EXHIBIT 4.17
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LEASE AGREEMENT
between
▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
as Landlord
and
TELVENT USA, INC.
as Tenant
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TABLE OF CONTENTS
1. Premises............................................................. 1
2. Authorized Use....................................................... 2
3. Term................................................................. 2
4. Rent................................................................. 2
5. Adjustment of Rent................................................... 2
6. Payment of Rent...................................................... 3
7. Rentable Area........................................................ 3
8. Operating Expenses................................................... 3
9. Taxes................................................................ 5
10. Tenant Improvements; Condition of Premises........................... 5
11. Completion of Tenant Improvements and Commencement of Rent........... 5
12. Maintenance and Repair............................................... 6
13. Landlord's Services.................................................. 7
14. Prohibited Use....................................................... 8
15. Rules and Regulations of Building.................................... 8
16. Compliance with Laws and Other Regulations........................... 8
17. Alterations and Additions............................................ 9
18. Taxes on Personalty.................................................. 9
19. Landlord's Access.................................................... 9
20. Property Insurance................................................... 9
21. Fire or other Casualty............................................... 10
22. Waiver of Claims..................................................... 10
23. Indemnity and Insurance.............................................. 11
24. Non-Waiver........................................................... 12
25. Quiet Enjoyment...................................................... 12
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26. Notices.............................................................. 13
27. Landlord's Failure to Perform........................................ 13
28. Tenant's Failure to Perform.......................................... 13
29. Act of Default....................................................... 13
30. Rights upon Default.................................................. 14
31. Surrender............................................................ 16
32. Holding Over......................................................... 16
33. Removal of Tenant's Property......................................... 16
34. Liens................................................................ 17
35. Interest............................................................. 17
36. Assignment and Subletting............................................ 17
37. Merger of Estates.................................................... 18
38. Landlord's Liability................................................. 18
39. Light and Air........................................................ 19
40. Condemnation......................................................... 19
41. Subordination........................................................ 19
42. Legal Interpretation................................................. 20
43. Parking.............................................................. 20
44. Whole Agreement...................................................... 21
45. Building Access...................................................... 21
46. Signage.............................................................. 21
47. Storage Spaces....................................................... 22
48. Roof Access.......................................................... 22
49. Purchase of Furniture................................................ 22
50 Contraction Option................................................... 23
51. Standard............................................................. 23
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Exhibit A DESCRIPTION OF THE LAND
Exhibit B FLOOR PLAN OF PREMISES
Exhibit B-1 FLOOR PLAN OF NEW PREMISES
Exhibit B-2 FLOOR PLAN OF SURRENDER PREMISES
Exhibit C-1 WORK LETTER AGREEMENT
Exhibit C-2 APPROVED PLANS
Exhibit D CLEANING AND JANITORIAL SERVICES
Exhibit E RULES AND REGULATIONS OF BUILDING
Exhibit F EXCLUSIONS FROM OPERATING EXPENSES
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into this 16th
day of October, 2003, by and between ▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED, a Delaware
corporation ("Landlord") and TELVENT USA, INC., a Texas corporation ("Tenant").
WITNESSETH:
In consideration of the mutual covenants set forth herein, Landlord and
Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, for the rental and on the terms and conditions hereinafter set forth,
48,177 square feet of Rentable Area (defined in Paragraph 7 hereof) on the first
and third floors of the 7000 Hollister Building (the "Building"), located on
that certain land at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and
more particularly described in Exhibit A attached hereto and made a part hereof
for all purposes (the "Land"), which space (the "Premises"), is depicted on the
floor plan attached hereto as Exhibit B and made a part hereof for all purposes.
The Premises include space between the top surface of the floor slab of the area
so depicted and the finished surface of the ceiling immediately above (subject
to Landlord's right to use and to control Tenant's use of the space between such
ceiling and any suspended ceiling installed or to be installed therein) and all
Tenant Improvements (defined in Paragraph 10 hereof) constructed within such
space. The Premises constitute 44.4360% of the Rentable Area of the Building.
Pursuant to the Existing Lease (defined below), Tenant is currently in
possession of all of the Premises, except that portion of the Premises
consisting of 2,164 square feet of Rentable Area depicted on the floor plan
attached hereto as Exhibit B-1 and made a part hereof for all purposes (the "New
Premises"). In addition, Tenant is in possession of those premises covered by
the Existing Lease but not included within the Premises, which premises are
depicted on the floor plan attached hereto as Exhibit B-2 and made a part hereof
for all purposes (the "Surrender Premises"). On the Commencement Date (defined
below), the Existing Lease shall terminate in the same manner and with the same
effect as if said date were the expiration date set forth in the Lease and
Tenant shall surrender the Surrender Premises to Landlord in the condition
required by the Existing Lease. As used herein, "Existing Lease" means the Lease
Agreement dated as of March 6, 1996, between Landlord and Tenant (as successor
by name change to Metso Automation Scada Solutions, Inc., which was the
successor by name change to Neles Automation Scada Solutions, Inc., which was
successor by internal assignment to Valmet, Inc., which was successor by merger
to Valmet Automation (U.S.A.), Inc.), as amended to date.
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2. AUTHORIZED USE. Tenant shall have the right to occupy and use the
Premises for general business office, assembly/manufacturing purposes, minor
warehousing or any other lawful use to which Landlord gives it prior written
consent, which consent shall not be unreasonably withheld by Landlord.
3. TERM. Subject to and upon the terms and conditions set forth in this
Lease, this Lease shall be in force for a term (the "Term") beginning on the
date on which the Tenant Improvements are Substantially Complete (defined in
Paragraph 10) (the "Commencement Date"), and ending on the 30th day of November,
2009.
4. RENT. Tenant shall pay to Landlord as rent (the "Rent") beginning on the
Commencement Date and on the first day of each month thereafter during the Term
through and including November 1, 2009, subject to adjustment as hereinafter
provided, as follows:
PERIOD RATE ANNUAL RENT MONTHLY INSTALLMENT
------ --------------------- ----------- -------------------
Commencement Date - October, 2004 $9.00 $433,593.00 $36,132.75
November, 2004 11/1 - 11/14: $9.00
11/15 - 11/30: $12.00 N/A $42,556.35
December, 2004 - November 2009 $12.00 $578,124.00 $48,177.00
In the event that the commencement date occurs on any date other than the
1st day of a calendar month, Rent hereunder shall be prorated for the first day
of such month.
5. ADJUSTMENT OF RENT.
A. In the event that the Operating Expenses (defined in Paragraph 8 hereof)
during any Operating Period (an "Operating Period" being defined as each
calendar year beginning January 1 and ending December 31 of each year during the
Term that commences after December 31, 2004) shall exceed the actual Operating
Expenses for calendar year 2004, Tenant shall pay to Landlord when invoiced, as
additional Rent for such Operating Period or Periods, Tenant's pro rata share of
the amount of such excess. For all calculations pursuant to the provisions of
this Lease, the Rentable Area of the Building shall be deemed to be 108,418
square feet, and Tenant's pro rata share of such excess Operating Expenses shall
be the amount of such excess times a fraction equal to the Rentable Area of the
Premises over the Rentable Area of the Building. If the Term commences or
expires on other than the beginning date of any Operating Period, the amount of
additional Rent shall be reduced in proportion to the number of days of any such
Operating Period not included within the Term.
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B. Landlord shall have the right to collect monthly from Tenant excess
Operating Expenses owed or estimated to be owed by Tenant under this Paragraph
5, said monthly payments to be in such amounts as are reasonably estimated by
Landlord. Each such monthly payment shall be due and payable at the same time as
the Rent provided for in Paragraph 4 hereof is due and payable. Landlord shall
within a reasonable period after the close of each Operating Period for which
additional Rent may be due under the provisions of this paragraph, give written
notice thereof to Tenant, which notice shall also contain or be accompanied by a
statement of the Operating Expenses during such Operating Period, and by a
computation of such additional Rent. Failure of Landlord to give Tenant said
notice within a reasonable period shall not be a waiver of Landlord's right to
collect said additional Rent. When the Landlord presents Tenant with the
above-referenced statement of amounts due by Tenant for excess Operating
Expenses under this Paragraph 5, Tenant shall promptly pay to Landlord the
difference between Tenant's proportionate share of said excess and the amount of
monthly payments made by Tenant attributable to said excess, or Tenant shall
receive a credit therefor if said excess is less than the amount of monthly
payments collected by Landlord attributable to said excess, said credit to be
applied to future monthly payments attributable to future Operating Expense
reimbursements.
6. PAYMENT OF RENT. On or before the first day of each calendar month
during the Term hereof, Tenant shall pay to Landlord for such month the Rent
then in effect. All such payments shall be paid to Landlord payable to the order
of ▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated in lawful money of the United States of America at
the following mailing address:
▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated Real Estate
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other party or at such other place 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, the
Rent due hereunder shall be prorated except as otherwise provided in this Lease.
7. RENTABLE AREA. The "Rentable Area" for the Premises shall be the total
net usable area calculated for the space to be occupied by Tenant, calculated in
accordance with standard methods of the Building Owners and Managers
Association, plus an add-on factor based upon non-rentable space on each floor
occupied by the Tenant. The parties agree that the Rentable Area stated herein
shall be deemed to be correct regardless of whether the same may actually be
more or less.
8. OPERATING EXPENSES.
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A. "Operating Expenses", as used in this Lease, refers to the aggregate
expenses, costs and disbursements of every kind and nature relating to or
incurred or paid during any Operating Period in connection with the ownership,
operation, repair, replacement and maintenance of the Building, Land, equipment,
fixtures and facilities used in connection therewith, including, but not limited
to wages and salaries of all employees directly engaged in the operation,
maintenance or security of the Building and Land, including taxes, insurance,
uniforms/special clothing and benefits relating thereto; the cost of all labor,
supplies, materials and tools used in the operation, repair, replacement and
maintenance of the Building and Land; management fees (not exceeding the
industry standard of similar buildings in Houston, Texas); the cost of all
accounting services related to the ownership and operation of the Building and
Land; the cost of all utilities for the Building and Land, including, but not
limited to, the cost of water and power for heating, lighting, air conditioning
and ventilating; the cost of all repair, maintenance and service agreements for
the Building, Land and equipment therein or thereon, including, but not limited
to, security service, window cleaning, elevator maintenance and janitorial
service; the cost of all insurance relating to the Building and Land, including,
but not limited to, the cost of casualty, rental abatement and liability
insurance applicable to the Building, Land and Landlord's personal property used
in connection therewith; Taxes (defined in Paragraph 9 hereof); the cost of
repairs, refurbishing, restoration and general maintenance; a reasonable
amortization charge on account of any capital expenditure incurred (i) to comply
with any governmental rule, regulation, law or otherwise that becomes applicable
to the Building or Land after the Commencement Date, or (ii) to effect a
reduction in the Operating Expenses of the Building or Land; and, all other
items constituting operating and maintenance costs in connection with the
Building and Land according to generally accepted accounting practices.
Notwithstanding anything in this Lease to the contrary, Operating Expenses shall
not include any items listed on Exhibit F attached hereto and made a part hereof
for all purposes.
B. If less than 95% of the Rentable Area of the Building is actually
occupied during any Operating Period, Operating Expenses shall be the amount
that such Operating Expenses would have been for such Operating Period had 95%
of the Rentable Area of the Building been occupied during all such Operating
Period, as reasonably determined by Landlord.
C. Within 60 days after Landlord furnishes its statement of actual
Operating Expenses for any Operating Period pursuant to Paragraph 5.B., Tenant,
at its cost, shall have the right to inspect Landlord's records of the Operating
Expenses referred to in such statement, subject to the following conditions: (1)
there is no uncured Act of Default; (2) the audit shall be prepared by an
independent certified public accounting firm of recognized national standing;
(3) in no event shall any audit be performed by a firm retained on a
"contingency fee" basis; (4) the audit shall commence within thirty (30) days
after Landlord makes Landlord's books and records available to Tenant's auditor
and shall conclude within sixty (60) days after commencement; (5) the audit
shall be conducted during Landlord's normal
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business hours at the location where Landlord maintains its books and records
and shall not unreasonably interfere with the conduct of Landlord's business;
(6) Tenant and its accounting firm shall treat any audit in a confidential
manner and shall each execute Landlord's confidentiality agreement for
Landlord's benefit prior to commencing the audit; and (7) the accounting firm's
audit report shall, at no charge to Landlord, be submitted in draft form for
Landlord's review and comment.
9. TAXES. Where used in this Lease, the term "Taxes" means all ad valorem
taxes, personal property taxes, and all other taxes, assessments, use and
occupancy taxes, transit taxes, water and sewer charges, excises, levies,
license and permit fees and all other similar charges, if any, which are levied,
assessed, or imposed upon or become due and payable in connection with, or a
lien upon, the Land, the Building or facilities used in connection therewith,
and all taxes or other charges of whatsoever nature that are imposed in
substitution for or in lieu of any of the taxes, assessments, or other charges
included in this definition of Taxes; provided, however, Taxes shall not include
the portion, if any, of ad valorem taxes against the Premises that is paid by
tenants as a separate charge pursuant to Paragraph 18 hereof.
10. TENANT IMPROVEMENTS; CONDITION OF PREMISES. Landlord agrees to perform
the work contemplated by the Work Letter Agreement attached hereto as Exhibit
C-1 (the "Work Letter Agreement") in portions of the Premises located on the
third floor of the Building (and such work is herein called the "Tenant
Improvements"). The Tenant Improvements shall be deemed "Substantially Complete"
when offered by Landlord to Tenant with the Tenant Improvements substantially
completed in accordance with and in accordance with Work Letter Agreement and
the plans attached hereto as Exhibit C-2. Upon Tenant's taking possession of the
New Premises, the Tenant Improvements shall be deemed satisfactorily completed
unless otherwise expressly agreed in writing by both parties. The Premises are
accepted by Tenant in "as is" condition and configuration, subject to Landlord's
obligation to perform the Tenant Improvements. TENANT HEREBY AGREES THAT THE
PREMISES ARE IN GOOD ORDER AND SATISFACTORY CONDITION AND THAT, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS LEASE, THERE ARE NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY LANDLORD REGARDING THE TENANT
IMPROVEMENTS, THE PREMISES OR THE BUILDING.
11. COMPLETION OF TENANT IMPROVEMENTS AND COMMENCEMENT OF RENT. If the
Commencement Date is delayed because of Tenant Delay, then, in addition to
paying the rent due under the Existing Lease, Tenant shall also pay the Rent
that would have been due hereunder with respect to the New Premises from the
date that the Commencement Date would have occurred but for Tenant Delay until
the day preceding the Commencement Date. If the Commencement Date is delayed for
any reason other than Tenant Delay, the delay in the Commencement Date and
Tenant's obligation to pay rent with respect to the New Premises shall
constitute full settlement of all claims that Tenant might otherwise have
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against Landlord by reason of such delay. "Tenant Delay" means any delay in
completion of the Tenant Improvements caused by (a) Tenant's failure to furnish
information or complete work which Tenant has agreed to provide within the time
agreed upon in the Work Letter Agreement, (b) changes requested by Tenant to any
aspect of the Tenant Improvements, (c) the non-availability or delay in delivery
of materials or equipment requested by Tenant, or (d) any other delay caused by
Tenant, its employees, agents, contractors or representatives.
12. MAINTENANCE AND REPAIR. Landlord shall provide all normal maintenance,
repair and replacement of the exterior and the structural portions of the
Building and common areas such as lobbies, stairs, corridors, common rest rooms,
roof, elevators and escalators. Notwithstanding anything contained in this Lease
to the contrary, Landlord shall bear all cost and expense of and shall perform
all acts necessary to bring the New Premises into compliance with the Americans
With Disabilities Act of 1991, as amended (together with all applicable
regulations, the "ADA") as of the first day of the Term, and shall bear all cost
and expense of and shall perform all construction and work required by the ADA
to be performed in the Premises as a result of the performance of the Tenant
Improvements. Thereafter, Tenant shall be responsible for complying with all ADA
requirements relating to the Premises and Landlord shall be responsible for
complying with all ADA requirements applicable to common areas of the Building.
Except to the extent that Landlord is obligated to furnish maintenance, repair
and painting of portions of the Premises pursuant to this Paragraph and to
repair damage by fire or other casualty pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇, at its
sole cost, shall maintain and repair the Premises and otherwise keep the
Premises in good order and repair, but all workmen, artisans and contractors
employed for such purposes shall be obtained through or specifically approved by
Landlord prior to the commencement of any work on the Premises. The Building,
the common area and the surrounding area of which the Building and the Premises
are a part shall at all times be maintained by Landlord in a commercially
reasonable manner consistent with the manner in which quality projects of a
similar type, character and location are maintained. Landlord shall promptly
commence and diligently pursue to completion the performance of all repairs or
maintenance that are the responsibility of Landlord under the Lease. Subject to
delays arising from Acts of God, shortages of labor or materials, war, or other
similar or dissimilar conditions or events beyond the reasonable control of
Landlord, if Landlord shall fail to fulfill its obligations under this Paragraph
and such failure shall continue for more than thirty (30) days' after receipt of
written notice from Tenant, Tenant may perform such maintenance and/or repair
and Landlord shall reimburse Tenant for the reasonable cost thereof upon demand.
Landlord shall schedule all repairs and maintenance, except in emergencies, with
reasonable notice to Tenant and shall, to the extent reasonably possible,
conduct the same before or after normal business hours so as to minimize
disruption of Tenant's business.
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13. LANDLORD'S SERVICES. Landlord, at its cost, shall furnish the Premises
with the following services:
(i) Cleaning and Janitorial Services (defined in Exhibit D attached hereto
and made a part hereof for all purposes),
(ii) water and electricity (110 volt current) for normal office uses,
(iii) elevator service at the times and frequency required, in Landlord's
judgment, for normal business use of the Premises by Tenant pursuant hereto,
(iv) lamp and ballast replacement for light fixtures,
(v) heating, ventilating, and air conditioning service between 7:00 o'clock
a.m. and 8:00 o'clock p.m. on Monday through Friday and between 8:00 o'clock
a.m. and 2:00 o'clock p.m. on Saturday, except on New Years Day, Memorial Day,
July 4, Labor Day, Thanksgiving Day, the day after Thanksgiving Day, Christmas
Day and other holidays ("Holidays") observed from time to time by tenants
occupying a majority of the Rentable Area in the Building; however, in the event
applicable governmental laws, edicts, regulations or administrative orders cause
normal hours to be modified, then such heating, ventilating and air conditioning
service shall be changed to be in compliance with such promulgations. Landlord
shall furnish heating, ventilating and air conditioning and cooling service on
days and at times other than those referred to in subsection (v) above upon
request at Landlord's standard hourly rate (which rate is currently $25.00 per
hour).
Except as expressly provided herein, Landlord shall not be liable for any
damages directly or indirectly resulting from, nor shall any Rent be abated by
reason of, the installation, use or interruption of use of any equipment in
connection with the furnishing of any of the foregoing services, or failure to
furnish or delay in furnishing any such service when such failure or delay is
caused by accident or any other occurrence or condition beyond the reasonable
control of Landlord or by the making of necessary repairs or improvements to the
Premises or to the Building. The failure to furnish any of such services shall
not be construed as an eviction of Tenant or relieve Tenant from the duty of
observing and performing any of its obligations under this Lease.
Notwithstanding the foregoing, in the event of an interruption of any essential
service (which shall be defined as gas, electricity, water, sewer, air
conditioning and heating service and elevator service), Landlord shall use
reasonable diligence to restore such service. If there is an interruption in any
essential service to the Premises and such interruption is the result of
Landlord's negligence or inaction but not the result (partially or wholly) of
the gross negligence or willful misconduct of Tenant, its agents, employees,
invitees or visitors, and if such interruption continues for fifteen (15)
business days after receipt by Landlord of written notice from Tenant, Tenant
shall be entitled to an abatement of all Rent and other sums due hereunder with
respect to that portion of the Premises rendered unusable by Tenant from the
sixteenth (16th) business day after Landlord's receipt of Tenant's notice until
such time as such essential service is restored.
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14. PROHIBITED USE. Tenant shall not use or permit any other party to use
all or any part of the Premises for any purpose not authorized in Paragraph 2
hereof. Tenant shall not do or permit anything to be done in or about the
Building or bring or keep or permit anything to be brought to or kept therein,
which is prohibited by or which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or hereafter enacted
or promulgated, or which is prohibited by any standard form of fire insurance
policy or which will in any way increase the existing rate of or affect any fire
or other insurance which Landlord carries upon the Building or any of its
contents, or cause a cancellation of any insurance policy covering the Building
or any part thereof or any of it contents. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants of the Building, or injure or annoy
them or use or allow the Premises to be used for any unlawful or objectionable
purpose. Tenant shall not cause, maintain or permit any nuisance in, on, or
about the Premises or Building or commit or suffer to be committed any waste to,
in, on, or about the Premises or Building.
15. RULES AND REGULATIONS OF BUILDING. Tenant shall perform and comply with
the Rules and Regulations of the Building set out in Exhibit E attached hereto
and made a part hereof for all purposes, and, upon written notice thereof, all
other rules and regulations with respect to safety, care, cleanliness, and
preservation of good order in the Building that reasonably may be established
from time to time by Landlord for all tenants of the Building. Landlord shall
not have any liability to Tenant for any failure of any other tenants of the
Building to comply with such Rules and Regulations.
16. COMPLIANCE WITH LAWS AND OTHER REGULATIONS. Tenant shall, at its sole
cost and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, with the requirements of any board of fire underwriters
or other similar body now or hereafter constituted, and with any directive or
occupancy certificate issued pursuant to any law by any public officer or
officers insofar as any thereof relate to or affect the condition, use or
occupancy of the Premises, excluding requirements of structural changes not
resulting from special Tenant improvements or acts of Tenant. Similarly,
Landlord shall, at its sole cost and expense, promptly comply, and shall cause
all of its contractors, agents and employees to comply, with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in force or
which may hereafter be in force, with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted, and with any
directive or occupancy certified issued pursuant to any law by any public
officer or officers insofar as any thereof relate to or affect the condition,
use or occupancy of the Land and the Building or so much of the Building as is
not the responsibility of the Tenant or any other tenant of the Building.
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17. ALTERATIONS AND ADDITIONS. Tenant shall not make any alterations or
additions to the Tenant Improvements, Premises or Building except with the prior
written consent of the Landlord, which consent shall not be unreasonably
withheld by Landlord. All Tenant Improvements, alterations and additions to the
Tenant Improvements, to the Premises and to the Building are the property of the
Landlord and shall not be removed by Tenant either during or after the end of
the Term without the express written approval of Landlord; provided, however,
Landlord may require such removal by Tenant upon termination of this Lease or
the expiration of the Term. Tenant shall not be entitled to any reimbursement or
compensation resulting from its payment of the cost of constructing all or any
portion of the Tenant Improvements or any alterations or additions thereto
unless otherwise expressly agreed by Landlord in writing. Tenant shall not
permit any mechanics', materialmen's or other liens to be fixed or placed
against the Premises or the Building or the Land and agrees immediately to
discharge (either by payment or by filing of the necessary bond, or otherwise)
any mechanics', materialmen's or other lien which is allegedly fixed or placed
against any of the foregoing.
18. TAXES ON PERSONALTY. Tenant shall pay all ad valorem and similar taxes
or assessments levied upon or applicable to all equipment, fixtures, furniture,
and other property placed by Tenant in the Premises and all license and other
fees or charges imposed on the business conducted by Tenant on the Premises. All
other ad valorem taxes attributable to the Premises, the Land and the Building
shall be paid by Landlord but shall be included within Operating Expenses to the
extent permitted under the provisions of Paragraphs 8 and 9 of this Lease.
19. LANDLORD'S ACCESS. Landlord shall have the right, at all reasonable
times during the Term, upon reasonable notice (except in case of emergency) to
enter the Premises to inspect the condition thereof, to determine if Tenant is
performing its obligations under this Lease, and to perform the services or to
make the repairs and restoration that Landlord is obligated or elects to perform
or furnish under this Lease, to make repairs to adjoining space, to cure any
defaults of Tenant hereunder that Landlord elects to cure in accordance with the
terms of this Lease, and to remove from the Premises any improvements thereto or
property placed therein in violation of this Lease. During the last six (6)
months of the Term, Landlord shall have the right to enter the Premises in
accordance with the preceding sentence to show the Premises to prospective new
tenants.
20. PROPERTY INSURANCE. Landlord shall maintain, during the Term of this
Lease, fire and extended coverage insurance ("Insurance") insuring the Building
and Premises (including Tenant Improvements) in the amount of eighty percent
(80%) of the full replacement cost thereof, but excluding Tenant's goods,
furniture or other property placed in the Premises, against damage or loss from
fire or other casualty normally insured against under the terms of standard
policies of fire and extended coverage insurance. Tenant shall be responsible
for providing, at Tenant's own expense, all insurance
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coverage necessary for the protection against loss or damage from fire or other
casualty of Tenant's goods, furniture or other property placed in the Premises.
21. FIRE OR OTHER CASUALTY. If the Premises or the Building is damaged or
destroyed in whole or in part, by fire or other casualty at any time during the
Term and if, substantial alteration or reconstruction of the Building shall, in
Landlord's opinion, be required (whether or not the Premises shall have been
damaged by such casualty) or in the event there is less than one (1) year of the
Term remaining or in the event of any material uninsured loss to the Building,
Landlord may, at its option, terminate this Lease by notifying Tenant in writing
of such termination within ninety (90) days after the date of such casualty. In
addition, either Landlord or Tenant shall have the right to terminate this Lease
within thirty (30) days after the date of such damage or destruction if Landlord
determines that the restoration or replacement of the damaged or destroyed
portion of the Premises or the Building cannot reasonably be expected to be
completed within one hundred eighty (180) days after the date of the casualty.
If this Lease is not terminated as provided in this Paragraph, Landlord shall
promptly commence to restore or replace the damaged or destroyed portions of the
Building and the improvements located within the Premises for which Landlord had
financial responsibility pursuant to the Work Letter Agreement or pursuant to
the Existing Lease to substantially the same condition that existed immediately
prior to such damage or destruction; provided, however, that Landlord shall have
no obligation to spend any sums in excess of insurance proceeds actually
received in restoring the Building and the Premises. Landlord shall not be
liable for any inconvenience or annoyance to Tenant or injury to the business of
Tenant resulting in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall ▇▇▇▇▇ Rent during
the time and to the extent the Premises are unfit for occupancy. If the Premises
or any other portion of the Building is damaged by fire or other casualty
resulting from the fault or negligence of Tenant or any of Tenant's agents,
employees, or invitees, Rent shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost of the repair and
restoration of the Building and the improvements located within the Premises for
which Landlord had financial responsibility pursuant to the Work Letter
Agreement or pursuant to the Existing Lease caused thereby to the extent such
cost and expense is not covered by insurance proceeds.
22. WAIVER OF CLAIMS. Anything in this Lease to the contrary
notwithstanding, and to the maximum extent not prohibited by applicable law,
each party hereto hereby releases and waives all claims, rights of recovery, and
causes of action that either such party or any party claiming by, through, or
under such party (including, without limitation, the insurers of each of
Landlord and Tenant) by subrogation or otherwise may now or hereafter have
against the other party or any of the other party's directors, officers,
partners, employees, or agents for any loss or damage that may occur to the
Building, Premises, Tenant Improvements, or any of the contents of any of the
foregoing by reason of fire, Act of
10
God, the elements, or any other cause EXPRESSLY INCLUDING THE NEGLIGENCE OF THE
PARTIES HERETO OR THEIR DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, OR AGENTS (BUT
NOT INCLUDING THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT THEREOF), that could
have been insured against under the terms of standard fire and extended coverage
insurance policies or any injury covered by worker's compensation laws and
benefits. Landlord shall not be liable to Tenant for any inconvenience or loss
to Tenant in connection with any of the repair, maintenance, damage,
destruction, restoration, or replacement referred to in this Lease. Landlord
shall not be obligated to repair, maintain, restore, or replace or otherwise be
liable for any damage to or destruction of any of Tenant's goods, furniture, or
other property placed in or incorporated in the Building. THIS WAIVER IS
INTENDED TO WAIVE CLAIMS AGAINST THE PARTIES EVEN IN THE EVENT OF SUCH PARTY'S
OWN NEGLIGENCE.
23. INDEMNITY AND INSURANCE.
A. Except for the claims, rights of recovery and causes of action that
Landlord has released and waived pursuant to Paragraph 22 hereof and to the
maximum extent permitted by applicable law, each party (the "Indemnifying
Party") shall indemnify and hold harmless the other party and the other party's
agents, directors, officers, partners, employees, invitees, and contractors (the
"Indemnified Party") from all claims, losses, costs, damages, or expenses
(including, but not limited to, attorneys' fees and related costs and expenses)
resulting or arising from any and all injuries to, including death of, any
person or damage to any property caused by any act, omission, or neglect of the
Indemnifying Party or its directors, officers, employees, agents, invitees, or
guests, or any parties contracting with the Indemnifying Party relating to the
Premises, the Building and/or the Land. LANDLORD SHALL NOT BE LIABLE TO TENANT
AND TENANT HEREBY WAIVES ALL CLAIMS AGAINST LANDLORD OR LANDLORD'S DIRECTORS,
OFFICERS, PARTNERS, EMPLOYEES, OR AGENTS FOR ANY DAMAGE OR LOSS OF ANY KIND, FOR
DIRECT DAMAGES, CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION,
AND FOR ANY DAMAGE TO PROPERTY, DEATH OR INJURY TO PERSONS ARISING FROM OR
RELATED TO (1) THE ACTS OF OTHER TENANTS, VANDALISM, LOSS OF TRADE SECRETS OR
OTHER CONFIDENTIAL INFORMATION, OR (2) ANY DEFECT IN THE PREMISES OR THE
BUILDING, PIPES, ELECTRICAL EQUIPMENT, AIR CONDITIONING, HEATING, PLUMBING OR BY
WATER LEAKAGE OF ANY KIND FROM THE ROOF, WALLS, WINDOWS OR OTHER PORTION OF THE
PREMISES OR THE BUILDING, UNLESS AND TO THE EXTENT CAUSED BY THE WILLFUL
MISCONDUCT OR NEGLIGENCE OF LANDLORD.
B. During the Term of this Lease, Tenant, at its sole cost, shall obtain
and maintain with insurance companies approved by Landlord, commercial general
liability insurance, insuring Tenant, Landlord and Landlord's designees, if any,
against liability for injury to persons or property occurring in or about the
Premises or arising out of the ownership, maintenance, use or occupancy thereof.
The liability
11
under such insurance shall not be less than $5,000,000.00 combined single limit
coverage for personal injury and for property damage, all such amounts to be
increased if, in the reasonable judgment of Landlord, any such increase is
necessary for Landlord's protection. Landlord shall be named as an additional
insured under Tenant's insurance. Prior to its initial entry onto the Premises,
Tenant shall provide to Landlord a certificate of insurance evidencing the
coverages required under this Lease. A replacement certificate shall be
delivered to Landlord at least ten (10) business days prior to the expiration of
any such certificate during the Term. Tenant's insurance policy shall provide
that it may not be materially altered or cancelled without ten (10) days notice
being first given to the Landlord.
C. Landlord shall obtain and maintain commercial general liability
insurance insuring Landlord against liability for injury to persons or property
occurring in or about the Premises, the Building or the Land or arising out of
the ownership, maintenance, use or occupancy thereof. Upon request, Landlord
shall provide a certificate of its insurance to Tenant. Landlord's obligations
hereunder may be met through blanket insurance polices and/or Landlord's
standard self-insurance programs.
24. NON-WAIVER. No consent or waiver, express or implied, by one party to
this Lease to or of any breach in the performance or observance by the other
party of any of its obligations under this Lease shall be construed as or
constitute a consent or waiver to or of any other breach in the performance or
observance of such obligation or any other obligations. Neither the acceptance
by Landlord of any Rent or other payment hereunder, whether or not any default
hereunder by Tenant is then known to Landlord, nor any custom or practice
followed in connection with this Lease shall constitute a waiver of any of
Tenant's obligations under this Lease. Failure by one party to this Lease to
complain of any action or nonaction on the part of the other party or to declare
such other party in default irrespective of how long such failure may continue,
shall not be deemed to be a waiver by a party to this Lease of any of its rights
hereunder. Time is of the essence with respect to the performance of every
obligation under this Lease in which time of performance is a factor. Except
where expressly provided herein to the contrary, all Rent and other amounts
payable by Tenant under this Lease shall be paid without abatement, offset,
counterclaim or diminution to any extent whatsoever. Except for the execution
and delivery of a written agreement expressly accepting surrender of the
Premises, no act taken or failed to be taken by Landlord shall be deemed an
acceptance of surrender of the Premises.
25. QUIET ENJOYMENT. Provided Tenant has performed all of its obligations
under this Lease, including but not limited to the payment of Rent and all other
sums due hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, subject to the provisions and conditions set forth in
this Lease.
12
26. NOTICES. Each notice required or permitted to be given hereunder by one
party to the other shall be in writing with a statement therein to the effect
that notice is given pursuant to this Lease and the same shall be given and
shall be deemed to have been delivered, served and given if placed in the United
States mail, postage prepaid, by United States registered or certified mail,
return receipt requested, addressed to such party at the address provided for
such party herein. Any notices to Landlord shall be addressed and given to
Landlord as follows:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Director of Real Estate
The address for Tenant shall be the Premises. The addresses stated above shall
be effective for all notices to the respective parties until written notice of a
change in address is given pursuant to the provisions hereof.
27. LANDLORD'S FAILURE TO PERFORM. Except as otherwise expressly provided
herein, if Landlord fails to perform any of its obligations under this Lease,
Landlord shall not be in default hereunder and Tenant shall not have any rights
or remedies growing out of such failure unless Tenant gives Landlord written
notice thereof setting forth in reasonable detail the nature and extent of such
failure and such failure by Landlord is not cured within the thirty (30) day
period following delivery of such notice or such other period therefor expressly
provided elsewhere in this Lease. If such failure cannot reasonably be cured
within such period, the length of such period shall be extended for the period
reasonably required therefor if Landlord commences curing such failure within
the original specified period and continues the curing thereof with reasonable
diligence and continuity.
28. TENANT'S FAILURE TO PERFORM. If Tenant fails to perform any one or more
of its obligations hereunder, in addition to the other rights of Landlord
hereunder, Landlord shall have the right, but not the obligation, after
reasonable notice to Tenant (except in case of emergency), to perform all or any
part of such obligations of Tenant. Upon receipt of a demand therefor from
Landlord, Tenant shall reimburse Landlord for (i) the cost to Landlord of
performing such obligations and a reasonable profit and overhead, plus (ii)
interest thereon at the then maximum legal rate from the date of demand. If the
obligation so performed by Landlord involves any repair or maintenance or the
removing by Landlord of any improvements to or use of the Premises not
authorized by this Lease, such reasonable profit and overhead shall be 10% of
the cost to Landlord of performing such obligation.
29. ACT OF DEFAULT. The term "Act of Default" refers to the occurrence of
any one or more of the following:
13
(i) failure of Tenant to pay when due any Rent or other amount required to
be paid under this Lease within ten (10) days after notice from Landlord; or
(ii) failure of Tenant after thirty (30) days written notice from Landlord
of Tenant's default in the performance of any of Tenant's obligations, covenants
or agreements under this Lease, to do, observe, keep and perform with diligence
and continuity any of such obligations, covenants, or agreements;
(iii) the filing by Tenant of a voluntary petition in bankruptcy,
receivership, or other related or similar proceedings; or
(iv) the making by Tenant of a general assignment for the benefit of its
creditors; or
(v) the appointment of a receiver of Tenant's interests in the Premises in
any action, suit or proceeding by or against Tenant's interest in the Premises
or by or against Tenant unless such appointment is dismissed within sixty (60)
days of its filing; or
(vi) any other voluntary or involuntary proceedings instituted by or
against Tenant under any bankruptcy or similar laws, unless the occurrence of
any such involuntary receivership or proceeding is cured by the same being
dismissed or stayed within sixty (60) days thereafter; or
(vii) the failure of Tenant to discharge or bond any judgment against
Tenant within sixty (60) days after such judgment becomes final; or
(viii) the sale or attempted sale under execution or other legal process of
the interest of Tenant in the Premises.
30. RIGHTS UPON DEFAULT.
A. If an Act of Default occurs, Landlord, at any time thereafter prior to
the curing of such Act of Default and without waiving any other rights herein
available to Landlord at law or in equity, may either terminate this Lease or
terminate Tenant's right to possession without terminating the Lease, whichever
Landlord elects. In either event, Landlord may pursue all rights and remedies
available to it under this Lease or under applicable law or both. If Landlord
elects to terminate this Lease, it may treat the Act of Default as an entire
breach of this Lease and Tenant immediately shall become liable to Landlord for
damages for the entire breach in an amount equal to the amount by which (i) the
total Rent (being the Rent set forth in Paragraph 4 hereof as adjusted pursuant
to Paragraph 5 hereof for any increase and estimated increase in Operating
Expenses which would be payable by Tenant during the unexpired balance of the
Term) and all other payments due for the balance of the Term is in excess of
(ii) the fair market rental value of the Premises for the balance of the Term as
of the time of default, both discounted at the rate per annum quoted by JPMorgan
Chase Bank from time-to-time as its prime rate to the then present value. If
Landlord elects to terminate Tenant's right to possession of the Premises
without terminating the Lease, Landlord may rent the Premises or any part
thereof for the account of Tenant to any person or persons for such rent and for
such terms and other conditions as Landlord deems
14
appropriate, and Tenant shall be liable to Landlord for the amount, if any, by
which the total rent and all other payments herein provided for the unexpired
balance of the Term exceed the net amount, if any, received by Landlord from
such re-renting, being the gross amount so received by Landlord less the cost of
repossession, re-renting, remodeling and other expenses. Such sum or sums due by
reason of the immediately preceding sentence shall be paid by Tenant in monthly
installments on the first day of each month of the balance of the Term. If
Landlord elects to terminate Tenant's right to possession without terminating
the Lease, Landlord shall have the right at any time thereafter to terminate
this Lease, whereupon the foregoing provisions with respect to termination will
thereafter apply. If an Act of Default occurs or in case of any holding over or
possession by Tenant of the Premises after the expiration or termination of this
Lease, Tenant shall reimburse Landlord on demand for all reasonable costs
incurred by Landlord in connection therewith including, but not limited to,
reasonable attorneys' fees and related costs and expenses, plus interest thereon
at the then maximum lawful rate from the date such costs are paid by Landlord.
Actions by Landlord to collect amounts due from Tenant as provided in this
Paragraph 31 hereof may be brought at any time, and from time to time, on one or
more occasions, without the necessity of Landlord's waiting until the
termination of this Lease.
B. Notwithstanding the foregoing, to the extent (but no further) Landlord
is required by applicable Texas law to mitigate damages, or is required by law
to use efforts to do so, and such requirement cannot be lawfully and effectively
waived (it being the intention of Landlord and Tenant that Tenant WAIVE such
requirements to the maximum extent permitted by applicable law), Tenant agrees
that Landlord shall not be deemed to have failed to mitigate damages, or the
efforts required by law to do so, because: (i) Landlord leases other space in
the Building which is vacant prior to re-letting the Premises; (ii) Landlord
refuses to relet the Premises to (A) any affiliate of Tenant, or any principal
of Tenant, or any affiliate of such principal; (B) any person or entity whose
creditworthiness is not acceptable to Landlord in the exercise of its reasonable
discretion; (C) any person or entity because the use proposed to be made of the
Premises by such prospective tenant is not general office use of a type and
nature consistent with that of the other tenants in the portions of the Building
leased or held for lease for general office purposes as of the date Tenant
defaults under this Lease, or such use would, in Landlord's reasonable judgment,
impose unreasonable or excessive demands upon the Building systems, equipment or
facilities; or (D) any person or entity, or any affiliate of such person or
entity, who has been engaged in litigation with Landlord or any of its
affiliates; (iii) Landlord refuses to relet the Premises because the tenant or
the terms and provisions of the proposed lease are not approved by the holders
of any liens or security interests in the Building, or would cause Landlord to
be in default of, or to be unable to perform any of its covenants or obligations
under, any agreements between Landlord and any third party; (iv) Landlord
refuses to relet the Premises because the proposed tenant is unwilling to
execute and deliver Landlord's standard lease form or such tenant requires
improvements to the Premises to be paid at Landlord's cost and expense; or (v)
Landlord refuses to relet the Premises to a
15
person or entity whose character or reputation, or the nature of such
prospective tenant's business, would not be acceptable to Landlord in its
reasonable discretion.
31. SURRENDER. On the last day of the Term, or upon the earlier termination
of this Lease, Tenant shall peaceably and quietly surrender the Premises to
Landlord, broom clean, in good order, repair and condition at least equal to the
condition when delivered to Tenant excepting only ordinary wear and tear
resulting from normal use (but in any event in no worse condition than Tenant is
required to maintain the Premises during the Term) and damage by fire or other
casualty covered by the Insurance carried by Landlord. Prior to the surrender of
the Premises to Landlord, Tenant at its sole cost and expense shall remove all
liens and other encumbrances which may have resulted from the acts or omissions
of Tenant. If Tenant fails to do any of the foregoing, Landlord, in addition to
other remedies available to it at law or in equity, may, without notice, enter
upon, reenter, possess and repossess itself thereof, by force, summary
proceedings, ejectment, or otherwise, and may dispossess and remove Tenant and
all persons and property from the Premises; and Tenant 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.
32. HOLDING OVER. If Tenant does not surrender possession of the Premises
at the end of the Term or upon earlier termination of this Lease, at the
election of Landlord, Tenant shall be a tenant-at-will and the Rent and other
payments due during the period of such holdover shall be 1.5 times the adjusted
monthly Rent in effect immediately prior to end of the Term or termination of
this Lease. Any holding over by Tenant with the express consent of Landlord
shall be deemed a tenancy from month to month. In addition to the payment of the
amounts provided above, if Landlord is unable to deliver possession of the
Premises to a new tenant, or to perform improvements for a new tenant, as a
result of Tenant's holdover and Tenant fails to vacate the Premises within five
(5) business days after Landlord notifies Tenant of Landlord's inability to
deliver possession, or perform improvements, such failure shall constitute an
Act of Default hereunder; and notwithstanding any other provision of this Lease
to the contrary, TENANT SHALL BE LIABLE TO LANDLORD FOR, AND SHALL PROTECT
LANDLORD FROM AND INDEMNIFY AND DEFEND LANDLORD AGAINST, ALL LOSSES AND DAMAGES,
INCLUDING ANY CLAIMS MADE BY ANY SUCCEEDING TENANT RESULTING FROM SUCH FAILURE
TO VACATE, AND ANY CONSEQUENTIAL DAMAGES THAT LANDLORD SUFFERS FROM THE
HOLDOVER.
33. REMOVAL OF TENANT'S PROPERTY. Tenant shall retain the ownership of all
equipment, furniture, and supplies placed in or on the Premises by Tenant (other
than non-trade fixtures or other alternations made by Tenant to the Premises in
accordance with this Lease, which shall be the property of Landlord upon
termination of this Lease) and shall have the right to remove such equipment,
furniture, and supplies prior to termination of this Lease provided that no Act
of Default has been committed by
16
Tenant which has not been fully cured in a manner reasonably acceptable to
Landlord and further provided that Tenant repairs any injury to the Premises or
Building resulting from such removal. Unless Tenant has made prior arrangements
with Landlord and Landlord has agreed in writing to permit Tenant to leave such
equipment, furniture, or supplies on the Premises for an agreed period, if
Tenant does not remove such movable equipment, furniture, and supplies prior to
such termination, then, in addition to its other remedies at law or in equity,
Landlord shall have the right, in Landlord's sole discretion to either have such
items removed and stored at Tenant's expense and all damage to the Premises or
Building resulting therefrom repaired at the cost of Tenant or elect that such
movable equipment, furniture and supplies automatically become the property of
the Landlord upon termination of this Lease, and, in the latter case, Tenant
shall not have any further right with respect thereto or for reimbursement
therefor and Landlord shall be free to sell, discard or otherwise dispose of the
same.
34. LIENS. Tenant shall not permit any mechanics', materialmen's or other
liens to be fixed or placed against the Premises or the Building or the Land and
agrees immediately to discharge (either by payment or by filing of the necessary
bond, or otherwise) any mechanics', materialmen's or other lien which is
allegedly fixed or placed against any of the foregoing.
35. INTEREST. Except as otherwise provided herein, all amounts of money
payable by Tenant to Landlord under this Lease, if not paid when due, shall bear
interest from the date due until paid at a rate equal to the lesser of (i) 15%
per annum or (ii) the maximum nonusurious rate of interest permitted for the
date the rate is determined by whichever of applicable federal or Texas laws
permits the higher interest rate, stated as a rate per annum.
36. ASSIGNMENT AND SUBLETTING. Landlord shall have the right to encumber,
transfer and/or assign, in whole or in part, by operation of law or otherwise,
its rights and obligations hereunder whenever Landlord, in its sole judgment,
deems it appropriate, without any liability to Tenant, and Tenant shall attorn
to any party to which Landlord transfers the Building and, upon such assignment,
Landlord shall be relieved of all obligations hereunder accruing subsequent to
the date of such assignment. Except with respect to a Permitted Transfer
(defined below), Tenant shall not assign or otherwise transfer (including,
without limitation, transfers by operation of law or a change in the control of
the ownership interests of any tenant which is not a natural person), mortgage,
pledge, hypothecate or otherwise encumber this Lease, or any interest herein,
and shall not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereto, or permit any other party to occupy or use the Premises, or
any portion thereof, without the express prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion. No such
consent by Landlord and no Permitted Transfer shall release Tenant from any of
Tenant's obligations hereunder or be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another person. Subject to the
foregoing, the rights and obligations of
17
the parties hereunder shall inure to the benefit of and being binding on the
parties hereto and their respective successors, assigns, heirs, and legal
representatives. Tenant agrees to reimburse Landlord for its reasonable
attorneys' fees and other expenses incurred in connection with any request to
assign this Lease. As used herein, "Permitted Transfer" means (i) an assignment
of Tenant's entire interest under this Lease in connection with a sale of all or
substantially all the assets of Tenant provided that the assignee thereof
immediately after such sale has a net worth, as determined in accordance with
generally accepted accounting principles, equal to or greater than the lesser of
(x) Tenant's net worth immediately prior to such sale or (y) $10,000,000; (ii)
an assignment or sublease to an affiliate of Tenant (which, for purposes hereof,
shall mean an entity controlling, controlled by, or under common control with,
Tenant); (iii) a merger or consolidation with a company which has one or more
classes of stock traded on a recognized stock exchange; (iv) the change of
control of Tenant if Tenant has one or more classes of stock traded on a
recognized stock exchange; and (v) a sublease of less than 25% of the Premises;
provided that all of the following conditions are satisfied at the time of such
transfer: (a) no uncured Act of Default exists under this Lease; (b) no portion
of the Building or Premises would likely become subject to additional or
different laws as a consequence of the proposed transfer; and (c) the
transferee's use of the Premises shall not conflict with the use specified in
Paragraph 2 or any exclusive usage rights granted to any other tenant in the
Building.
37. MERGER OF ESTATES. The voluntary or other surrender of this Lease by
Tenant or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Landlord, terminate all or any existing subleases or subtenancies,
or may, at the option of Landlord, operate as an assignment to it of Tenant's
interest in any or all such subleases or subtenancies.
38. LANDLORD'S LIABILITY. Any provisions of this Lease to the contrary
notwithstanding and to the extent permitted by applicable law, Tenant hereby
agrees that no personal or corporate liability of any kind or character
whatsoever now attaches or at any time hereafter under any condition shall
attach to Landlord for payment of any amounts payable under this Lease or for
the performance of any obligation under this Lease. The exclusive remedies of
Tenant for the failure of Landlord to perform any of its obligations under this
Lease shall be to proceed against the interest of Landlord in and to the
Building. For the purposes of this Lease, the phrase "the interest of the
Landlord in and to the Building" shall mean (i) Landlord's fee title to the
Building and the rents, revenues and profits therefrom if, as and when
collected, and (b) the net proceeds from any sale or refinancing of the Building
or the amount of any insurance or condemnation proceedings with respect to the
Building. Nothing in this Paragraph 39 is intended to limit Tenant's recourse
against Landlord's liability insurance or the liability of the issuer thereof.
18
39. LIGHT AND AIR. Neither diminution nor shutting off of light or air or
both nor any other effect on the Premises by any structure erected or condition
now or hereafter existing on lands adjacent to the Building shall affect this
Lease, ▇▇▇▇▇ Rent, or otherwise impose any liability on Landlord.
40. CONDEMNATION. If all or more than 25% of the interest in the Premises
shall be taken as a result of the exercise of the power of eminent domain, this
Lease shall terminate as to the part so taken as of the date of taking. If more
than 25% of the interest in the Premises or if a substantial portion of the
Building is so taken, either Landlord or Tenant shall have the right to
terminate this Lease as to the balance of the Premises by written notice to the
other within thirty (30) days after the date of taking; provided, however, that
a condition to the exercise by Tenant of such right to terminate shall be that
the portion of the Premises or Building taken shall be of such extent and nature
as to substantially handicap, impede or impair Tenant's use of the Premises or
the balance of the Premises remaining. In the event of any taking, Landlord
shall be entitled to any and all compensation, damages, income, rent, and awards
with respect thereto except for an award, if any, specified by the condemning
authority for any property that Tenant has the right to remove upon termination
of this Lease. Tenant shall have no claim against Landlord for the value of any
unexpired Term. In the event of a partial taking of the Premises which does not
result in a termination of this Lease, the Rent thereafter to be paid shall be
equitably reduced by being proportionately reduced as to the square footage so
taken.
41. SUBORDINATION. The rights and interests of Tenant under this Lease and
in and to the Premises shall be subject and subordinate to first deeds of trust,
mortgages, master leases and other security instruments and to all renewals,
modifications, consolidations, replacements and extensions thereof heretofore or
hereafter executed covering the Premises, the Building and the Land or any parts
thereof (the "Security Documents"), to the same extent as if the Security
Documents had been executed, delivered and recorded prior to the execution of
this Lease. After the delivery to Tenant of a notice from Landlord that it has
entered into one or more Security Documents, then during the term of such
Security Documents Tenant shall deliver to the holder or holders of all Security
Documents a copy of all notices to Landlord and shall grant to such holder or
holders the right to cure all defaults, if any, of Landlord hereunder within the
same time period provided in this Lease for curing such defaults by Landlord
and, except with the prior written consent of the holder of the Security
Documents, shall not (i) amend this Lease in any material respect; (ii)
surrender or terminate this Lease except pursuant to a right to terminate
expressly set forth in this Lease, or (iii) pay any Rent more than one month in
advance or pay any Rent or other amounts payable hereunder other than in strict
accordance with the terms hereof. The provisions of this subsection shall be
self-operative and shall not require further agreement by Tenant; however, at
the request of Landlord, Tenant shall execute such further documents as may be
required to evidence and set forth for the benefit of the holder of any Security
Documents the obligations of Tenant hereunder. At any time and from time to time
upon not less than ten (10) days' prior notice by Landlord,
19
Tenant shall execute, acknowledge and deliver to the Landlord a statement of the
Tenant in writing certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications, if any), and stating whether
or not to the best knowledge of Tenant the Landlord is in default in the
keeping, observance or performance of any covenant, agreement, term, provision
or condition contained in this Lease and, if so, specifying each such default of
which Tenant may have knowledge, it being intended that any such statement may
be relied upon by any addressee thereof. Notwithstanding the foregoing, as an
express condition to any subordination by Tenant in accordance with the terms of
this Paragraph 41, the mortgagee or beneficiary under Security Document shall
agree in writing with Tenant that, in the event of a foreclosure sale or a deed
in lieu of foreclosure (i) Tenant's rights under the Lease will be recognized,
(ii) Tenant's possession of the Premises will not be disturbed and (iii) the
successor to Landlord will assume and perform all obligations of Tenant under
the Lease, provided no Act of Default has then occurred and is continuing under
this Lease. Landlord represents and warrants to Tenant that, as of the date of
execution of this Lease, there are no Security Documents affecting the Land, the
Building or the Premises.
42. LEGAL INTERPRETATION. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed and enforced in accordance with
the laws of the State of Texas. The determination that one or more provisions of
this Lease is invalid, void, illegal or unenforceable shall not affect or
invalidate the remainder. All obligations of either party requiring any
performance after the expiration of the Term shall survive the expiration of the
Term and shall be fully enforceable in accordance with those provisions
pertaining thereto. If the rights of the Tenant hereunder are owned by two or
more parties or two or more parties are designated herein as Tenant, than all
such parties shall be jointly and severally liable for the obligations of Tenant
hereunder. Paragraph titles appearing in the margins are for convenient
reference only and shall not be used to interpret or limit the meaning of any
provision of this Lease.
43. PARKING. As part of the services to be provided by Landlord to Tenant
during the Term of this Lease, Tenant's employees, invitees and guests shall
have the non-exclusive right to use 147 unreserved parking spaces without the
payment of any parking charges. From time to time, Landlord shall have the right
to make and enforce reasonable rules and regulations for the use of said parking
and Tenant comply with the same and shall use reasonable efforts to cause
Tenant's employees, invitees and guests to comply with the same. Landlord
reserves the right to deny access to said parking to any tenant, employee, guest
or invitee who refuses to comply with applicable parking rules and regulations
or the terms of this Lease.
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44. WHOLE AGREEMENT. No oral statements or prior written material 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 and no others. This
Lease, including the Exhibits which are attached hereto and made a part hereof
for all purposes, constitutes the whole agreement of the parties and shall in no
way be conditioned, modified or supplemented except by a written agreement
executed by and delivered to both parties.
45. BUILDING ACCESS. Tenant acknowledges that access to and from the
Building is modulated by a controlled-access system requiring the use of
card-keys and that Landlord has provided Tenant with the operating instructions
to such system. Landlord shall be entitled to access to the Building via the
controlled-access system for the purposes set forth in Paragraph 19 hereof.
Landlord hereby expressly disclaims any responsibility for and Tenant hereby
disaffirms any reliance upon Landlord for the operation (or non-operation) of
the controlled access system of for the provision of security services.
46. SIGNAGE.
A. Tenant's name will be placed on the Building directory in the Building
lobby, provided, however, the in the event no Building directory is installed in
the Building lobby, Tenant shall be allowed to place a small sign on a stand
near the reception desk on the first floor of the Building. In addition, Tenant
shall be allowed to place its company name and logo on the wall facing the
corridor by the main entrance to the Premises.
B. In addition, so long as there shall exist no Act of Default, Tenant
shall have the right to leave in place, and repair and maintain its sign mounted
on the exterior of the Building at the entrance to the Building from Hollister
Road as located as of the effective date of this Lease, subject to the
requirements of applicable laws, codes, ordinances, rules, regulations and deed
restrictions (including, without limitation, the Northwest Crossing Deed
Restriction). No such signage may be modified or replaced unless approved in
advance by Landlord.
C. All costs and expenses of any kind or nature whatsoever associated with
the signage described in this Paragraph and any other signage of Tenant's at the
Building or Land which is permitted by Landlord shall be borne solely by Tenant,
and to the extent any such costs are paid by Landlord, Tenant shall reimburse
Landlord for such costs upon demand. Tenant shall ensure that no damage to the
Building or other portions of the property on which the Building is located, or
utility lines, occur in connection with the activities of Tenant or its
contractor in respect of such signage. Tenant shall be obligated to remove such
signage, and restore all affected areas to their condition prior to installation
of the signage, in a good and workmanlike manner, all at Tenant's sole cost and
expense, within ten (10) days after the earlier to occur of the termination or
expiration of this Lease, or the earlier termination of
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Tenant's signage rights under this Paragraph. Lessee acknowledges and agrees
that Tenant's signage and other rights under this Lease are limited to the
rights expressly granted herein, and that no additional rights in favor of
Tenant or restrictions upon Landlord shall be implied. Without limiting the
generality of the preceding sentence, Landlord shall not be restricted by this
Lease from granting signage rights to others, or from installing its own
signage, in, on or about the Building, nor from changing the Building name, in
each case as Landlord may elect in its sole and absolute discretion.
47. STORAGE SPACES. During the Term, Tenant may use the two storage areas
located on the third (3rd) floor of the Building without any charge. Such
storage areas shall be used for the storage of Tenant's files, Tenant's
furniture and other personal property owned by Tenant and ancillary to Tenant's
use of the Premises, and no other purposes. In no event shall Tenant use or
occupy any portion of such storage spaces for office space or otherwise conduct
business therein. TENANT HEREBY AGREES THAT THE STORAGE SPACES ARE IN GOOD ORDER
AND SATISFACTORY CONDITION AND THAT THERE ARE NO REPRESENTATIONS OR WARRANTIES
OF ANY KIND, EXPRESS OR IMPLIED, BY LANDLORD REGARDING THE STORAGE SPACES.
48. ROOF ACCESS. Landlord and Tenant agree that Tenant shall from time to
time have access to the roof of the Building and to roof penetrations and other
facilities for necessary electrical wiring in order to maintain the
telecommunications equipment installed by Tenant pursuant to the Existing Lease
and to install and maintain, at Tenant's sole cost and expense, additional
telecommunications equipment, all of which shall comply with (i) any reasonable
requirements imposed by Landlord in connection therewith (including, without
limitation, relating to the structural integrity and security of the roof and
the Building), and (ii) all applicable federal, state and local laws,
ordinances, codes, regulations and rules. Tenant shall obtain and maintain in
full force and effect all required permits, licenses, insurance and approvals
with respect thereto. Tenant shall indemnify, defend and save harmless Landlord,
Landlord's directors, officers, partners, employees, or agents for any damage or
loss of any kind (including, without limitation, attorneys' fees and court
costs), for direct damages, consequential damages, loss of profits, business
interruption, and for any damage to property, death or injury to persons arising
out of or relating to the installation, operation, maintenance and/or removal of
such satellite dishes and other telecommunications equipment, unless and to the
extent caused by the willful misconduct or negligence of Landlord.
49. PURCHASE OF FURNITURE. Tenant agrees to sell to Landlord, and Landlord
agrees to buy from Tenant, certain of Tenant's furniture located in the
Surrender Space, as provided in this Paragraph. On the Commencement Date (and
provided that Tenant has actually surrendered the Surrender Space), Landlord
will buy all of the Furniture Sets owned by Tenant and located in the Surrender
Space, not to exceed ninety (90) Furniture Sets; provided, however, that
Landlord shall have the right to refuse to purchase any Furniture Set owned by
Tenant that is not in good or fair condition, as reasonably
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determined by Landlord. Landlord will pay to Tenant $300.00 per Furniture Set,
up to a maximum of $27,000.00. If requested by Landlord, Tenant will execute and
deliver to Landlord a ▇▇▇▇ of sale evidencing the sale of such Furniture Sets.
As used herein, "Furniture Set" means a set of office furniture consisting of a
desk, chair, credenza/return and book shelves.
50. CONTRACTION OPTION. Landlord hereby grants to Tenant the one-time
option to terminate this Lease with respect to either or both of the 3,113 and
4,963 square foot areas on the first floor of the building marked "Contraction
Space A" and "Contraction Space B" on Exhibit B-3 attached hereto and made a
part hereof for all purposes (the "Contraction Spaces"), effective as of any
date specified by Tenant on or after October 31, 2004, by so notifying
Landlord in writing ("Contraction Notice") no later than six (6) months prior
to the effective date specified in the Contraction Notice. Any such
Contraction Notice shall be in writing, shall specify which Contraction
Space(s) will be released by Tenant and shall specify the effective date of
such contraction, which effective date shall be the last day of any calendar
month on or after October 31, 2004. If Tenant elects to release one or both of
the Contraction Spaces, Tenant shall vacate the applicable Contraction Space(s)
on or before the date specified in the Contraction Notice, and thereafter, the
neither party shall have any continuing obligations to the other under this
Lease with respect to such Contraction Space, except to the extent specifically
provided to survive the termination of this Lease. Should Tenant release only
one (1) of the two (2) Contraction Spaces, this option shall remain in effect
with respect to the other Contraction Space through the remainder of the
initial Term.
51. STANDARD.
A. Landlord and Tenant shall have at all times a right and duty to act
reasonably and in good faith and, subject to Paragraph 30.B. hereof, mitigate
any damages or claims arising out of this Lease or in connection with the use,
condition or occupancy of the Building or the Premises or an occurrence of a
default or breach in any of the terms of this Lease.
B. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, the period of time for the performance of such action shall
be extended by the number of days that the performance is actually delayed due
to strikes, acts of God, shortages of labor or materials, war, terrorist attacks
(including bio-chemical attacks), civil disturbances and other causes beyond the
reasonable control of the performing party ("Force Majeure"). However, events of
Force Majeure shall not extend any period of time for the payment of Rent or
other sums payable by either party or any period of time for the written
exercise of an option or right by either party.
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C. Tenant waives all rights pursuant to all applicable laws to contest any
taxes or other levies or protest appraised values or receive notice of
reappraisal regarding the Land or the Building (including Landlord's
personalty), irrespective of whether Landlord contests same.
D. TENANT HEREBY WAIVES ALL ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE
PRACTICES - CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ. OF THE TEXAS BUSINESS
AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS.
AFTER CONSULTATION WITH AN ATTORNEY OF TENANT'S OWN SELECTION, TENANT
VOLUNTARILY ADOPTS THIS WAIVER.
E. Tenant is knowledgeable and experienced in commercial transactions and
does hereby acknowledge and agree that the provisions of this Lease for
determining charges and amounts payable by Tenant are commercially reasonable
and valid and constitute satisfactory methods for determining such charges and
amounts as required by Section 93.004 (assessment of charges) of the Texas
Property Code, as enacted by House ▇▇▇▇ 2186, 77th Legislature. TENANT FURTHER
VOLUNTARILY AND KNOWINGLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW) ALL RIGHTS AND BENEFITS OF TENANT UNDER SUCH SECTION, AS IT NOW EXISTS OR
AS IT MAY BE HEREAFTER AMENDED OR SUCCEEDED.
F. Tenant represents that it has dealt directly with and only with NAI
Partners Commercial, LLC, on behalf of Landlord, in connection with this Lease.
TENANT SHALL INDEMNIFY LANDLORD AGAINST ALL COSTS, EXPENSES, ATTORNEYS' FEES,
LIENS AND OTHER LIABILITY FOR COMMISSIONS OR OTHER COMPENSATION CLAIMED BY ANY
BROKER OR AGENT CLAIMING THE SAME BY, THROUGH OR UNDER TENANT.
IN WITNESS WHEREOF, this Lease is hereby executed as of the date first
above set forth.
LANDLORD:
▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED,
a Delaware corporation
By /s/ ▇. ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
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TENANT:
TELVENT USA, INC.,
a Texas corporation
By /s/ Toss ▇▇▇▇▇▇
-------------------------------------
Name: Toss ▇▇▇▇▇▇
Title: Treasurer
(Signature page to Lease dated October 14 [sic], 2003, covering 49,131 square
feet of Rentable Area on the first and third floors of the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇).
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