) to (1) maintain and keep in
full force and effect any or all of the insurance policies required pursuant
to Paragraph 4 of this Lease, or (2) pay when due any and all taxes and
assessments levied or assessed against the Premises, or (ii) of a monetary
Default under this Lease in an amount exceeding the then current monthly
installment of Annual Rent, then in the event Landlord does not terminate
this Lease, and at Landlord's request and in Landlord's sole discretion,
Tenant shall escrow funds for payment of such insurance premiums, taxes and
assessments in the following manner:
(i) Tenant shall immediately pay to Landlord all sums expended by
Landlord, plus an additional three percent (3%) thereof (as an escrow
surplus), for purposes of: (1) bringing current or reinstating or purchasing
the insurance required under Paragraph 4 of this Lease; and/or (2) paying
all taxes and assessments which are past due or currently due. Thereafter,
Tenant shall pay to Landlord on the first (1st) day of each month along with
the monthly payment of Rent a sum (the "Escrow Funds") equal to one-twelfth
(1/12th) of. (A) the yearly premium(s) for the insurance required to be
maintained pursuant to Paragraph 4 of this Lease; and/or (B) the annual
taxes and assessments levied or assessed against the Premises as reasonably
estimated by Landlord, based on the prior year's taxes and assessments
levied or assessed against the Premises.
(ii) Landlord shall apply the Escrow Funds to pay said insurance and/or
taxes and assessments, and Tenant shall be released from its obligation
under this Lease to pay such taxes and insurance to the extent of the Escrow
Funds. No interest shall be payable by Landlord on the Escrow Funds unless
required by applicable law, in which event all such interest shall be first
applied by Landlord to pay such insurance and/or taxes and assessments.
Landlord shall provide to Tenant an annual accounting of the Escrow Funds in
Landlord's standard format showing credits and debits to the Escrow Funds
and the purpose for which each debit to the Escrow Funds was made.
(iii) If the amount of the Escrow Funds held by Landlord at the time of
the annual accounting thereof shall exceed the amount deemed necessary by
Landlord to provide for the payment of insurance and/or taxes and
assessments as they become due, such excess shall be credited to Tenant
against the next monthly installment of Escrow Funds due, and, provided that
Tenant is not then in Default under this Lease, any excess Escrow Funds
greater than such next monthly installment shall be paid by Landlord to
Tenant. If at any time the amount of the Escrow Funds held by Landlord shall
be less than the amount deemed necessary by Landlord to pay the insurance
and/or taxes and assessments as they become due, Tenant shall pay to
Landlord any amount necessary to make up the deficiency within thirty (30)
days after notice from Landlord to Tenant requesting payment thereof.
(iv) The foregoing Escrow Funds arrangement shall terminate if Tenant
fully and faithfully complies with the provisions of this Paragraph 13(e)
for a period of twelve (12) consecutive months. Upon the termination of this
Lease, Landlord shall promptly refund (or credit to Tenant against amounts
due to Landlord in the case of termination due to Tenant's Default) any
Escrow Funds held by Landlord.
(h) The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now or hereinafter provided by law,
and all such rights and remedies shall be cumulative. No action or inaction
by Landlord shall constitute a waiver of any Default, and no waiver of any
Default shall be effective unless it is in writing, signed by Landlord.
14. HOLDING OVER
------------
In the event Tenant remains in possession of the Premises after the
expiration of this Lease without executing a new written lease acceptable
to Landlord and Tenant, Tenant shall occupy the Premises as a tenant from
month to month subject to all the terms hereof (except as modified by this
paragraph), but such possession shall not limit Landlord's rights and
remedies by reason thereof nor constitute a holding over. In the event of
such month to month tenancy, the monthly installment of Annual Rent due for
each such month shall increase to be one hundred twenty-five percent (125%)
of the monthly installment thereof which was payable during the last month
of the term of this Lease.
15. WAIVER OF SUBROGATION
---------------------
Notwithstanding anything in this Lease to the contrary, other than
Tenant's obligations to repair, restore or rebuild described in Paragraph 4
of this Lease, neither party shall be liable to the other for any damage or
destruction of the Premises resulting from fire or other casualty covered
by insurance required of either party hereunder, whether or not such loss,
damage or destruction of the Premises are caused by or results from the
negligence of such party (which term includes such party's officers,
employees, agents and invitees), and each party hereby expressly releases
the other from all total liability for or on account of any said insured
loss, damage or destruction, whether or not the party suffering the loss is
insured against such loss, and if insured whether fully or partially. Each
party shall procure all endorsements of insurance policies carried by it
necessary to protect the other from any right of subrogation and/or
liability in the event of such loss.
16. LANDLORD'S LIEN FOR RENTS
-------------------------
Landlord expressly waives any statutory or contractual security interest
it may have in Tenant's Property now or hereafter located upon the Premises.
17. ASSIGNMENT AND SUBLETTING
-------------------------
(a) Tenant may assign its rights under this Lease to any entity
controlling, controlled by, or under common control with Tenant or with or
into which Tenant is merged or consolidated provided that the assignee
following such assignment has a tangible net worth (exclusive of goodwill)
equal to the greater of (i) the tangible net worth (exclusive of goodwill)
of Tenant as of the Effective Date of this Lease or (ii) Twenty Five Million
and No/100 Dollars ($25,000,000.00). Except as set forth in the preceding
sentence, Tenant may not assign, mortgage or pledge this Lease, voluntarily
or involuntarily, whether by operation of law or otherwise, or sublet any
portion of the Premises at any time to any other person, in each case
without the prior written consent of Landlord, which consent may not be
unreasonably withheld, conditioned, or delayed. Any such purported
assignment or sublease shall be null and void. In the event Landlord
determines in its reasonable discretion that the assignment or subletting
will result in a use of the Premises other than a Permitted Use, Landlord
may, at its sole option (1) approve such assignment or subletting; or (2)
decline to approve such assignment or subletting in which case such
assignment or subletting shall be null and void.
As used herein, "Permitted Use" shall mean the operation by Tenant of
its headquarters office facility and the producing, compounding, and/or
manufacturing of Tenant's products and fulfilling orders for its
manufactured products.
(b) Tenant shall remain liable for all obligations under this Lease
arising both before and after the date of the assignment or sublease, as the
case may be (it being understood, that in all such cases of an assignment,
the Tenant shall be jointly and severally liable with the assignees). In
order to insure that Landlord has adequate time to determine if such
proposed assignment or sublease is a permitted assignment or sublease under
this Lease, Tenant shall provide to Landlord written notice of Tenant's
intent to assign or sublet the Premises, including the salient business
terms of such assignment or subletting, at least fifteen (15) days prior to
the effective date of such assignment or sublease. Furthermore, it shall
not be unreasonable for Landlord to decline to approve an assignment or
subletting if such use is reasonably deemed by Landlord to be a Noxious or
Offensive Use.
(c) If Tenant assigns all its rights and interest under this Lease with
or without Landlord's consent, the assignee under such assignment shall
expressly assume all the obligations of Tenant hereunder arising on or after
the date of such assignment. Each sublease of any of the Premises shall be
subject and subordinate to the provisions of this Lease. No assignment or
sublease shall affect or reduce any of the obligations of Tenant hereunder,
and all such obligations shall continue in full force and effect as
obligations of a principal and not as obligations of a guarantor, as if no
assignment or sublease had been made. No assignment or sublease shall impose
any additional obligations on Landlord under this Lease.
(d) Within ten (10) days after execution and delivery of an assignment
or sublease, Tenant shall deliver to Landlord (i) a copy of the signed
assignment or subletting documents to Landlord, which, in the event of an
assignment, shall be in recordable form and include an assumption by the
assignee of the Tenant's obligations under this Lease which accrue on or
after the effective date of such assignment; (ii) the name, address and
telephone number of such assignee or sublet tenant and a designated contact
person therefor; and (iii) if applicable, a new insurance policy and binder
complying with the terms of this Lease and naming such assignee or sublet
tenant as the tenant of the Premises.
(e) Landlord shall have the absolute right at any time during the
continuance of a Default under this Lease, upon notice to Tenant and any
subtenants, to collect rents and other sums of money payable under any
present or future sublease of all or any portion of this Premises
("Subleases"), to the exclusion of Tenant, and to apply the same to
installments of Rent then due and payable (with any excess payable to
Tenant). Tenant shall not accept any rents under any Sublease more than
thirty (30) days in advance of the accrual thereof nor permit anything to
be done, the doing of which, nor omit or refrain from doing anything, the
omission of which, will or could be a breach of or default in the terms of
any of the Subleases.
(f) In the event of the subletting or assignment of this Lease by Tenant,
one-half (1/2) of any profits received by Tenant, in excess of Rent and
other sums due hereunder and the actual third party costs of such subletting
or assignment, shall be paid to Landlord.
(g) Landlord shall have the right without limitation to sell, convey,
transfer or assign its interest in the Premises or its interest in this
Lease, so long as such transferee assumes all of the Landlord's obligation
under this Lease which arise or accrue from and after the date of the
transfer, and upon such conveyance being completed all covenants and
obligations of Landlord under this Lease accruing thereafter shall cease,
but such covenants and obligations shall run with the land and shall be
binding upon the subsequent landlord or owners of the Premises or of this
Lease. In connection with such a sale and assignment, the transferee may
mortgage the Premises and pledge and assign this Lease to such mortgagee so
long as the mortgagee executes a Subordination, Non-Disturbance Attormnent
Agreement in substantially the form of Exhibit C" to this Lease.
18. SUBORDINATION NON DISTURBANCE ATTORNMENT ESTOPPEL CERTIFICATE
-------------------------------------------------------------
(a) Upon written request of the holder of any mortgage (which term
"mortgage" shall also include deeds of trust) now or hereafter relating to
the Premises, Tenant shall subordinate its rights under this Lease to the
lien thereof and to all advances made or hereafter to be made upon the
security thereof, and Landlord, Tenant and such mortgagee shall execute,
acknowledge and deliver an instrument substantially in the form of Exhibit
"C" attached hereto or in other reasonable form customarily used by such
encumbrance holder to effect such subordination and which is acceptable to
the parties; provided, however, as a condition of all such subordination,
the holder of such mortgage shall be required to execute and deliver the
Subordination, NonDisturbance and Attormnent Agreement in substantially the
form attached hereto as Exhibit "C", which agreement includes, among other
things, the mortgagee's agreement that (i) casualty and condemnation
proceeds shall be held and applied as required by this Lease,
notwithstanding any conflicting provisions in such mortgagee's loan
documents, and (ii) notwithstanding a foreclosure, deed in lieu of
foreclosure, or other exercise of rights under any such first or other
mortgage, Tenant's possession and occupancy of the Premises and the
improvements and its leasehold estate shall not be disturbed or interfered
with, nor shall Tenant's rights and obligations under this Lease be altered
or adversely affected thereby so long as Tenant is not in Default.
(b) Notwithstanding anything in Paragraph 18(a) above to the contrary,
in the event the holder of any such mortgage elects to have this Lease be
superior to its mortgage, then upon notification to Tenant to that effect
by such encumbrance holder, this Lease shall be deemed prior to the lien of
said mortgage, whether this Lease is dated prior or subsequent to the date
of said mortgage, and Tenant shall execute, acknowledge and deliver an
instrument, in the form customarily used by such encumbrance holder and
reasonably satisfactory to Tenant to effect such priority.
(c) In the event proceedings are brought for the foreclosure of, or in
the event of the exercise of the power of sale under any mortgage made by
Landlord encumbering the Premises, or in the event of delivery of a deed
in lieu of foreclosure under such a mortgage, Tenant shall attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as
"Landlord" under this Lease, and upon the request of the purchaser, Tenant
shall execute, acknowledge and deliver an instrument, in form and substance
reasonably satisfactory to such purchaser and Tenant, evidencing such
attornment.
(d) Each party agrees, within ten (10) days after written request by the
other, to execute, acknowledge and deliver to and in favor of any proposed
mortgagee or purchaser of the Premises or with respect to Tenant or Tenant's
Property, an estoppel certificate, substantially in the form of Exhibit "D"
attached hereto, stating, among other things (i) whether this Lease is in
full force and effect, (ii) whether this Lease has been modified or amended
and, if so, identifying and describing any such modification or amendment,
(iii) the date to which Rent and other charges have been paid, (iv) whether
the party furnishing such certificate knows of any default on the part of
the other party under this Lease, or has any claim against such party and,
if so, specifying the nature of such default or claim, and (v) if
applicable, Landlord will provide an accounting of any Escrow Funds then
held by Landlord.
19. USE OF PREMISES
---------------
The use of the Premises shall be limited to the Permitted Use. Tenant
shall have no obligation to continuously operate the Premises, provided,
however, that if the Premises remain continuously unoccupied and no business
is conducted at the Premises for a period of twelve (12) consecutive months
or longer, Landlord may, at its sole and absolute discretion, give written
notice to Tenant that Landlord has elected to terminate this Lease as of a
specified date (if the Premises remains unoccupied as of such date and no
business is being conducted on the Premises) (the "Early Lease Termination
Date"), subject to payment by Tenant to Landlord of an amount equal to six
(6) months of the Annual Rent (at the then current rental rate), plus any
past due rent, past due real estate taxes, and accrued real estate taxes
or assessments prorated through the date of such termination (the "Lease
Termination Fee"). Upon payment to Landlord of the Lease Termination Fee,
Tenant shall have no further obligations under this Lease after the Early
Lease Termination Date. Tenant shall at all times maintain the Premises and
(to the extent business operations are being conducted thereon) operate its
business in compliance with all applicable regulations and requirements of
all county, municipal, state, federal and other govermnental authorities,
and instruments of record affecting the Premises which are now in force or
which are enacted during the term of this Lease with Tenant's consent.
20. NOTICES
-------
All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by certified mail,
return receipt requested, by a nationally recognized overnight courier or
personally delivered, addressed as follows, and any such notice shall be
deemed delivered and received as of the earlier to occur of (i) actual
receipt or (ii) refusal:
If to Landlord: THE XXXXX FAMILY TRUST
0000 Xxxxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
and
THE JUICE TRUST
000 Xxxx Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxx
with copy to: Xxxxxxx Howshaw, Esq.
Miller, Monson, Xxxxxx, Xxxxxxx & Xxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
If to Tenant: XXXXXXXXXX LABORATORIES, INC.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxx Xxxx & Xxxx P.C.
0000 Xxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Any party may change its address for notices by written notice in like
manner as provided in this paragraph and such change of address shall be
effective seven (7) days after the date notice of such change of address is
given. All notices given in accordance with the terms hereof shall be deemed
given when it shall have been received, or upon refusal of delivery.
21. INDEMNIFICATION
---------------
Tenant does hereby indemnify and exonerate and agrees to hold harmless
Landlord against and from all liabilities, losses, obligations, damages,
penalties, claims, costs, charges and third party expenses, including
reasonable third party architects' fees, attorneys' fees, paralegal fees,
and legal costs and expenses incurred by Landlord during the term of this
Lease or any extension or renewal hereof or while Tenant is occupying the
Premises, whether or not judicial proceedings are filed, and including on
appeal and in any bankruptcy proceedings, which may be imposed upon or
asserted against or incurred by Landlord by reason of any of the following
occurring:
(a) any work or thing done in respect of construction of, in or to the
Premises or any part of the improvements now or hereafter constructed on the
Premises;
(b) any use, possession, occupation, operation, maintenance or management
of the Premises or any part hereof,
(c) any breach by Tenant of any of Tenant's obligations under this
Lease;
(d) the condition, including environmental conditions, of the Premises or
any part thereof;
(e) any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, licensees or invitees;
(f) any accident, injury or damage to any person or property occurring
in, on or about the Premises or any part thereof including any sidewalk
adjacent thereto;
(g) any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms or conditions contained in this Lease on
its part to be performed or complied with.
(h) Notwithstanding the foregoing, Tenant's obligations under this
Paragraph 21 shall not extend to (i) matters arising from the gross
negligence or willful misconduct of Landlord or its agents, officers or
employees, (ii) Landlord's costs in administering this Lease except in
connection with a Tenant Default, or (iii) any costs or expenses incurred
in connection with or arising from any financing of the Premises or the
Lease or any securitization of the Premises or the Lease.
THIS LEASE CONTAINS ONE OR MORE INDEMNITIES BY TENANT OF LANDLORD OR ITS
SHAREHOLDERS, DIRECTORS, OFFICERS, PARTNERS, MEMBERS, MANAGERS, EMPLOYEES,
AFFILIATES OR AGENTS THAT MAY INDEMNIFY THE NEGLIGENCE OF THE INDEMNIFIED
PERSON OR PERSONS AND THE INDEMNIFYING PERSON OR PERSONS ACKNOWLEDGE THAT
THIS NOTICE SATISFIES THE REQUIREMENTS OF THE EXPRESS NEGLIGENCE RULE IN
TEXAS.
Landlord does hereby indemnify and exonerate and agrees to hold harmless
Tenant against and from all liabilities, losses, obligations, damages,
penalties, claims, costs, charges and third party expenses, including
reasonable third party architects' fees, attorneys' fees, paralegal fees,
and legal costs and expenses incurred by Tenant during the term of this
Lease or any extension or renewal hereof arising out of the gross negligence
or willful misconduct of Landlord, or Landlord's agents, officers or
employees.
22. COOPERATION
-----------
(a) Landlord shall fully cooperate with Tenant throughout the term of
this Lease to secure or maintain proper zoning, building and other permits
and compliance with all applicable laws. Landlord shall execute any
petitions, requests, applications and the like as Tenant shall reasonably
request in order to obtain any permit, license, variances and approvals
which, in the reasonable judgment of Tenant, are necessary for the lawful
construction and/or operation of Tenant's business on the Premises or the
business of any approved subtenant, provided, however, that Tenant shall
indemnify and save Landlord harmless from any and all expenses, costs,
charges, liabilities, losses, obligations, damages and claims of any type
which may be imposed upon, asserted against or incurred by Landlord by
reason of same, except to the extent caused by the gross negligence or
willful misconduct of Landlord.
(b) Landlord shall have the right, in Landlord's sole discretion, to
enter into an exchange agreement with a qualified intermediary in order
to effectuate a like-kind exchange of the Premises for one or more
other properties. Landlord and Tenant agree that Tenant, at no cost
to Tenant, shall cooperate with Landlord in effecting a like-kind exchange
of the Premises by Landlord pursuant to and in accordance with the
provisions of Section 1031 of the Internal Revenue Code of 1986, as amended,
and the Treasury Regulations promulgated thereunder, so long as such
cooperation will not result in any amendment or alteration to the terms of
this Lease, expand Tenant's obligations under this Lease, or impair any of
Tenant's rights or remedies under this Lease.
23. EXCULPATION
-----------
Landlord shall not be liable to Tenant, Tenant's employees, agents,
invitees, licensees or any other person whomsoever for any injury to person
or damage to property on or about the Premises caused by the negligence or
misconduct of Tenant, its agents, servants or employees or of any other
person entering the building under express or implied invitation by Tenant
or due to any other cause whatsoever, unless caused by the negligence or
neglect of Landlord, its agents, officers, employees or their respective
authorized representatives. Notwithstanding the foregoing or anything set
forth herein, Landlord shall have full personal liability for any Escrow
Funds held by Landlord hereunder and for Landlord's failure to apply such
Escrow Funds as required hereunder.
24. LANDLORD'S LIABILITIES
----------------------
The term "Landlord" as used in this Lease means the owner from time to
time of the Premises. Neither Landlord nor any partner, shareholder or
beneficiary thereof shall have any personal liability with respect to any of
the provisions of this Lease, and if Landlord is in default with respect to
its obligations hereunder, Tenant shall look solely to the Premises and
the equity of Landlord in the Premises. Notwithstanding the foregoing or
anything set forth herein, Landlord shall have full personal liability for
any Escrow Funds held by Landlord hereunder and for Landlord's failure to
apply such Escrow Funds as required hereunder.
25. SUCCESSORS
----------
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective
heirs, legal representatives, successors and assigns.
26. ENTIRE AGREEMENT/MEMORANDUM OF LEASE
------------------------------------
This Lease contains the entire agreement between the parties hereto
and may not be modified in any manner other than in writing signed by the
parties hereto or their successors in interest. A memorandum of this Lease
in the form of Exhibit "F" attached hereto shall be executed by the parties
and shall be recorded in the official records of the county where the
Premises are located.
27. GENDER
------
Whenever the context hereof permits or requires, words in the singular
may be regarded as in the plural and vice-versa, and personal pronouns may
be read as masculine, feminine and neuter.
28. BROKERAGE FEES
--------------
It is understood and agreed that neither party has incurred any real
estate brokerage fees or commissions arising out of this Lease and each
party agrees to hold the other harmless from and against all such fees and
commissions incurred, and costs related thereto including legal fees, as a
result of its own conduct or alleged conduct.
29. CAPTIONS
--------
The captions of this Lease are for convenience only, and do not in any
way define, limit, disclose, or amplify terms or provisions of this Lease or
the scope or intent thereof.
30. NOT A SECURITY ARRANGEMENT
--------------------------
The parties hereto agree and acknowledge that this transaction is not
intended as a security arrangement or financing secured by real property,
but shall be construed for all purposes as a true lease.
31. NET LEASE
---------
It is the intention of the parties hereto that this Lease is and shall
be treated as a triple net lease. Any present or future law to the contrary
notwithstanding, except as expressly set forth in this Lease, this Lease
shall not terminate, nor shall Tenant be entitled to any abatement,
suspension, deferment, reduction, setoff, counterclaim, or defense with
respect to Rent. The parties intend that the obligations of Tenant hereunder
shall be separate and independent covenants and agreements and shall
continue unaffected unless such obligations shall have been modified or
terminated in accordance with an express provision of this Lease.
32. WAIVER
------
No waiver by Landlord of any provision hereof shall be deemed a wavier of
any other provision hereof or of any subsequent breach by Tenant of the same
or any other provision. Landlord's consent to, or approval of, any act as
required hereunder shall not be deemed to render unnecessary the obtaining
of Landlord's consent to or approval of any such subsequent act by Tenant.
The acceptance of Rent hereunder by Landlord shall not be a waiver of any
preceding Default by Tenant of any provision hereof, other than the failure
of Tenant to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such Rent.
33. TIME OF THE ESSENCE
-------------------
Landlord and Tenant agree that time shall be of the essence of all terms
and provisions of this Lease.
34. GOVERNING LAW
-------------
This Lease shall be construed in accordance with the laws of the state in
which the Premises are located.
35. LEASE SECURITIZATION
--------------------
Landlord reserves the right to assign, transfer, participate, pledge,
hypothecate or encumber, or any combination thereof, all or any part of
Landlord's interest in this Lease or any of the collateral and documents
described herein or related hereto without Tenant's consent, but subject to
the terms and conditions of this Lease. Tenant acknowledges that Landlord
has advised Tenant that Landlord intends to offer the Premises and this
Lease as part of an investment sale/ lease securitization program. Tenant
(a) agrees, at Landlord's sole cost and expense, to cooperate in good faith
with Landlord's reasonable requests relating to the sale or securitization
program process and requirements, (b) agrees and acknowledges that all
required financial information relating to Tenant may be made available
by Landlord to purchasers of the Premises or participants in a lease
securitization, and (c) agrees, at Landlord's sole cost and expense, to
assist Landlord in completing any documents reasonably necessary to
accomplish any such transfer and/or securitization transaction, it being
understood and agreed, however, than none of such agreements or cooperation
shall expand Tenant's liability under this Lease or vary the terms of this
Lease. Tenant hereby authorizes Landlord to provide any required financial
information regarding Tenant in any reports required as part of a lease
securitization program or by any governmental body regulating Landlord.
36. SEVERABILITY
------------
If any provision of this Lease becomes unenforceable for any reason, such
unenforceability shall not limit or impair the operation or validity of any
other provision of this Lease.
37. JURISDICTION, VENUE, AND GOVERNING LAW
--------------------------------------
If any party to this Lease institutes any lawsuit or other action or
proceeding against the other party and pertaining to this Lease, any right
or obligation of any party hereunder, breach of this Lease or otherwise
pertaining to the Premises, the sole and exclusive venue and jurisdiction
for filing and maintaining any such lawsuit or other action or proceeding
shall be in the jurisdiction where the Premises is located, and the parties
to this Lease waive the right to institute or maintain any such suit, action
or proceeding in any other courts or forums whatsoever. Each party by
executing this Lease consents and submits itself to the personal
jurisdiction of such court. This Lease shall be construed and governed in
accordance with the laws of the state where the Premises is located without
regard to conflict of law principles.
38. COUNTERPARTS
------------
This Lease may be executed in counterparts, each of which shall be deemed
an original and all of which together shall constitute one agreement.
39. SURVIVAL
--------
All obligations, covenants or agreements of a party to this Lease that
are not fulfilled, completed, discharged or released by the terms of this
Lease at the expiration or termination of this Lease, shall survive the
expiration or termination of the Lease as continuing obligations, covenants
or agreements of the party.
40. TENANT'S PURCHASE RIGHTS
------------------------
(a) At such time as Landlord desires to commence marketing the Premises
for sale to unrelated third parties, Landlord shall present Tenant with a
written offer to sell the Premises to Tenant at the price Landlord intends
to list the Premises for sale (the "Listing Price"). Tenant shall thereafter
have the right, by written notice to Landlord delivered no later than
fifteen (15) days following Tenant's receipt of Landlord's written
notification of the Listing Price, to either (i) accept the Listing Price,
(ii) reject the Listing Price, and present Landlord with a counteroffer
price (the "Counteroffer Price"), which Counteroffer Price shall contemplate
Net Transaction Terms (as such term is hereinafter defined) if the Listing
Price presented by Landlord to Tenant contemplates such Net Transaction
Terms, or (iii) reject the Listing Price without presenting Landlord with
any counteroffer price. Failure of Tenant to respond in writing within the
aforesaid fifteen (15) day period shall be deemed to be a rejection by
Tenant of the Listing Price, without presenting any counteroffer price, and
Landlord shall thereafter be free to market and sell the Premises to such
unrelated third parties without any restrictions except for (i) Tenant's
rights under this subparagraph shall apply to subsequent sales by any future
owners of the Premises, (ii) Tenant's Price Protection Right of First
Refusal (as hereinafter defined) and (iii) Tenant's right to repurchase the
Premises pursuant to Paragraph 40(c) of this Lease. In the event that Tenant
accepts the Listing Price, or in the event Landlord accepts the Counteroffer
Price, Tenant shall be obligated within three (3) business days thereof, to
deposit the sum of Fifty Thousand and No/100 Dollars ($50,000.00) as non-
refundable, but applicable xxxxxxx money, with Republic Title of Texas,
Inc., 0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxx, Xxxxx 00000-0000 ("Title
Company") and the closing for such sale by Landlord to Tenant shall occur no
later than forty-five (45) days following the date of Landlord's receipt of
Tenant's written acceptance of the Listing Price or if applicable, Tenant's
receipt of Landlord's written acceptance of the Counteroffer Price (the
"Closing Period"). During the initial thirty (30) days of the Closing
Period, Tenant shall have the right to review and approve a current Title
Commitment of the Premises, legible copies of all documents of record listed
in the Title Commitment as exceptions to title of the Premises and a current
Survey of the Premises, it being understood and agreed that (a) such title
and survey matters as existed as of the date of Landlord's closing on the
acquisition of the Premises from Tenant, (b) such title and survey matters
as Tenant may thereafter have approved in writing, (c) such additional title
and survey matters which arise out of Tenant's use of the Premises and/or
construction of the Additional Tenant Improvements (as hereinafter defined)
and (d) such title and survey matters as Landlord agrees in writing to cure
shall be deemed acceptable to Tenant (collectively, the "Permitted
Encumbrances"). Further, in connection with such sale, the Premises shall be
conveyed by Landlord to Tenant on an "as is, where is" basis without any
representation or warranty whatsoever (other than the limited representation
as to title to be contained in the deed), subject only to the Permitted
Encumbrances. In the event the Listing Price presented by Landlord to Tenant
contemplates Net Transaction Terms, and such is the basis upon which
Landlord intends to market the Premises for sale to unrelated third parties,
then Tenant's acquisition of the Premises shall be pursuant to the Net
Transaction Terms (with the term "Net Transaction Terms" being defined as
the purchase price to be paid to Landlord being net of any and all closing
costs (including without limitation, brokerage commissions and title
insurance fees), all of which shall be the responsibility of Tenant (as
purchaser), and Tenant (as purchaser) shall also be obligated to either
assume any then existing mortgage financing on the Premises and pay all
assumption costs in connection therewith, or pay off any then existing
mortgage financing on the Premises and pay any prepayment penalties or other
similar charges required in connection with extinguishing such mortgage
financing. In the event that the Listing Price presented by Landlord to
Tenant does not contemplate the Net Transaction Terms, then the closing
costs relating to such transaction shall be borne by the parties in the
following manner: Tenant shall be responsible for any updates to the Survey,
any special endorsements to the Owner's Policy of Title Insurance, and for
the costs of Tenant's own legal fees. Landlord shall be responsible for the
costs of the basic premium for the Owner's Policy of Title Insurance, any
costs and fees due and payable to its lender or other parties to remove any
monetary liens from the Premises and the cost of its own legal fees. All
other closing costs shall be born by the party incurring the same.
(b) In the event that Tenant rejects the Listing Price, and presents
Landlord with a Counteroffer Price which is not accepted by Landlord, then
in the event Landlord desires, during the one hundred eighty (180) day
period following Landlord's receipt of the Counteroffer Price, to sell the
Premises to such an unrelated third party for a purchase price which is less
than ninety five percent (95%) of the Counteroffer Price (the "Proposed
Subsequent Transaction"), Landlord shall be obligated to provide Tenant with
written notice of such Proposed Subsequent Transaction, and Tenant shall
have a right of first refusal ("Tenant's Price Protection Right of First
Refusal") to purchase the Premises at a price equal to the Counteroffer
Price, which Tenant's Price Protection Right of First Refusal must be
exercised, if at all, by no later than seven (7) business days following
Tenant's receipt of written notice from Landlord of the Proposed Subsequent
Transaction. Failure of Tenant to exercise such Tenant's Price Protection
Right of First Refusal within seven (7) business days shall be deemed a
waiver of such Tenant's Price Protection Right of First Refusal. In the
event that Tenant exercises Tenant's Price Protection Right of First
Refusal, Tenant shall be obligated within three (3) business days thereof,
to deposit the sum of Fifty Thousand and No/100 Dollars ($50,000.00) as non-
refundable, but applicable xxxxxxx money, with Republic Title of Texas,
Inc., and the closing for such sale by Landlord to Tenant shall occur no
later than forty-five (45) days following the date of Landlord's receipt of
Tenant's written exercise thereof (the "Closing Period"). During the
initial thirty (30) days of the Closing Period, Tenant shall have the right
to review and approve a current Title Commitment of the Premises, legible
copies of all documents of record listed in the Title Commitment as
exceptions to title of the Premises and a current Survey of the Premises
it being understood and agreed that (a) such title and survey matters as
existed as of the date of Landlord's closing on the acquisition of the
Premises from Tenant, (b) such title and survey matters as Tenant may
thereafter have approved in writing, (c) such additional title and survey
matters which arise out of Tenant's use of the Premises and/or construction
of the Additional Tenant Improvements (as hereinafter defined) and (d) such
title and survey matters as Landlord agrees in writing to cure shall be
deemed acceptable to Tenant (collectively, the "Permitted Encumbrances").
Further, in connection with such sale, the Premises shall be conveyed by
Landlord to Tenant on an "as is, where is" basis without any representation
or warranty whatsoever (other than the limited representation as to title to
be contained in the deed), subject only to the Permitted Encumbrances. In
the event the Listing Price presented by Landlord to Tenant contemplates Net
Transaction Terms, and such is the basis upon which Landlord intends to
market the Premises for sale to such unrelated third parties, then Tenant's
acquisition of the Premises shall be pursuant to the Net Transaction Terms
(with the term "Net Transaction Terms" being defined as purchase price to
Landlord being net of any and all closing costs (including without
limitation, brokerage commissions and title insurance fees), all of which
shall be the responsibility of Tenant (as purchaser), and Tenant (as
purchaser) shall also be obligated to either assume any then existing
mortgage financing on the Premises and pay all assumption costs in
connection therewith, or pay off any then existing mortgage financing on the
Premises and pay any prepayment penalties or other similar charges required
in connection with extinguishing such mortgage financing. In the event that
the Listing Price presented by Landlord to Tenant does not contemplate the
Net Transaction Terms, then the closing costs relating to such transaction
shall be borne by the parties in the following manner: Tenant shall be
responsible for any updates to the Survey, any special endorsements to the
Owner's Policy of Title Insurance, and for the costs of Tenant's own legal
fees. Landlord shall be responsible for the costs of the basic premium for
the Owner's Policy of Title Insurance, any costs and fees due and payable to
its lender or other parties to remove any monetary liens from the Premises
and the cost of its own legal fees. All other closing costs shall be borne
by the party incurring the same.
In the event Landlord does not sell the Premises within one (1) year
following Landlord's receipt of the Counteroffer Price, Landlord shall be
required to follow the procedure outlined in this Paragraph 40(b) in the
event Landlord desires to attempt to sell the Premises again to an unrelated
third party.
(c) Tenant shall have the option to repurchase the Premises at the end
of the fifth (5th) Lease Year at a purchase price equal to the greater of
(i) 105% of the fair market value of the Premises to be established pursuant
to MAI appraisals (which shall take into consideration that the Premises is
leased to a credit tenant, and which shall take into consideration the
purchase of the Premises as part of a like kind exchange, on the part of
the buyer, pursuant to Section 1031 of the Internal Revenue Code) or (ii)
$5,700,000.00. The appraisal process shall provide for each of Tenant and
Landlord obtaining separate appraisals, and then presenting such separate
appraisals to a third independent appraiser mutually selected by Landlord
and Tenant, who shall appraise the Premises and then select the appraisal of
Landlord or Tenant which is closest to such third appraiser's appraisal. In
the event Tenant has elected to construct additional improvements to the
Premises at its own cost pursuant to its rights to do so under the Lease
(the "Additional Tenant Improvements"), the appraisers shall be instructed
to exclude the value attributable to the Additional Tenant Improvements from
the scope of the appraisal, such that the appraised value does not attribute
any value to the Additional Tenant Improvements. In order for Tenant to
exercise its repurchase option under this subparagraph, Tenant shall be
obligated to deliver written notice of such exercise by no later than 120
days (but no earlier than 365 days) prior to the expiration of the fifth
(5th) Lease Year, and Tenant shall be obligated within three (3) business
days thereof, to deposit the sum of Fifty Thousand and No/100 Dollars
($50,000.00) as non-refundable, but applicable xxxxxxx money, with Republic
Title of Texas, Inc. The closing for such repurchase shall occur prior to
the earlier to occur of (i) forty-five (45) days after the date the purchase
price has been determined as set forth in this subparagraph or (ii) the date
upon which the expiration of the fifth (5th) Lease Year shall occur (with
the period of time commencing with Tenant's exercise of its repurchase
option and continuing through to the required date for closing be referred
to hereinbelow as the "Closing Period"). During the initial thirty (30) days
of the Closing Period, Tenant shall have the right to review and approve a
current Title Commitment of the Premises, legible copies of all documents of
record listed in the Title Commitment as exceptions to title of the Premises
and a current Survey of the Premises, it being understood and agreed that
(a) such title and survey matters as existed as of the date of Landlord's
closing on the acquisition of the Premises from Tenant, (b) such title and
survey matters as Tenant may thereafter have approved in writing, (c) such
additional title and survey matters which arise out of Tenant's use of the
Premises and/or construction of the Additional Tenant Improvements (as
defined hereinabove) and (d) such title and survey matters as Landlord
agrees in writing to cure shall be deemed acceptable to Tenant
(collectively, the "Permitted Encumbrances"). Further, in connection with
such repurchase, the Premises shall be conveyed by Landlord to Tenant on an
as is, where is basis without any representation or warranty whatsoever
(other than the limited representation as to title to be contained in the
deed), but subject only to the Permitted Encumbrances and the purchase price
to Landlord shall be net of any and all closing costs (including without
limitation, brokerage commissions and title insurance fees), all of which
shall be the responsibility of Tenant, and Tenant shall also be obligated to
either assume any then existing mortgage financing on the Premises and pay
all assumption costs in connection therewith, or pay off any then existing
mortgage financing on the Premises and pay any prepayment penalties or other
similar charges required in connection with extinguishing such mortgage
financing.
(d) In the event Tenant is required to assume Landlord's existing
mortgage financing on the Premises pursuant to Paragraph 40(b) or (c) above,
Tenant shall be obligated to pay in cash at closing the amount of the
purchase price less the outstanding principal amount of Landlord's existing
mortgage financing that Tenant is assuming.
(e) Landlord and Tenant agree that the rights of Tenant under this
Paragraph 40 shall be personal to Tenant and any assignee of Tenant's
interest in this Lease pursuant to an assignment for which Landlord's
consent is not required. Landlord and Tenant also agree that Tenant's rights
under this Paragraph 40 shall be extinguished and of no further force and
effect from and after the termination of this Lease. Further, Landlord and
Tenant agree that the rights of Tenant under this Paragraph 40 shall be not
be applicable in connection with a sale arising out of the foreclosure (or
the execution, delivery and recordation of a deed in lieu thereof) of the
lien of Landlord's lender upon the Premises.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have executed and sealed this
Lease Agreement to be effective as of the day and date first above written.
"LANDLORD"
THE JUICE TRUST,
dated January 24, 1996
Signed and Delivered
in the presence of:
By:
-------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxx, Trustee
--------------------------
--------------------------------
Name:
--------------------------
Signed and Delivered
in the presence of:
By:
-------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxx, Trustee
--------------------------
--------------------------------
Name:
--------------------------
THE XXXXX FAMILY TRUST,
dated June 18, 1980
Signed and Delivered
in the presence of:
By:
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxx, Trustee
--------------------------
--------------------------------
Name:
--------------------------
"TENANT"
Signed and Delivered XXXXXXXXXX LABORATORIES, INC., a
in the presence of Texas corporation
By:
-------------------------------- -----------------------------------
Name: Name: Xxxxxxx X. Xxxxxx
-------------------------- As Its: President and CEO
--------------------------------
Name:
--------------------------
EXHIBITS ATTACHED
-----------------
Exhibit "A" - Legal Description
Exhibit "B" - Intentionally Deleted
Exhibit "C" - Subordination, Non-Disturbance and Attornment Agreement
Exhibit "D" - Estoppel Certificate
Exhibit "E" - Permitted Exceptions
Exhibit "F" - Memorandum of Lease
EXHIBIT "A"
Legal Description of the Premises
---------------------------------
Being Xxx 0 xx xxx XXX XXXXXXX XXXXXX XXXX DISTRIBUTION CENTER, SIXTH
INSTALLMENT, an addition to the City of Irving, Dallas County, Texas,
according to the Map or Plat thereof recorded in Volume 80188, Page 1806,
of the Deed Records of Dallas County, Texas
EXHIBIT "B"
SUBORDINATION OF LANDLORD'S LIEN
---------------------------------
INTENTIONALLY DELETED
EXHIBIT "C"
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
------------------------
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of this ____day of , 200_, which date shall be the
effective date of this Agreement, between XXXXXXXXXX LABORATORIES, INC., a
Texas corporation (the "Tenant") and BANK OF AMERICA, N.A., a national
banking association, a wholly owned subsidiary of BankAmerica Corporation,
and having its principal offices in Charlotte, North Carolina (together with
its successors and/or assigns the "Lender").
The Tenant is the lessee under the lease described in Exhibit A attached
hereto (as the same may from time to time be assigned, subleased, renewed,
extended, amended, modified or supplemented, collectively the "Lease").
The Lender has previously made or is about to make a loan to __________
a ____________________ or its successor and/or assigns with respect to the
landlord's interest under the Lease (the "Landlord"), evidenced by a
promissory note in the original principal amount of approximately $_______
executed by the Landlord and payable to the Lender and secured by a first
priority deed of trust, mortgage or deed to secure debt on certain real
and personal property and improvements (the "Premises"), recorded or to
be recorded in the appropriate records of Dallas County, Texas (the
"Security Instrument").
The Lender has requested the Tenant to confirm the fact that the Lease is
subject and subordinate to the Security Instrument.
The Tenant is willing to confirm the subordination of the Lease, provided
it obtains assurance from the Lender that its possession of the premises
demised under the Lease (the "Demised Premises), which Demised Premises is
all or a portion of the Premises, and its right to use any common areas will
not be disturbed by reason of or in the event of the foreclosure of the
Security Instrument.
The Lender is willing to give such assurance.
NOW, THEREFORE, for and in consideration of the mutual agreements herein
contained and other good and valuable consideration, the parties hereto do
hereby mutually covenant and agree as follows:
1. The Tenant hereby subordinates the Lease and all terms and conditions
contained therein and all rights, options, liens and charges created thereby
to the Security Instrument and the lien thereof, and to all present or
future advances under the obligations secured thereby and to all renewals,
extensions, amendments, modifications and/or supplements of same, to the
full extent of all amounts secured thereby from time to time.
2. So long as no event of default on the part of the Tenant under the
Lease shall exist which would entitle the Landlord to terminate the Lease,
or if such an event of default shall exist, so long as the Tenant's time to
cure the default shall not have expired, the term of the Lease shall not be
terminated or modified in any respect whatsoever and the Tenant's right of
possession to the Demised Premises and its rights in and to any common areas
and its other rights arising out of the Lease will all be fully recognized
and protected by the Lender and shall not be disturbed, canceled, terminated
or otherwise affected by reason of the Security Instrument or any action or
proceeding instituted by the Lender to foreclose the Security Instrument, or
any extension, renewal, consolidation or replacement of same, irrespective
of whether the Tenant shall have been joined in any action or proceeding.
3. In the event that the Lender takes possession of the Premises, either
as the result of foreclosure of the Security Instrument or accepting a deed
to the Premises in lieu of foreclosure, or otherwise, or the Premises shall
be purchased at such a foreclosure by a third party, the Tenant shall attorn
to the Lender or such third party and recognize the Lender or such third
party as its landlord under the Lease, and the Lender or such third party
will recognize and accept the Tenant as its tenant thereunder, whereupon,
the Lease shall continue in full force and effect as a direct lease between
the Lender or such third party and the Tenant for the full term thereof,
together with all extensions and renewals thereof, and the Lender or such
third party shall thereafter assume and perform all of the Landlord's
obligations, as the landlord under the Lease with the same force and effect
as if the Lender or such third party were originally named therein as the
Landlord; provided, however, that the Lender or such third party shall not
be:
(a) liable for any act or omission of any prior landlord
(including the Landlord), except to the extent the Lender was furnished
notice and opportunity to cure the same in accordance with the provisions
of this Agreement prior to taking possession of such Premises; or
(b) subject to any offsets or defenses which the Tenant might
have against any prior landlord (including the Landlord), except to the
extent the Lender was furnished notice and opportunity to cure the same in
accordance with the provisions of this Agreement prior to taking possession
of such Premises or for matters occurring during Lender's possession of the
Premises for which Lender has been furnished notice by Tenant; or
(c) bound by any rent or additional rent which the Tenant might
have paid for more than two (2) months in advance to any prior landlord
(including the Landlord) or any escrow deposits of the Tenant not actually
received by Lender from any prior landlord (including Landlord); provided,
however, Tenant shall not be responsible for the deposit of any additional
escrow deposits in the event the prior landlord (including Landlord) did not
transfer such deposits to Lender; or
(d) bound by any amendment or modification of the Lease not consented
to in writing by the Lender, such consent to not be unreasonably withheld,
conditioned or delayed.
4. Notwithstanding anything to the contrary in this Agreement or
otherwise, in the event the Lender or a third party takes possession of the
Premises as provided in paragraph 3 above, the liability of the Lender or
such third party under the Lease shall be limited to the Lender's or such
third party's, as the case may be, interest in the Premises, and upon any
assignment or other transfer of the Lender's or such third-party's interest
in the Premises, the Lender or such third party, as applicable, shall be
discharged and released from any obligation or liability under the Lease
arising or accruing after the date of such assignment or transfer, provided
such assignee agrees to assume all obligations of the "landlord" under the
Lease.
5. Tenant agrees not to subordinate the Lease to any other lien or
encumbrance which (i) affects the Premises under the Lease, or any part
thereof, or (ii) is junior to the Security Instrument, without the express
written consent of the Lender, and any such subordination or any such
attempted subordination or agreement to subordinate without such consent
of Lender, shall be void and of no force and effect.
6. Tenant agrees to provide copies of all notices given Landlord under
the Lease to Lender at the following address:
Lender: Bank of America, N.A.
Attn: Capital Markets Servicing Group
NC l-026-06-01
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as Lender shall designate in writing; and all such
notices shall be in writing and shall be considered as properly given if (i)
mailed to the addressee by first class United States mail, postage prepaid,
registered or certified with return receipt requested, (ii) by delivering
same in person to the addressee, or (iii) by delivery to a third party
commercial delivery service for same day or next day delivery to the office
of the addressee with proof of delivery; any notice so given shall be
effective, as applicable, upon (a) the third (3rd) day following the day
such notice is deposited with the United States mail, (b) delivery to the
addressee, or (c) upon delivery to such third party delivery service; and
any notice given in any other manner shall be effective only if and when
received by the addressee.
7. In the event Landlord shall fail to perform or observe any of the
terms, conditions or agreements in the Lease, Tenant shall give written
notice thereof to Lender and Lender shall have the right (but not the
obligation) to cure such default. Tenant shall not take any action with
respect to such default under the Lease (including without limitation any
action in order to terminate, rescind or avoid the Lease or to withhold any
rent or other monetary obligations thereunder) for a period of thirty (30)
days following receipt of such written notice by Lender; provided, however,
that in the case of any default which cannot with diligence be cured within
such thirty (30) day period, if Lender shall proceed promptly to cure such
default and thereafter prosecute the curing of such default with diligence
and continuity, then the time within which such default may be cured shall
be extended for such period as may be reasonably necessary to complete the
curing of such default with diligence and continuity.
8. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Security Instrument, except as specifically set
forth herein.
9. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that in the event of the assignment or transfer of the interest of
the Lender to a party that assumes the Lender's obligations and liabilities
hereunder, all obligations and liabilities of the Lender under this
Agreement shall terminate, and thereupon all such obligations and
liabilities shall be the responsibility of the party to whom the Lender's
interest is assigned or transferred.
10. In the event of any litigation or other legal proceeding arising
between the parties to this Agreement, whether relating to the enforcement
of a party's rights under this Agreement or otherwise, the prevailing party
shall be entitled to receive its reasonable attorney's fees and costs of
suit from the non-prevailing party in such amount as the court shall
determine.
WITNESS/ATTEST: TENANT:
-------------------------- XXXXXXXXXX LABORATORIES, INC.,
a Texas corporation
WITNESS/ATTEST: By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxx, President and CEO
WITNESS/ATTEST: LENDER:
BANK OF AMERICA, N.A., a national
-------------------------- banking association
WITNESS/ATTEST:
By:
-------------------------------------
Name:
-------------------------------------
-------------------------- Title:
-------------------------------------
STATE OF TEXAS
COUNTY OF DALLAS
I, _____________, a Notary Public of the County and State aforesaid, certify
that Xxxxxxx X. Xxxxxx, personally came before me this day and acknowledged
that (s)he is the President and CEO of Xxxxxxxxxx Laboratories, Inc., a
Texas corporation, that executed the foregoing instrument, and acknowledged
to me that the same was the act of the said purposes and consideration
therein expressed an in the capacity therein stated.
WITNESS my hand and official stamp or seal, this ____ day of ________, 200_ .
-----------------------
Notary Public
My Commission Expires
---------------------
Notary Seal
STATE OF
------------------
COUNTY OF
------------------
I,_______________ a Notary Public of the County and State aforesaid, certify
_________________ that personally came before me this day and acknowledged
that (s)he is a _______________ of Bank of America, N.A., a national banking
association, that executed the foregoing instrument, and acknowledged to me
that the same was the act of the said purposes and consideration therein
expressed an in the capacity therein stated.
WITNESS my hand and official stamp or seal, this ____ day of _______, 200_.
-----------------------
Notary Public
My Commission Expires
---------------------
Notary Seal
EXHIBIT "D"
ESTOPPEL CERTIFICATE
--------------------
TO: Bank of America, N.A.
NCl-027-20-03
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Closing Coordinator
The undersigned (the "Tenant"), as tenant under that certain lease (the
"Lease") dated _______, ________ made with ________________ (together
with its successors and/or assigns, the "Landlord"), covering approximately
_____ square feet of space at the Landlord's property generally described
as _______________________________________________ in Dallas County, Texas
(the "Premises"), hereby certifies as follows:
(1) The Tenant has entered into occupancy of the Premises described in
the Lease and the Lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way, except as follows:
__________________________________________________________________________.
The Lease, as amended as indicated in the preceding sentence, represents the
entire agreement between the parties as to said leasing.
(2) The commencement date of the term of the Lease is _________ and the
expiration date of the term of the Lease is _________. The Tenant has no
rights to renew or extend the term of the Lease except as follows:
__________________________________________________________________________.
(3) All conditions of the Lease to be performed by the Landlord and
necessary to the enforceability of the Lease have been satisfied. There are
no defaults by either the tenant or, to the Tenant's knowledge, the landlord
thereunder, and, to the Tenant's knowledge, no event has occurred or
situation exists which would, with the passage of time, constitute a default
under the Lease. All improvements or work required under the Lease to be
made by the Landlord to date, if any, have been completed to
the satisfaction of the tenant. Charges for all labor and materials used or
furnished in connection with improvements and/or alterations made for the
account of the Tenant at the Premises and common areas have been paid in
full. On this date there are no existing defenses, offsets, claims or
credits which the Tenant has against the enforcement of the Lease by the
Landlord.
(4) Monthly rent in the amount of $__________ is payable on the ____
day of each month during the Lease term, all rent due for the current month
has been paid, and no rents have been prepaid more than two (2) months in
advance. The Tenant has paid to the Landlord a security deposit in the
amount of $__________.
(5) Except as otherwise provided in the Lease, the Tenant has no
option or preferential right to purchase all or any part of the Premises,
or the land of which the Premises are a part. The Tenant has no rights or
interest with respect to the Premises other than as a tenant under the
Lease. The Tenant has not assigned or sublet its interest in the Premises.
(6) That as of the date hereof, there are no actions, whether voluntary
or otherwise, pending against the Tenant under the bankruptcy or insolvency
laws of the United States or any state thereof.
(7) The Tenant understands that Bank of America, N.A., (the "Lender")
intends to make a mortgage loan (the "Loan") to the Landlord (or its
successor and/or assign with respect to the Landlord's interest in the
Lease) in reliance upon, among other things, this certificate, and that the
Lender's successors and/or assigns may rely on this certificate in making,
or acquiring any interest in, the aforesaid Loan. The Tenant hereby
acknowledges that the Lease and the rent and other sums due thereunder are
to be assigned to the Lender as security for the Loan. If the Lender becomes
the owner of the Premises demised under the Lease, such as by foreclosure,
the Tenant shall attorn to Lender as landlord under the Lease. If the Lender
or any entity servicing the Loan for the Lender notifies the Tenant of a
default under the Loan Documents evidencing the Loan and demands that the
Tenant make all rental and all other payments under the Lease directly to
the Lender or a designated lockbox or elsewhere, the Tenant shall honor such
demand and shall make all rental and other Lease payments as required
pursuant to such notice and demand.
EXECUTED this ____ day of ____________, 20__.
TENANT:
XXXXXXXXXX LABORATORIES, INC.,
a Texas corporation
By:___________________________ (SEAL)
Name: Xxxxxxx X. Xxxxxx, President and CEO
WITNESS:
----------------------
EXHIBIT "E"
PERMITTED EXCEPTIONS
--------------------
1. Restrictive Covenants recorded in Volume 73166, Page 1001; Volume 77154,
Page 1096; Volume 79122, Page 749; Volume 82071, Page 3244; Volume 75073,
Page 494, refiled in Volume 75105, Page 856; Volume 84213, Page 2741;
Volume 89127, Page 5854, corrected in Volume 92041, Page 446; and Volume
89155, Page 1571, all recorded in Deed Records of Dallas County, Texas.
2. Terms and conditions of Ordinance No. 71-100, entitled Airport Zoning
Ordinance of the Dallas-Fort Worth Regional Airport, filed September 2,
1982, recorded in Volume 82173, Page 178, Deed Records of Dallas County,
Texas.
3. Fifteen Foot (15') utility easement along the North and East boundaries
of the subject property as shown on the plat recorded in Volume 80188,
Page 1806, Deed Records of Dallas County, Texas, as shown on survey
prepared by Xxxx Xxxxxxx Land Surveying, Inc., certified by Xxxx Xxxxxxx,
RPLS#5351, under Job No. 05-0085, dated 11/02/2005.
4. Avigation Release to the City of Irving as set out on plat recorded in
Volume 80188, Page 1806, Deed Records of Dallas County, Texas.
5. Fifty foot (50') set back line along the East boundary and thirty foot
(30') set back line along the North boundary of subject property as shown
on the plat recorded in Volume 80188, Page 1806, Deed Records of Dallas
County, Texas, as shown on survey prepared by Xxxx Xxxxxxx Land
Surveying, Inc., certified by Xxxx Xxxxxxx, RPLS#5351, under Job No. 05-
0085, dated 11/02/2005.
6. Terms, conditions, covenants, restrictions, easements, assessment liens
and charges contained in Declaration recorded in Volume 73166, Page 1001;
Correction to Declaration recorded in Volume 77154, Page 1096; Second
Correction to Declaration recorded in Volume 79122, Page 749; Third
Correction to Declaration recorded in Volume 82071, Page 3244;
Supplementary Declaration No. 7 recorded in Volume 75073, Page 494;
Corrected Supplementary Declaration No. 7 recorded in Volume 75105,
Page 856, all recorded in Deed Records of Dallas County, Texas; and as
affected by Statement of Lien Priority dated 10/26/84, filed 10/29/84,
recorded in Volume 84213, Page 2741, Deed Records of Dallas County,
Texas.
7. Twelve foot by twelve foot (12' x 12') water main easement granted to
the City of Irving by Water Main Easement dated April 30, 1991, recorded
in Volume 91106, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx as shown
on survey prepared by Xxxx Xxxxxxx Land Surveying, Inc., certified by
Xxxx Xxxxxxx, RPLS#5351, under Job No. 05-0085, dated 11/02/2005.
8. Easements and rights, if any, relative to cable pedestal, buried optic
line, transformer, gas meter, cleanouts, monitoring well and water
valves, as shown on survey prepared by Xxxx Xxxxxxx Land Surveying,
Inc., certified by Xxxx Xxxxxxx, RPLS #5351, under Job No. 05-0085,
dated 11/02/2005.
9. Memorandum of Lease between The Juice Trust and The Xxxxx Family Trust,
collectively as Landlord, and Xxxxxxxxxx Laboratories, Inc., as Tenant,
dated and recorded on even date hereof in the Official Public Records,
Dallas County, Texas.
UPON RECORDATION RETURN TO: SPACE ABOVE THIS LINE
XXXXXX XXXXX XXXX & XXXX, P.C. FOR RECORDER'S USE
000 X. Xxxxx Xx., Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
THIS INSTRUMENT WAS PREPARED BY:
XXXXXX XXXXX XXXX & XXXX, P.C.
000 X. Xxxxx Xx., Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
--------------------------------------------------------------------------
RETURN BY: MAIL (X) PICK UP ( )
--------------------------------------------------------------------------
Xxxxxxxxxx Laboratories, Inc. Headquarters Lease, 0000 Xxxxxx Xxxx Xxxx,
Xxxx xx Xxxxxx, Xxxxxx Xxxxxx, Xxxxx
EXHIBIT F
---------
MEMORANDUM OF LEASE
-------------------
THIS MEMORANDUM OF LEASE is made as of the ____ day of December, 2005
("Effective Date"), by and between THE XXXXX FAMILY TRUST, dated June 18,
1980, with principal office and place of business at 0000 Xxxxxx Xxxx Xxxxx,
Xxx Xxxxx, Xxxxxxxxxx, and THE JUICE TRUST, dated January 24, 1996, with
principal office and place of business at 000 Xxxx Xxxxx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000 (collectively, the "Landlord"), and XXXXXXXXXX
LABORATORIES, INC., a Texas corporation, with a mailing address of 0000
Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxx 00000 ("Tenant").
In consideration of TEN AND NO/100 DOLLARS ($10.00) and other valuable
consideration paid by Tenant to Landlord and the mutual covenants contained
in that certain Lease Agreement between the parties hereto dated on even
date herewith (hereinafter called the "Lease"), Landlord has leased and does
hereby lease to Tenant, and Tenant has leased and does hereby lease from
Landlord, upon the terms and conditions set forth in said Lease, the real
property more particularly described in Exhibit "A" attached hereto and made
a part hereof (the "Premises").
The term of the Lease is fifteen (15) years commencing on the Effective
Date and ending on December __, 2020. Said Lease provides for options to
renew for two (2) five (5) year terms. Tenant shall not allow any mechanic's
lien or similar type of lien to be filed against the Premises.
The Lease grants to Tenant certain other rights, including without
limitation, a right of first offer and a repurchase option as set out
therein.
This Memorandum is prepared for the purpose of recordation only and
in no way modifies the provisions of the Lease. If any provisions in this
Memorandum are inconsistent with provisions contained in the Lease, the
provisions in the Lease prevail.
[Signatures on Next Page]
IN WITNESS WHEREOF, Landlord and Tenant have executed and sealed this
Memorandum of Lease to be effective as of the date first above written.
"LANDLORD"
THE JUICE TRUST,
Signed and Delivered dated January 24, 1996
in the presence of
By:
-------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxx, Trustee
--------------------------
--------------------------------
Name:
--------------------------
Signed and Delivered
in the presence of:
By:
-------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxx, Trustee
--------------------------
--------------------------------
Name:
--------------------------
THE XXXXX FAMILY TRUST,
dated June 18, 1980
Signed and Delivered
in the presence of:
By:
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxx, Trustee
--------------------------
--------------------------------
Name:
--------------------------
STATE OF __________
COUNTY OF __________
I, ______________, a Notary Public of the County and State aforesaid,
certify that Xxxxxxx X. Xxxxx, personally came before me this day and
acknowledged that he is a Trustee of THE JUICE TRUST, dated January 24,
1996, that executed the foregoing instrument, and acknowledged to me that
the same was the act of the said purposes and consideration therein
expressed an in the capacity therein stated.
WITNESS my hand and official stamp or seal, this ____ day of ______ 200_.
-----------------------
Notary Public
My Commission Expires
---------------------
Notary Seal
STATE OF __________
COUNTY OF __________
I, ______________, a Notary Public of the County and State aforesaid,
certify that Xxxxx X. Xxxxx, personally came before me this day and
acknowledged that she is a Trustee of THE JUICE TRUST, dated January 24,
1996, that executed the foregoing instrument, and acknowledged to me that
the same was the act of the said purposes and consideration therein
expressed an in the capacity therein stated.
WITNESS my hand and official stamp or seal, this ____ day of ______ 200_.
-----------------------
Notary Public
My Commission Expires
---------------------
Notary Seal
STATE OF __________
COUNTY OF __________
I, , a Notary Public of the County and State aforesaid,
certify that Xxxxxx X. Xxxxx, personally came before me this day and
acknowledged that he is a Trustee of THE XXXXX FAMILY TRUST, dated June 18,
1980, that executed the foregoing instrument, and acknowledged to me that
the same was the act of the said purposes and consideration therein
expressed an in the capacity therein stated.
WITNESS my hand and official stamp or seal, this ____ day of ______ 200_.
-----------------------
Notary Public
My Commission Expires
---------------------
Notary Seal
"TENANT"
Signed, Sealed and Delivered XXXXXXXXXX LABORATORIES, INC., a
in the presence of: Texas corporation
By:
-------------------------------- -----------------------------------
Name: Name: Xxxxxxx X. Xxxxxx
-------------------------- As Its: President and CEO
--------------------------------
Name:
--------------------------
STATE OF __________
COUNTY OF __________
Before me _____________, on this day personally appeared Xxxxxxx X. Xxxxxx,
the President and Chief Operating Officer of XXXXXXXXXX LABORATORIES, INC.,
a Texas corporation, and acknowledge to me that he executed said instrument
for the purposes and consideration therein expressed, and as the act of said
limited partnership.
WITNESS my hand and official stamp or seal, this ____ day of _______, 200_.
-----------------------
Notary Public
My Commission Expires
---------------------
Notary Seal
EXHIBIT "A"
Legal Description
-----------------
Being Xxx 0 xx xxx XXX XXXXXXX XXXXXX XXXX DISTRIBUTION CENTER, SIXTH
INSTALLMENT, an addition to the City of Irving, Dallas County, Texas,
according to the Map or Plat thereof recorded in Volume 80188, Page 1806,
of the Deed Records of Dallas County, Texas.
Xxxxxxxxxx Laboratories, Inc. Headquarters Lease, 0000 Xxxxxx Xxxx Xxxx,
------------------------------------------------------------------------
City of Irving, Dallas County, Texas
------------------------------------
RENT ADDENDUM
to
LEASE AGREEMENT
---------------
THIS RENT ADDENDUM dated the ____ day of December, 2005, by and between THE
XXXXX FAMILY TRUST, dated June 18, 1980, and THE JUICE TRUST, dated January
24, 1996, collectively, the "Landlord", and XXXXXXXXXX LABORATORIES, INC., a
Texas corporation, "Tenant", for Tenant's headquarters office facility, at
0000 Xxxxxx Xxxx Xxxx, Xxxx of Irving, Dallas County, Texas, is attached to
and made a part of that certain Lease Agreement by and between Landlord and
Tenant of even date herewith (the "Lease"). Notwithstanding any other
provision to the contrary which may be contained in said Lease, it is
specifically agreed by and between Landlord and Tenant as follows:
l. Definitions. Capitalized terms used in this Rent Addendum shall, unless
otherwise defined, have the meaning ascribed to them in the Lease.
2. Commencement of Rent. On the date hereof, Landlord has simultaneously
entered into the Lease with Tenant pursuant to which Tenant has agreed to
lease from Landlord the Premises and all improvements now or hereafter
constructed thereon. Payment of Annual Rent shall commence as of the
Effective Date.
3. Annual Rent.
Beginning on the Effective Date, Tenant covenants and agrees to pay to
Landlord annual rent ("Annual Rent") as follows:
Lease Year Monthly Rent Annual Rent Annual Rent/SF
------------------------------------------------------------
1-5 $39,171.92 $470,063.00 $11.00
6-10 $43,249.00 $518,988.00 $12.14
11-15 $47,750.00 $573,004.00 $13.41
payable to Landlord in equal monthly installments monthly in advance, on the
first (1st) day of each month.
Annual Rent during the first and second option terms, if properly
exercised by Tenant, shall be ninety five percent (95%) of the then current
Market Rent; provided, however, in no event shall the Annual Rent for any
option term be less than the Annual Rent payable during the last lease year
of the immediately preceding Lease Term.
(a) The term "Market Rent" shall mean the Annual Rent for the
Premises at the time in question which Landlord sets forth in a notice
(hereinafter referred to as the "Market Rent Notice") to Tenant. No later
than thirty (30) days after Tenant may exercise Tenant's option to extend
this Lease for an available option term, Landlord shall send the Market Rent
Notice to Tenant for said option term and shall specify in the Market Rent
Notice for each of the five (5) years contained in the option term as
applicable. In the event that Tenant shall, in good faith, disagree with the
Market Rent set forth in the Market Rent Notice established by Landlord for
the Premises, Tenant shall, within ten (10) days after receipt of the Market
Rent Notice, furnish Landlord with a written explanation in reasonable
detail of the basis for Tenant's good faith disagreement, the amount which,
in Tenant's good faith opinion, is the Market Rent for each of the five (5)
years contained in the applicable renewal term (hereinafter referred to as
the "Tenant's Notice"). If Tenant's Notice is not received by Landlord
within said ten (10) day period, the Market Rent shall be the Market Rent
set forth in the Market Rent Notice to Tenant. If Tenant's notice is
received by Landlord within said ten (10) day period, the Market Rent for
the Premises shall be established as follows:
(i) No later than twenty (20) days following the receipt of the
Market Rent Notice from Landlord, Tenant shall select an individual as an
appraiser of its choice and give Landlord written notice of such appraiser's
name, address and telephone number.
(ii) Within ten (10) days after receipt of such notice by
Landlord, Landlord shall select an appraiser of its choice and give Tenant
written notice of such appraiser's name, address and telephone number.
(iii) The two appraisers so selected by Landlord and Tenant
shall then select an individual as a third appraiser within fifteen (15)
days after receipt by Tenant of Landlord's notification as to its selection
of an appraiser, and furnish Landlord and Tenant written notice of such
appraiser's name, address and telephone number.
(iv) All appraisers selected pursuant to this Rent Addendum shall
be M.A.I. appraisers, unless Landlord and Tenant shall otherwise agree in
writing, each having at least ten (10) years experience with commercial
property in Dallas County, Texas. Each of the three (3) selected appraisers
shall then determine the fair rental value of the Premises for each of the
five (5) years of the applicable renewal term, as applicable and the Market
Rent hereunder for each of such five (5) years contained in the applicable
renewal term, shall be determined to be that appraisal of Tenant's and
Landlord's appraisal which is closest to the appraisal of the third
appraiser.
(b) If the procedure set forth in above in (a)(i) through and
including (a)(iv) is implemented, and if for any reason whatsoever
(including, without limitation, the institution of any judicial or other
legal proceedings), the Market Rent for any option term has not been finally
determined prior to the first day of said option term, then the amount of
the Market Rent set forth by Landlord in good faith in the Market Rent
Notice shall be the Market Rent for all purposes under this Lease until
such time as the Market Rent is finally determined as set forth above, and
Landlord and Tenant shall, by appropriate payments to the other, correct any
overpayment or underpayment which may have been made prior to such final
determination.
(c) If Landlord fails to select its appraiser in the manner and
within the time specified in (a)(ii) above, then the Market Rent for the
applicable option term shall be the Market Rent set forth in Tenant's
Notice.
(d) If Tenant fails to select its appraiser in the manner and
within the time specified in (a)(i) above, then the Market Rent for the
applicable option term shall be the Market Rent set forth in the Market Rent
Notice.
(e) If the appraisers selected by Landlord and Tenant fail to
appoint the third appraiser within the time and in the manner prescribed
in (a)(iii) above, then Landlord and/or Tenant shall promptly apply to the
local office of the American Arbitration Association for the appointment of
the third appraiser.
(f) All fees, costs and expenses incurred in connection with
obtaining the appraisals and the arbitration procedure set forth in this
section shall be shared equally by Landlord and Tenant; however, Landlord
and Tenant shall each bear their own attorneys' fees incurred with respect
to this procedure.
Partial Months. If the date on which Annual Rent shall be first due and
payable shall fall on a day other than the first day of a calendar month,
then Rent for the partial rental month shall be prorated on a per diem basis
on the first Annual Rent payment and shall be paid by Tenant to Landlord for
such month.
4. [INTENTIONALLY DELETED].
5. Sales/Use Tax. Tenant shall also pay to Landlord any sales and use tax
imposed on any Rent payable hereunder from time to time by state law or
any other governmental entity, which sums are due monthly as to monthly
Rent payments on the due date of the Rent payment under this Lease.
6. Reporting.
(a) Tenant shall, during the term of this Lease and any
extensions thereto: (i) keep books and records reflecting its financial
condition including, but not limited to, the operation of the Premises;
(ii) furnish to Landlord within forty-five (45) days after the end of
each fiscal quarter of Tenant, excluding the 4th quarter, an unaudited
financial statement of Tenant and an unaudited statement of income
(including quarterly store level sales, but broken down month-by-month) and
expenses of the Premises; (iii) provide to Landlord, fiscal year-end audited
signed financial statements of Tenant (including an annual balance sheet, a
profit/loss statement, statement of cash flow, debt and lease schedules and
footnotes) within one hundred twenty (120) days after Tenant's fiscal year
ends. Annual financial statements for Tenant will be prepared in accordance
with generally accepted accounting principles ("GAAP"), consistently
applied. Interim financial statements and other financial information for
Tenant will be prepared in accordance with GAAP, but subject to year end
adjustments and changes due to consolidation. Property level financial
information will be prepared in accordance with good accounting practices
consistently applied, and will remain subject to year end adjustments and
changes due to consolidation. Landlord shall have the right, from time to
time during normal business hours, to examine such books, records and
accounts at the offices of Tenant or other entity as is maintaining such
books, records and accounts, and to make such copies or extracts thereof as
Landlord shall desire. Further, in the event Landlord seeks to securitize
or otherwise transfer the Lease, then (upon Landlord's request), Tenant
agrees to cooperate with Landlord, at Landlord's sole cost and expense, in
providing such information as would be reasonably required for the
transaction, including but not limited to income and expense statements for
the Premises. Landlord shall maintain confidentiality and not disclose such
information to third parties without Tenant's written consent except (x)
as may be required, in Landlord's reasonable judgment, for the exercise of
Landlord's rights under this Lease, or as may be required by law; (y) for
disclosure in confidence to prospective lenders or purchasers; or (z) for
purposes of a net lease securitization.
(b) Notwithstanding anything to the contrary contained in the
foregoing, during such periods of time as Tenant shall be a publicly
traded company whose stock is traded on the NYSE, NASDAQ, or other similar
nationally recognized exchange, and whose financial information is readily
available to the public, Tenant shall be relieved of its obligations in
subparagraph a. of this Section 6, and in lieu thereof, Tenant shall, during
the Term of this Lease and any extensions thereto: (i) keep books and
records reflecting its financial condition including, but not limited to,
the operation of the Premises; (ii) furnish to Landlord within fortyfive
(45) days after the end of each fiscal quarter of Tenant, excluding the 4th
quarter, a copy of its 10Q filed with the Security and Exchange Commission;
(iii) provide to Landlord within one hundred twenty (120) days after
Tenant's fiscal year ends a copy of its 1OK filed with the Security and
Exchange Commission.
7. [INTENTIONALLY DELETED].
8. Late Charges. In the event any installment of Rent is not received by
Landlord within ten (10) days after the due date, there shall be an
automatic late charge due to Landlord from Tenant in the amount of five
percent (5%) of such delinquent installment of Rent. All such late
charges due hereunder shall be deemed additional rent, and are not
penalties but rather are charges attributable to administrative and
collection costs arising out of such delinquency. In addition to such
late charge, in the event Landlord does not receive Rent when due
hereunder, interest at the rate of the maximum rate allowable by law
shall be due and payable with respect to such payment from the date ten
(10) days after the due date until Landlord receives such Rent.
9. Payments of Rents. All Rent payments shall be made by electronic funds
transfer to Landlord by ACH payments initiated by Tenant, to the account
designated by Landlord (or such other account designated by Landlord or
its successors or assigns, respectively, from time to time after written
notice thereof to Tenant). Notwithstanding the foregoing, in the event
that the Premises are sold and the Lease is assigned to an unrelated
third party that is not an affiliate of RAINIER CAPITAL MANAGEMENT, L.P.,
Tenant thereafter may make Rent payments by electronic funds transfer or
check, at Tenant's option.
10. No Abatement. Unless otherwise stated in the Lease, no abatement,
offset, diminution or reduction of (a) Rent, charges or other
compensation, or (b) Tenant's other obligations under this Lease shall be
allowed to Tenant or any person claiming under Tenant, under any
circumstances or for any reason whatsoever.
11. Security Deposit.
(a) Upon the date this Lease is mutually executed by Landlord and
Tenant, Tenant shall pay to Landlord a security deposit ("Security Deposit")
in the amount of $100,000.00 to be held by Landlord as security for the
Tenant's performance of all of its obligations under this Lease. In the
event Tenant fails to perform or comply with any obligation of Tenant to be
performed under this Lease, Landlord, at Landlord's sole option, in addition
to all other rights and remedies available to Landlord, may perform any such
term, covenant or obligation of which Tenant is in breach (and Landlord may,
at its discretion, apply the Security Deposit to offset the actual cost such
performance), in which event, Tenant shall reimburse Landlord on demand for
all actual costs and expenses including, but not limited to, reasonable
attorneys' fees and court costs through all trial and appellate levels
incurred by Landlord and shall replace that portion of the Security Deposit
applied by Landlord together with interest thereon at the maximum rate
allowed by law, and all such sums shall be deemed to be Additional Rent. In
the event deductions are from the Security Deposit, Tenant shall, within ten
(10) days following its receipt of written notice from Landlord, re-deposit
with Landlord such amounts so expended by Landlord so as to maintain the
Security Deposit in the amount as herein provided for, and failure by Tenant
to so re-deposit shall be deemed a failure to pay Rent under the terms
hereof. Nothing herein contained shall limit the liability of Tenant as to
any damage to the Demised Premises, and Tenant shall be responsible for the
total amount of any actual damage and/or actual loss occasioned by actions
of Tenant. Landlord may deliver the funds deposited hereunder by Tenant to
any purchaser of Landlord's interest in the Demised Premises in the event
such interest shall be sold, and thereupon Landlord shall be discharged from
any further liability with respect to such Security Deposit.
(b) At Tenant's election, in its sole discretion, in lieu of
the cash Security Deposit described in subparagraph a of this Paragraph
11, concurrently with the execution of this Lease, Tenant shall deliver
to Landlord a Letter of Credit in the amount of $100,000.00 issued by
a bank which satisfies the criteria set forth in this Section, as provided
in this Section, as security for the faithful performance and observance by
Tenant of the terms, provisions and conditions of this Lease (the "Letter of
Credit"). Tenant agrees that, in the event that Tenant defaults in respect
of any of the terms, provisions and conditions of this Lease (including,
without limitation, the payment of Annual Rent or Additional Rent), Landlord
shall have the right, after the expiration of the applicable notice and cure
period, to draw upon and receive such of the monies represented by the
Letter of Credit as may be necessary to cure such default and use, apply or
retain (for immediate application or use as permitted hereunder) the whole
or any part of such proceeds, as the case may be, but only to the extent
required for the payment of any Annual Rent or Additional Rent as to which
Tenant is in default, or for any sum that Landlord may expend or may be
required to expend by reason of Tenant's default, in respect of any of the
terms, covenants and conditions of this Lease (including, without
limitation, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord). In the event that Landlord
applies or retains any proceeds of such Letter of Credit, Tenant shall
restore, upon Landlord's demand, the amount so applied or retained so that,
at all times, the amount deposited shall be $100,000.00 or, at Landlord's
option, upon Landlord's demand, Tenant shall furnish Landlord with a new
letter of credit complying with the requirements of this section for the
full amount of any such deficiency. If Tenant shall fail or refuse to
make such additional deposit, Landlord shall have the same rights in law and
in equity and under this Lease as it has with respect to a default by Tenant
in the payment of Annual Rent or Additional Rent. Landlord and Tenant agree
that in the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease, the cash
security or Letter of Credit, as the case may be, shall be returned to
Tenant by no later than thirty (30) days after the expiration of the Term
and after delivery of possession of the entire Premises to Landlord in the
condition provided in this Lease for such delivery of possession. In the
event that Landlord determines that there is cause for Landlord to retain or
apply all or a portion of the cash security or the Letter of Credit beyond
that date which is thirty (30) days after the expiration of the Term and
delivery of possession of the entire Premises to Landlord in the condition
required by the Lease for such delivery, then Landlord shall be obligated
to furnish Tenant with written notice stating the reasons therefor with
reasonable detail. Notwithstanding the foregoing, if at any time the net
worth of the Issuing Bank is less than $200,000,000.00 or its rating is
downgraded from its current rating, and provided Tenant does not replace the
existing Letter of Credit with a Letter of Credit meeting the criteria of
this section within the sooner of thirty (30) days following Tenant's
receipt of Landlord's notice to remaining until the expiration date of the
existing Letter of Credit, Landlord shall have the right, at any time
thereafter, to draw down the entire proceeds pursuant to the terms of this
Section as cash security, subject to the provisions of Section 11 a above,
pending the replacement of such Letter of Credit. In the event that Tenant
is required to deliver a replacement Letter of Credit to Landlord hereunder,
and such replacement Letter of Credit satisfies the criteria set forth
herein, then Landlord shall be obligated to immediately return the original
Letter of Credit to Tenant.
The Letter of Credit shall be a clean, irrevocable and unconditional
Letter of Credit in the amount of $100,000.00 issued by and drawable in the
City of Dallas upon any commercial bank reasonably approved in writing by
Landlord (the "Issuing Bank") with offices for banking purposes in the City
of Dallas and having a net worth of not less than $200,000,000.00. The
Letter of Credit shall have an initial term of not less than one year, shall
permit multiple drawings, shall be transferable to the beneficiary on one or
more occasions at no charge to the beneficiary and otherwise shall be in
form and content satisfactory to Landlord. No holder of a mortgage to which
this Lease is subordinate shall be responsible in connection with the
security deposited hereunder, by way of credit or payment of any rent, or
otherwise, unless such mortgagee actually shall have received the security
deposited hereunder. It is expressly understood and agreed that the re-
entering of the Premises by Landlord for any default on the part of Tenant
prior to the expiration of the Term shall not be deemed such a termination
of this Lease as to entitle Tenant to the recovery of the said security;
that the said deposit shall be retained and remain in the possession of
Landlord until the end of the Term as hereinbefore stated.
In the event of a sale or other transfer of the Premises, Landlord shall
have the right to transfer the cash security or the Letter of Credit then
held by Landlord to the vendee or other transferee, and Landlord shall
thereupon be released from all liability for the return of such cash
security or Letter of Credit. In such event, Tenant agrees to look solely to
the new landlord for the return of said cash security or Letter of Credit.
It is agreed that the provisions hereof shall apply to every transfer or
assignment made of the cash security or Letter of Credit to a new landlord.
Landlord shall be responsible for the costs associated with the reissuance
of the Letter of Credit to any successor landlord under this Lease or
Landlord's lenders.
Tenant covenants that it will not assign or encumber, or attempt to
assign or encumber, the monies or Letter of Credit deposited hereunder as
security, and that neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment, or
attempted encumbrance.
The use of the security, as provided in this Section, shall not be deemed
or construed as a waiver of Tenant's default or as a waiver of any other
rights and remedies to which Landlord may be entitled under the provisions
of this Lease by reason of such default, it being intended that Landlord's
rights to use the whole or any part of the security shall be in addition to
but not in limitation of any such other rights and remedies; and Landlord
may exercise any of such other rights and remedies independent of or in
conjunction with its rights under this Section.
[INITIALS ON NEXT PAGE]
Initialed for Identification:
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By Landlord By Tenant
Authorization Agreement
Account Information:
Your Company Name: Rainier Account #:
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Contact Name and Title:
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Authorized by Name and Title (if different from above)
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Mailing Address
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City, State, Zip Code
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Phone Number ( ) Ext
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The payment will be deducted from your bank account on the 1st of the month.
Financial Institution Information:
Name of your bank: Account #
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Name of account (if different from Company Name)
---------------------------
ABA Routing #
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Enclose a blank check marked VOID. (Starter checks not accepted.)
I hereby authorize the financial institution listed above to debit our
account in the name of Rainier to make the specified monthly payment.
Authorized Signature Date
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