Exhibit 10.29
THREE GATEWAY OFFICE LEASE
THIS LEASE is made this 16th day of October, 1998, by and between DMB
PROPERTY VENTURES LIMITED PARTNERSHIP, a Delaware limited partnership
("LANDLORD"), and MESA AIR GROUP, INC., a Nevada corporation ("TENANT").
Landlord hereby leases to Tenant and Tenant leases from Landlord for the
term and upon the conditions and agreements set forth in this Lease a portion
of the real property described on EXHIBIT "A", as illustrated by cross-hatching
or otherwise on the plan attached as EXHIBIT "B", consisting of 21,003 rentable
square feet of space (the "PREMISES") known as Suite 700 in Three Gateway (the
"BUILDING") on the 7th floor. The address of the Building is 000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
The rentable square footage of the Premises has been measured in
accordance with the most recent standards established by the Building Owners
and Managers Association (BOMA) for the measurement of rentable square footage
of office space.
1. TERM AND POSSESSION
(a) Except as otherwise expressly provided in this Lease, the term of
this Lease, and Tenant's obligation to pay rent, shall be for a period of one
hundred twenty (120) months (the "LEASE TERM"), commencing on the Commencement
Date. For purposes of this Lease, the COMMENCEMENT DATE shall be the earlier of
(i) sixty (60) days after the issuance of a City of Phoenix building permit,
provided Landlord's construction obligations under this Lease are substantially
completed, or (ii) the date upon which Tenant begins its business operation in
the Premises. Upon request of either party after the term has commenced,
Landlord and Tenant shall jointly execute a memorandum confirming the
Commencement Date. The Anticipated Commencement Date is November 1, 1998.
Notwithstanding anything to the contrary contained herein, Landlord shall allow
Tenant access to the Premises at least fourteen (14) days prior to the
Commencement Date ("Early Access") in order to install Tenant's equipment,
furnishings and trade fixtures, it being acknowledged that any occupancy of the
Premises for such purposes shall not trigger the Commencement Date or the
payment of rent. Tenant shall not be entitled to Early Access unless Tenant has
complied with the Early Access Indemnity Agreement, the form of which is
attached hereto as Exhibit "E".
(b) Upon the termination or expiration of this Lease or upon the
termination of Tenant's right of possession, whether by lapse of time or
otherwise, Tenant shall at once surrender possession of the Premises to
Landlord and remove all of Tenant's property as provided in Article 10.
(c) Tenant shall have no right to hold over after the expiration of the
term of this Lease without Landlord's consent. If, with Landlord's consent,
Tenant holds over after the expiration of this Lease, Tenant shall become a
tenant from month to month only, upon all of the terms of this Lease except
that the amount of the Base Rent shall be increased to an amount equal to 125%
of the Base Rental Rate in effect immediately prior to the expiration.
(d) OPTION TO EXPAND
Provided no Event of Default exists under this Lease after any
applicable cure period has expired, Tenant shall have a single option
("EXPANSION OPTION") to expand the Premises into any available additional space
in the Building, except any space that is subject to renewal by a current
tenant, or any space that is subject to options, rights of first refusal or
offer, or similar rights in effect at the time of Tenant's notice to Landlord,
for a term coterminous with this Lease, on the terms set forth in this Article
1(d) and otherwise set forth in this Lease, except that the Tenant Improvement
Allowance (as herein defined) shall be prorated based on the number of months
remaining in the Lease Term. The Expansion Option may be exercised with one
hundred twenty (120) days prior written notice to Landlord. Tenant's obligation
to pay rent on the expansion space shall commence on the earlier of (i) the
date upon which an architect certifies to Tenant that Landlord's construction
obligations under this Lease with respect to such expansion space are
substantially complete or (ii) the date upon which Tenant begins its business
operation in the expansion space. Tenant acknowledges that Landlord will
require a minimum of one hundred twenty (120) days after lease documents are
executed to substantially complete the tenant improvements in the expansion
space.
(e) RIGHT OF FIRST OFFER
Provided no Event of Default exists under this Lease after any
applicable cure period has expired, Tenant shall have a right of first offer to
lease any contiguous available space in the Building during the initial Lease
Term. If Landlord desires to offer for lease any such contiguous available
space, Landlord shall so notify Tenant in writing, which notice (the "FIRST
OFFER NOTICE") shall also include the
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new Base Rent amount for such space (calculated in accordance with this Article
1(e)). Tenant shall have five (5) business days following receipt of the First
Offer Notice to notify Landlord of its intention to lease such space, which
notice of intent from Tenant (the "NOTICE OF INTENT") shall be irrevocable. If
Tenant gives such Notice of Intent, the terms of such lease with respect to the
expansion space shall be the same terms and conditions as this Lease (including
without limitation the same initial Lease Term expiration date and Extension
Term), except that the Base Rent for such space shall be equal to the average
prevailing Base Rent per rentable square foot in the Building. Notwithstanding
anything to the contrary herein, if there is less than five (5) years remaining
in the initial Lease Term, then the Tenant Improvement Allowance for such
contiguous space shall be prorated based on the number of months remaining in
the initial Lease Term. If Tenant fails to give the Notice of Intent within five
(5) business days following receipt of Landlord's First Offer Notice, then the
right set forth in this Article 1(f) shall automatically terminate and Landlord
shall be free to market such space to potential tenants, with no further
obligation to re-offer such space to Tenant.
(f) RIGHT OF FIRST REFUSAL.
Provided no Event of Default exists under this Lease after any
applicable cure period has expired, Tenant shall have a continuing right of
first refusal (the "RIGHT OF REFUSAL") to lease any space on the 6th or the 8th
floors of the Building which is available during the Lease Term (a "RIGHT OF
REFUSAL SPACE"). Landlord shall offer any Right of Refusal Space to Tenant on
the same terms and conditions as those proposed to and accepted by an interested
third party (inclusive of a tenant improvement allowance, base year and rental
rate) pro rated to reflect a coterminous lease. Tenant shall have two (2)
business days after receipt of Landlord's written notice in which to exercise
the Right of Refusal. If Tenant has not responded to Landlord within such 2-day
period, then Tenant shall be deemed to have elected not to exercise the Right of
Refusal. If Tenant elects not to exercise the Right of Refusal, then Landlord
shall have one hundred eighty (180) days during which to execute a lease with
any third party for the Right of Refusal Space at materially the same terms
offered to Tenant without again offering such the Right of Refusal Space to
Tenant. Notwithstanding anything to the contrary herein, if Tenant exercises its
Right of First Refusal prior to June 30, 1999, the terms shall be on the same
terms and conditions as set forth in this Lease.
The parties acknowledge and agree that if Tenant exercises any of the
options set forth above, this Lease shall be amended, as of the date of the
exercise of option to reflect the exercise of such option. Notwithstanding
anything set forth herein to the contrary, if Tenant exercises the Right of
First Refusal, Right of First Offer or Option to Expand during months 85 to 120
of the Lease Term, then Tenant also must exercise its Option to Extend by the
Option Exercise Date as set forth in Article 1(g) hereof.
(g) OPTION TO EXTEND.
Provided no Event of Default exists under this Lease after any
applicable cure period has expired, Tenant shall have the option to extend the
Lease Term for two (2) additional terms of sixty (60) months each (each such
term to be referred to herein as an "EXTENSION TERM"). Tenant shall exercise
each option by giving Landlord notice (the "OPTION EXERCISE NOTICE") of exercise
no earlier than three hundred sixty-five (365) days and no later than one
hundred eighty (180) days prior to the expiration date of the Initial Lease Term
or the then-expiring Extension Term, as applicable (the "OPTION EXERCISE DATE").
If Tenant elects to extend the Initial Lease Term or any Extension Term of this
Lease, such Extension Term shall be upon and subject to all of the terms,
covenants and conditions of this Lease, except:
The Base Rent per rentable square foot during each Extension Term
shall be the greater of (a) the Base Rent per rentable square foot in effect
immediately prior to the expiration of each Extension Term or (b) a rate equal
to ninety-five percent (95%) of the average prevailing Base Rent per rentable
square foot in the Building (on leases with a five (5) year term) for all new
leases executed during the six (6) month period immediately preceding the Option
Exercise Notice ("COMPARABLE LEASES"). If there were no leases executed in the
Building during such six (6) month period, then Comparable Leases in the twelve
(12) months prior to the date of the Option Exercise Notice will be used to
determine the average prevailing Base Rent per rentable square foot in the
Building. The average prevailing Base Rent shall be reduced by concessions then
being offered or granted by Landlord to tenants in the Building, including free
or deferred rents and moving allowances, and tenant improvement allowances for
renewing Tenants only. Upon request by Tenant, not less than thirty (30) days
prior to the Option Exercise Date, prior to the expiration of the Lease Term,
Landlord shall give Tenant notice of the average prevailing Base Rent per
rentable square foot. If Tenant fails to exercise its option to extend hereunder
by the Option Exercise Date, then the option set forth in this Article 1(g)
shall automatically terminate and Landlord shall be free to market the Premises
to potential tenants.
Refurbishment Allowance. Landlord will provide a refurbishment
allowance of $3.00 per usable square foot at the beginning of each Extension
Term.
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(h) OPTION TO TERMINATE.
Notwithstanding anything to the contrary in this Lease, Tenant shall
have the option to terminate this Lease, effective as of the end of the sixtieth
(60th) month of the Lease Term, on the terms set forth in this Article 1(h). To
exercise such option, Tenant shall give notice to Landlord of such termination
no later than the end of the forty-eighth (48th) month of the Lease Term, which
notice shall be irrevocable. If such notice is given, Tenant shall pay to
Landlord no later than thirty (30) days prior to the termination date, as
consideration for exercise of this termination right, an amount equal to the
unamortized amount of tenant improvement costs and that portion of the leasing
commissions attributable to the second five (5) year period of the Lease Term,
plus at a return of 12% per annum on such amounts. If Tenant fails to give
timely notice to Landlord of such termination in accordance with this Article
1(h), Tenant shall be conclusively deemed to have forever waived such right to
terminate this Lease.
2. RENT
(a) Base Rent. Tenant shall pay to Landlord during the term of this Lease
at the office of Landlord or at such other place as Landlord may designate,
without notice, demand, deduction or set-off, in equal monthly installments in
advance on the first day of each calendar month, Base Annual Rent in the amount
of:
Years 1 - 3 $23.00 per rentable square foot per year $483,069.00 annually;
$40,255.75 monthly
Years 4 - 7 $25.00 per rentable square foot per year $525,075.00 annually;
$43,756.25 monthly
Years 8 - 10 $27.00 per rentable square foot per year $567,081.00 annually;
$47,256.75 monthly
In the event the Commencement Date does not occur on the first day of a
calendar month, Tenant shall pay rent on the Commencement Date for the
fractional month on a pro rata basis.
(b) Nature of Payments. All sums required to be paid by Tenant under this
Lease, whether or not so designated, are rent.
(c) Late Charges and Interest. Any amount due from Tenant to Landlord
which is not paid when due shall bear interest at three percent (3%) in excess
of the prime rate as established from time to time by Bank One or its successor
in interest (the "Default Rate") from the due date until paid, but the payment
of such interest shall not excuse or cure any default by Tenant under this
Lease. In addition, any rent or other payment not paid within ten (10) days of
its due date shall be subject to five percent (5%) late charge representing the
additional costs and burdens of special handling. Notwithstanding anything to
the contrary contained herein, if payment of any monetary obligation payable
hereunder is received late more than twice in any twelve (12) month period, then
Tenant shall have ten (10) days after notice of non-payment is received to cure
such late payment before the late fee is assessed.
3. SECURITY DEPOSIT AND GUARANTIES
Concurrently with the execution of this Lease, Tenant shall guaranty their
performance by posting a Letter of Credit in the form of Exhibit "F", in the
amount of $400,000. The Letter of Credit shall be released at the end of the
second (2nd) year of the Lease Term, provided that no Event of Default exists
after any applicable cure period has expired, and no Event of Default has ever
existed after any applicable cure period has expired under any provision of this
Lease.
4. USE
(a) Tenant shall not use or occupy the Premises for any purpose other than
general office purposes without Landlord's prior written consent. Tenant shall
maintain, at all times, an average density no greater than one (1) person for
each two hundred (200) rentable square feet of the Premises.
(b) Tenant shall:
(i) Not use or permit upon the Premises anything that would
invalidate any policies of insurance now or hereafter carried on the Premises or
that will increase the rate of insurance on the Premises or the Building;
(ii) Pay all additional insurance premiums which may be caused by any
use which Tenant shall make of the Premises other than the permitted use
described in 4(a) above;
(iii) Not in any manner deface or injure the Premises other than
ordinary wear and tear
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and damage caused by a casualty or overload any floor of the Premises;
(iv) Not do anything or permit anything to be done upon the
Premises in any way creating a nuisance, or unreasonably disturbing any other
lessee in the Building or injuring the reputation of the Building, including,
without limitation, the playing of music audible outside the Premises and the
placement of signs in or displayed through any window or door;
(v) Intentionally omitted;
(vi) Not use the Premises for lodging or sleeping purposes;
(vii) Not commit or suffer to be committed any waste upon the
Premises;
(viii) Not violate any recorded restriction or covenant affecting the
Building, nor use the Premises for any purpose which would be in violation of
any exclusive rights or use granted to other tenants in the Building. Landlord
shall not grant exclusive rights which would prohibit Tenant from using the
Premises for the purposes stated in Article 4(a) above.
(c) Tenant, at Tenant's expense, shall comply with all present and future
federal, state and local laws, ordinances, orders, rules and regulations
(collectively, "LAWS"), and shall procure all permits, certificates, licenses
and other authorizations required by applicable Law relating to Tenant's
business or Tenant's use or occupancy of the Premises or Tenant's activities on
the Premises. Tenant shall make all reports and filings required by applicable
Laws. Tenant shall defend, indemnify and hold harmless Landlord and Landlord's
present and future officers, directors, employees, partners and agents from and
against all claims, demands, liabilities, fines, penalties, losses, costs and
expenses, including but not limited to costs of compliance, remedial costs, and
reasonable attorneys' fees, arising out of or relating to any failure to Tenant
to comply with applicable Laws. Without limiting the foregoing, Tenant shall
comply with all applicable Laws relating to environmental matters, and shall
defend, indemnify and hold harmless Landlord and Landlord's present and future
officers, directors, employees, partners and agents from and against all claims,
demands, liabilities, fines, penalties, losses, costs and expenses, including
but not limited to costs of compliance, remedial costs, clean-up costs and
reasonable attorneys' fees, arising from or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling, or the emission, discharge, release or threatened release into the
environment, of any pollutant, contaminant or hazardous or toxic material,
substance or matter from, on or at the Premises or the Building as a result of
any act or omission on the part of Tenant. Tenant's indemnification obligations
shall survive the expiration or termination of this Lease.
Landlord, at Landlord's expense, shall comply with all present and future
federal, state and local laws, ordinances, orders, rules and regulations
(collectively, "LAWS") applicable to this Lease, and shall procure all permits,
certificates, licenses an other authorizations required by applicable Laws
relating to Landlord's business. Landlord shall make all reports and filings
required by applicable all Laws. Landlord shall defend, indemnify and hold
harmless Tenant and Tenant's present and future officers, directors, employees,
partners and agents for, from and against all claims, demands, liabilities,
fines, penalties, losses, costs and expenses, including but not limited to costs
of compliance, remedial costs, and reasonable attorneys' fees, arising out of or
relating to any failure of Landlord to comply with applicable Laws. Without
limiting the foregoing, Landlord shall comply with all Laws relating to
Hazardous Materials and shall defend, indemnify and hold harmless Tenant and
Tenant's present and future officers, directors, employees, partners and agents
for, from and against all claims, demands, liabilities, fines, penalties,
losses, costs and expenses, including but not limited to costs of compliance,
remedial costs, clean-up costs and reasonable attorneys' fees, arising from or
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling, or the emission, discharge, release or
threatened release into the environment, of any Hazardous Materials from, on or
at the Premises or the Building as a result of any act or omission on the part
of Landlord. Landlord's indemnification obligations shall survive the expiration
or termination of this Lease.
5. TAXES
(a) Tenant shall pay, prior to delinquency, all taxes assessed against or
levied upon Tenant's fixtures, furnishings, equipment and other personal
property located in or upon the Premises. Tenant shall cause the fixtures,
furnishings, equipment and other personal property to be assessed and billed
separately from the real property of which the Premises form a part. In the
event any or all of Tenant's fixtures, furnishings, equipment and other
personal property shall be assessed and taxed with the real property, Tenant
shall pay to Landlord Tenant's share of the taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of the taxes applicable to Tenant's personal
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property.
(b) Tenant shall, simultaneously with the payment of any sums required to
be paid under this Lease as rent, additional rent or otherwise, reimburse
Landlord for any sales, use, rental, transaction privilege or other excise tax
imposed or levied on, or measured by, the amount paid.
6. PARKING AND COMMON USE AREAS
All parking areas, parking structures, access roads, driveways, pedestrian
sidewalks and ramps, landscaped areas, drainage facilities, exterior lighting,
signs, courtyards, corridors, elevators (if any), entryways, public restrooms,
and other areas and improvements provided by Landlord for the general use in
common of tenants, their officers, agents, employees, customers and other
invitees (all of which are referred to as "COMMON FACILITIES") shall at all
times be subject to the exclusive control and management of Landlord, and
Landlord shall have the right from time to time to modify, enlarge or eliminate
common facilities and to establish, modify and enforce reasonable rules and
regulations with respect thereto. Without limiting the foregoing, Landlord may
designate separate or combined parking areas for visitors, tenants and
employees.
Landlord agrees at all time during the Lease Term to provide the following
parking spaces to Tenant at their associated monthly costs:
thirteen (13) covered reserved spaces in the parking structure adjacent to
the Building free of charge for the Lease Term,
sixty-four (64) covered unreserved spaces free of charge in years 1-3 of the
Lease Term, and at $30.00 per space per month in years 4-10
of the Lease Term, and
twenty-nine (29) uncovered unreserved spaces free of charge for the Lease
Term.
Landlord shall determine the location of said spaces and may re-assign said
spaces from time to time, as Landlord deems necessary.
If tenant exercises its option(s) to expand hereunder, Landlord shall
provide parking for any such expansion space at the following ratios and
associated monthly rates:
covered reserved .51 spaces per 1,000 usable square feet at $40.00 per
space per month
covered unreserved 2.54 spaces per 1,000 usable square feet at $30.00 per
space per month
uncovered unreserved .81 spaces per 1,000 usable square feet at $20.00 per
space per month
7. OPERATING COSTS, REAL PROPERTY TAXES AND UTILITIES
(a) Tenant shall pay Tenant's pro rata share of all of the Building's
operating cost, but only to the extent the Building's operating cost exceeds
the actual operating costs incurred in the calendar year 1998 (the "EXPENSE
STOP"). The Building's operating cost consists of those costs and expenses
directly associated with managing, operating, maintaining and repairing the
office building containing the Premises and the associated parking facilities,
grounds and common facilities, including all electrical, heating, ventilating,
air conditioning, plumbing and other building systems; exterior and interior
water features; utilities; fire and extended coverage insurance; window
cleaning; janitorial services; energy management costs; real property taxes and
general and special assessments; assessments and other amounts legally payable
to the property owner's association created under the restrictive covenants to
which the Building is subject; wages, salaries and employee benefits of
persons performing services in connection with the Building; parking lot and
parking structure sweeping, sealing, patching, restriping, repair and
maintenance; property management fees not to exceed five percent (5%) of gross
revenues; public liability and property damage insurance; supplies, materials,
tools, parts, and equipment; equipment rental charges; bookkeeping, accounting,
legal and other professional charges and expenses; fees for permits and
licenses; administrative expenses; taxes other than real property taxes;
service and maintenance contracts; signage; and landscaping.
Notwithstanding the foregoing, the Building's operating costs shall not include
the following:
(i) Any costs or expenses for which Landlord is reimbursed or indemnified
(whether by an insurer, condemnor, tenant or otherwise);
(ii) Overhead and administrative costs of Landlord not directly incurred in
the operation and maintenance of the Building;
(iii) Depreciation or amortization of the Building or its contents or
components;
(iv) Capital expenditures, except those incurred for the reduction of
operating costs;
(v) Expenses for the preparation of space or other work which Landlord
performs for any tenant or prospective tenant of the Building;
(vi) Expenses for repairs or other work which is caused by fire, windstorm,
casualty or any other insurable occurrence, except costs subject to
Landlord's insurance deductible;
(vii) Expenses incurred in leasing or obtaining new tenants or retaining
existing tenants, including leasing commissions, legal expenses,
advertising or promotion;
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(viii) Legal expenses incurred in enforcing the terms of any lease;
(ix) Interest, amortization or other costs, including legal fees,
associated with any mortgage, loan or refinancing of the Building or
any common areas;
(x) Expenses incurred for any necessary replacement of any item to the
extent that it is covered under warranty;
(xi) The cost of any item or service which Tenant separately reimburses
Landlord or pays to third parties, or that Landlord provides
selectively to one or more tenants of the Building, other than Tenant,
whether or not Landlord is reimbursed by such other tenant(s). This
category shall include the actual cost of any special electrical,
heating, ventilation or air conditioning required by any tenant that
exceeds normal building standards or is required during times other
than the business hours stated in this Lease;
(xii) Accounting and legal fees relating to the ownership, construction,
leasing, sale or any litigation relating to the Building, or any
common areas;
(xiii) Any interest or penalty incurred due to the late payment of any
operating costs;
(xiv) The cost of correcting defects in the construction of the Building or
any common areas; provided, however, that repairs resulting from
ordinary wear and tear shall not be deemed to be defects;
(xv) The initial cost of tools and small equipment used in the operation
and maintenance of the Building, and any common areas which exceeds
the cost of $1,000 per year in the aggregate;
(xvi) The initial cost or the replacement cost of any permanent landscaping
or the regular landscaping maintenance for any property other than the
land upon which the Building is located, unless associated with fees
or charges arising from or in connection with any governing
association or the vested owners for the Building;
(xvii) The cost of correcting any applicable building or fire code
violation(s) or any other applicable law relating to the Building, or
any common areas, or the cost of any penalty or fine incurred for
noncompliance with the same;
(xviii) Any costs incurred to test, survey, cleanup, contain, xxxxx or remove
any environmental or hazardous waste or materials, including asbestos
containing materials from the Building or any common areas or to
remedy any breach or violation of any environmental laws;
(xix) Any personal property taxes of the Landlord for equipment or items not
used directly in the operation or maintenance of the Building, nor
connected therewith;
(xx) All expenditures pertaining to administration of the Building or any
common areas including payroll and payroll-related expenses associated
with administrative and clerical personnel; general office
expenditures; other administrative expenditures (including
expenditures for travel, entertainment, dues, subscriptions,
donations, data processing, errors and omissions insurance, automobile
allowances, political donations and professional fees of any kind)
unless specifically enumerated as the Building's operating costs;
(xxi) Rentals and other related expenses, if any, incurred in leasing
capital items;
(xxii) Any costs or expenses for sculpture, paintings, or other works of art,
including, costs incurred with respect to the purchase, ownership or
leasing of such works of art;
(xxiii) Contributions to operating costs reserves;
(xxiv) The cost of overtime or other expense to Landlord in performing work
expressly provided in this Lease to be borne at Landlord's expense;
(xxv) All expenses directly resulting from the negligence or willful
misconduct of the Landlord, its agents, servants or other employees;
(xxvi) All bad debt loss, rent loss, or reserve for bad debt or rent loss;
(xxvii) Any amount paid to an entity related to Landlord which exceeds the
amount that would be paid for similar goods or services on an
arms-length basis between unrelated parties;
(xxviii) Salaries of employees above the grade of building superintendent,
building manager or property manager;
(xxix) The portion of employee expenses which reflects that portion of such
employee's time which is not spent directly and solely in the
operation of the property;
(xxx) Business interruption insurance and rental value insurance;
(xxxi) The operating expenses incurred by Landlord relative to retail stores,
hotels and any specialty service in the Building or on the property,
except to the extent that such uses share in the cost of operating
expenses of the Building or property; and
(xxxii) Property management fees exceeding five (5%) of gross revenues,
provided that the Expense Stop shall include property management fees
calculated at the same rate as the year for which the tenant is being
assessed.
On the first day of each month Tenant shall pay a monthly advance
charge on account of Tenant's pro rata share of the Building's operating cost
in excess of the Expense Stop. The amount of the monthly charge shall be
established by Landlord and may be adjusted from time to time by Landlord to
reflect Landlord's estimate of current and anticipated cost. Within 120 days
after the end of each fiscal year as established for the Building by Landlord,
Landlord shall provide to Tenant a reasonably detailed summary of the actual
operating costs showing Tenant's actual share and the amount by which Tenant
has overpaid or
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underpaid. Any overpayment shall be credited to Tenant's account. Any deficiency
shall be payable within ten (10) days after receipt of the statement. In the
alternative, Landlord may, at its option during all or part of the Lease Term,
xxxx Tenant for its pro rata share of operating cost in excess of the Expense
Stop, in arrears, based on actual costs as they are incurred, in which case
Tenant shall pay the invoice within ten (10) days after receipt.
(b) Tenant's Right to Audit. Tenant shall have the right, at its own cost
and expense, to audit and/or inspect Landlord's records at the location of
Landlord's financial records, not more that once in any Lease year, with respect
to Operating Costs, Real Property Taxes and Utilities payable by Tenant under
this Lease for any Lease year. Tenant shall give Landlord not less that thirty
(30) days written notice of its intention to conduct any such audit. If such
audit discloses that the amount paid by Tenant as operating costs for the Lease
years under consideration has been overstated by more than three percent (3%),
then, in addition to rebating to Tenant the overcharge, Landlord shall also
reimburse Tenant for the reasonable costs incurred by Tenant in conducting the
audit and/or inspection.
(c) Tenant's pro rata share of the Building's operating cost shall be that
proportion that the rentable area of the Premises bears to the total rentable
area of all rentable area in the Building. The operating cost for the fiscal
year in which this Lease commences or terminates shall be apportioned so that
Tenant shall not be responsible for costs that relate to periods prior to or
subsequent to the term of this Lease except any period of holding over. Rentable
area shall be measured according to BOMA standards as approved July 31, 1980.
(d) Tenant shall be solely responsible for the cost of any heating,
ventilation or air conditioning provided to the Premises at Tenant's request
outside of normal business hours, measured at an hourly rate reasonably
established by Landlord and billed to Tenant from time to time by Landlord.
Normal business hours for the Building are from 7:00 a.m. to 6:00 p.m. on Monday
through Friday, and 8:00 a.m. to 12:00 p.m. on Saturday, excluding holidays.
"Excess Consumption" means the consumption of electrical current, heat or
cooling in excess of that which would be provided to the Premises other than
during the foregoing business hours. If Tenant shall require water, heating,
cooling, air or electric current which will result in Excess Consumption, Tenant
shall first procure the consent of Landlord to the use thereof, and Landlord may
cause separate meters to be installed to measure Excess Consumption or establish
another basis for determining the amount of Excess Consumption. Tenant covenants
and agrees to pay for the cost of the Excess Consumption based on Landlord's
actual cost, plus any additional expense incurred in installing meters or
keeping account of the Excess Consumption, at the same time as payment of the
Base Rent is made. Tenant further agrees to pay Landlord the cost, if any, to
upgrade existing mechanical, electrical, plumbing and air facilities, if
required to provide Excess Consumption, upon receipt of a statement therefor.
Excess Consumption costs will not be an Operating Cost for purposes of Article
7.
8. CONSTRUCTION, DELIVERY, AND CONDITION
(a) If delivery of possession of the Premises to Tenant is delayed beyond
the anticipated Commencement Date because of a delay in the completion of
construction of the Premises by Landlord or because of a failure of an existing
tenant to surrender possession of the Premises to Landlord, then this Lease
shall remain in full force and effect, Landlord shall not be liable to Tenant
for any damage occasioned by delay, and the Commencement Date shall be changed
to the date actual delivery of possession to Tenant is effected. Notwithstanding
the foregoing, if delivery of possession is delayed more than sixty (60) days
after the anticipated Commencement Date as set forth in Article 1(a), Tenant, by
written notice to Landlord, may terminate this Lease prior to taking possession,
and upon such termination any security deposit shall be refunded and both
Landlord and Tenant shall be released of all further obligation.
(b) Landlord shall construct improvements in the Premises in accordance
with the plans and specifications attached as or identified in EXHIBIT "C". If
no EXHIBIT "C" is attached, Tenant accepts the Premises AS IS. Landlord has no
obligation to design or construct improvements or to make alterations in the
Premises except as specifically set forth in EXHIBIT "C". Tenant shall pay to
Landlord upon the Delivery Date the amount by which the cost of the work
performed by Landlord exceeds $10.00 per usable square foot (the "TENANT
IMPROVEMENT ALLOWANCE"), and shall pay, in addition, for any increases in costs
resulting from changes in the approved plans and specifications made at Tenant's
request, provided Tenant has approved in advance of such cost increases. The
cost of the work performed shall include all aspects of the improvements,
including but not limited to, all architectural (including space planning),
engineering, and permit fees, corridor and directory signage, actual
construction labor and materials, contractors general conditions, overhead and
profit, and Landlord's prestocked materials. Tenant shall make said payment, if
any, to Landlord within ten (10) business days after receipt of Landlord's
invoice for said payment. Any changes in the approved plans and specifications
shall be subject to approval by both Landlord and Tenant.
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Any defects in construction performed by Landlord shall automatically be waived
unless specified in a written punchlist delivered to Landlord within ten (10)
days after Tenant takes possession. Landlord shall promptly correct all defects
set forth in the punchlist.
(c) Moving Allowance. If there remains any unused Tenant Improvement
Allowance up to $20,000, Tenant may use such amount for relocation costs.
Landlord will reimburse Tenant for its out-of-pocket relocation costs within
thirty (30) days after the Commencement Date and copies of paid receipts
provided to Landlord.
(d) 7th Floor Elevator Lobby and Common Corridors. On or before the
Commencement Date, Landlord will, at its sole cost and expense, replace the 7th
Floor elevator lobby and common corridor carpet and wallcovering with building
standard finishes and repaint the painted portions of the 7th Floor elevator
lobby and common corridor ceiling.
9. REPAIR AND MAINTENANCE
(a) Tenant shall maintain the interior of the Premises in good condition
and repair except that Landlord shall provide normal janitorial service five
nights per week. If Tenant does not perform necessary repairs and maintenance,
Landlord may, but need not, make necessary repairs and replacements, and Tenant
shall pay Landlord the cost upon demand.
(b) Subject to the provisions of Article 7, Landlord shall repair and
maintain the common facilities, all building systems (electrical, heating,
ventilation, air conditioning and plumbing), plate glass, and the roof,
exterior and structural elements of the Building, and shall provide normal
janitorial services. Landlord shall not be responsible to make any repairs or
perform any maintenance unless written notice of the need for such repairs or
maintenance is given by Tenant. In the event that any repair that is Landlord's
obligation is not performed by Landlord as soon as possible but in all events
within ten (10) days of written notice from Tenant, then Tenant may perform
such repair at Landlord's cost and Landlord shall reimburse Tenant for such
cost within thirty (30) days after receipt of a paid invoice from Tenant.
Except in the case of a fire or casualty as provided in Article 13, there shall
be no abatement of rent and no liability of Landlord by reason of any entry to
the Premises, interruption of services or facilities, temporary closure of
common facilities, or interference with Tenant's business arising from the
making of any repairs or maintenance.
Landlord shall not be liable for damages or otherwise in the event of any
failure or interruption of any utility or service supplied to the Premises or
Building by a regulated utility or municipality and no such failure shall
entitle Tenant to terminate this Lease. Tenant shall be entitled to a prorata
abatement of rent resulting from an interruption of utility or service supplied
to the Premises or Building that is within Landlord's control if and only if
Tenant is unable to conduct its business in the Premises or any applicable
portion thereof for a period of more than five (5) consecutive days after
notice has been given to Landlord of such interruption; Tenant shall not be
entitled to any abatement for interruption of utility or service resulting from
force majeure events.
10. ALTERATIONS AND PERSONAL PROPERTY
Tenant shall not make or suffer to be made any alterations, additions or
improvements to the Premises, which require a building permit, including signs,
without the prior written consent of Landlord, which shall not unreasonably be
withheld. Landlord may reasonably condition its consent upon provision of a
payment bond, in amount and form reasonably satisfactory to Landlord, covering
the work to be done by Tenant's contractor. Except at expressly provided herein,
any alterations, additions or improvements to the Premises, including signs, but
not including movable furniture and trade fixtures, shall upon installation
become a part of the realty and belong to Landlord. Tenant shall not install any
antenna, satellite dish or other fixture or equipment on the roof or in the
common facilities, except as provided in Article 22 herein. In the event
Landlord consents to the making of any alterations, additions or improvements to
the Premises by Tenant, they shall be made by Tenant at Tenant's sole cost and
expense and any contractor or person selected by Tenant to perform the work must
first be approved in writing by Landlord, which approval shall not be
unreasonably withheld. Tenant shall not permit any mechanic's or materialmen's
lien to stand against the Premises for any labor or materials provided to the
Premises by any contractor or other person hired or retained by Tenant. Tenant
shall cause any such lien to be discharged (by bonding or otherwise) within ten
(10) days after demand by Landlord, and if it is not discharged within ten (10)
days, Landlord may pay or otherwise discharge the lien and immediately recover
all amounts so expended from Tenant as additional rent. Upon the expiration or
sooner termination of the term of this Lease or of Tenant's right to possession,
Tenant shall remove all of its movable furniture and trade fixtures, and, if
requested by Landlord, at Tenant's sole cost and expense, forthwith remove any
alterations, additions or improvements made by Tenant which are designated by
Landlord to be removed at such time as they are approved by Landlord.
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Tenant shall, forthwith at its sole cost and expense, repair any damage to the
Premises caused by such removal and restore the Premises to a condition
reasonably comparable to their condition at the commencement of the Lease.
Notwithstanding any provision to the contrary in this Lease, Tenant will,
at its sole cost and expense, remove the UPS system and phone switch upon the
expiration or sooner termination of this Lease, and repair any damage to the
Premises caused by such removal.
11. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord shall have the right:
(i) To change the Building's name or street address, provided that
it is not changed to the name of any other airline company which conducts the
same or substantially the same business as being conducted by Tenant from the
Premises and Landlord reimburses Tenant for its reasonable actual out-of-pocket
costs resulting from any such change;
(ii) Upon reasonable prior telephonic or personal notice to Tenant,
except in the case of an emergency, to enter the Premises either personally or
by designated representative at all reasonable times for the purpose of
examining or inspecting the same, and showing the same to prospective
purchasers; or during the last twelve (12) months of the Lease Term, to exhibit
the Premises to prospective lessees. Landlord may not enter the System Dispatch
Area, see Exhibit B, without being accompanied by a Tenant representative,
except in the case of an emergency;
(iii) To grant to anyone the exclusive right to conduct any business
or render any service in or to the Building, provided such exclusive right
shall not operate to exclude Tenant from the use expressly permitted under
Article 4.
12. DAMAGE TO PROPERTY; INJURY TO PERSONS; INSURANCE
(a) Tenant shall defend, indemnify and hold Landlord harmless from any
and all claims arising from Tenant's use of the Premises or the conduct of its
business or from any activity, work, or thing done, permitted or suffered by
Tenant in the Premises except to the extent caused by Landlord, its agents,
employees or contractors. Tenant shall further defend, indemnify and hold
Landlord harmless from any and all claims arising from any breach or default in
the performance of this Lease by Tenant, or arising from any act or negligence
of Tenant, or of its agents or employees, and from all costs, attorneys' fees,
expenses and liabilities incurred as a result of any such claim. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons, in, upon, or about the Premises from
any cause, except to the extent caused by Landlord, its agents, employees or
contractors, and Tenant hereby waives all claims in respect thereof against
Landlord, unless caused by Landlord, its agents, employees or contractors.
Landlord shall not be liable for loss of or damage to any property by theft or
otherwise, or for any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, water or rain which
may leak from any part of any building or from the pipes, appliances or
plumbing works therein, or from the roof, street or subsurface, or from any
other place resulting from dampness or any other cause whatsoever unless
Landlord was negligent. Landlord shall not be liable for interference with the
natural light. Tenant shall give immediate notice to Landlord of any fire,
accident or defect discovered with the Premises.
(b) Tenant shall maintain fire and extended coverage insurance throughout
the term of this Lease in an amount equal to one hundred percent of the
replacement value of Tenant's fixtures, equipment and other personal property
located on the Premises together with such other commercially reasonable
insurance as may be required by Landlord's lender or by any government agency.
All proceeds of Tenant's policy of fire and extended coverage insurance shall be
payable to Tenant, and all proceeds of policies of insurance procured by
Landlord shall be payable to Landlord. Tenant hereby waives any right to
recovery from Landlord and Landlord hereby waives any right of recovery from
Tenant for any loss or damage (including consequential loss) resulting from any
of the perils insured against in the standard form fire insurance policy with
extended coverage endorsement. During the term of this Lease, the Tenant shall,
at Tenant's expense, maintain general public liability insurance against claims
for personal injury, death or property damage occurring in, upon or about the
Premises or in the common areas. The limitation of liability of such insurance
shall be not less than One Million Dollars in respect to injury or death of one
person and to the limit of not less than One Million Dollars in respect to any
one accident and to the limit of not less than Five Hundred Thousand Dollars in
respect to property damage. All of Tenant's policies of liability insurance
shall name Landlord as an additional insured, and all policies of insurance or
copies thereof required to be carried by Tenant under this Article 12 shall be
delivered to Landlord prior to the Commencement Date and thereafter at least
thirty days prior to the expiration of the then current policies.
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Each policy shall contain an endorsement prohibiting cancellation or
non-renewal without at least 30 days prior notice to Landlord.
13. FIRE AND CASUALTY
If the Premises are wholly or partially destroyed or damaged by fire or
other casualty, Landlord shall restore the Premises with reasonable diligence;
provided, however, that Landlord shall have no obligation to restore
improvements not originally provided by Landlord or to replace any of Tenant's
fixtures, furnishings, equipment or personal property. Tenant shall promptly
replace and restore all of Tenant's fixtures, furnishings and equipment damaged
or destroyed by the casualty. Landlord need not commence repairs until
insurance proceeds are available. Proceeds of insurance payable with respect to
a fire or other casualty shall be received and held by Landlord. In the event
all of the Premises are destroyed or damaged by any fire or casualty and in
Landlord's reasonable estimation restoration will require more than ninety
days, then either Landlord or Tenant shall have the option to terminate this
Lease by giving notice to the other. If a fire or casualty occurs within the
last three years of the Lease Term (as extended by any renewal or extension
options which have been exercised), or if any portion of the Building other
than the Premises is damaged or destroyed by fire or casualty and restoration
is expected to require in excess of 45 days, then Landlord may by written
notice to Tenant terminate this Lease, provided that Landlord terminates the
leases of all other similarly affected tenants. In any case, Landlord shall
retain all insurance proceeds paid under Landlord's insurance policies and
Tenant shall retain all insurance proceeds paid under Tenant's insurance
policies. If this Lease is not terminated as provided above, this Lease shall
continue in full force and effect, but rent shall xxxxx until the restoration
is substantially complete. The provisions of this Lease shall govern when this
Lease shall be terminable as a result of a fire or casualty, and no other rule
or statue on the subject shall apply.
14. CONDEMNATION
In the event any portion of this Building shall be appropriated or taken
under the power of eminent domain, this Lease shall terminate and expire as of
the date Tenant is required to vacate the Premises, or, if no portion of the
Premises is taken, as of the date designated in a notice from Landlord
establishing the date of closure of the Building, provided that Landlord
terminates the leases of all other similarly affected tenants. If any portion of
the common facilities, excluding the Building, is appropriated or taken under
the power of eminent domain, this Lease shall not terminate. All awards or
compensation for any taking of any part of the Premises or the Building or
common facilities, whether payable to Landlord or Tenant, shall be the sole
property of Landlord. Notwithstanding anything to the contrary in this Article,
Tenant shall be entitled to receive any portion of an award of compensation
relating to damage to or loss of trade fixtures or other personal property
belonging to Tenant, and Landlord shall be under no obligation to restore or
replace any of Tenant's furnishings, fixtures, equipment and personal property
not included in the tenant improvements. For the purposes of this Article 14, a
voluntary sale or conveyance in lieu of condemnation shall be deemed an
appropriation or a taking under the power of eminent domain.
15. ASSIGNMENT and SUBLETTING; SALE BY LANDLORD
(a) Tenant shall not, either voluntarily or by operation of law, assign,
hypothecate or transfer this Lease, or sublet the Premises or any part thereof,
or permit the Premises or any part thereof to be occupied by anyone other than
Tenant or Tenant's employees, without the Landlord's prior written consent,
which shall not be unreasonably withheld. Landlord shall be under no obligation
to give or withhold consent until all information reasonably required by
Landlord has been provided. No hypothecation, assignment, sublease or other
transfer to which Landlord has consented shall be effective for any purpose
until such time as fully executed documents of such transaction have been
provided to Landlord, and, in the case of an assignment, the assignee has
attorned directly to Landlord, and in the case of a sublease, the sublessee has
acknowledged that the sublease is subject to all of the terms and conditions of
this Lease. Any assignment, mortgage, transfer or subletting of this Lease
which is not in compliance with the provisions of this Article 15 shall be
voidable and shall, at the option of Landlord, terminate this Lease. The
consent by Landlord to an assignment or subletting shall not relieve Tenant
from obtaining the express written consent of Landlord to any further
assignment or subletting or release Tenant from any liability or obligation,
whether or not then accrued. Except as provided in this Article, this Lease
shall be binding upon and inure to the benefits of the successors and assigns
of the parties.
Affiliate. Landlord's consent shall not be required with respect to (i)
any assignment resulting from a consolidation, merger or purchase of
substantially all of Tenant's assets, (ii) any assignment or sublease to a
person who wholly owns Tenant or who wholly owns the person who wholly owns
Tenant (either of which shall be referred to as a "Parent"), or to a person who
is wholly owned by Tenant or a Parent, or is wholly owned by a person who is
wholly owned by Tenant or a Parent, of (iii) any firm which acquires, is
acquired by, or merges with, Tenant. Tenant, however, shall notify Landlord of
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such assignment or sublease within ten (10) days of entering into the agreement
with the Affiliate.
Recapture Right. Landlord shall have rights to recapture the Premises in
the event of a sublease of the entire Premises, or to terminate the Lease in
the event of an assignment by Tenant, which is not in compliance with the
assignment and subletting provisions of the Lease.
(b) In the event of a sale or conveyance by Landlord of the Premises,
Landlord shall be relieved of all future liability upon any of the covenants or
conditions, express or implied, in favor of Tenant, and Tenant shall to look
solely to Landlord's successor in interest provided Landlord's successor in
interest assumes the Lease. This Lease shall not be affected by any sale, and
Tenant shall attorn to the successor in interest. If any security deposit has
been made by Tenant, the successor in interest shall be obligated to return it
in accordance with the terms hereof and Landlord shall be discharged from any
further liability in reference thereto.
16. ESTOPPEL CERTIFICATE
(a) Either party shall at any time and from time to time upon not less
then fifteen (15) days prior written notice from the other party execute,
acknowledge and deliver to the requesting party a statement in writing (i)
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 dates to which the
rental and other charges are paid in advance, if any; (ii) acknowledging that
there are not, to such parties knowledge, any uncured defaults on the part of
the requesting party hereunder, or specifying such defaults if they are
claimed; and (iii) certifying such other matters relating to this Lease as the
requesting party may reasonably request. Any such statement may be relied upon
by any prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part.
(b) Tenant's failure to deliver a statement within the time prescribed
shall constitute a material default by Tenant under this Lease and shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one
month's rental has been paid in advance.
17. LANDLORD'S REMEDIES
(a) Only the following shall constitute Events of Default by Tenant:
(i) Tenant's failure to pay rent or any other amount due under this
Lease within ten (10) days after notice of nonpayment. Notwithstanding anything
to the contrary contained herein, Landlord shall only give Tenant notice of
non-payment and ten (10) days from receipt of such notice to cure such
non-payment once in any twelve (12) month period before assessing any late fees
and/or interest.
(ii) Tenant's failure to execute, acknowledge and return an estoppel
certificate under Article 16 or a subordination agreement under Article 19,
within fifteen (15) days after request.
(iii) Tenant's failure to comply with the insurance provisions under
this Lease within fifteen (15) days after written notice.
(iv) Tenant's failure to perform any other obligation under this
Lease within thirty (30) days after notice of nonperformance; provided,
however, that if the breach is of such a nature that it cannot be cured within
thirty (30) days, Tenant shall be deemed to have cured if cure is commenced
promptly and diligently pursued to completion; 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.
(v) Tenant abandons the Premises except temporary absence excused
by reason of fire, casualty, or other cause wholly beyond Tenant's control.
(b) 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:
(i) Terminate Tenant'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.
(ii) From time to time relet all or portions of the Premises, using
reasonable efforts to
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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. In no event
shall Tenant be entitled to receive any amount representing the excess of avails
of reletting over amounts payable hereunder.
(iii) From time to time recover accrued and unpaid rent and
damages arising from Tenant's breach of the Lease, regardless of whether the
Lease has been terminated, together with applicable late charges and interest at
the Default Rate.
(iv) Recover all attorneys' fees and other costs and expenses
incurred by Landlord in connection with enforcing this Lease, recovering
possession, reletting the Premises or collecting amounts owed.
(v) Perform the obligation on Tenant's behalf and recover from
Tenant, upon demand, the entire amount expended by Landlord plus 10% for special
handling, supervision, and overhead.
(vi) Pursue other remedies available at law or in equity.
(c) 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: (i) shall be terminated or (ii) Tenant's interest shall
be assigned to Landlord. Landlord may separately elect termination or assignment
with respect to each such subtenancy or other matter.
18. NOTICES
All notices, requests, authorizations, approvals, consents and other such
communications shall be in writing and shall be delivered in person, by private
express overnight delivery service (freight prepaid), by certified or registered
mail, return receipt requested, or by facsimile transmission (confirmed by the
recipient), addressed as follows:
To Landlord: c/o DMB Associates, Inc.
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000 (fax)
(000) 000-0000
To Tenant: 0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxxxx
(000) 000-0000 (fax)
(000) 000-0000
Notices shall be deemed to be given or received on the date of actual receipt
(or refusal of delivery) at the applicable above-stated address or at such other
address as a party may direct from time to time, upon written notice to the
other party at least ten (10) days prior to the proposed change of address.
Actual notice shall be no substitute for written notice under any provision of
this Lease.
19. SUBORDINATION
Landlord expressly reserves the right at any time to place liens and
encumbrances on and against the Premises and the Building, superior in lien and
effect to this Lease and the estate created hereby, and Tenant shall attorn to
the purchaser of the Building under any trustee's, sheriff's or foreclosure
sale. The subordination of this Lease shall be self-operative without the
necessity of a written instrument. Tenant shall nevertheless execute within ten
(10) days after request a subordination and attornment agreement on the form
customarily used by the holder of the lien or encumbrance which subordinates
this Lease to the lien or encumbrance, which provides that the holder will
recognize Tenant's rights under this Lease, notwithstanding any foreclosure of
the lien or encumbrance, and which requires Tenant to attorn to the purchaser
as provided above.
Notwithstanding anything to the contrary contained in this Lease, any
subordination of Tenant's leasehold interest pursuant to the terms of this
Article 19 shall be conditioned upon Tenant's receipt of a written
non-disturbance agreement from any ground lessor, mortgagee, trust deed holder,
or other third
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party, to the effect that Tenant's rights hereunder shall not be disturbed so
long as Tenant is not in default beyond any applicable cure period under this
Lease.
20. GENERAL PROVISIONS
(a) This Lease and the obligations of one party hereto shall not be
affected or impaired because the other party hereto is unable to fulfill any of
its obligations or is delayed in doing so if such inability or delay is caused
by reason of any strike, lockout, civil commotion, war-like operations,
invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, inability to obtain any material, service
or financing, Act of God or other cause beyond the control of the Landlord or
Tenant.
(b) Tenant and its officers, agents, employees, and customers shall
comply with the rules and regulations, as shown on EXHIBIT "D", established by
Landlord and with such modifications and additions as Landlord may hereafter
make for the Building; provided, however, that rules and regulations shall not
materially abrogate any right or privilege expressly granted to Tenant. Any
violation of the rules and regulations shall constitute a breach of this Lease,
provided Landlord has given Tenant notice of such violation and the applicable
cure period provided under Article 17 has expired.
(c) The article captions contained in this Lease are for convenience only
and shall not be considered in the construction or interpretation of any
provision.
(d) This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreement or understanding pertaining to any matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective
successors in interest.
(e) Submission of this instrument for examination shall not bind Landlord
in any manner, and no Lease or obligations of Landlord shall arise until this
instrument is signed and delivered by Landlord and Tenant.
(f) No rights to light or air over any property, whether belonging to
Landlord or any other persons, are granted to Tenant by this Lease.
(g) No waiver by Landlord of any provision of this Lease or any breach by
Tenant hereunder shall be deemed to be a waiver of any other provision hereof,
or of any subsequent breach by Tenant of the same or any other provision.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act of Tenant, whether or
not similar to the act so consented to or approved. No act or thing done by
Landlord or Landlord's agent during the term of this Lease shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender shall be valid unless in writing and signed by Landlord. No employee
of Landlord or of Landlord's agents shall have any power to accept the keys to
the Premises prior to the termination of this Lease, and the delivery of the
keys to any employee shall not operate as a termination of the Lease or a
surrender of the Premises.
(h) Time is of the essence of this Lease.
21. SIGNAGE
a) Suite Entry and Lobby Directory. Landlord will provide, and deduct
the cost from the Tenant Improvement Allowance, building standard suite
signage for Tenant and its proportionate share of alphabetical listings on the
main lobby directory.
b) Exterior Sign. Tenant may install its name, at its expense, in one
(1) location to be designated by Landlord on the existing monument sign at the
exterior of the Building. Tenant's signs shall be and remain the property of
Tenant and Tenant shall remove such signs at the expiration of the Lease or any
extended terms thereof at Tenant's sole cost and expense, which shall include
Landlord's cost to repair any material damage caused by such removal. Tenant
shall be solely responsible for repairing any damage to its sign unless such
damage is caused by Landlord or its employees or contractors. Tenant's sign
shall comply with all governmental and quasi-governmental laws, rules,
regulations, codes, ordinances, and the like respecting such signage, and shall
conform to Landlord's standards for tenant signs on monument signs at the
Building. All signs visible from outside the Premises shall be subject to the
building standard sign criteria and shall conform with local ordinances and
codes. Tenant's exterior signage rights shall not be transferable in the event
of a sublease or assignment.
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Notwithstanding anything to the contrary herein, if the area of the Premises is
increased to at least 35,000 rentable square feet, Tenant shall have the right
to erect a separate monument sign for its exclusive use at the exterior of the
Building in a location to be approved by Landlord and subject to the terms of
this Article 21(b). Tenant's signage right for such separate monument sign shall
be surrendered if the area of the Premises is reduced to less than 35,000
rentable square feet.
22. SATELLITE DISH
During the term of this Lease, Tenant, at its expense, but without payment
of any rent or license fee to Landlord, shall have the right, subject to all
applicable governmental regulations and Landlord's prior written approval, which
shall not be unreasonably withheld or delayed, to place, maintain, repair and
replace on the roof of the Building, in a location and manner of installation to
be approved by Landlord, which approval shall not be unreasonably withheld,
satellite or microwave dishes, in connection with Tenant's telecommunications
and data transmissions network, and to connect the same to the Premises. Tenant
shall indemnify and hold Landlord harmless for, from and against any and all
costs, damages, liability, or expense (including court costs and reasonable
attorney's fees) in connection with the installation, operation and removal of
Tenant's satellite dish including, without limitation, any damage to the roof or
other portions of the Building and any damage or injury to the person or
property of tenants, visitors or other third parties. Such satellite dish
installed by Tenant shall remain Tenant's property and shall be removed at or
prior to the end of the term of this Lease, at the sole expense of Tenant. If
Tenant fails to do so within fifteen (15) days after the termination of this
Lease, Landlord may, but shall not be obligated to, perform such removal and
restoration at the sole expense of Tenant or Landlord may, at Landlord's option,
deem any such satellite dish to be abandoned. Tenant's satellite dish shall not
interfere with the proper functioning of any presently existing or any future
telecommunications equipment on the roof that is owned or will be owned by
others at the time of installation or modification (if applicable).
23. GENERATOR
Tenant shall have the right to install and maintain, at its sole cost and
expense, a generator on the grounds of the property, in a location to be
determined by Landlord, with no additional rental costs.
LANDLORD: ADDRESS:
DMB PROPERTY VENTURES LIMITED 0000 X. 00xx Xxxxxx, Xxxxx 000
PARTNERSHIP, a Delaware limited Xxxxxxx, Xxxxxxx 00000
partnership
By: DMB G.P., an Arizona corporation
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
Its: Vice President
TENANT: ADDRESS:
MESA AIR GROUP, INC. 0000 Xxxx 00xx Xxxxxx
a Nevada corporation Xxxxxxxxxx, Xxx Xxxxxx 00000
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------
Its: CEO
--------------------------------
14
EXHIBIT "A"
DESCRIPTION OF REAL PROPERTY
Xxx 0, XXXXXXX XXXXXXX AMENDED, according to Book 322 of
Maps, Page 18, records of Maricopa County, Arizona.
15
EXHIBIT "B"
PREMISES
[MESA AIR GROUP 7TH FLOOR DIAGRAM]
16
EXHIBIT "C"
TENANT IMPROVEMENTS
[PHOENIX XXXXXXX XXXXXX 0XX XXXXX DIAGRAM]
17
EXHIBIT "D"
BUILDING RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice of any kind
shall be inscribed, displayed, printed or affixed on or to any part of the
outside or inside of the Building, the Premises or the surrounding area without
the prior written consent of Landlord. If such consent is given by Landlord,
Landlord may regulate the manner of display of the sign, placard, picture,
advertisement, name or notice. Landlord shall have the right to remove any such
item which has not been approved by Landlord or is being displayed in a
non-approved manner without notice to and at the expense of Tenant. Without the
written consent of Landlord, Tenant shall not use pictures of the Building in
connection with or in promoting or advertising the business of Tenant, except
as Tenant's address, without written permission from the Landlord.
2. The directory for the Building will be provided exclusively for the
display of the name and location of the Tenants only. Landlord reserves the
right to exclude any other names therefrom and to charge a reasonable fee for
each name other than Tenant's name, placed upon such directory at the request of
Tenant. All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant, unless otherwise arranged, by a
person approved by Landlord.
3. The sidewalks, parking areas, halls, passageways, exits, entrances,
elevators, toilets and stairways shall not be obstructed by Tenant, its
customers, invitees, licensees and guests, and (except for toilets) shall not be
used for any purpose other than for ingress to and egress from the Premises.
Tenant shall not throw or allow anyone else to throw anything out of doors or
down the passageways. Tenant shall not place anything or allow anything to be
placed near any window or any glass door, partition or wall which may appear
unsightly, in Landlords sole discretion.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from a violation of this rule shall
be borne by the Tenant who, or whose agents, employees or invitees, shall have
caused the same.
5. Tenant shall not lay linoleum, tile carpet or other similar floor
coverings in any manner except as approved by Landlord. The expense of repairing
any damage resulting from a violation of this rule or removal of any floor
covering shall be borne by Tenant. All interior window coverings must be
approved by Landlord and Tenant may not remove or replace existing blinds.
Tenant shall not overload the floor of the Premises, shall not xxxx on or drive
nails, drill or screw into the partitions, woodwork or plaster (except as may be
incidental to the hanging of wall decorations) or in any way deface the Premises
or any part thereof. Tenant shall not allow the installation of telephone wires
or electrical wires or circuits, except with Landlords prior approval. The
installation of telephones and other office equipment affixed to the Premises
shall be installed at the expense of Tenant.
6. Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy equipment brought into the Building and
also the times and manner of moving the same in and out of the Building. Safes
or other heavy objects shall, if considered necessary by Landlord, stand on wood
strips of such thickness as shall be necessary to properly distribute the
weight. Landlord will not be responsible for loss of or damage to any such safe
or property from any cause and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the expense of
Tenant. There shall not be used in the Premises or the Building any hand trucks
except those equipped with rubber tires and side guards, and should only be used
in appropriate areas.
7. Tenant shall not employ any person or persons, other than the janitor
of the Landlord, for the purpose of cleaning the Premises unless otherwise
agreed to by Landlord. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall in no way be responsible to Tenant for any theft or
loss of property on the Premises, however occurring, or for any damage done to
the effects of Tenant, by or as a result of the acts of the janitor, any other
employee or contractor of Landlord, or any other person. Landlord's janitor
service shall only include ordinary dusting, housekeeping and cleaning by the
janitor assigned to such work and shall not include moving furniture or other
special services. Window cleaning shall be done only by landlord at intervals it
deems appropriate. Employees or agents of Landlord shall not be requested to
perform any work or do anything outside of their regular duties unless under
special instructions from Landlord.
8. No bicycles, skateboards or similar vehicles, animals or birds shall
be brought in or kept in or about the Premises of the Building. No cooking shall
be done or permitted by Tenant in the Premises,
18
[illegible]
---------
INITIALS
except preparation with the use of a microwave oven and the preparation of
coffee, tea, hot chocolate and similar items for Tenant, its employees, clients
and guests will be permitted with the approval of Landlord, which approval will
not be unreasonably withheld.
9. Tenants shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent the same. Tenant shall not exhibit,
sell, or offer to sell, use rent or exchange any item or service in or from the
Premises unless ordinarily embraced within Tenant's use of the Premises
specified in the Lease. Peddlers, solicitors and beggars shall be reported to
the Landlord. No Tenant shall make or permit to be made any disturbing noises or
disturb or interfere with occupants, or with those having business with such
occupants of the Building, by the use of any musical instrument, radio
phonograph, electronic device, or other devices.
10. Tenant shall not use or keep in the Building any noxious gas or
combustible fluid or use any method of heating or air conditioning other than
that supplied by Landlord, nor install or operate machinery, equipment or any
mechanical or electrical device of a nature not directly related to Tenant's
ordinary use of the Premises, by reason of safety, odors and/or vibrations, or
interfere in any way with other Tenants or occupants conducting business in the
Building. Tenant Premises shall not be used for manufacturing or for the storage
of merchandise except as such storage may be incidental to the use of the
Premises for general office purposes. Tenant shall not conduct any auction or
permit any fire sale or bankruptcy sale to be held on the Premises. Tenant shall
not occupy or permit any portion of the Premises to be occupied as an office for
a public stenographer or typist or for the manufacture or sale of liquor,
narcotics or tobacco in any form as a medical office, xxxxxx shop, manicure shop
or as an employment bureau, except with prior written consent of Landlord. The
Premises shall not be used for lodging or sleeping or for illegal purposes.
11. All keys and access cards to the Building, offices and rooms shall be
obtained from Landlord. All duplicate keys needed by Tenant shall be requested
from Landlord, who shall provide such keys at reasonable charge. Tenant, upon
termination of its tenancy, shall deliver to Landlord the keys and access cards
to the Building, offices, and rooms which shall have been furnished. Tenant
shall not alter or replace any lock or install any additional locks or any bolts
on any door of the Premises without the written consent of Landlord.
12. Tenant assumes full responsibility for protecting, at all times, the
Premises and all personal effects of Tenant, its employees, agents and invitees
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured, and Landlord shall have no
liability with respect thereto. Tenant shall see that the doors of the Premises
are closed and securely locked before leaving the Building and that all water
faucets, water apparatus, and electrical items are shut off before Tenant or
Tenant's employees leave the building. Tenant shall be responsible for any
damage to the Building or to other Tenants caused by a failure to comply with
this rule.
13. On Sundays and legal holidays, and on other days during certain hours
for which the Building may be closed before or after Normal Business Hours,
access to the Building may be controlled through the use of security personnel
and/or security devises. Such personnel will have the right to demand of any and
all persons seeking access to the Building proper identification to determine if
they have the right of access to the Premises. Landlord shall in no case be
liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In case of bomb threats, invasion, mob, riot,
public excitement or other condition, Landlord reserves the right to prevent
access to the Building during the continuance of the same, by closing the doors
or otherwise, for the safety of all lessees and protection of the Building and
property located therein. The foregoing notwithstanding, Landlord shall have no
duty to provide security protection for the Building at any time or to monitor
access thereto.
14. The halls, passages, exits, entrances, parking areas, elevators,
stairways, toilets and roof are not the use of the general public and the
Landlord shall in all cases retain the right to control the same and prevent
access thereto by all persons whose presence in the judgement of the Landlord
shall be prejudicial to the safety, character, reputation and interests of the
Project to its Tenants. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgement of Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
15. Tenant shall not park in driveways or loading areas or in visitor
spaces or reserved parking spaces of other Tenants. Landlord or its agents shall
have the right to cause to be removed any car of Tenant, its employees, agents,
contractors, customers and invitees that may be parked in unauthorized areas,
and Tenant agrees to save and hold harmless Landlord, its agents and employees
from any and all claims, losses, damages and demands, arising or asserted in
connection with the removal of any such vehicle and for all expenses (including
reasonable attorneys' fees and costs) incurred by Landlord in connection with
such
19
[illegible]
-----------
INITIALS
removal.
16. Tenant agrees that it shall comply with all fire regulations that may
be issued from time to time by Landlord or the City of Phoenix Fire Department.
Tenant shall not waste electricity or water and agrees to cooperate fully with
Landlord to assure the most effective operation of the Building's heating and
air conditioning equipment. Tenant shall give prompt notice to Landlord, or its
designee, of any injury to or defects in plumbing, electrical fixtures, heating
apparatus and/or air conditioning equipment so that the same may be attended to
properly.
17. The building has been designated a "non-smoking" building. Employees
with a private office may smoke or permit smoking within those areas if other
employees, neighboring tenants or members of the public are not affected.
Smoking is strictly prohibited in conference and meeting rooms, classrooms,
restrooms, waiting areas, hallways, stairways and elevators. Any individual who
refuses to refrain from smoking in an enclosed public area may be issued a
citation by the Phoenix Police Department and assessed a fine of up to $100.
18. Landlord reserves the right to rescind, alter, waive, modify, add to,
and amend any rule or regulation at any time prescribed for the Building when,
in Landlord's judgement, it is necessary, desirable or proper for the best
interest of the Building or one or more of its Tenants.
19. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain and comply with, Landlord's instructions for
their installation.
20. No equipment, materials, furniture, packages, supplies, merchandise or
other property will be received in the Building or carried in the passenger
elevators. The service level loading dock and freight elevator shall be used for
those purposes.
21. Tenant shall not install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.
22. Tenant shall store all its trash and garbage within its Leased
Premises. Tenant shall not place in any trash box or receptacle any material
which cannot be disposed of in the ordinary and customary manner of trash and
garbage disposal. All garbage and refuse disposal shall be made in accordance
with directions issued from time to time by Landlord.
23. By executing a copy of these Building Rules and Regulations, Tenant
acknowledges and agrees that it has read and understands these Building Rules
and Regulations and will fully comply with all of the terms and provisions
contained herein.
20
EXHIBIT "E"
EARLY ACCESS INDEMNITY AGREEMENT
This Access Agreement (the "Agreement") is made and executed this day of
October, 1998, by and between DMB PROPERTY VENTURES L.P., a Delaware limited
partnership ("Grantor"), and Mesa Air Group, Inc., a Nevada corporation
("Grantee").
RECITALS:
A. Grantor owns a certain building known as Three Gateway, 410 North 44th
Street, Phoenix, Arizona (the "Building").
B. Grantor intends to lease space (the "Premises") in the Building to
Grantee pursuant to a lease agreement between the parties (the "Lease").
C. Grantee wishes access to the Premises at least fourteen (14) days
prior to the commencement of the term of the Lease in order to install Grantee's
equipment, furnishings and trade fixtures, and Grantor is willing to allow
Grantee early access to the Premises for such purpose, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Grantor and Grantee hereby agree as follows:
1. Grant of Access. Grantor hereby grants to Grantee and its employees,
agents, representatives, contractors, subcontractors, and invitees (the
"Grantee's Related Parties") a right of access to and entry upon the Premises
prior to the Commencement Date, solely for the purpose of installing Grantee's
equipment, furnishings and trade fixtures (the "Work") and moving into and
operating in the Premises or portions thereof, subject to the terms and
conditions set forth below and in the Lease.
2. Obligations of Grantee. Grantee shall conduct the Work in a
first-class workmanlike manner in accordance with all applicable laws,
ordinances, rules and any other requirements of state, county or municipal
authorities. Grantee shall not create, or cause to be created, any safety or
other hazard or nuisance in the Premises, in the Building or in any common area
associated with the Building.
3. Restoration Obligations. Subject to the terms of the Lease, Grantor
may retain all or any portion of the improvements constructed in the Premises
and Grantee shall forfeit all rights thereto without further action by Grantee;
and subject to the terms of the Lease, to the extent that Grantor decides not to
retain such improvements, Grantee shall promptly restore the Premises to its
condition immediately prior to this Agreement.
4. Indemnification. Grantee shall indemnify and hold Grantor and its
employees, agents, representatives, contractors, subcontractors, and invitees
(the "Grantor's Related Parties") harmless for, from and against any and all
damages, injuries, liabilities, losses, obligations, fines, costs, expenses,
fees (including without limitation reasonable attorneys' fees), and any and all
other sums of whatever nature and type resulting from any claims, mechanics' or
materialmen's liens, encumbrances, demands, liens, assertions, charges, actions,
suits or proceedings based upon, or arising out of the Work, except to the
extent caused by the negligence or willful misconduct of Grantor or any of
Grantor's Related Parties. The termination of this Agreement shall not affect or
cancel the indemnification obligations of Grantee hereunder.
5. Insurance. Prior to exercising the rights granted hereunder, Grantee
shall comply with the insurance requirements set forth in Article 12 of the
Lease.
6. Termination. The rights and obligations hereunder are temporary and
shall expire upon the Commencement Date of the Lease.
DMB PROPERTY VENTURES LIMITED PARTNERSHIP,
a Delaware limited partnership
By DMB Associates, Inc., an Arizona
corporation
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx
Its Vice President
-------------------------------
"GRANTOR"
MESA AIR GROUP, INC., a Nevada corporation
By /s/ Xxxxxxxx Xxxxxxxx
----------------------------------
Its CEO
-------------------------------
"GRANTEE"
21
EXHIBIT "F"
LETTER OF CREDIT
Norwest Bank El Paso, National Association
(Address)
El Paso, TX (Zip)
Date: October (Date), 1998
Beneficiary: DMB Property Ventures Limited Partnership
000 X. 00xx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Applicant:
Mesa Air Group, Inc.
000 X. 00xx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Letter of Credit Agreement
We open irrevocable standby letter of credit number ________ in the amount of
$400,000.00 (Four hundred thousand dollars and no cents)
In favor of yourselves
Expires October 31, 2000 at our counters
Available against drafts drawn at sight on Norwest Bank El Paso, National
Association, El Paso, Texas bearing the clause "drawn under standby letter of
credit number ________ of Norwest Bank El Paso, Texas, National Association"
accompanied by the following documents:
1. Beneficiary's manually signed representation to (applicant's name) and
Norwest Bank El Paso, National Association, written on beneficiary's
letterhead reading exactly as follows:
"I am an authorized representative of (beneficiary's name) hereby certify
an event of default under that certain lease dated ________ between
________ and (applicant's name)."
2. This original letter of credit.
Letter of credit may be presented at Norwest Bank Phoenix although payment will
be made at the counters of Norwest Bank El Paso, National Association.
This credit is subject to the Uniform Customs and practice for Documentary
Credits (1993 Revision) International Chamber of Commerce publication No. 500.
Unless otherwise stated, all documents are to be forwarded to us by mail, or
hand delivered to our counters. Documents to be directed to: Norwest Bank El
Paso, National Association, (Address), El Paso, Texas (Zip Code), Attn:
International Product Services Division, Letters of Credit.
We hereby engage with drawers and/or bona fide holders that drafts drawn and
negotiated in strict conformity with the terms of this credit will be duly
honored upon presentation.
Norwest Bank El Paso, National Association
_____________________ ______________________
Authorized Signature Authorized Signature
22
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-----------
INITIALS
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is made and entered into as of
this 9th day of March, 1999, by and between DMB PROPERTY VENTURES LIMITED,
PARTNERSHIP, a Delaware limited partnership ("Landlord"), and MESA AIR GROUP,
INC., a Nevada corporation ("Tenant").
1. RECITALS:
1.1 DMB Property Ventures Limited Partnership, a Delaware limited
partnership ("Landlord"), and Mesa Air Group, Inc., a Nevada
corporation ("Tenant"), entered into a Lease Agreement dated October
16, 1998, wherein Landlord leased to Tenant, and Tenant leased from
Landlord, Suite #700 in Three Gateway, located at 000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx (the "Premises"). The Lease Agreement, as
amended, is hereinafter referred to as the "Lease".
1.2 By this First Amendment, the parties desire to further amend the Lease
on the terms and conditions hereinafter set forth.
1.3 All capitalized terms not defined herein shall have the same meaning
as set forth in the Lease.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, state, confirm and
agree as follows:
2. AGREEMENT
2.1 The Commencement Date referenced in Article 1(a) of the Lease is
hereby amended to read October 19, 1998.
2.2 Except as amended by this First Amendment, the Lease is hereby
ratified and confirmed in its entirety.
LANDLORD: ADDRESS:
DMB PROPERTY VENTURES LIMITED 0000 X. 00xx Xxxxxx, Xxxxx 000
PARTNERSHIP, a Delaware limited Xxxxxxx, Xxxxxxx 00000
Partnership
By: DMB G.P., an Arizona corporation
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
Its: Vice President
TENANT: ADDRESS:
MESA AIR GROUP, INC. 000 Xxxxx 00xx Xxxxxx #000
a Nevada corporation Xxxxxxx, Xxxxxxx 00000
(000)000-0000 Phone
By: /s/ Xxxxxxxx Xxxxxxxx (000)000-0000 Fax
--------------------------
Xxxxxxxx Xxxxxxxx
Its: CEO
SECOND AMENDMENT TO LEASE
-------------------------
THIS SECOND AMENDMENT TO LEASE ("SECOND AMENDMENT") is made and entered
into as of this 8th day of November, 1999, by and between DMB PROPERTY VENTURES
LIMITED PARTNERSHIP, a Delaware limited partnership ("LANDLORD"), and MESA AIR
GROUP, INC., a Nevada corporation ("TENANT").
1. RECITALS
--------
1.1 Landlord and Tenant entered into a Lease Agreement Dated October 16,
1998, as amended by the First Amendment to Lease dated March 9, 1999,
wherein Landlord leased to Tenant 21,003 rentable square feet of space
known as Suite 700 on the 7th floor at 000 X. 00xx Xxxxxx, Xxxxxxx,
Xxxxxxx (the "PREMISES"). The Lease Agreement, as amended, is
hereinafter referred to as the "LEASE".
1.2 By this Second Amendment, the parties desire to further amend the
Lease by adding 3,116 rentable square feet to the definition of the
Premises, known as Suite 175 ("SUITE 175") on the 1st floor, as
further described on Exhibit "B-2" attached hereto, and by this
reference incorporated herein, on the terms and conditions hereafter
set forth.
1.3 Except as specifically defined in this Second Amendment, all
capitalized items shall have the same meaning as set forth in the
Lease.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, state, confirm, and
agree as follows:
2. AGREEMENT
---------
2.1 The terms of this Second Amendment shall become effective on November
15, 1999.
2.2 The total rentable area of the Premises shall be increased by 3,116
rentable square feet. The total rentable area of the Premises is
24,119 rentable square feet.
2.3 The Base Rent referenced in Paragraph 2(a) of the Lease shall be
amended to include the following:
SUITE 175 - 3,116 RENTABLE SQUARE FEET
--------------------------------------
11/15/99 - 10/18/01 $68,552.04 ANNUALLY $5,712.67 MONTHLY
10/19/01 - 10/18/05 $77,900.00 ANNUALLY $6,491.67 MONTHLY
10/19/05 - 10/18/08 $84,132.00 ANNUALLY $7,011.00 MONTHLY
2.4 With respect to Suite 175, Tenant's Proportionate Share of Operating
Costs, Real Property Taxes and Utilities referenced in Paragraph 7 of
the Lease shall be as follows:
Tenant's Proportionate Share: 1.44% of Building operating expenses.
2.5 With respect to Suite 175, the Expense Stop referenced in Paragraph 7
of the Lease shall be equivalent to the actual operating expenses
incurred in the calendar year 1999.
2.6 Upon execution of this Second Amendment, Landlord will, at its sole
cost and expense, shampoo the carpet, and repair and paint the holes
in existing walls.
2.7 Article 6, Parking and Common Use Areas, of the Lease shall be amended
to include the following:
"With respect to Suite 175, Landlord will provide the following
parking spaces for Tenant's use:
SECOND AMENDMENT TO LEASE, PAGE 2
TO LEASE DATED OCTOBER 16, 1998
DMB PROPERTY VENTURES LIMITED PARTNERSHIP ("LANDLORD")
MESA AIR GROUP, INC. ("TENANT")
Three (3) covered reserved spaces free of charge for the Lease Term,
Six (6) covered unreserved spaces free of charge until October 18,
2001, and at $30.00 per space per month beginning October 19, 2001,
and Three (3) uncovered, unreserved spaces free of charge for the
Lease Term."
2.8 Option to Terminate. Notwithstanding anything to the contrary in this
Lease, and provided Tenant is not then in default, Tenant shall have
the option to terminate this Lease with respect to Suite 175 only, at
any time, by providing Landlord with six (6) months prior written
notice of its election to do so, which notice shall be irrevocable.
2.9 As amended herein, all of the terms and conditions of the Lease are
hereby ratified and confirmed in their entirety.
IN WITNESS WHEREOF, the parties, have executed this Second Amendment as of
the date first written above.
DMB PROPERTY VENTURES LIMITED PARTNERSHIP,
a Delaware limited partnership,
By DMB G.P., an Arizona corporation
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx
Its Vice President
---------------------------------
MESA AIR GROUP, INC.
a Nevada corporation
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxxxx Xxxxxxxx
Its: CEO
---------------------------------
2
EXHIBIT "B-2"
XXXXX 000 XXXXXXXX
XXXXX 000
3,116 RSF
[FLOOR PLAN GRAPHIC]
LEASE AMENDMENT THREE CMD 174B (8/98)
(EXPANSION/NOT CO-TERMINOUS)
THIS LEASE AMENDMENT THREE ("Amendment") is made and entered into as
of the 7th day of November, 2000, by and between CMD REALTY INVESTMENT FUND IV,
L.P., an Illinois limited partnership ("Landlord") and MESA AIR GROUP, INC., a
Nevada corporation ("Tenant").
A. Landlord and Tenant are the current parties to that certain lease
("Original Lease") dated October 16, 1998, for premises (the "Premises") in the
building (the "Building") known as Three Gateway, located at 000 X. 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx (the "Property," as may be further described below),
which lease has heretofore been amended or assigned by documents described and
dated as follows: First Amendment to Lease dated March 9, 1999 and Second
amendment to Lease dated November 8, 1999 (collectively, and as amended herein,
the "Lease").
B. Tenant has requested that additional space in the Property be added to
the Premises, and Landlord is willing to grant the same, all on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the parties do
hereby agree as follows:
1. ADDITIONAL PREMISES; EARLY TERMINATION. The space known as Suite 230
(the "Additional Premises"), the approximate location of which is shown on
Exhibit A hereto, and which shall be deemed to contain 1,191 square feet of
rentable area for purposes hereof, shall be added to and become a part of the
Premises, commencing on November 15, 2000 ("Additional Premises Commencement
Date"), and continuing through September 30, 2001 ("Additional Premises
Expiration Date"), subject to the terms and conditions set forth hereinafter.
Either party shall have the option to terminate this Lease early, at any
time after May 31, 2001, by providing the other party with at least thirty (30)
days advance written notice of the effective early termination date ("Early
Termination Date"), as though such date were the original expiration date set
forth in this Lease (i.e., the earliest possible Early Termination Date would
be June 1, 2001). Notwithstanding such early termination, Tenant shall timely
pay all rentals and other charges under the Lease with respect to the
Additional Premises, and shall comply with each and every term and provision
hereof, accruing through the Early Termination Date (and all such obligations
accruing through the Early Termination Date shall survive such termination,
including, but not limited to, any rentals or other charges not yet determined
or billed for such period with respect to the Additional Premises prior to the
Early Termination Date). This early termination right is personal to Mesa Air
Group, Inc. If Tenant shall sublease or assign the Lease with respect to all or
any portion of the Premises, then immediately upon such sublease or assignment
Tenant's termination right herein shall concurrently terminate and become null
and void. Notwithstanding anything contained herein to the contrary, if Tenant
leases additional space in the Property, whether pursuant to an expansion right
contained in the Lease or otherwise, this option to terminate by Tenant shall
thereupon be null and void. Tenant's option hereunder shall, at Landlord's
election, terminate if Tenant is in violation of the Lease at the time Tenant
seeks to exercise such option, or at any time thereafter and prior to the Early
Termination Date. Tenant's exercise of such option shall not operate to cure
any violation by Tenant of any of the terms or provisions in the Lease, nor to
extinguish or impair any rights or remedies of Landlord arising by virtue of
such violation.
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2. BASE RENT FOR ADDITIONAL PREMISES. The base or minimum monthly rent
for the Additional Premises shall be $2,481.25 per month.
3. ADDITIONAL RENT; TENANT'S SHARE. On the Additional Premises
Commencement Date, all other rentals or other charges based or computed on the
square footage of the Premises, including without limitation, real estate taxes,
and operating or other expenses of the Property, shall be adjusted
proportionately to reflect the Additional Premises rentable square footage, such
that Tenant's share thereof shall be increased by 55/100 percent (0.55%) with
respect to the Additional Premises, for a total of eleven and 69/100 percent
(11.69%) with respect to the entire Premises including the Additional Premises,
through the Additional Premises Expiration Date. The Expense Stop for the
Additional Premises shall be the operating cost for the Building (as set forth
in Section 7 of the Original Lease) for the calendar year 1998.
4. CONSOLIDATED OR SEPARATE XXXXXXXX. The minimum or base rentals, real
estate taxes, operating or other expenses of the Property, and all other rentals
and charges respecting the Additional Premises are sometimes herein called the
"Additional Premises Rent". Landlord may compute and xxxx the Additional
Premises Rent (or components thereof) separately or treat the Additional
Premises and Premises as one unit for computation and billing purposes.
5. PRORATIONS. If the Additional Premises Commencement Date and/or
Additional Premises Expiration Date occurs other than on the beginning or end,
respectively, of the applicable payment period under the Lease, Tenant's
obligations for base or minimum rentals, real estate taxes, operating or other
expenses of the Property and other such charges shall be prorated on a per diem
basis.
6. OTHER TERMS; CERTAIN PROVISIONS DELETED. On the Additional Premises
Commencement Date, the Additional Premises shall be added to the Premises under
the Lease, and all terms and conditions then or thereafter in effect under the
Lease shall apply to the Additional Premises, except as provided to the contrary
herein. Notwithstanding the foregoing to the contrary, this Amendment is
intended to supersede any rights of Tenant under the Lease to expand, reduce or
relocate the Premises, extend the term or terminate the Lease early, and all
such provisions are hereby deleted.
7. CONDITION OF ADDITIONAL PREMISES; CARPET. Tenant has inspected the
Additional Premises (and portions of the Building, Property, systems and
equipment providing access to or serving the Additional Premises) or has had an
opportunity to do so, and agrees to accept the same "AS IS" without any
agreements, representations, understandings or obligations on the part of
Landlord to perform any alterations, repairs or improvements, or regarding any
other matter, except that Landlord shall, at Landlord's sole expense, install
carpet in the open area of the Additional Premises (i.e., that area which is
uncarpeted as of the date of this Amendment; the open area to be carpeted
specifically does not include the existing offices) with carpet selected by
Landlord from the Building inventory of carpet (the "Work"). With respect to the
Work: (i) Landlord shall use diligent, good faith efforts to substantially
complete any such improvements to an extent that Tenant can reasonably occupy
the Additional Premises by the Additional Premises Commencement Date set forth
in this Amendment, subject to the other provisions of this Amendment, (ii)
Tenant shall also use diligent, good faith efforts to cooperate, and to cause
its space planners, architects, contractors, agents and employees to cooperate
diligently and in good faith, with Landlord and any space planners, architects,
contractors or other parties designated by Landlord, such that any such
improvements to the Additional Premises can be planned, permits can be obtained,
and the work can be substantially
2
completed by the Additional Premises Commencement Date set forth in this
Amendment, and (iii) in the event of any dispute as to whether any such
improvements have been substantially completed, Landlord may refer the matter to
Landlord's independent architect, whose decision shall be final and binding on
the parties.
8. ADDITIONAL PREMISES COMMENCEMENT DATE ADJUSTMENTS.
a. Additional Premises Commencement Date Adjustments and
Confirmation. If the Additional Premises Commencement Date is advanced or
postponed as provided below, the Additional Premises Expiration Date set forth
above shall not be changed, unless Landlord so elects by notice to Tenant. In
addition, if the Additional Premises Commencement Date, as so advanced or
postponed herein, occurs other than on the first day of a calendar month,
Landlord may further elect by notice to Tenant to: (i) extend the term with
respect to the Additional Premises such that the Additional Premises Expiration
Date is the last day of the calendar month in which it would otherwise occur,
and/or (ii) adjust the dates for any fixed increases in the base rent for the
Additional Premises such that they occur on the first day of the calendar month
in which they would otherwise occur. Tenant shall execute a confirmation of the
Additional Premises Commencement Date, Additional Premises Expiration Date and
other dates as adjusted herein in such form as Landlord may reasonably request
within ten(10) days after requested; any failure to respond within such time
shall be deemed an acceptance of the matters as set forth in Landlord's
confirmation. If Tenant disagrees with Landlord's adjustment of the Additional
Premises Commencement Date, Additional Premises Expiration Date or other dates
as adjusted herein, Tenant shall pay Additional Premises Rent and perform all
other obligations commencing and ending on the date or dates determined by
Landlord, subject to refund or credit when the matter is resolved.
b. Early Additional Premises Commencement Date. The Additional
Premises Commencement Date, Additional Premises Rent and Tenant's other
obligations respecting the Additional Premises shall be advanced to such earlier
date as: (i) Landlord substantially completes any improvements to the Additional
Premises required to be performed by Landlord under this Amendment to an extent
that Tenant is able to occupy the Additional Premises, and Landlord delivers
possession thereof, or (ii) Tenant, with Landlord's written permission,
otherwise commences occupying the Additional Premises. If either such events
occurs with respect to a portion of the Additional Premises, the Additional
Premises Commencement Date, Additional Premises Rent and Tenant's other
obligations shall be so advanced with respect to such portion (and fairly
prorated based on the rentable square footage involved). During any period that
Tenant shall be permitted to enter the Additional Premises prior to the
Additional Premises Commencement Date other than to occupy the same (e.g., to
perform alterations or improvements), Tenant shall comply with all terms and
provisions of the Lease (including this Amendment), except those provisions
requiring the payment of Additional Premises Rent. Landlord shall permit early
entry, so long as the Additional Premises is legally available, Landlord has
completed any work required of Landlord under this Amendment, and Tenant is in
compliance with the other provisions of the Lease (including this Amendment),
including the insurance requirements.
c. Additional Premises Commencement Date Delays. Subject to the other
provisions of this Amendment, the Additional Premises Commencement Date,
Additional Premises Rent and Tenant's other obligations respecting the
Additional Premises shall be postponed to the extent Tenant is unable to
reasonably occupy the Additional Premises because Landlord fails: (i) to
substantially complete any improvements to the Additional Premises required to
be performed by Landlord under this Amendment, or (ii) to deliver
3
possession of the Additional Premises for any other reason, including holding
over by prior occupants, except to the extent that Tenant, its space planners,
architects, contractors, agents or employees in any way contribute to either
such failures. If either such event occurs with respect to a portion of the
Additional Premises, the Additional Premises Commencement Date, Additional
Premises Rent and Tenant's other obligations shall be so postponed with respect
to such portion (and fairly prorated based on the rentable square footage
involved). Any such delay in the Additional Premises Commencement Date shall not
subject Landlord to liability for loss or damage resulting therefrom, and
Tenant's sole recourse with respect thereto shall be the postponement of
Additional Premises Rent and other obligations described herein.
9. SUITE 800. Landlord and Tenant are currently parties to those certain
License to Occupy Office agreements dated June 17, 1999 and October 18, 1999,
each of which is for a portion of Suite 800. Tenant agrees that such agreements
shall be deemed to be terminated as of November 15, 2000 and agrees to vacate
Suite 800 in its entirety no later than November 15, 2000. Tenant shall pay
Landlord 200% of the amounts then applicable under the License to Occupy Office
agreements prorated, on a per square foot basis to reflect the rentable square
footage of Suite 800, and a per diem basis for each day Tenant shall retain
possession of Suite 800 or any part thereof after November 15, 2000, together
with all damages sustained by Landlord on account thereof. Tenant shall pay such
amounts on demand, and in the absence of demand monthly in advance. The
foregoing provisions, and Landlord's acceptance of any such amounts, shall not
serve as permission for Tenant to hold-over (although Tenant shall remain a
licensee-at-sufferance bound to comply with all provisions of the License to
Occupy Office Space agreements Lease during any time Tenant retains possession
thereof). Landlord shall have the right, at any time after November 15, 2000, to
reenter and possess Suite 800 and remove all property and persons therefrom, and
Landlord shall have such other remedies for holdover as may be available to
Landlord under the Lease, the License to Occupy Office agreements or applicable
laws.
10. CONFIDENTIALITY. Tenant shall keep the content and all copies of this
document and the Lease, all related documents or amendments now or hereafter
entered, and all proposals, materials, information and matters relating thereto
strictly confidential, and shall not disclose, disseminate or distribute any of
the same, or permit the same to occur, except to the extent reasonably required
for proper business purposes by Tenant's employees, attorneys, insurers,
auditors, lenders, and permitted successors and assigns (and Tenant shall
obligate any such parties to whom disclosure is permitted to honor the
confidentiality provisions hereof), and except as may be required law or court
proceedings.
11. REAL ESTATE BROKERS. Tenant represents and warrants that Tenant has
not dealt with any broker, agent or finder in connection with this Amendment,
and agrees to indemnify and hold Landlord, and its employees, agents and
affiliates harmless from all damages, judgments, liabilities and expenses
(including reasonable attorneys' fees) arising from any claims or demands of any
broker, agent or finder with whom Tenant has dealt for any commission or fee
alleged to be due in connection with this Amendment.
12. LIMITATION OF LANDLORD'S LIABILITY. Tenant agrees to look solely to
Landlord's interest in the Property for the enforcement of any judgment, award,
order or other remedy under or in connection with the Lease or any related
agreement, instrument or document or for any other matter whatsoever relating
thereto or to the Property or Premises. Under no circumstances shall any present
or future, direct or indirect, principals or investors, general or limited
partners, officers, directors, shareholders, trustees, beneficiaries,
participants, advisors, managers, employees, agents or affiliates of Landlord,
or of any of the other foregoing parties,
4
or any of their heirs, successors or assigns have any liability for any of the
foregoing matters. In no event shall Landlord be liable to Tenant for any
consequential damages. If Landlord shall convey or transfer the Property or any
portion thereof in which the Premises are contained to another party, such party
shall thereupon be and become landlord hereunder, shall be deemed to have fully
assumed all of Landlord's obligations under this Lease accruing during such
party's ownership, including the return of any security deposit, and Landlord
shall be free of all such obligations accruing from and after the date of
conveyance or transfer.
13. OFFER. The submission and negotiation of this Amendment shall not be
deemed an offer to enter into the same by Landlord. Tenant's execution of this
Amendment constitutes a firm offer to enter into the same which may not be
withdrawn for a period of forty-five (45) days after delivery to Landlord.
During such period, Landlord may proceed in reliance thereon and permit Tenant
to enter the Additional Premises, but such acts shall not be deemed an
acceptance. Such acceptance shall be evidenced only by Landlord signing and
delivering this Amendment to Tenant.
14. WHOLE AMENDMENTS; FULL FORCE AND EFFECT; CONFLICTS. This Amendment
sets forth the entire agreement between the parties with respect to the matters
set forth herein. There have been no additional oral or written representations
or agreements. As amended herein, the Lease between the parties shall remain in
full force and effect. As an inducement for Landlord to enter into this
Amendment, Tenant hereby represents that Landlord is not in violation of the
Lease, and that Landlord has fully performed all of its obligations under the
Lease as of the date on which Tenant signs this Amendment. In case of any
inconsistency between the provisions of the Lease and this Amendment, the latter
provisions shall govern and control. This Amendment may be further modified only
in writing signed by both parties.
15. INTERPRETATION; DEFINED AND UNDEFINED TERMS. This Amendment has been
prepared from a generic form intended for use with a variety of underlying lease
forms containing a variety of defined and undefined terms. This Amendment shall
be interpreted in a reasonable manner in conjunction with the Lease. If an
Exhibit is attached to this Amendment, the term "Lease" therein shall refer to
this Amendment or the Lease as amended, and terms such as "Commencement Date"
and "Lease Term" shall refer to analogous terms in this Amendment, all as the
context expressly provides or reasonably implies. Unless expressly provided to
the contrary herein: (a) any terms defined herein shall have the meanings
ascribed herein when used as capitalized terms in other provisions hereof, (b)
capitalized terms not otherwise defined herein shall have the meanings, if any,
ascribed thereto in the Lease, and (c) non-capitalized undefined terms herein
shall be interpreted broadly and reasonably to refer to terms contained in the
Lease which have a similar meaning, and as such terms may be further defined
therein. Notwithstanding the foregoing, the parties agree that terms such as
"rentable area" and "rentable square feet" herein do not refer to similar such
terms in the Lease, and include the so-called usable area, without deduction for
columns or projections, multiplied by one or more load or conversion factors, to
reflect a share of certain areas, which may include ground floor and elevator
lobbies, corridors, mechanical, utility, janitorial, boiler and service rooms
and closets, restrooms, and other common, public and service areas, as
determined by Landlord in accordance with existing building records or other
sound management practices.
16. DEVELOPMENT OR COMPLEX (IF APPLICABLE). The parties further agree as
follows:
a. Definition of Property. The term "Property" herein shall mean the
Building, and any common areas or facilities, easements, corridors, lobbies,
sidewalks, loading areas, driveways, landscaped areas, air rights, development
rights, parking rights, skywalks,
5
parking garages and lots, and any and all other rights, structures or facilities
operated or maintained in connection with or for the benefit of the Building,
and all parcels or tracts of land on which all or any portion of the Building or
any of the other foregoing items are located. Landlord reserves the right to add
land, buildings, easements or other interests to, or sell or eliminate the same
from, the Property and grant interests and rights in the Property to other
parties. If the Building shall now or hereafter be part of a development or
complex of two or more buildings or structures collectively owned by Landlord or
its affiliates, the Property shall, at Landlord's option also be deemed to
include such other of those buildings or structures as Landlord shall from time
to time designate, and shall as of the date hereof include such buildings and
structures (and related facilities and parcels on which the same are located) as
Landlord shall be currently using in determining Tenant's share of expenses and
taxes.
b. Expense and Tax Allocations and Tenant's Share Adjustments. If the
Property shall now or hereafter be part of or shall include a development or
complex of two or more buildings or structures collectively owned by Landlord or
its affiliates, Landlord may allocate expenses and taxes (or components thereof)
within such complex or development, and between such buildings and structures
and the parcels on which they are located, in accordance with sound accounting
and management practices. In the alternative, Landlord shall have the right to
determine, in accordance with sound accounting and management practices,
Tenant's share of expenses and taxes (or components thereof) based on such items
for all or any such buildings and structures, and any common areas or
facilities, easements, corridors, lobbies, sidewalks, loading areas, driveways,
landscaped areas, air rights, development rights, parking rights, skywalks,
parking garages and lots, and any and all other rights, structures or facilities
operated or maintained in connection therewith or for the benefit thereof, and
all parcels or tracts of land on which all or any portion of any of the other
foregoing items are located; in such event, Landlord may adjust Tenant's share
to be based on the ratio of the rentable area of the Premises to the rentable
area of such buildings as to which such expenses and taxes (or components
thereof) are included. If Landlord is not furnishing all or any particular
utility or service (the cost of which, if performed by Landlord, would be
included in expenses) to a tenant during any period, Landlord may for such
period exclude the rentable area of such tenant from the rentable area of the
Property in computing Tenant's share of the component of expenses for such
utilities or services.
6
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
LANDLORD: CMD REALTY INVESTMENT FUND IV, L.P. [SEAL]
an Illinois limited partnership
By: CMD/Fund IV GP Investments, L.P.
an Illinois limited partnership, its general partner
By: CMD XXXX IV, Inc., an Illinois corporation,
its general partner
By:/s/ Xxx Xxxxxxxx
----------------
Name: Xxx Xxxxxxxx
Its: Vice President
TENANT: MESA AIR GROUP, INC. [SEAL]
a Nevada corporation
By:/s/ Xxxx Xxxx
-------------
Name: Xxxx Xxxx
Its: President
CERTIFICATE
I, ___________________________________________, as _______________________
of the aforesaid Tenant, hereby certify that the individual(s) executing the
foregoing Lease on behalf of Tenant was/were duly authorized to act in
his/their capacities as set forth above, and his/their action(s) are the action
of the Tenant.
(Corporate Seal) _________________________________________________
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EXHIBIT A
Floor Plate Showing Additional Premises
Additional Premises
-------------------
[2ND FLOOR - FLOOR PLAN]
8
174D (1/00)
LEASE AMENDMENT FOUR
(SATELLITE DISH)
THIS LEASE AMENDMENT FOUR ("Amendment") is made and entered into as of the
15th day of May, 2001, by and between CMD REALTY INVESTMENT FUND IV, L.P., an
Illinois limited partnership ("Landlord") and MESA AIR GROUP, INC., a Nevada
corporation ("Tenant").
A. Landlord and Tenant are the current parties to that certain lease
("Original Lease") dated October 16, 1998, for premises known as Suites 175,
230, and 700 (the "Premises") in the building (the "Building") known as Three
Gateway, located at 000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Property"),
as it may have been previously amended (collectively, and as amended herein, the
"Lease").
B. The parties mutually desire to amend the Lease on the terms hereof.
NOW, THEREFORE, the parties hereby agree as follows:
1. ROOF SPACE AND ROOF ITEMS. Landlord hereby grants Tenant a
non-exclusive license to use a portion of the roof, or a position on the parapet
or penthouse or other such area near the top of the Property or top of any
garage or other such structure associated therewith ("Roof Space"), as
designated by Landlord in writing, subject to the other provisions hereof.
Tenant shall use the Roof Space only for the purpose of installing the following
item or items (the "Roof Items"): one (1) satellite reception dish, which shall
under no circumstances exceed 18 inches wide by 18 inches tall. The term
("Term") of this license shall commence on July 1, 2001, and continue until the
earlier to occur of the expiration or earlier termination of the Lease or, at
Landlord's option, Tenant's abandonment or failure to use the Premises or Roof
Space or Roof Items, or otherwise by Landlord on thirty days notice.
2. PAYMENTS. Tenant shall pay Landlord, as consideration for reserving
the Roof Space and as additional Rent under the Lease, $50.00 ("Roof Charges")
on or before the first day of each calendar month of the Term without prior
demand, deduction, set-off or counterclaim. Tenant shall also reimburse Landlord
for: (a) all utilities consumed by the Roof Items, as reasonably estimated by
Landlord's engineer, within 30 days after Landlord bills the same from time to
time, and (b) all out-of-pocket costs which Landlord pays to consultants and
other parties (such as but not limited to telecommunications, structural and
roofing consultants, engineers and contractors) in connection with the Roof
Items or the license granted hereunder, together with an amount equal to fifteen
percent (15%) thereof to cover Landlord's overhead, within thirty days after
presentation to Tenant by Landlord of invoices therefor.
3. INSTALLATION.
a. Roof Items. Tenant shall not install the Roof Items, or thereafter
make any alterations, additions or improvements to the roof or the Roof Items,
or remove the Roof Items, without the prior written consent of Landlord
concerning all details thereof, including, but not limited to, the location of
the Roof Space. Landlord shall not unreasonably withhold consent, except that
Landlord reserves the right to withhold consent in Landlord's sole discretion
for Roof Items or work affecting the structure or safety of the Property, or any
other parties' rights, or the appearance of the Property from any common or
public areas. Landlord shall approve or reject the proposed installation of the
Roof Items within a reasonable time after Tenant submits (i) plans
1
and specifications for the installation of the Roof Items, and (ii) copies of
all required governmental, quasi-governmental and other approvals, permits,
licenses, and authorizations which Tenant will obtain at its own expense
(including, but not limited to, approvals from any architectural or design
review committee established under any covenants, conditions and restrictions
applicable to the Property). Landlord also reserves the right to require that:
(a) the Roof Items be placed in a manner that is not attached to the Property
and that does not penetrate the roof (e.g. placed in a movable container), (b)
any installation or other work be done in accordance with any Property rules,
standards or other requirements for roof equipment and/or under the supervision
of Landlord's employees or agents, and in a manner so as to avoid damage to the
Property, (c) roof pavers or walk pads be installed on the roof, at Tenant's
sole cost, to provide a means of access to the Roof Space, (d) screening of a
material prescribed by Landlord be installed, at Tenant's sole cost, to prevent
the Roof Items from being visible to the public or to other tenants or from
other buildings, and (e) all work be performed by contractors approved or
designated by Landlord (and any work affecting the roof must be performed only
by Landlord's designated roofing contractor). All work shall be performed in a
good and workmanlike manner and best industry practices and procedures, in
accordance with all governmental requirements and in accordance with all
provisions of the Lease respecting work to the Premises.
b. Connecting Lines and Related Equipment. If Tenant needs to
connect the Roof Items to any other equipment, including connections via
telecommunications cables ("Lines") to the Premises, Tenant shall: (i) obtain
Landlord's prior written approval of all aspects thereof, (ii) use an
experienced and qualified contractor reasonably designated or approved in
writing in advance by Landlord, (iii) comply with such reasonable inside wire
standards and procedures as Landlord may adopt from time to time, including
Landlord's requirements respecting access to and use of the wire closets, riser
system and main distribution frame ("MDF"), and all other provisions of this
Lease, (iv) not install Lines in the same sleeve, chaseway or other enclosure in
close proximity with electrical wire, and not install PVC-coated Lines except as
may be permitted by code, (v) thoroughly test any riser Lines to which Tenant
intends to connect any Lines to ensure that such riser Lines are available and
are not then connected to or used for telephone, data transmission or any other
purpose by any other party (whether or not Landlord has previously approved such
connections), and not connect to any such unavailable or connected riser Lines,
and (vi) not connect any equipment to the Lines which may create an
electromagnetic field exceeding the normal insulation ratings of ordinary
twisted pair riser cable or cause radiation higher than normal background
radiation, unless the Lines therefor (including riser Lines) are appropriately
insulated to prevent such excessive electromagnetic fields or radiation (and
such insulation shall not be provided by the use of additional unused twisted
pair Lines). In addition, all such work shall be performed in a good and
workmanlike manner and best industry practices and procedures, in accordance
with all governmental requirements and in accordance with all provisions of the
Lease respecting work to the Premises.
4. CONDITION; PERMITS. Tenant has inspected the roof and agrees to
accept the same hereunder "as is". Landlord does not represent or warrant that
use of the roof hereunder will comply with any applicable federal, state,
county or local Laws or ordinances or the regulations of any of their agencies,
nor any covenants, conditions or restrictions that may apply to the Property,
nor that the roof will be suitable for Tenant's purposes. Tenant agrees that
Tenant shall at all times comply with any applicable federal, state, county or
local laws or ordinances, pertaining to Tenant's use of the roof or the Roof
Items, and all applicable covenants, conditions and restrictions. Tenant's
failure or inability to obtain any necessary permits, approvals, variances or
waivers respecting the Roof Items shall not excuse Tenant from any obligations
under this Lease; any variances or waivers shall be subject to Landlord's prior
written
2
approval to determine whether such variances or waivers may limit any rights to
place or maintain other roof items at the Property or otherwise adversely affect
Landlord or the Property.
5. ROOF OR OTHER PROPERTY DAMAGE; REMOVAL OF ROOF ITEMS. Tenant shall
take all appropriate actions to prevent any roof or building leaks or other
damage or injury to the Roof Space or the Property or contents thereof
(collectively, "Property Damage") caused by Tenant's use of the Roof Space or
its installation, use, maintenance or removal of the Roof Items, and shall
promptly notify Landlord of any such Property Damage. In the event of any such
Property Damage, Landlord may: (i) require that Tenant pay Landlord's reasonable
costs for repairing such Property Damage within fifteen days after Landlord
submits an invoice and reasonable supporting documentation therefor, or (ii)
require that Tenant perform the necessary repairs in a good and workmanlike
manner using a contractor designated or approved by Landlord at Tenant's expense
within fifteen days after Landlord's notice. Upon termination of the Lease or
this Exhibit, Tenant shall disconnect and remove the Roof Items, and, at
Landlord's written election, any Lines installed by or for Tenant hereunder. If
Tenant does not immediately remove the Roof Items or Lines when so required,
Tenant hereby authorizes Landlord to remove and dispose of the same and Tenant
shall promptly pay Landlord's reasonable charges for doing so. Any Lines not
required to be removed pursuant to this Section shall, at Landlord's option,
become the property of Landlord (without payment by Landlord).
6. MISCELLANEOUS. Except to the extent expressly inconsistent herewith, all
rights and obligations of the parties respecting the Premises under the Lease
shall apply to the Roof Space and Roof Items, including, without limitation,
obligations respecting compliance with laws, hazardous materials, repairs,
casualty damage, indemnities and insurance (including waivers of insurers'
subrogation rights). Landlord shall permit Tenant reasonable access to the roof
for the purposes permitted hereunder, during normal business hours at the
Property upon reasonable advance notice and scheduling through Landlord's
management and security personnel. Access after normal business hours may be
granted by Landlord in its reasonable discretion, and for such reasonable
charges as Landlord shall impose. Landlord reserves the right to enter the roof,
without notice, at any time for the purpose of inspecting the same, or making
repairs, additions or alterations to the Property, or to exhibit the roof to
prospective tenants, purchasers or others, or for any other reason not
inconsistent with Tenant's rights hereunder. In connection with exercising such
rights, upon ten days prior written or oral notice to Tenant's on-site manager
(except that no notice shall be required in an emergency, e.g. to repair roof
leaks associated with the Roof Space or Roof Items), Landlord may temporarily
disconnect the Roof Items and/or move the Roof Items. Landlord also reserves the
right, from time to time upon thirty days prior written notice to Tenant, to
relocate the Roof Space and/or move or require that Tenant move the Roof Items,
to another location or locations, provided: (i) Landlord shall use reasonable
efforts to provide such other space that will be reasonably comparable and
feasible for Tenant's purposes, and (ii) Landlord shall pay all reasonable,
direct, out-of-pocket expenses incurred by Tenant in connection therewith
(excluding lost profits of other consequential damages). Tenant may not assign
or sublicense its rights under this Exhibit, nor let any other party tie into or
use the Roof Items or the roof, and Tenant may not transmit or distribute
signals through the Roof Items to any parties not affiliated with Tenant, and
any attempt to assign, sublicense, transmit or distribute signals in violation
of the foregoing shall be null and void. Tenant shall comply with all FCC
requirements, and shall not use the roof or the Roof Items so as to interfere in
any way with the ability of Landlord or its tenants and occupants of the
Property and neighboring properties to receive radio, television, telephone,
microwave, short-wave, long-wave or other signals of any sort, nor so as to
interfere with the use of any antennas, satellite dishes or other electronic or
electric equipment or facilities currently or hereafter located on the roof or
any floor or area of the Property or other property. If Tenant violates this
Exhibit, Landlord shall have the right
3
to disconnect the Roof Items until the violations are cured (without limitation
as to Landlord's other remedies under the Lease or at law or equity).
7. BROKERS. Tenant hereby represents and warrants that Tenant has not
dealt with any broker, salesman, agent or finder in connection with this
Amendment, and agrees to defend, indemnify and hold Landlord, and its
employees, agents and affiliates harmless from all damages, losses, judgments,
liabilities and expenses (including reasonable attorneys' fees) arising from any
claims or demands of any broker, salesman, agent or finder with whom Tenant has
dealt for any commission or fee alleged to be due in connection with this
Amendment.
8. GUARANTORS. This Amendment is subject to, and conditioned upon, the
written acceptance hereof by all guarantors of the Lease, who by signing below
shall agree that their guarantee shall apply to the Lease as amended herein,
unless such requirement is expressly waived in writing by Landlord.
9. CONFIDENTIALITY. Tenant shall keep the content and all copies of this
document and the Lease, all related documents or amendments now or hereafter
entered, and all proposals, materials, information and matters relating thereto
strictly confidential.
10. LIMITATION OF LANDLORD'S LIABILITY. Tenant agrees to look solely to
Landlord's interest in the Property for the enforcement of any judgment, award,
order or other remedy under or in connection with the Lease or any related
agreement, instrument or document or for any other matter whatsoever relating
thereto or to the Property or Premises. Under no circumstances shall any present
or future, direct or indirect, principals or investors, general or limited
partners, officers, directors, shareholders, trustees, beneficiaries,
participants, advisors, managers, employees, agents or affiliates of Landlord,
or of any of the other foregoing parties, or any of their heirs, successors or
assigns have any liability for any of the foregoing matters. In no event shall
Landlord be liable to Tenant for any consequential damages. If Landlord shall
convey or transfer the Property or any portion thereof in which the Premises are
contained to another party, such party shall thereupon be and become landlord
hereunder, shall be deemed to have fully assumed all of Landlord's obligations
under this Lease accruing during such party's ownership, and Landlord shall be
free of all such obligations accruing from and after the date of conveyance or
transfer.
11. WHOLE AMENDMENT; FULL FORCE AND EFFECT; CONFLICTS. This Amendment
shall not be binding unless and until signed and delivered by both parties. This
Amendment sets forth the entire agreement between the parties with respect to
the matters set forth herein. There have been no additional oral or written
representations or agreements. As amended herein, the Lease between the parties
shall remain in full force and effect; provided, this Amendment is intended to
supersede any prior rights of Tenant to have any satellite dishes, antennas or
other such equipment on the roof or other exterior areas of the Property, and
all such provisions are hereby deleted. In case of any inconsistency between the
provisions of the Lease and this Amendment, the latter provisions shall govern
and control. This Amendment may be further modified only in writing signed by
both parties.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
LANDLORD: CMD REALTY INVESTMENT FUND IV, L.P. [SEAL]
an Illinois limited partnership
By: CMD/Fund IV GP Investments, L.P.,
an Illinois limited partnership, its general partner
By: CMD XXXX IV, Inc., an Illinois corporation,
its general partner
By:
-----------------------------------------
Name: Xxx Xxxxxxxx
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Its: Vice President
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TENANT: MESA AIR GROUP, INC. [SEAL]
a Nevada corporation
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
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Its: Sr. Dir. Cust. Serv.
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GUARANTORS:
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