FOURTH AMENDMENT TO OFFICE LEASE AGREEMENT AZTAR CORPORATION BILTMORE FINANCIAL CENTER I
EXHIBIT
10.19(d)
FOURTH AMENDMENT TO
OFFICE LEASE AGREEMENT
OFFICE LEASE AGREEMENT
AZTAR CORPORATION
BILTMORE FINANCIAL CENTER I
BILTMORE FINANCIAL CENTER I
THIS FOURTH AMENDMENT TO LEASE (this “Fourth Amendment”) is
entered into for reference purposes this 19th day of December, 2005, by and between:
(a) EAST CAMELBACK ROAD, INC., a Florida corporation, successor-in-interest by assignment and
assumption to SFERS Real Estate S Limited Partnership, an Arizona limited partnership
(“Landlord”), as landlord; and (b) AZTAR CORPORATION, a Delaware corporation (“Tenant”), as
tenant.
RECITALS
A. This Fourth Amendment is entered into in consideration of the mutual promises, covenants
and conditions set forth below, the receipt and sufficiency of which are hereby acknowledged by
the parties.
B. Landlord
and Tenant entered into a written Lease and Exhibits A through
C thereto
dated for reference purposes August 25, 1997, as amended by a written First Amendment to Lease
dated for reference purposes May 26, 2000, a written Second Amendment to Lease dated for reference
purposes March 7, 2001, and a written Third Amendment to Lease dated for reference purposes August
4, 2003 (collectively, the “Lease”), pertaining to approximately 13,058 rentable square feet of
premises identified as Suite 400 (the “Original Premises”), in the office building located at 0000
Xxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx (the “Building”), commonly known as the “Biltmore Financial
Center I”.
C. The parties now desire to extend the Term of the Lease and expand the Original Premises,
as more particularly set forth below, otherwise subject to the terms and conditions set forth in
the Lease.
D. Capitalized terms used in this Fourth Amendment without definition shall have the same
meanings given to such terms in the Lease. Upon complete execution of this Fourth Amendment, all
of the terms and conditions hereof shall take effect as of the reference date set forth above,
unless expressly stated otherwise.
AGREEMENTS
1. Address of Landlord for Notices. The “LANDLORD’S ADDRESS” set forth on the
Reference Page of the Lease, as previously amended, is hereby further amended by deleting
the same in its entirety and replacing it with the following:
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| LANDLORD’S ADDRESS: | c/o Transwestern Commercial Services | |||
| 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| Attention: Property Manager | ||||
| with a copy to: | ||||
| Brier & Irish, P.L.C. | ||||
| 0000 X. Xxxxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxx, Xxxxxxx 00000-0000 | ||||
| Attention: Xxxxxx X. Xxxxx, Esq. |
2. Demise. In addition to the Original Premises, Tenant hereby leases from Landlord,
and Landlord hereby leases to Tenant, approximately 3,168 rentable square feet of premises located
adjacent to the Premises (the “Expansion Space”), subject to all of the terms and conditions set
forth in the Lease, as amended and supplemented herein. The Original Premises and the Expansion
Space are hereafter collectively referred to as the “Expanded Premises”. A copy of the floor plan
depicting the approximate location of the entire Expanded Premises is attached hereto as
Exhibit A (Revised) and incorporated herein by this reference. Landlord shall prepare the
Expanded Premises for occupancy by Tenant pursuant to the Work Letter attached hereto as
Exhibit 1 and incorporated herein by this reference. Tenant acknowledges that Landlord will
perform the Landlord Work (as defined in the Work Letter) in the Expanded Premises during business
hours and hereby waives and releases any and all claims against Landlord for inconvenience, damage
or otherwise arising out of Landlord’s completion of the Landlord Work.
3. Term. Tenant shall have and hold the entire Expanded Premises for a Term of three
(3) full calendar years, plus any partial calendar year at the beginning of said Term (the
“Expanded Premises Term”). The Expanded Premises Term shall commence on the date (the “Expanded
Premises Commencement Date”) which is the earlier of (i) the date on which Landlord notifies Tenant
that the portion of the Landlord Work being completed in the Expansion Space is substantially
complete (as defined in the Work Letter) or would have been substantially complete but for any
delays caused by Tenant, its agents and employees, or (ii) the date Tenant first occupies the
Expansion Space or any portion thereof for the conduct of its business. Promptly following the
Expanded Premises Commencement Date, Landlord and Tenant shall enter into a written memorandum
specifying the Expanded Premises Commencement Date. The Expanded Premises Term shall end on the
last day of the thirty-sixth
(36th) full calendar month after the Expanded Premises Commencement Date (the “Expanded Premises Termination Date”), and the “Termination Date” set forth
on the Reference Page of the Lease, as previously amended, is further amended by deleting
“December 31, 2006” and replacing the same with “the last day of the thirty-sixth (36th)
full calendar month after the Expanded Premises Commencement Date, as set forth in the Fourth
Amendment to Office Lease Agreement”.
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4. Floor Plan. Effective from and after the Expanded Premises Commencement Date: (a)
the premises leased pursuant to the Lease shall be deemed to be the entire Expanded Premises,
containing 16,226 rentable square feet in the aggregate; (b) except as otherwise specified herein,
all references in the Lease to the “Premises” shall mean the Expanded Premises; (c) Exhibit A
(Revised) shall be deemed to fully supersede and replace Exhibit A to the Lease; and
(d) all references in the Lease to Exhibit A shall mean Exhibit A (Revised).
5. Rental Schedule. Effective as of the Expanded Premises Commencement Date, the
“Rental Schedule” set forth in Article 39 of the Lease, as previously amended, is further
amended by deleting the same in its entirety and replacing it with the following:
39. RENTAL SCHEDULE.
| Annual | Monthly Installment | |||||||
| Months | Rate Per RSF | of Annual Rent | ||||||
1 — 12
|
$ | 25.70 | $ | 34,750.68 | ||||
13 — 24
|
$ | 28.50 | $ | 38,536.75 | ||||
25 — 36
|
$ | 29.00 | $ | 39,212.83 | ||||
6. Base Year. Effective as of the Expanded Premises Commencement Date, the “Base Year
(Direct Expenses)” and the “Base Year (Taxes”) set forth on the Reference Page of the
Lease, as previously amended, are further amended by deleting “2004” and replacing the same with
“2006”.
7. Tenant’s Proportionate Share. Effective as of the Expanded Premises Commencement
Date, the “Tenant’s Proportionate Share” set forth on the Reference Page of the Lease is
amended by deleting “6.37%” and replacing the same with “7.92%”.
8. Parking. Effective as of the Expanded Premises Commencement Date, the first two
sentences set forth in Article 40 (“Parking”) of the Lease, as previously amended, are
further amended by deleting the same in their entirety and replacing them with the following:
During the Expanded Premises Term, Tenant shall have the right to use and the obligation
to pay for a total of thirty-seven (37) parking spaces, as follows: (i) twenty-five (25)
reserved parking spaces at $55.00 per month each, plus applicable rental taxes thereon;
and, (ii) twelve (12) unreserved parking spaces at $35.00 per month each, plus applicable
rental taxes thereon.
9. No Commissions. Landlord and Tenant represent and warrant to each other that there
are no claims for brokerage commissions or finder’s fees in connection with this Fourth Amendment.
Landlord and Tenant hereby indemnify each other against and hold each other harmless for, from and
against all liabilities arising from any such
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claims, including any attorneys’ fees and costs incurred by the non-breaching party in connection
therewith.
10. Lease
Status. Tenant hereby represents and warrants to Landlord that there are no
offsets or credits against rentals nor have any rentals been paid in
advance. Further, Tenant
agrees that there are no existing claims or causes of action against Landlord arising out of the
Lease, nor are there any existing defenses which Tenant has against the enforcement of the Lease
by Landlord.
11. Ratification. It is understood and agreed that the Lease is ratified, affirmed and
in full force and effect, and has not been modified, supplemented or amended in any way, except as
herein provided. In the event of any inconsistency between the terms of the Lease and this Fourth
Amendment, the terms of this Fourth Amendment shall prevail. All references in the Lease to “this
Lease” shall be deemed references to the Lease, as modified by this Fourth Amendment.
12. Authority. The parties and all persons signing for the parties below represent to
each other that this Fourth Amendment has been fully authorized and no further approvals are
required.
13. Successors. Subject to the provisions of Article 9 of the Lease, this
Fourth Amendment shall be binding on, and inure to the benefit of, the parties hereto and their
respective assigns and successors in interest.
14. Counterparts. This Fourth Amendment may be executed in one or more counterparts,
each of which, when taken together, shall constitute one entire
agreement.
Remainder of Page Intentionally Left Blank
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IN WITNESS WHEREOF, the parties have duly executed this Fourth Amendment as of the day and
year set forth below their respective signatures.
| LANDLORD: EAST CAMELBACK ROAD, INC., a Florida corporation |
|||||
| By: | /s/ Xxxxxx Xxxx | ||||
| Xxxxxx Xxxx | |||||
| Its: Vice President | |||||
| Dated: January 5, 2006 | |||||
| TENANT: AZTAR CORPORATION, a Delaware corporation |
|||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx, Xx. | ||||
| Xxxxxx X. Xxxxxxxxx, Xx. | |||||
| Its: Vice President Administration & Secretary | |||||
| Dated: December 23, 2005 | |||||
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