NET LEASE
STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC.
LANDLORD
AND
DOLLAR RENT A CAR SYSTEMS, INC.
TENANT
DATED: OCTOBER 1, 1998
ARTICLE 1 SUMMARY OF BASIC TERMS............................................1
1.1 The Premises...........................................................1
1.2 The Building...........................................................1
1.3 The Term...............................................................1
1.4 Commencement Date......................................................1
1.5 Expiration Date........................................................1
1.6 Lease Year.............................................................1
1.7 Base Rent..............................................................1
1.8 Description of Tenant's Use of the Premises............................1
1.9 Tenant's Address for Notices...........................................1
1.10 Landlord's Notice Address.............................................1
ARTICLE 2 DELIVERY AND TERM.................................................2
2.1 Term...................................................................2
2.2 Condition..............................................................2
ARTICLE 3 USE OF PREMISES...................................................2
3.1 Permitted Uses.........................................................2
3.2 Insurance Restrictions.................................................2
3.3 Improvements...........................................................2
3.4 Prohibitions...........................................................2
3.5 Compliance with Law....................................................2
3.6 Audit..................................................................3
3.7 Underground Tanks and/or Hazardous Substances..........................3
ARTICLE 4 RENT..............................................................4
4.1 Base Rent..............................................................4
4.2 Late Charges and Interest..............................................4
4.3 Excise Taxes...........................................................4
4.4 Obligations Are Rent...................................................4
ARTICLE 5 OPERATING COSTS...................................................5
5.1 Operating Costs........................................................5
5.2 Intent.................................................................5
ARTICLE 6 TAXES.............................................................5
ARTICLE 7 INSURANCE AND INDEMNITY...........................................5
7.1 Insurance Policies.....................................................5
7.2 Policy Requirements....................................................5
7.3 Evidence of Coverage...................................................6
7.4 Indemnity and Exculpation..............................................6
7.5 Landlord's Policies....................................................6
ARTICLE 8 DAMAGE OR DESTRUCTION.............................................7
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ARTICLE 9 CONDEMNATION......................................................7
9.1 Automatic Termination..................................................7
9.2 Optional Termination...................................................7
9.3 Award..................................................................8
ARTICLE 10 MAINTENANCE......................................................8
10.1 By Tenant.............................................................8
ARTICLE 11 UTILITIES........................................................8
ARTICLE 12 LANDLORD RIGHT OF ENTRY..........................................9
ARTICLE 13 SIGNS............................................................9
ARTICLE 14 TENANT ALTERATIONS...............................................9
14.1 Tenant Alterations....................................................9
14.2 Tenant Installations.................................................10
14.3 Mechanics Liens......................................................10
ARTICLE 15 ASSIGNMENT AND SUBLETTING.......................................10
15.1 Consent Required.....................................................10
15.2 Requests for Approval................................................10
15.3 Continued Responsibility.............................................11
15.4 Excess Proceeds......................................................11
15.5 No Waiver............................................................11
15.6 Transfer by Landlord.................................................11
ARTICLE 16 SUBORDINATION AND ATTORNMENT...................................11
16.1 Subordination........................................................11
16.2 Lender Protection....................................................11
ARTICLE 17 ESTOPPEL CERTIFICATES...........................................12
ARTICLE 18 QUIET ENJOYMENT.................................................12
ARTICLE 19 SURRENDER AND HOLDOVER..........................................12
19.1 Surrender............................................................12
19.2 Holdover.............................................................12
ARTICLE 20 BREACH, DEFAULT, AND REMEDIES...................................13
20.1 Default..............................................................13
20.2 Remedies.............................................................13
20.3 Subtenancies.........................................................14
ARTICLE 21 LANDLORD LIABILITY..............................................14
ARTICLE 22 NOTICES.........................................................14
ARTICLE 23 BROKERAGE.......................................................15
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ARTICLE 24 GENERAL.........................................................15
24.1 Severability.........................................................15
24.2 Financial Statements.................................................15
24.3 No Waiver............................................................15
24.4 Effect of Payment....................................................15
24.5 Lender Notice........................................................15
24.6 No Offer.............................................................16
24.7 Successors...........................................................16
24.8 Integration..........................................................16
24.9 Governing Law........................................................16
24.10 Deadlines Enforceable...............................................16
24.11 Counterparts........................................................16
24.12 Arbitration.........................................................16
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NET LEASE
STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC., ("Landlord"), hereby leases the
Premises described below, on the terms and conditions set forth in this Lease,
to DOLLAR RENT A CAR SYSTEMS, INC., an Oklahoma corporation ("Tenant").
ARTICLE 1 SUMMARY OF BASIC TERMS
1.1 The Premises: The real property described on the attached Exhibit A,
together with all the buildings and improvements now existing or hereafter
located thereon, with Landlord representing that it is, as of the
Commencement Date, the owner of fee title to the Premises.
1.2 The Building: The buildings located on the Premises.
1.3 The Term: Ten (10) years and nine (9) months, beginning on the Commencement
Date and ending on the Expiration Date.
1.4 Commencement Date: October 1, 1998
1.5 Expiration Date: June 30, 2009.
1.6 Lease Year: Each twelve month period beginning on October 1, 1998 and
ending on September 30 of each year; provided that the last Lease Year
shall be for a 21 month period beginning on October 1, 2008 and concluding
on the Expiration Date (June 30, 2009).
1.7 Base Rent: $125,000 for the First Lease Year payable in equal monthly
installments, in advance, commencing on the Commencement Date, with the
Base Rent to increase by 2.5% on the first day of each Lease Year and such
increased Base Rent shall continue to be paid in such monthly installments.
1.8 Description of Tenant's Use of the Premises: Car rental office and
business, automobile storage, washing and cleaning, with automobile
maintenance limited to light maintenance. No automobile refueling nor
storage of automobile fuels.
1.9 Tenant's Address for Notices:
Dollar Rent A Car Systems, Inc.
0000 X. 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Director of Properties & Concessions
1.10 Landlord's Notice Address:
Stratford American Car Rental Systems
0000 Xxxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000, Xxxx. 0
Xxxxxxx, XX 00000
ARTICLE 2 DELIVERY AND TERM
2.1 TERM. The Base Term of this Lease and the dates of Commencement and
Expiration of the Term are set forth in Sections 1.3, 1.4 and 1.5.
2.2 CONDITION. Landlord represents and warrants to Tenant that as of the
Commencement of this Lease, the Premises (including the Building) are, in all
material respects, in compliance with the applicable requirements of all laws,
rules and regulations, ordinances, permits, use permits, and orders, including,
but not limited to, any requirements of the Americans with Disabilities Act then
applicable to the Premises (including the Building). Excepting only those
conditions relating to the Premises (including the Building) and existing as of
the Commencement Date which are in violation of this Section 2.2 and/or Section
3.7 below (correction of which conditions shall be the responsibility of
Landlord), Landlord shall have no obligation to make any improvements or
alterations to the Premises (including the Building) whatsoever and Tenant
accepts the Premises (including the Building) in as AS IS condition, with all
faults.
ARTICLE 3 USE OF PREMISES
3.1 PERMITTED USES. Tenant shall continuously use and occupy the Premises for
the purposes set forth in Section 1.8 and subject to the limitations thereof and
for no other purpose whatsoever without Landlord's prior written consent.
3.2 INSURANCE RESTRICTIONS. Tenant shall not perform any act which would cause
the cancellation of any insurance policies related to the Premises.
3.3 IMPROVEMENTS. If due to the nature of Tenant's use of the Premises,
improvements or alterations are necessary to comply with any requirements
imposed by law (excluding any non-compliance with any applicable requirements of
law and governmental orders, rules, regulations and the like existing as of the
Commencement Date but including any requirements of the Americans with
Disabilities Act and the rules and regulations thereunder made applicable by any
alterations to the Premises by Tenant), Tenant shall pay the entire cost of the
improvements or alterations.
3.4 PROHIBITIONS. Tenant shall not cause or maintain any nuisance in or about
the Premises and shall keep the Premises free of debris, rodents, vermin and
anything of a dangerous, noxious or offensive nature or which would create a
fire hazard (through undue load on electrical circuits or otherwise) or undue
vibration, noise or heat. Tenant shall not cause the safe floor loading capacity
to be exceeded. Tenant shall not disturb or interfere with the quiet enjoyment
of neighboring properties.
3.5 COMPLIANCE WITH LAW. Except as expressly provided in Sections 2.2, 3.3 and
3.7, Xxxxxx agrees that in the operation, use and occupancy of the Premises
during the Term of this Lease and any extension or renewal thereof, Tenant will,
and will cause all persons claiming by, through or under Tenant, to strictly
comply with all laws, ordinances, and certificates of occupancy issued pursuant
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to any law or by any public officer and the orders, rules, regulations and
requirements of all federal, state and municipal governments and appropriate
departments, commissions, boards, and officers thereof which may be applicable
to the Premises or to the use or manner of use of the Premises. Tenant shall
defend, indemnify and hold Landlord harmless from all loss, damage, expense, and
liability arising from any failure by Tenant to comply with the foregoing.
3.6 AUDIT. At any time and from time to time, Landlord may retain an
environmental consultant or engineer to conduct an audit or environmental
assessment of the Premises and Tenant's compliance with applicable laws, rules
and regulations. Tenant shall extend its full cooperation with the audit or
investigation. If Tenant is found not to be substantially in compliance with
applicable law, all reasonable costs associated with the audit or assessment
shall be paid by Tenant to Landlord upon demand; otherwise all costs shall be
borne by Landlord. In addition, Tenant, at Xxxxxxxx's request from time to time,
shall complete such questionnaires and provide such information with respect to
Tenant's activities and operations on the Premises as Landlord shall reasonably
require.
3.7 UNDERGROUND TANKS AND/OR HAZARDOUS SUBSTANCES. Landlord represents and
warrants to Tenant that as of the Commencement Date, and except as disclosed in
the Phase I and Phase II Environmental Report, and other reports delivered to
Tenant prior to the Commencement Date (i) there are no storage tanks above or
below the Premises (ii) neither the Premises nor the Building forming a part
thereof contain any "Hazardous Substances" (as herein defined) other than those
that are reasonably necessary for use of the Premises immediately prior to the
Commencement Date which use is in compliance with applicable laws, rules and
regulations; and (iii) Landlord has not caused or permitted to occur, and shall
not permit to exist, any condition which may cause a discharge of any Hazardous
Substances at, upon or under the Premises, or any contiguous real estate in
violation of any applicable law, rule or regulation. Hazardous Substances, for
purposes of this Section, shall mean any asbestos, PCB transformers, leaking
under ground storage tanks or any hazardous wastes or substances (all of which
are hereinafter referred to as "Hazardous Substances") in violation of any
applicable law, rule or resolution as those terms are used in (A) the Resources
Conservation Recovery Act as amended by the Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. ss. 6901 eT Seq. (B) the Comprehensive Environmental
Response, Compensation anD Liability Act as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. ss.9601 eT Seq. (C) the Clean Water
Act, 33 U.S.C. ss.1251 eT Seq.; (D) the Toxic Substances and Control Act, 15
U.S.C. ss.2601 ET sEQ. (E) the Clean Air Act, 42 U.S.C. ss.7401 eT Seq.; or (F)
in any other federal, state or local law governinG Hazardous Substances or any
other environmental condition, as such laws may be amended form time to time.
The parties further agree:
(a) Notwithstanding anything contained in this Lease to the contrary,
Tenant shall not be responsible or liable for any Hazardous Substances,
pollutant, contaminant or petroleum products existing in, on or under the
Premises prior to Tenant's occupancy of same, and Landlord shall indemnity,
defend and save Tenant harmless from and against any and all liabilities, fines,
damages, suits, penalties, judgments and environmental cleanup, removal,
response, assessment, or remediation costs arising from contamination of the
Premises or the release of any Hazardous Substances, pollutant, contaminant or
petroleum products in, on, or under the Premises prior to Tenant's occupancy of
same. Landlord shall have the burden of proof, as between Tenant and Landlord,
as to whether any contamination of the Premises or any release of any Hazardous
Substances, pollutant, contaminant or petroleum products in, on or under the
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Premises arose during the Term, extension or renewal thereof and was caused by
Tenant.
(b) Tenant shall indemnify, defend and save Landlord harmless from and
against any and all liabilities, fines, damages, suits, penalties, judgments,
and environmental cleanup, removal, response, assessment, or remediation costs
arising from Tenant's contamination of the Premises or the release of any
Hazardous Substances, pollutant, contaminant or petroleum products in, on, or
under the Premises caused by Tenant or its representatives, employees, agents or
invitees during the Term, extension or renewal thereof and any during any
continued occupancy of the Premises by Tenant after the expiration or
termination of the Term.
(c) Notwithstanding any other provision of this Lease to the contrary,
it is agreed that Tenant shall not construct or use any aboveground or
underground fuel storage tanks on the Premises nor engage in any refueling of
automobiles on the Premises. Tenant shall not keep, store, or use with the
Premises any Hazardous substances except for those types, and in quantities that
are reasonably necessary for Tenant's business and customarily associated with
such usage which shall be kept in compliance with all laws rules and
regulations.
The indemnifications and hold harmless provisions contained in this Subsections
3.7 (a) and (b) above shall specifically survive the termination or expiration
of this Lease whether according to its terms or due to a default by the parties
hereunder.
ARTICLE 4 RENT
4.1 BASE RENT. Tenant shall pay to Landlord, in advance, on the first day of
each calendar month, beginning on the Commencement Date, Base Rent in the amount
set forth in Section 1.7.
4.2 LATE CHARGES AND INTEREST. Tenant shall pay to Landlord a late charge equal
to $100 for each day that Base Rent or any other amount payable under this Lease
is due and unpaid as liquidated damages to compensate Landlord for costs and
inconveniences of special handling and disruption of cash flow. The assessment
or collection of a late charge shall not constitute the waiver of a default and
shall not bar the exercise of other remedies for nonpayment. In addition to the
late charge, all amounts not paid within ten days after the date due shall bear
interest from the date due at the rate of 18% per annum.
4.3 EXCISE TAXES. Tenant shall pay to Landlord all sales, use, transaction
privilege, or other excise tax levied or imposed upon, or measured by, any
amount payable by Tenant under this Lease.
4.4 OBLIGATIONS ARE RENT. All amounts payable to Landlord under this Lease
constitute rent and shall be payable without notice, demand, deduction or offset
to such person and at such place as Landlord may from time to time designate by
written notice to Tenant.
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ARTICLE 5 OPERATING COSTS
5.1 OPERATING COSTS. Tenant shall pay all operating costs with respect to the
Premises.
5.2 INTENT. This Lease constitutes a "Triple Net Lease" and it is the intent of
the parties that, except as expressly provided elsewhere in this Lease, Tenant
pay all operating costs, taxes, insurance and the cost of all maintenance and
repairs to the Premises.
ARTICLE 6 TAXES
6.1 Tenant shall pay, at least 10 days before delinquent all general and special
real property taxes and assessments and all personal property assessed or levied
on the Premises.
6.2 Tenant shall pay before delinquent all taxes levied or assessed upon,
measured by, or arising from (a) the conduct of Tenant's business; (b) Tenant's
leasehold estate; or (c) Tenant's property.
ARTICLE 7 INSURANCE AND INDEMNITY
7.1 INSURANCE POLICIES. Tenant shall, at its expense, take out and keep in full
force and effect and provide Landlord with copies of the following insurance:
(a) All-risk property insurance, in an amount equal to the full
replacement cost of the Premises and, all equipment, fixtures and all property
owned by Tenant located on the Premises.
(b) Plate glass insurance coverage.
(c) Comprehensive liability insurance applying to the use and occupancy of
the Premises and the business operated by Tenant, including coverage for
"premises/operations", "products and completed operations", and "blanket
contractual" liabilities, written on an occurrence basis with limits not less
than $3,000,000 for bodily injury and property damage, naming Landlord, its
agents, affiliates and contract property manager as additional insureds.
(d) Workers' compensation insurance as required by applicable law or
regulation.
(e) 12 months rent loss insurance in favor of Landlord (which shall be
obtained by Landlord with all costs with respect thereto to be paid by Xxxxxx).
7.2 POLICY REQUIREMENTS. Tenant's insurance policies shall:
(a) where applicable, contain the mortgagee's standard mortgage clause
and, in any event, a waiver of any subrogation rights which Xxxxxx's insurers
may have against Landlord and against those for whom the Landlord is in law
responsible;
(b) be taken out with insurers licensed to do business in the State of
Arizona with a rating not less than B+ in Best's Insurance Reports.
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(c) be non-contributing and apply as primary and not as excess to, any
other insurance available to the Landlord;
(d) not be invalidated with respect to the interests of the Landlord and
the holder of any encumbrance on the Premises by reason of any breach or
violation by Tenant of any warranties, representations, declarations or
conditions contained in the policies;
(e) name Landlord as an additional insured; and
(f) contain an undertaking by the insurers to notify the Landlord, and the
holder of any encumbrance on the Premises designated by Landlord, in writing not
less than thirty days prior to any material change, cancellation or termination.
7.3 EVIDENCE OF COVERAGE. Tenant shall deliver to Landlord certificates of
insurance or, if required by Landlord, certified copies of each such insurance
policy: (a) as soon as practicable after the placing of the required insurance
and (b) periodically thereafter before expiration, renewal or replacement of the
policies then in force. No review or approval of any such insurance certificate
by Landlord shall derogate or diminish Landlord's rights or Tenant's
obligations. Tenant shall not take possession of the Premises without having
complied with the requirements of this Section.
7.4 INDEMNITY AND EXCULPATION. Tenant shall defend, indemnify and hold Landlord
harmless, regardless of any negligence imputed to Landlord as owner of the real
property involved in an injury, from and against any and all loss, claims,
actions, damages, liability and expense in connection with loss of life,
personal injury, damage to property or any other loss or injury whatsoever
arising directly or indirectly from or out of this Lease, or any occurrence in,
upon or at the Premises, or the occupancy or use by the Tenant of the Premises,
or any act or omission of Tenant, its agents, servants, employees or invitees.
Tenant shall not be required, however, to indemnify Landlord against a claim
arising from Landlord's gross negligence or willful misconduct. Landlord shall
not be liable and Tenant hereby waives all claims for any damage to any property
in or about the Premises or the Premises or injury or inconvenience to Tenant's
business, by or from any cause whatsoever (including without limiting the
foregoing, rain or water leakage of any character from the roof, windows, walls,
basement, pipes, plumbing works or appliances). Tenant acknowledges that it is
protecting itself against loss by maintaining appropriate insurance coverage.
7.5 LANDLORD'S POLICIES. No insurable interest is conferred upon Tenant under
any policies of insurance carried by Landlord, and Tenant shall not be entitled
to share or receive proceeds of any insurance policy carried by Landlord.
ARTICLE 8 DAMAGE OR DESTRUCTION
(a) If the Premises or any part thereof are damaged or destroyed to
such an extent that the same cannot be restored within twelve (12) months using
standard working measures and procedures, Tenant shall have the option to
terminate this Lease upon written notice to Landlord within thirty (30) days
from the date of such damage or destruction and all rental and other obligations
due and owing by Tenant to Landlord hereunder shall be prorated and adjusted to
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the date of such damage or destruction. If Tenant does not elect to terminate
this Lease, then Tenant shall, within sixty (60) days from the date of such
damage or destruction, proceed in good faith and with reasonable diligence to
repair and/or rebuild any and all such improvements to substantially the same
condition existing prior to such damage. During the restoration of the Premises,
if Tenant is unable to reasonably conduct its business in its customary manner,
then the rents provided herein shall xxxxx and the term hereof shall be tolled
during he period of such restoration.
(b) In the event Tenant is obligated or elects to repair or restore the
Premises as provided herein, all insurance proceeds from policies maintained by
Tenant shall be paid to Tenant for the sole purpose and as the sole source of
funds for rebuilding and repairing such Premises upon satisfaction of the terms,
conditions and provisions of Article 14 below and upon such reasonable
conditions as to disbursement as may be imposed by Landlord or any mortgagee. In
the event Tenant elects to terminate this Lease as provided above, then, all
proceeds (other than proceeds of insurance on the property of Tenant) shall be
payable to Landlord.
Except as specifically provided in this Article, there shall be no reduction of
rent and Landlord shall have no liability to Tenant by reason of any injury to
or interference with Xxxxxx's business or property arising from fire or other
casualty, howsoever caused, or from the making of any repairs resulting
therefrom in or to any portion of the Premises. Tenant waives any statutory or
other rights of termination by reason of fire or other casualty, it being the
intention of the parties to provide specifically and exclusively in this Article
for the rights of the parties with respect to termination of this Lease as a
result of a casualty.
ARTICLE 9 CONDEMNATION
9.1 AUTOMATIC TERMINATION. If during the Term all of the Premises is permanently
taken for any public or quasi-public use under any statute or by right of
eminent domain, or purchased under threat of such taking, this Lease shall
automatically terminate on the date on which the condemning authority takes
possession of the Premises.
9.2 OPTIONAL TERMINATION. If during the term any material portion of the
Premises is purchased by right of eminent domain or in lieu of condemnation, and
if substantial alteration or reconstruction of the Premises is reasonably
required as a result thereof which could not be completed within 12 months, or
if the business of Tenant could not be reasonably continued on the remaining
portion of the Premises after any such restoration, then Tenant shall have the
right to terminate this Lease by giving Landlord at least thirty days written
notice of such termination. If the Lease is not terminated by Tenant pursuant to
the foregoing, Landlord shall expend (out of the condemnation award or
otherwise) such funds as are required to alter or reconstruct the Premises for
Xxxxxx's use; provided that if the amount of the condemnation award is not
sufficient to do so, Landlord, at its option, may terminate the Lease.
9.3 AWARD. Landlord shall be entitled to receive and retain the entire award or
consideration for the affected lands and improvements (except as provided below)
and Tenant shall not have or advance any claims against Landlord for the value
of its property or its leasehold estate or the unexpired term of this Lease or
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for costs of removal or relocation or business interruption expense or any other
damages arising out of the taking or purchase. Nothing herein shall give
Landlord any interest in or preclude Tenant from seeking and recovering on its
own account from the condemning authority any award of compensation attributable
to the taking or purchase of Xxxxxx's chattels or trade fixtures or attributable
to Xxxxxx's relocation expenses. If any such award made or compensation paid to
Tenant specifically includes an award or amount for Landlord, Tenant shall
promptly account therefor to Landlord.
ARTICLE 10 MAINTENANCE.
10.1 BY TENANT. Except as provided to the contrary in Sections 2.2, 2.3 or 3.7
above and in the last sentence of this Section, Tenant shall, at its own cost
and expense, maintain the Premises and the improvements thereon, including all
doors, exterior walls, roofs, interior walls, structural and non-structural
elements of exterior walls, floors and roofs, ceiling tiles, sprinkler heads and
pipes, electrical wiring and fire control, lighting, and heating, air
conditioning, ventilation, electrical and plumbing systems serving the Premises,
in good condition and repair. Without limiting the foregoing, Tenant shall
perform all cleaning and janitorial services and all window cleaning, exterior
and interior painting, pest control, plate glass repair and replacement, and
bulb and ballast replacement. Tenant shall repair and maintain in good condition
any exterior signs of Tenant permitted by this Lease. All repairs and
replacements of heating, air conditioning, ventilation and water heating
equipment shall be performed by a qualified contractor approved by Landlord. If
Tenant does not comply with its obligations under this Article, Landlord may,
but need not, make such repairs and replacements or obtain such service
contracts, and Tenant shall pay Landlord the cost thereof upon demand. Except as
provided to the contrary in Section 2.2, 2.3 or 3.7 above, Tenant also shall
make such repairs to the Premises as are necessary to comply with the
requirements of any governmental or quasi-governmental authority having
jurisdiction. As of the Commencement Date, air conditioning, heating,
ventilating, plumbing and electrical equipment in the Premises shall, at
Landlord's cost, be in good working condition.
ARTICLE 11 UTILITIES
Tenant shall, at its cost, provide for its refuse removal services and Tenant
shall cause all refuse to be removed from the Premises and deposited into the
receptacles with sufficient frequency to prevent odors or undue accumulation.
All other utilities provided to the Premises shall be separately metered, shall
be arranged directly by Tenant with the utility supplier, including the posting
of any required deposits, and shall be paid directly to the utility supplier
when due.
ARTICLE 12 LANDLORD RIGHT OF ENTRY
Upon reasonable prior written notice to Tenant, Landlord shall have access to
the Premises for purposes of showing the Premises to current or prospective
lenders, to prospective purchasers of the Premises, and, during the twelve-month
period preceding the expiration of the Base Term, to prospective tenants.
Landlord shall at all times have access to the Premises for purposes of
inspection and performing Landlord's obligations and exercising its rights under
this Lease.
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ARTICLE 13 SIGNS
Tenant shall not place or permit to be placed any sign, picture, advertisement,
notice, lettering or decoration on any part of the outside of the Premises or
anywhere in the interior of the Premises which is visible from the outside of
the Premises except those in compliance with all applicable laws.
ARTICLE 14 TENANT ALTERATIONS
14.1 TENANT ALTERATIONS. Tenant may from time to time at its own expense make
changes, additions and improvements in the Premises, provided that any such
change, addition or improvement shall:
(a) comply with the requirements of any governmental or
quasi-governmental authority having jurisdiction (including, without limitation,
the Americans with Disabilities Act);
(b) not be commenced until Xxxxxxxx has received satisfactory evidence
that all required permits have been obtained;
(c) be made only with the prior written consent of Landlord if the cost
of the same exceeds $5,000, which consent shall not be unreasonably withheld;
(d) be constructed in good workmanlike manner and conform to complete
working drawings prepared by a licensed architect and submitted to and approved
by Landlord, which approval shall not be unreasonably withheld;
(e) be of a quality that equals or exceeds the then current standard
for the Premises and comply with all building, fire and safety codes;
(f) be carried out only by licensed contractors selected by Xxxxxx and
approved in writing by Landlord (which approval shall not be unreasonably
withheld), who shall deliver to Landlord before commencement of the work
performance and payment bonds as well as proof of workers' compensation and
general liability insurance coverage, including coverage for completed
operations and contractual liability, with Landlord and its agents and designees
named as additional insureds, in amounts, with companies, and in form reasonably
satisfactory to Landlord, which shall remain in effect during the entire period
in which the work shall be carried out; and
(g) upon completion, be shown on accurate "as built" reproducible
drawings in the form of reverse sepia transparencies or mylars delivered to
Landlord. Tenant also shall provide to Landlord upon completion any certificate
of completion, inspection or approval required by local law.
14.2 TENANT INSTALLATIONS. Tenant may install in the Premises its usual trade
fixtures and personal property in a proper manner, provided that no installation
shall interfere with or damage the mechanical or electrical systems or the
structure of the Building. Landlord may require that any work that may affect
structural elements or mechanical, electrical, heating, air conditioning,
plumbing or other systems be approved by Landlord (which approval shall not be
unreasonably withheld) and Tenant shall comply with the provisions of Section
14.1.
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14.3 MECHANICS LIENS. Tenant shall pay before delinquency all costs for work
done or caused to be done by Tenant in the Premises which could result in any
lien or encumbrance on Landlord's interest in the Premises or any part thereof,
shall keep the title to the Premises and every part thereof free and clear of
any lien or encumbrance in respect of such work, and shall indemnify and hold
harmless Landlord and Landlord's agents and employees against any claim, loss,
cost, demand or legal or other expense, whether in respect of any lien or
otherwise, arising out of the supply of material, services or labor for such
work. Tenant shall immediately notify Landlord of any such lien, claim of lien
or other action of which it has or reasonably should have knowledge and that
affects the title to the Premises or any part thereof, and shall cause the same
to be removed by bonding or otherwise within five days, failing which Landlord
may take such action as Landlord deems necessary to remove same and the entire
cost thereof shall be immediately due and payable by Tenant to Landlord. If
provided by applicable law, Tenant shall cause such postings to be made and
notices given as shall prevent any mechanics' lien for work done for Tenant from
attaching to the Premises.
ARTICLE 15 ASSIGNMENT AND SUBLETTING
15.1 CONSENT REQUIRED. Tenant shall not assign its interest under this Lease or
sublet all or any part of the Premises without Landlord's prior written consent,
which shall not be unreasonably withheld. Tenant shall not at any time pledge,
hypothecate, mortgage or otherwise encumber its interest under this Lease as
security for the payment of a debt or the performance of a contract. Tenant
shall not permit its interest under this Lease to be transferred by operation of
law. Any purported assignment or sublease made without Xxxxxxxx's consent shall
be void.
15.2 REQUESTS FOR APPROVAL. Landlord shall be under no obligation to decide
whether consent will be given or withheld unless Xxxxxx has first provided to
Landlord: (a) the name and legal composition of the proposed assignee or
subtenant and the nature of its business; (b) the use to which the proposed
assignee or subtenant intends to put the Premises; (c) the terms and conditions
of the proposed assignment or sublease and of any related transaction between
Tenant and the proposed assignee or subtenant; (d) information related to the
experience, integrity and financial resources of the proposed assignee or
subtenant; (e) such information as Landlord may reasonably request to
supplement, explain or provide details of the matters submitted by Tenant
pursuant to subparagraphs (a) through (d); and (f) reimbursement for all
reasonable costs incurred by Landlord, including attorneys' fees, in connection
with evaluating the request and preparing any related documentation.
15.3 CONTINUED RESPONSIBILITY. Tenant shall remain fully liable for performance
of this Lease, notwithstanding any assignment or sublease, notwithstanding
Landlord's consent to any assignment or subleasing, for the entire Lease Term.
15.4 EXCESS PROCEEDS. If consent to an assignment or sublease is given, Tenant
shall pay to Landlord, as additional rent, one half of all amounts received from
the assignee or subtenant in excess of the amounts otherwise payable by Tenant
to Landlord with respect to the space involved, measured on a per square foot
basis.
15.5 NO WAIVER No consent shall constitute consent to any further assignment or
subletting.
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15.6 TRANSFER BY LANDLORD. Upon a sale or other transfer of the Premises (or a
portion thereof containing the Premises) by Landlord, Xxxxxxxx's interest in
this Lease shall automatically be transferred to the transferee, the transferee
shall automatically assume all of Landlord's obligations under this Lease
accruing from and after the date of transfer, and the transferor shall be
released of all obligations under this Lease arising after the transfer, other
than liabilities under the indemnification and hold harmless of Landlord under
Section 3.7 (a) hereof. Tenant shall upon request attorn in writing to the
transferee.
ARTICLE 16 SUBORDINATION AND ATTORNMENT
16.1 SUBORDINATION. As a condition to the effectiveness of this Lease, Landlord,
Tenant and the holder of the mortgage lien on the Premises shall enter into a
subordination, nondisturbance and attornment agreement in a form reasonably
acceptable to such parties providing that this Lease shall be subject and
subordinate to such lien and that Tenant shall attorn to the transferee in any
foreclosure, sale, trustee sale or other similar proceeding provided that the
lienholder shall agree to honor the terms of this Lease and the Tenant's right
to possession hereunder so long as Xxxxxx is not in default hereunder. Upon any
refinancing, or other lien or encumbrance being in place on the Property, the
Tenant, Landlord and the provider of such financing shall also enter into such a
subordination, nondisturbance and attornment agreement.
16.2 LENDER PROTECTION. Upon a transfer in connection with foreclosure or
trustee's sale proceedings or in connection with a default under an encumbrance,
whether by deed to the holder of the encumbrance in lieu of foreclosure or
otherwise, Tenant, if requested, shall in writing attorn to the transferee, but
the transferee shall not be:
(a) subject to any offsets or defenses which Tenant might have against
Landlord; or
(b) bound by any prepayment by Tenant of more than one month's installment
of rent; or
(c) subject to any liability or obligation of Landlord except those
arising after the transfer.
ARTICLE 17 ESTOPPEL CERTIFICATES
Tenant shall at any time within ten days after written request from Landlord
execute, acknowledge and deliver to Landlord a statement in writing: (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance, if any; (b) confirming the
commencement and expiration dates of the term; (c) confirming the amount of the
security deposit held by Landlord; (d) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults if any are claimed; and (e) confirming such other
matters as to which Landlord may reasonably request confirmation. Any such
statement may be conclusively relied upon by a prospective purchaser or
encumbrancer of the Premises.
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ARTICLE 18 QUIET ENJOYMENT
If Tenant pays the rent and observes and performs the terms, covenants and
conditions contained in this Lease, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term without hinderance or interruption by Landlord,
or any other person lawfully claiming by, through or under Landlord unless
otherwise permitted by the terms of this Lease.
ARTICLE 19 SURRENDER AND HOLDOVER
19.1 SURRENDER. Upon the expiration or termination of this Lease or of Tenant's
right to possession, Xxxxxx shall surrender the Premises in a clean undamaged
condition, ordinary wear and tear (subject to Tenant's repair maintenance
obligations hereunder) excepted, and Tenant shall remove all of Tenant's
equipment, fixtures and property and repair all damage caused by the removal.
Tenant shall not remove permanent improvements that were provided by Landlord at
the commencement of this Lease and shall not remove permanent improvements later
installed by Tenant unless directed to do so by Landlord.
19.2 HOLDOVER. If Xxxxxx holds over without Xxxxxxxx's consent, Tenant shall, at
Landlord's election, be a tenant at will or a tenant from month-to-month. In
either case rent shall be payable monthly in advance at a rate equal to twice
the rate in effect immediately before the holdover began. A holdover
month-to-month tenancy may be terminated by either party as of the first day of
a calendar month upon at least ten days' prior notice. A holdover tenancy at
will is terminable at any time by either party without notice, regardless of
whether rent has been paid in advance. Upon a termination under this Section,
unearned rent shall be refunded following the surrender of possession provided
Xxxxxx is not otherwise in breach of this Lease.
ARTICLE 20 BREACH, DEFAULT, AND REMEDIES
20.1 DEFAULT. The following shall constitute "Events of Default":
(a) Tenant's failure to pay rent or any other amount due under this
Lease within five days after notice of nonpayment; or
(b) Xxxxxx's failure to execute, acknowledge and return a subordination
agreement under Article 16.1 or an estoppel certificate under Article 17 within
ten days after written request; or
(c) Tenant's failure to perform any other obligation under this Lease
within thirty days after notice of nonperformance; provided, however, that if
the breach is of such a nature that it cannot be cured within thirty days, no
Event of Default shall be deemed to have occurred by reason of the breach if
cure is commenced promptly and diligently pursued to completion within a period
not longer than ninety days; and provided further, that in the event of a breach
involving an imminent threat to health or safety, Landlord may in its notice of
breach reduce the period for cure to such shorter period as may be reasonable
under the circumstances.
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20.2 REMEDIES. Upon the occurrence of an Event of Default, Landlord, at any time
thereafter without further notice or demand may exercise any one or more of the
following remedies concurrently or in succession:
(a) Terminate Xxxxxx's right to possession of the Premises by legal
process or otherwise, with or without terminating this Lease, and retake
exclusive possession of the Premises.
(b) From time to time relet all or portions of the Premises, using
reasonable efforts to mitigate Landlord's damages. In connection with any
reletting, Landlord may relet for a period extending beyond the term of this
Lease and may make alterations or improvements to the Premises without releasing
Tenant of any liability. Upon a reletting of all or substantially all of the
Premises, Landlord shall be entitled to recover all of its then prospective
damages for the balance of the Lease Term measured by the difference between
amounts payable under this Lease and the anticipated net proceeds of reletting.
(c) From time to time recover accrued and unpaid rent and damages
arising from Xxxxxx's breach of the Lease, regardless of whether the Lease has
been terminated, together with applicable late charges and interest at the rate
of 18% per annum or the highest lawful rate, whichever is less.
(d) Enforce the statutory Landlord's lien on Tenant's property.
(e) Recover all costs, expenses and attorneys' fees incurred by
Landlord in connection with enforcing this Lease, recovering possession,
reletting the Premises or collecting amounts owed, including, without
limitation, costs of alterations, brokerage commissions, and other costs
incurred in connection with any reletting.
(f) Perform the obligation on Xxxxxx's behalf and recover from Tenant,
upon demand, the entire amount expended by Landlord plus 20% for special
handling, supervision, and overhead.
(g) Pursue other remedies available at law or in equity.
20.3 SUBTENANCIES. Upon a termination of Tenant's right to possession, whether
or not this Lease is terminated, subtenancies and other rights of persons
claiming under or through Tenant shall (a) be terminated or, at Landlord's
option (b) Tenant's interest in such subleases or other arrangements shall be
assigned to Landlord.
ARTICLE 21 LANDLORD LIABILITY
Notwithstanding anything to the contrary in this Lease, none of Landlord's
directors, officers, shareholders, employees, agents or constituent partners,
(collectively, "Landlord's Affiliates") shall be personally responsible or
liable for any representation, warranty, covenant, undertaking or agreement
contained in the Lease, and the sole right and remedy of the Tenant or any
subsequent sublessee or assignee shall be against the Landlord. Neither Tenant
nor any subsequent sublessor or assignee shall seek to obtain any judgment
imposing personal liability against Xxxxxxxx's Affiliates.
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ARTICLE 22 NOTICES
Any notice from one party to the other shall be in writing and shall be deemed
duly served: (a) if mailed by registered or certified mail addressed to Tenant
at the Premises and the address set forth in Section 1.9 or such other address
as Tenant may designate in a written notice given pursuant to this Section (b)
if mailed by registered or certified mail to Landlord at the address set forth
in Section 1.10 or such other address as Landlord may designate by written
notice given pursuant to this Section. Any notice to Tenant prior to Xxxxxx's
taking possession of the Premises, however, shall instead be sent to the address
set forth in Section 1.9. Any notice shall be deemed to have been given when
mailed, if mailed, and when delivered, if personally delivered.
ARTICLE 23 BROKERAGE
Each of Landlord and Tenant warrants and represents to the other that the
warranting party has not retained a broker or other person is entitled to claim
a commission, broker's fee or other compensation in connection with this Lease.
Each warranting party shall defend, indemnify and hold Landlord harmless from
all claims or liabilities arising from any breach of the foregoing
representation and warranty.
ARTICLE 24 GENERAL
24.1 SEVERABILITY. If any term, covenant or condition of this Lease, or the
application thereof, is to any extent held or rendered invalid, it shall be and
is hereby deemed to be independent of the remainder of the Lease and to be
severable and divisible therefrom, and its invalidity, unenforceability or
illegality shall not affect, impair or invalidate the remainder of the Lease or
any part thereof.
24.2 FINANCIAL STATEMENTS. Tenant hereby agrees to deliver annually to Landlord
and to any lender designated by Landlord financial statements of Tenant prepared
in accordance with generally accepted accounting principles, if the same are not
available through filings made with the Securities Exchange Commission.
24.3 NO WAIVER. The waiver by Landlord of any breach of any term, covenant or
condition contained in this Lease shall not be deemed to be a waiver of such
term, covenant or condition or of any subsequent breach of the same or of any
other term, covenant or condition contained in this Lease. The subsequent
acceptance of rent by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of rent. No term, covenant or condition of this Lease shall be deemed
to have been waived by the parties hereof unless such waiver is in writing by
waiving party.
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24.4 EFFECT OF PAYMENT. No payment by Tenant or receipt by the Landlord of a
lesser amount than the monthly payment of rent herein stipulated is deemed to be
other than on account of the earliest stipulated rent, nor is any endorsement or
statement on any check or any letter accompanying any check or payment of rent
deemed an acknowledgment of full payment or accord and satisfaction, and
Landlord may accept and cash any check or payment without prejudice to
Landlord's right to recover the balance of the rent due and pursue any other
remedy provided in this Lease.
24.5 LANDLORD DEFAULT, LENDER NOTICE. In the event of a default by Landlord,
Tenant shall give written notice of the default to Landlord and shall
simultaneously send a copy of the notice to the holder of any encumbrance, the
name and address of whom has previously been furnished in writing to Tenant. If
Landlord fails to cure the default within a reasonable time, Tenant may pursue
its remedies against Landlord, but Tenant may not exercise the remedy of a
termination of this Lease until Tenant shall have sent a second notice to that
effect to the holder of the encumbrance, with a copy to Landlord, and the holder
of the encumbrance then shall have not less than sixty additional days, to cause
the default to be remedied.
24.6 NO OFFER. The submission of this Lease for examination does not constitute
a reservation of an option to lease the Premises, and this Lease becomes
effective as a lease only upon its execution and delivery by Landlord and
Tenant.
24.7 SUCCESSORS. All rights and liabilities under this Lease extend to and bind
the successors and assigns of Landlord and permitted successors and assigns of
Tenant. No rights, however, shall inure to the benefit of any transferee of the
Tenant unless the transfer has been consented to by the Landlord in writing as
provided in Section 15.1. If there is more than one Tenant, they are all bound
jointly and severally by the terms, covenants and conditions of this Lease.
24.8 INTEGRATION. This Lease and the Exhibits hereto attached, set forth all the
covenants, promises, agreements, conditions and understandings between Landlord
and Tenant concerning the Premises and there are no other covenants, promises,
agreements, conditions or understandings, either oral or written, between them.
No alteration, amendment or addition to this Lease shall be binding upon
Landlord or Tenant unless in writing and signed by Xxxxxx and Landlord.
24.9 GOVERNING LAW. This Lease will be construed in accordance with and governed
by the laws of Arizona.
24.10 DEADLINES ENFORCEABLE. Time is of the essence of this Lease and of every
part hereof.
24.11 COUNTERPARTS. This Lease may be executed in counterparts, which together
shall constitute a single instrument.
24.12 ARBITRATION. The parties agree that all claims, disputes and disagreements
arising under this Lease shall be resolved by the arbitration procedures set
forth in this Section except that claims relating to Landlords' exercise of any
unlawful detainer rights pursuant to Arizona law or rights or remedies used by
Landlord to gain possession of the Premises or terminate Xxxxxx's right of
possession to the Premises shall be resolved by suit filed in the Superior Court
of Maricopa County, Arizona. Disputes subject to Arbitration shall be determined
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by binding commercial arbitration before an Arbitrator under the rules of the
American Arbitration Association. Such arbitration shall be initiated by the
parties, or either of them, within ten (10) days after either party send a
written notice (the "Arbitration Notice") of the demand to arbitrate to the
other party. The parties may agree on an arbitrator. If they are unable to agree
within twenty (20) days of the arbitration notice the American Arbitration
Association shall provide a list of three available judges and each party may
strike one. The remaining judge (or if there are two, the one selected by the
American Arbitration Association) shall serve as the arbitrator. The arbitration
hearing shall be set within sixty (60) days of the arbitration notice and the
arbitrator shall have a discretion to order pre-hearing exchange of information
by the parties.
TENANT: LANDLORD:
DOLLAR RENT A CAR SYSTEMS, INC. STRATFORD AMERICAN CAR RENTAL
SYSTEMS, INC.
By By
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Its Its
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Xxxx X. Xxxxxxxxxx, Vice President of
Properties and Concessions
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EXHIBIT A
THE PREMISES
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