EXHIBIT 10.14
LEASE AGREEMENT
This Lease Agreement (the "Lease") made and entered into as of April
25, 2003 by and between NORTHPOINT ATRIUM LIMITED PARTNERSHIP, ("Landlord"), and
ASSET ACCEPTANCE, LLC ("Tenant")
WITNESSETH
In consideration of the mutual covenants set forth herein, the parties
hereto agree as follows:
1. LEASED PREMISES. Landlord leases to Tenant and Tenant leases
from Landlord, on the terms and conditions set forth herein that portion
("Leased Premises") of the SECOND (2ND) Floor of the NORTHPOINT ATRIUM OFFICE
BUILDING (the "Building") located on the tract of land (the "Land") in Bexar
County, Texas described in Exhibit "A" hereto, which is designated as SUITE 200
and is the cross-hatched area set forth on Exhibit "B" hereto consisting of
approximately 27,265 square feet of Rentable Area (as hereinafter defined). The
street address of the Building is 00000 XXXXXXXX XXXXXX, Xxx Xxxxxxx, Xxxxx
00000. In addition, Tenant, its agents, employees and invitees shall have the
non-exclusive right, along with Landlord and all other tenants in the Building
and its and their respective agents, employees and invitees, to use the common
areas in the Building and the uncovered parking areas on the Land, except any
portions thereof designated for the use of specific tenants, subject to the
Rules and Regulations (as defined in Paragraph 16 of this Lease). Tenant's
Rentable Area is defined as follows:
(a) If the Leased Premises constitutes all of the space available
for use by tenants on a single floor the Rentable Area is (i)
the entire area bounded by the inside surface of the exterior
glass walls (or the inside surface of the permanent exterior
wall where there is no glass) of the Building on such floor,
less the area contained within the exterior walls of the
Building stairs, fire towers, vertical ducts, elevator shafts,
flues, vents, stacks, and pipe shafts; (ii) all the areas used
for elevator lobbies, corridors, special stairways, restrooms,
mechanical rooms, janitor closets, electrical rooms, telephone
closets, and all vertical penetrations included for the
special use of Tenant; and (iii) columns and other structural
portions and/or projections of the Building situated on such
floor.
(b) If the Leased Premises constitutes less than the entire space
rentable to tenants on the floor on which the Leased Premises
is situated, the Rentable Area of the Leased Premises includes
(i) the entire area included within the Leased Premises, being
the area bounded by the inside surface of any exterior glass
walls, (or the inside surface of the permanent exterior wall
where there is no glass) of the Building bounding the Leased
Premises, the exterior of all walls separating the Leased
Premises from any public corridors or other public areas on
such floor, and the centerline of all walls separating Leased
Premises from other areas leased or to be leased to other
tenants on such floor; (ii) a pro rata portion of the area
covered by the elevator lobbies, corridors, special stairways,
restrooms, mechanical rooms, janitor closets, electrical rooms
and telephone closets situated on such floor; (iii) all
vertical penetrations that are included for the special use of
Tenant; and (iv) columns and other structural portions and/or
projections of the Building.
(c) For the purposes of this Lease, the Rentable Area for the
entire Building is 86,648 SF.
2. USE. Tenant shall use the Leased Premises solely as a business
or professional office and for no other purpose without the prior written
consent of Landlord. Landlord neither states nor implies a warranty of
suitability of the Leased Premises for Tenant's intended use and Tenant hereby
waives any such warranty of suitability.
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3. TERM. Subject to the other provisions herein, the term of this
Lease is SIXTY (60) months (the "Term"), beginning on the date (the
"Commencement Date") which is THE LATER OF MAY 1, 2003 OR UPON SUBSTANTIAL
COMPLETION OF THE IMPROVEMENTS TO BE CONSTRUCTED OR INSTALLED BY THE LANDLORD
(SECTION I OF ADDENDUM). IN NO EVENT SHOULD TENANT BE RESPONSIBLE FOR THE
SIMULTANEOUS PAYMENT OF RENT FOR SUITE 200 AND THE SPACE CURRENTLY OCCUPIED BY
TENANT ON THE FIRST FLOOR. The occupancy of the Leased Premises by Tenant shall
be conclusive evidence of Tenant's acceptance of the Leased Premises as suitable
for the purposes for which the same is leased and that Landlord has fully
complied with its obligations contained in this Lease with respect to the
completion of the Leased Premises. SUBSEQUENT TO OCCUPYING THE PREMISES, TENANT
SHALL EXECUTE AND DELIVER TO LANDLORD A LETTER ACKNOWLEDGING THE COMMENCEMENT
DATE.
4. RENTAL. The base rental ("Rental") payable for each calendar
month during the Term of this Lease shall be as follows:
ANNUAL MONTHLY BASE
YEAR RATE/RSF RENTAL
1 $15.00 $34,081.25
2 $15.50 $35,217.29
3 $16.00 $36,353.33
4 $16.50 $37,489.38
5 $17.00 $38,625.42
In addition to the Rental provided for in this Xxxxxxxxx 0, Xxxxxx shall pay the
additional rental ("Additional Rental") provided for in Paragraph 5 hereof and
all other sums required to be paid pursuant to the terms of this Lease.
5. ADDITIONAL RENTAL. As used herein, the terms: (i) "Operating
Expenses" means the aggregate of the ad valorem taxes and assessments (or any
substitute taxes) attributable to the Land and Building, premiums for all
policies of insurance on and relating to the operation of the Building, and all
costs and expenses of repairing, maintaining and operating the Land and
Building, including, without limitation, charges for water, gas, electricity,
heating, air-conditioning and other utilities furnished to the Building,
janitorial service, management fees, and the cost of all labor, payments to
independent contractors, materials, tools and supplies for maintenance, repair
and operation of the Building; (ii) "Base Operating Expenses" shall mean the
Actual Operating Expenses for the calendar year 2003 (the "Actual Operating
Expenses" shall be the final, reconciled Operating Expenses for any given year);
and (iii) "Tenant's Share" shall mean 32.8%, expressed in a monetary sum. Tenant
agrees to pay Landlord (such "Additional Rental") in the amounts assessed by
Landlord in accordance with the further provisions of this Paragraph 5.
(a) Not later than December 15 of each year during the Term of
this Lease, Landlord shall deliver to Tenant a notice
("Estimated Operating Expense Notice") setting forth: (i)
Landlord's estimate ("Estimated Operating Expense") of the
Operating Expenses for the next calendar year; and (ii)
Tenant's Share of the excess of such Estimated Operating
Expense over the Base Operating Expenses.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LEASE, ANY
CONTROLLABLE OPERATING COSTS IN EXCESS OF THE CONTROLLABLE
OPERATING COSTS CAP FOR THE APPLICABLE CALENDAR YEAR WILL BE
EXCLUDED FROM THE CALCULATION OF THE BASE RENT ADJUSTMENT EACH
CALENDAR YEAR. FOR ANY CALENDAR YEAR, "CONTROLLABLE OPERATING
COST" MEANS ALL OPERATING COSTS FOR THAT CALENDAR YEAR OTHER
THAN COSTS OF UTILITIES, TAXES AND INSURANCE CARRIED BY
LANDLORD AND COSTS OF LICENSES, PERMITS AND INSPECTION FEES
AND "CONTROLLABLE OPERATING COSTS CAP" MEANS AN AMOUNT
CALCULATED BY INCREASE CONTROLLABLE OPERATING COSTS IN THE
BASE YEAR AT A RATE OF FIVE PERCENT (5%) PER ANNUM FOR EACH
PRIOR CALENDAR YEAR OF THE TERM OR FRACTION THEREOF ELAPSED
AFTER
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THE COMMENCEMENT DATE.
(b) Following delivery of the Estimated Operating Expense Notice
Tenant shall pay with each payment of Rental a sum equal to
one-twelfth (1/12th) of the Tenant's Share of the excess of
Estimated Operating Expenses over the Base Operating Expenses
commencing with the Rental payment due next following the
delivery of such Estimated Operating Expense Notice and
continuing until the due date of the Rental payment next
following the delivery of a subsequent Estimated Operating
Expense Notice.
(c) Should the actual Operating Expenses for any calendar year
exceed the Estimated Operating Expenses for such year or in
the case of the year in which this Lease commences ("First
Year") the actual Operating Expenses exceed the Base Operating
Expenses, Tenant shall pay Tenant's Share of such excess with
the payment of Rental next due following the expiration of
fifteen (15) days from Landlord's delivery to Tenant of a
notice ("Actual Operating Expense Notice") setting forth: (i)
the actual Operating Expenses for the appropriate calendar
year in reasonable detail; and (ii) the Tenant's Share of the
excess of the actual Operating Expenses over the Estimated
Operating Expenses for such year or the Base Operating
Expenses in the case of the First Year. Landlord's failure to
deliver an Actual Operating Expense Notice within ninety (90)
days following the end of a calendar year shall constitute
Landlord's waiver of the right to assess any Additional Rental
pursuant to this subparagraph (c) for such calendar year.
Provided, however, such a waiver shall not constitute a waiver
of the right to such Additional Rental for other years.
(d) If the Term of this Lease includes less than all of any
calendar year, Tenant's Share for such year shall be the
percentage stated above multiplied by a fraction the numerator
of which is the number of months of the Term of this Lease
included in such calendar year and the denominator of which is
twelve (12). The provisions of this Paragraph shall survive
the expiration or termination of this Lease.
(e) NOTWITHSTANDING THE FOREGOING, OPERATING EXPENSES SHALL NOT
INCLUDE THE FOLLOWING:
i. PRINCIPAL OR INTEREST PAYMENTS ON LOANS OR OTHER DEBTS
FOR BORROWED MONEY WHETHER OR NOT SECURED BY MORTGAGES
OR TRUST DEEDS ON THE BUILDING OR LAND OR ANY LATE FEES,
LOAN FEES OR OTHER CLOSING EXPENSES IN CONNECTION WITH
SUCH LOANS, DEBTS OR GROUND LEASE RENT;
ii. LEASING COMMISSIONS;
iii. THE COST OF TENANT INSTALLATIONS AND DECORATIONS
INCURRED IN CONNECTION WITH PREPARING, ALTERING OR
IMPROVING SPACE FOR ANY TENANT;
iv. SALARIES OR FRINGE BENEFITS OF PERSONNEL ABOVE THE GRADE
OF "GENERAL MANAGER";
v. COSTS INCURRED IN CONNECTION WITH ANY LITIGATION
INVOLVING LANDLORD, AND ANY JUDGMENTS OR AWARDS AGAINST
LANDLORD WHICH RESULT FROM SUCH LITIGATION OR ANY
SETTLEMENT IN LIEU THEREOF, INCLUDING WITHOUT
LIMITATION, LANDLORD'S ENFORCEMENT OF LEASES WITH
TENANTS IN THE BUILDING, INCLUDING COURT COSTS AND
ATTORNEYS' FEES AND DISBURSEMENTS IN CONNECTION WITH ANY
SUMMARY PROCEEDINGS TO DISPOSSESS ANY TENANT.
vi. COSTS INCURRED IN CONNECTION WITH THE MAKING OF REPAIRS
WHICH ARE THE OBLIGATION OF ANOTHER TENANT OF THE
BUILDING;
vii. EXPENSES INCURRED IN CONNECTION WITH RESTORATION OF THE
BUILDING DUE TO DAMAGE AND DESTRUCTION OR CONDEMNATION;
viii. COSTS INCURRED BY LANDLORD AS A RESULT OF THE LANDLORD'S
BREACH OF THIS LEASE OR ANY OTHER LEASE WITH A TENANT OF
THE BUILDING.
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IF AT ANY TIME DURING THE TERM (INCLUDING THE BASE YEAR) THE BUILDING IS LESS
THAN 95% OCCUPIED OR LANDLORD IS NOT SUPPLYING SERVICES TO AT LEAST 95% OF THE
RENTABLE AREA OF THE BUILDING DURING AN ENTIRE CALENDAR YEAR, THEN LANDLORD
SHALL ADJUST THOSE COMPONENTS OF OPERATING EXPENSES WHICH VARY WITH OCCUPANCY TO
LANDLORD'S ESTIMATE OF THAT AMOUNT WHICH WOULD HAVE BEEN PAID OR INCURRED BY
LANDLORD AS OPERATING EXPENSES (INCLUDING BOTH VARIABLE AND NON-VARIABLE
COMPONENTS) HAD THE BUILDING BEEN 95% OCCUPIED OR SERVICED, AND THE OPERATING
EXPENSES AS SO ADJUSTED SHALL BE DEEMED TO BE THE ACTUAL OPERATING EXPENSES FOR
SUCH CALENDAR YEAR.
(f).TENANT SHALL HAVE THE RIGHT, AT ITS SOLE COST, FOR A PERIOD OF 90
DAYS AFTER TENANT'S RECEIPT OF A STATEMENT, TO REVIEW AND/OR AUDIT
LANDLORD'S RECORDS OF OPERATING EXPENSES AND TAXES FOR THE CALENDAR
YEAR TO WHICH SUCH STATEMENT PERTAINS. IF SUCH AUDIT DISCLOSES AN
ERROR IN THIS STATEMENT, THE DIFFERENCE SHALL PROMPTLY BE PAID BY,
OR CREDITED TO, TENANT, AS APPROPRIATE. IF TENANT DOES NOT EXERCISE
ITS RIGHT OF REVIEW AND/OR AUDIT WITHIN SUCH 90 DAY PERIOD, THIS
RIGHT OF REVIEW AND/OR AUDIT SHALL EXPIRE AND THE STATEMENT TO WHICH
SUCH 90 DAY PERIOD PERTAINS SHALL BE FINAL AND BINDING UPON TENANT.
6. PAYMENTS BY TENANT. On or before the first day of each
calendar month during the Term hereof, Tenant shall pay to Landlord in advance
for such month the Rental together with any Additional Rental provided for
herein then in effect without notice or demand except as provided in Paragraph 5
commencing with the first day of the first month following the Commencement
Date. All payments due hereunder shall be paid in lawful money of the United
States of America at the time of payment at the address of Landlord as set forth
below, or if Landlord so requests Tenant in writing, by sending such amount to
such other party or place in Bexar County, Texas as Landlord may designate from
time to time in a written notice to Tenant. If this Lease commences or
terminates on any day other than the first or last day of a calendar month or
year, the Rental (but not the Additional Rental) due hereunder shall be
prorated. Tenant's responsibility to pay such Rental and Additional Rental is an
independent covenant and, unless expressly agreed to in writing by Landlord,
Tenant shall not be entitled to require Landlord's demand, nor for Tenant to
deduct from or set off against such payments any sums owing or claimed to be
owing by Landlord to Tenant; and, no condition or circumstances shall entitle
Tenant to an abatement of any such payment. In the event the Rental and
Additional Rental, if any, is not received by Landlord on or before the TENTH
(10TH) day of the month in which it is due, Tenant shall pay an additional sum
("Late Charge") equal to FIVE PERCENT (5%) of the amount of the Rental and
Additional Rental due and payable which sum shall be immediately due and payable
and tendered with the payment of such Rental and Additional Rental, if any. The
Late Charge shall be compensation to Landlord for the additional expense
involved in the handling and processing of late payments.
7. LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS. If Tenant
fails to perform any one or more of its obligations hereunder, then in addition
to the other rights, remedies and recourses available to Landlord hereunder, at
law or in equity, and without waiving any such rights, remedies or recourses or
the existence of any default by Tenant, Landlord shall have the right (but not
the obligation) to perform such obligation of Tenant, and Tenant shall reimburse
Landlord upon demand for all expenses, including reasonable attorney's fees
incurred by Landlord in performing such obligations, together with interest
thereon at the highest rate allowed by applicable law or if there is no such
highest rate at the rate of one and one half percent (1.5%) per month.
8. LANDLORD'S CONSTRUCTION. Landlord shall provide the Leased
Premises in an "as is" condition except as described otherwise herein.
9. TENANT IMPROVEMENTS.
(a) After the Commencement Date, Tenant, at its sole cost and
risk, shall have the right to make alterations, additions or
changes to the interior of the Leased Premises ("Tenant
Improvements") if such alterations, additions or changes, in
the judgment of Landlord: (i)
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are normal for office use; (ii) do not adversely affect the
utility of the Leased Premises for future tenants; (iii) do
not alter the exterior appearance of the Building; (iv) do not
impair the structural soundness of the Leased Premises or of
the Building; or (v) are not otherwise prohibited herein or in
the Rules and Regulations (as hereinafter defined); provided,
however, no such MATERIAL alterations, additions or changes to
the Leased Premises shall be made without Landlord's prior
written consent, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD. All MATERIAL Tenant Improvements shall be made by
workmen and contractors approved in advance in writing by
Landlord. All such work shall be done in a manner so as to
create the least possible disruption and inconvenience to
other tenants in the Building and other workmen and
contractors performing work in the Building. MATERIAL SHALL BE
DEFINED AS $10,000 PER ALTERATION, $25,000 YEAR TOTAL.
(b) After the Commencement Date, Tenant, subject to the further
terms hereof and at its sole cost and expense, shall have the
right to install within the Leased Premises all equipment,
facilities and other improvements required by Tenant for the
conduct of its business in the Leased Premises. Tenant shall
not, without the specific written consent of Landlord and
Tenant's written agreement to pay additional costs resulting
therefrom, install any apparatus or device within the Leased
Premises, including, but not limited to, electronic data
processing machine, punch card machine or any other machine,
which: (i) weighs in excess of 1,500 pounds individually, and
which when added to all other live loads (exclusive of
partitions) exceeds the equivalent of 50 pounds per square
foot for the entire structural bay affected; (ii) uses
electrical power in excess of 120-277 volts or 15 amperes; or
(iii) in any way increases the amount of electrical power,
water, gas, heating or air conditioning used by Tenant in the
Leased Premises to an amount in excess of the amount usually
furnished at such time for use by tenants in general office
space in the Building.
(c) Tenant may remove its trade fixtures, property (including
office supplies) and moveable office furniture and equipment
not attached to the Building provided: (i) such removal is
made prior to the expiration or termination of this Lease;
(ii) Tenant is not then in default in the performance of its
obligations under this Lease; and (iii) Tenant promptly
repairs all damage caused by such removal, ORDINARY WEAR AND
TEAR ACCEPTED. All other property located in the Leased
Premises, any Tenant Improvements to the Leased Premises, and
any other article attached or affixed to the floor, wall or
ceiling of the Leased Premises shall become the property of
Landlord and shall remain upon and be surrendered with the
Leased Premises as part thereof upon the expiration or
termination of this Lease, Tenant hereby waiving all rights to
any payment or compensation therefore. However, if Landlord so
requests in writing, Tenant shall, prior to the expiration or
termination of this Lease, remove any and all Tenant
Improvements, fixtures, equipment and property placed or
installed by it in the Leased Premises and shall repair any
damage caused by such removal.
10. LIENS. Tenant shall not permit any mechanics', materialmen's
or other liens to be fixed or placed against the Leased Premises, the Building,
or the Land and shall immediately discharge (in a manner suitable to Landlord)
any such lien which is allegedly fixed or placed against the Leased Premises,
the Building or the Land by or through Tenant. Tenant shall indemnify and hold
Landlord harmless from and against claims, liabilities, judgments or costs
(including attorney's fees) arising out of any lien allegedly fixed or placed on
the Leased Premises, the Building, or the Land.
11. SERVICES TO BE FURNISHED BY LANDLORD.
(a) Subject to the other matters referred to herein, Landlord
shall, at its own expense, furnish to Tenant the following
services during the Term of the Lease:
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(i) Janitorial service provided five (5) nights per week
in a manner similar to other Class "A" office
buildings in San Antonio.
(ii) Elevator service for all public areas in the manner
and to the extent deemed by Landlord to be reasonable
and standard.
(iii) Air conditioning and heating as reasonably required
in Landlord's judgment for comfortable use and
occupancy of the Leased Premises under normal office
conditions from 7:00 a.m. to 7:00 p.m. Monday through
Friday, and 7:00 a.m. to 1:00 p.m. Saturday, but not
on Sundays or such holidays as Landlord determines
will be observed from time to time by tenants
occupying a majority of the area in the Building.
(iv) Replacement of lamps in the ceiling of the Leased
Premises excluding any lamps not included in the
building standard and not installed by Landlord;
(v) Cold water (at normal temperature of the supply of
water to the Building) for lavatory purposes in the
restrooms on each floor, refrigerated water for
drinking purposes at such location or locations on
each floor as is designated by Landlord, and hot
water (from the regular Building supply at the
prevailing temperatures) for lavatory purposes in the
restrooms on each floor, all such water service to be
supplied from the regular supply of water to the
Building through fixtures installed by Landlord or by
Tenant with Landlord's written consent;
(vi) Electrical services to the Leased Premises required
by Tenant in the normal use and occupancy of the
Leased Premises not to exceed 120-277 volts or 15
amperes, at the locations provided in the plans and
specifications furnished or to be furnished pursuant
to Paragraph 8.
(b) The obligation of Landlord to supply the electrical, water,
air conditioning and heating services shall be subject to all
laws, rules and regulations of any governmental authorities
and the supplier of such utilities to the Building and any
reduction in such services by the supplier thereof shall not
cause Landlord to be in default hereunder.
(c) If the use of the Leased Premises requires the providing of
additional electrical, air conditioning or heating service to
the Leased Premises, Tenant shall pay Landlord the additional
expense resulting therefrom as determined from time to time by
Landlord at such times as provided by separate written
agreement executed by Tenant and Landlord simultaneously with
the execution of this Lease; provided, however, that nothing
in this Paragraph 11 shall permit the use or installation of
any equipment in violation of the provisions of Paragraph 9.
Without limiting the foregoing provisions of this subparagraph
(c) of this Paragraph 11, if in Landlord's reasonable opinion
the Tenant's use of any fixtures or equipment causes or would
cause the use of more electrical service to the Building than
the amount allocated to the Leased Premises, Landlord may
install instruments for measuring the electrical service used
by said fixtures and equipment AT LANDLORD'S SOLE COST AND
EXPENSE. In such event, Tenant shall pay an Additional
Electrical Charge (as hereafter defined) within ten (10) days
following Landlord's delivery of written demand for same. If
any Additional Electrical Charge is not received by Landlord
within said period, Tenant shall pay a Late Charge calculated
and payable in accordance with the provisions of Paragraph 6.
The Additional Electrical Charge shall ONLY include Landlord's
actual costs of the electrical service used by said fixtures
and equipment,
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(d) No interruption, curtailment, reduction or malfunction of any
such services, including, but not limited to, interruptions
for repair of service pipes and lines, shall: (i) constitute
an eviction or disturbance of Tenant's use and possession of
the Leased Premises or Building; (ii) constitute a breach by
Landlord of any of its obligations hereunder; (iii) render
Landlord liable for damages; (iv) entitle Tenant to be
relieved from any of its obligations hereunder; or (v) grant
Tenant any right of set-off or recoupment. In the event of any
such interruption, however, Landlord shall use reasonable
diligence to restore such service. NOTWITHSTANDING THE
FOREGOING, IF (a) ANY INTERRUPTION OF BUILDING SERVICES CAUSES
ALL OR A MAJORITY OF THE PREMISES TO BE UNTENATABLE FOR A
PERIOD OF THREE (3) BUSINESS DAYS OR MORE IF CAUSED BY
LANDLORD OR LANDLORD'S EMPLOYEES, AGENTS OR REPRESENTATIVES,
OR SEVEN (7) CONSECUTIVE BUSINESS DAYS IN ANY OTHER EVENT,
RENT SHALL BE ABATED PROPORTIONATELY FROM THE DATE OF
INTERRUPTION UNTIL THE SERVICE IS RESTORED.
(e) In the event that Tenant desires air conditioning or heating
at any time or times other than as specified in subpart (iii)
of subparagraph (a) of this Paragraph 11, and Landlord
consents to the furnishing of such service at the time or
times requested by Tenant, Tenant shall be charged for such
air conditioning or heating furnished by Landlord during such
periods at Landlord's then standard hourly rate applicable
during the periods when such services are furnished. SUCH RATE
SHALL CORRESPOND TO THE KILOWATT PRICE INDEX PUBLISHED BY CITY
PUBLIC SERVICE.
12. REPAIRS AND CARE OF LEASED PREMISES BY TENANT. Tenant shall
not injure the Leased Premises or the Building nor commit or allow any waste or
damage to be committed therein, and shall maintain the Leased Premises in a
clean and attractive condition and in good repair, except as to damage required
to be repaired by Landlord. Upon the expiration or termination of this Lease.
Tenant shall surrender and deliver up the Leased Premises to Landlord in as good
condition as exists on the Commencement Date, excepting only ordinary wear and
tear and damage arising from fire or other casualties. At its sole cost and
expense, Tenant shall repair or replace any damage or injury to the Leased
Premises caused by Tenant, its agents, employees or invitees.
13. REPAIRS BY LANDLORD. Landlord shall, at its own cost and
expense, except as may be provided elsewhere herein, make all necessary repairs
of damage to the Building corridors, lobby, structural members of the Building
and equipment used to provide the services referred to in Paragraph 11, unless
any such damage is caused by acts or omissions of Tenant, its agents, employees
or invitees, in which event Tenant shall bear the cost of such repairs. Tenant
shall promptly give Landlord written notice of any damage in the Leased Premises
or the Building requiring repair by Landlord, and Landlord shall not be liable
for any damages resulting from the failure to make any such repair unless
Landlord fails to make any such necessary repair within a reasonable time after
receipt of notice from Tenant of the need to make such repair.
14. FIRE OR OTHER CASUALTY. If at any time during the Term of this
Lease, the Leased Premises or a substantial portion of the Building shall be
damaged or destroyed by fire or other casualty, Landlord shall have the right,
by giving Tenant written notice thereof at any time within thirty (30) days
after the occurrence of such damage or destruction, to terminate this Lease or
elect to repair and reconstruct the Leased Premises and the Building to
substantially the same condition in which they existed immediately prior to such
damage or destruction. If Landlord elects to repair and restore the Leased
Premises and the Building (a) this Lease shall continue in full force and effect
and such repairs and restoration shall be made within a reasonable time
thereafter, subject to delays arising from the shortages of labor or material,
acts of God, or other conditions beyond Landlord's control, (b) the Rental and
Additional Rental shall xxxxx proportionately during any period in which and to
the extent the Leased Premises are not reasonably fit for use by Tenant in the
ordinary conduct of its business, and (c) the Term of this Lease shall be
extended by a period of time equal to the period during which the Leased
Premises is not reasonably fit for use by Tenant as a result of such fire or
other casualty. In the event this Lease is
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terminated as herein permitted, (x) Landlord shall refund to Tenant the prepaid
unaccrued Rental and Additional Rental, if any, less any sums then owing to
Landlord by Tenant, or Tenant shall pay all Rental, Additional Rental and other
sums owed to Landlord by Tenant, up to the date of such termination, as the case
may be, and (y) the date of termination shall be the date of the occurrence of
the fire or other casualty giving rise to Landlord's right to terminate.
15. WAIVER OF SUBROGATION. Anything in the Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Leased
Premises or any improvements thereto or contents thereof, by reason of fire, the
elements or any other cause which could be insured against under the terms of
standard fire and extended coverage insurance policies, regardless of cause or
origin, including negligence of the parties hereto, their agents, officers and
employees. On or prior to the Commencement Date, Landlord and Tenant each shall
deliver to the other written evidence from such party's insurance carrier of:
(a) such insurance carrier's approval of the waiver of subrogation herein made
and agreement that the same shall be effective against it and (b) that the
waiver of subrogation herein made shall not invalidate such party's insurance
coverage.
16. COMPLIANCE WITH LAWS, USAGE AND SIGNS. Tenant, at its own
expense, shall: (a) comply with all federal, state, municipal and other laws,
ordinances, rules and regulations applicable to the Leased Premises and the
business conducted therein by Tenant, including, but not limited to, the payment
of all taxes, license fees and other governmental charges applicable to Tenant's
improvements and property in the Leased Premises or arising out of the conduct
of Tenant's business; (b) not engage in any activity which would cause
Landlord's fire and extended coverage insurance to be canceled or the rate
therefore to be increased; (c) not commit any act which is a nuisance or
annoyance to Landlord or to any other tenants, or which might, in the judgment
of Landlord, tend to injure the Building; (d) comply with rules and regulations
("Rules and Regulations") not inconsistent with this Lease from time to time
promulgated by Landlord applicable to the Building; (e) not paint, erect or
display any sign, advertisement, placard or lettering which is visible in the
corridors or lobby of the Building or from the exterior of the Building without
Landlord's prior approval; and (f) not modify any window coverings installed by
Landlord or install or place objects visible in the corridors or lobby of the
Building or from the exterior of the Building without Landlord's prior approval.
Attached hereto as Exhibit "C" is a copy of the currently effective Rules and
Regulations.
17. INDEMNITY AND EXCULPATION.
(a) Indemnity. (i) TENANT SHALL INDEMNIFY AND HOLD HARMLESS
LANDLORD AND LANDLORD'S PARTNERS, EMPLOYEES AND INVITEES FROM
ALL LOSSES, COSTS, DAMAGES OR EXPENSES RESULTING OR ARISING
FROM ANY AND ALL INJURIES OR DEATH OF ANY PERSON OR DAMAGE TO
ANY PROPERTY (A) CAUSED BY AN ACT, OMISSION OR NEGLECT OF (i)
TENANT OR TENANT'S OFFICERS, EMPLOYEES, AGENTS, OR INVITEES,
(ii) OTHER PARTIES CONTRACTING WITH TENANT UNDER A CONTRACT
RELATING TO THE LEASED PREMISES OR (iii) LANDLORD OR
LANDLORD'S EMPLOYEES, AGENTS, OR INVITEES; OR (B) IN ANY
MANNER ARISING OUT OF TENANT'S OCCUPANCY OF THE LEASED
PREMISES.
(ii) LANDLORD SHALL INDEMNIFY AND HOLD HARMLESS TENANT AND
TENANT'S PARTNERS, EMPLOYEES AND INVITEES FROM ALL LOSSES,
COSTS, DAMAGES OR EXPENSES RESULTING OR ARISING FROM ANY AND
ALL INJURIES OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY
(A) CAUSED BY AN ACT, OMISSION OR NEGLECT OF (i) LANDLORD OR
LANDLORD'S OFFICERS, EMPLOYEES, AGENTS, OR INVITEES, (ii)
OTHER PARTIES CONTRACTING WITH LANDLORD UNDER A CONTRACT
RELATING TO THE LEASED PREMISES OR (iii) TENANT'S OR TENANT'S
EMPLOYEES,
Northpoint Atrium Office Lease Page 8
AGENTS, OR INVITEES; OR (B) IN ANY MANNER ARISING OUT OF
TENANT'S OCCUPANCY OF THE LEASED PREMISES.
(b) Waivers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW
TENANT WAIVES ALL CLAIMS AGAINST LANDLORD FOR ANY DAMAGE OR
INJURY OF ANY KIND TO PERSONS OR PROPERTY DURING THE TERM OF
THIS LEASE FROM ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO: (A) THE USE, OCCUPANCY AND ENJOYMENT OF THE LEASED
PREMISES BY TENANT; (B) THE ACTS OR FAILURE TO ACT OF ANY
PARTY OR PARTIES ENTERING THE LAND, BUILDING OR LEASED
PREMISES; (C) THE ACTS, OR FAILURE TO ACT OF ANY OTHER TENANT
OR SUCH OTHER TENANT'S OFFICER, AGENTS, INVITEES OR OTHER
PARTIES CONTRACTING WITH THEM, (D) THE CONDITION OR DESIGN OF
THE BUILDING; (E) THE BUILDING BECOMING OUT OF REPAIR, (F) THE
FAILURE OF OR DEFECT IN ANY MECHANICAL EQUIPMENT IN THE
BUILDING; OR (G) THE LEAKING OF GAS, OIL, STEAM, OR WATER. ALL
PROPERTY OF EVERY KIND WHICH MAY BE ON THE LEASED PREMISES
DURING THE TERM OF THE LEASE SHALL BE AT THE SOLE RISK OF
TENANT, AND LANDLORD SHALL NOT BE LIABLE FOR ANY LOSS OR
DAMAGE THERETO.
(c) SCOPE OF INDEMNITIES AND WAIVERS. ALL INDEMNITIES AND WAIVERS,
WHEREVER CONTAINED IN THIS LEASE, SHALL BE ENFORCED FOR THE
BENEFIT OF THE APPLICABLE BENEFICIARY THEREOF, REGARDLESS OF
ANY EXTRAORDINARY SHIFTING OR RISKS, AND EVEN IF THE
APPLICABLE CLAIM IS CAUSED BY THE ACTIVE OR PASSIVE NEGLIGENCE
OR SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE OF SUCH
BENEFICIARY, AND REGARDLESS OF WHETHER LIABILITY WITHOUT FAULT
OR STRICT LIABILITY IS IMPOSED UPON OR ALLEGED AGAINST SUCH
BENEFICIARY, BUT NOT TO THE EXTENT THAT A COURT OF COMPETENT
JURISDICTION HOLDS IN A FINAL JUDGEMENT THAT A CLAIM IS CAUSED
BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SUCH
BENEFICIARY; LANDLORD AND TENANT ACKNOWLEDGES THAT THEY HAVE
EXECUTED THIS LEASE IN MATERIAL RELIANCE UPON INCLUSION OF
EACH SUCH INDEMNITY AND WAIVER.
18. INSURANCE. Tenant shall maintain in full force during the Term
hereof a policy of public liability and property damage insurance under which
Landlord and Tenant are named as insureds. Such insurance shall also provide
blanket contractual liability coverage. Tenant shall deliver to Landlord a copy
of such policy or other evidence suitable to Landlord of the effectiveness of
such insurance on request. The minimum limits of liability of such policy shall
be $1,000,000 for injury or death in one occurrence, $2,000,000 annual aggregate
and $100,000 with respect to damage to property. Such policy shall be issued by
an insurance company or companies authorized to do business in Texas and which
have policy holder ratings not lower than "A-" and financial ratings not lower
than "VII" in Best's Insurance Guide. Each policy shall contain an endorsement
providing that Landlord shall receive ninety (90) days prior notice of any
cancellation of, non-renewal of, reduction of coverage or material change in
coverage of said policy. It is expressly understood and agreed that the
coverages required represent Landlord's minimum requirements and such are not to
be construed to void or limit Tenant's obligations contained in this Lease,
including without limitation Tenant's indemnity obligations hereunder.
19. EMINENT DOMAIN. If during the Term of this Lease any part of
the Leased Premises or the Building is taken by condemnation or conveyed to an
entity having the power to take property by condemnation under threat of such a
taking, Landlord may elect to terminate this Lease. If Landlord elects to
continue the Lease, the Rental and Additional Rental, if any, shall be reduced
in proportion to the area of the Leased Premises so taken or conveyed and
Landlord shall repair any damage to the Leased
Northpoint Atrium Office Lease Page 9
Premises or the Building resulting from such taking. All sums awarded or agreed
upon between Landlord and the condemning authority for the taking or conveyance
of the interest of Landlord and Tenant, whether as damages or as compensation,
shall be the property of Landlord only. If this Lease is terminated pursuant to
the provisions of this Paragraph 19, such termination shall be effective on and
the Rental and Additional Rental, if any, shall be payable up to the date that
possession is taken by the authority condemning or threatening to condemn and
Landlord shall refund to Tenant any prepaid unaccrued Rental and Additional
Rental, if any, less any sums then owing by Tenant to Landlord. The above
notwithstanding, Tenant shall be able to make a separate claim for the value of
its Leasehold Improvements and its Leasehold Interest.
20. EVENTS OF DEFAULT. Each of the following acts, omissions or
occurrences shall constitute an "Event of Default" and a material breach of this
Lease by Tenant:
(a) Failure by Tenant to timely pay any Rental, Additional Rental
or other payments required to be paid hereunder. Tenant shall
have the right to cure two (2) times per year with notice and
not be an event of default.
(b) Failure by Tenant to perform or observe any other covenant,
condition or provision of this Lease to be performed or
observed by Tenant prior to the expiration of ten (10)
BUSINESS days after Landlord's delivery of written notice to
Tenant of such failure;
(d) The adjudication of Tenant to be bankrupt or insolvent, the
filing of a petition in bankruptcy or other insolvency
proceeding by or against Tenant, the filing of any petition or
answer seeking relief under any provision of the United States
Bankruptcy Code or any similar act by Tenant, the assignment
for the benefit of creditors by Tenant, the filing of a
petition or other proceeding by or against Tenant for the
appointment of a trustee, receiver or liquidator of Tenant for
any of Tenant's property, or the filing of any proceeding by
any governmental authority for the dissolution or liquidation
of Tenant, unless any such involuntary receivership or
proceeding against Tenant is dismissed or stayed within thirty
(30) days thereafter;
(e) Abandonment or vacation of the Leased Premises or any
significant portion thereof and the ceasation of regular
rental payments;
21. LANDLORD'S REMEDIES. Upon the occurrence of any Event of
Default enumerated above, Landlord may, at its option, in addition to any and
all other rights, remedies or recourses available to it hereunder or at law or
in equity, do any one or more of the following:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Leased Premises to Landlord;
(b) Enter upon and take possession of the Leased Premises and
expel or remove Tenant and any other occupant therefrom, with
or without terminating the Lease;
(c) Alter locks and other security devices at the Leased Premises;
and
(d) Remove and store any or all of the office equipment and
furniture situated in the Leased Premises.
Exercise by Landlord of any one or more remedies herein granted or otherwise
available shall not be deemed to be an acceptance or surrender of the Leased
Premises, whether by agreement or by operation of law, it being understood that
such surrender can be effected only by the written agreement of Landlord and
Tenant. In the event that Landlord alters the locks and other security devices
at the Leased Premises, Tenant may procure a new key from Landlord during
Tenant's regular business hours to access the Leased
Northpoint Atrium Office Lease Page 10
Premises, so long as Tenant has cured any monetary default hereunder and repaid
Landlord for any expenses incurred in the alteration of the locks and other
security devices to the Leased Premises. This Lease shall control in the event
of conflicts with Section 93 of the Texas Property Code. No such alteration of
security devices and no removal or other exercise of dominion by Landlord over
the property of Tenant or others at the Leased Premises shall be deemed
unauthorized or constitute a conversion, Tenant hereby consenting to the
aforesaid exercise of dominion over Tenant's property within the Building, after
the occurrence of any Event of Default. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, TENANT WAIVES ALL CLAIMS FOR DAMAGES BY REASON OF SUCH RE-ENTRY,
REPOSSESSION, ALTERATION OF LOCKS OR OTHER SECURITY DEVICES, AND REMOVAL OF
OFFICE EQUIPMENT AND FURNITURE, AS ARE ALL CLAIMS FOR DAMAGES BY REASONS OF ANY
DISTRESS WARRANT, FORCIBLE DETAINER PROCEEDINGS, SEQUESTRATION PROCEEDINGS OR
OTHER LEGAL PROCESS. Tenant agrees that any re-entry by Landlord may be pursuant
to judgment obtained in forcible detainer proceedings or other legal proceedings
or without the necessity for any legal proceedings, as Landlord may elect, and
Landlord shall not be liable in trespass or otherwise. In the event Landlord
elects to terminate the Lease by reason of the occurrence of an Event of
Default, then notwithstanding any such termination, Tenant shall be liable for
and shall pay to Landlord the sum of all Rental, Additional Rental and other
indebtedness accrued to the date of such termination, plus, as damages, an
amount of money equal to the excess (if any) of the total Rental and all other
payments due for the balance of the Term of this Lease over the fair market
value of the Leased Premises for the balance of the Term of this Lease as of the
occurrence of the Event of Default. Upon the occurrence of an Event of Default,
Tenant shall also be liable for and shall pay to Landlord upon demand, in
addition to any other sums provided to be paid hereunder, (a) all broker's fees
incurred by Landlord in connection with reletting of all or any portion of the
Leased Premises, (b) the costs of removing and storing Tenant's or other
occupant's property found in the Leased Premises, (c) the costs of repairing,
altering, remodeling or otherwise putting the Leased Premises into condition
acceptable to a new tenant, and (d) all reasonable expenses incurred by Landlord
in enforcing Landlord's remedies, including reasonable attorney's fees. All
Rental, Additional Rental and other payments which are more than thirty (30)
days past due shall bear interest from their respective due dates until paid at
the highest rate allowed by applicable law or if there is no such highest rate
at the rate of one and a half percent (1.5%) per month. In the event of
termination or repossession of the Leased Premises upon the occurrence of an
Event of Default, Landlord shall not have any obligation to relet or attempt to
relet the Leased Premises or any portion thereof or to collect any rental after
any such reletting. In the event of any such reletting, Landlord may relet the
whole or any portion of the Leased Premises for any period, to any tenant, for
any rental and for any use and purpose. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, TENANT SHALL INDEMNIFY AND DEFEND LANDLORD AGAINST ALL CLAIMS
ARISING FROM ANY BREACH OF TENANT'S OBLIGATIONS UNDER THIS LEASE.
22. NON-WAIVER No consent or waiver, express or implied, by
Landlord to or of any breach in the performance or observance by Tenant of any
of the covenants, conditions or provisions in this Lease shall be construed as a
consent or waiver to or of any other breach in the performance or observance by
Tenant of the same or any other covenant, condition or provision. Neither the
failure on the part of Landlord to complain of any action or non-action on the
part of Tenant or to declare Tenant in default, no matter how long such failure
may continue, nor acceptance of Rental, Additional Rental or other sums from
Tenant after any such breach, shall be deemed to be a waiver by Landlord of any
of its rights hereunder, except as otherwise specifically provided herein.
Receipt by Landlord of Tenant's keys to the Leased Premises shall not constitute
an acceptance of surrender of the Leased Premises. Time is of the essence with
respect to the performance and observance by Tenant of every covenant, condition
and provision of this Lease.
23. DEFAULT BY LANDLORD. In the event of any default by Landlord
hereunder, Tenant's exclusive remedy shall be an action for damages (Tenant
waives (i) the benefit of any laws granting it a lien upon the property of
Landlord and/or upon the Rental and Additional Rental due to Landlord). Prior to
any such action Tenant shall give Landlord written notice specifying such
default with reasonable detail, and Landlord shall thereupon have thirty (30)
days in which to cure any such
Northpoint Atrium Office Lease Page 11
default. If such default cannot reasonably be cured within such thirty (30) day
period, the length of such period shall be extended for the period reasonably
required therefore if Landlord commences curing such default within such thirty
(30) day period and continues the curing thereof with reasonable diligence and
continuity. Unless Landlord fails to cure any default after such notice, Tenant
shall not have any remedy or cause of action by reason thereof. All obligations
of Landlord hereunder shall be construed as covenants, not conditions, and all
such obligations shall be binding upon Landlord only during the period of its
ownership of the Building, and not thereafter. The term "Landlord" shall mean
only the last owner of the Building, and in the event of the transfer by such
owner of its interest in the Building, such owner shall thereupon by released
and discharged from all covenants and obligations of the Landlord thereafter
accruing, but such covenants and obligations shall be binding during the Term of
this Lease upon each new owner of the Building for the duration of such owner's
ownership of the Building. In addition, Tenant specifically agrees to look
solely to Landlord's interest in the Building for the recovery of any judgment
from Landlord pursuant to this Lease, it being agreed that neither Landlord nor
any successors or assigns of Landlord nor any future owner of the Building shall
ever be personally liable for any such judgment.
24. ASSIGNMENT AND SUBLETTING. Tenant shall not assign or
otherwise transfer, mortgage, pledge, hypothecate or otherwise encumber this
Lease or any interest herein, and shall not sublet the Leased Premises or any
portion thereof, or any right or privilege appurtenant thereto, or suffer or
permit any other party to occupy or use the Leased Premises or any portion
thereof, without the prior express written consent of Landlord and such consent
shall not be unreasonably withheld, conditioned or delayed. Notwithstanding any
such consent, the undersigned Tenant shall remain jointly and severally liable
for the performance of the obligations of Tenant pursuant to the terms hereof
along with each approved assignee or subtenant, who shall automatically become
liable for all such obligations, and Landlord shall be permitted to enforce the
provisions of this Lease directly against Tenant and or any assignee or
subtenant without proceeding in any way against any other person.
25. ATTORNEY'S FEES. IN THE EVENT EITHER PARTY REQUIRES THE
SERVICES OF AN ATTORNEY IN CONNECTION WITH ENFORCING THE TERMS OF THIS LEASE, OR
IN THE EVENT SUIT IS BROUGHT FOR THE RECOVERY OF ANY RENT DUE UNDER THIS LEASE,
FOR THE BREACH OF ANY COVENANT OR CONDITION OF THIS LEASE, FOR THE RESTITUTION
OF THE PREMISES TO LANDLORD, OR FOR THE EVICTION OF TENANT, EITHER DURING THE
LEASE TERM OR AFTER THE EXPIRATION THEREOF, THE PARTY PREVAILING IN SUCH LEGAL
ACTION SHALL BE ENTITLED TO AN AWARD FOR ALL LEGAL COSTS AND EXPENSES,
INCLUDING, BUT NOT LIMITED TO, A REASONABLE SUM FOR ATTORNEYS' FEES.
26. SURRENDER OF LEASED PREMISES AND HOLDING OVER. On the last day
of the original scheduled Term of this Lease, or upon the earlier termination of
this Lease, Tenant shall peaceably and quietly leave, surrender and yield up to
Landlord the Leased Premises, free of all claims, broom clean and in good order
and repair, ORDINARY WEAR AND TEAR ACCEPTED. Prior to the surrender of the
Leased Premises to Landlord, Tenant at its sole cost and expense shall remove
all liens and other encumbrances that have resulted from the acts or omissions
of Tenant. If Tenant fails to do any of the foregoing, Landlord may without
notice, enter upon, re-enter, possess and repossess the Leased Premises, by
force, summary proceedings, ejectment, forcible detainer, or otherwise and may
dispossess and remove Tenant and all persons and property from the Leased
Premises; and Tenant hereby waives any and all damages or claims for damages as
a result thereof. Such dispossession and removal of Tenant shall not constitute
a waiver by Landlord of any claims by Landlord against Tenant. If Tenant does
not surrender possession of the Leased Premises at the end of the original
scheduled Term or upon the termination of this Lease, Tenant shall be a
tenant-at-sufferance of Landlord and the Rental, Additional Rental and other
payments due during the period of such holdover shall be ONE HUNDRED TWENTY FIVE
Northpoint Atrium Office Lease Page 12
PERCENT (125%) OF the amounts hereinabove provided in effect immediately prior
to the end of the original scheduled Term or earlier termination of this Lease
UNLESS OTHERWISE AGREED TO IN WRITING, IN ADVANCE BETWEEN LANDLORD AND TENANT.
27. SUBORDINATION, ATTORNMENT AND CERTIFICATES.
Tenant further agrees:
(a) That this Lease and all of the rights and interests of the
Tenant hereunder shall be subject and subordinate to any
mortgage or deed of trust (whether one or more) which may now
or hereafter constitute a lien upon the Building (hereinafter
called "Mortgage", and the holder or beneficiary of any such
Mortgage being hereinafter called "Mortgagee") to the same
extent as if the Mortgage had been executed, delivered and
recorded prior to the execution of this Lease; provided,
however, that any Mortgagee shall have the right at any time
to elect, by written notice to Tenant, to make this Lease and
the rights and interests of Tenant hereunder superior to the
Mortgage held by such Mortgagee;
(b) That, notwithstanding the subordination of this Lease pursuant
to this Paragraph 27 or any subordination of this Lease which
may exist by virtue of the execution of this Lease subsequent
to any Mortgage, at the election of any Mortgagee this Lease
shall not terminate in the event of, or on account of, the
foreclosure or other action taken under the Mortgage held by
such Mortgagee but shall continue in effect as a Lease in
accordance with all of the terms and provisions hereof between
Tenant and any party ("Transferee"), including such Mortgagee,
which shall be the transferee of title to the Building
pursuant to such foreclosure or other action for enforcement
of any such Mortgage, (including, but not limited to, the
execution and delivery of a deed in lieu of foreclosure); and
Tenant will attorn and be liable to and recognize such
Transferee and its successors and assigns as Tenant's landlord
for the balance of the term of this Lease upon and subject to
all of the terms and provisions hereof. Such Transferee shall
not be bound by any act, omission or default of any prior
Landlord under this Lease or any offsets or defenses which
Tenant may have against any such prior Landlord;
(c) Any Mortgagee to which the Landlord's interest in this Lease
and/or any of the rents payable hereunder shall be assigned
and any Transferee shall not be bound by any pre-payment of
any rent to any prior Landlord under this Lease (other than
the Rental and Additional Rental, if any, for the current
month) or any amendment, modification or termination of this
Lease or any waiver, consent or other action taken with
respect to this Lease unless such Mortgagee shall have given
its written consent thereto. Furthermore, neither such
assignment of this Lease and/or the rents payable hereunder,
nor any actions by any Mortgagee under such assignment shall
be deemed an assumption by such Mortgagee of Landlord's
obligations under this Lease.
(d) That, after receiving written notice from any Mortgagee of its
mortgage interest and specifying an address or addresses for
notices, Tenant shall, so long as such Mortgage is
outstanding, give to such Mortgagee copies of any notices of
default on the part of the Landlord under this Lease, and
copies of such other notices as are required to be given to
Landlord under this Lease. Such copies of notices shall be
given concurrently with the giving of such notices to the
Landlord and shall be sent certified mail, return receipt
requested. In the case of any notices of default, each
Mortgagee shall be permitted to cure any such default within a
period of sixty (60) days after such Mortgagee receives such
notice of default or such further period of time as may be
required for such Mortgagee to cure such default acting with
diligence and, if so cured by such Mortgagee, Tenant shall not
have any such rights or remedies as would otherwise be
available to it on account of such default;
Northpoint Atrium Office Lease Page 13
(e) That all of the foregoing provisions of subparagraphs (a)
through (d) inclusive of this Paragraph 27(e) shall be
self-operative and shall not require any further agreement or
document by Tenant; and any Mortgagee or Transferee may rely
upon the applicable provisions of this Paragraph 27(e) without
any further agreement or document by Tenant. In confirmation
of the same, however, Tenant shall, upon request, execute
promptly any further agreements, documents or confirmations
which may be desired by any Mortgagee or Transferee as further
confirmation and evidence of any or all of the agreements
contained in said subparagraphs (a) through (d) inclusive of
this Paragraph 27(e);
(f) That the Tenant shall promptly, whenever requested by the
Landlord or a Mortgagee, prospective Mortgagee, purchaser
("Purchaser") of the Building or Land or prospective
Purchaser, execute, acknowledge and deliver to the Landlord
and such Mortgagee, prospective Mortgagee, Purchaser or
prospective Purchaser a certificate in writing as to the then
status of this Lease and any matters pertaining to this Lease,
including without limitation, the effectiveness of this Lease
at that time and the status of rent hereunder, any defaults
hereunder, and that the Landlord, any Mortgagee or prospective
Mortgagee, Purchaser or prospective Purchaser shall be
entitled to rely thereon. SUCH MORTGAGEE SHALL PROVIDE TENANT
WITH A SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT
AGREEMENT PROVIDING INTER ALIA(i) THAT THIS LEASE IS
SUBORDINATE TO THE LIEN OF THE MORTGAGE (IF SO ELECTED BY
MORTGAGEE), (ii) THAT TENANT'S RIGHT OF POSSESSION WILL NOT BE
DISTURBED BY THE MORTGAGEE (OR BY ANY SUBSEQUENT TRANSFEREE OF
THE LANDLORD'S INTEREST) IN CONNECTION WITH ANY MORTGAGE
FORECLOSURE PROCEEDINGS SO LONG AS TENANT PERFORMS ITS
OBLIGATIONS SET FORTH IN THE LEASE, AND (iii) THAT TENANT
SHALL ATTORN TO THE FORECLOSING MORTGAGEE OR PURCHASER AT A
FORECLOSURE SALE.
28. LANDLORD'S RIGHT TO ENTRY. Landlord shall have the right at
all reasonable times UPON REASONABLE NOTICE during the term of this Lease to
enter upon the Leased Premises to inspect the condition thereof, to show same to
prospective new tenants or Purchasers, to determine if Tenant is performing its
obligations under this Lease, and to perform the obligations of Landlord to make
the repairs and restoration that Landlord is obligated to perform under this
Lease.
29. NOTICES. Any notice to be given hereunder by one party to the
other shall be in writing and the same shall be given and shall be deemed to
have been given if delivered in person to the address set forth opposite such
party's signature below for the party to whom the notice is given, or if placed
in the United States mail, postage prepaid, registered or certified with return
receipt requested, addressed to the party at such address. From time to time
either party may designate another address for all purposes of this Lease by
mailing to the other party not less than fifteen (15) days' written notice of
such change of address in accordance with the provisions hereof.
30. HAZARDOUS MATERIALS.
(a) Definition. A "hazardous material" is any toxic, ignitable,
reactive or corrosive substance now or hereafter regulated by any
governmental authority, including any substance defined by applicable
law as a "hazardous waste", "extremely hazardous waste", "hazardous
substance", "hazardous material" or "regulated substance".
"Contamination" means any release or disposal of a hazardous material
in or about the Premises or the Project which may result in a fine, use
restriction, cost recovery lien, remediation requirement or other
government action or imposition affecting Landlord. For purposes of
this Lease, claims arising from Contamination shall include diminution
in value, restrictions on use, adverse impact on leasing space, and all
Northpoint Atrium Office Lease Page 14
costs of site investigation, remediation, removal and restoration work.
(b) Restrictions. No hazardous materials shall be brought upon,
kept, used or disposed of in or about the Premises or the Project by
any Tenant Party without Landlord's prior written consent, unless
Tenant (i) demonstrates to Landlord's reasonable satisfaction that any
such hazardous material is necessary in the ordinary course of Tenant's
business and shall be used, kept and stored in compliance with
applicable law; and (ii) gives Landlord written notice of any such
hazardous material, including the current material safety data sheet.
(c) Remediation. If Contamination occurs, Tenant shall, at its
expense, promptly take all actions necessary to return the Premises,
the Land and Building to its condition prior to such Contamination,
subject to Landlord's prior written approval of Tenant's proposed
methods, times and procedures for remediation. Tenant shall provide
Landlord reasonably satisfactory evidence that such actions shall not
adversely affect Landlord or the Contaminated property. Landlord may
require that a representative of Landlord be present during any such
actions and/or that such actions be taken after business hours. If
Tenant fails to take any necessary remediation actions within thirty
(30) days after written notice from landlord or an authorized
governmental agency, Landlord may take such actions and Tenant shall
reimburse Landlord therefore, plus a fifteen percent (15%)
administrative fee, within thirty (30) days of Landlord's invoice.
31. PARKING. Tenant will be provided up to TWENTY-FIVE (25)
covered, reserved and ONE HUNDRED SIXTY-SIX (166) unreserved, surface parking
spaces. All parking shall be at no charge for the term of the Lease.
ADDITIONALLY, IN THE EVENT TENANT EXPANDS ITS SPACE PURSUANT TO ITS EXPANSION
RIGHTS CONTAINED IN THE ADDENDUM CONTAINED IN THIS LEASE, LANDLORD AT ALL TIMES
SHALL BE ABLE TO PROVIDE TENANT A PARKING RATIO EQUAL TO SEVEN (7) SPACES PER
1,000 RENTABLE SQUARE FEET LEASED BY TENANT. FAILURE TO PROVIDE FOR THE
AFOREMENTIONED RATIO SHALL CONSTITUTE THE DEFAULT ON THE PART OF THE LANDLORD
AND LANDLORD SHALL HAVE NINETY (90) DAYS FROM THE DATE OF NOTICE TO CURE SUCH
DEFAULT.
32. ENVIRONMENT. Landlord, in its sole and absolute discretion,
shall have the right but not the duty to control the environment of the Building
and all leased spaces. Tenant agrees to comply with all such Landlord
requirements imposed from time to time. Landlord's environmental controls shall
extend to and include smoke and odors from within the Leased Premises that may
emanate outside the Leased Premises, or that may diminish the useable life or
value of the interior improvements. Failure to comply with Landlord's
requirements shall constitute an event of default.
33. GENERAL PROVISIONS. No oral statements or prior written matter
not specifically incorporated herein shall be of any force or effect. Tenant
agrees that in entering into and taking this Lease, it relies solely upon the
representations and agreements contained in this Lease. This Lease shall not be
modified except by a written agreement executed by both parties hereto. This
Lease and the rights and obligations of the parties hereunder shall be
interpreted, construed, and enforced in accordance with the laws of the State of
Texas in effect from time to time, except that in interpreting and enforcing the
provision relating to interest rates, the term "applicable law" shall be
construed to include the laws of the State of Texas or the United States,
whichever is applicable. All personal pronouns used in this Lease, whether used
in the masculine, feminine or neuter gender, shall include all other genders,
and the singular and plural of such personal pronouns shall include the other.
Captions are included herein for convenience only and shall not limit or amplify
the provisions of this Lease. In case any one or more of the provisions
contained in this Lease shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Lease shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein. All determinations, approvals and estimates (including but not limited
to those made pursuant to Paragraphs 5 and 11) made by Landlord pursuant to the
provisions of this Lease shall be conclusive while Landlord is acting in good
faith which shall be presumed. Landlord may change the name of the Building at
any time and may place and remove signs on the Building and the Land from time
to time. Subject to the limitations set forth in Paragraph 24, this Lease shall
be binding
Northpoint Atrium Office Lease Page 15
upon and inure to the benefit of the parties and their respective heirs, legal
representatives, successors and assigns. All exhibits mentioned herein and
attached hereto are incorporated herein for all purposes.
34. QUIET ENJOYMENT. If, and so long as, Tenant pays the Rent
reserved hereunder and keeps and performs each and every term, covenant and
condition herein contained on the part and on behalf of Tenant to be kept and
performed, Tenant shall quietly enjoy the Premises without hindrance or
molestation by Landlord or any person or entity claiming by or through Landlord,
subject to the terms, covenants and conditions of this Lease.
35. BROKERAGE FEES. Landlord and Tenant recognize that Tenant has
been represented by Signature Associates-ONCOR International in this
transaction. A real estate commission is expected to be paid for the initial
space term as well as for expansions subject to the terms of an agreement
between Landlord and Signature Associates dated _____________________. This
lease shall provide Tenant with set-off rights should Landlord fail to pay
Signature Associates the commission in a timely manner.
IN WITNESS WHEREOF, this Lease Agreement is executed as of the date
first set forth above.
LANDLORD: TENANT:
Northpoint Atrium Office Building, Ltd. Asset Acceptance, LLC
By: Northpoint Atrium, L.C.
Its General Partner
By:__________________________________ By:________________________
Print Name:__________________________ Print Name: Xxxx Xxxxxxx
Title:_______________________________ Title: President
Northpoint Atrium Office Lease Page 16
ADDENDUM
This Addendum is hereby made a part of the Lease Agreement dated _______________
by and between NORTHPOINT ATRIUM LIMITED PARTNERSHIP, ("Landlord"), and ASSET
ACCEPTANCE, LLC ("Tenant"). IN THE EVENT IF ANY CONFLICTS BETWEEN THIS ADDENDUM
AND THE LEASE AGREEMENT DATED ___________, THIS ADDENDUM SHALL CONTROL.
1. TENANT IMPROVEMENTS. Landlord, at its sole expense and using building
standard materials, shall provide turn key improvements as described in
Tenant's final plans and specifications as shown on the attached Exhibit
"B-1", including, but not limited to new construction of office walls, new
paint, new carpet where needed, and the minor make-ready work that is
required. Any other improvements desired by Tenant shall be at Tenant's
sole expense. Landlord shall control and have the right of approval
regarding all aspects of the improvement process. FURTHER, TENANT SHALL BE
SOLELY RESPONSIBLE FOR THE INSTALLATION AND ONGOING MAINTENANCE OF THE
BACKUP POWER GENERATOR, THE FIRE SUPPRESSION SYSTEM AND THE SECURITY ALARM
LOCATED WITHIN THE LEASED PREMISES.
2. OPTION TO RENEW. Tenant shall have ONE (1) Option to Renew the Lease for an
additional term of SIXTY (60) months. Such Option to Renew is on an "as-is"
basis and all terms and conditions shall remain the same, except that the
Base Rental shall be modified to the then current market rate for space at
the Building. In order to exercise this option, Tenant must provide written
notice to Landlord of its intent to exercise this right at least ONE
HUNDRED EIGHTY (180) days prior to the expiration of the Lease Term.
LANDLORD'S DETERMINATION OF THE FAIR MARKET RENTAL VALUE OF THE PREMISES
SHALL TAKE INTO ACCOUNT THE FAIR MARKET RENTAL OF SIMILAR BUILDINGS IN THE
NORTH CENTRAL SUBMARKET. LANDLORD AND TENANT SHALL EXECUTE AN AMENDMENT TO
THIS LEASE EVIDENCING THE EXERCISE OF THE RENEWAL OPTION AND THE REVISIONS
TO THIS LEASE RESULTING FROM THE EXERCISE OF THE RENEWAL OPTION.
Notwithstanding the foregoing, if, at any time during the term of this
Lease, Tenant is or becomes in default of any term or provision of this
Lease and such default has not been cured, then Tenant shall waive and have
no rights whatsoever with regard to this Option to Renew. Further, this
Option to Renew IS FULLY ASSIGNABLE BY TENANT TO ANY SUBSEQUENT
WHOLLY-OWNED RELATED ENTITY OR ASSIGNEE.
3. RIGHT OF FIRST REFUSAL AND EXPANSION. Tenant shall have the right of first
refusal to lease the area identified on Exhibit "D" to this Lease as (the
"REFUSAL Space") under the following terms and conditions:
(a) WITH THE EXCEPTION OF THE PENDING CORINTHIAN COLLEGE LEASE,
LANDLORD MUST GIVE TENANT WRITTEN NOTICE (THE "NOTICE") to Tenant
specifying the terms of the letter of intent or proposal once Landlord
receives a bona-fide binding or non-binding letter of intent or
proposal to or from a specific prospective tenant that contains a
statement of the material economic terms for a lease and that includes
ANY CONTIGUOUS SPACE OF 5,000 SQUARE FEET OR LARGER IN THE AREAS
ILLUSTRATED ON EXHIBIT "D" (THE "RIGHT OF FIRST REFUSAL & EXPANSION
SPACE"), and Tenant will have the option to lease the portion of the
REFUSAL Space described in the Notice upon the terms stated in the
Notice. NOTWITHSTANDING THE ABOVE, IF NOTICE IS GIVEN DURING THE
INITIAL EIGHTEEN (18) MONTHS OF THE PRIMARY LEASE TERM, TENANT SHALL BE
PROVIDED THE SAME TERMS AND CONDITIONS AS UNDER THE LEASE EXCEPT THAT
THE LANDLORD'S OUT-OF-POCKET EXPENSES WILL BE REDUCED PROPORTIONATELY
RELATIVE TO THE TERM REMAINING IN THE LEASE AND ALL SUCH EXPANSIONS
SHALL BE CO-TERMINUS WITH THE LEASE.
(b) Landlord must receive written notice from Tenant of its
unconditional and irrevocable acceptance of the terms stated in the
Notice no later than ten (10) BUSINESS days after Tenant's receipt of
the Notice, failing which, Landlord will be free thereafter to lease
all or any part of the REFUSAL Space; and in connection with such
leasing, Landlord may agree to changes to the terms stated in the
Notice without Tenant's consent or approval so long as the changes are
the result of
Northpoint Atrium Office Lease Page 17
arm's-length negotiations between Landlord and a prospective tenant and
not the result of bad faith or collusion.
(c) If Landlord has received written notice from Tenant of its
unconditional and irrevocable acceptance of the terms stated in the
Notice not later than ten (10) BUSINESS days after Tenant's receipt of
the Notice, the portion of the Expansion Space described in the Notice
will be added to the Premises, Landlord will deliver such portion of
the Expansion Space to Tenant at the time and in the condition
described in the Notice, Tenant will commence payment of Rent with
respect to such portion of the Expansion Space in accordance with the
terms of the Notice, and all other terms of Tenant's leasing and
occupancy of such portion of the Expansion Space will be as provided in
this Lease except as otherwise provided in the Notice. When requested
by Landlord, Tenant must execute an appropriate amendment to this Lease
to reflect the addition of such portion of the Expansion Space to the
Premises.
(d) During the initial EIGHTEEN (18) months of the primary Lease
term, Tenant shall have a non-exclusive expansion option on the
Expansion Space (the "Expansion Option") WHICH IS DEFINED AS ANY
CONTIGUOUS SPACE OF 5,000 SQUARE FEET OR LARGER IN THE AREAS
ILLUSTRATED ON EXHIBIT "D" (THE "RIGHT OF FIRST REFUSAL & EXPANSION
SPACE"). To exercise the Expansion Option, Tenant shall give Landlord
written notice of its intention to do so and such notice shall also
include the approximate portion of the Expansion Space that Tenant
would like to occupy (the "Expansion Notice"). Landlord may exercise
reasonable discretion in determining the shape and size of any space
taken under the Expansion Option to insure that the remaining space, if
any, is leasable. Subsequent to Landlord's receipt of the Expansion
Notice, both parties hereunder will move diligently to facilitate
Tenant's occupancy of all or part of the Expansion Space. All other
terms and conditions relative to space taken under the Expansion Option
shall be the same as under the Lease except that the Landlord's
out-of-pocket expenses will be reduced proportionately relative to the
term remaining in the Lease and all such expansions shall be
co-terminus with the Lease. The Tenant Improvement Allowance
calculation will be based upon an original allowance of $6.00 per rsf
and the Base Rent will be the same as in the Lease.
4. SUBLEASE AND ASSIGNMENT. Not withstanding anything contained herein, Tenant
shall have the right to assign the Lease in its entirety or to sublease all
or any portion of the Premises without the consent of Landlord to (a) any
entity resulting from a merger or consolidation with Tenant, (b) any entity
succeeding to the business and assets of Tenant, or (c) any subsidiary or
affiliate of Tenant. Any other assignment or sublease would require the
prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. The Landlord shall have no right to recapture
subleased space.
5. ADDRESS FOR NOTICES: ASSET ACCEPTANCE LLC
0000 XXXXXX XX.
XXXXXX, XXXXXXXX 00000
ATTN: XXXX X. XXXXXX
PHONE:000-000-0000
FAX: 000-000-0000
LANDLORD: TENANT:
Northpoint Atrium Office Building, Ltd. Asset Acceptance, LLC
By: Northpoint Atrium, L.C.
Its General Partner
By:__________________________________ By:___________________________
Print Name:__________________________ Print Name:___________________
Title:_______________________________ Title:________________________
Northpoint Atrium Office Lease Page 18
EXHIBIT "A"
LAND LEGAL DESCRIPTION
Xxx 0, Xxxxx 0, XXX 00000 Xxxxxxx Xxxx Subdivision Unit 5-B, City of San
Antonio, Bexar County, Texas.
Northpoint Atrium Office Lease Page 19
EXHIBIT "B"
DEPICTION OF LEASED PREMISES
[FLOOR PLAN]
Northpoint Atrium Office Lease Page 20
EXHIBIT "B-1"
TENANT IMPROVEMENTS WORK LETTER
PAGE 1 OF 3
1. Walls to be demolished and rebuilt as illustrated on the
attached Space Plan.
2. A Fixed Office Window as described in the attached Window
Types exhibit shall be installed twelve (12) offices as
indicated on the attached Space Plan.
3. A Reception Window as described in the attached Window Types
exhibit shall be installed in the reception area.
4. The Leased Premises shall be entirely repainted at a color of
Tenant's choosing.
5. Landlord shall selectively re-carpet the areas requiring new
carpet due to the demolition and reconstruction of offices
with a carpet that closely matches the existing carpet.
6. Landlord shall selectively relocate the existing reflective
lighting in order to accommodate the construction of the
additional offices.
7. The Landlord will not be replacing the existing wall-covering
in the restrooms.
8. The Landlord will be painting over the existing wall-covering
in the break room.
9. The Tenant shall be solely responsible for the installation
and ongoing maintenance of all hardware items located in or
related to the raised floor computer room, including but not
limited to the backup power generator and UPS system, the air
conditioner, the fire suppression system and the security
alarm located within the Lease Premises. Landlord shall have
the air conditioning system located within the raised floor
computer room inspected prior to delivery of the Leased
Premises and Landlord, at Landlord's sole expense shall
perform any required maintenance to said air conditioner.
10. Landlord will not be making any modifications to the restrooms
located within the Leased Premises. There is presently one (1)
ADA restroom located within the Leased Premises and the common
area restrooms located on the first floor of the Building are
also ADA compliant.
Northpoint Atrium Office Lease Page 21
EXHIBIT "B-1"
PAGE 2 OF 3
SPACE PLAN
[FLOOR PLAN]
Northpoint Atrium Office Lease Page 22
EXHIBIT "B-1"
PAGE 3 OF 3
WINDOW TYPE EXHIBIT
[FLOOR PLAN]
Northpoint Atrium Office Lease Page 23
EXHIBIT "C"
RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant two keys without charge. Additional
keys will be furnished at a nominal charge. Tenant shall not make or
cause to be made duplicates of keys procured from Landlord without
prior written approval of Landlord. All lock cylinders and other
locking devices placed on room doors including suite entry doors shall
be of the same manufacture as those installed in non-lease areas and
shall be keyed into the Building housekeeping master key and the
Building grand master key. Landlord may permit entrance to Tenant's
offices by use of such master keys which shall at all times be
controlled by Landlord or Landlord's employees, and authorized
contractors and service personnel employed and supervised by Landlord.
No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in
existing locks or the mechanism thereof. Tenant must upon termination
of its tenancy restore to Landlord all keys furnished to or otherwise
procured by Tenant, and in the event of loss of any keys so furnished,
Tenant shall pay to Landlord the cost thereof.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the Leased
Premises for Tenant to Landlord for Landlord's approval before
performance of any contractual service. Tenant's contractors and
installation technicians shall comply with Landlord's rules and
regulations pertaining to construction and installation. This provision
shall apply to all work performed on or about the Leased Premises,
including installation of telephones, telegraph equipment, electrical
devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings and equipment or any
other physical portion of the Leased Premises or the Property.
3. Tenant shall not at any time occupy any part of the Leased Premises as
sleeping or lodging quarters.
4. Tenant shall not place, install or operate on the Leased Premises or in
any part of the Property any engine, stove or machinery, or conduct
mechanical operations or xxxx thereon or therein, or place or use in or
about the Leased Premises or the Property any explosives, gasoline,
kerosene, oil, acids, caustics, or any flammable, explosive or
hazardous material without the written consent of Landlord. Tenant may
install a microwave oven, common toaster oven and a dishwasher. Not
withstanding anything contained herein, Landlord shall allow Tenant to
have outdoor picnics utilizing a propane barbeque grill in an area that
is to be mutually acceptable to Landlord and Tenant.
5. Landlord will not be responsible for lost or stolen merchandise, trade
fixtures, furniture, furnishings, personal property, equipment, money
or jewelry from the Leased Premises or the Property regardless of
whether such loss occurs when the area is locked against entry or not.
6. No dogs (except seeing eye dogs), cats, fowl, or other animals or any
aquariums shall be brought into or kept in or about the Leased Premises
or Property.
7. Employees of Landlord shall not receive or carry messages for or to any
Tenant or other person or contract with or render free or paid services
to any Tenant or to any of Tenant's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries,
passages, doors, elevators, hallways or stairways shall be blocked or
obstructed or any rubbish, litter, trash, or material of any nature
placed, emptied or thrown into these areas or such area used by
Tenant's agents, employees or invitees at any time for purposes
inconsistent with their designation by Landlord.
Northpoint Atrium Office Lease Page 24
9. The doors, sashes, window glass, lights and skylights that reflect or
admit light into the halls or other places of the Building shall not be
covered or obstructed. The toilets and urinals shall not be used for
any purpose other than those for which they were intended and
constructed, and no rubbish, newspapers or other substance of any kind
shall be thrown into them. Waste and excessive or unusual use of water
shall not be allowed. Tenant shall not xxxx, drive nails, screws or
drill into, paint nor in any way deface the walls, ceilings,
partitions, floors, wood, stone or iron work. The expense of any
breakage, stoppage or damage resulting from a violation of this rule by
Tenant shall be born by Tenant. Tenant shall be permitted to hang
pictures on the walls of its offices, but it must be done in a
workmanlike manner and in such a way as not to damage or deface such
walls in an abnormal manner.
10. Tenant shall not make or permit any noise, odor or act that is
objectionable to other occupants of the Building to emanate from the
Premises, and shall not create or maintain a nuisance thereon, shall
not do any act tending to injure the reputation of the Building.
11. Tenant shall not install or operate any phonograph, stereo equipment,
cassette or disc player, musical instrument, radio receiver or similar
device or equipment in the Building in such manner as to disturb or
annoy other tenants of the Building or the neighborhood. Tenant shall
not install any antennae, aerial wires or other equipment outside the
Building without a prior written consent of Landlord.
12. Nothing shall be thrown out of the windows of the Property or down the
stairways or other passages.
13. Tenant and its employees, agents and invitees shall park their vehicles
only in those parking areas designated by Landlord. Tenant shall not
leave any vehicle in a state of disrepair (including without
limitation, flat tires, out of date inspection stickers or license
plates) on the Leased Premises or the Property. If Tenant or its
employees, agents or invitees park their vehicles in areas other than
the designated parking areas or leave any vehicle in a state of
disrepair, Landlord, after giving written notice to Tenant of such
violation, shall have the right to remove such vehicles at Tenant's
expense.
14. Parking in a parking garage or area shall be in compliance with all
parking rules and regulations including any sticker or other
identification system established by Landlord. Failure to observe the
rules and regulations shall terminate Tenant's right to use the parking
garage or area and subject the vehicle in violation of the parking
rules and regulations to removal and impoundment. No termination of
parking privileges or removal of impoundment of a vehicle shall create
any liability on Landlord or be deemed to interfere with Tenant's right
to possession of its Leased Premises. Vehicles must be parked entirely
within the stall lines and all directional signs, arrows and posted
speed limits must be observed. Parking is prohibited in areas not
striped for parking, in aisles, where "No Parking" signs are posted, on
ramps, in cross hatched areas, and in other areas as may be designated
by Landlord. Parking stickers or other forms of identification supplied
by Landlord shall remain the property of Landlord and not the property
of Tenant and are not transferable. Every person is required to park
and lock his vehicle. All responsibility for damage to vehicles or
persons is assumed by the owner of the vehicle or its driver.
15. Movement in or out of the Property of furniture or office supplies and
equipment, or dispatch or receipt by Tenant of any merchandise or
materials which required use of elevators or stairways, or movement
through the Property entrances or lobby, shall be restricted to hours
designated by Landlord. All such movement shall be under supervision of
Landlord and carried out in the manner agreed between Tenant and
Landlord by prearrangement before performance. Such prearrangement will
include determination by Landlord of time, method, and routing of
movement and limitations imposed by safety or other concerns which may
prohibit any article,
Northpoint Atrium Office Lease Page 25
equipment or any other item from being brought into the Property.
Tenant assumes, and shall indemnify Landlord against, all risks and
claims of damage to persons and properties arising in connection with
any said movement.
16. Landlord shall have the right to determine and prescribe the weight and
proper position of any unusually heavy equipment including radiology
equipment, libraries, safes, large files, etc., that are to be placed
in the Building, and only those which in the opinion of Landlord will
not do damage to the floors, structure and/or elevators may be moved
into said Building. Any damage occasioned in connection with the moving
or installing of such aforementioned articles in said Building or the
existence of same in said Building shall be paid for by Tenant.
17. Landlord shall not be liable for any damages from the stoppage of
elevators for necessary or desirable repairs or improvements or delays
of any sort or duration in connection with the elevator service.
18. Tenant shall not lay floor covering within the Leased Premises without
written approval of Landlord. The use of cement or other similar
adhesive materials not easily removed with water is expressly
prohibited.
19. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and peddling within the Property.
20. During all hours other than regular hours, Landlord reserves the right
to exclude from the Property, all persons who are not known to the
Property security personnel and who do not present a pass to the
Property signed by the Tenant. Each Tenant shall be responsible for all
persons for whom Tenant supplies a pass.
21. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant, before occupying the
Leased 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.
22. Except with the prior written consent of Landlord, Tenant shall not
sell, or permit the sale from the Leased Premises of, or use or permit
the use of any sidewalk or mall area adjacent to the Leased Premises
for the sale of newspapers, magazines, periodicals, theater tickets or
any other goods or merchandise, nor shall Tenant carry on, or permit or
allow any employee or other person to carry on, business in or from the
Leased Premises for the service or accommodation of occupants of any
other portion of the Building, nor shall the Leased Premises be used
for manufacturing of any kind, or for any business or activity other
than that specifically provided for in Tenant's Lease.
23. Tenant shall not use in any space, or in the common areas of the
Building, any handtrucks except those equipped with rubber tires and
side guards or such other material handling equipment as Landlord may
approve. No other vehicles of any kind shall be brought by Tenant in to
Building or kept in or about the Leased Premises without prior written
approval of Landlord.
24. Tenant shall store all its trash and garbage within the Leased Premises
until daily removal of same by Tenant to such location in the Building
as may be designated from time to time by Landlord. No material shall
be placed in the Building trash boxes or receptacles if such material
is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the
city in which the Leased Premises is located without being in violation
of any law or ordinance governing such disposal.
25. Tenant shall not permit the use or the operation of any coin operated
machines on the Leased
Northpoint Atrium Office Lease Page 26
Premises, including, without limitation, video games, pinball machines,
or pay telephones without the prior written consent of Landlord.
Tenant's vending machines shall be the sole exception to this rule.
26. As used in the Lease, "Business Days" means Monday through Saturday
(except holidays) and "Regular Building Hours" are 7:00 a.m. to 7:00
p.m. Monday through Friday and 7:00 a.m. to 1:00 p.m. on Saturday; and
"holidays" means New Years Day, Fourth of July, Labor Day, Thanksgiving
and Christmas, together with such other holidays designated by Landlord
consistent with those holidays designated by landlords of comparable
office buildings located in the county in which the Building is
located.
27. All Christmas and other temporary or special decorations shall be made
of flame/fire retardant material. Such decorations may be placed by
Tenant upon the Premises no sooner than a reasonable time prior to the
day or period for which such decorations were intended and shall be
removed by Tenant at its sole cost from the Premises and the Complex
within seven (7) days following such day or period.
28. Landlord desires to maintain in the Property the highest standard of
dignity and good taste consistent with comfort and convenience for
tenants. Any action or condition not meeting this high standard should
be reported directly to Landlord. The cooperation of Tenant's employees
and invitees will be mutually beneficial and sincerely appreciated.
Landlord reserves the right to make such other and further reasonable
rules and regulations as in its judgment may from time to time be
necessary, for the safety, care and cleanliness of the Leased Premises
and for the preservation of good order therein.
Northpoint Atrium Office Lease Page 27
EXHIBIT "D"
RIGHT OF FIRST REFUSAL AND EXPANSION SPACE
(PAGE 1 OF 3)
[FLOOR PLAN]
Northpoint Atrium Office Lease Page 28
EXHIBIT "D"
RIGHT OF FIRST REFUSAL AND EXPANSION SPACE
(PAGE 2 OF 3)
[FLOOR PLAN]
Northpoint Atrium Office Lease Page 29
EXHIBIT "D"
RIGHT OF FIRST REFUSAL AND EXPANSION SPACE
(PAGE 3 OF 3)
[FLOOR PLAN]
Northpoint Atrium Office Lease Page 30
