FIRST AMENDMENT TO LEASE
Exhibit
10.1
FIRST
AMENDMENT TO LEASE
THIS
FIRST AMENDMENT TO LEASE (this "Amendment") is entered into as of the 27th day
of May, 2009 by and between PARK 288 INDUSTRIAL, L.L.C., a Texas limited
liability company ("Landlord") and SHARPS COMPLIANCE INC. OF TEXAS, a Texas
corporation ("Tenant").
WHEREAS,
Landlord and Tenant are parties to that certain Lease Agreement dated as of
January 30, 2009 (the "Lease") covering approximately 54,783 square feet of
space (the "Current Leased Premises") in the building located
at Xxxxxxx, Xxxxx 00000 (the "Building"), as more particularly
described therein;
WHEREAS,
Landlord and Tenant acknowledge and agree that the Commencement Date (as such
term is defined in the Lease) of the Lease has not yet occurred for the Current
Leased Premises;
WHEREAS,
Tenant desires to lease from Landlord an additional 66,035 square feet of space
in the Building shown on Exhibit A attached
hereto (the "Expansion Space");
WHEREAS, Tenant desires to extend the
term of the Lease to expire on the last day of the calendar month which is
sixty-four (64) months after the Expansion Space Commencement Date (hereinafter
defined);
WHEREAS,
subject to the terms and conditions hereof, Landlord has agreed to Lease the
Expansion Space to Tenant and to extend the term of the Lease as described
herein; and
WHEREAS,
Landlord and Tenant desire to amend the Lease to reflect their agreements as to
the terms and conditions governing Tenant's lease of the Expansion Space and the
extension of the term of the Lease.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants between the
parties herein contained, Landlord and Tenant hereby agree as
follows:
1. Leased
Premises.
(a) Effective
as of the Expansion Space Commencement Date, Landlord shall lease the Expansion
Space to Tenant and Tenant shall lease the Expansion Space from Landlord, and
the Leased Premises, as defined in the Lease, shall mean, collectively, the
Current Leased Premises and the Expansion Space, containing a total of 120,818
square feet of rentable space in the Building. The Expansion Space shall be
subject to all the terms and conditions of the Lease except as expressly
modified herein and except that Tenant shall not be entitled to receive any
allowances, abatements or other financial concessions that were granted with
respect to the Current Leased Premises unless such concessions are expressly
provided for herein with respect to the Expansion Space.
(b) As
used herein, the "Expansion Space Commencement Date" means the later to occur of (i) July 1, 2009 (the "Target Commencement Date") and (ii) the
date upon which the
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Work in
the Expansion Space has been substantially completed, as such date is determined
pursuant to the Work Letter attached hereto as Exhibit
B.
(c) Effective
as of the Expansion Space Commencement Date, Exhibit A attached
hereto shall be added to and incorporated into Exhibit A to the
Lease.
(d) Notwithstanding
anything to the contrary set forth in Paragraph 1 of the Lease, commencing on
the Mandatory Expansion Space Commencement Date, the Leased Premises shall be
131,406 and shall constitute the entire Building. Landlord and Tenant
acknowledge and agree that nothing contained in this Amendment shall affect the
rights and obligations of Landlord and Tenant with respect to the Mandatory
Expansion Space as set forth in the second paragraph of Paragraph 1 of the
Lease.
2. Term. The
term of the Lease is hereby extended to expire on the last day of the calendar
month which is sixty-four (64) months after the Expansion Space Commencement
Date, unless terminated earlier in accordance with the terms of the Lease, and
all references in the Lease to the Expiration Date shall be amended to such
date.
3. Base
Rent.
(a) Effective
as of the Expansion Space Commencement Date, in addition to the Base Rent
payable for the Current Leased Premises (and the Mandatory Expansion Space after
the Mandatory Expansion Space Commencement Date), Tenant shall pay Base Rent for
the Expansion Space as follows:
|
Period
|
Annual
Base Rent
|
Monthly
Installments of Base Rent
|
|
Expansion
Months 1 – 4
|
$0.00
|
$0.00
|
|
Expansion
Months 5 – 15
|
$301,119.60
|
$25,093.30
|
|
Expansion
Months 16 – 37
|
$309,043.80
|
$25,753.65
|
|
Expansion
Months 38 – 64
|
$316,968.00
|
$26,414.00
|
All such
Base Rent shall be payable by Tenant in accordance with the terms of the Lease,
as amended hereby. As used herein "Expansion Month" shall mean each
full calendar month, commencing on the first day of the first calendar month
following the Expansion Space Commencement Date, unless the Expansion Space
Commencement Date occurs on the first day of a calendar month, in which case the
initial Expansion Month shall commence on the Expansion Space Commencement
Date. If the Expansion Space Commencement Date does not occur on the
first day of a calendar month, then Tenant shall pay Base Rent with respect to
the Expansion Space during the initial partial calendar month at the same Base
Rent rate payable during Expansion Month 5 under the foregoing
schedule.
(b) Effective
as of the Commencement Date under the Lease and the Mandatory Expansion Space
Commencement Date, respectively, Tenant shall pay Base Rent and all other
charges with respect to the Current Leased Premises and the Mandatory Expansion
Space during
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the term
in accordance with the terms of the Lease. Commencing on the day
immediately following the original Expiration Date of the Lease, and continuing
through the remainder of the term of the Lease, as extended hereby, Tenant shall
pay Base Rent with respect to the Current Leased Premises and the Mandatory
Expansion Space in the amount of $313,780.80 per year, in monthly installments
of $26,148.40.
4. Building
Costs. Effective as of the Commencement Date under the Lease,
Tenant shall pay Tenant's Pro Rata Share of Real Estate Taxes, Common Area
Maintenance Costs, and Building Insurance Costs for the Current Leased Premises
in accordance with the terms of the Lease. Tenant shall not be
required to pay Tenant's Pro Rata Share of Real Estate Taxes, Common Area
Maintenance Costs, and Building Insurance Costs for the Expansion Space during
the initial four (4) Expansion Months. Accordingly, commencing on the
first day of the fifth (5th) Expansion Month, Tenant shall pay Tenant's Pro Rata
Share of Real Estate Taxes, Common Area Maintenance Costs, and Building
Insurance Costs for the Expansion Space in accordance with the terms of the
Lease. As of the date of this Amendment, Landlord's current estimate
for Tenant's Pro Rata Share of Building Costs with respect to the Expansion
Space only is $8,092.34 per month, which consists of Common Area Maintenance
Costs in the amount of $2,421.28, Real Estate Taxes in the amount of $5,117.72,
and Building Insurance Costs in the amount of $553.34. Such amounts
shall be in addition to Tenant's Pro Rata Share of Building Costs for the
Current Leased Premises and in addition to Tenant's Pro Rata Share of Building
Costs for the Mandatory Expansion Space which commence on the Mandatory
Expansion Space Commencement Date.
5. Acceptance of Expansion
Space. Subject to the last sentence of this Section 5, Tenant
acknowledges that Landlord has not made any representations or warranty with
respect to the condition or quality of the Expansion Space and that Tenant has
inspected and accepts the Expansion Space in its present "AS IS" condition as
suitable for the purpose for which the Expansion Space leased. THERE IS NO WARRANTY AS TO
SUITABILITY, HABITABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
GIVEN IN CONNECTION WITH THE EXPANSION SPACE OR THIS
AMENDMENT. Landlord shall perform the Work in the Expansion Space in
accordance with the terms of Exhibit B attached
hereto.
6. Estoppel. Tenant
hereby represents, warrants and agrees that: (i) there exists no breach, default
or event of default by Landlord under the Lease, or any event or condition
which, with the notice or passage of time or both, would constitute a breach,
default or event of default by Landlord under the Lease; (ii) the Lease
continues to be a legal, valid and binding agreement and obligation of Tenant;
and (iii) Tenant has no current offset or defense to its performance or
obligations under the Lease. Tenant hereby waives and releases all
demands, charges, claims, accounts or causes of action of any nature against
Landlord or Landlord's employees or agents, including without limitation, both
known and unknown demands, charges, claims, accounts, and causes of action that
have previously arisen out of or in connection with the Lease.
7. Brokers. Tenant
warrants that it has had no dealings with any real estate broker or agent in
connection with the negotiation of this Amendment other than Warehouse
Associates and that it knows of no other real estate brokers or
agents who are or might be entitled to a commission in connection with this
Amendment. Landlord agrees to pay a commission to Tenant's Broker and
Landlord's Broker pursuant to separate written agreements entered into between
Landlord and
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such
brokers. Tenant agrees to indemnify and hold Landlord harmless from
and against any liability or claim arising with respect to any brokers or agents
other than Tenant's Broker claiming a commission by, through, or under Tenant in
connection with this Amendment.
8. Defined
Terms. All terms not otherwise defined herein shall have the
same meaning assigned to them in the Lease.
9. Authority. Tenant
and each person signing this Amendment on behalf of Tenant represents to
Landlord as follows: (i) Tenant is duly formed and validly existing under the
laws of the State of Texas, (ii) Tenant has and is qualified to do business in
Texas, (iii) Tenant has the full right and authority to enter into this
Amendment, and (iv) each person signing on behalf of Tenant was and continues to
be authorized to do so.
10. No
Representations. Landlord and Landlord's agents have made no
representations or promises, express or implied, in connection with this
Amendment except as expressly set forth herein or in the Lease.
11. Exhibits. Each
Exhibit attached hereto is made a part hereof for all purposes.
12. Ratification of
Lease. Except as amended hereby, the Lease shall remain in
full force and effect in accordance with its terms and is hereby
ratified. In the event of a conflict between the Lease and this
Amendment, this Amendment shall control.
13. Entire
Agreement. This Amendment, together with the Lease, contains
all of the agreements of the parties hereto with respect to any matter covered
or mentioned in this Amendment or the Lease, and no prior agreement,
understanding or representation pertaining to any such matter shall be effective
for any purpose.
14. Section
Headings. The section headings contained in this Amendment are
for convenience only and shall in no way enlarge or limit the scope or meaning
of the various and several sections hereof.
15. Successors and
Assigns. The terms and provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
16. Severability. A
determination that any provision of this Amendment is unenforceable or invalid
shall not affect the enforceability or validity of any other provision hereof
and any determination that the application of any provision of this Amendment to
any person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances.
17. Governing
Law. This Amendment shall be governed by the laws of the State
of Texas.
18. Submission of Amendment Not
Offer. The submission by Landlord to Tenant of this Amendment
for Tenant's consideration shall have no binding force or effect, shall not
constitute an option, and shall not confer any rights upon Tenant or impose any
obligations upon Landlord irrespective of any reliance thereon, change of
position or partial performance. This Amendment
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is
effective and binding on Landlord only upon the execution and delivery of this
Amendment by Landlord and Tenant.
IN
WITNESS WHEREOF, the parties have executed this Amendment to be effective as of
the day and year first above written.
LANDLORD:
PARK 288 INDUSTRIAL, L.L.C., a
Texas limited liability company
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By:
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TDC
Park 288 L.P., a Delaware limited
partnership,
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|
|
its
managing member
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|
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By:
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TDC
Park 288 GP, L.L.C., a Delaware limited
liability
company, its general partner
By:
Name:
Xxxxx Xxxxxxx
Title:
Authorized Signatory
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TENANT:
SHARPS
COMPLIANCE INC. OF TEXAS,
a Texas
corporation
By:
Name:
Xxxxx X. Xxxx
Title:
Executive Vice President, CFO & Business Development
[Consent
of Guarantor on Following Page]
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CONSENT
OF GUARANTOR
The undersigned, as the Guarantor
(herein so called) under that certain Continuing Lease Guaranty dated of even
date with the Lease (the "Guaranty"), hereby consents to and joins in the
foregoing Amendment and hereby declares to and agrees with Landlord that (i) all
of the obligations of the Guarantor under the Guaranty shall include the
obligations of Tenant under the above Amendment, (ii) the obligations of
Guarantor shall not be impaired or otherwise adversely affected by said
Amendment, and (iii) the Guaranty is hereby ratified and confirmed in all
respects.
Executed as of the date of the above
Amendment.
GUARANTOR:
a
Delaware corporation
By:
Name:
________________________
Title:
_________________________
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