LEASE AGREEMENT BETWEEN NOP COTTONWOOD 2795 LLC, A DELAWARE LIMITED LIABILITY COMPANY, as Landlord and ADS ALLIANCE DATA SYSTEMS, INC., A DELAWARE CORPORATION, as Tenant DATED September 21, 2010
Exhibit 10.28
LEASE AGREEMENT BETWEEN
NOP COTTONWOOD 2795 LLC,
A DELAWARE LIMITED LIABILITY COMPANY, as
Landlord
and
ADS ALLIANCE DATA SYSTEMS, INC.,
A DELAWARE CORPORATION, as
Tenant
DATED September 21, 2010
THIS LEASE AGREEMENT (the "Lease") is entered into as of September 21, 2010, between NOP XXXXXXXXXX 0000, LLC, a Delaware limited liability company, as Landlord, and ADS ALLIANCE DATA SYSTEMS, INC., as Tenant.
Each reference in this Summary of Basic Lease Information to the Lease Provisions contained in PART II shall be construed to incorporate all the terms provided in said Lease Provisions, and reference in the Lease Provisions to the Summary contained in this PART I shall be construed to incorporate the provisions of this Summary. In the event of any conflict between the provisions of this Summary and the provisions in the balance of the Lease, the latter shall control. The basic terms of this Lease are as follows:
1. Premises Location: Suite 100, consisting of approximately 4,389 square feet of Rentable Area, located on the 1st floor of the Building (as outlined on the floor plan attached to this Lease as Exhibit B), the street address of which is 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxx Xxxx Xxxx, Xxxx as constructed on the Land which is further described on Exhibit E hereto.
2. Number of Approximate Square Feet of Rentable Area in the Building measured consistently throughout the Building: Approximately One Hundred Thirty-Five Thousand Three Hundred Thirty-Nine (135,339) square feet.
3. Lease Expiration Date (Lease Provisions, Paragraph 3): October 31, 2014.
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Period of Lease Term
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Monthly Base Rent
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Annual Base Rent
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Base Rental Rate Per Square Foot of Rentable Area of Premises
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Commencement Date - 9/30/10
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10/1/10 - 9/30/11
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10/1/11 - 9/30/12
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10/1/12 - 9/30/13
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10/1/13 - 9/30/14
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10/1/14 – 10/31/14
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1. Base Year (Lease Provisions, Paragraph 5.3.1): The Fiscal Year commencing January 1, 2010 through December 31, 2010.
2. Tenant's Share (Lease Provisions, Paragraph 5.3.1): Tenant's Share for Tenant's payment of Operating Expenses means 3.24%.
Means Dollars ($ ).
During the Term of the Lease, Tenant shall lease from Landlord a total of twelve (12) automobile spaces in the Parking Facility, of which total Tenant may elect to lease up to three (3) assigned and covered automobile spaces at an initial cost of Forty-Five Dollars ($45.00) per month, plus all applicable taxes (subject to Landlord's right to increase such amount from time-to-time to the then-prevailing market rate pursuant to Section 5.5 below). The remainder of the automobile parking spaces leased by Tenant which Tenant does not elect to have assigned and covered shall be unassigned and uncovered parking spaces at an initial cost of Zero Dollars ($0.00) per month per space (subject to Landlord's right to increase such amount from time-to-time to the then-prevailing market rate pursuant to Section 5.5 below). All such automobile spaces, whether unassigned and uncovered or assigned and covered, shall otherwise be subject to the terms and conditions contained in Section 5.5 below and all other terms, conditions and regulations as are from time-to-time applicable to patrons of the Parking Facility.
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1. Tenant's Address:
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(a)
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Before Commencement Date:
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ADS Alliance Data Systems, Inc.
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to:
ADS Alliance Data Systems, Inc.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: General Counsel
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(b)
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After Commencement Date:
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ADS Alliance Data Systems, Inc.
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to:
ADS Alliance Data Systems, Inc.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: General Counsel
2. Landlord's Address:
NOP Xxxxxxxxxx 0000, LLC
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Property Manager
Landlord's address for the payment of Rent is as follows:
NOP Xxxxxxxxxx 0000, LLC
File #30657
XX Xxx 000000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
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3. Address of Landlord's Lender or Mortgagee:
c/o Bank of America
RESF Servicing
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Servicing Manager
Except as otherwise provided in this Lease, Tenant shall accept the Premises in its "AS IS" condition as of the Commencement Date. Notwithstanding the foregoing, Landlord shall construct and install the Tenant Improvements, as defined and as more particularly described in the Work Letter Agreement attached as Exhibit "D", at Landlord's cost for Tenant's occupancy on a turn-key basis in accordance with the Lease and the Work Letter Agreement.
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3.1 Condition Precedent. Pursuant to that certain Lease Agreement dated as of August 29, 2002, between 0000 X. Xxxxxxxxxx Xxxxxxx, L.C., ("2855 E. Cottonwood"), predecessor-in-interest to NOP Xxxxxxxxxx 0000, LLC, a Delaware limited liability company ("2855 Landlord"), and Tenant, as amended by that certain First Amendment to Lease dated as of October 1, 2001, between 0000 X. Xxxxxxxxxx and Tenant and that certain Second Amendment to Lease dated August 10, 2009, between 2855 Landlord and Tenant (collectively, the "2855 Lease"), 2855 Landlord is currently leasing to Tenant and Tenant is currently leasing from 2855 Landlord certain space commonly known as Suite 100 (the "2855 Premises") in that certain office building in the Complex addressed as 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxx Xxxx Xxxx, Xxxx. Tenant intends to relocate the 2855 Premises to the Premises and is currently in the process of negotiating an early termination agreement with 2855 Landlord, whereby the 2855 Lease with respect to the 2855 Premises shall be terminated prior to the expiration date thereof (herein, the "Early Termination Agreement"). Notwithstanding anything to the contrary contained in this Lease, it shall be a condition precedent to the effectiveness of this Lease (other than the provisions of this Section 3.1 and Sections 5.6. 5.8, 27.2, 27.3, 27.4, 27.6, 27.8, 27.9, 27.10, 27.11, 27.12, 27.14 through 27.20 below) that, on or before September 30, 2010, 2855 Landlord and Tenant mutually execute and deliver such Early Termination Agreement. If such condition is not timely satisfied, this Lease (other than the provisions of this Section 3.1 and Sections Sections 5.6. 5.8, 27.2, 27.3, 27.4, 27.6, 27.8, 27.9, 27.10, 27.11, 27.12, 27.14 through 27.20 below) shall thereupon automatically terminate. Tenant hereby agrees that until such condition is timely satisfied, (i) Landlord shall have no obligation to expend or disburse any funds in connection with this Lease or perform any obligations imposed upon Landlord under this Lease, and (ii) all costs incurred by Tenant in connection with this Lease shall be paid for by Tenant, at Tenant's expense, without reimbursement from Landlord.
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being final or adjustments to Building Allocated Operating Expense items not reasonably foreseeable by Landlord, no adjustment will be made by Landlord to the Statement of Actual Operating Expenses for any Fiscal Year subsequent to November 1 following the end of the Fiscal Year to which the Statement of Actual Operating Expenses relates. On receipt of the Statement of Actual Operating Expenses for each Fiscal Year for which an Excess exists, Tenant shall pay, with its next installment of Base Rent due, the full amount of the Excess, less the estimated amounts (if any) paid during the Fiscal Year pursuant to an Estimate Statement (as defined in subparagraph 5.3.2(b) above). In the event there is an overpayment of Additional Rent set forth on a Statement of Actual Operating Expenses for any Fiscal Year, the amount of overpayment shall be credited against payments of Additional Rent as they become due. If it is determined that there is an overpayment of Additional Rent by Tenant for any fiscal year after the expiration of the term of this Lease, such overpayment shall be promptly refunded to Tenant. Landlord's failure to furnish the Statement of Actual Operating Expenses for any Fiscal Year in a timely manner shall not prejudice Landlord from enforcing its rights hereunder. Even if the Term is expired and Tenant has vacated the Premises, if an Excess exists when final determination is made of Tenant's Share of Building Allocated Operating Expenses for the Fiscal Year in which the Lease terminates, Tenant shall promptly pay to Landlord the amount calculated under this subparagraph (c). Provisions of this subparagraph (c) shall survive the expiration or earlier termination of the Term.
5.4 Operating Expenses shall mean all costs and expenses which Landlord pays or accrues by virtue of the ownership, use, management, leasing, maintenance, service, operation, insurance or condition of the Land and all improvements thereon, including, without limitation, the Building and Parking Facility, during a particular Fiscal Year or portion thereof as determined by Landlord or its accountant in accordance with standard real estate accounting practices consistently applied, subject to the exclusions contained in Section 5.4.2(a) below.
(a) all Impositions and other governmental charges;
(b) all insurance premiums charged for policies obtained by Landlord for the Land, Building and Parking Facility, which may include without limitation, at Landlord's election, (i) fire and extended coverage insurance, including earthquake, windstorm, hail, explosion, riot, strike, civil commotion, aircraft, vehicle and smoke insurance, (ii) public liability and property damage insurance, (iii) elevator insurance, (iv) workers' compensation insurance for the employees covered by clause (h), (v) boiler, machinery, sprinkler, water damage, and legal liability insurance, (vi) rental loss insurance, and (vii) such other insurance as Landlord considers reasonably necessary in the operation of the Complex;
(c) all deductible amounts incurred in any Fiscal Year relating to an insurable loss;
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(d) all maintenance, repair, replacement, restoration and painting costs, including, without limitation, the cost of operating, managing, maintaining and repairing the following systems: utility, mechanical, sanitary, drainage, escalator and elevator;
(e) all janitorial, snow removal, custodial, cleaning, washing, landscaping, landscape maintenance, access systems, trash removal and pest control costs;
(f) all security costs;
(g) all electrical, energy monitoring, water, water treatment, gas, sewer, telephone and other utility and utility-related charges;
(h) all wages, salaries, salary burdens, employee benefits, payroll taxes, Social Security and insurance for all persons engaged by Landlord or an Affiliate of Landlord in connection with the Complex;
(i) all costs of leasing or purchasing supplies, tools, equipment and materials;
(j) all fees and assessments of the Cottonwood Corporate Center park applicable to the Complex;
(k) the cost of licenses, certificates, permits and inspections;
(l) the cost of contesting the validity or applicability of any governmental enactments that may affect the Operating Expenses;
(m) the cost of Parking Facility maintenance, repair and restoration, including, without limitation, resurfacing, repainting, restriping and cleaning;
(n) all fees and other charges paid under all maintenance and service agreements, including but not limited to window cleaning, elevator and HVAC maintenance;
(o) All reasonable and customary fees, charges, management fees (or amounts in lieu of such fees), consulting fees, legal fees and accounting fees of all persons engaged by Landlord (exclusive of legal fees with respect to disputes with individual tenants, negotiations of tenant leases, or with respect to ownership rather than operation of the Complex), together with all other associated costs or other charges reasonably incurred by Landlord in connection with the management office and the operation, management, maintenance and repair of the Complex;
(p) all costs of monitoring services, including, without limitation, any monitoring or control devices used by Landlord in regulating the Parking Facility;
(q) amortization of the cost of acquiring, financing and installing capital items which are intended to reduce (or avoid increases in) operating expenses or which are required by a governmental authority subsequent to the Commencement Date of this
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Lease. Such costs shall be amortized over the reasonable life of the items in accordance with standard real estate accounting practices consistently applied, but not beyond the reasonable life of the Building; and
(r) any other costs or expenses reasonably incurred by Landlord under this Lease which are not otherwise reimbursed directly by Tenants.
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paragraph 5.5 above, the establishment of charges for parking therein, and (iii) the use of parking gates, cards, permits and other control devices to regulate the use of the parking areas. The rights of Tenant and its employees, customers, service suppliers and invitees to use the Parking Facility shall, to the extent such rules and regulations are not inconsistent with the other terms of this Lease, at all times be subject to (a) Landlord's right to establish reasonable rules and regulations applicable to such use and to exclude any person therefrom who is not authorized to use the same or who violates such rules and regulations; (b) the rights of Landlord and other tenants in the Building to use the same in common with Tenant; (c) other than with respect to Tenant's assigned parking spaces, the availability of parking spaces in said Parking Facility; and (d) Landlord's right to change the configuration of the parking areas and any unassigned parking spaces as shall be determined at Landlord's reasonable discretion. Tenant agrees to limit its use of the Parking Facility to the number and type of parking spaces specified in this paragraph above. Notwithstanding the foregoing, nothing contained herein shall be deemed to impose liability upon Landlord for personal injury or theft, for damage to any motor vehicle, or for loss of property from within any motor vehicle, which is suffered by Tenant or any of its employees, customers, service suppliers or other invitees in connection with their use of the Parking Facility. Tenant understands and agrees that, while the Parking Facility will be open to Tenant on a 24-hour basis, other than spaces that are leased to Tenant and other tenants, all parking spaces in the parking area may be leased to members of the general public between the hours of 6:30 p.m. through 7:00 a.m. Monday through Saturday morning, after 1:30 p.m. on Saturday, and all day on Sunday.
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provided, however, that any such amendment shall not increase Tenant's payment obligations or other liabilities, or reduce the obligations of Landlord, under this Lease.
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If this Lease is terminated due to any default of Tenant, any portion of the Security Deposit remaining at the time of such termination shall immediately inure to the benefit of Landlord as partial compensation for the costs and expenses incurred by Landlord in connection with this Lease, and shall be in addition to any other damages to which Landlord is otherwise entitled.
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(a) Subject to the charges provided in Section-7.4 below, HVAC to the Premises during Building Operating Hours, at such temperatures and in such amounts as are reasonably suitable and standard [thus excluding air conditioning or heating for electronic data processing or other specialized equipment or specialized (nonstandard) Tenant requirements);
(b) hot and cold water at those points of supply common to all floors for lavatory and drinking purposes only;
(c) janitorial service five (5) days per week;
(d) periodic window washing in and about the Building and the Premises, anticipated to be accomplished approximately every 3 or 4 months for outside windows and every 2 or 3 months for inside windows;
(e) elevator service, if necessary, to provide access to and egress from the Premises twenty-four hours per day, seven days per week;
(f) electric current sufficient for lighting the Premises and electric current twenty-four hours per day, seven days per week for normal office machines and other machines of low electrical consumption of not more than six (6) xxxxx per square foot of Rentable Area of the Premises available for Tenant's use;
(g) replacement of fluorescent lamps in Building Standard light fixtures installed by Landlord and of incandescent bulbs or fluorescent lamps in all public rest rooms, stairwells and other Common Areas in the Building; and
If any of the services described above or elsewhere in this Lease are interrupted, Landlord shall promptly restore the same; provided, however, if as a result of any interruption of
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services the Premises will be uninhabitable or unusable by Tenant for five (5) consecutive business days, then Base Rent and Additional Rent shall be abated to the extent to which such condition interferes with Tenant's use of the Premises commencing on the first day of such condition and continuing until such condition is corrected. However, neither the interruption nor cessation of such services, nor the failure of Landlord to restore same, shall render Landlord liable for damages to person or property, or be construed as an eviction of Tenant, or relieve Tenant from fulfilling any of its other obligations hereunder.
If not previously installed, Landlord may cause an electric and/or water meter(s) to be installed in the Premises of the Tenant in order to measure the amount of electricity and/or water consumed for any such use, and the cost of such meter(s) shall be paid promptly by Tenant.
Certain security measures (both by electronic equipment and personnel) may be provided by Landlord in connection with the Building. However, Tenant hereby acknowledges that any such security is intended to be solely for the benefit of the Landlord and protecting its property, and while certain incidental benefits may accrue to the Tenant therefrom, any such security is not for the purpose of protecting either the property of Tenant or the safety of its employees, agents or invitees. By providing any such security, Landlord assumes no obligation to Tenant and shall have no liability arising therefrom.
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numerals, letters, graphics, symbols or marks identifying Tenant shall be placed on the exterior, or in the interior if they are visible from the exterior, of the Premises.
Unless required by law, Tenant shall not place or suffer to be placed on any exterior door, wall or window of the Premises, on any part of the inside of the Premises which is visible from outside of the Premises, or elsewhere on the Complex, any sign, decoration, notice, logo, picture, lettering, attachment, advertising matter or other thing of any kind, without first obtaining Landlord's prior written approval, which Landlord may, in its discretion, grant or withhold. Landlord may, at Tenant's cost, and without notice or liability to Tenant, enter the Premises and remove any item erected in violation of this Section. Landlord may establish rules and regulations governing the size, type and design of all such items and Tenant shall abide by such rules and regulations.
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which Tenant is otherwise responsible under this Lease. Tenant hereby waives and releases any right it may have to make repairs to the Premises or Building at Landlord's expense under any Legal Requirements now or hereafter in effect in any jurisdiction in which the Building is located.
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Transfer. If Landlord fails to notify Tenant of its election within said thirty (30) day period, Landlord shall be deemed to have elected option (a). The consent by Landlord to a particular Transfer shall not be deemed a consent to any other Transfer. If a Transfer occurs without the prior written consent of Landlord as provided herein, Landlord may nevertheless collect rent from the Transferee and apply the net amount collected to the Rent payable hereunder, but such collection and application shall not constitute a waiver of the provisions hereof or a release of Tenant from the further performance of its obligations hereunder. Notwithstanding the foregoing, but without waiving any requirement for a Transfer contained in Section 10.2 below, Tenant shall have the right, without the prior consent of Landlord but upon at least ten (10) days' prior written notice to Landlord, to assign the Lease or sublet the whole or any part of the Premises to a corporation or entity (a "Related Entity") which: (i) is Tenant's parent organization, or (ii) is a wholly-owned subsidiary of Tenant or Tenant's parent organization, or (iii) is an organization of which Tenant or Tenant's parent owns in excess of fifty percent (50%) of the outstanding capital stock or has in excess of fifty percent (50%) ownership or control interest, or (iv) is the result of a consolidation, merger or reorganization with Tenant and/or Tenant's parent organization, or (v) is the Transferee of substantially all of Tenant's assets. In no event shall any Transfer by Tenant to a Related Entity pursuant to the immediately preceding sentence be subject to Landlord's right to receive excess Rent pursuant to Section 10.2(a) below.
(a) Tenant shall execute, have acknowledged and deliver to Landlord, and cause the Transferee to execute, have acknowledged and deliver to Landlord, an instrument in form and substance acceptable to Landlord in which (i) the Transferee adopts this Lease and agrees to perform, jointly and severally with Tenant, all of the obligations of Tenant hereunder, as to the space Transferred to it, including, without limitation, the prohibition against rent based on the income or profits derived from the Premises (any purported lease to the contrary being null and void), (ii) the Transferee grants Landlord an express first and prior security interest in its personal property brought into the transferred space to secure its obligations to Landlord hereunder, (iii) Tenant subordinates to Landlord's statutory lien and security interest any liens, security interests or other rights which Tenant may claim with respect to any property of the Transferee, (iv) Tenant agrees with Landlord that, if the rent or other consideration due by the Transferee exceeds the Rent for the transferred space, then Tenant shall pay Landlord as Additional Rent hereunder ninety percent (90%) of all such excess Rent and other consideration, net of reasonable leasing commissions and tenant improvement costs directly required in connection with such Transfer actually paid by Tenant, promptly upon Tenant's receipt thereof, (v) Tenant and the Transferee agree to provide to Landlord, at their expense, direct access from a public corridor in the Building to the transferred space, (vi) the Transferee agrees to use and occupy the Transferred space solely for the purpose specified in Section 4 and otherwise in accordance with this Lease, and (vii) Tenant acknowledges that, notwithstanding the Transfer, Tenant remains primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent), and Landlord shall be permitted to enforce this Lease against Tenant or the Transferee, or all of them, without prior demand upon or proceeding in any way against any other persons; and
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(b) Tenant shall deliver to Landlord a counterpart of all instruments relative to the Transfer executed by all parties to such transaction (except Landlord).
(c) If Landlord to consents to a proposed Transfer, Tenant shall pay to Landlord, Landlord's reasonable costs, including, without limitation, reasonable attorneys' fees, incurred in connection with such proposal.
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improvement. Within twenty (20) days following the imposition of any lien resulting from any such change, addition or improvement, Tenant shall cause such lien to be released of record by payment of money or posting of a proper bond.
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after the Term as a result of such illegal contamination. This indemnification of Landlord includes, without limitation, the obligation to reimburse Landlord for costs incurred in connection with any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision. Without limiting the foregoing, if the presence of any Hazardous Material in, on or about the Premises or Complex caused by or permitted by Tenant results in any illegal contamination of the Premises or Complex, Tenant shall promptly take all actions at its sole expense as are necessary to return the Premises or Complex to the condition existing prior to the introduction of any Hazardous Material; provided, however, that Landlord's approval of such action shall first be obtained. "Hazardous Material" shall mean, in the broadest sense, any petroleum-based products, pesticides, paints, insolvents, polychlorinated, biphenyl, lead, cyanide, DDT, acids, ammonium compounds and other chemical products and any substance or material defined or designated as a hazardous or toxic, or other similar term, by any federal, state or local environmental statute, regulation or ordinance affecting the Premises or Complex presently in effect or that may be promulgated in the future, as such statutes, regulations and ordinances maybe amended from time to time. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord's request concerning Tenant's best knowledge and belief regarding the presence of hazardous substances or materials on the Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease from any release of hazardous materials on the Premises to the extent caused by, or resulting from the acts of, Tenant or Tenant's employees, directors, partners, shareholders, contractors, agents, invitees or representatives occurring while Tenant is in possession, or elsewhere if caused by Tenant or persons acting under Tenant. The within covenants shall survive the expiration or earlier termination of the lease term.
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any claim) against Landlord for damages for any injury to or interference with Tenant's business, for loss of occupancy or quiet enjoyment, or for consequential damages.
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condition. If restoration of the Premises to a Building Standard Condition is not completed, or estimated by Landlord or its agents to not be completed, within a period of one hundred twenty (120) days, Tenant may elect to terminate this Lease by providing written notice to Landlord within thirty (30) days after expiration of the one hundred twenty (120) day period, or, as applicable, within thirty (30) days after receipt by Tenant of a written estimate from Landlord of a time in excess of one hundred twenty (120) days to complete the restoration. If Tenant does not elect to terminate within this 30-day period, Tenant shall be deemed to have waived the option to terminate. During the period of restoration, Base Rent and Additional Rent shall be abated to the extent the Premises are rendered untenantable and, after the period of restoration, Base Rent and Tenant's Share shall be reduced in the proportion that the area of the Premises remaining tenantable after the casualty bears to the area of the Premises just prior to the casualty. Except for abatement of Base Rent and Additional Rent, if any, Tenant shall have no claim against Landlord for any loss suffered by reason of any such damage, destruction, repair or restoration, except to the extent such loss was caused by the gross negligence or willful misconduct of Landlord, its employees, representatives or contractors; provided, however, in no event shall Landlord be liable to Tenant for any lost profits, loss of business or other consequential damages. Except to the extent caused by the gross negligence or willful misconduct of Landlord, its employees, representatives or contractors, Landlord shall not be required to repair any damage or to make any restoration or replacement of any furnishings, trade fixtures, leasehold improvements, equipment, merchandise and other personal property installed in the Premises by Tenant or at the direct or indirect expense of Tenant. If Landlord is required by this Lease or any Landlord Mortgagee to repair, or if Landlord undertakes to repair, Landlord shall use commercially reasonable efforts to have such repairs made promptly and in a manner which will not unreasonably interfere with Tenant's occupancy.
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the Complex, and to any and all renewals, extensions, modifications, consolidations and replacements of any Mortgage and all advances made or hereafter to be made on the security of any Mortgage. Notwithstanding the foregoing, Landlord and Landlord's Mortgagee may, at any time upon the giving of written notice to Tenant and without any compensation or consideration being payable to Tenant, make this Lease, and the aforesaid leasehold estate and rights, titles and interests, superior to any Mortgage. In order to confirm the subordination (or, at the election of Landlord or Landlord's Mortgagee, the superiority of this Lease), upon the written request by Landlord or by Landlord's Mortgagee to Tenant, and within ten (10) days of the date of such request, and without any compensation or consideration being payable to Tenant, Tenant shall execute, have acknowledged and deliver a recordable instrument in a commercially reasonable form (which shall include non-disturbance provisions substantially as set forth therein confirming that this Lease, Tenant's leasehold estate in the Premises and all of Tenant's rights, titles and interests hereunder are subject and subordinate (or, at the election of Landlord or Landlord's Mortgagee, superior) to the Mortgage benefiting Landlord's Mortgagee. Without limiting the foregoing, upon request by Landlord's Mortgagee, the Landlord and Tenant shall execute such documents as Landlord's Mortgagee deems necessary to effect an amendment of this Lease. Tenant's failure to execute and deliver such instrument(s) as required in this Section 16 shall constitute a default under this Lease.
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(a) commercial general liability insurance with a combined single limit for bodily injury and property damage of not less than One Million Dollars ($1,000,000) per occurrence, including, without limitation, contractual liability coverage for the performance by Tenant of the indemnity agreements set forth in Section 18;
(b) hazard insurance with special causes of loss, including theft coverage, insuring against fire, extended coverage risks, vandalism and malicious mischief, and including boiler and sprinkler leakage coverage, in an amount equal to the full replacement cost (without deduction for depreciation) of all furnishings, trade fixtures, leasehold improvements, equipment, merchandise and other personal property from time to time situated in or on the Premises;
(c) workers' compensation insurance satisfying Tenant's obligations under the workers' compensation laws of the State of Utah; and
(d) such other policy or policies of insurance as Landlord may reasonably require or as Landlord is then generally requiring from other tenants in the Building.
Such minimum limits shall in no event limit the liability of Tenant under this Lease. Such liability insurance shall name Landlord, and all mortgagees and lessors of Landlord of which Tenant has been notified, as an additional insureds; such property insurance shall name Landlord as a loss payee as Landlord's interests may appear; and both such liability and property insurance shall be with companies acceptable to Landlord, having a rating of not less than A:XII in the most recent issue of Best's Key Rating Guide, Property-Casualty. All liability policies maintained by Tenant shall contain a provision that Landlord and any other additional insured, although named as an insured, shall nevertheless be entitled to recover under such policies for any loss sustained by Landlord and Landlord's agents and employees as a result of the acts or omissions of Tenant. Tenant shall furnish Landlord with certificates of coverage. No such policy shall be cancelable or subject to reduction of coverage or other modification except after thirty (30) days' prior written notice to Landlord by the insurer. All such policies shall be written as primary policies, not contributing with and not in excess of the coverage which Landlord may carry, and shall only be subject to such deductibles as may be approved in writing in advance by Landlord. Tenant shall, at least fifteen (15) days prior to the expiration of such policies, furnish Landlord with renewals of, or binders for, such policies. Landlord and Tenant waive all rights to recover against each other, against any other tenant or occupant of the Complex, and against the officers, directors, shareholders, partners, joint venturers, employees, agents, customers, invitees or business visitors of each other, or of any other tenant or occupant of the Building, for any loss or damage arising from any cause covered by any insurance carried by the waiving party, to the extent that such loss or damage is actually covered. Tenant shall cause all other occupants of the Premises claiming by, through or under Tenant to execute and deliver to Landlord a waiver of claims similar to the waiver contained in this Section and to obtain such waiver of subrogation rights endorsements. Any Landlord's Mortgagee may, at Landlord's option, be afforded coverage
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under any policy required to be secured by Tenant under this Lease by use of a mortgagee's endorsement to the policy concerned.
(a) All-risk property damage insurance on the. Building, Building Improvements and personal property owned by Landlord in the amount of the full replacement values thereof, as the values may exist from time to time; and
(c) All policies shall be issued by reasonable insurance companies authorized to do business in the state in which the Premises are located.
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Subject to paragraph 17.2 above and paragraph 19 below, and except to the extent caused by the gross negligence or willful misconduct of Tenant, its employees, representatives or contractors, Landlord agrees to indemnify, defend and hold Tenant and its officers, directors, partners and employees harmless from and against all liabilities, losses, demands, actions, expenses or claims, including reasonable attorneys' fees and court costs, for injury to or death of any person or for damages to any property or for violation of law arising out of or in any way connected with: (a) the fraud, gross negligence, or willful misconduct of Landlord in connection with the use of the Premises and Complex by Landlord or Landlord's agents, employees or contractors; and/or (b) any breach or default in the performance of Landlord's obligations under this Lease.
20. SECURITY INTEREST. As security for Tenant's payment of Rent and performance of all of its other obligations under this Lease, Tenant hereby grants to Landlord a security interest in all property of Tenant now or hereafter placed in the Premises. Landlord, as secured party, shall be entitled to all of the rights, remedies and recourses afforded to a secured party under the Utah Uniform Commercial Code, which rights, remedies and recourses shall be cumulative of all other rights, remedies, recourses, liens and security interests afforded Landlord by law, equity or this Lease. Contemporaneously with the execution of this Lease, Tenant shall execute and deliver, as debtor, promptly upon request and without any compensation or consideration being payable to Tenant, such additional financing statement or statements as Landlord may request. However, Landlord may at any time file a copy of this Lease as a financing statement.
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(a) the failure of Tenant to pay Base Rent or Additional Rent as and when due hereunder and the continuance of such failure for a period of five (5) days after written notice from Landlord to Tenant specifying the failure; provided, however, after Landlord has given Tenant written notice pursuant to this clause 24.1(a) on two separate occasions, Landlord shall not be required to give Tenant any further notice under this clause 24.1(a); provided, however, that the obligation of Tenant to pay a late charge or interest pursuant to this Lease shall commence as of the due date of the Rent or other monetary obligation and not on the expiration of any grace period;
(b) the failure of Tenant to perform, comply with or observe any term, condition or provision in this Lease (except as provided in Sections 24.1(a) and (c) through (g) of this Lease), and the continuance of such failure for a period of thirty (30) days after written notice from Landlord to Tenant specifying the failure, or, if reasonably required, such longer period (not to exceed 120 days) so long as Tenant timely and diligently commences and continues to completion the required cure;
(c) the (i) involuntary transfer by Tenant of Tenant's interest in this Lease unless such involuntary transfer is rescinded within ten (10) days after the date Tenant has actual knowledge thereof, or (ii) other than specifically permitted pursuant to Section 10 hereof, the voluntary transfer of Tenant's interest in this Lease, without Landlord's prior written consent;
(d) the failure of Tenant to discharge any lien placed as a result of Tenant's action or inaction upon the Premises or Building as set forth hereunder within ten (10) days after the date Tenant has actual knowledge thereof;
(e) the occurrence of a Net Tenant Delay, as defined in the Work Letter Agreement, of thirty (30) calendar days or more;
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(f) the filing of a petition by or against Tenant (the term "Tenant" also meaning, for the purpose of this clause 24.1(d), any guarantor of the named Tenant's obligations hereunder) that is not withdrawn within thirty (30) days after such filing (i) in any bankruptcy or other insolvency proceeding, (ii) seeking any relief under the Bankruptcy Code or any similar debtor relief law, (iii) for the appointment of a liquidator or receiver for all or substantially all of Tenant's property or for Tenant's interest in this Lease, or (iv) to reorganize or modify Tenant's capital structure; and
(g) the making by Tenant of an assignment of more than fifty percent (50%) of Tenant's assets for the benefit of its creditors.
(a) terminate this Lease by the giving of written notice to Tenant; reenter the Premises, with or without process of law; eject all parties in possession thereof; repossess and enjoy the Premises and all tenant improvements; and recover from Tenant all of the following: (i) all Rent and other amounts accrued hereunder to the date of termination, (ii) all amounts due under Section 24.3, and (iii) liquidated damages in an amount equal to (A) the total Rent that Tenant would have been required to pay for the remainder of the Term discounted to present value at the prime lending rate (or equivalent rate, however denominated) in effect on the date of termination at the largest national bank in the state where the Complex is located, minus (B) the then-present fair rental value of the Premises for such period, similarly discounted, plus any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which would be likely to result therefrom, including, without limitation, attorneys' fees, brokers' commissions or finder's fees;
(b) terminate Tenant's right to possession of the Premises without terminating this Lease by the giving of written notice to Tenant, in which event Tenant shall pay to Landlord (i) all Rent and other amounts accrued hereunder to the date of termination of possession, (ii) all amounts due from time to time under Section 24.3, and (iii) all Rent and other sums required hereunder to be paid by Tenant during the remainder of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during said period. Reentry by Landlord in the Premises will not affect the obligations of Tenant hereunder for the unexpired Term. Landlord may bring action against Tenant to collect amounts due by Tenant on one or more occasions, without the necessity of Landlord's waiting until expiration of the Term. If Landlord elects to proceed under this Section 24.2(b), it may at any time elect to terminate this Lease pursuant to Section 24.2(a);
(c) alter any and all locks and other security devices at the Premises without being obligated to deliver new keys to the Premises, unless Tenant has cured all Events of Default before Landlord has terminated this Lease under Section 24.2(a) or has entered into a lease to relet all or a portion of the Premises;
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(d) if an Event of Default specified in Section 24.1(c) occurs, Landlord may remove and store any property that remains on the Premises and, if Tenant does not claim such property within thirty (30) days after Landlord has delivered to Tenant notice of such storage, Landlord may appropriate, sell, destroy or otherwise dispose of the property in question without notice to Tenant or any other person, and without any obligation to account for such property; and/or
(e) no taking possession of the Premises by Landlord shall be construed as Landlord's acceptance of a surrender of the Premises by Tenant or an election of Landlord to terminate this Lease unless written notice of such intention is given to Tenant. Notwithstanding any leasing or subletting without termination of the Lease, Landlord may at any time thereafter elect to terminate the Lease for Tenant's previous breach.
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Further, the failure by Landlord to complain of any action or inaction by Tenant, or to assert that any action or inaction by Tenant constitutes (or would constitute, with the giving of notice and the passage of time) an Event of Default, regardless of how long such failure continues, shall not extinguish, waive or in any way diminish the rights, remedies and recourses of Landlord with respect to such action or inaction. No waiver by Landlord of any provision of this Lease or of any breach by Tenant of any obligation of Tenant hereunder shall be deemed to be a waiver of any other provision hereof, or of any subsequent breach by Tenant of the same or any other provision hereof. Landlord's consent to any act by Tenant requiring Landlord's consent shall not be deemed to render unnecessary the obtaining of Landlord's consent to any subsequent act of Tenant. No act or omission by Landlord (other than Landlord's execution of a document acknowledging such surrender) or Landlord's agents, including the delivery of the keys to the Premises, shall constitute an acceptance of a surrender of the Premises.
26. RIGHT OF REENTRY. Upon the expiration or termination of the Term for whatever cause, or upon the exercise by Landlord of its right to reenter the Premises without terminating this Lease, Tenant shall immediately, quietly and peaceably surrender to Landlord possession of the Premises and all tenant improvements therein in "broom clean" and good order, condition and repair, except only for ordinary wear and tear, damage by casualty not covered by Section 15.2 and repairs to be made by Landlord pursuant to Section 15.1. If Tenant is in default under this Lease, Landlord shall have a lien on such personal property, trade fixtures and other property as set forth in Section 38-3-1, et seq., of the Utah Code Xxx. (or any replacement provision). Landlord may require Tenant to remove any personal property, trade fixtures, other property, alterations, additions and improvements made to the Premises by Tenant or by Landlord for Tenant, and to restore the Premises to their condition on the date of this Lease. All personal property, trade fixtures and other property of Tenant not removed from the Premises on the abandonment of the Premises or on the expiration of the Term or sooner termination of this Lease for any cause shall conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice to, and without any obligation to account to, Tenant or any other person. While Tenant remains in
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possession of the Premises after such expiration, termination or exercise by Landlord of its reentry right, Tenant shall be deemed to be occupying the Premises as a tenant-at-sufferance, subject to all of the obligations of Tenant under this Lease, except that the Rent shall be one hundred fifty percent (150%) of the Rent in effect immediately before such expiration, termination or exercise by Landlord. No such holding over shall extend the Term. If Tenant fails to surrender possession of the Premises in the condition herein required, Landlord may, at Tenant's expense, restore the Premises to such condition.
27.3 Applicable Law. This Lease shall be governed by, and construed in accordance with, the laws of the State of Utah. All monetary and other obligations of Landlord and Tenant are performable in the county where the Complex is located.
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furnish to Landlord current financial statements for Tenant, prepared in accordance with generally accepted accounting principles consistently applied and certified by Tenant to be true and correct.
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used in this Lease, they shall be construed as referring to this Lease in its entirety rather than to a particular section or provision, unless the context specifically indicates to the contrary. Any reference to a particular "Section" shall be construed as referring to the indicated section of this Lease.
27.14 Authority. Each person executing this Lease on behalf of a party warrants and represents that (a) such party is a duly organized and existing legal entity, in good standing in the State of Utah, (b) such party has full right and authority to execute, deliver and perform this Lease, (c) this Lease is binding upon and enforceable against such party in accordance with its terms, (d) the person executing and delivering this Lease on behalf of such party was duly authorized to do so, and (e) upon request of the other party, such person will deliver to the other party satisfactory evidence of his or her authority to execute this Lease on behalf of such party.
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27.20 Miscellaneous. No amendment to this Lease shall be binding on Landlord or Tenant unless reduced to writing and signed by both parties. Each provision to be performed by Tenant shall be construed to be both a covenant and a condition. Venue on any action arising out of this Lease shall be proper only in the District Court of Salt Lake County, State of Utah. Landlord and Tenant waive trial by jury in any action, proceeding or counterclaim brought by either of them against the other on all matters arising out of this Lease or the use and occupancy of the Premises. The submission of this Lease to Tenant is not an offer to lease the Premises or an agreement by Landlord to reserve the Premises for Tenant. Landlord shall not be bound to Tenant until Tenant has duly executed and delivered duplicate original copies of this Lease to Landlord and Landlord has duly executed and delivered one of those duplicate original copies to Tenant.
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disclosure by the Discovering Party), or (B) information which has been or is hereafter furnished to the Discovering Party by a third party without restriction on disclosure.
EXECUTED as of the date and year above first written.
TENANT ACKNOWLEDGES THAT LANDLORD HAS MADE NO WARRANTIES TO TENANT, EXCEPT AS HEREIN EXPRESSLY SET FORTH, AND LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE.
[SIGNATURE PAGE FOLLOWS]
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TENANT:
ADS ALLIANCE DATA SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Sr. VP
By: /s/ R. E. Xxxxxxxxxx, Jr.
Name: R. E. Xxxxxxxxxx, Jr.
Title: Senior Vice President
LANDLORD:
NOP COTTONWOOD 2795 LLC,
a Delaware limited liability company
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By:
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NOP Cottonwood Holdings LLC,
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a Delaware limited liability company,
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its sole member
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By:
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National Office Partners Limited Partnership,
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a Delaware limited partnership,
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its Sole Member
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By:
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Xxxxx National Office Partners Limited Partnership,
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a Texas limited partnership
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By:
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Hines Fund Management, L.L.C.,
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a Delaware limited liability company,
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general partner
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By:
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Xxxxx Interests Limited Partnership,
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a Delaware limited partnership
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By:
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Xxxxx Holdings, Inc.,
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a Texas corporation,
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its general partner
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By: /s/ Xxxxx X. Xxxx, Xx.
Name: Xxxxx X. Xxxx, Xx.
Title: Executive Vice President
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SECOND AMENDMENT TO LEASE AGREEMENT
This SECOND AMENDMENT TO LEASE AGREEMENT ("Second Amendment") is dated for reference purposes as of December 19, 2012 (the "Effective Date"), by and between NOP XXXXXXXXXX 0000, LLC, a Delaware limited liability company ("Landlord"), and ADS ALLIANCE DATA SYSTEMS, INC., a Delaware corporation ("Tenant").
A. Landlord and Tenant entered into that certain Lease Agreement dated as of September 21, 2010 (the "Original Lease"), pursuant to which Landlord leased to Tenant and Tenant leased from Landlord that certain space containing approximately 4,389 square feet of Rentable Area (the "Existing Premises") commonly known as Suite 100 and located on the first (1st) floor of that certain office building addressed as 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxx Xxxx Xxxx, Xxxx (the "Building").
B. Landlord and Tenant entered into that certain First Amendment to Lease Agreement dated as of November 14, 2011 (the "First Amendment"), pursuant to which the parties, among other things, permitted Tenant to install, use, operate and maintain the Satellite Equipment (as defined in the First Amendment).
C. The Original Lease and the First Amendment are collectively referred to herein as the "Lease".
D. Landlord and Tenant now desire to amend the Lease to: (i) extend the Term of the Lease; (ii) expand the Existing Premises to include that certain space containing approximately 2,099 square feet of Rentable Area (the "Expansion Space"), commonly known as Suite 140, located on the first (1st) floor of the Building and depicted on Exhibit A attached hereto; and (iii) modify various terms and provisions of the Lease, all as hereinafter provided.
E. Except as otherwise expressly provided herein to the contrary, all capitalized terms used in this Second Amendment shall have the same meanings given such terms in the Lease.
A G R E E M E N T:
1. Extension of Term. The Term of the Lease for the Existing Premises, which is currently scheduled to expire on October 31, 2014, is hereby extended until January 31, 2018 (the "Revised Expiration Date"), unless sooner terminated as provided in the Lease (as amended hereby). The period of the Term of the Lease (as so extended) from the Expansion Space Commencement Date (as defined below) through and including the Revised Expiration Date shall sometimes be referred to herein as the "Extended Term".
2. Expansion Space.
2.1. Addition of Expansion Space. Commencing on the Expansion Space Commencement Date, the Existing Premises shall be expanded to include the Expansion Space, which Expansion Space shall be leased on the same terms and conditions set forth in the Lease (as amended hereby). From and after the Expansion Space Commencement Date, the Existing Premises and the Expansion Space shall be collectively referred to as the "Premises", and shall contain a total of approximately 6,488 square feet of Rentable Area.
2.2. Expansion Space Term. The lease term for the Expansion Space (the "Expansion Space Term") shall commence on the Expansion Space Commencement Date and shall expire coterminously with the Extended Term for the Existing Premises on the Revised Expiration Date. For purposes of this Second Amendment, the "Expansion Space Commencement Date" shall mean the earlier of: (i) the date Tenant conducts business operations in all or any portion of the Expansion Space; and (ii) the date Landlord delivers the Expansion Space to Tenant Ready for Occupancy, as defined in the Tenant Work Letter attached hereto as Exhibit B (the "Tenant Work Letter"), subject to acceleration as a result of any Tenant Delays (as defined and provided in the Tenant Work Letter). Landlord and Tenant presently anticipate that the Expansion Space will be delivered to Tenant Ready for Occupancy on or about February 1, 2013; however, if Landlord is unable to deliver to Tenant the Expansion Space Ready for Occupancy by such date (or any other date), then: (A) the validity of this Second Amendment or the Lease shall not be affected or impaired thereby; (B) Landlord shall not be in default hereunder or under the Lease (as amended hereby), or be liable for damages therefor; and (C) Tenant shall accept possession of the Expansion Space when Landlord delivers the Expansion Space to Tenant Ready for Occupancy.
2.3. Confirmation of Expansion Space Commencement Date. Following the Expansion Space Commencement Date, Landlord shall deliver to Tenant a Notice of Lease Term Dates in the form of Exhibit C attached hereto, which notice Tenant shall execute and return to Landlord within five (5) business days after Tenant's receipt thereof.
3. Base Rent. During the Expansion Space Term, the annual Base Rent (and monthly installments thereof) payable by Tenant for the Existing Premises and the Expansion Space shall be calculated together and shall be as set forth in the following schedule, subject to abatement pursuant to Section 4 below:
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Period of
Expansion Space Term
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Annual
Base Rent
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Monthly Installment of Base Rent
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Annual Base Rent Rate Per Square Foot of Rentable Area of Existing Premises and Expansion Space
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Expansion Space Commencement Date – 03/31/14
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04/01/14 – 03/31/15
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04/01/15 – 03/31/16
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04/01/16 – 03/31/17
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04/01/17 – 1/31/18
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4. Abatement of Base Rent. Notwithstanding Section 3 above to the contrary, and provided that Tenant faithfully performs all of the terms and conditions of the Lease (as amended hereby), Landlord shall xxxxx Tenant's obligation to pay the monthly installments of Base Rent otherwise payable by Tenant for the Existing Premises and the Expansion Space (the "Abated Rent"), for the first two (2) months of the Expansion Space Term (the "Abatement Period"). During the Abatement Period, Tenant shall remain responsible for the payment of all of its other monetary obligations under the Lease (as amended hereby). In the event of a default by Tenant under the terms of the Lease (as amended hereby) that results in the early termination of Tenant's interest therein pursuant to the provisions of Section 24 of the Original Lease, then as a part of the recovery set forth therein, Landlord shall be entitled to the recovery of the Abated Rent.
5. Tenant's Share; Base Year. For purposes of determining Tenant's Share of increases in Operating Expenses for the Existing Premises and the Expansion Space during the Expansion Space Term: (i) Tenant's Share for the Existing Premises and the Expansion Space shall be calculated together and shall be revised to be 4.79% (i.e., 6,488 square feet of Rentable Area of the Existing Premises and the Expansion Space /135,339 square feet of Rentable Area of the Building); and (ii) the Base Year for calculating Tenant's Share of increases in Operating Expenses for the Existing Premises and the Expansion Space shall be revised to be the calendar year 2013.
6. Condition of Premises. Except as otherwise provided in the Tenant Work Letter: (i) Tenant shall continue to occupy the Existing Premises from and after the date of execution of this Second Amendment in its current "AS IS" condition; and (ii) Tenant shall accept the Expansion Space in its "AS IS" condition as of the date of execution of this Second Amendment and on the Expansion Space Commencement Date, without any obligation on Landlord's part to construct or pay for any tenant improvements or refurbishment work in or for the Existing Premises or the Expansion Space.
7. Parking. From and after the Expansion Space Commencement Date, the first sentence of Section F of Part I of the Original Lease shall be modified as follows:
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"Tenant shall throughout the Term of the Lease (as extended), lease from Landlord a total of eighteen (18) automobile spaces in the Parking Facility, of which total Tenant may elect to lease up to four (4) assigned and covered automobile spaces at the then-prevailing market rate pursuant to Section 5.5 below."
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8. Address of Landlord for Notices. Landlord's addresses for notices (as originally set forth in Section G.2 of Part I of the Original Lease) is, from and after the date of execution of this Second Amendment, modified as follows:
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NOP Xxxxxxxxxx 0000, LLC
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c/o CommonWealth Partners Management LLC
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000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 00
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Xxx Xxxxxxx, XX 00000
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Attention: Asset Manager – Cottonwood Corporate Center
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With a copy to:
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NOP Xxxxxxxxxx 0000, LLC
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0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
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Xxxx Xxxx Xxxx, Xxxx 00000
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Attention: Property Manager
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9. Brokers. Landlord and Tenant each hereby represents and warrants to the other party that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Second Amendment, excepting only Commerce Real Estate Solutions (representing Landlord), and Continental Realty (representing Tenant) (collectively, the "Brokers"), and that it knows of no other real estate broker or agent who is entitled to a commission in connection with this Second Amendment. Each party agrees to indemnify and defend the other party against and hold the other party harmless from any and all claims, demands, losses, liabilities, lawsuits, judgments and costs and expenses (including, without limitation, reasonable attorneys' fees) with respect to any leasing commission or equivalent compensation alleged to be owing in connection with this Second Amendment on account of the indemnifying party's dealings with any real estate broker or agent (other than the Brokers).
10. Counterparts. This Second Amendment may be executed in multiple counterparts, each of which is to be deemed original for all purposes, but all of which together shall constitute one and the same instrument.
11. No Further Modification. Except as set forth in this Second Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect.
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[SIGNATURES ON FOLLOWING PAGE]
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LANDLORD:
NOP XXXXXXXXXX 0000, LLC,
a Delaware limited liability company
By: NOP COTTONWOOD HOLDINGS LLC,
a Delaware limited liability company
Its: sole member
By: NATIONAL OFFICE PARTNERS LLC,
a California limited liability company
Its: sole member
By: CWP CAPITAL MANAGEMENT, LLC,
a Delaware limited liability company
Its: Manager
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Its: Senior Vice President
TENANT:
ADS ALLIANCE DATA SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: CFO and CAO
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