SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this "Amendment")
is entered into as of the 25th day of May, 1995, by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey
corporation ("Landlord") and AMERICAN HALLMARK INSURANCE COMPANY
OF TEXAS, a Texas corporation ("Tenant").
WHEREAS, pursuant to that certain Office Lease Agreement
dated September 12, 1994, by and between Landlord and Tenant, as
amended by that certain First Amendment to Lease Agreement dated
as of October 10, 1994 (such Office Lease Agreement, as amended,
herein called the "Lease"), Landlord leased to Tenant certain
space (the "Premises") in the building known as The Princeton
(the "Building") more particularly described therein;
WHEREAS, the Premises currently consist of 16,526 square
feet of rentable area on the ninth (9th) floor of the Building;
WHEREAS, Tenant desires (i) to delete from the Premises the
2,054 square feet of rentable area described on Exhibit A-1
attached hereto (the "Reduction Space"), (ii) to increase the
Premises by adding 5,746 square feet of rentable area located on
the second (2nd) floor of the Building described on Exhibit A-2
attached hereto (the "Additional Premises"), (iii) to temporarily
lease from Landlord 426 square feet of rentable area on the third
(3rd) floor of the Building described on Exhibit C attached
hereto (the "Temporary Space"), (iv) to acquire a right of first
refusal to lease from Landlord (a) certain space in the Building
located on the second (2nd) floor and (b) the Reduction Space
(collectively, the "Additional Right of First Refusal Space");
and
WHEREAS, Landlord and Tenant desire to amend the Lease to
reflect their agreements as to the terms and conditions governing
Tenant's deletion of the Reduction Space, Tenant's lease of the
Additional Premises and the Temporary Space, Tenant's rights with
respect to the Additional Right of First Refusal Space and all
other matters relating to the foregoing.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants between the parties herein contained, Landlord
and Tenant hereby agree as follows:
1. Premises. Effective on the earlier of (i) July 1, 1995 (the
"Target Date") or (ii) the date Tenant occupies the Additional
Premises for any purpose (such date, the "Additional Premises
Commencement Date"), Item 2 of the Basic Lease Provisions shall
be amended to read as follows:
Premises:
a. Suite #: 900 and 205; Floors: ninth and second.
b. Agreed Rentable Area: 20,218.
2. Basic Rent. Effective thirty (30) days after the Additional
Premises Commencement Date (the Adjusted Commencement Date"),
Item 3 of the Basic Lease Provisions shall be amended to read as
follows:
Basic Rent (See Article 2, Supplemental Lease Provisions):
Rate Per Square Basic Basic
Rental Foot of Agreed Annual Monthly
Period Rentable Area Rent Rent
Adjusted
Commencement
Date xx 00-00-00 $11.75 $237,561.50 $19,796.79
1-1-96 xx 00-00-00 $12.25 $247,670.50 $20,639.21
1-1-97 xx 00-00-00 $12.50 $252,725.00 $21,060.42
1-1-98 xx 00-00-00 $12.75 $257,779.50 $21,481.63
1-1-99 xx 00-00-00 $13.25 $267,888.50 $22,324.04
1-1-00 xx 00-00-00 $13.50 $272,943.00 $22,745.25
3. Tenant's Pro Rata Percentage. Effective as of the Adjusted
Commencement Date, Item 4 of the Basis Lease Provisions shall be
amended to read as follows:
Tenant's Pro Rata Share Percentage: 5.44624% (the Agreed
Rentable Area of the Premises divided by the Agreed Rentable
Area of the Building, expressed in a percentage).
4. Substitution of Exhibit A. Effective as of the Additional
Premises Commencement Date, Exhibit A attached to the Lease shall
be deleted in its entirety and Exhibit A attached hereto shall be
substituted therefor.
5. Delivery of Additional Premises. Subject to Landlord's
completion of its obligations under the Work Letter attached
hereto as Exhibit B (the "Additional Work Letter"), the
Additional Premises shall be delivered to Tenant on the
Additional Premises Commencement Date in "AS IS" condition.
6. Tenant's Improvements. Landlord shall construct Tenant's
Improvements in accordance with the terms and conditions of the
Additional Work Letter.
7. Acceptance of Additional Premises. Upon Substantial
Completion of Tenant's Improvements in the Additional Premises,
Landlord and Tenant shall execute the Acceptance of Premises
Memorandum in the form of the Acceptance of Premises Memorandum
executed in connection with the Lease. If Tenant occupies the
Additional Premises without executing an Acceptance of Premises
Memorandum, Tenant shall be deemed to have accepted the
Additional Premises for all purposes and Substantial Completion
shall be deemed to have occurred on the earlier to occur of (i)
actual occupancy or (ii) the Target Date.
8. Segregation of the Premises from the Reduction Premises.
Landlord shall construct, or cause to be constructed, at Tenant's
sole cost and expense, a demising wall to separate the ninth
(9th) floor Premises from the Reduction Premises. Tenant shall
reimburse Landlord for all costs and expenses relating to the
design and/or construction of such demising wall within thirty
(30) days of Tenant's receipt of an invoice from Landlord. In
the event that, at the time of payment of such invoice, Tenant
has not expended all of the Additional Finish Allowance (as
defined in the Additional Work Letter) or the Finish Allowance
provided for under the Lease, to the extent such amounts remain
available to Tenant under the terms of the Additional Work Letter
or the Lease, Tenant may apply such amounts to the costs of the
demising wall.
9. Right of First Refusal. Effective as of the Additional
Premises Commencement Date, Rider 3 to the Lease shall be amended
as follows:
a. The words "and Schedule A-1" are hereby added after the
words "Schedule A" in the first line of Paragraph A of Rider
3.
b. The following shall be added as Paragraph D to Rider 3:
D. Notwithstanding anything to the contrary contained in
this Rider, in the event Tenant exercises its right of
first refusal with respect to any of the Right of First
Refusal Space described on Schedule A-1 attached to
this Rider within one hundred eighty (180) days after
the Additional Premises Commencement Date, Landlord
shall lease such space to Tenant on the same terms and
conditions as contained in this Lease; provided that
Landlord shall provide Tenant with a finish allowance
equal to the product of $6.82 times (i) the number of
square feet of the applicable Right of First Refusal
Space times (ii) a fraction, the numerator of which is
the number of full calendar months which remain in the
initial Lease Term from and after the date Basic Annual
Rent commences with respect to the applicable Right of
First Refusal Space and the denominator of which is the
number of full calendar months in the initial Lease
Term. Notwithstanding anything to the contrary
contained in this Rider, in the event that Tenant
exercises its right of first refusal with respect to
any of the Right of First Refusal Space described on
Schedule A-1 attached to this Rider after the
expiration of such one hundred eighty (180) day period
but before the expiration of one (1) year after the
Additional Premises Commencement Date, Landlord shall
lease such space to Tenant on the same terms and
conditions as contained in this Lease; provided,
however, that Basic Annual Rent for the remaining term
of the Lease shall be calculated at $13.75 per square
foot of Agreed Rentable Area of the applicable Right of
First Refusal Space and Landlord shall provide Tenant
with a finish allowance equal to the product of $6.82
times (i) the number of square feet of the applicable
Right of First Refusal Space times (ii) a fraction, the
numerator of which is the number of full calendar
months which remain in the initial Lease Term from and
after the date Basic Annual Rent commences with respect
to the applicable Right of First Refusal Space and the
denominator of which is the number of full calendar
months in the initial Lease Term. In the event Tenant
exercises its right of first refusal with respect to
any of the Right of First Refusal Space described on
Schedule A-1 attached to this Rider after the
expiration of one (1) year after the Additional
Premises Commencement Date, Landlord shall lease such
space to Tenant on the same terms and conditions as
contained in the Statement.
c. The following shall be added as Paragraph E to Rider 3:
In the event Tenant notifies Landlord within one
hundred eighty (180) days after the Additional Premises
Commencement Date of Tenant's desire to lease any of
the Right of First Refusal Space described on Schedule
A-1 attached hereto and provided that such space is
available for lease by Landlord, and further provided
that an amendment to this Lease is executed by Tenant
prior to the expiration of such one hundred eighty
(180) day period, which amendment provides that the
rent commencement date for such Right of First Refusal
Space shall occur no later than two (2) months after
the date of such amendment, Tenant shall be entitled to
lease such Right of First Refusal Space on the same
terms and conditions as contained in this Lease;
provided that Landlord shall provide Tenant with a
finish allowance equal to the product of $6.82 times
(i) the number of square feet of the applicable Right
of First Refusal Space times (ii) a fraction, the
numerator of which is the number of full calendar
months which remain in the initial Lease Term from and
after the date Basic Annual Rent commences with respect
to the applicable Right of First Refusal Space and the
denominator of which is the number of full calendar
months in the initial Lease Term. In the event Tenant
notifies Landlord after the expiration of such one
hundred eighty (180) day period described above but
before the expiration of one (1) year after the
Additional Premises Commencement Date of Tenant's
desire to lease any of the Right of First Refusal Space
described on Schedule A-1 attached hereto and provided
that such space is available for lease by Landlord, and
further provided that an amendment to this Lease is
executed by Tenant prior to the expiration of one (1)
year after the Additional Premises Commencement Date,
which amendment provides that the rent commencement
date for such Right of First Refusal Space shall occur
no later than two (2) months after the date of such
amendment Tenant shall be entitled to lease such Right
of First Refusal Space on the same terms and conditions
as contained in this Lease; provided, however, that
Basic Annual Rent for the remaining term of the Lease
shall be calculated at $13.75 per square foot of Agreed
Rentable Area of the applicable Right of First Refusal
Space and Landlord shall provide Tenant with a finish
allowance equal to the product of $6.82 times (i) the
number of square feet of the applicable Right of First
Refusal Space times (ii) a fraction, the numerator of
which is the number of full calendar months which
remain in the initial Lease Term from and after the
date Basic Annual Rent commences with respect to the
applicable Right of First Refusal Space and the
denominator of which is the number of full calendar
months in the initial Lease Term. After the expiration
of one (1) year from the Additional Premises
Commencement Date, Landlord shall have no obligation
under this Paragraph E.
d. Schedule A-1 attached hereto is hereby added as
Schedule A-1 to Rider 3 of the Lease.
10. Temporary Space. Landlord hereby leases (the "Short Term
Lease") to Tenant and Tenant hereby leases from Landlord that
certain space designated as the "Temporary Space" (herein so
called) shown on Exhibit C attached hereto, which space is
situated on the third (3rd) floor of the Building. The Agreed
Rentable Area of the Temporary Space is 426 square feet. The
Short Term Lease shall be on the same terms and conditions
contained in the Lease, with the following exceptions: (i) the
Short Term Lease shall be a month-to-month lease, commencing on
the date of this Amendment and terminating on the date which is
seven (7) days after the Additional Premises Commencement Date;
(ii) the Basic Annual Rent for the Temporary Space shall be at
the rate of $0.00 per square foot of Agreed Rentable Area of the
Temporary Space, (iii) Tenant shall not be required to pay
Additional Rent with respect to the Temporary Space, (iv) the
Temporary Space shall be delivered "AS IS" and Tenant shall not
be entitled to any Finish Allowance or other concessions in
connection with the Temporary Space, (v) Tenant shall not be
entitled to any renewal option in connection with the Temporary
Space, (vi) Tenant shall not be entitled to any additional
parking spaces in connection with the Temporary Space, and (vi)
Landlord shall not provide any janitorial services to the
Temporary Space. Except with respect to the provisions
specifically addressed the foregoing provisions of this Paragraph
10, the term "Premises" as used in the Lease shall include the
Temporary Space (for example and without limitation, all
insurance and indemnity provisions in the Lease applicable to the
Premises shall also be applicable to the Temporary Space).
11. Parking. Effective as of the Additional Premises
Commencement Date, Paragraph 1 of Exhibit F to the Lease shall be
amended to read as follows:
Parking Spaces. So long as the Lease remains in effect,
Tenant or persons designated by Tenant shall have the right
(but not the obligation) to rent in the Garage on (i) a
reserved basis up to five (5) parking spaces in the Garage
during the term of this Lease and (ii) an unreserved and
non-exclusive basis up to fifty-six (56) parking spaces in
the Garage during the term of this Lease. Each capitalized
term not defined herein shall have the meaning assigned to
it in the Supplemental Lease Provisions.
12. No Brokers. Tenant warrants that it has had no dealings
with any real estate broker or agent in connection with the
negotiation of this Amendment and that it knows of no real estate
brokers or agents who are or might be entitled to a commission in
connection with this Amendment or otherwise in connection with
the Lease. Tenant agrees to indemnify and hold harmless Landlord
from and against any liability or claim arising in respect to
brokers or agents.
13. Authority. Tenant and each person signing this Amendment on
behalf of Tenant represents to Landlord as follows: (i) Tenant is
a duly incorporated and validly existing under the laws of the
State of Texas, (ii) Tenant has and is qualified to do business
in Texas, (iii) Tenant has the full right and authority to enter
into this Amendment, and (iv) each person signing on behalf of
Tenant was and continues to be authorized to do so.
14. Defined Terms. All terms not otherwise defined herein shall
have the same meaning as assigned to them in the Lease. Except
as amended hereby, the Lease shall remain in full force and
effect in accordance with its terms and is hereby ratified. In
the event of a conflict between the Lease and this Amendment,
this Amendment shall control.
15. Exhibits. Each Exhibit and Schedule attached hereto is made
a part hereof for all purposes.
16. No Representations. Landlord and Landlord's agents have
made no representations or promises, express or implied, in
connection with the Additional Premises or this Amendment except
as expressly set forth herein.
17. Entire Agreement. This Amendment, together with the Lease,
contains all of the agreements of the parties hereto with respect
to any matter covered or mentioned in this Amendment or the
Lease, and no prior agreement, understanding or representation
pertaining to any such matter shall be effective for any purpose.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
LANDLORD
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By: Xxxxx Realty Corporation, its
duly authorized agent
By:
Name:
Title:
TENANT
AMERICAN HALLMARK INSURANCE
COMPANY OF TEXAS, a Texas
corporation
By:
Name:
Title:
EXHIBIT B
WORK LETTER
PLANS TO BE AGREED UPON/FINISH ALLOWANCE
This Exhibit is attached to and a part of that certain
Second Amendment to Lease Agreement (the "Amendment") dated as of
May 25, 1995, executed by and between THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation ("Landlord"), and
AMERICAN HALLMARK INSURANCE COMPANY OF TEXAS, a Texas corporation
("Tenant"). Any capitalized term used but not defined herein
shall have the meaning assigned to it in the Lease (as defined in
the Amendment). Landlord and Tenant mutually agree as follows:
1. Plans.
1.1 Space Plan. Landlord's designated space planner, at
Tenant's expense, has prepared and delivered to Tenant a space
plan for the Additional Premises showing the location of all
partitions and doors and the lay-out of the Additional Premises.
Tenant will at all times cooperate with Landlord's space planner,
furnishing all reasonable information and material concerning
Tenant's organization, staffing, growth expectations, physical
facility needs (including, without limitation, needs arising by
reason of the Disability Acts), equipment, inventory, etc.,
necessary for the space planner to efficiently and expeditiously
arrive at an acceptable lay-out of the Premises. Landlord and
Tenant have approved in writing the space plan (such space plan,
as approved by Landlord and Tenant, is herein referred to as the
"Space Plan").
1.2 Compliance With Disability Acts. Tenant shall promptly
provide Landlord and Landlord's space planner and/or architect as
applicable, with all information needed to cause the construction
of Tenant's Improvements to be completed such that Tenant, the
Additional Premises and Tenant's Improvements (as constructed)
will be in compliance with the Disability Acts. TENANT SHALL BE
RESPONSIBLE FOR AND SHALL INDEMNIFY AND HOLD HARMLESS LANDLORD
FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES AND
EXPENSES) INCURRED BY OR ASSERTED AGAINST LANDLORD BY REASON OF
OR IN CONNECTION WITH ANY VIOLATION OF THE DISABILITY ACTS
ARISING FROM OR OUT OF (x) information or design and space plans
furnished to Landlord by Tenant (or the lack of complete and
accurate information so furnished) concerning Tenant's
Improvements, (y) Tenant's employer-employee obligations, or (z)
after the Additional Premises Commencement Date, violations by
Tenant and/or Tenant's Improvements or the Additional Premises
not being in compliance with the Disability Acts as the result of
changes in regulations or law or interpretations thereof not in
effect on the Additional Premises Commencement Date. The
foregoing indemnity shall not include any claims, liabilities or
expenses (including reasonable attorneys' fees and expenses)
arising out of the negligence or gross negligence of Landlord or
Landlord's employees, agents or contractors. Without limiting
the foregoing, if Landlord constructs Tenant's Improvements based
on any special requirements or improvements required by Tenant,
or upon information furnished by Tenant that later proves to be
inaccurate or incomplete resulting in any violation of the
Disability Acts, Tenant shall be solely liable to correct such
violations and to bring the improvements into compliance with the
Disability Acts as promptly as is practicable.
1.3 Construction Plans. On or before May 26, 1995, Landlord's
space planner and engineer, at Tenant's expense, will prepare
construction plans (such construction plans, when approved, and
all changes and amendments thereto agreed to by Landlord and
Tenant in writing, are herein called the "Construction Plans")
for all of Tenant's improvements requested pursuant to the Space
Plan (all improvements required by the Construction Plans are
herein called "Tenant's Improvements"), including complete detail
and finish drawings for partitions, doors, reflected ceiling,
telephone outlets, electrical switches and outlets and Building
standard heating, ventilation and air conditioning equipment and
controls. Within three (3) business days after construction
plans are delivered to Tenant, Tenant shall approve (which
approval shall not be unreasonably withheld) or disapprove same
in writing and if disapproved, Tenant shall provide Landlord and
Landlord's space planner and engineer specific reasons for
disapproval. Within five (5) business days after receipt of such
specific reasons for disapproval, Landlord's space planner and
engineer shall deliver revised Construction Plans to Tenant. The
foregoing process shall continue until the construction plans are
approved by Tenant; provided that if Tenant fails to respond in
any three (3) business day period, Tenant shall be deemed to have
approved the last submitted construction plans. If the
construction plans are not approved in writing by both Tenant and
Landlord on or before June 8, 1995, for any reason whatsoever,
then each day after June 8, 1995 that the construction plans are
not approved by Tenant shall constitute one (1) day of Tenant
Delay.
1.4 Changes to Approved Plans. If any re-drawing or re-drafting
of either the Space Plan or the Construction Plans is
necessitated by Tenant's requested changes (all of which shall be
subject to approval by Landlord and, if applicable, the Texas
Department of Licensing & Regulation and any other governmental
agency or authority to which the plans and specifications are
required to be submitted), the expense of any such re-drawing or
re-drafting required in connection therewith and the expense of
any work and improvements necessitated by such re-drawing or
re-drafting will be charged to Tenant.
1.5 Coordination of Planners and Designers. If Tenant shall
arrange for interior design services, whether with Landlord's
space planner or any other planner or designer, it shall be
Tenant's responsibility to cause necessary coordination of its
agents' efforts with Landlord's agents to ensure that no delays
are caused to either the planning or construction of the Tenant's
Improvements.
2. Construction and Costs of Tenant's Improvements.
2.1 Construction Obligation and Additional Finish Allowance.
Landlord agrees to construct Tenant's Improvements, at Tenant's
cost and expense; provided, however, Landlord shall provide
Tenant with an allowance up to $30,355.07 (the "Additional Finish
Allowance"), which allowance shall be disbursed by Landlord, from
time to time, for payment of (in the following priority) (i) the
contract sum required to be paid to the general contractor
engaged to construct Tenant's Improvements (the "Contract Sum"),
(ii) the fees of the preparer of the Space Plan and the
Construction Plans and (iii) payment of the Construction
Management Fee (hereinafter defined). Provided that the Contract
Sum equals or exceeds $50,000.00, upon completion of Tenant's
Improvements and in consideration of Landlord administering the
construction of Tenant's Improvements, Tenant agrees to pay
Landlord a fee equal to five percent (5%) of the Contract Sum to
construct Tenant's Improvements in the Additional Premises (the
"Construction Management Fee") (the foregoing costs are
collectively referred to as the "Permitted Costs").
2.2. Unexpended Finish Allowance. In addition to the Additional
Finish Allowance, Tenant may apply all or any portion of the
unexpended Finish Allowance (the "Unexpended Finish Allowance")
provided for under the Work Letter attached to the Lease for
payment of the Permitted Costs; provided that the terms of
Section 7 of the Work Letter attached to the Lease for
disbursement of such Unexpended Finish Allowance are complied
with. As of the date hereof, the Unexpended Finish Allowance is
$25,566.79. In the event any portion of the Additional Finish
Allowance remains unexpended after payment of the Permitted
Costs, such unexpended portion of the Additional Finish Allowance
up to $20,218 shall be applied against Tenant's next accruing
obligation for Basic Monthly Rent.
2.3 Excess Costs. If the sum of the Permitted Costs exceeds the
Additional Finish Allowance and Unexpended Finish Allowance, then
Tenant shall pay all such excess costs ("Excess Costs"),
provided, however, Landlord will, prior to the commencement of
construction of Tenant's Improvements, advise Tenant of the
Excess Costs, if any, and the Contract Sum. Tenant shall have
two (2) business days from and after the receipt of such advice
within which to approve or disapprove the Contract Sum and Excess
Costs. If Tenant fails to approve same by the expiration of the
second such business day, then Tenant shall be deemed to have
approved the proposed Contract Sum and Excess Costs. If Tenant
disapproves the Contract Sum and Excess Costs within such two (2)
business day period, then Tenant shall either reduce the scope of
Tenant's Improvements such that there shall be no Excess Costs
or, at Tenant's option, Landlord shall obtain two (2) additional
bids, provided that each day beyond such two (2) business day
period and until the rebid is accepted by Tenant shall constitute
a Tenant Delay hereunder. Subject to the last sentence of this
subsection, the foregoing process shall continue until a Contract
Sum and resulting Excess Costs, if any, are accepted or deemed
accepted by Tenant. Landlord and Tenant must approve (or be
deemed to have approved) the Contract Sum for the construction of
Tenant's Improvements in writing prior to the commencement of
construction. If Tenant fails to accept a Contract Sum by June
12, 1995, then each day after June 12, 1995 that such Contract
Sum is not accepted by Tenant shall constitute one (1) day of
Tenant Delay.
2.4 Liens Arising from Excess Costs. Tenant agrees to keep the
Premises free from any liens arising out of nonpayment of Excess
Costs. In the event that any such lien is filed and Tenant,
within ten (10) days following such filing fails to cause same to
be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to cause
the same to be released by such means as it in its sole
discretion deems proper, including payment of or defense against
the claim giving rise to such lien. All sums paid by Landlord in
connection therewith shall constitute Rent under the Lease and a
demand obligation of Tenant to Landlord and such obligation shall
bear interest at the rate provided for in Section 15.10 of the
Supplemental Lease Provisions from the date of payment by
Landlord until the date paid by Tenant.
2.5 Construction Deposit. Tenant shall remit to Landlord an
amount (the "Prepayment") equal to the projected Excess Costs, if
any, within five (5) working days after commencement of
construction by Landlord. On or prior to the Additional Premises
Commencement Date, Tenant shall deliver to Landlord the actual
Excess Costs, minus the Prepayment previously paid. Failure by
Tenant to timely tender to Landlord the full Prepayment shall
permit Landlord to stop all work until the Prepayment is
received. All sums due Landlord under this Section 2.5 shall be
considered Rent under the terms of the Lease and nonpayment shall
constitute a default under the Lease and entitle Landlord to any
and all remedies specified in the Lease.
3. Delays. Delays in the completion of construction of
Tenant's Improvements in the Additional Premises or in obtaining
a certificate of occupancy for the Additional Premises, if
required by the applicable governmental authority, caused by
Tenant, Tenant's Contractors (hereinafter defined) or any person,
firm or corporation employed by Tenant or Tenant's Contractors
shall constitute "Tenant Delays". In the event that Tenant's
Improvements in the Additional Premises are not Substantially
Complete by the Target Date (as defined in the Amendment), then
the Target Date shall be amended to be the Adjusted Target Date
(hereinafter defined). The Adjusted Target Date shall be the
date Tenant's Improvements in the Additional Premises are
Substantially Complete, adjusted backward, however, by one day
for each day of Tenant Delays, if any. The foregoing adjustment
in the Target Date shall be Tenant's sole and exclusive remedy in
the event Tenant's Improvements are not Substantially Complete by
the Target Date set forth in the Amendment.
4. Substantial Completion and Punch List. The terms
"Substantial Completion" and "Substantially Complete," as
applicable, shall mean when Tenant's Improvements are
sufficiently completed in accordance with the Construction Plans
so that Tenant can reasonably use the Additional Premises for the
Permitted Use (as described in Item 12 of the Basic Lease
Provisions). When Landlord considers Tenant's Improvements to be
Substantially Complete, Landlord will notify Tenant and within
two (2) business days thereafter, Landlord's representative and
Tenant's representative shall conduct a walk-through of the
Additional Premises and identify any necessary touch-up work,
repairs and minor completion items as are necessary for final
completion of Tenant's Improvements. Neither Landlord's
representative nor Tenant's representative shall unreasonably
withhold his agreement on punch list items. Landlord will use
reasonable efforts to cause the contractor to complete all punch
list items within thirty (30) days after agreement thereon.
5. Tenant's Contractors. If Tenant should desire to enter the
Additional Premises or authorize its agent to do so prior to the
Additional Premises Commencement Date, to perform approved work
not requested of the Landlord, Landlord shall permit such entry
if:
(a) Tenant shall use only such contractors which Landlord
shall approve in its reasonable discretion and Landlord
shall have approved the plans to be utilized by Tenant,
which approval will not be unreasonably withheld; and
(b) Tenant, its contractors, workmen, mechanics, engineers,
space planners or such others as may enter the
Additional Premises (collectively, "Tenant's
Contractors"), work in harmony with and do not in any
way disturb or interfere with Landlord's space
planners, architects, engineers, contractors, workmen,
mechanics or other agents or independent contractors in
the performance of their work (collectively,
"Landlord's Contractors"), it being understood and
agreed that if entry of Tenant or Tenant's Contractors
would cause, has caused or is causing a material
disturbance to Landlord or Landlord's Contractors, then
Landlord may, with notice, refuse admittance to Tenant
or Tenant's Contractors causing such disturbance; and
(c) Tenant (notwithstanding the first sentence of
subsection 7.201 of the Supplemental Lease Provisions),
Tenant's Contractors and other agents shall provide
Landlord sufficient evidence that each is covered under
such Worker's Compensation, public liability and
property damage insurance as Landlord may reasonably
request for its protection.
Landlord shall not be liable for any injury, loss or damage to
any of Tenant's installations or decorations made prior to the
Additional Premises Commencement Date and not installed by
Landlord. Tenant shall indemnify and hold harmless Landlord and
Landlord's Contractors from and against any and all costs,
expenses, claims, liabilities and causes of action arising out of
or in connection with work performed in the Additional Premises
by or on behalf of Tenant (but excluding work performed by
Landlord or Landlord's Contractors). Landlord is not responsible
for the function and maintenance of Tenant's Improvements which
are different than Landlord's standard improvements at the
Property or improvements, equipment, cabinets or fixtures not
installed by Landlord. Such entry by Tenant and Tenant's
Contractors pursuant to this Section 5 shall be deemed to be
under all of the terms, covenants, provisions and conditions of
the Lease except the covenant to pay Rent.
6. Construction Representatives. Landlord's and Tenant's
representatives for coordination of construction and approval of
change orders will be as follows, provided that either party may
change its representative upon written notice to the other:
LANDLORD'S REPRESENTATIVE:
NAME Xxxxx Xxxx
ADDRESS 000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
PHONE (000) 000-0000
TENANT'S REPRESENTATIVE:
NAME Xxxxxxx Xxxxxxx
ADDRESS 00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
PHONE (000) 000-0000
