22.10 In addition to any and all other remedies available to Landlord herein, Landlord shall at any and/or all times have a right of offset against any sums of money due from Landlord to Tenant for the payment of any and all rentals and other sums of money becoming due hereunder from Tenant, and for the payment of any and all damages or loss which Landlord may suffer by reason of the breach by Tenant of any covenant, agreement or condition contained herein.
23.1 In addition to the statutory Landlord’s lien, Landlord has at all times a valid security interest to secure payment of all rentals and other sums of money becoming due hereunder from Tenant, and to secure payment of any damages or loss which Landlord may suffer by reason of the breach by Tenant of any covenant, agreement or condition contained herein, upon all goods, wares, equipment, fixtures, furniture, improvements and other personal property of Tenant presently, or which may hereafter be, situated on the Demised Premises, and all proceeds therefrom, and such property must not be removed without the consent of Landlord until all arrearages in rent as well as any and all other sums of money then due to Landlord or to become due to Landlord hereunder first have been paid and discharged and all the covenants, agreements and conditions hereof have been fully complied with and performed by Tenant. Upon the occurrence of an event of default by Tenant, Landlord may, in addition to any other remedies provided herein, enter upon the Demised Premises and take possession of any and all goods, wares, equipment, fixtures, furniture, improvements and other personal property of Tenant situated on the Demised Premises, without liability for trespass or conversion, and sell the same at public or private sale, with or without having such property at the sale, after giving Tenant reasonable notice of the time and place of any public sale or of the time after which any private sale is to be made, at which sale the Landlord or its assigns may purchase unless otherwise prohibited by law. Unless otherwise provided by law, and without intending to exclude any other manner of giving Tenant reasonable notice, the requirement of reasonable notice will be met if such notice is given in the manner prescribed in this lease at least five days before the time of sale. Any sale made pursuant to the provisions of this paragraph will be deemed to have been a public sale conducted in a commercially reasonable manner if held in the above-described Demised Premises or where the property is located after the time, place and method of sale and a general description of the types of property to be sold have been advertised in a daily newspaper published in the county in which the property is located, for five consecutive days before the date of the sale. The proceeds from any such disposition, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorney’s fees and legal expenses), will be applied as a credit against the indebtedness secured by the security interest granted in this paragraph. Any surplus will be paid to Tenant or as otherwise required by law; the Tenant must pay any deficiencies forthwith. Tenant hereby agrees that a carbon, photographic or other reproduction of this lease is sufficient to constitute a financing statement. Tenant nevertheless agrees that upon request by Landlord, Tenant will execute and deliver to Landlord a financing statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provisions of the Uniform Commercial Code (or corresponding state statute or statutes) in force in the state in which the property is located, as well as any other state the laws of which Landlord may at any time consider to be applicable; moreover, Landlord is hereby irrevocably vested with a power of attorney from Tenant to execute any and all such financing statements on behalf of Tenant.
23.2 Landlord agrees to subordinate Landlord’s foregoing contractual lien rights and any statutory or constitutional lien rights with respect to Tenant’s property to a third party providing furniture, fixtures and/or equipment for Tenant’s use in the Demised Premises during the term of this lease (or providing funds for the acquisition of same) provided that (i) there is no uncured event of default by
Tenant under this lease at the time of such subordination, (ii) such subordination shall be limited to the specified items, amounts, and times stated in the subordinating instrument, and (iii) such subordination shall be in writing, signed by all parties, and in the form attached hereto asExhibit “I” or another form acceptable to Landlord.
ARTICLE 24
HOLDING OVER; SURRENDER OF PREMISES
24.1 In the event Tenant remains in possession of the Demised Premises after the expiration of this lease and without the execution of a new lease, it will be deemed to be occupying the Demised Premises as a tenant at sufferance at a daily rental equal to the rental herein provided plus fifty percent of such amount, pro-rated on a daily basis, otherwise subject to all the conditions, provisions and obligations of this lease insofar as the same are applicable to a tenancy at sufferance. In addition to the foregoing, Tenant shall be and remain liable to Landlord for, and shall protect Landlord from and indemnify and defend Landlord against, all losses and damages, including any claims made by any succeeding tenant resulting from such failure of Tenant to vacate, and any consequential damages that Landlord suffers from the holdover.
24.2 At the end of the term or the termination of Tenant’s right to possess the Demised Premises, Tenant must (1) deliver to Landlord the Demised Premises with all improvements located thereon in good repair and condition, reasonable wear and tear (subject however to Tenant’s maintenance obligations) excepted, (2) deliver to Landlord all keys to the Demised Premises, and (3) remove all signage placed by or on behalf of Tenant on the Demised Premises. All fixtures, alterations, additions, and improvements (whether temporary or permanent) are Landlord’s property and must remain on the Demised Premises except as provided in the next two sentences. Provided that Tenant has performed all of its obligations hereunder, Tenant may remove all unattached trade fixtures, furniture, and personal property placed in the Demised Premises by Tenant (but Tenant cannot remove any such item which was paid for, in whole or in part, by Landlord). Additionally, Tenant must remove such alterations, additions, improvements, fixtures, equipment, wiring, furniture, and other property as Landlord may request, provided such request is made within six months after the end of the term. All items not so removed will, at the option of Landlord, be deemed abandoned by Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant and without any obligation to account for such items and Tenant must pay for the costs incurred by Landlord in connection therewith. Any such disposition cannot be considered a strict foreclosure or other exercise of Landlord’s rights in respect of the security interest granted underArticle 23. All work required of Tenant under thisSection 24.2 must be coordinated with Landlord and be done in a good and workmanlike manner, in accordance with all laws, and so as not to damage the Office Building or the Project. Tenant must, at its expense, repair all damage caused by any work performed by Tenant under thisSection 24.2.
ARTICLE 25
NOTICES
25.1 Wherever any notice is required or permitted hereunder, such notice must be in writing. Any notice or document required or permitted to be delivered hereunder will be deemed to be delivered when actually received by the designated addressee or, if earlier and regardless of whether actually received or not, when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the parties hereto at the respective addresses set out inSection 1.1 above (or at Landlord’s option, to Tenant at the Demised Premises), or such other addresses as they have theretofore specified by written notice.
25.2 If and when included within the term “Landlord” as used in this instrument there are more than one person, firm or corporation, all must jointly arrange among themselves for their joint execution of such notice specifying some individual at some specific address for the receipt of notices and payments to the Landlord; if and when included within the term “Tenant” as used in this instrument there are more than one person, firm or corporation, all must jointly arrange among themselves for their joint execution of such a notice specifying some individual at some specific address for the receipt of notices and payments to Tenant. All parties included within the terms “Landlord” and “Tenant,” respectively, are bound by notices and payments given in accordance with the provisions of this Article to the same effect as if each had received such notice or payment. In addition, Tenant agrees that notices to Tenant may be given by Landlord’s attorney, property manager or other agent.
ARTICLE 26
AMERICANS WITH DISABILITIES ACT
26.1 Landlord represents that the Common Area was (or if not yet constructed, will be) constructed in accordance with the requirements of the Americans With Disabilities Act of 1990, as amended from time to time, and related state and municipal laws and regulations (collectively, the
21
“ADA”) as it existed at the time Landlord constructed the Project. However, Landlord’s sole obligation and responsibility in the event such representation is not true is to cause the Common Area to comply with the requirements, as such requirements have been modified or limited. If there are any changes to the ADA which require changes to the Common Area, Landlord will improve the Common Area of the Project in order to comply with the ADA. All costs incurred by Landlord complying with the terms of the immediately preceding sentence may be included as Common Area expenses pursuant to and in accordance with the terms ofSection 7.4 of this lease.
26.2 Tenant is responsible for compliance with the ADA in all matters regarding both the configuration of the Demised Premises (the interior as well as all public and/or employee door entrances) and Tenant’s improvement or alteration of or business operations at the Demised Premises.
ARTICLE 27
REGULATIONS
27.1 Landlord and Tenant acknowledge that there are in effect federal, state, county and municipal laws, orders, rules, directives and regulations (collectively referred to hereinafter as the “Regulations”) and that additional Regulations may hereafter be enacted or go into effect, relating to or affecting the Demised Premises or the Project, and concerning the impact on the environment of construction, land use, maintenance and operation of structures, toxic or otherwise hazardous substances, and conduct of business. Subject to the express rights granted to Tenant under the terms of this lease, Tenant will not cause, or permit to be caused, any act or practice, by negligence, omission or otherwise, that would adversely affect the environment, or do anything or permit anything to be done that would violate any of the Regulations. Moreover, Tenant has no claim against Landlord by reason of any changes Landlord may make in the Project or the Demised Premises pursuant to the Regulations or any charges imposed upon Tenant, Tenant’s customers or other invitees pursuant to same.
27.2 If, by reason of any Regulations, the payment to, or collection by, Landlord of any rental or other charge (collectively referred to hereinafter as “Lease Payments”) payable by Tenant to Landlord pursuant to the provisions of this lease is in excess of the amount (the “Maximum Charge”) permitted thereof by the Regulations, then Tenant, during the period (the “Freeze Period”) when the Regulations are in force and effect will not be required to pay, nor will Landlord be permitted to collect, any sum in excess of the Maximum Charge. Upon the earlier of (i) the expiration of the Freeze Period, or (ii) the issuance of a final order or judgment of a court of competent jurisdiction declaring the Regulations to be invalid or not applicable to the provisions of this lease, Tenant, to the extent not then proscribed by law, and commencing with the first day of the month immediately following, must pay to Landlord as additional rental, in equal monthly installments during the balance of the term of this lease, a sum equal to the cumulative difference between the Maximum Charges and the Lease Payments during the Freeze Period. If any provisions of this section, or the application thereof, are to any extent declared to be invalid and unenforceable, the same will not be deemed to affect any of the other provisions of this section or of this lease, all of which will be deemed valid and enforceable to the fullest extent permitted by law.
ARTICLE 28
MISCELLANEOUS
28.1 Nothing in this lease can be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties hereto, will be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant.
28.2 Tenant must not for any reason withhold or reduce Tenant’s required payments of rentals and other charges provided in this lease, it being agreed that the obligations of Landlord under this lease are independent of Tenant’s obligations except as may be otherwise expressly provided herein. The immediately preceding sentence cannot be deemed to deny Tenant the ability of pursuing all rights granted it under this lease or at law; however, as contemplated in Rule 174(b) of the Texas Rules of Civil Procedure (as such may be amended from time to time), at the direction of Landlord, Tenant’s claims in this regard will be litigated in proceedings different from any litigation involving rental claims or other claims by Landlord against Tenant (i.e., each party may proceed to a separate judgment without consideration, counterclaim or offset as to the claims asserted by the other party). Tenant hereby waives and surrenders, for itself and for all persons or entities claiming by, through, and under Tenant (including creditors of all kinds), any rights, privileges, and liens set out under Section 91.004 and 93.003 of the Texas Property Code (as amended), and Tenant exempts Landlord from any duty or liability thereunder.
28.3 The liability of Landlord to Tenant for any default by Landlord under the terms of this lease will be limited to the proceeds of sale on execution of the interest of Landlord in the Demised
22
Premises; and neither Landlord nor any of Landlord’s agents, employees, representatives, officers, directors, or partners will be personally liable for any deficiency, except that Landlord will, subject to the provisions ofSection 19.6 hereof, remain personally liable to account to Tenant for any security deposit under this lease. This clause cannot be deemed to limit or deny any remedies which Tenant may have in the event of default by Landlord hereunder which do not involve the personal liability of Landlord.
28.4 In all circumstances under this lease where the prior consent of one party (the “consenting party”), whether it be Landlord or Tenant, is required before the other party (the “requesting party”) is authorized to take any particular type of action, such party must not withhold such consent in a wholly unreasonable and arbitrary manner; however, the requesting party agrees that its exclusive remedy if it believes that consent has been withheld improperly (including, but not limited to, consent required from Landlord pursuant toSection 9.2 or Section 19.1) is to institute litigation either for a declaratory judgment or for a mandatory injunction requiring that such consent be given (with the requesting party hereby waiving any claim for damages, attorneys fees or any other remedy by reason thereof unless the consenting party refuses to comply with a court order or judgment requiring it to grant its consent).
28.5 One or more waivers of any covenant, term or condition of this lease by either party cannot be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval cannot be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
28.6 Whenever a period of time is herein prescribed for action to be taken by Landlord, Landlord will not be liable or responsible for, and there will be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of Landlord.
28.7 If any provision of this lease is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this lease will not be affected thereby.
28.8 The laws of the State of Texas govern the interpretation, validity, performance and enforcement of this lease. Venue for any action under this lease will lie exclusively in Tarrant County, Texas.
28.9 The captions used herein are for convenience only and do not limit or amplify the provisions hereof.
28.10 Whenever herein the singular number is used, the same includes the plural, and words of any gender include each other gender, as the context so requires.
28.11 The terms, provisions and covenants contained in this lease apply to, inure to the benefit of and bind the parties hereto and their respective heirs, successors in interest and legal representatives except as otherwise herein expressly provided.
28.12 This lease contains the entire agreement between the parties, and no rights are created in favor of either party other than as specified or expressly contemplated in this lease. No brochure, rendering information or correspondence will be deemed to be a part of this agreement unless specifically incorporated herein by reference. In addition, no agreement will be effective to change, modify or terminate this lease in whole or in part unless such is in writing and duly signed by the party against whom enforcement of such change, modification or termination is sought.
28.13 LANDLORD AND TENANT HEREBY ACKNOWLEDGE THAT THEY ARE NOT RELYING UPON ANY BROCHURE, RENDERING, INFORMATION, REPRESENTATION OR PROMISE OF THE OTHER, OR OF THE AGENT OR COOPERATING AGENT, EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS LEASE.
28.14 Intentionally deleted.
28.15 If Tenant is a corporation or a partnership (general or limited), each person(s) signing this lease as an officer or partner of Tenant represents to Landlord that such person(s) is authorized to execute this lease without the necessity of obtaining any other signature of any other officer or partner, that the execution of this lease has been authorized by the board of directors of the corporation or by the partners of the partnership, as the case may be, and that this lease is fully binding on Tenant. Landlord reserves the right to request evidence of the approval of this lease and authorization of Tenant’s signatories to bind Tenant, which evidence shall be satisfactory in form and content to Landlord and Landlord’s counsel. Tenant hereby represents to Landlord that Tenant is duly incorporated if Tenant is a corporation or duly
23
formed if Tenant is a partnership, and in good standing in the State of Texas, and that Tenant is not a subsidiary of any other entity.
28.16 The submission of this lease for examination does not constitute a reservation of or option for the Demised Premises and shall vest no right in either party hereto. This lease shall become effective only after the full execution and delivery hereof by all of the parties hereto and upon the approval by the holder of any mortgage encumbering the Project.
28.17 This lease has been entered into by the undersigned parties after arms-length negotiation, with each party hereto hereby acknowledging that it and its counsel, if it so chooses, have had an opportunity to review this lease, and therefore, the parties agree that this lease shall not be construed against Landlord on the ground that Landlord’s representatives prepared this lease.
28.18 This lease may be executed in several counterparts, each of which will be deemed an original, and all of which will constitute but one and the same instrument.
28.19 Tenant shall not record this lease nor any memorandum or short form hereof, nor shall Tenant permit or cause same to be recorded, without Landlord’s prior written consent. Any attempted recordation of this lease or of a memorandum or short form hereof by Tenant without having first obtained Landlord’s written approval — which approval may be granted or denied in Landlord’s sole discretion — shall, at Landlord’s option, constitute an event of default by Tenant and, at Landlord’s option, may void this lease and Tenant’s rights hereunder.
28.20 This lease is for the sole benefit of Landlord and Tenant, and, other than any ground lessor under any ground lease and/or any holder of any mortgage, deed of trust or other lien encumbering the Project (or any part thereof), no third party shall be deemed a third party beneficiary hereof.
28.21 Tenant’s obligations under this lease (including, without limitation, each indemnity agreement and hold harmless agreement of Tenant contained herein) shall survive the expiration or earlier termination of this Lease.
28.22 IT IS AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THE RESPECTIVE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT’S USE OR OCCUPANCY OF THE DEMISED PREMISES.
28.23 This lease consists of twenty-eight articles andExhibits “A” through “J”. All exhibits, attachments and addenda referred to herein shall be considered a part hereof for all purposes with the same force and effect as if copied at verbatim herein. The exhibits and/or addenda attached hereto are listed as follows:
| | | |
| Exhibit “A” | | Site Plan of the Project |
| Exhibit “A-l” | | First Stage of Grand Avenue Project |
| Exhibit “A-2” | | Site Plan of Southlake Town Square Development |
| Exhibit “B” | | Demised Premises |
| Exhibit “C” | | Construction: Turnkey Improvements by Landlord |
| Exhibit “C-1” | | Depiction of Landlord’s Work |
| Exhibit “D” | | Prohibited and Restricted Uses |
| Exhibit “E” | | Relinquishment of Lien Rights |
| Exhibit “F” | | Sign Criteria |
| Exhibit “G” | | Tenant Estoppel Certificate |
| Exhibit “H” | | Nondisturbance, Attornment and Subordination Agreement |
| Exhibit “I” | | Landlord Subordination |
| Exhibit “J” | | Communications Antenna |
(signature blocks on following page)
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EXECUTED as of the latest date accompanying a signature by Landlord or Tenant below.
| | | | | | | |
| | LANDLORD: | |
| | | | | | | |
| | SLTS GRAND AVENUE, L.P., | |
ATTEST or WITNESS : | | a Texas limited partnership | |
| | | | | | | |
| By: | SLTS Grand Avenue Genpar, L.L.C., | |
| | a Texas limited liability company, | |
| | | its general partner | |
| | | | | | | |
| | | By: | Cooper & Stebbins, L.P., | |
| | | | sole member | |
| | | | | |
| | | | By: | CS Town Centres, LLC, | |
| | | | | general partner | |
| | | | | | | |
| | | | | By: | 
| |
| | | | | |
| |
| | | | | | Brian R. Stebbins,
Member | |
| | | | | | | |
| | Date of Signature: May 10, 2006 | |
| | | | | | | |
| | Landlord’s Taxpayer I.D. No.: 20-1394380 | |
| | | | | | | |
| | TENANT: | |
| | | |
| | QUALITY SYSTEMS INC., | |
| | a California corporation,
d/b/a QSI, Inc. | |
| | | | | | | |
ATTEST or WITNESS: | | | | | | | |
| | | | | | | |
| | By: | 
| |
| | |
| |
| | Name: Patrick Clive | |
| | Title: Executive VP | |
| | | |
| | Date of Signature: 5-3-06 | |
|
| | Taxpayer I.D. No.: 95-2888568 | |
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EXHIBIT “A”
SITE PLAN OF THE PROJECT
THIS SITE PLAN IS PRESENTED SOLELY FOR THE PURPOSE OF IDENTIFYING THE APPROXIMATE LOCATION AND SIZE OF THE DEMISED PREMISES. BUILDING SIZES, SITE DIMENSIONS, ACCESS AND PARKING AREAS, EXISTING TENANT LOCATIONS AND IDENTITIES ARE SUBJECT TO CHANGE AT THE LANDLORD’S DISCRETION, EXCEPT AS OTHERWISE EXPRESSLY RESTRICTED IN THE TEXT OF THE LEASE. THE PROJECT INCLUDES LAND THAT IS OWNED (OR WILL BE OWNED) BY LANDLORD AND ITS AFFILIATES, BUT THE PROJECT WILL BE OPERATED AS A UNIFIED WHOLE.
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EXHIBIT “B”
DEMISED PREMISES
27
EXHIBIT “C”
CONSTRUCTION: TURNKEY IMPROVEMENTS BY LANDLORD
ARTICLE 1
GENERAL
A. Subject to the provisions below and the conditions in the Lease, Landlord agrees that it will proceed to construct (or, to the extent already partially constructed, will complete) an office unit upon the Demised Premises in substantial compliance with the description of Landlord’s Work inArticles III and V below and inExhibit “C-1”; provided, however, Landlord’s total cost to construct Landlord’s Work (including all space planning, design services, and construction manager fees relating to Landlord’s Work) will not exceed Eighty-Seven Thousand Eight Hundred Thirty-Three and No/100 Dollars ($87,833.00) (“Maximum Landlord Cost”). Tenant shall be solely responsible for all construction costs for the Demised Premises above the Maximum Landlord Cost. Simultaneously with Tenant’s execution of this lease, Tenant shall deliver to Landlord the sum of Twenty Thousand Six Hundred Seventy-Nine and 79/100 Dollars ($20,679.79) representing Tenant’s estimated share of the construction costs for the Demised Premises above the Maximum Landlord Cost. If Landlord subsequently determines in its reasonable judgment that Tenant’s estimated share of the construction costs of the Demised Premises is greater than $20,679.79, then Tenant shall promptly deposit with Landlord upon written demand additional funds, as necessary, so that Tenant pays one hundred percent (100%) of Tenant’s actual share of the construction costs of the Demised Premises. The Demised Premises shall be deemed “ready for occupancy” when Landlord’s Work has been substantially completed (except for minor finishing jobs); provided, however, that if Landlord’s Work is delayed because of a default or failure, or both, of Tenant, then the Demised Premises shall also be deemed “ready for occupancy” when Landlord’s Work would have been substantially completed if Tenant’s default or failure, or both, had not occurred. When the Demised Premises are ready for occupancy (which, unless Tenant objects and Landlord’s architect or general contractor fails to certify to the date selected by the Landlord, shall be the date Landlord delivers to Tenant a written or verbal statement to the effect that they are ready for occupancy), Tenant agrees to accept possession thereof and to proceed with due diligence to perform Tenant’s Work, as described inArticle IV below, and to open for business at the Demised Premises. Tenant agrees that at the request of Landlord, Tenant will, following the Commencement Date, execute and deliver a written statement acknowledging that Tenant has accepted possession and reciting the exact Commencement Date and expiration date of this lease.
B. If for any reason the Demised Premises are not ready for occupancy by the estimated date specified inSection 1.1(k) above, Landlord cannot be deemed to be in default or otherwise liable in damages to Tenant, nor shall the term of this lease be affected. If, however, for any reason the Demised Premises are not ready for occupancy by July 1, 2006, Landlord cannot be deemed to be in default or otherwise liable in damages to Tenant, but this lease will automatically terminate, in which event, neither party will have any further liabilities or obligations except that Landlord must repay to Tenant any prepaid rent or security deposit.
C. In the event of any dispute as to work performed or required to be performed by Landlord or Tenant, the certificate of Landlord’s architect or general contractor is conclusive. By occupying the Demised Premises, Tenant will be deemed to have accepted the same and to have acknowledged that the same fully comply with Landlord’s covenants and obligations under this lease. Occupancy of the Demised Premises by Tenant prior to the Commencement Date is subject to all of the terms and provisions of this lease, excepting only those requiring the payment of rent.
ARTICLE II
PRE-CONSTRUCTION OBLIGATIONS
If Tenant desires any improvements within the Demised Premises other than those described inArticles III and IV of thisExhibit “C” orExhibit “C-l” attached to this lease, then the provisions set forth in thisArticle II will apply to such improvements:
A. All plans, diagrams, schedules, specifications and other data relating to Tenant’s preferences in connection with Landlord’s Work must be furnished by Tenant to Landlord complete, sufficient to obtain a building permit, and ready for Landlord’s consideration and final
28
approval within five (5) days after execution of this lease (or at such time as may be specified in this exhibit).
B. Tenant shall secure Landlord’s written approval of all designs, plans, specifications, materials, construction schedule, contractors and contracts for work to be performed by Tenant before beginning the work (including following whatever “work letter” instructions, if any, which Landlord may deliver to Tenant in connection with the work), and shall secure all necessary licenses and permits to be used in performing the work. Tenant’s finished work shall be subject to Landlord’s approval and acceptance.
C. Should Tenant request and Landlord approve any variation in the interior finishing of the Demised Premises, and if such items are a part of Landlord’s Work as described below, the variation must be incorporated in the plans to be furnished by Tenant. In such event, Tenant must pay to Landlord any increase in the cost of Landlord’s Work, including, without limitation, design, architectural and other professional costs, as determined by Landlord or its contractor or architect at the time of incorporation of such variation into Landlord’s Work.
D. The insurance requirements underArticle l5 of the lease and the indemnity requirements underArticle 16 of the lease shall apply during the construction contemplated in this exhibit, and Tenant must provide evidence of appropriate insurance coverage prior to beginning any of Tenant’s Work. In addition, and without limiting the generality of the immediately preceding sentence, at Landlord’s option, Landlord may require that prior to beginning any of Tenant’s Work, Tenant must provide Landlord with evidence of insurance covering both Tenant and Tenant’s contractor against damage to their personal property, as well as against third-party liability and worker’s compensation claims arising out of all construction and associated activities, as stated below:
| | |
| 1. Worker’s Compensation at statutory limits, as required by the state where work is being performed and Employer’s Liability with limits no less than One Million Dollars ($1,000,000.00) for each accident or occupational disease. |
| | |
| 2. Commercial General Liability, including Premises Operations, Products, and Completed Operations Liability, Independent Contractors Liability, Contractual Liability and Broad Form Property Damage Liability with limits no less than: |
| | |
| Bodily Injury and | Two Million Dollars |
| ($2,000,000.00) |
| Property Damage Liability | each occurrence/aggregate |
| |
| Personal Injury Liability | Two Million Dollars |
| ($2,000,000.00) | |
| | each occurrence/aggregate |
| |
| Such liability insurance shall provide coverage for explosion, collapse, and underground exposures, if applicable, and contractual liability coverage, shall insure Tenant’s contractors and any subcontractors against any and all claims for personal injury, including death resulting therefrom, and damage to property of others arising from operations under contracts whether such operations are performed by Tenant’s contractors or by any subcontractor for whose acts any of them may be liable and shall include the condition that it is primary and that any liability insurance maintained by Landlord or any other additional insured is excess and noncontributory. |
| |
| 3. Comprehensive Automobile Liability Insurance, including the ownership, maintenance, and operation of any automobile equipment owned, hired, and non-owned, including the loading and unloading thereof in the following minimum amounts: |
| | |
| Bodily Injury and | Two Million Dollars |
| ($2,000,000.00) | |
| Property Damage Liability | each accident |
| |
| 4. Umbrella Liability Insurance covering all operations of contractor with limits no less than: |
| | |
| Bodily Injury and | Two Million Dollars |
| ($2,000,000.00) | |
| Property Damage Liability | each occurrence/aggregate |
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| | |
| 5. Builder’s Risk Completed Value Form covering All Risks of Physical Loss or Damage on Tenant’s Work in the Demised Premises as it relates to the building in which the Demised Premises are located, naming the interests of Landlord and its agents and employees and Tenant’s contractors as additional insureds, as their respective interests may appear. |
| | |
All policies of insurance are subject to Landlord’s prior approval and special conditions, including the following: |
| | |
| a. Each policy must be endorsed to provide that the carrier waives its right of subrogation against Landlord and its general partners, agents, managers, and lenders. During Landlord’s construction activities, each such policy shall in addition be endorsed to provide that the carrier waives its right of subrogation against Landlord’s general contractor. |
| | |
| b. Each policy shall be endorsed to name Landlord and its general partners, agents, managers, and lenders as additional insureds, and that the policy is primary over any other applicable insurance. During Landlord’s construction activities, each such policy shall in addition be endorsed to name Landlord’s general contractor. |
ARTICLE III
DESCRIPTION OF LANDLORD’S WORK
The work to be done by Landlord is limited to the purchase and installation of all items required to complete the work described inArticles III and V of thisExhibit “C”, subject to the terms of thisExhibit “C”.
| | | |
| A. | Structure: |
| | |
| | 1. | Exterior building walls, roof, and all structural items shall be provided per Landlord’s design and specifications. |
| | | |
| | 2. | A flat concrete floor slab shall be installed to receive Tenant’s selected floor finish. |
| | | |
| B. | Building Finishes: |
| | |
| | 1. | Interior fire escape type stairs shall be installed. |
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| | 2. | ADA accessible men’s and/or women’s restrooms shall be provided for each floor. |
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| | 3. | Building standard doors, frames, and hardware shall be provided only for the building core areas, such as stairs, restrooms, service and utility closets and other public areas, as required. |
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| | 4. | Glass shall be thermal window units. |
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| | 5. | Building standard 2’X2’ suspended grid will be installed, continuous, over interior partitions and demising walls. Ceiling height is 9’-2” in all Tenant improvement areas. Building standard ceiling tile will be furnished and is to be installed by the Tenant. |
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| | 6. | Interior walls shall be limited to perimeter drywall at elevator shafts, stairs shafts, restrooms, corridors and support rooms within the core areas. The interior surface of exterior walls will be 5/8” gypsum board to roof deck on metal studs with R-19 insulation. Finish will include tape and bed only. Side wall demising partitions for Tenant’s premises shall extend to the ceiling grid and are Tenant’s responsibility. Tenant’s side of corridor walls will be 5/8” gypsum board to 8” above ceiling with R-11 insulation. Finish will include tape and bed only. |
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| | 7. | Drywall ceilings shall be limited to the restrooms, lower lobbies and stairwells. |
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| | 8. | Interior finishes/paint shall be at the elevator lobbies, stairs, restrooms and common corridors. |
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| | 9. | Restrooms shall be completely fitted with the appropriate toilet partitions and accessories. |
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| C. | Mechanical/Electrical/Utilities |
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| | 1. | All elevators shall be hydraulic. |
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| | 2. | Fire sprinklers shall be included on the basis of an open area concept (code minimum). The sprinkler heads will be turned up for modification by the Tenant contractor. |
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| | 3. | Primary electrical service shall be extended into the Building along with main panels. |
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| | 4. | 2’ X 4’ fluorescent fixtures with 24 cell parabolic reflectors (LF-1) are building standard and will be provided at the rate of one (1) per 134 square feet of usable area. These fixtures will be installed in the ceiling grid but not wired. |
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| | | Fire alarm systems shall be per code minimum. |
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| | 5. | Conditioned air will be extended to the Demised Premises. This consists of fan powered induction boxes (PIB) located in the above ceiling areas of the shell building. Tenant provides secondary distribution from the PIB to their individual space. |
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| | 6. | Landlord shall provide a means of supplying telephone service for the building. Telephone service to individual suites will be provided by the Tenant. |
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| D. | Parking Areas and Walks: |
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| | 1. | Parking areas must be hard surfaced. |
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| | 2. | Walks must be surfaced with concrete, stone, brick or other hard material as specified by Landlord. |
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| | 3. | Parking areas and walks must be provided with reasonably adequate artificial lighting. |
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| E. | Limitations and Conditions: |
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| | 1. | Landlord’s Work is limited to that required by thisArticle III and byArticle V. All work not so classified as Landlord’s Work is Tenant’s Work. |
| | | |
| | 2. | Landlord will perform work which is in excess of that required by thisArticle III and byArticle V only after Tenant has deposited full payment for same (estimated amount of $20,679.79) with Landlord in the form of cash, money order or cashier’s check as provided in Article I, Item A of thisExhibit “C” (with any delay in Tenant’s making such deposit to be deemed a default under this lease, without the requirement of additional notice from Landlord, and causing Tenant’s time period for completing Tenant’s Work and opening for business to commence as if Tenant’s delay had not occurred). |
| | | |
| | 3. | Landlord will provide Tenant with keys to corridor entry doors, upon move in, at no charge. Landlord will be sole provider of keys to the Demised Premises. Changes to key or core interior doors are the responsibility of the Tenant. |
31
ARTICLE IV
DESCRIPTION OF TENANT’S WORK
A. If Tenant desires any improvements within the Demised Premises other than those described inArticles III and V of thisExhibit “C” or inExhibit “C-l” attached to this lease, all such work must be undertaken by Tenant at Tenant’s expense and must not damage the building or any part thereof. Any roof penetration shall be performed by Landlord’s roofer or, at Landlord’s option, by a bonded roofer approved in advance by Landlord. The work shall be begun only after Landlord has given consent, which consent shall in part be conditioned upon Tenant’s plans, to include materials acceptable to Landlord, in order to prevent injury to the roof and to spread the weight of any equipment being installed. Tenant shall also be responsible for obtaining, and paying for, professional inspections of any structural work (including, without limitation, any roof work or concrete work).
B. Tenant is responsible for all fixtures, furniture, and equipment within the Demised Premises except as otherwise expressly set forth in this lease.
C. All work undertaken by Tenant shall be awarded to Landlord’s contractor unless, before any construction begins, Tenant chooses and receives Landlord’s written approval for another contractor to complete Tenant’s Work.
ARTICLE V
TURNKEY IMPROVEMENTS BY LANDLORD
A. Notwithstanding anything to the contrary set forth elsewhere in thisExhibit “C”, Landlord agrees to provide at its sole cost and expense, using building standard materials, all mechanical, electrical and plumbing components and all partitions, doors, carpet, ceiling and exterior window blinds, if any, pursuant to the plan for the Demised Premises on suchExhibit “C-1” (except where suchExhibit “C-l” indicates that any such item is to be provided by Tenant or where it otherwise indicates that any such item is not Landlord’s responsibility); provided, however, that regardless of what might be indicated on suchExhibit “C-l”, Landlord is not responsible in any manner for any security alarm system, appliances or telephone/data lines (other than providing empty conduit, to the extent, if any, set forth onExhibit “C-l” ). Tenant must pay Landlord in advance for any construction upgrades which it desires for the Demised Premises, and such upgrades must be incorporated into the approved, final plans and specifications so as not to delay Landlord’s construction efforts. Tenant is solely responsible and shall install at Tenant’s expense all furniture, fixtures, equipment, and phone and data lines within the Demised Premises.
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| INITIALED: | |
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| LANDLORD: | 
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| TENANT: | 
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32
EXHIBIT “C-1”
DEPICTION OF LANDLORD’S WORK
| QSI
286 Grand Avenue
Suite 201
Southlake, TX 76092 |
33
EXHIBIT “D”
PROHIBITED AND RESTRICTED USES
| |
1. | any use which constitutes a public or private nuisance; |
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2. | any use causing loud noises or noxious or offensive smoke or odors (including any business using exterior loud speakers); |
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3. | manufacturing facility; |
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4. | dry cleaner (except facilities for drop off and pick up of clothing cleaned at another location); |
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5. | any facility for the sale, lease, or rental of automobiles, trucks, motorcycles, recreational vehicles, boats or other vehicles; |
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6. | automobile repair shop or service station or any facility storing or selling gasoline or diesel fuel in or from tanks; |
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7. | used clothing or thrift store or liquidation outlet; |
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8. | massage parlor; |
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9. | adult book shop or adult movie house or so-called “head” shop; |
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10. | off-track betting, gambling, or gaming facility; |
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11. | currency exchange, check cashing or payday loan facility; |
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12. | mortuary or funeral parlor; |
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13. | motor inn or any transient residential use; |
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14. | coin operated laundry; |
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15. | cocktail lounge, night club, bar or tavern or sale of alcoholic beverages, whether or not packaged; |
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16. | cinema or theater; |
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17. | place of recreation (including but not limited to bowling alley, skating rink, carnival game arcade, gymnasium, disco, or banquet hall); |
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18. | church; |
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19. | fast food drive-throughs; |
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20. | children’s recreational, education, or day-care facility; |
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21. | telemarketing; |
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22. | schools of any nature (as used herein, “school” includes, but is not limited to, a beauty school, barber college, reading room, place of instruction or any other operation serving primarily students or trainees rather than retail customers); |
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23. | any type of medical, dental, or other health professional office; |
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24. | any other use inconsistent with the operation of an upscale, high-end, high quality retail and professional office development; and |
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25. | any unlawful use. |
EXHIBIT “E”
RELINQUISHMENT OF LIEN RIGHTS
| |
THE STATE OF TEXAS | § |
| § |
COUNTY OF ________________ | § |
The undersigned, by written agreement dated _____________, 2006, (the “Agreement”), has contracted with _________________ (“Tenant”) to furnish certain labor and materials (the “Work”) on the Tenant’s leasehold estate in certain improvements located on the real property described onExhibit A hereto (the “Property”), which is owned by _________________ (“Owner”).
The undersigned, in performing such Work, acknowledges that it has entered into a contract with Tenant for the performance thereof and that any lien rights it may have arising out of performing such work, including, but not limited to, mechanics’ and materialmens’ liens, whether arising under statutory or constitutional law, shall attach to and affect only the Tenant’s leasehold estate, and in no event shall the undersigned have any such lien rights in, to or with respect to, the fee title to the Property.
This Relinquishment of Lien Rights is entered into for good and valuable consideration, including the Owner’s agreement to provide certain inducements to the Tenant with respect to performance of the Work.
Executed as of ______________________, 2006.
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THE STATE OF TEXAS | § |
| § |
COUNTY OF _______________ | § |
This instrument was acknowledged before me on the ___ day of ____________, 2006, by ___________ ________________ of _________________________, a ____________________________, on behalf of said ___________________________.
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| Notary Public, State of Texas |
EXHIBIT “F”
SIGN CRITERIA
Signs will be designed to promote the downtown atmosphere, establish identities of tenants, and give clear, functional information. All signage will be subject to Landlord’s prior written consent, including graphic design, materials, construction and method of installation.
I. DEFINITIONS
Awning: A covering attached to a building or structure, erected in or over a window or door, and usually supported by gravity and a metal frame.
Projection: The distance by which a sign extends over public property or beyond the building line.
Sign, Awning: “Awning Sign” means a sign consisting of one line of letters painted, placed or installed upon the valance of any awning or canopy and an identification emblem, insignia, initial or other similar feature painted, placed or installed elsewhere on any awning or canopy; provided, that any sign, emblem, insignia, initial or other similar feature shall comply with all other appropriate provisions of this title. Where steel canopies are used, the Awning Sign may consist of individually cut out metal letters placed on the top of the canopy’s outside edge parallel to the face of the building.
Sign, Blade: Any sign, oriented perpendicular to the face of the building, identifying the name of the business, affixed to or supported by a building or structure, which projects more than twelve inches (12”) beyond the surface of that portion of the building or structure to which it is affixed or supported.
Sign, Building Blade: A primary Blade Sign permitted either: (a) in lieu of a Fascia Sign; and/or (b) at a building corner.
Sign, Building Identification: Any sign stating the use and name given to the use of a building, structure or area, when such use is permitted in the zone in which the sign is located.
Sign, Fascia: A sign affixed directly to the exterior wall or screening surface, confined within the limits thereof, and which projects from the surface less than twelve inches (12”) at all points, and located either: (a) above the first floor storefront, and below the second level windows; or (b) where permitted, above the upper story windows and below the next level windows or building parapet, as applicable. Fascia Signs are displayed parallel to the face of the building, and identify the name of the business.
Sign, Pedestrian Blade: A secondary Blade Sign which indicates use or business name and/or logo, located at least seven feet (7’) above ground.
II. ADMINISTRATION
A. Submittals. Landlord’s approval will be required for all signs to assure compatibility with the architecture and to verify compliance with these guidelines. There will be three (3) sequential signage submittals to and/or reviews by Landlord:
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| 1. The concept submittal sketch should indicate the size, shape, color, illumination, material palette, and type face. Sign(s) should be shown superimposed in scale on the building elevation. |
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| 2. The shop drawing submittal should indicate structural attachments, construction details, materials, power requirements, illumination levels, dimensions, etc. Each submittal should also include an updated elevation drawing with the sign shown in scale. |
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| 3. Final review by Landlord of the installation must occur prior to Tenant’s final payment to the sign contractor. |
B. Permits. The City of Southlake will require a sign permit. Tenant is responsible for the sign
permit(s), including, without limitation, applying for and obtaining the same.
C. Costs. All costs associated with the signs and awnings, including design, construction, permitting, installation, coordination, and supporting structural and electrical infrastructure will be borne
by Tenant. This also includes removal of the signs and awnings upon the expiration or termination of the lease.
D. Limitations. Signs are limited to the name under which Tenant does business, not including logos or associated names or trademarks. Use of logos as a decorative element will be reviewed on an individual basis and, if approved, will be limited to Tenant’s business logo and will not extend to products or services offered by Tenant.
E. Compliance. Tenant is responsible for strict compliance with these guidelines. Landlord retains the right but not the obligation to notify Tenants of infractions to the guidelines, and may take any action it deems necessary to bring Tenant into compliance.
III. SIGN REGULATIONS
A. Number of Signs- The following number of signs shall be permitted.
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| 1. First Floor – There shall be permitted up to a combination of two (2) of the following three (3) types of signs per use. On each storefront wall which faces a street, drive, or parking area: (a) one (1) Fascia Sign or one (1) Building Blade Sign; and (b) one (1) Pedestrian Blade Sign, with all such signs subject to the area requirements. A Building Blade Sign shall be permitted at a building corner in addition to permitted Fascia Signs, provided such sign is erected at a 135° angle to the building corner. |
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| 2. Above the First Floor - For lease space above the first floor, one (1) Window Sign or (1) Awning Sign at every other window shall be permitted. In addition, one (1) Fascia Sign may be permitted on facades of fifty feet (50’) or more in length. |
B. Maximum Letter/Logo Height
Lettering. Except as otherwise provided, lettering size shall be determined by the maximum sign area allowed. Lettering on the following types of Signs shall not exceed the maximum size indicated:
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Building Blade Sign | - | twelve inches (12”) |
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Pedestrian Blade Sign | - | eight inches (8”) |
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First Floor Window/Awning Sign | - | twelve inches (12”) |
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Upper Story Fascia Sign | - | ten inches (10”) |
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Upper Story Window/ Awning Sign | - | four inches (4”) |
C. Maximum Area
The total area of all signs displayed on a storefront wall which faces a street, drive or parking area shall not exceed one (1) square foot for each foot of storefront width facing the street, drive or parking area. Size of the following types of Signs shall not exceed the maximum area indicated:
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Fascia Sign | - | thirty (30) sq.ft. |
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Building Blade Sign | - | twelve (12) sq.ft. |
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Pedestrian Blade Sign | - | four (4) sq.ft. |
Notwithstanding the foregoing, on any frontage where public access and a storefront are not provided, allowable signage on such frontage shall be limited to not more than seventy-five percent (75%) of the area of the principal signage permitted where public access and a storefront are provided.
The area of all faces of a Blade Sign shall be included in determining the area of the sign, except where two (2) such faces are placed back to back and are at no point more than two (2) feet from one another, in which case the area of the Blade Sign shall be taken as the area of a single face if the two (2) faces are of equal area, or as the area of the larger face if the two (2) faces are of unequal area.
For multi-story buildings, the Maximum Area shall be permitted only for signs displayed between the sidewalk and a height of twenty feet (20’) on any storefront wall. The total area of all signs displayed above the twenty foot (20’) height limit shall be: (a) for permitted Fascia Signs, one-half (0.5) square foot for every one foot (1’) of width of building or lease space; and (b) for Window Signs and Awning Signs, limited to signage which does not obscure more than twenty-five percent (25%) of the total window area.
D. Illumination
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| | Examples of permitted first floor signs include: |
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| | • | Exterior illuminated (by externally mounted spot lighting) |
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| | • | Silhouette Lighting (e.g., neon illumination behind a solid, opaque letter) |
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| | • | Up lighting (e.g., projecting fixtures attached to the building under the letters) |
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| | • | Sign box panel with push through letters, internally illuminated. |
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| | • | Exposed neon lighting |
Neon signs will be reviewed on an individual basis. If the neon contributes decoratively to the environment and does not create a presence which diminishes attention to its neighbors, approval will be considered.
Illumination of signs shall be designed, located, shielded and directed in such a manner that the light source is fixed and is not directly visible from, and does not cast glare or direct light from artificial illumination upon, any adjacent public right-of-way, surrounding property, residential property or motorist’s vision.
Attached signs may not be illuminated by internally illuminated, face lit channel cut letters.
Awnings, Awning Signs, Window Signs and Signs above the first floor shall not be permitted to be illuminated.
E. Signs over/on ROW – Blade Signs shall not be higher than the eave line or parapet wall of the top of the principal building; shall be a minimum of seven feet (7’) above grade when located adjacent to or projecting over a pedestrian way; and shall not extend more than four feet (4’) from the building wall to which they are attached, except where such sign is an integral part of an approved canopy or awning.
F. Awnings. Awnings may be permitted on a case-by-case basis and will be subject to Landlord review and approval.
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| 1. Awning materials can be fabric or painted metal. Material samples must be submitted with design. The design, color and material must be approved in writing by Landlord prior to fabrication. |
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| 2. Awnings must extend not less than three feet (3’) and not more than three feet six inches (3’6”) from the building face. The bottom of the structure must be at least seven feet (7’) above the sidewalk. Each awning must be equal in length to the window behind it. All awnings on any facade must be at the same height, although adjacent facades may vary in height. |
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| 3. Signage on the awnings is limited to the vertical front edge of the awning in text and/or graphics and in color approved by Landlord. Logos will be permitted as approved by Landlord on the top surface only in the event that they are used decoratively and are limited to Tenant’s logo. No signage is permitted on the underside of the awning. |
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| 4. Awnings with closed, illuminated soffits are not permitted. |
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| 5. Awning and support framing will be installed by Tenant subject to Landlord’s prior written approval as to method of installation. |
G. Service Door Signs. Non-customer doors receiving merchandise will have uniformly applied signs designed and installed by Landlord at Tenant’s expense. Tenant will supply Tenant’s name and address to Landlord for sign fabrication and installation.
H. Temporary Signs.
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| 1. Window Signs - Window signs are permitted during construction of tenant improvements to obscure up to one hundred percent (100%) of the total window area, provided that no such sign may be displayed for a period longer than 120 days. |
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| 2. Construction Barricades - Signage on a construction barricade shall be permitted along each building or lease space frontage for sites under construction, provided that: |
| | | |
| | • | No such barricade shall be located within twenty-five feet (25’) of a public right-of-way; and |
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| | • | Such signs may be erected and maintained only for a period beginning not earlier than five (5) days prior to commencement of construction and shall be removed upon termination of construction, with the total of such period not to exceed 120 days. |
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| 3. Any temporary signs such as “Opening Soon” or “Sale” signs must be approved by Landlord in writing in advance. |
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| I. Unacceptable Signage. |
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| 1. Prohibitions include the following: |
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| | | a. | Internally illuminated, face lit channel cut letters. |
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| | | b. | Internally illuminated boxes. |
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| | | c. | Flashing, rotating, blinking, or other moving signs. |
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| | | d. | Reader boards, matrix boards, or other light grids which can produce a changeable image. |
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| | | e. | Signs producing odors or sound. |
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| 2. Non-conforming signs will be reviewed on an individual basis by Landlord and the City of Southlake. Any signs which are not covered under these guidelines are not permitted unless specifically approved in writing, in advance, by Landlord. However, approval by Landlord does not guarantee approval by the City of Southlake. |
J. Non-Conforming Signs
In recognition of the uniqueness of the downtown environment, individuality of signage is encouraged. Certain signs, while not technically meeting the requirements set forth herein, will nonetheless be considered for approval on a case-by-case basis. Such signage may be approved if it:
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| | • | Harmonizes with the structure or structures on the parcel on which it is to be applied; |
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| | • | Is compatible with the other signs or graphic designs on the premises; |
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| | • | Is suitable and appropriate to the Town Square; |
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| | • | Contributes to any special characteristics of the particular area in which it is to be located; |
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| | • | Is well designed and pleasing in appearance; |
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| | • | Is desirable as an urban “downtown” design characteristic; |
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| | • | Does not constitute a nuisance to the occupants of adjacent or contiguous property; |
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| | • | Is not detrimental to property values; and |
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| | • | Does not constitute a traffic and safety hazard because it is distracting, or is not considered obscene, lewd, indecent or otherwise offensive to public morals. |
Approval of any such signage shall be subject to any conditions which in Landlord’s judgment are necessary to carry out the purposes and intent of the review standards.
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| INITIALED: | |
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| LANDLORD: | 
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| TENANT: | 
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EXHIBIT “G”
TENANT ESTOPPEL CERTIFICATE
| | | | |
To: | | ______________________________________________________________________ (“Lender”) |
| | | | |
Re: | | Property Address: | ______________________________________________________ (“Property”) |
| | Lease Date: ________________________________________________________________________ |
| | Between ___________________________________________________________ (“Landlord”) and |
| | ________________________________________________________________________ (“Tenant”) |
| | Square Footage Leased: ______________________________________________________________ |
| | Suite No./Floor: _________________________________________________________ (“Premises”) |
Tenant understands that Lender is contemplating making a loan (the “Loan”) to Landlord. The undersigned, as the tenant under the above-referenced lease (“Lease”) hereby certifies to Lender, the following:
1. The Lease is in full force and effect and has not been modified, supplemented, or amended in any way except by amendment(s) dated ________________________, ____ [Please insert the phrase “N/A” if the Lease has not been amended] and, together with such referenced amendments (if any), represents the entire agreement between the parties as to the Premises or any portion thereof. As used in this estoppel, the term Lease shall be deemed to include any amendments referenced in the first sentence of thisParagraph 1. Attached hereto is a true, correct and complete copy of the Lease. [Attach Lease, including all amendments]
2. The amount of fixed monthly rent is $_________; the monthly common area or other charges are $_________. If applicable, the base year for operating expenses and real estate taxes, as defined in the Lease, is ______________. No such rent has been or will be paid more than one (1) month in advance of its due date, except:____________________________________________________.
3. The undersigned’s security deposit is $________. The undersigned has paid rent for the Premises up to and including _________, 2006. The undersigned hereby waives collection of the deposit against Lender or any purchaser at a foreclosure sale, unless Lender or such purchaser actually received the deposit from Landlord.
4. Lender will not be bound by any material modification or amendment to the Lease made without Lender’s prior written consent, which consent shall be Landlord’s responsibility to obtain.
5. The commencement date of the Lease was __________________, 2006, the Lease terminates on _______________, ______ and we have the following renewal/extension option(s) ______________________
__________________________________________________.
6. All work to be performed for us under the Lease has been performed as required and has been accepted by us; and any payments, free rent, or other payments, credits, allowances or abatements required to be given by Landlord to us have already been received by us, except _____________________________________
__________________________________________________.
7. The Lease is free from default by Landlord; we have no offset, defense, deduction or claim against Landlord.
8. The undersigned has received no notice of any prior sale, assignment, pledge or other transfer of the said Lease or of the rents received therein, except ______________________________________________
__________________________________________________.
9. The undersigned has not assigned said Lease or sublet all or any portion of the Premises, the undersigned does not hold the Premises under assignment or sublease, nor does anyone except us and our employees occupy the Premises except __________________________________________________________
__________________________________________________.
10. The undersigned has no right or option to purchase all or any part of the Premises or the building of which the Premises is a part or to occupy any additional space at the Property.
11. No actions, whether voluntary or otherwise, are pending against the undersigned under the bankruptcy laws of the United States or any state and there are no claims or actions pending against the undersigned which if decided against us would materially and adversely affect our financial condition or our ability to perform the tenant’s obligations under the Lease.
12. Tenant acknowledges that Landlord has assigned to Lender its right, title and interest in the Lease and to the rents due thereunder, and that Landlord will collect such rents provided no event of default has occurred under the Loan. Tenant agrees to pay all rents and other amounts due under the Lease directly to Lender upon receipt of written demand by Lender, and Landlord hereby consents thereto. The assignment of the Lease to Lender, or collection of rents by Lender pursuant to such assignment, shall not obligate Lender to perform Landlord’s obligations under the Lease.
13. If the undersigned is not the party named in the Lease, describe below the chain of assignments into the undersigned and attach a copy of each assignment document hereto:____________________________
__________________________________________________.
14. The undersigned recognizes that Lender would not make the Loan to Landlord but for its execution of this Tenant Estoppel Certificate. The statements contained herein may be relied upon by the Lender its successors and assigns and by third (3rd) parties who are interested in the matters covered by this Tenant Estoppel Certificate.
15. In the event that Lender succeeds to the interest of Landlord or any successor to Landlord, then Tenant hereby agrees to attorn to and accept Lender and to recognize Lender as its landlord under the Lease for the then remaining balance of the term thereof, and upon request of Lender, Tenant shall execute and deliver to Lender an agreement of attornment reasonably satisfactory to Lender.
If we are a corporation, the undersigned is a duly appointed officer of the corporation signing this certificate and is the incumbent in the office indicated under his name. In any event, the undersigned is duly authorized to execute this certificate.
Dated this ____ day of ____________________, 2006.
| | |
TENANT: | |
___________________________________________________ |
|
a(n) ________________________________________________ |
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By: | _____________________________________________ |
Name: | _____________________________________________ |
Title: | _____________________________________________ |
ATTACH LEASE, including all amendments
EXHIBIT “H”
NONDISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT (the “Agreement”) is made and entered into as of the _____________ day of _______________________, 2006, by and betweenQUALITY SYSTEMS INC., a California corporation, d/b/a QSI, Inc. (the “Tenant”), whose address is 18191 Von Karman Ave., Suite 450, Irvine, California 92612-7113, andINLANDWESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation (“Lender”), whose address for purposes hereof is 2901 Butterfield Road, Oak Brook, Illinois 60523, Attention: General Counsel.
RECITALS:
SLTS GRAND AVENUE, L.P., a Texas limited partnership (the “Landlord”), owns the land described inExhibit.“ A” attached hereto and hereby made a part hereof for all purposes (the “Land”).
Reference is hereby made to that certain Lease Agreement dated effective ______________________________, 2006, between Landlord, as landlord, and Tenant, as tenant, (said Lease Agreement shall herein be referred to as the “Lease Agreement”). Pursuant to the terms of the Lease Agreement, Tenant is the owner of a leasehold estate in a portion of the existing improvements located on the Land (such portion of the Land, and the leased improvements thereon, being herein called the “Premises”). The Lease Agreement, together with all subsequent renewals, extensions and modifications of the Lease Agreement which are made in accordance with the terms hereof, are hereinafter collectively called the “Lease.”
Landlord has executed or will execute one or more Deed of Trust and Security Agreements (collectively, the “Mortgage”) covering, among other property, the Land in favor of the Lender as security for indebtedness of Landlord to the Lender as more particularly described therein.
As a condition to the extension by the Lenders to Landlord of the indebtedness to be evidenced or secured by the Mortgage, the Lender has required that Tenant subordinate Tenant’s leasehold interest in the Premises to all liens, security interests and assignments securing payment of any and all indebtedness now or hereafter secured by the Mortgage.
Tenant is willing to proceed with such subordination of its leasehold interest; provided, however, that as a condition to such subordination, Tenant has required that Tenant’s right of possession to the Premises shall not be disturbed by the Lender or any third any in the exercise of any of the Lender’s rights under the Mortgage and all other security instruments securing payment of any of the indebtedness of Landlord secured by the Mortgage, which protection the Lender is willing to grant in order to induce Tenant to proceed with such subordination.
AGREEMENTS:
In consideration of the premises and the sum of Ten Dollars ($10.00) paid by the Lender to Tenant, the receipt and sufficiency of which is hereby acknowledged by Tenant, the Lender and Tenant mutually agree as follows:
1. Tenant hereby acknowledges to the Lender that the Lease is in full force and effect and has not been changed since execution. As of the date hereof, the Lease embodies the entire agreement between Landlord and Tenant and there are no side letters or other ancillary agreements between Landlord and Tenant. To the best of Tenant’s knowledge, as of the effective date hereof, there exists no default on the part of Landlord or Tenant under the Lease.
2. Tenant covenants and agrees with the Lender that all of Tenant’s right, title and interest in and to the Premises and any other interest of Tenant in the Land and any improvements thereon are and shall be subject, subordinate and inferior to (a) the lien and security interests of the Mortgage and all renewals, increases, replacements, extensions or modifications thereof and all other security instruments securing payment of any indebtedness of Landlord secured by the Mortgage, including any future advances made with respect to the Land and/or any improvements thereon, and (b) all right, title and interest of the Lender in the Land and the improvements thereon, including, without limitation, the Premises, pursuant to the Lender’s enforcement of the lien and security interest of the Mortgage and/or any lien or security interest of any other security instruments securing payment of any indebtedness of Landlord secured by the Mortgage.
3. The Lender covenants and agrees with Tenant that, so long as no event of default by Tenant has occurred and is continuing under the Lease (after the expiration of the applicable notice and
curative periods contained therein, if any), the Lender shall not disturb Tenant’s right of possession to the Premises in the event that the Lender or the Lender’s successors or assigns, or any other purchaser at any foreclosure sale pursuant to the Mortgage or any other security instrument (hereinafter referred to as a “Foreclosure Transferee”) acquires title to all or any part of the Premises pursuant to the exercise of any remedy provided for in the Mortgage or any other security instrument, nor shall Tenant be named as a party defendant to any action to foreclose the liens and security interests of the Mortgage or any other security instrument, except to the extent required by applicable law.
4. Tenant covenants and agrees to attorn to the Lender or any other Foreclosure Transferee, as Tenant’s new landlord, and agrees that the Lease shall continue in full force and effect as a direct lease between Tenant and the Lender or any other Foreclosure Transferee, if applicable, upon all of the terms, covenants, conditions and agreements set forth in the Lease;provided,however, the Lender or such other Foreclosure Transferee shall not be:
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| a. liable for any act, omission or breach of warranty or representation of any prior landlord, including Landlord, including without limitation, failure by Landlord to timely complete the construction of any of the improvements required to be constructed upon the Land pursuant to the terms of the Lease; |
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| b. subject to any offset, defense or counterclaim which Tenant might be entitled to assert against any prior landlord, including Landlord; |
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| c. bound by any payment of rent, additional rent or other sum made by Tenant to Landlord for more than one (1) month in advance of its due date under the Lease; |
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| d. bound by any amendment or modification of the Lease hereafter made without the prior written consent of the Lender; |
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| e. personally liable for any obligation under the Lease, it being understood that any recovery of a judgment by Tenant against Lender or such other Foreclosure Transferee, as the case may be, shall be limited strictly to Lender or such Foreclosure Transferee’s interest in the Land and the improvements thereon; |
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| f. required to make any repairs to the Premises or any other improvements located on the Land as a result of any fire or other casualty or by reason of condemnation unless Lender or such other Foreclosure Transferee, as the case may be, shall be obligated under the Lease to make such repairs and shall have received sufficient casualty insurance proceeds or condemnation awards, as the case may be, to finance completion of such repairs; and |
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| g. in any way responsible for any deposit or security which was not delivered to the Lender or the Foreclosure Transferee, as applicable. |
To the extent of any conflict between the provisions of this Section 4 and the provisions of the Lease, the provisions of this Section 4 shall control as to the Lender, a Foreclosure Transferee or any subsequent holders of the indebtedness secured by the Mortgage.
5. Tenant hereby agrees to give written notice to the Lender of any default of Landlord under the Lease, contemporaneously with delivery of such notice to Landlord. It is further agreed that such notice will be given to any successor in interest of the Lender under the Mortgage provided that prior to any such default of Landlord, such successor in interest shall have given written notice to Tenant of its acquisition of the Lender’s interest therein, and shall have designated the address to which such notice is to be directed. Notwithstanding any provisions of the Lease to the contrary, Tenant may not terminate the Lease as a result of any default by Landlord without affording to the Lender or its successors a period of time to remedy any such default equal to the greater of (a) sixty (60) days or (b) the curative period afforded Landlord for such default under the provisions of the Lease, such period to commence upon the effective delivery date to the Lender of Tenant’s notice of such default pursuant to Section 8 of this Agreement.
6. After notice is given to Tenant by the Lender that an Event of Default (as defined in Mortgage) has occurred and that rentals due and payable under the Lease should be paid directly to the Lender pursuant to the terms of one or more of the assignments of rents (collectively, the “Rent Assignments”) executed and delivered or to be executed and delivered by Landlord to the Lender in connection with the Mortgage, Tenant shall thereafter pay directly to Lender all rentals and other monies due or to become due and payable under the Lease. The Lender hereby represents and warrants to Tenant that under the terms of said Rent Assignments, Landlord has expressly authorized Tenant to make such payments directly to the Lender and Landlord has released and discharged Tenant from any liability to
Landlord on account of any such payments made to the Lender in accordance with the Lender’s written instructions to Tenant.
7. Any use of the terms “Landlord,” “Tenant,” or “Lender” are hereby deemed to refer to and include, not only the original party named in this Agreement in such respective capacities, but also any and all heirs, legal representatives, successors or assigns of any such parties with respect to such parties’ interest in the Lease, the Premises or in the indebtedness secured by the Mortgage.
8. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing and shall be given or served by depositing in the United States Mail, postpaid, registered or certified, return receipt requested, or by Federal Express or comparable overnight delivery service, and addressed, as to the Lender, to the address set forth on the first page hereof, and as to Tenant, to the address set forth on the first page hereof. All notices, demands and requests shall be deemed effective and received two (2) business days after being deposited in the United States Mail or one (1) business day after being deposited with Federal Express or comparable overnight delivery service for next business day delivery. By giving ten (10) days prior written notice thereof pursuant to the provisions hereof, Tenant or the Lender shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses.
9. This Agreement may not be discharged or modified orally or in any manner other than by an agreement in writing specifically referred to this Agreement and signed by all parties hereto.
10. The provisions hereof shall be self-operative and effective without the necessity of execution of any further instruments on the part of any party hereto or the respective heirs, legal representatives, successors or assigns of any such party. This Agreement may be executed in multiple counterparts.
This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
(signature blocks on following page)
IN TESTIMONY WHEREOF, this instrument is executed effective as of the day and year first above written.
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| LENDER: |
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| INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC.,
a Maryland corporation |
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| By: | |
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| Name: | |
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| Title: | |
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: | LANDLORD: |
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| SLTS GRAND AVENUE, L.P., |
| a Texas limited partnership |
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| By: | SLTS Grand Avenue Genpar, L.L.C.,
a Texas limited liability company,
its general partner |
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| | By: | Cooper & Stebbins, L.P.,
sole member |
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| | | By: | CS Town Centres, LLC,
general partner |
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| | | | By: | |
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| | | | | Brian R. Stebbins,
Member |
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| TENANT: |
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| QUALITY SYSTEMS INC.,
a California corporation,
d/b/a QSI, Inc. |
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| By: | |
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| Name: | |
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| Title: | |
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STATE OF________________ | § | |
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COUNTY OF______________ | § | |
This instrument was acknowledged on the____ day of ____________________, 2006, by ________________________________________, _________________________________________ of Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, on behalf of said corporation.
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| Notary Public in and for the State of______________ |
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STATE OF TEXAS | § | |
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COUNTY OF TARRANT | § | |
This instrument was acknowledged by me on this _____ day of ________________, 2006, by Brian R. Stebbins, Member of CS Town Centres, LLC, as general partner of Cooper & Stebbins, L.P., as sole member of SLTS Grand Avenue Genpar, L.L.C., a Texas limited liability company, as general partner of SLTS Grand Avenue, L.P., a Texas limited partnership, on behalf of such limited liability companies and limited partnerships.
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| Notary Public for the State of Texas |
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STATE OF TEXAS | § | |
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COUNTY OF______________ | § | |
This instrument was acknowledged on the ____ day of ____________________, 2006, by ________________________________________, ________________________________________ of Quality Systems Inc., a California corporation, d/b/a QSI, Inc., on behalf of said corporation.
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| Notary Public in and for the State of Texas |
EXHIBIT “I”
LANDLORD’S SUBORDINATION
The undersigned is the Landlord pursuant to lease dated ________________________________ (the “Lease”) betweenSLTS GRAND AVENUE, L.P.,a Texas limited partnership, as Landlord andQUALITY SYSTEMS INC.,a California corporation, d/b/a QSI, Inc. as Tenant for the Demised Premises located at ________________________________________________, Southlake, Texas 76092.
Wherein Tenant, in order to induce ________________________________________________ (“Lender”), to make all or any part of a loan to Tenant (“Loan”), Landlord hereby, in order to enable Tenant to obtain the Loan from Lender, subordinates its lien, whether constitutional, statutory or contractual, in any personal property or removable trade fixtures of Tenant now or hereafter located on the Demised Premises (the “Collateral”, to the security interest of Lender in the Collateral, and agrees that Landlord’s lien in the Collateral shall be inferior to Lender’s security interest in the Collateral. In the event Tenant is in default under the Loan and Lender shall deem it necessary or desirable to foreclose on Lender” security interest, and to take possession of the Collateral, Lender may, upon ten (10) days prior written notice to Landlord, enter the Demised Premises and remove and take possession of the Collateral; provided, however, that Lender will only be entitled to enter onto the Demised Premises for the minimum period of time necessary to remove the Collateral. If Landlord delivers written notice to Lender requiring that Lender remove the Collateral and Lender does not do so within thirty (30) days after the date of such notice, then Lender will be deemed conclusively to have abandoned the Collateral and Landlord may remove the Collateral and dispose of it as Landlord wishes without being required to account for such disposition or the Collateral to Lender. If Lender’s removal of the Collateral damages the Demised Premises or the Project in any way, then Lender must, upon demand by Landlord, reimburse Landlord for the cost of repairing the Demised Premises or the Project or both, as the case may be. Before Lender enters upon the Demised Premises or at any time while Lender is in the Demised Premises, Landlord may make a reasonable estimate of the anticipated cost of such repair work and require Lender to deposit a reasonably estimated amount with Landlord as a condition to Lender’s right to enter upon or continue to enter upon the Demised Premises, although such estimate will not be binding upon Landlord and will not limit Lender’s liability to Landlord for such damage to the Demised Premises.
Lender agrees to provide to Landlord copies of any notices of default or foreclosure proceedings contemporaneously with providing such notices to Tenant.
Dated this ____ day of __________________________, 2006.
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| | | | | LANDLORD: |
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| | | | | SLTS GRAND AVENUE, L.P., |
| | | | | a Texas limited partnership |
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| | | | | By: | SLTS Grand Avenue Genpar, L.L.C., |
| | | | | | a Texas limited liability company, |
| | | | | | its general partner |
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| | | | | | By: | Cooper & Stebbins, L.P., |
| | | | | | | sole member |
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| | | | | | | By: | CS Town Centres, LLC, |
| | | | | | | | general partner |
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| | | | | | | | By: | |
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| | | | | | | | | Brian R. Stebbins, |
| | | | | | | | | Member |
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STATE OF TEXAS | § | |
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COUNTY OF TARRANT | § | |
This instrument was acknowledged by me on this _____ day of _________________, 2006, by Brian R. Stebbins, Member of CS Town Centres, LLC, as general partner of Cooper & Stebbins, L.P., as sole member of SLTS Grand Avenue Genpar, L.L.C., a Texas limited liability company, as general partner of SLTS Grand Avenue, L.P., a Texas limited partnership, on behalf of such limited liability companies and limited partnerships.
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| Notary Public for the State of Texas |
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Address of Lender for Notice: | |
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Address of Landlord: | c/o Cooper & Stebbins, L.P. |
| 1256 Main Street, Suite 240 |
| Southlake, Texas 76092 |
EXHIBIT “J”
COMMUNICATION ANTENNA
1. License to Use Antenna Site. Throughout the term, Landlord grants to Tenant a nonexclusive license to install, maintain, and operate a communication satellite dish and associated cabling (collectively, “Antenna ”) on a portion of the roof of the building designated by Landlord as the “Antenna Site ”. Tenant may use the Antenna Site only for the purpose of providing communications services for Tenant’s business activities in the building – Tenant may not provide communications services from the Antenna Site for any third party. Landlord shall provide reasonable access to the Antenna Site to Tenant and Tenant’s contractors, subject to Landlord’s rules and regulations regarding controlled access to the roof. Tenant’s access to the Antenna must be coordinated through Landlord and Landlord’s representative may accompany Tenant or any of Tenant’s contractors during such access. Landlord makes no representation to Tenant regarding the suitability of the Antenna Site for Tenant’s Antenna – Landlord is not responsible for any electrical output, electromagnetic output, radio frequency, or other interference with the Antenna. Furthermore, Tenant covenants that its Antenna may not interfere with any other communication equipment on the roof of the building or with Landlord’s building systems.
2. Installation. Tenant shall install the Antenna on the Antenna Site in accordance with plans, specifications and technical standards approved in advance by Landlord. These plans and specifications must indicate the size of the Antenna, the means of attaching the Antenna to the roof of the building, and the methods for screening the Antenna so that it is not visible to the public from the Common Areas or public streets. Tenant and Tenant’s contractors performing the installation of the Antenna must comply with the terms and conditions ofArticle XI (Alterations) andExhibit “C” to the Lease. Any penetrations of the building roof must be performed by a contractor designated by Landlord so as to maintain the building roof warranties. Landlord may elect to perform any of such work which affects building systems with its own personnel or contractors, and Tenant shall promptly reimburse Landlord therefor, as additional rent.
3. Governmental Compliance. Tenant is solely responsible for securing, at Tenant’s expense, all necessary approvals from state, federal and other governmental authorities to construct, operate and maintain the Antenna, but Landlord shall reasonably cooperate with Tenant to obtain these approvals. Tenant shall construct and maintain the Antenna in accordance with the requirements of the insurers of the building and with reasonable rules, regulations and technical standards of Landlord relating to use of the building roof as Landlord may establish from time to time. Tenant shall give to Landlord written notice of any notices received by Tenant from third parties stating that the Antenna is or may be in violation of any law, ordinance or regulation.
4. License Fee. In consideration of this license granted by Landlord, Tenant shall pay Landlord, without demand, offset or counterclaim, a monthly fee of $100.00 commencing upon the installation of the Antenna and continuing until Tenant’s removal of all of its equipment from the Antenna Site. Landlord may increase this monthly fee for any renewal of the initial term. Additionally, Tenant shall pay for all electricity consumed by such Antenna and the cost of any separate meters to determine such consumption.
5. Maintenance and Removal of Antenna. Tenant shall maintain Antenna in good working order and repair and shall keep the area immediately surrounding the Antenna neat and clean. Tenant may not erect or display any sign, advertisement, placard or lettering on such Antenna. Tenant’s use and maintenance of the Antenna may not create any nuisance or interfere with any other licensee or tenant of the Building. Landlord has no obligation to maintain, operate or safeguard the Antenna. Upon the expiration or termination of the lease or at any time that Tenant is no longer using the Antenna, Tenant must remove the Antenna at Tenant’s sole cost and expense and must promptly repair, at its own expense, any damage to the building resulting from this removal.
