Exhibit 10.8
* * * * * * * * * * * * * * * * * * * * * *
LEASE AGREEMENT
BETWEEN
Xxxxxxxx Properties Acquisition Partners, L.P.,
a Delaware limited partnership
(Landlord)
AND
Partners Holdings, Inc.,
a Delaware corporation
(Tenant)
Cielo Center
0000 Xxxxx Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Dated: September 20, 2001
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TABLE OF CONTENTS - LEASE AGREEMENT
Page
ARTICLE 1 BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS ............... 1
ARTICLE 2 PREMISES AND QUIET ENJOYMENT .................................. 2
ARTICLE 3 TERM; COMMENCEMENT DATE; DELIVERY
AND ACCEPTANCE OF PREMISES ................................ 3
ARTICLE 4 RENT .......................................................... 3
ARTICLE 5 INTENTIONALLY DELETED ......................................... 4
ARTICLE 6 PARKING ....................................................... 4
ARTICLE 7 SERVICES OF LANDLORD .......................................... 4
ARTICLE 8 ASSIGNMENT AND SUBLETTING ..................................... 5
ARTICLE 9 REPAIRS ....................................................... 7
ARTICLE 10 ALTERATIONS .................................................. 8
ARTICLE 11 LIENS ........................................................ 9
ARTICLE 12 USE AND COMPLIANCE WITH LAWS ................................. 9
ARTICLE 13 DEFAULT AND REMEDIES ......................................... 10
ARTICLE 14 INSURANCE .................................................... 11
ARTICLE 15 DAMAGE BY FIRE OR OTHER CAUSE ................................ 12
ARTICLE 16 CONDEMNATION ................................................. 13
ARTICLE 17 INDEMNIFICATION .............................................. 14
ARTICLE 18 SUBORDINATION AND ESTOPPEL CERTIFICATES ...................... 15
ARTICLE 19 SURRENDER OF THE PREMISES .................................... 16
ARTICLE 20 LANDLORD'S RIGHT TO INSPECT .................................. 17
ARTICLE 21 SECURITY DEPOSIT ............................................. 17
ARTICLE 22 BROKERAGE .................................................... 17
ARTICLE 23 OBSERVANCE OF RULES AND REGULATIONS .......................... 17
ARTICLE 24 NOTICES ...................................................... 18
ARTICLE 25 MISCELLANEOUS ................................................ 18
ARTICLE 26 SUBSTITUTION SPACE ........................................... 20
ARTICLE 27 OTHER DEFINITIONS ............................................ 21
EXHIBITS AND RIDERS
The following Exhibits and riders are attached hereto and by
this reference made a part of this Lease:
EXHIBIT A - FLOOR PLAN OF THE PREMISES
EXHIBIT B - THE LAND
EXHIBIT C - FORM OF COMMENCEMENT NOTICE
RIDER NO. 1 - RULES AND REGULATIONS
INDEX OF DEFINED TERMS
Definitions of certain terms used in this Lease are
found in the following sections:
TERM LOCATION OF
DEFINITION
Branch System ......................................................... 12
Central Areas ......................................................... 25
Central Systems ....................................................... 11
Landlord .............................................................. 5
Service Areas ......................................................... 25
Successor Landlord .................................................... 19
Tenant ................................................................ 5
Tenant's Property ..................................................... 15
this Lease ............................................................ 5
LEASE AGREEMENT
THE LEASE AGREEMENT ("this Lease") is made and entered into by and
between Xxxxxxxx Properties Acquisition Partners, L.P., a Delaware limited
partnership ("Landlord") and Partners Holdings, Inc., a Delaware corporation
("Tenant"), upon all the terms set forth in this Lease and in all Exhibits and
Riders hereto, to each and all of which terms Landlord and Tenant hereby
mutually agree, and in consideration of One Dollar ($1.00) and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
of the rents, agreements and benefits flowing between the parties hereto, as
follows:
ARTICLE 1
BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS
1.01 Each reference in this Lease to information and definitions contained
in the Basic Lease Information and Certain Definitions and each use of the terms
capitalized and defined in this Section 1.01 shall be deemed to refer to, and
shall have the respective meaning set forth in, this Section 1.01.
A. Premises: The portion of the floor of Building 2,
presently known as suite No(s). 2-200, as said
space is identified by diagonal lines on the
floor plans attached hereto as Exhibit A.
B. Building: The three (3) interconnected six (6) story
office buildings owned by Landlord on the Land
generally located at 0000 Xxxxx Xxxxxxx xx Xxxxx
Xxxxxxx, Xxxxxx, Xxxxx, known as Cielo Center.
C. Land: That certain parcel of land described under the
caption "Land" in Exhibit B hereof.
D. Parking Facilities: The parking garage which is located adjacent to
the Building, together with all surface parking
areas located or to be located on the Land.
E. Project: The Land and all improvements thereon, including
the Building, the Parking Facilities, and all
Common Areas.
F. Commencement Date: That certain date on which the Term shall
commence, as determined pursuant to the
provisions of Article 3 hereof.
G. Expiration Date: N/A
H. Term: Month-to-month, beginning on the Commencement
Date and ending at 11:59 p.m. on the date
specified in writing by either party to the
other upon no less than thirty (30) days prior
written notice, unless this Lease is sooner
terminated as provided herein.
I. Net Rentable Area of the 270,711 square feet.
Building:
J. Net Rentable Area of the Approximately 3,397 square feet.
Premises:
K. Omitted.
L. Rent: The Base Rent and the Additional Rent.
M. Base Rent: The Base Rent shall be $84,925.00 per annum
($25.00 per square foot per annum of Net
Rentable Area of the Premises).
N. Additional Rent: The Additional Rent shall be all other sums due
and payable by Tenant under this Lease.
O. Omitted.
P. Parking Spaces: Tenant shall be entitled to take twelve (12)
unassigned Parking Spaces, at no charge during
the initial Term.
Q. Tenant's Permitted Uses: Tenant may use the Premises for executive and
administrative offices for the conduct of
Tenant's business and for no other purpose.
R. Security Deposit: None.
S. Broker: The Staubach Company
T. Landlord's Address for
Notice: Xxxxxxxx Properties Acquisition Partners, L.P.
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxx,
Xxxxx 00000 Attention: J. Xxxxx Xxxxxxx, Esq.
with copies to:
Xxxxxxxx Properties Acquisition Partners, L.P.
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxx,
Xxxxx 00000 Attention: Xxxxxx XxXxxx
U. Landlord's Address for Xxxxxxxx Properties Acquisition Partners, L.P.
Payment: X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
V. Tenant's Address for 0000 Xxxxx Xxxxxxx xx XxxxxXxxxxxx, Xxxxx 0-000
Xxxxxx: Xxxxxx,
Xxxxx 00000 Attention:
Xxxxxxx X. Xxxxxxxx
ARTICLE 2
PREMISES AND QUIET ENJOYMENT
2.01 Landlord hereby leases the Premises to Tenant, and Tenant hereby
rents and leases the Premises from Landlord, for the Term. During the Term,
Tenant shall have the right to use, in common with others and in accordance with
the Rules and Regulations, the Common Areas.
2.02 Provided that Tenant fully and timely performs all the terms of this Lease
on Tenant's part to be performed, including payment by Tenant of all Rent,
Tenant shall have, hold and enjoy the Premises during the Term without hindrance
or disturbance from or by Landlord; subject, however, to all
of the terms, conditions and provisions of any and all ground leases, deeds to
secure debt, mortgages, governmental laws, easements, protective covenants, and
other encumbrances now or hereafter affecting the Premises, or the Project.
ARTICLE 3
TERM; COMMENCEMENT DATE;
DELIVERY AND ACCEPTANCE OF PREMISES
3.01 The Commencement Date shall be October 1, 2001.
3.02 Landlord shall deliver the Premises to Tenant freshly painted and
with additional electrical outlets installed according to tenants' requirements.
3.03 The Net Rentable Area of the Premises and the Building are
approximately as stated in Sections 1.01I and J, respectively. By written
instrument substantially in the form of Exhibit C attached hereto, Landlord
shall notify Tenant of the Commencement Date, the Net Rentable Area of the
Premises and all other matters stated therein. The Commencement Notice shall be
conclusive and binding on Tenant as to all matters set forth therein, unless
within five (5) days following delivery of such Commencement Notice, Tenant
contests any of the matters contained therein by notifying Landlord in writing
of Tenant's objections. The foregoing notwithstanding, Landlord's failure to
deliver any Commencement Notice to Tenant shall not affect Landlord's
determination of the Commencement Date.
3.04 Tenant may not enter or occupy the Premises prior to the
Commencement Date without Landlord's express written consent and any entry by
Tenant shall be subject to all of the terms of this Lease; provided however,
that no such early entry shall change the Commencement Date or the Expiration
Date. Tenant shall be granted early access to the space for the purpose of
voice, data and furniture installation.
3.05 Occupancy of the Premises or any portion thereof by Tenant or
anyone claiming through or under Tenant for the conduct of Tenant's, or such
other person's business therein shall be conclusive evidence that Tenant and all
parties claiming through or under Tenant (a) have accepted the Premises as
suitable for the purposes for which the Premises are leased hereunder, (b) have
accepted the Common Areas as being in a good and satisfactory condition and (c)
have waived any defects in the Premises and the Project. Landlord shall have no
liability, except for gross negligence or willful misconduct, to Tenant or any
of Tenant's agents, employees, licensees, servants or invitees for any injury or
damage to any person or property due to the condition or design of, or any
defect in, the Premises or the Project, including any electrical, plumbing or
mechanical systems and equipment of the Premises or the Project and the
condition of or any defect in the Land; and Tenant, for itself and its agents,
employees, licensees, servants and invitees, expressly assumes all risks of
injury or damage to person or property, either proximate or remote, resulting
from the condition of the Premises or the Project.
ARTICLE 4
RENT
4.01 Tenant shall pay to Landlord, without notice, demand, offset or
deduction, in lawful money of the United States of America, at Landlord's
Address for Payment, or at such other place as Landlord shall designate in
writing from time to time: (a) the Base Rent in equal monthly installments, in
advance, on the first day of each calendar month during the Term, and (b) the
Additional Rent, at the respective times required hereunder. The first monthly
installment of Base Rent shall be paid in advance
on the date of Tenant's execution of this Lease and applied to the first
installments of Base Rent coming due under this Lease. Payment of Rent shall
begin on the Commencement Date; provided, however, that, if either the
Commencement Date or the Expiration Date falls on a date other than the first
day of a calendar month, the Rent due for such fractional month shall be
prorated on a per diem basis between Landlord and Tenant so as to charge Tenant
only for the portion of such fractional month falling within the Term.
4.02 All past due installments of Rent shall bear interest of 5% of the
amount owed.
ARTICLE 5
INTENTIONALLY DELETED
ARTICLE 6
PARKING
6.01 Landlord hereby grants to Tenant a license to use in common with
other tenants and with the public, the Parking Spaces in the Parking Facilities
as set forth in Section 1.01. Landlord shall not be obligated to provide Tenant
with any additional Parking Spaces. If Tenant fails to observe the Rules and
Regulations with respect to the Parking Facilities, then Landlord, at its
option, shall have the right to terminate Tenant's Parking Spaces, without legal
process, and to remove Tenant, Tenant's vehicles and those of its employees,
licensees or invitees and all of Tenant's personal property from the Parking
Facilities.
ARTICLE 7
SERVICES OF LANDLORD
7.01 A. During the Term, Landlord shall furnish Tenant with the
following services: (a) hot and cold water in Building standard bathrooms and
chilled water in Building standard drinking fountains; (b) electrical power
sufficient for lighting the Premises and for the operation therein of
typewriters, voicewriters, calculating machines, word processing equipment,
photographic reproduction equipment, copying machines, personal computers, and
similar items of business equipment which consume, in the aggregate, less than
four (4) xxxxx per square foot of Net Rentable Area of the Premises and require
a voltage of 120 volts single phase or less, (c) heating, ventilating or
air-conditioning, as appropriate, during Business Hours; (d) electric lighting
for the Common Areas of the Project; (e) passenger elevator service, in common
with others, for access to and from the Premises twenty-four (24) hours per day,
seven (7) days per week; provided, however, that Landlord shall have the right
to limit the number of (but not cease to operate all) elevators to be operated
for repairs and after Business Hours and on Saturdays, Sundays and Holidays; (f)
janitorial cleaning services; (g) facilities for Tenant's loading, unloading,
delivery and pick-up activities, including access thereto during Business Hours,
subject to the Rules and Regulations; and (h) replacement, as necessary, of all
Building standard lamps and ballasts in Building standard light fixtures within
the Premises. All services referred to in this Section 7.01A shall be provided
by Landlord and paid for by Tenant as part of Rent.
B. If Tenant requires air-conditioning, heating or other services,
including cleaning services, for hours or days in addition to the hours and days
specified in Section 7.01A, Landlord shall provide such additional service after
reasonable prior written request therefor from Tenant, and
Tenant shall reimburse Landlord for the cost of such additional service.
Landlord shall have no obligation to provide any additional service to Tenant at
any time Tenant is in default under this Lease unless Tenant pays to Landlord,
in advance, the cost of such additional service.
C. Tenant shall not install any machinery or equipment which
generates abnormal heat or otherwise creates unusual demands on the
air-conditioning or heating system serving the Premises. Tenant shall not
install any electrical equipment requiring special wiring unless approved in
advance by Landlord. At no time shall use of electricity in the Premises exceed
the capacity of existing feeders and risers to or wiring in the Premises.
D. If Tenant's requirements for or consumption of electricity
exceed the capacities specified in Section 7.01A(b) hereof, Landlord shall, at
Tenant's sole cost and expense, xxxx Tenant periodically for such additional
service. The degree of such additional consumption by Tenant shall be determined
at Landlord's election, by either or both (a) a survey of standard or average
tenant usage of electricity in the Building performed by a reputable consultant
selected by Landlord and paid for by Tenant, and (b) a separate meter in the
Premises to be installed, maintained, and read by Landlord, all at Tenant's sole
cost and expense.
7.02 Landlord's obligation to furnish electrical and other utility
services shall be subject to the rules and regulations of the supplier of such
electricity of other utility services and the rules and regulations of any
municipal or other governmental authority regulating the business of providing
electricity and other utility services.
7.03 No failure to furnish, or any stoppage of, the services referred
to in this Article 7 resulting from any cause shall make Landlord liable in any
respect for damages to any person, property or business, or be construed as an
eviction of Tenant, or entitle Tenant to any abatement of Rent or other relief
from any of Tenant's obligations under this Lease. Should any malfunction of any
systems or facilities occur within the Project or should maintenance or
alterations of such systems or facilities become necessary, Landlord shall
repair the same promptly and with reasonable diligence, and Tenant shall have no
claim for rebate, abatement of Rent, or damages because of malfunctions or any
such interruptions in service.
ARTICLE 8
ASSIGNMENT AND SUBLETTING
8.01 Neither Tenant nor its legal representatives or successors in
interest shall, by operation of law or otherwise, assign, mortgage, pledge,
encumber or otherwise transfer this Lease or any part hereof, or the interest of
Tenant under this Lease, or in any sublease or the rent thereunder. The Premises
or any part thereof shall not be sublet, occupied or used for any purpose by
anyone other than Tenant, without Tenant's obtaining in each instance the prior
written consent of Landlord in the manner hereinafter provided. Tenant shall not
modify, extend, or amend a sublease previously consented to by Landlord without
obtaining Landlord's prior written consent thereto. Provided that no Event of
Default has occurred and is outstanding, Landlord agrees not to unreasonably
withhold its consent to any request by Tenant to assign this Lease or to
sublease the Premises, provided that Landlord may consider any reasonable factor
in determining whether to grant its consent to any such request to assign or
sublease. Landlord and Tenant specifically agree, without limitation, that
Landlord may reasonably refuse to consent to an assignment or subletting if the
proposed assignee or subtenant is (i) not financially capable of satisfying its
obligations under this Lease or its sublease, as the case may be, (ii) either a
governmental authority or agency, an organization or person enjoying sovereign
or diplomatic immunity, a medical or dental practice or other user which will
attract a volume, frequency or type of visitor or employee to the Building which
is not consistent with the standards of a high quality office building or which
will impose an excessive demand
on or use of the facilities or services of the Building, or (iii) not in keeping
with the tenant mix of the Building or not of the type of tenant which Landlord
would reasonably consider as a tenant in the Building.
8.02 An assignment of this Lease shall be deemed to have occurred (a) if
in a single transaction or in a series of transactions more than 50% in interest
in Tenant, any guarantor of this Lease, or any subtenant (whether stock,
partnership, interest or otherwise) is transferred, diluted, reduced, or
otherwise affected with the result that the present holder or owners of Tenant,
such guarantor, or such subtenant have less than a 50% interest in Tenant, such
guarantor or such subtenant, or (b) if Tenant's obligations under this Lease are
taken over or assumed in consideration of Tenant leasing space in another office
building. The transfer of the outstanding capital stock of any corporate Tenant,
guarantor or subtenant through the "over-the-counter" market or any recognized
national securities exchange (other than by persons owning 5% or more of the
voting calculation of such 50% interest of clause 8.02(a) above) shall not be
included in the calculation of such 50% interest in clause(a) above.
8.03 Notwithstanding anything to the contrary in Section 8.01, Tenant
shall have the right, upon ten (10) days' prior written notice to Landlord, to
(a) sublet all or part of the Premises to any related corporation or other
entity which controls Tenant, is controlled by Tenant or is under common control
with Tenant; or (b) assign this Lease to a successor corporation into which or
with which Tenant is merged or consolidated or which acquired substantially all
of Tenant's assets and property; provided that (i) such successor corporation
assumes substantially all of the obligations and liabilities of Tenant and shall
have assets, capitalization and net worth at least equal to the assets,
capitalization and net worth of Tenant as of the date of this Lease as
determined by generally accepted accounting principles, and (ii) Tenant shall
provide in its notice to Landlord the information required in Section 8.04. For
the purpose hereof "control" shall mean ownership of not less than 50% of all
the voting stock or legal and equitable interest in such corporation or entity.
8.04 If Tenant should desire to assign this Lease or sublet the Premises
(or any part thereof), Tenant shall give Landlord written notice no later than
thirty (30) days in advance of the proposed effective date of any other proposed
assignment or sublease, specifying (a) the name, current address, and business
of the proposed assignee or sublessee, (b) the amount and location of the space
within the Premises proposed to be so subleased, (c) the proposed effective date
and duration of the assignment or subletting, (d) the proposed rent or
consideration to be paid to Tenant by such assignee or sublessee, and (e)
financial statements and other information as Landlord may reasonably request to
evaluate the proposed assignment or sublease. For assignments and sublettings
other than those permitted by Section 8.03, Landlord shall have thirty (30) days
following receipt of such notice and other information requested by Landlord
within which to notify Tenant in writing that Landlord elects: (i) to terminate
this Lease as to the space so affected as of the proposed effective date set
forth in Tenant's notice, in which event Tenant shall be relieved of all further
obligations hereunder as to such space, except for obligations under Articles 17
and 22 and all other provisions of this Lease which expressly survive the
termination hereof; or (ii) to permit Tenant to assign or sublet such space;
provided, however, that, if the rent rate agreed upon between Tenant and its
proposed subtenant is greater than the rent rate that Tenant must pay Landlord
hereunder for that portion of the Premises, or if any consideration shall be
promised to or received by Tenant in connection with such proposed assignment or
sublease (in addition to rent), then fifty percent (50%) of such excess rent and
other consideration shall be considered Additional Rent owed by Tenant to
Landlord (less brokerage commissions, attorneys' fees and other disbursements
reasonably incurred by Tenant for such assignment and subletting); or (iii) to
refuse, in Landlord's reasonable discretion, to consent to Tenant's assignment
or subleasing of such space and to continue this Lease in full force and effect;
provided, so long as no Event of Default has occurred and is outstanding,
Landlord agrees not to unreasonably withhold its consent to a proposed
assignment or subletting taking into consideration the factors described in
Section 8.01 above. Tenant agrees to reimburse Landlord for legal
fees and any other reasonable costs incurred by Landlord in connection with any
permitted assignment or subletting. Tenant shall deliver to Landlord copies of
all documents executed in connection with any permitted assignment or
subletting, which documents shall be in form and substance reasonably
satisfactory to Landlord and which shall require any assignee to assume
performance of all terms of this Lease to be performed by Tenant or any
subtenant to comply with all the terms of this Lease to be performed by Tenant.
No acceptance by Landlord of any Rent or any other sum of money from any
assignee, sublessee or other category of transferee shall be deemed to
constitute Landlord's consent to any assignment, sublease, or transfer.
8.05 Any attempted assignment or sublease by Tenant in violation of the
terms and provisions of this Article 8 shall be void and shall constitute a
material breach of this Lease. In no event, shall any assignment, subletting or
transfer, whether or not with Landlord's consent, relieve Tenant of its primary
liability under this Lease for the entire Term, and Tenant shall in no way be
released from the full and complete performance of all the terms hereof. If
Landlord takes possession of the Premises before the expiration of the Term of
this Lease, Landlord shall have the right, at its option, to terminate all
subleases, or to take over any sublease of the Premises or any portion thereof
and such subtenant shall attorn to Landlord, as its landlord, under all the
terms and obligations of such sublease occurring from and after such date, but
excluding previous acts, omissions, negligence or defaults of Tenant and any
repair or obligation in excess of available net insurance proceeds or
condemnation award.
8.06 The term "Landlord," as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title to,
or a lessee's interest in a ground lease of, the Land or the Building. In the
event of any transfer, assignment or other conveyance or transfers of any such
title or interest, Landlord herein named, and in case of any subsequent
transfers, the then grantor shall be automatically freed and relieved from and
after the date of such transfer, assignment or conveyance of all liability as
respects the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed and, without further
agreement, the transferee of such title or interest shall be deemed to have
assumed and agreed to observe and perform any and all obligations of Landlord
hereunder, during its ownership of the Project. Landlord may transfer its
interest in the Project without the consent of Tenant and such transfer or
subsequent transfer shall not be deemed a violation on Landlord's part of any of
the terms of this Lease.
ARTICLE 9
REPAIRS
9.01 Except for ordinary wear and tear and except as otherwise provided
in Section 9.02, Landlord shall perform all maintenance and make all repairs and
replacements to the Premises. Tenant shall pay to Landlord the actual cost
(including a fee equal to fifteen percent (15%) of actual costs to cover a fee
for Landlord's agent or manager) for (a) all maintenance, repairs and
replacements within the Premises, other than maintenance, repairs and
replacements to any Building system or component within the Building core
serving the tenants in the Building ("Central Systems") located within the
Premises; or (b) all repairs and replacements necessitated by damage to the
Project (including the Building structure and the Central Systems) caused by the
negligence or willful misconduct of Tenant or its agents, contractors, invitees
and licensees. Amounts payable by Tenant pursuant to this Section 9.01 shall be
payable on demand after receipt of an invoice therefor from Landlord. Landlord
has no obligation and has made no promise to maintain, alter, remodel, improve,
repair, decorate, or paint the Premises or any part thereof, except as
specifically set forth in this Lease. In no event shall Landlord have any
obligation to maintain, repair or replace any furniture, furnishings, fixtures
or personal property of Tenant.
9.02 Tenant shall keep the Premises in good order and in a safe, neat
and clean condition. No representations respecting the condition of the Premises
or the Building or the other portions of the Project have been made by Landlord
to Tenant except as specifically set forth in this Lease. Except as provided in
Section 10.01 or specifically consented to by Landlord, Tenant shall not perform
any maintenance or repair work or make any replacement in or to the Premises,
and any branch of a Central System serving the Premises ("Branch System"), but
rather shall promptly notify Landlord of the need for such maintenance, repair
or replacement so that Landlord may proceed to perform the same. In the event
Landlord specifically consents to the performance of any maintenance or the
making of any repairs or replacements by Tenant and Tenant fails to promptly
commence and diligently pursue the performance of such maintenance or the making
of such repairs or replacements, then Landlord, at its option, may perform such
maintenance or make such repairs and Tenant shall reimburse Landlord, on demand
after Tenant receives an invoice therefor, the cost thereof plus fifteen percent
(15%) of the actual costs to cover a fee for Landlord's agent or manager.
9.03 All repairs made by Tenant pursuant to Section 9.02 shall be
performed in a good and workmanlike manner by contractors or other repair
personnel selected by Tenant and approved by Landlord; provided, however, that
neither Tenant nor its contractors or repair personnel shall be permitted to do
any work affecting the Central Systems of the Building.
9.04 Subject to the other provisions of this Lease imposing obligations
regarding repair upon Tenant, Landlord shall repair all machinery and equipment
necessary to provide the services of Landlord described in Article 7 and for
repair of all portions of the Project which do not comprise a part of the
Premises and are not leased to others.
ARTICLE 10
ALTERATIONS
10.01 Tenant shall not at any time during the Term make any alterations
to the Premises without first obtaining Landlord's written consent thereto,
which consent Landlord shall not unreasonably withhold or delay but which
consent may be conditioned upon Tenant's agreement to remove the alterations at
the end of the Term. Should Tenant desire to make any alterations to the
Premises, Tenant shall submit all plans and specifications for such proposed
alterations to Landlord for Landlord's review and approval before Tenant allows
any such work to commence. Tenant shall select and use only contractors approved
by Landlord. Upon Tenant's receipt of written approval from Landlord and upon
Tenant's payment of any third party review costs reasonably incurred by
Landlord, Tenant shall have the right to proceed with the construction of all
approved alterations, in strict compliance with the approved plans and
specifications. All alterations shall be made at Tenant's sole cost and expense,
either by Tenant's contractors or, at Tenant's option, by Landlord's contractor
on terms reasonably satisfactory to Tenant, including a fee of fifteen percent
(15%) of the actual costs of such work to cover a fee for Landlord's agent or
manager in supervising and coordinating such work. In no event, however, shall
anyone other than Landlord or Landlord's employees or representatives perform
work to be done which affects the Central Systems of the Building.
10.02 All construction, alterations and repair work done by or for
Tenant shall (a) be performed in such a manner as to maintain harmonious labor
relations; (b) not adversely affect the safety of the Project, the Building or
the Premises or the systems thereof and not affect the Central systems of the
Building; (c) comply with all building, safety, fire, plumbing, electrical, and
other codes and governmental and insurance requirements; (d) not result in any
usage in excess of Building standard of water, electricity, gas, or other
utilities or of heating, ventilating or air-conditioning (either during or after
such work); (e) be completed promptly and in a good and workmanlike manner and
in compliance with, and
subject to, all of the provisions of the Lease; and (f) not disturb Landlord or
other tenants in the Building. After completion of any alterations to the
Premises, Tenant will deliver to Landlord a copy of "as built" plans and
specifications depicting and describing such alterations.
10.03 All leasehold improvements, alterations and other physical
additions made to or installed by or for Tenant in the Premises shall be and
remain Landlord's property (except for Tenant's furniture, personal property and
movable trade fixtures). Tenant agrees to remove, at its sole cost and expense,
all of Tenant's furniture, personal property and movable trade fixtures from the
Premises, on or before the Expiration Date or any earlier date of termination of
this Lease. Tenant shall repair, or promptly reimburse Landlord for the cost of
repairing, all damage done to the Premises or the Building by such removal. If
Tenant fails to remove any of Tenant's furniture, personal property or movable
trade fixtures by the Expiration Date or any sooner date of termination of the
Lease or, if Tenant fails to remove any leasehold improvements, alterations and
other physical additions made by Tenant to the Premises which Landlord advised
Tenant at the time of installation were to be removed at the end of the Term,
Landlord shall have the right, on the fifth (5th) day after Landlord's delivery
of written notice to Tenant, to deem such property abandoned by Tenant and to
remove, store, sell, discard or otherwise deal with or dispose of such abandoned
property in a commercially reasonable manner. Tenant shall be liable for all
costs of such disposition of Tenant's abandoned property, and Landlord shall
have no liability to Tenant in any respect regarding such property of Tenant.
The provisions of this Section 10.03 shall survive the expiration or any earlier
termination of this Lease.
ARTICLE 11
LIENS
11.01 Tenant shall keep the Project, the Building and the Premises and
Landlord's interest therein free from any liens arising from any work performed,
materials furnished, or obligations incurred by, or on behalf of Tenant. Notice
is hereby given that neither Landlord nor any mortgagee or lessor of Landlord
shall be liable for any labor or materials furnished to Tenant. If any lien is
filed for such work or materials, such lien shall encumber only Tenant's
interest in leasehold improvements on the Premises. Within thirty (30) days
after Tenant learns of the filing of any such lien, Tenant shall either
discharge and cancel such lien of record or post a bond sufficient under the
laws of the State of Texas to cover the amount of the lien claim plus any
penalties, interest, attorneys' fees, court costs, and other legal expenses in
connection with such lien. If Tenant fails to so discharge or bond such lien
within thirty (30) calendar days after written demand from Landlord, Landlord
shall have the right, at Landlord's option, to pay the full amount of such lien
without inquiry into the validity thereof, and Landlord shall be promptly
reimbursed by Tenant, as Additional Rent, for all amounts so paid by Landlord,
including expenses, interest, and attorneys' fees.
ARTICLE 12
USE AND COMPLIANCE WITH LAWS
12.01 The Premises shall be used only for executive and administrative
offices for the conduct of Tenant's business limited to the uses specifically
set forth in Section 1.01Q and for no other purposes whatsoever. Tenant shall
use and maintain the Premises in a clean, careful, safe, lawful and proper
manner and shall not allow within the Premises, any offensive noise, odor,
conduct or private or public nuisance or permit Tenant's employees, agents,
licensees or invitees to create a public or private nuisance or act in a
disorderly manner within the Building or in the Project. Landlord represents
that any certificate of occupancy issued with respect to the Premises shall
allow use for executive and administrative offices.
12.02 Tenant shall, at Tenant's sole expense, (a) comply with all laws,
orders, ordinances, and regulations of federal, state, county, and municipal
authorities having jurisdiction over the Premises, (b) comply with any
directive, order or citation made pursuant to law by any public officer
requiring abatement of any nuisance or which imposes upon Landlord or Tenant any
duty or obligation arising from Tenant's occupancy or use of the Premises or
from conditions which have been created by or at the request or insistence of
Tenant, or required by reason of a breach of any of Tenant's obligations
hereunder or by or through other fault of Tenant, (c) comply with all insurance
requirements applicable to the Premises and (d) indemnify and hold Landlord
harmless from any loss, cost, claim or expense which Landlord incurs or suffers
by reason of Tenant's failure to comply with its obligations under clauses (a),
(b) or (c) above. If Tenant receives notice of any such directive, order
citation or of any violation of any law, order, ordinance, regulation or any
insurance requirement, Tenant shall promptly notify Landlord in writing of such
alleged violation and furnish Landlord with a copy of such notice.
ARTICLE 13
DEFAULT AND REMEDIES
13.01 The occurrence of any one or more of the following events shall
constitute an Event of Default (herein so called) of Tenant under this Lease:
(a) if Tenant fails to pay any Rent hereunder as and when such Rent becomes due
and such failure shall continue for more than five (5) days after Landlord gives
Tenant written notice of past due Rent; (b) if Tenant fails to pay Rent on time
more than twice in any period of twelve (12) months; (c) if the Premises become
vacant, deserted, or abandoned for more than thirty (30) consecutive days; (d)
if Tenant dissolves its business; (e) if any petition is filed by or against
Tenant or any guarantor of this Lease under any present or future section or
chapter of the United States bankruptcy code, or under any similar law or
statute of the United States or any state thereof (which, in the case of an
involuntary proceeding, is not permanently discharged, dismissed, stayed, or
vacated, as the case may be, within sixty (60) days of commencement), or if any
order for relief shall be entered against Tenant or any guarantor of this Lease
in any such proceedings; (f) if Tenant or any guarantor of this Lease becomes
insolvent or makes a transfer in fraud of creditors or makes an assignment for
the benefit of creditors; (g) if a receiver, custodian, or trustee is appointed
for the Premises or for all or substantially all of the assets of Tenant or of
any guarantor of this Lease, which appointment is not vacated within sixty (60)
days following the date of such appointment; or (h) if Tenant fails to perform
or observe any other terms of this Lease and such failure shall continue for
more than thirty (30) days after Landlord gives Tenant notice of such failure,
or, if such failure cannot be corrected within such thirty (30) day period, if
Tenant does not commence to correct such default within said thirty (30) day
period and thereafter diligently prosecute the correction of same to completion
within a reasonable time.
13.02 Upon the occurrence of any Event of Default, Landlord shall have
the right, at Landlord's option, to elect to do any one or more of the following
without further notice or demand to Tenant:
(a) terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and, if Tenant fails to so surrender,
Landlord shall have the right to enter upon and take possession of the Premises
and to expel or remove Tenant and its effects without being liable for
prosecution or any claim for damages therefor; and Tenant shall, and hereby
agrees to, indemnify Landlord for all loss and damage which Landlord suffers by
reason of such termination, including damages in an amount equal to the total of
(1) the costs of recovering the Premises and all other expenses incurred by
Landlord in connection with Tenant's default; (2) the unpaid Rent earned as of
the date of termination, plus interest at the Interest Rate; (3) the total Rent
which Landlord would have received under this Lease for the remainder of the
Term, but discounted to the then present value at a rate of eight percent (8%)
per annum, minus the fair market rental value for the balance of the Term,
determined as of
the time of such default, discounted to the then present value at a rate of
eight percent (8%) per annum; and (4) all other sums of money and damages owing
by Tenant to Landlord; or
(b) enter upon and take possession of the Premises without
terminating this Lease and without being liable to prosecution or any claim for
damages therefor, and, if Landlord elects, relet the Premises on such terms as
Landlord deems advisable, in which event Tenant shall pay to Landlord on demand
the cost of repossession, renovating, repairing and altering the Premises for a
new tenant or tenants and any deficiency between the Rent payable hereunder and
the rent paid under such reletting; provided, however, that Tenant shall not be
entitled to any excess payments received by Landlord from such reletting.
Landlord's failure to relet the Premises shall not release or affect Tenant's
liability for Rent or for damages; or
(c) enter the Premises without terminating this Lease and without
being liable for prosecution or any claim for damages therefor and maintain the
Premises and repair or replace any damage thereto or do anything for which
Tenant is responsible hereunder. Tenant shall reimburse Landlord immediately
upon demand for any expenses which Landlord incurs in thus effecting Tenant's
compliance under this Lease, and Landlord shall not be liable to Tenant for any
damages with respect thereto.
13.03 No agreement to accept a surrender of the Premises and no act or
omission by Landlord or Landlord's agents during the Term shall constitute an
acceptance or surrender of the Premises unless made in writing and signed by
Landlord. No re-entry or taking possession of the Premises by Landlord shall
constitute an election by Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant. No provision of this Lease shall be
construed as an obligation upon Landlord to mitigate Landlord's damages under
the Lease.
13.04 No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing and signed by Landlord. Landlord's
acceptance of Rent following an Event of Default hereunder shall not be
construed as a waiver of such Event of Default. No custom or practice which may
grow up between the parties in connection with the terms of this Lease shall be
construed to waive or lessen Landlord's right to insist upon strict performance
of the terms of this Lease, without a written notice thereof to Tenant from
Landlord.
13.05 The rights granted to Landlord in this Article 13 shall be
cumulative of every other right or remedy provided in this Lease or which
Landlord may otherwise have at law or in equity or by statute, and the exercise
of one or more rights or remedies shall not prejudice or impair the concurrent
or subsequent exercise of other rights or remedies or constitute a forfeiture or
waiver of Rent or damages accruing to Landlord by reason of any Event of Default
under this Lease.
ARTICLE 14
INSURANCE
14.01 A. Tenant, at its sole expense, shall obtain and keep in force
during the Term the following insurance: (a) "All Risk" insurance insuring all
property located in the Premises, including furniture, equipment, fittings,
installations, fixtures, supplies and any other personal property ("Tenant's
Property"), in an amount equal to the full replacement value; (b) Comprehensive
general public liability insurance including personal injury, bodily injury,
broad form property damage, operations hazard, owner's protective coverage,
contractual liability, with a cross liability clause and a severability of
interests clause to cover Tenant's indemnities set forth herein, and products
and completed operations liability, in limits not less than $1,000,000.00
inclusive per occurrence; (c) Worker's Compensation and
Employer's Liability insurance, with a waiver of subrogation endorsement, in
form and amount as required by applicable law; and (d) In the event Tenant
performs any repairs or alterations in the Premises, Builder's Risk insurance on
an "All Risk" basis (including collapse) on a completed value (non-reporting)
form for full replacement value covering all work incorporated in the Building
and all materials and equipment in or about the Premises; and (e) Improvements
and betterments.
B. Tenant shall have the right to include the insurance required by
Section 14.01A under Tenant's policies of "blanket insurance". All certificates
of insurance evidencing such coverage shall name Tenant as named insured
thereunder and shall name Landlord and all mortgagees and lessors of Landlord of
which Tenant has been notified, additional insureds, all as their respective
interest may appear. All such certificates shall be issued by insurers
acceptable to Landlord and in form satisfactory to Landlord. Tenant shall
deliver to Landlord certificates by the Commencement Date and, with respect to
renewals of such policies, not later than fifteen (15) days prior to the end of
the expiring term of coverage. All policies of insurance shall be primary and
non-contributing. All such policies and certificates shall contain an agreement
by the insurers to notify Landlord and any mortgagee or lessor of Landlord in
writing, by Registered U.S. mail, return receipt requested, not less than thirty
(30) days before any material change, reduction in coverage, cancellation,
including cancellation for nonpayment of premium.
14.02 Landlord shall insure the Building against damage with casualty
and comprehensive general public liability insurance, all in such amounts and
with such deductible as Landlord reasonably deems appropriate. Notwithstanding
any contribution by Tenant to the cost of insurance premiums, as provided
hereinabove, Landlord shall not be required to carry insurance of any kind on
Tenant's Property, and Tenant hereby agrees that Tenant shall have no right to
receive any proceeds from any insurance policies carried by Landlord.
14.03 Tenant shall not knowingly conduct or permit to be conducted in
the Premises any activity, or place any equipment in or about the Premises or
the Building, which will invalidate the insurance coverage in effect or increase
the rate of fire insurance or other insurance on the Premises or the Building,
and Tenant shall comply with all requirements and regulations of Landlord's
casualty and liability insurer. In no event shall Tenant introduce or permit to
be kept on the Premises or brought into the Building any dangerous, noxious,
radioactive or explosive substance.
14.04 Landlord and Tenant each hereby waive any right of subrogation and
right of recovery or cause of action for injury or loss to the extent that such
injury or loss is covered by fire, extended coverage, "All Risk" or similar
policies covering real property or personal property (or which would have been
covered if Tenant or Landlord, as the case may be, was carrying the insurance
required by this Lease). Said waivers shall be in addition to, and not in
limitation or derogation or, any other waiver or release contained in this
Lease.
ARTICLE 15
DAMAGE BY FIRE OR OTHER CAUSE
15.01 If the Building or any portion thereof is damaged or destroyed by
any casualty to the extent that, in Landlord's reasonable judgment, (a) repair
of such damage or destruction would not be economically feasible, or (b) the
damage or destruction to the Building cannot be repaired within three hundred
sixty (360) days after the date of such damage or destruction, or if the
proceeds from Landlord's insurance remaining after any required payment to any
mortgagee or lessor of Landlord are insufficient to repair such damage or
destruction, Landlord shall have the right, at Landlord's option, to terminate
this
Lease by giving Tenant notice of such termination, within sixty (60) days after
the date of such damage or destruction.
15.02 If the Premises or any portion thereof is damaged or destroyed by
any casualty, and if, in Landlord's reasonable opinion, the Premises cannot be
rebuilt or made fit for Tenant's purposes within one hundred eighty days (180)
after the date of such damage or destruction, or if the proceeds from Landlord's
insurance remaining after any required payment to any mortgagee or lessor of
Landlord are insufficient to repair such damage or destruction, then either
Landlord or Tenant shall have the right, at the option of either party, to
terminate this Lease by giving the other written notice, within sixty (60) days
after such damage or destruction.
15.03 In the event of partial destruction or damage to the Building or
the Premises which is not subject to Section 15.01 or 15.02, but which renders
the Premises partially but not wholly untenantable, this Lease shall not
terminate and Rent shall be abated in proportion to the area of the Premises
which, in Landlord's reasonable opinion, cannot be used or occupied by Tenant as
a result of such casualty. Landlord shall in such event, within a reasonable
time after the date of such destruction or damage, subject to force majeure (as
defined in Section 25.06) or to any delay caused by Tenant and to the extent and
availability of insurance proceeds, restore the Premises to as near the same
condition as existed prior to such partial damage or destruction. In no event
shall Rent xxxxx or shall any termination occur if damage to or destruction of
the Premises is the result of the negligence or willful misconduct of Tenant, or
Tenant's agents, employees, representatives, contractors, successors, assigns,
licensees or invitees.
15.04 If the Building or the Premises or any portion thereof is
destroyed by fire or other causes at any time during the last year of the Term,
then either Landlord or Tenant shall have the right, at the option of either
party, to terminate this Lease by giving written notice to the other within
sixty (60) days after the date of such destruction.
15.05 Landlord shall have no liability to Tenant for inconvenience, loss
of business, or annoyance arising from any repair of any portion of the Premises
or the Building. If Landlord is required by this Lease or by any mortgagee or
lessor of Landlord to repair, or if Landlord undertakes to repair, Landlord
shall use reasonable efforts to have such repairs made promptly and in a manner
which will not unnecessarily interfere with Tenant's occupancy.
15.06 In the event of termination of this Lease pursuant to Sections
15.01, 15.02, or 15.04, then all Rent shall be apportioned and paid to the date
on which possession is relinquished or the date of such damage, whichever last
occurs, and Tenant shall immediately vacate the Premises according to such
notice of termination; provided, however, that those provisions of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
ARTICLE 16
CONDEMNATION
16.01 In the event any portion of the Building, the Premises or the
Project are taken or condemned by eminent domain or by any conveyance in lieu
thereof (such taking, condemnation or conveyance in lieu thereof being
hereinafter referred to as "condemnation"), which taking, in Landlord's
judgment, is such that the Building or the Premises cannot be restored in an
economically feasible manner for use substantially as originally designed, then
Landlord shall have the right, at Landlord's option, to terminate this Lease,
effective as of the date specified by Landlord in a written notice of
termination from Landlord to Tenant and Rent shall be apportioned as of the date
of such termination.
16.02 In the event any portion of the Parking Facilities shall be taken
by condemnation, which taking in Landlord's judgment is such that the Parking
Facilities cannot be restored in an economically feasible manner for use
substantially as originally designed, including in such consideration the
possible use of additional parking facilities in the vicinity of the Building,
then Landlord shall have the right, at Landlord's option, to terminate this
Lease, effective as of the date specified by Landlord in a written notice of
termination from Landlord to Tenant.
16.03 In the event that a portion of the Premises shall be taken by
condemnation, and this Lease is not terminated pursuant to Section 16.01, then
this Lease shall be terminated as of the date of such condemnation as to the
portion of the Premises so taken, and this Lease shall remain in full force and
effect as to the remainder of the Premises.
16.04 All compensation awarded or paid upon a condemnation of any
portion of the Project shall belong to and be the property of Landlord without
participation by Tenant. Nothing herein shall be construed, however, to preclude
Tenant from prosecuting any claim directly against the condemning authority for
loss of business, loss of good will, moving expenses, damage to, and cost of
removal of, trade fixtures, furniture and other personal property belonging to
Tenant; provided, however, that Tenant shall make no claim which shall diminish
or adversely affect any award claimed or received by Landlord.
16.05 If any portion of the Project other than the Building or the
Parking Facilities is taken by condemnation, or if the temporary use or
occupancy of all or any part of the Premises shall be taken by condemnation
during the Term, this Lease shall be and remain unaffected by such condemnation,
and Tenant shall continue to pay in full the Rent payable hereunder.
ARTICLE 17
INDEMNIFICATION
17.01 Tenant and its agents employees, representatives, contractors,
licensees and invitees, hereby waive all claims against, and agree to indemnify
and hold harmless, Landlord for damage to any property or injury to, or death
of, any person in, upon, or about the Project, including the Premises, arising
at any time and from any cause other than solely by reason of the gross
negligence or willful misconduct of Landlord, its agents, employees,
representatives, or contractors. Without limiting the generality of the
foregoing, Landlord shall not be liable for any injury or damage to persons or
property resulting from the condition or design of, or any defective, Building
or its mechanical systems or equipment which may exist or occur or from any
fire, explosion, falling plaster, steam, gas, electricity, water, rain, flood,
snow, or leaks from any part of the Premises or from the pipes, appliances,
plumbing works, roof, or subsurface of any floor or ceiling, or from the street
or any other place, or by dampness or by any other similar cause unless the same
is caused solely by the gross negligence or willful misconduct of Landlord, its
agents, employees, representatives or contractors. Landlord shall not be liable
for any such damage caused by other tenants or persons in the Building or by
occupants of adjacent property thereto, or by the public, or caused by
construction (unless caused solely by the gross negligence or willful misconduct
of Landlord) or by any private, public or quasi-public work. Tenant, for itself
and its agents, employees, representatives, contractors, successors, assigns,
invitees and licensees, expressly assumes all risks of injury or damage to
person or property, whether proximate or remote, resulting from the condition of
the Project or any part thereof. Tenant's foregoing indemnity shall include
attorneys' fees, investigation costs, and all other reasonable costs and
expenses incurred by Landlord in any connection therewith. The provisions of
this Article 17 shall survive the expiration or termination of this Lease with
respect to any damage, injury, or death occurring before such expiration or
termination.
17.02 Landlord shall, and hereby agrees to, indemnify and hold Tenant
harmless from any damages in connection with loss of life, bodily or personal
injury or property damage arising from any occurrence in the Common Areas of the
Project when not solely the result of the gross negligence or willful misconduct
of Tenant, and its agents, employees, representatives, contractors, licensees,
and invitees.
ARTICLE 18
SUBORDINATION AND ESTOPPEL CERTIFICATES
18.01 This Lease and all rights of Tenant hereunder are subject and
subordinate to all underlying leases now or hereafter in existence, and to any
supplements, amendments, modifications, and extensions of such leases heretofore
or hereafter made and to any deeds to secure debt, mortgages, or other security
instruments which now or hereafter cover all or any portion of the Project or
any interest of Landlord therein, and to any advances made on the security
thereof, and to any increases, renewals, modifications, consolidations,
replacements, and extensions of any of such mortgages. This provision is
declared by Landlord and Tenant to be self-operative and no further instrument
shall be required to effect such subordination of this Lease. Upon demand,
Tenant shall execute, acknowledge, and deliver to Landlord any further
instruments and certificates evidencing such subordination as Landlord, and any
mortgagee or lessor of Landlord shall reasonably require; provided, Landlord
shall use reasonable efforts to cause its mortgagee to include in any such
subordination agreement non-disturbance provisions reasonably satisfactory to
Tenant and such mortgagee. Tenant shall not unreasonably withhold, delay, or
defer its written consent reasonable modifications in this Lease which are a
condition of any financing for the Project or any reciprocal easement agreement
with facilities in the vicinity of the Building, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
and adversely affect Tenant's use and enjoyment of the Premises.
18.02 Notwithstanding the generality of the foregoing provisions of
Section 18.01, any mortgagee or lessor of Landlord shall have the right at any
time to subordinate any such mortgage or underlying lease to this Lease, or to
any of the provisions hereof, on such terms and subject to such conditions as
such mortgagee or lessor of Landlord may consider appropriate in its discretion.
At any time, before or after the institution of any proceedings for the
foreclosure of any such mortgage, or the sale of the Building under any such
mortgage, or the termination of any underlying lease, Tenant shall, upon request
of such mortgagee or any person or entities succeeding to the interest of such
mortgagee or the purchaser at any foreclosure sale ("Successor Landlord"),
automatically become the Tenant (or if the Premises has been validly subleased,
the subtenant) of the Successor Landlord, without change in the terms or other
provisions of this Lease (or, in the case of a permitted sublease, without
change in this Lease or in the instrument setting forth the terms of such
sublease); provided, however, that the Successor Landlord shall not be (i) bound
by any payment made by Tenant of Rent or Additional Rent for more than one (1)
month in advance, except for a Security Deposit previously paid to Landlord (and
then only if such Security Deposit has been deposited with and is under the
control of the Successor Landlord), (ii) bound by any termination, modification,
amendment or surrender of the Lease done without the Successor Landlord's
consent, (iii) liable for any damages or subject to any offset or defense by
Tenant to the payment of Rent by reason of any act or omission of any prior
landlord (including Landlord), or (iv) personally or corporately liable, in any
event, beyond the limitations on landlord liability set forth in Section 25.05
of this Lease. This agreement of Tenant to attorn to a Successor Landlord shall
survive any such foreclosure sale, trustee's sale conveyance in lieu thereof or
termination of any underlying lease. Tenant shall upon demand at any time,
before or after any such foreclosure or termination execute, acknowledge, and
deliver to the Successor Landlord any written instruments and certificates
evidencing such attornment as such Successor Landlord may reasonably require.
18.03 Tenant shall, from time to time, within ten (10) days after
request from Landlord, or from any mortgagee or lessor of Landlord, execute,
acknowledge and deliver in recordable form a certificate certifying, to the
extent true, that this Lease, as the Lease may have been amended, is in full
force and effect; that the Term has commenced and the full amount of the Rent
then accruing hereunder; the dates to which the Rent has been paid; that Tenant
has accepted possession of the Premises and that any improvements required by
the terms of this Lease to be made by Landlord have been completed to the
satisfaction of Tenant; the amount, if any, that Tenant has paid to Landlord as
a Security Deposit; that no Rent under this Lease has been paid more than thirty
(30) days in advance of its due date; that the address for notices to be sent to
Tenant is as set forth in this Lease, or has been changed as set forth in the
certificate; that Tenant has no charge, lien, or claim of offset under this
Lease or otherwise against Rent or other charges due or to become due hereunder;
that, to the knowledge of Tenant, Landlord is not then in default under this
Lease; and such other matters as may be reasonably requested by Landlord or any
mortgagee or lessor of Landlord. Any such certificate may be relied upon by
Landlord, any Successor Landlord, or any mortgagee or lessor of Landlord.
Landlord agrees periodically to furnish, when reasonably requested in writing by
Tenant, certificates signed by Landlord containing information similar to the
foregoing information.
18.04 No act or failure to act on the part of Landlord which would
entitle Tenant under the terms of this Lease, or by law, to be relieved of
Tenant's obligations hereunder or to terminate this Lease, shall result in a
release of such obligations or a termination of this Lease unless (a) Tenant has
given notice by registered or certified mail to any mortgagee or lessor of
Landlord whose address shall have been furnished to Tenant, and (b) Tenant
offers such mortgagee or lessor of Landlord a reasonable opportunity to cure the
default, including time to obtain possession of the Premises by power of sale or
judicial foreclosure, if such should prove necessary to effect a cure.
ARTICLE 19
SURRENDER OF THE PREMISES
19.01 By no later than 11:59 p.m. of the Expiration Date or the date of
earlier termination of this Lease, or upon any re-entry of the Premises by
Landlord without terminating this Lease pursuant to Section 13.02(b), Tenant, at
Tenant's sole cost and expense, shall peacefully vacate and surrender the
Premises to Landlord in good order, broom clean and in the same condition as at
the beginning of the Term or as the Premises may thereafter have been improved,
reasonable use and wear thereof and repairs which are Landlord's obligations
under Articles 9, 15 and 16 only excepted, and Tenant shall remove all of
Tenant's Property and turn over all keys for the Premises to Landlord.
19.02 Should Tenant continue to hold the Premises after the expiration
or earlier termination of this Lease, such holding over, unless otherwise agreed
to by Landlord in writing, shall constitute and be construed as a tenancy at
sufferance at monthly installments of Rent equal to two hundred percent (200%)
of the monthly portion of Base Rent in effect as of the date of expiration or
earlier termination, and subject to all of the other terms, charges and expenses
set forth herein except any right to renew this Lease or to expand the Premises
or any right to additional services. Tenant shall also be liable to Landlord for
all damage which Landlord suffers because of any holding over by Tenant, and
Tenant shall indemnify Landlord against all claims made by any other tenant or
prospective tenant against Landlord resulting from delay by Landlord in
delivering possession of the Premises to such other tenant or prospective
tenant. The provisions of this Article 19 shall survive the expiration or
earlier termination of this Lease.
ARTICLE 20
LANDLORD'S RIGHT TO INSPECT
20.01 Landlord shall retain duplicate keys to all doors of the Premises.
Tenant shall provide Landlord with new keys should Tenant receive Landlord's
consent to change the locks. Landlord shall have the right to enter the Premises
at reasonable hours (or, in the event of an emergency, at any hour); provided,
however, Landlord shall use reasonable efforts to minimize interference with
Tenant's business. Landlord shall not be liable to Tenant for the exercise of
Landlord's rights under this Article 20 and Tenant hereby waives any claims for
damages for any injury, inconvenience or interference with Tenant's business,
any loss of occupancy or quiet enjoyment of the Premises, and any other loss
occasioned thereby.
ARTICLE 21
SECURITY DEPOSIT
21.01 None.
ARTICLE 22
BROKERAGE
22.01 Tenant and Landlord each represent and warrant to the other that
it has not entered into any agreement with, or otherwise had any dealings with,
any broker or agent in connection with the negotiation or execution of this
Lease which could form the basis of any claim by any such broker or agent for a
brokerage fee or commission, finder's fee, or any other compensation of any kind
or nature in connection herewith, other than with Broker, and each party shall,
and hereby agrees to, indemnify and hold the other harmless from all costs
(including court costs, investigation costs, and attorneys' fees), expenses, or
liability for commissions or other compensation claimed by any broker or agent
with respect to this Lease which arise out of any agreement or dealings, or
alleged agreement or dealings, between the indemnifying party and any such agent
or broker. This provision shall survive the expiration or earlier termination of
this Lease.
ARTICLE 23
OBSERVANCE OF RULES AND REGULATIONS
23.01 Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with all Rules and
Regulations (herein so called) attached to this Lease as such Rules and
Regulations may be changed from time to time. Landlord shall at all times have
the right to make reasonable changes in and additions to such Rules and
Regulations; provided Landlord gives Tenant prior notice of such changes and
provided that such new rules and regulations or changes in existing rules and
regulations do not conflict with this Lease, and do not materially interfere
with the lawful conduct of Tenant's business in the Premises. Landlord shall not
be liable to Tenant for the failure or refusal by any other tenant, guest,
invitee, visitor, or occupant of the Building to comply with any of the Rules
and Regulations.
ARTICLE 24
NOTICES
24.01 All notices, consents, demands, requests, documents, or other
communications (other than payment of Rent) required or permitted hereunder
(collectively, "notices") shall be deemed given, whether actually received or
not, when dispatched for hand delivery or delivery by air express courier (with
signed receipts) to the other party, or on the second Business Day after deposit
in the United States mail, postage prepaid, certified, return receipt requested,
except for notice of change of address which shall be deemed given only upon
actual receipt. The addresses of the parties for notices are set forth in
Article 1, or any such other addresses subsequently specified by each xxxxx in
notices given pursuant to this Section 24.01.
ARTICLE 25
MISCELLANEOUS
25.01 Professional Fees. In any action or proceeding brought by either
party against the other under this Lease, the prevailing party shall be entitled
to recover from the other party its professional fees for attorneys, appraisers
and accountants, its investigation costs, and any other legal expenses and court
costs incurred by the prevailing party in such action or proceeding.
25.02 Reimbursements. Wherever this Lease requires Tenant to reimburse
Landlord for the cost of any item, such costs will be the reasonable and
customary charge periodically established by Landlord for such item, including a
fee for Landlord's manager's supervision in connection with providing such item.
25.03 Severability. Every agreement contained in this Lease is, and
shall be construed as, a separate and independent agreement. If any term of this
Lease or the application thereof to any person or circumstances shall be invalid
or unenforceable, the remaining agreements contained in this Lease shall not be
affected.
25.04 Non-Merger. There shall be no merger of this Lease with any
ground leasehold interest or the fee estate in the Project or any part thereof
by reason of the fact that the same person may acquire or hold, directly or
indirectly, this Lease or any interest in this Lease as well as any ground
leasehold interest or fee estate in the Project or any interest in such fee
estate.
25.05 Landlord's Liability. Anything contained in this Lease to the
contrary notwithstanding, Tenant agrees that Tenant shall look solely to the
estate and property of Landlord in the Project for the collection of any
judgment or other judicial process requiring the payment of money by Landlord
for any default or breach by Landlord under this Lease, subject, however, to the
prior rights of any mortgagee or lessor of the Project. No other assets of
Landlord or any partners, shareholders, or other principals of Landlord shall be
subject to levy, execution or other judicial process for the satisfaction of
Tenant's claim.
25.06 Force Majeure. Whenever the period of time is herein prescribed
for action to be taken by Landlord or Tenant, Landlord or Tenant shall not be
liable or responsible for, and there shall be excluded from the computation for
any such period of time, any delays due to force majeure, which term shall
include strikes, riots, acts of God, shortages of labor or materials, war,
governmental approvals, laws, regulations, or restrictions, or any other cause
of any kind whatsoever which is beyond the reasonable control of Landlord or
Tenant. Force Majeure shall not excuse or delay Tenant's obligation to Rent or
any other amount due under this Lease.
25.07 Headings. The article headings contained in this Lease are for
convenience only and shall not enlarge or limit the scope or meaning of the
various and several articles hereof. Words in the singular number shall be held
to include the plural, unless the context otherwise requires. All agreements and
covenants herein contained shall be binding upon the respective heirs, personal
representatives, and successors and assigns of the parties thereto.
25.08 Successors and Assigns. All agreements and covenants herein
contained shall be binding upon the respective heirs, personal representatives,
successors and assigns or the parties hereto. If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and several. If
there is a guarantor of Tenant's obligations hereunder, Tenant's obligations
shall be joint and several obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant hereunder before proceeding
against such guarantor, and any such guarantor shall not be released from its
guarantee for any reason, including any amendment of this Lease, any forbearance
by Landlord or waiver of any of Landlord's rights, the failure to give Tenant or
such guarantor any notices, or the release of any party liable for the payment
or performance of Tenant's obligations hereunder. Notwithstanding the foregoing,
nothing contained in this Section 25.08 shall be deemed to override Article 8.
25.09 Landlord's Representations. Neither Landlord nor Landlord's
agents or brokers have made any representations or promises with respect to the
Premises, the Building, the Parking Facilities, the Land, or any other portions
of the Project except as herein expressly set forth and all reliance with
respect to any representations or promises is based solely on those contained
herein. No rights, easements, or licenses are acquired by Tenant under this
Lease by implication or otherwise except as, and unless, expressly set forth in
this Lease.
25.10 Entire Agreement; Amendments. This Lease and the Exhibits and
Riders attached hereto set forth the entire agreement between the parties and
cancel all prior negotiations, arrangements, brochures, agreements, and
understandings, if any, between Landlord and Tenant regarding the subject matter
of this Lease. No amendment or modification of this Lease shall be binding or
valid unless expressed in writing executed by both parties hereto.
25.11 Tenant's Authority. If Tenant signs as a corporation, execution
hereof shall constitute a representation and warranty by Tenant that Tenant is a
duly organized and existing corporation, that Tenant has been and is qualified
to do business in the State of Texas and in good standing with the State of
Texas, that the corporation has full right and authority to enter into this
Lease, and that all persons signing on behalf of the corporation were authorized
to do so by appropriate corporate action. If Tenant signs as a partnership,
trust, or other legal entity, execution hereof shall constitute a representation
and warranty by Tenant that Tenant has complied with all applicable laws, rules,
and governmental regulations relative to Tenant's right to do business in the
State of Texas, that such entity has the full right and authority to enter into
this Lease, and that all persons signing on behalf of Tenant were authorized to
do so by any and all necessary or appropriate partnership, trust, or other
actions.
25.12 Governing Law. This Lease shall be governed by and construed
under the laws of the State of Texas. Any action brought to enforce or interpret
this Lease shall be brought in the court of appropriate jurisdiction in Xxxxxx
County, Texas. Should any provision of this Lease require judicial
interpretation, Landlord and Tenant hereby agree and stipulate that the court
interpreting or considering same shall not apply the presumption that the terms
hereof shall be more strictly construed against a party by reason of any rule or
conclusion that a document should be construed more strictly against the party
who itself or through its agents prepared the same, it being agreed that all
parties hereto have participated in the preparation of this Lease and that each
party had full opportunity to consult legal counsel of its choice before the
execution of this Lease.
25.13 Tenant's Use of Name of the Building. Tenant shall not, without
the prior written consent of Landlord, use the name of the Building for any
purpose other than as the address of the business to be conducted by Tenant in
the Premises, and Tenant shall not do or permit the doing of anything in
connection with Tenant's business or advertising (including brokers' flyers
promoting sublease space) which in the reasonable judgment of Landlord may
reflect unfavorably on Landlord or the Building or confuse or mislead the public
as to any apparent connection or relationship between Tenant and Landlord, the
Building, or the Land.
25.14 Ancient Lights. Any elimination or shutting off of light, air, or
view by any structure which may be erected on lands adjacent to the Building
shall in no way affect this Lease and Landlord shall have no liability to Tenant
with respect thereto.
25.15 Changes to Project by Landlord. Landlord shall have the
unrestricted right to make changes to all portions of the Project in Landlord's
reasonable discretion for the purpose of improving access or security to the
Project or the flow of pedestrian and vehicular traffic therein. Landlord shall
have the right at any time, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor, to
change the arrangement or location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, bathrooms, or any other Common Areas so
long as reasonable access to the Premises remains available. Landlord shall also
have the right to (a) rearrange, change, expand or contract portions of the
Project constituting Common Areas (b) to use Common Areas while engaged in
making improvements, repairs or alterations to the Project, or any portion
thereof, and (c) to do and perform such other acts and make such other changes
in, to or with respect to the Project, or any portion thereof, as Landlord may,
in the exercise of sound business judgment, deem to be appropriate. Landlord
shall be entitled to change the name or address of the Building or the Project.
Landlord shall have the right to close, from time to time, the Common Areas and
other portions of the Project for such temporary periods as Landlord deems
legally sufficient to evidence Landlord's ownership and control thereof and to
prevent any claim of adverse possession by, or any implied or actual dedication
to, the public or any party other than Landlord.
25.16 Time of Essence. Time is of the essence of this Lease.
25.17 Landlord's Acceptance of Lease. The submission of this Lease to
Tenant shall not be construed as an offer and Tenant shall not have any rights
with respect thereto unless Landlord executes a copy of this Lease and delivers
the same to Tenant.
25.18 Financial Statements. At any time during the term of this Lease,
Tenant shall, upon ten (10) days prior written notice from Landlord, provide
Landlord with a current financial statement and financial statements of the two
(2) years prior to the current financial statement year. Such statement shall be
prepared in accordance with generally accepted accounting principles and, if
such is the normal practice of Tenant, shall be audited by an independent
certified public accountant.
25.19 Signage. Landlord shall provide Tenant with Building standard
signage for the Building directory and the exterior of Tenant's main entrance to
the Premises.
ARTICLE 26
SUBSTITUTION SPACE
26.01 Landlord shall have the right at any time prior to the end of the
Term of this lease, or any renewal or extension hereof, to substitute, instead
of the Premises, other space within the Building (which
space shall have a Net Rentable Area of approximately the Net Rentable Area in
the Premises as of the date of such substitution) hereinafter called the
"Substitution Space".
26.02 (a) If Landlord desires to exercise such right, Landlord shall
give Tenant at least thirty (30) days' prior written notice thereof specifying
the effective date of such substitution, whereupon, as of such effective date:
(1) the description of the Premises set forth in this lease shall, without
further act on the part of Landlord or Tenant, be deemed amended so that the
Substitution Space shall, for all purposes, be deemed the Premises hereunder,
and all of the terms, covenants, conditions, provisions, and agreements of this
Lease, including those agreements to pay Rent, shall continue in full force and
effect and shall apply to the Substitution Space, and (2) Tenant shall move into
the Substitution Space. (b) If Tenant is being relocated from its present
Premises in the Building, Tenant shall vacate and surrender possession to
Landlord of the present Premises, and if Tenant continues to occupy the present
Premises after such effective date, then thereafter, during the period of such
occupancy, Tenant shall pay Rent for the present Premises as set forth in this
Lease, in addition to the Rent for the Substitution Space at the above-described
rates. (c) Tenant shall accept possession of the Substitution Space in its
"as-is" condition as of such effective date, but the Substitution Space shall
have leasehold improvements that are reasonably equivalent to the present
Premises.
26.03 If Landlord exercises this relocation right after the Commencement
Date, Landlord shall reimburse Tenant for Tenant's reasonable out-of-pocket
expenses for moving Tenant's furniture, equipment, supplies and telephones and
telephone equipment from the present Premises to the Substitution Space and for
reprinting Tenant's stationery of the same quality and quantity of Tenant's
stationery supply on hand immediately prior to Landlord's notice to Tenant of
the exercise of this substitution right.
ARTICLE 27
OTHER DEFINITIONS
When used in this Lease, the terms set forth hereinbelow shall have the
following meanings: (a) "Business Days" shall mean Monday through Friday (except
for Holidays); "Business Hours" shall mean 7:00 a.m. to 6:00 p.m. on Monday
through Friday and 8:00 a.m. to 4:00 p.m. on Saturdays (except for Holidays);
and "Holidays" shall mean those holidays designated by Landlord, which holidays
shall be consistent with those holidays designated by landlords of other
first-class office buildings in the Austin, Texas suburban area. The Building is
locked on Saturdays and Sundays. (b) "Common Areas" shall mean those certain
areas and facilities of the Building and the Parking Facilities and those
certain improvements to the Land which are from time to time provided by
Landlord for the use of tenants of the Building and their employees, clients,
customers, licensees and invitees or for use by the public, which facilities and
improvements include any and all corridors, elevator foyers, vending areas,
bathrooms, electrical and telephone rooms, mechanical rooms, janitorial areas
and other similar facilities of the Building and of the Parking Facilities and
any and all grounds, parks, landscaped areas, outside sitting areas, sidewalks,
walkways, and generally all other improvements located on the Land, or which
connect the Land to other buildings. (c) The words "day" or "days" shall refer
to calendar days, except where "Business Days" are specified. (d) "Net Rentable
Area" shall mean (1) in the case of a single tenancy floor, all floor area
measured from the inside surface of the outer glass of the Building, excluding
only the areas ("Service Areas") within the outside wall used for the Building's
stairs, fire towers, elevator shafts, vertical penetrations of the Building's
central atrium, flues, vents, stacks, pipe shafts, and vertical ducts (which
areas shall be measured from the mid-point of walls enclosing such areas, but
including any Service Areas which are for the specific use of the particular
tenant, such as special stairs or elevators, plus an allocation of the square
footage of the Building's central areas for providing telephone, electrical,
mechanical, janitorial, security and mail services, as well as, the central
entry lobby, ground level elevator
lobby and service elevator lobby, central fire exit corridors, service exit
corridor and central loading dock (the "Central Areas"), and (2) in the case of
a floor to be occupied by more than one tenant, all floor areas within the
inside surface (with respect to the Premises) of the glass and to the midpoint
of the walls separating areas leased by or held for lease to other tenants or
from the Common Areas, but including a proportionate part of the Common Areas
located on such floor based upon the ratio which Tenant's Net Rentable Area
(excluding Common Areas) on such floor bears to the aggregate Net Rentable Area
(excluding Common Areas) on such floor, plus an allocation of the square footage
of the Building's Central Areas. In the case of both single and multiple tenant
floors, telephone, electrical, mechanical, maintenance, janitorial or security
rooms not included in the Building's Central Areas but which serve more than one
floor shall be considered Common Areas and shall be allocated among all tenants
whose premises are served thereby, regardless of whether such premises are
located on the same floor as the rooms in question. Such allocation shall be
made in accordance with the proportion of the Net Rentable Area so served. No
deductions from Net Rentable Area shall be made for columns or projections
necessary to the Building. (e) The "terms of this Lease" shall be deemed to
include all terms, covenants, conditions, provisions, obligations, limitations,
restrictions, reservations and agreements contained in this Lease. (f) A "year"
shall mean a calendar year.
IN WITNESS WHEREOF, Landlord and Tenant have set their hands hereunto
and have caused this Lease to be executed by duly authorized officials thereof,
as of the day and year set forth on the cover page hereof.
LANDLORD:
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership,
By: Xxxxxxxx Properties I, Inc.,
a Delaware corporation,
general partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Vice President
----------------------------
By: /s/ J. Xxxxx XxXxxx
----------------------------
Name: J. Xxxxx XxXxxx
----------------------------
Title: Senior Vice President
----------------------------
TENANT:
Partners Holdings, Inc.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President Finance & Administration
EXHIBIT A
FLOOR PLAN OF THE PREMISES
[FLOOR PLAN OMITTED]
Exhibit A-1
EXHIBIT B
THE LAND
That Tract of Land Containing 14,6199 Acres Situated in the Xxxxxxxxx Xxxxx
Survey Numbers 506 and 507, Xxxxxx County, Texas, Being All the Right-of-Way of
Camp Craft Road Vacated and Quit-Claimed to Xxxxxxx Xxxxxxxx in Book 37, Page
410 of the Commissioner's Court Records of Xxxxxx County, Texas, and a Portion
of that 13.827 Acre Tract of Land Conveyed to Xxxxxxx Xxxxxxxx by Deed Recorded
in Volume 7702, Page 153 of the Deed.
Exhibit B-1
EXHIBIT C
FORM OF COMMENCEMENT NOTICE
This Commencement Notice is delivered this _ day of _________, 19__, by
Xxxxxxxx Properties Acquisition Partners, L.P., a Delaware limited partnership
("Landlord"), to __________ ("Tenant'), pursuant to the provisions of Section
3.03 of that certain Lease Agreement (the "Lease") dated _______, 19__, by and
between Landlord and Tenant covering certain space in the Building known as
___________________. All terms used herein with their initial letter capitalized
shall have the meaning assigned to such terms in the Lease.
W I T N E S S E T H:
1. The Building, the Premises, the Parking Facilities, and all other
improvements required to be constructed and furnished by Landlord in accordance
with the terms of the Lease have been satisfactorily completed by the Landlord
and accepted by the Tenant.
2. The Premises have been delivered to, and accepted by, the Tenant,
subject to the completion of "punch list" items.
3. The Commencement Date of the Lease is the __ day of ____________,
19__, and the Expiration Date is the __ day of __________, 20__.
4. The Premises consist of _________ square feet of Net Rentable Area
located on the __ floor of the Building.
5. The Base Rent is $________ per annum.
6. Remittance of the foregoing payments shall be made on the first day
of each month in accordance with the terms and conditions of the Lease at the
following address:
Xxxxxxxx Properties Acquisition Partners, L.P.
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
IN WITNESS WHEREOF, this instrument has been duly executed by Landlord
as of the date first written above.
LANDLORD:
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership,
By: Xxxxxxxx Properties I, Inc.,
a Delaware corporation,
general partner
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
Exhibit C-1
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
Exhibit C-2
RIDER NO. 1
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and similar areas
shall not be obstructed by tenants or their officers, agents, servants, and
employees, or used for any purpose other than ingress and egress to and from the
Premises and for going from one part of the Building to another part of the
Building.
2. Plumbing fixtures and appliances shall be used only for the purpose
for which constructed, and no sweepings, rubbish, rags, or other unsuitable
material shall be thrown or placed therein. The cost of repairing any stoppage
or damage resulting to any such fixtures or appliances from misuse on the part
of a tenant or such tenant's officers, agents, servants, and employees shall be
paid by such tenant.
3. No signs, posters, advertisements, or notices shall be painted or
affixed on any of the windows or doors, or other part of the Building, except of
such color, size, and style, and in such places, as shall be first approved in
writing by the building manager. No nails, hooks, or screws shall be driven into
or inserted in any part of the Building, except by Building maintenance
personnel.
4. Directories will be placed by Landlord, at Landlord's own expense,
in the lobby of the Building. No other directories shall be permitted.
5. The Premises shall not be used for conducting any barter, trade, or
exchange of goods or sale through promotional give-away gimmicks or any business
involving the sale of second-hand goods, insurance salvage stock, or fire sale
stock, and shall not be used for any auction or pawnshop business, any fire
sale, bankruptcy sale, going-out-of-business sale, moving sale, bulk sale, or
any other business which, because of merchandising methods or otherwise, would
tend to lower the first-class character of the Building.
6. Tenants shall not do anything, or permit anything to be done, in or
about the Building, or bring or keep anything therein, that will in any way
increase the possibility of fire or other casualty or obstruct or interfere with
the rights of, or otherwise injure or annoy, other tenants, or do anything in
conflict with the valid pertinent laws, rules, or regulations of any
governmental authority.
7. Tenant shall not place a load upon any floor of the premises which
exceeds to floor load per square foot which such floor was designed to carry or
which is allowed by applicable building code. Landlord may prescribe the weight
and position of all safes and heavy installations which Tenant desires to place
in the premises so as properly to distribute the weight thereof. All damage done
to the Building by the improper placing of heavy items which overstress the
floor will be repaired at the sole expense of the Tenant.
8. A tenant shall notify the building manager when safes or other
heavy equipment are to be taken into or out of the Building. Moving of such
items shall be done under the supervision of the building manager, after
receiving written permission from him/her.
9. Corridor doors, when not in use, shall be kept closed.
10. All deliveries must be made via the service entrance and service
elevators during normal business hours or as otherwise directed or scheduled by
Landlord. Prior approval must be obtained from Landlord for any deliveries that
must be received after normal business hours.
11. Each tenant shall cooperate with building employees in keeping the
premises neat and clean.
12. Nothing shall be swept or thrown into the corridors, halls,
elevator shafts, or stairways. No birds, animals, or reptiles, or any other
creatures, shall be brought into or kept in or about the building.
13. Should a tenant require telegraphic, telephonic, annunciator, or
any other communication service, Landlord will direct the electricians and
installers where and how the wires are to be introduced and placed, and none
shall be introduced or placed except as Landlord shall direct.
14. Tenants shall not make or permit any improper noises in the
Building, or otherwise interfere in any way with other tenants or persons having
business with them.
15. No equipment of any kind shall be operated on the premises that
could in any way annoy any other tenant in the Building without written consent
of Landlord.
16. Business machines and mechanical equipment belonging to Tenant
which cause noise and/or vibration that may be transmitted to the structure of
the Building or to any leased space so as to be objectionable to Landlord or any
tenants in the Building shall be placed and maintained by Tenant, at Tenant's
expense, in setting of cork, rubber, or spring type noise and/or vibration
eliminators sufficient to eliminate vibration and/or noise.
17. Tenants shall not use or keep in the Building any inflammable or
explosive fluid or substance, or any illuminating material, unless it is battery
powered, UL approved.
18. Tenants employees or agents, or anyone else who desires to enter
the Building after normal business hours, may be required to provide appropriate
identification and sign in upon entry, and sign out upon leaving, giving the
location during such person's stay and such person's time of arrival and
departure, and shall otherwise comply with any reasonable access control
procedures as Landlord may from time to time institute.
19. Landlord has the right to evacuate the Building in event of
emergency or catastrophe.
20. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business, Tenant, before occupying the
Premises, shall procure and maintain such license or permit and submit it for
Landlord's inspection. Tenant shall at all times comply with the terms of any
such license or permit.
21. Landlord shall have the right, exercisable without notice and
without liability to any tenant, to change the name and street address of the
Building.
22. Neither Tenant, nor any other person visiting the Building shall be
permitted to use tobacco products in the Building, Premises, or the Common
Areas.
23. Landlord reserves the right to rescind any of these Rules and
Regulations and make such other and further rules and regulations or
modifications to these rules and regulations.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment"), is made as of January 1,
2002, by and between Xxxxxxxx Properties Acquisition Partners, L.P., a Delaware
limited partnership ("Landlord"), and NFP Insurance Services, Inc. (successor in
interest to Partners Holdings, Inc.) ("Tenant").
W I T N E S S E T H:
-------------------
A. Landlord and Tenant entered into that certain Lease Agreement (the
"Lease") dated September 20, 2001, whereby Landlord leased to Tenant certain
premises (the "Premises") consisting of approximately 3,397 square feet of Net
Rentable Area known as Suite 0-000 Xx the second (2nd) floor of the building
known as Cielo Center Building Two located at 0000 Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxx, Xxxxxx, Xxxxx (the "Building");
B. Landlord and Tenant desire to enter into this Amendment for the
purposes herein provided;
C. Except as otherwise defined herein, each capitalized term used in
this Amendment shall have the same meaning ascribed to such term in the Lease;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein and in the Lease contained, it is hereby agreed as follows:
1. Landlord and Tenant agree that the Lease shall no longer be
month-to-month, but rather, shall have a term that expires on January 31, 2003
(the "Termination Date'). On the Termination Date, the Lease shall terminate,
except for the covenants, agreements and indemnifications of Tenant with respect
to the Premises that are set forth in the Lease and by their terms or by their
nature are intended to survive any termination of the Lease and which accrue to
the period prior to the Termination Date, including, without limitation, those
set forth in Article 17 of the Lease with respect to the Premises for all
periods prior to the Termination Date. On or before the Termination Date, Tenant
shall vacate and surrender the Premises, and abandon all leasehold improvements
located in the Premises to Landlord, in accordance with all terms and provisions
of the Lease applicable to a termination of the Lease, including, without
limitation, Article 10 and Article l9 of the Lease, as if the Termination Date
were the expiration date of the Lease for the Premises. Tenant shall surrender
possession of the Premises in good order, "broom clean", free of all debris, and
in the same condition as at the beginning of the Term or as the Premises may
thereafter have been improved, reasonable use and wear thereof excepted. Tenant
shall fully comply with all obligations under the Lease respecting the Premises
through the Termination Date, including those provisions relating to the
condition of the Premises, and removal of Tenant's personal property therefrom,
upon a termination or expiration of the Lease. If Tenant shall holdover in the
Premises beyond the Termination Date, the provisions of Article 19 of the Cease
shall control and Tenant shall be liable for Base Rent equal to 200% of the Base
Rent in effect under the Lease immediately preceding the Termination Date, and
other rentals and charges respecting the Premises provided in the Lease,
prorated on a per diem basis, and on a per square foot basis for the Premises.
Such holdover amount shall not be in limitation of Tenant's liability for
consequential or other damages arising from Tenant's holding over nor as
permission for Tenant to hold over in the Premises.
2. This Amendment is being executed and delivered contemporaneously
with amendments of two (2) other leases of certain premises in the Building (or
adjacent buildings) by Landlord to Tenant (the "Other Amendments"). Accordingly,
a default by Tenant (after the expiration of all applicable notice and cure
periods) under either of the Other Amendments shall, at Landlord's option,
constitute an immediate Event of Default under the Lease. In such event, without
limiting any other rights or remedies available to Landlord under the Lease,
Landlord shall have the option to declare this Amendment null and void.
3. This Amendment shall be binding upon and inure to the benefit of
Landlord, Tenant and their respective successors and permitted assigns.
4. This Amendment shall be governed in all respects by the laws of the
State of Texas.
5. The Lease, as hereby amended, is hereby ratified and confirmed and
shall continue in full force and effect through the Termination Date.
6. The parties hereto may execute this Amendment in one or more
identical counterparts, all of which when taken together will constitute one and
the same instrument. Copied or telecopied signatures may be attached hereto and
shall have the same binding and legal effect as original signatures.
IN WITNESS WHEREOF, this Amendment is executed as of the day and year
aforesaid.
LANDLORD:
--------
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership,
By: Xxxxxxxx Properties I, Inc.,
a Delaware corporation,
general partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Vice President
----------------------------
By: /s/ J. Xxxxx XxXxxx
----------------------------
Name: J. Xxxxx XxXxxx
----------------------------
Title: Senior Vice President
----------------------------
TENANT:
------
NFP Insurance Services, Inc. (successor in interest to Partners Holdings, Inc.)
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President Finance & Administration
---------------------------------------