EXHIBIT 10.8
COMMERCIAL LEASE AGREEMENT
TABLE OF CONTENTS EXHIBITS AND ADDENDA. Any exhibit or addendum attached to this
Article Page Lease is incorporated as a part of this Lease for all purposes.
1 Defined Terms 1 Any term not specifically defined in the Addenda shall have the
2. Lease and Lease Term 2 same meaning given to it in the body of this Lease. To the
3. Rent and Security Deposit 2 extent any provisions in the body of this Lease conflict with the
4. Taxes 3 Addenda, the Addenda shall control.
5. Insurance and Indemnity 3
6. Use of Demised Premises 4 [Check all boxes which apply. Boxes not checked do not apply.]
7. Property Condition, Maintenance, Repairs and 5
Alterations [X] Exhibit A Survey and/or Legal Description of the Property
8. Damage or Destruction 6 [X] Exhibit B Floor Plan and/or Site Plan
9. Condemnation 7
10. Assignment and Subletting 7 [X] Addendum A Expense Reimbursement
11. Default and Remedies 7 [X] Addendum B Renewal Options
12. Landlord's Contractual Lien 9 [X] Addendum C Right of First Refusal for Additional Space
13. Protection of Lenders 9 [DELETED]
14. Environmental Representations and Indemnity 10 [DELETED]
15. Professional Service Fees 10 [X] Addendum F Construction of Improvements
16. Miscellaneous 11 [X] Addendum G Rules and Regulation
17. Additional Provisions 13 [X] Addendum H Other Rent Schedule
IN CONSIDERATION of the terms, provisions and agreements contained in this
Lease, the parties agree as follows:
ARTICLE ONE: DEFINED TERMS. As used in this Commercial Lease Agreement (the
"Lease"), the terms set forth in this Article One have the following respective
meanings:
1.01. Effective Date: The last date beneath the signatures of Landlord and
Tenant on page 13 below.
1.02. Landlord: XXXXXXX DEVELOPMENT CO.
Address: X.X. Xxx 000000, Xxxxxx, Xxxxx 00000-0000 (Location - 0000 X.
Xxxxxxxxx Xxx., Xxxxx 0000, Xxxxxx, Xxxxx 75220)
Telephone: 214/000-0000 Fax: 214/000-0000
1.03. Tenant: CHEAP TICKETS, INC.
Address: 0000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxx 00000
Telephone: 808/000-0000 Fax: 808/000-0000
1.04. Demised Premises: MOUNTAIN SHADOWS BUSINESS PARK - BUILDING I
A. Address: 0000 X. 00xx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000 in: El Paso
County, Colorado
B. Legal Description: The property on which the Demised Premises is
situated (the "Property" is more particularly
[DELETED]described on Exhibit A, SURVEY AND/OR LEGAL DESCRIPTION.
C. Floor Plan or Site Plan: Being a floor area of approximately 25,000
square feet [DELETED]being more particularly shown in outline form on
Exhibit B, FLOOR PLAN AND/OR SITE PLAN. The final floor plan and square
footage shall be determined upon approval of detailed plans and
specifications to be prepared by Landlord as part of the Tenant
Occupancy Expense.
D. Tenant's pro rata share of the Property.* [See Addendum A, EXPENSE
REIMBURSEMENT, if applicable]
*shall be based on the square footage [DELETED] contained in the Demised
Premises in proportion to the square footage in the Building 1 area.
1.05. Lease Term: Ten (10) years and No (0) months beginning on approximately
June 1, 1999 (the "Commencement Date") and
ending on approximately May 31, 2009 the "Expiration Date").
1.06. Base Rent: $11.50 per square foot with two percent (2%) annual
increases, approximately $3,119,294.85 total Base Rent for the Lease Term
payable in monthly installments [DELETED] in advance as per the Rent Schedule
attached hereto as Addendum H (to be updated with the Commencement Date letter
to incorporate the actual commencement date and the final square footage. (The
total amount of Rent is defined in Section 3.01.)
1.07. [DELETED]
1.08. Security Deposit: $32,069.93 due upon execution of this Lease). [See
Section 3.04]
1.09. Permitted Use: General office or uses compatible with the building.
[See Section 6.01]
1.10. Party to whom Tenant is to deliver payments under this Lease [check
one]: [X] Landlord, [_] Principal Broker, or [_] Other Landlord may designate in
writing the party authorized to act on behalf of Landlord to enforce this Lease.
Any such authorization will remain in effect until it is revoked by Landlord in
writing.
1.11. Principal Broker: BACH COMMERCIAL BROKERAGE COMPANY acting as [check
one] [X] agent for Landlord exclusively, [_] agent for Tenant exclusively, [_]
an intermediary.
Principal Broker's Address: 0 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
XX 00000-0000
Telephone: 719/000-0000 Fax: 719/000-0000
1.12. Cooperating Broker: XXXXXX XxXXXXXXXX CO. acting as [check one] [_]
agent for Landlord exclusively, [X] agent for Tenant exclusively, [_] an
intermediary.
Cooperating Broker's Address: 0 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
XX 00000-0000
Telephone: Fax:
1.13. DELETED
A. DELETED
B. DELETED
1.14. Acceptance: The number of days for acceptance of this offer is Ten (10)
days. (See Section 16.14]
ARTICLE TWO: LEASE AND LEASE TERM
2.01. Lease of Demised Premises for Lease Term. Landlord leases the Demised
Premises to Tenant and Tenant leases the Demised Premises from Landlord for the
Lease Term stated in Section 1.05. The Commencement Date is the date specified
in Section 1.05, unless advanced or delayed under any provision of this Lease.
2.02. Delay in Commencement. Landlord shall not be liable to Tenant if
Landlord does not deliver possession of the Demised Premises to Tenant on the
Commencement Date specified in Section 1.05 above. Landlord's non-delivery of
possession of the Demised Premises to Tenant on the Commencement Date will not
affect this Lease or the obligations of Tenant under this Lease. However, the
Commencement Date shall be delayed until possession of the Demised Premises is
delivered to Tenant. The Lease Term shall be extended for a period equal to the
delay in delivery of possession of the Demised Premises to Tenant, plus the
number of days necessary for the Lease Term to expire on the last day of a
month. If Landlord does not deliver possession of the Demised Premises to Tenant
within sixty (60) days after the Commencement Date specified in Section 1.05,
Tenant may cancel this Lease by giving written notice to Landlord within ten
(10) days after the 60-day period ends. If Tenant gives such notice, this Lease
shall be canceled effective as of the date of its execution, and no party shall
have any obligations under this Lease. If Tenant does not give such notice
within the time specified, Tenant shall have no right to cancel this Lease, and
the Lease Term shall commence upon the delivery of possession of the Demised
Premises to Tenant. If delivery of possession of the Demised Premises to Tenant
is delayed, Landlord and Tenant shall, upon such delivery, execute an amendment
to this Lease setting forth the revised Commencement Date and Expiration Date of
the Lease Term.
2.03. Early Occupancy. If Tenant occupies the Demised Premises prior to the
Commencement Date, Tenant's occupancy of the
Demised Premises shall be subject to all of the provisions of this Lease. Early
occupancy of the Demised Premises shall not advance the Expiration Date. Unless
otherwise provided herein, Tenant shall pay Base Rent and all other charges
specified in this Lease for the period of occupancy. It is understood that
Tenant will be performing work directly with contractors for a portion of their
Tenant improvements and this work will not constitute occupancy of the Demised
Premises.
2.04. Holding Over. Tenant shall vacate the Demised Premises immediately upon
the expiration of the Lease Term or earlier termination of this Lease. Tenant
shall reimburse Landlord for and indemnify Landlord against all damages incurred
by Landlord as a result of any delay by Tenant in vacating the Demised Premises.
If Tenant does not vacate the Demised Premises upon the expiration of the Lease
Term or earlier termination of this Lease, Tenant's occupancy of the Demised
Premises shall be a month-to-month tenancy, subject to all of the terms of this
Lease, except that the Base Rent during the holdover period shall be increased
to an amount which is 25% times the Base Rent in effect on the expiration or
termination of this Lease, computed on a monthly basis for each month of the
holdover period, plus all additional sums due under this Lease. This paragraph
shall not be construed as Landlord's consent for Tenant to hold over or to
extend this Lease. Tenant shall have the right to extend the primary lease term
for six (6) one (1) month periods, subject to three (3) months prior written
notice to Landlord at a holdover rate of 125% of the previous month's base rent
amount, plus all other amounts payable as discussed above.
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01. Manner of Payment. All sums payable under this Lease by Tenant (the
"Rent") shall be made to the Landlord at the address designated in Section 1.02,
unless another person is designated in Section 1. 10, or to any other party or
address as Landlord may designate in writing. Any and all payments made to a
designated third party for the account of the Landlord shall be deemed made to
Landlord when received by the designated third party. All sums payable by Tenant
under this Lease, whether or not expressly denominated as rent, shall constitute
rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all
other purposes. The Base Rent is the minimum rent for the Demised Premises and
is subject to the terms and conditions contained in this Lease, together with
the attached Addenda, if any.
3.02. Time of Payment. Upon execution of this Lease, Tenant shall pay the
installment of Base Rent plus other estimated costs for the first month of the
Lease Term. On or before the first day of the second month of the Lease Term and
of each month thereafter, the installment of Base Rent and other sums due under
this Lease shall be due and payable, in advance, without off-set, deduction or
prior demand. Tenant shall cause payments to be properly mailed or otherwise
delivered so as to be actually received by the party identified in 1.10 above on
or before the due date (and not merely deposited in the mail). If the Lease Term
commences or ends on a day other than the first or last day of a calendar month,
the rent for any fractional calendar month following the Commencement Date or
preceding the end of the Lease Term shall be prorated by days.
3.03 Late Charges. Tenant's failure to promptly pay sums due under this Lease
may cause Landlord to incur unanticipated costs. The exact amount of those costs
is impractical or extremely difficult to ascertain. The costs may include, but
are not limited to, processing and accounting charges and late charges which may
be imposed on Landlord by any ground Lease or deed of trust encumbering the
Demised Premises. Payments due to Landlord under this Lease are not an extension
of credit. Therefore, if any payment under the Lease is not actually received on
or before the due date (and not merely deposited in the mail), Landlord may, at
Landlord's option and to the extent allowed by applicable law, impose a Late
Charge on any late payments in an amount equal to one-half of one percent (0.5%)
of the amount of the past due payment (the "Late Charge") per day for each day
after the due date. until the past due amount in Good Funds is received by
Landlord, up to a maximum of two percent (2%) of the past due amount. A Late
Charge may be imposed only once on each past due payment. Any Late Charge will
be in addition to Landlord's other remedies for nonpayment of rent. If any check
tendered to Landlord by Tenant under this Lease is dishonored for any reason,
Tenant shall pay to the party receiving payments under this Lease a fee of
twenty-five dollars ($25.00), plus (at Landlord's option) a Late Charge as
provided above until good funds are received by Landlord. The parties agree that
any Late Charge and dishonored check fee represent a fair and reasonable
estimate of the costs Landlord will incur by reason of the late payment or
dishonored check. Payments received from Tenant shall be applied first to any
base rent, second to late charges, and last to other unpaid charges or
reimbursements due to Landlord. Notwithstanding the foregoing, Landlord will not
impose a Late Charge as to the first late payment in any calendar year, unless
Tenant fails to pay the late payment to Landlord within three (3) business days
after the delivery of a written notice from Landlord to Tenant demanding the
late payment be paid. However, Landlord may impose a Late Charge without advance
notice to Tenant on any subsequent late payment in the same calendar year.
3.04. Security Deposit. Upon execution of this Lease, Tenant shall deposit
with Landlord a cash Security Deposit in the amount stated in Section 1.08.
Landlord may apply all or part of the Security Deposit to any unpaid Rent or
other charges due from Tenant or to cure any other defaults of Tenant. If
Landlord uses any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within (10) days after Landlord's written
demand. Tenant's failure to restore the full amount of the Security Deposit
within the time specified shall be a default under this Lease. Interest at the
rate of four percent (4%) compounded annually shall
accrue on the Security Deposit and shall become a part of the Security Deposit.
Landlord will not be required to keep the Security Deposit separate from its
other accounts and no trust relationship is created with respect to the Security
Deposit. Upon any termination of this Lease not resulting from Tenant's default,
and after Tenant has vacated the Property and cleaned and restored the Demised
Premises in the manner required by this Lease, Landlord shall refund the unused
portion of the Security Deposit to Tenant within thirty days after the
Termination Date or thirty days after Tenant fully complies with the conditions
of termination as required in Section 7.05, whichever is later.
3.05. Good Funds Payments. If, for any reason whatsoever, any two or more
payments by check from Tenant to Landlord for Rent are dishonored and returned
unpaid, thereafter Landlord may, at Landlords sole option, upon written notice
to Tenant. require that all future payments of Rent for the remaining term of
the Lease must be made by cash, certified check, cashier's check, or money order
("Good Funds") and that the delivery of Tenant's personal or corporate check
will no longer constitute payment of Rent under this Lease. Any acceptance by
Landlord of a payment for Rent by Tenant's personal or corporate check
thereafter shall not be construed as a waiver of Landlord's right to insist upon
payment by Good Funds as set forth herein.
ARTICLE FOUR: TAXES
4.01. Payment by Landlord. Landlord shall pay the real estate taxes on the
Demised Premises during the Lease Term.
4.02. Improvements by Tenant. If the real estate taxes levied against the
Demised Premises for the real estate tax year in which the Lease Term commences
are increased as a result of any alterations, additions or improvements made by
Tenant or by Landlord at the request of Tenant, Tenant shall pay to Landlord
upon demand the amount of the increase and continue to pay the increase during
the Lease Term. Landlord shall use reasonable efforts to obtain from the tax
assessor or assessors a written statement of the total amount of the increase.
4.03. Joint Assessment. If the real estate taxes are assessed against the
Demised Premises jointly with other property not constituting a part of the
Demised Premises, the real estate taxes applicable to the Demised Premises shall
be equal to the amount bearing the same proportion to the aggregate assessment
that the total square feet of building area in the Demised Premises bears to the
total square feet of building area included in the joint assessment.
4.04. Personal Property Taxes. Tenant shall pay all taxes assessed against
trade fixtures, furnishings, equipment, inventory, products, or any other
personal property belonging to Tenant. Tenant shall use reasonable efforts to
have Tenant's property taxed separately from the Demised Premises. If any of
Tenant's property is taxed with the Demised Premises, Tenant shall pay the taxes
for its property to Landlord within fifteen (15) days after Tenant receives a
written statement from the Landlord for the property taxes.
ARTICLE FIVE: INSURANCE AND INDEMNITY
5.01. Casualty Insurance. During the Lease Term, Landlord shall maintain
policies of insurance covering loss of or damage to the Demised Premises in an
amount or percentage of replacement value as Landlord deems reasonable in
relation to the age, location, type of construction and physical condition of
the Demised Premises and the availability of insurance at reasonable rates. The
policies shall provide protection against all perils included within the
classification of fire and extended coverage and any other perils which Landlord
deems necessary. Landlord may, at Landlords option, obtain insurance coverage
for Tenant's fixtures, equipment or building improvements installed by Tenant in
or on the Demised Premises. Tenant shall, at Tenant's expense, maintain
insurance on its fixtures, equipment and building improvements as Tenant deems
necessary to Protect Tenant's interest. Tenant shall not do or permit to be done
anything which invalidates any insurance policies. Any casualty insurance
carried by Landlord or Tenant shall be for the sole benefit of the party
carrying the insurance and under its sole control.
5.02. Increase in Premiums. Tenant shall not permit any operation or activity
to be conducted, or storage or use of any volatile or any other materials, on or
about the Demised Premises that would cause suspension or cancellation of any
fire and extended coverage insurance policy carried by Landlord, or increase the
premiums therefor, without the prior written consent of Landlord. If Tenant's
use and occupancy of the Demised Premises causes an increase in the premises for
any fire and extended coverage insurance policy carried by Landlord, Tenant
shall pay to Landlord, as additional rental, the amount of the increase within
ten days after demand and presentation by Landlord of written evidence of the
increase.
5.03 Liability Insurance. During the Lease Term, Tenant shall maintain a
commercial general liability policy of insurance, at Tenant's expense, insuring
Landlord against liability arising out of the ownership, use, occupancy, or
maintenance of the Demised Premises. The initial amounts of the insurance must
be at least: $1,000,000 for Each Occurrence, $2,000,000 General Aggregate per
policy year, $100,000 Property Damage for the Demised Premises, and $10,000
Medical Expense; plus a $5,000,000 commercial
general liability umbrella; and shall be subject to periodic increases based
upon economic factors as Landlord may determine, in Landlord's discretion,
exercised in good faith. However, the amounts of the insurance shall not limit
Tenant's liability nor relieve Tenant of any obligation under this Lease. The
policies must contain cross-liability endorsements, if applicable, and must
insure Tenant's performance of the indemnity provisions of Section 5.04. The
policies must contain a provision which prohibits cancellation or modification
of the policy except upon thirty (30) days' prior written notice to Landlord.
Tenant may discharge Tenant's obligations under this Section by naming Landlord
as an additional insured under a comprehensive policy of commercial general
liability insurance maintained by Tenant and containing the coverage and
provisions described in this Section. Tenant shall deliver a copy of the policy
or certificate (or a renewal) to Landlord prior to the Commencement Date and
prior to the expiration of the policy during the Lease Term. If Tenant fails to
maintain the policy, Landlord may elect to maintain the insurance at Tenant's
expense. Tenant may, at Tenant's expense, maintain other liability insurance as
Tenant deems necessary.
5.04. Indemnity. Landlord shall not be liable to Tenant or to Tenant's
employees, agents, invitees or visitors, or to any other person, for any injury
to persons or damage to property on or about the Demised Premises or any
adjacent area owned by Landlord caused by the negligence or misconduct of
Tenant, Tenant's employees, subtenants, agents, licensees or concessionaires or
any other person entering the Demised Premises under express or implied
invitation of Tenant; or arising out of the use of the Demised Premises by
Tenant and the conduct of Tenants business, or arising out of any breach or
default by Tenant in the performance of Tenants obligations under this Lease;
and Tenant hereby agrees to indemnify and hold Landlord harmless from any loss,
expense or claims arising out of such damage or injury. Tenant shall not be
liable for any injury or damage caused by the negligence or misconduct of
Landlord, or Landlord's employees or agents, and Landlord agrees to indemnify
and hold Tenant harmless from any loss, expense or damage arising out of such
damage or injury.
5.05. Comparative Negligence. Tenant and Landlord hereby unconditionally and
irrevocably agree to indemnify, defend and hold each other and their officers,
agents, directors, subsidiaries, partners, employees, licensees and counsel
harmless, to the extent of each party's comparative negligence, if any, from and
against any and all loss, liability; demand, damage, judgment, suit, claim,
deficiency, interest, fee, charge, cost or expense (including, without
limitation, interest, court costs and penalties, reasonable attorneys fees and
disbursements and amounts paid in settlement, or liabilities resulting from any
change in federal, state or local law or regulation or interpretation of this
Lease) of whatever nature, on a comparative negligence basis, even when caused
in part by Landlord's or Tenant's negligence or the joint or concurring
negligence of Landlord, Tenant, and any other person or entity, which may result
or to which Landlord or Tenant and/or any of their officers, agents, directors,
employees, subsidiaries, partners, licensees and counsel may sustain, suffer,
incur or become subject to in connection with or arising in any way whatsoever
out of the leasing, operation, promotion, management; maintenance, repair, use
or occupation of the Demised Premises, or any other activity of whatever nature
in connection therewith, or arising out of or by reason of any investigation,
litigation or other proceedings brought or threatened, arising out of or based
upon the Leasing, operation, promotion, management, maintenance, repair, use or
occupancy of the Demised Premises, or any other activity on the Demised
Premises. This provision shall survive the expiration or termination of this
Lease.
5.06. Waiver of Subrogation. Each party to this Lease waives any and every
claim which arises or may arise in its favor against the other Party during the
term of this Lease or any renewal or extension of this Lease for any and all
loss of, or damage to, any of its property located within or upon, or
constituting a part of the Demised Premises, which loss or damage is covered by
valid and collectible fire and extended coverage insurance policies, to the
extent that such loss or damage is recoverable under such insurance policies.
These mutual waivers shall be in addition to, and not in limitation or
derogation of, any other waiver or release contained in this Lease with respect
to any loss of, or damage to, property of the parties. Inasmuch as these mutual
waivers will preclude the assignment of any aforesaid claim by way of
subrogation or otherwise to an insurance company (or any other person), each
party hereby agrees to give immediately to each insurance company (which has
issued to such party policies of fire and extended coverage insurance) written
notice of the terms of such mutual waivers, and to cause such policies to be
properly endorsed to prevent the invalidation of the insurance coverage by
reason of these waivers.
ARTICLE SIX: USE OF DEMISED PREMISES
6.01. Permitted Use. Tenant may use the Demised Premises only for the Permitted
Use stated in Section 1.09. Landlord acknowledges that the improvements to be
constructed on the Property and the Tenant Finish-Out to be constructed by
Landlord for Tenant conform to the city zoning ordinance with respect to the
permitted use, height setback requirements, minimum parking requirements,
coverage ratio of improvements to total area of land, and other matters which
may have a significant economic impact upon the Tenants intended use of the
Demised Premises. Tenant acknowledges that Tenant has or will independently
investigate and verify to Tenants satisfaction the extent of any limitations or
non-conforming uses of the Demised Premises. Tenant further acknowledges that
Tenant is not relying upon any warranties or representations of Landlord or the
Brokers who are participating in the negotiation of this Lease concerning the
Permitted Use of the Demised Premises, or with respect to any uses of the
improvements
located on the Demised Premises. Tenant acknowledges that any Tenant Finish-out
work which Tenant performs will conform with all City ordinances, as discussed
above. In addition, Tenant acknowledges that Tenant's use will conform to City
zoning ordinances.
6.02. Compliance with Law. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Demised Premises, and
shall promptly comply with all governmental orders and directives for the
correction, prevention and abatement of nuisances and other activities in or
upon, or connected with the Demised Premises, all at Tenant's sole expense,
including any expense or cost resulting from the construction or installation of
fixtures and improvements or other accommodations for handicapped or disabled
persons required for compliance with governmental laws and regulations,
including but not limited to the [DELETED] and the Americans with Disabilities
Act (the "ADA"). To the extent any alterations to the approved plans and
specifications to the Demised Premises are required by the ADA or other
applicable laws or regulations, Landlord shall bear the expense of the
alterations. To the extent any alterations to areas of the Property outside the
Demised Premises are required by Title III of the ADA or other applicable laws
or regulations (for "path of travel" requirements or otherwise), Landlord shall
bear the expense of the alterations. Should Tenant initiate any work on the
Demised Premises in addition to the work agreed upon per plans and
specifications, all expenses associated therewith shall be at Tenant's expense,
including any ADA. *
6.03. Certificate of Occupancy. Landlord shall obtain a Certificate of
Occupancy from the municipality in which the Property is located if Landlord is
unable to obtain a Certificate of Occupancy, Tenant shall have the right to
terminate this Lease by written notice to Landlord if Landlord is unwilling or
unable to cure the defects which prevented the issuance of the Certificate of
Occupancy. Landlord may, but has no obligation to, cure any such defects,
including any repairs, installations, or replacements of any items which are not
presently existing on the Demised Premises, or which have not been expressly
agreed upon by Landlord in writing.
6.04. Signs. Without the prior written consent of Landlord, Tenant may not
place any signs, ornaments or other objects upon the Demised Premises or on the
Property, including but not limited to the roof or exterior of the building or
other improvements on the Property, or paint or otherwise decorate or deface the
exterior of the building. Any signs installed by Tenant must conform with
applicable laws, deed restrictions on the Property, and other applicable
requirements. Tenant must remove all signs, decorations and ornaments at the
expiration or termination of this Lease and must repair any damage and close any
holes caused by the removal. Subject to the above, Tenant shall have the right
to place signage on the building in accordance with City ordinances. Also, at
such time as Tenant has expanded into the entire Building 1, shown on Exhibit
"B", Tenant shall have the right to put Tenant's information on the monument. *
6.05. Utility Services. Tenant shall pay the cost of all utility services,
including but not limited to initial connection charges, all charges for gas,
water, sewerage, storm water disposal, communications and electricity used on
the Demised Premises, and for replacing all electric lights, lamps and tubes.
Should utilities for the building not be sub-metered to each Tenant, then Tenant
shall be responsible for its Prorata Share of said utilities, plus any extra
ordinary consumption specific to Tenant.
6.06. Landlord's Access. Landlord and Landlord's agents shall have the right
to, during normal business hours and upon reasonable advance notice, and without
unreasonably interfering with Tenant's business, enter the Demised Premises: (a)
to inspect the general condition and state of repair of the Demised Premises,
(b) to make repairs required or permitted under this Lease, (c) to show the
Demised Premises or the Property to any prospective tenant or purchaser, and (d)
for any other reasonable purpose. If Tenant changes the locks on the Demised
Premises, Tenant must provide Landlord with a copy of each separate key. During
the final one hundred fifty (150) days of the Lease Term, Landlord and
Landlord's agents may erect and maintain on or about the Demised Premises signs
advertising the Demised Premises for lease or for sale.
6.07. Possession. If Tenant pays the rent, properly maintains the Demised
Premises, and complies with all other terms of this Lease, Tenant may occupy and
enjoy the Demised Premises for the full Lease Term, subject to the provisions of
this Lease.
6.08. Exemptions from Liability. Landlord shall not be liable for any damage or
injury to the persons, business (or any loss of income), goods, inventory,
furnishings, fixtures, equipment, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Demised Premises, whether the damage or injury is caused by or results from: (a)
fire, steam, electricity, water, gas or wind; (b) the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
_______________________
* the roof on the building, in order not to damage the roof or void any
warranties. Landlord shall provide Tenant with information on the roof
contractor upon request from Tenant. Any roof problems or voiding of warranty
which arise out of Tenant's installation of equipment on the roof shall be at
Tenant's expense. Landlord understands that Tenant may desire to install
additional equipment on the roof as technology advances. Landlord shall not
unreasonable withhold approval for installation of additional equipment.
plumbing, air conditioning or lighting fixtures or any other cause; (c)
conditions arising on or about the Demised Premises or upon other portions of
any budding of which the Demised Premises is a part, or from other sources or
places; or (d) any act or omission of any other tenant of any building on the
Property. Landlord shall not be liable for any damage or injury even though the
cause of or the means of repairing the damage or injury are not accessible to
Tenant. The provisions of this Section 6.08 shall not, however, exempt Landlord
from liability for Landlord's negligence [DELETED] or willful misconduct.
ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS
7.01. Property Condition. Except as disclosed in writing by Landlord to Tenant
contemporaneously with the execution of this Lease, to the best of Landlord's
actual knowledge the Demised Premises has no known latent structural defects,
construction defects of a material nature, and to the best of Landlord's actual
knowledge none of the improvements has been constructed with materials known to
be a potential health hazard to occupants of the Demised Premises. Tenant
acknowledges that neither the Principal Broker nor any Cooperating Broker has
made any warranty or representation to Tenant with respect to the condition of
the Demised Premises, and that Tenant is relying exclusively upon Tenant's own
investigations and the representations of Landlord, if any, with respect to the
condition of the Demised Premises. Landlord and Tenant agree to hold the Brokers
harmless of and from any and all damages, claim, costs and expenses of every
kind and character resulting from or related to Landlord's furnishing to the
Brokers any false, incorrect or inaccurate information with respect to the
Demised Premises, or Landlord's concealing any material information with respect
to the condition of the Demised Premises. Other than as expressly set forth in
this Lease, Landlord represents that on the Commencement Date (and for a period
of thirty (30) days thereafter) the building fixtures and equipment, plumbing
and plumbing fixtures, electrical and lighting system, any fire protection
sprinkler system, ventilating equipment, heating system, air conditioning
equipment, roof, skylights, doors, overhead doors, windows, dock levelers,
elevators, and the interior of the Demised Premises in general are in good
operating condition. Tenant shall have a period of thirty (30) days following
the Commencement Date in which to inspect the Demised Premises and to notify
Landlord in writing of any defects and maintenance, repairs or replacements
required to the above named equipment, fixtures, systems and interior. Within a
reasonable period of time after the timely receipt of any such written notice
from Tenant, Landlord shall, at Landlord's expense, correct the defects and
perform the maintenance, repairs and replacements.
7.02. [DELETED]
7.03. Maintenance and Repair. Except as otherwise provided in this Lease,
Landlord shall be under no obligation to perform any repair, maintenance or
management service in the Demised Premises or adjacent common areas. Tenant
shall be fully responsible, at its expense, for all repair, maintenance and
management services other than those which are expressly assumed by Landlord.
A. Landlord's Obligation.
(1) Subject to the provisions of Article Eight (Damage or
Destruction) and Article Nine (Condemnation) and except for damage caused by any
act or omission of Tenant, Landlord shall keep the roof, skylights, foundation,
structural components and the structural portions of exterior walls of the
Demised Premises in good order, condition and repair. Landlord shall not be
obligated except as otherwise provided in this lease, to maintain or repair
windows, doors, overhead doors, plate glass or the surfaces of walls. In
addition, Landlord shall not be obligated to make any repairs under this Section
until a reasonable time after receipt of written notice from Tenant of the need
for repairs. If any repairs are required to be made by Landlord, Tenant shall,
at Tenant's sole cost and expense, promptly remove Tenant's furnishings,
fixtures, inventory, equipment and other property, to the extent required to
enable Landlord to make repairs. Landlord's liability under this Section shall
be limited to the cost of those repairs or corrections. Tenant waives the
benefit of any present or future law which might give Tenant the right to repair
the Demised Premises at Landlord's expense or to terminate the Lease because of
the condition.
(2) All repair, maintenance, management and other services to be
performed by Landlord or Landlord's agents involve the exercise of professional
judgment by service providers, and Tenant expressly waives any claim for breach
of warranty arising from the performance of those services.
B. Tenant's Obligation.
(1) Subject to the provisions of Section 7.01, Section 7.03.A, Article
Eight (Damage or Destruction) and Article Nine (Condemnation), Landlord shall
at Tenant's expense keep an other portions of the Demised Premises in good
order, condition and repair, ordinary wear and tear excepted, including but not
limited to maintenance, repairs and all necessary replacements of the windows,
plate glass, doors, overhead doors, heating system, ventilating equipment, air
conditioning equipment, electrical and lighting
systems, fire protection sprinkler system, dock levelers, elevators, interior
and exterior plumbing, the interior of the Demised Premises in general, pest
control and extermination, down spouts, gutters, paving, and including the
exterior of the Demised Premises. In addition, Tenant shall, at Tenant's
expense, repair any damage to any portion of the Property, including the roof,
skylights, foundation, or structural components and exterior walls of the
Demised Premises, caused by Tenant's gross negligence or willful misconduct. If
Tenant fails to maintain and repair the Property as required by this Section,
Landlord may, on ten (10) days' prior written notice, enter the Demised Premises
and perform the maintenance or repair on behalf of Tenant, except that no notice
is required in case of emergency, and Tenant shall reimburse Landlord
immediately upon demand for all costs incurred in performing the maintenance or
repair, plus a reasonable service charge. Use of the roof above the Premises is
reserved to Landlord, however, Tenant may install a small satellite dish on the
roof, subject to city ordinance and Landlord's prior approval. The installation
shall be accomplished in a workmanlike manner and in accordance with
specifications from the roof contractor who installed the roof on the building,
in order not to damage the roof or void any warranties. Landlord shall provide
Tenant with information on the roof contractor upon request from Tenant. Any
roof problems or voiding of warranty which arise out of Tenant's installation of
equipment on the roof shall be at Tenant's expense. Landlord understands that
Tenant may desire to install additional equipment on the roof as technology
advances. Landlord shall not unreasonably withhold approval for installation of
additional equipment.
(2) HVAC Service. Tenant shall, at Tenant's own cost and expense, enter
into a regularly scheduled preventative maintenance and service contract for all
refrigeration, heating, ventilating, and air conditioning systems and equipment
within the Demised Premises during the Lease Term. If Tenant fails to enter
into such a service contract acceptable to Landlord, Landlord may do so on
Tenant's behalf and Tenant agrees to pay Landlord the cost and expense thereof,
plus a reasonable service charge, regularly upon demand.
7.04. Alterations, Additions and Improvements. Tenant shall not create any
openings in the roof or exterior walls, or make any alterations, additions or
improvements to the Demised Premises without the prior written consent of
Landlord. Consent for non-structural alterations, additions or improvements
shall not be unreasonably withheld by Landlord. Tenant may erect or install
trade fixtures, shelves, bins, machinery, heating, ventilating and air
conditioning equipment and, provided that Tenant complies with all applicable
governmental laws, ordinances, codes, and regulations. At the expiration or
termination of this Lease, Tenant shall, subject to the restrictions of Section
7.05 below, have the right to remove items installed by Tenant, provided Tenant
is not in default at the time of the removal and provided further that Tenant
shall, at the time of removal of the items, repair in a good and workmanlike
manner any damage caused by the installation or removal. Tenant shall pay for
all costs incurred or arising out of alterations, additions or improvements in
or to the Demised Premises and shall not permit any mechanic's or materialman's
lien to be filed against the Demised Premises or the Property. Upon request by
Landlord, Tenant shall deliver to Landlord proof of payment reasonably
satisfactory to Landlord of all costs incurred or arising out of any
alterations, additions or improvements.
7.05. Condition upon Termination. Upon the expiration or termination of this
Lease, Tenant shall surrender the Demised Premises to Landlord broom clean and
in the same condition as received, except for ordinary wear and tear which
Tenant is not otherwise obligated to remedy under any provision of this Lease.
Tenant shall not be obligated to repair any damage which Landlord is required to
repair under Article Seven (Property Condition) or Article Eight (Damage or
Destruction). In addition, Landlord may require Tenant to remove any
alterations, additions or improvements (whether or not made with Landlord's
consent) prior to the expiration or termination of this Lease and to restore the
Demised Premises to its prior condition, an at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the expiration or termination of this Lease unless listed as personal
property and a list is provided to Landlord with a description and other
identification describing the property. In no event, however, shall Tenant
remove any of the following materials or equipment without Landlord's prior
written consent: (i) electrical wiring or power panels; (ii) lighting or
lighting fixtures; (iii) wall coverings, drapes, blinds or other window
coverings; (iv) carpets or other floor coverings; (v) heating, ventilating, or
air conditioning equipment; (vi) fencing or security gates; or (vii) any other
fixtures, equipment or items which, if removed, would affect the operation or
the appearance of the Property.
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
8.01. Notice. If any buildings or other improvements situated on the Property
are damaged or destroyed by fire, flood, windstorm, tornado or other casualty,
Tenant shall immediately give written notice of the damage or destruction to
Landlord.
8.02. Partial Damage. If the building or other improvements situated on the
Demised Premises are damaged by fire, tornado, or other casually but not to such
an extent that rebuilding or repairs cannot reasonably be completed within one
hundred eighty (180) days from the date Landlord receives written notification
by Tenant of the occurrence of the damage, this Lease shall not terminate, but
Landlord shall proceed with reasonable diligence to rebuild or repair the
building and other improvements on the Demised Premises (other than leasehold
improvements made by Tenant or any assignee, subtenant or other occupant of the
Demised Premises) to substantially the condition in which they existed prior to
the damage. Within thirty (30) days after receipt of notice by Tenant, Landlord
shall obtain from a third party written verification of the damage and the time
required to repair or rebuild, and provide Tenant with said information. If the
casualty occurs during the final eighteen (18) months of the Lease Term,
Landlord shall not be required to rebuild or repair the damage unless Tenant
exercises Tenant's renewal option (if any) within fifteen (15) days after the
date of receipt by Landlord of the notification of the occurrence of the damage.
If Tenant does not exercise its renewal option, or if there is no renewal option
contained in this Lease, Landlord may, at Landlord's option, terminate this
Lease by promptly delivering a written termination notice to Tenant, in which
event the Rent shall be abated for the unexpired
portion of the Lease Term, effective from the date of receipt by Landlord of the
written notification of the damage. To the extent the Demised Premises cannot be
occupied (in whole or in part) following the casualty, the Rent payable under
this Lease during the period in which the Demised Premises cannot be fully
occupied shall be adjusted equitably.
8.03. Substantial or Total Destruction. If the building or other improvements
situated on the Demised Premises are substantially or totally destroyed by fire,
tornado, or other casualty, or so damaged that rebuilding or repairs cannot
reasonably be completed within one hundred twenty (120) days from the date
Landlord receives written notification by Tenant of the occurrence of the
damage, either Landlord or Tenant may terminate this Lease by promptly
delivering a written termination notice to the other party, in which event the
monthly installments of Rent shall be abated for the unexpired portion of the
Lease Term, effective from the date of the damage or destruction. If neither
party promptly terminates this Lease, Landlord shall proceed with reasonable
diligence to rebuild and repair the building and other improvements (except that
Tenant shall rebuild and repair Tenant's fixtures and improvements in the
Demised Premises). To the extent the Demised Premises cannot be occupied (in
whole or in part) following the casualty, the Rent payable under this Lease
during the period in which the Demised Premises cannot be fully occupied shall
be adjusted equitably.
ARTICLE NINE: CONDEMNATION
If, during the Lease Term or any extension thereof, all or a substantial part of
the Demised Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain, or are
conveyed to the condemning authority under threat of condemnation, this Lease
shall terminate and the monthly installments of Rent shall be abated during the
unexpired portion of the Lease Term, effective from the date of the taking. If
less than a substantial part of the Demised Premises is taken for public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or is conveyed to the condemning authority under threat
of condemnation, Landlord, at its option, may by written notice terminate this
Lease. If Landlord does not terminate this Lease, Landlord shall promptly, at
Landlord's expense, restore and reconstruct the buildings and improvements
(other than leasehold improvements made by Tenant or any assignee, subtenant or
other occupant of the Demised Premises) situated on the Demised Premises in
order to make the same reasonably tenantable and suitable for the use for which
the Demised Premises is leased as defined in Section 6.01. The monthly
installments of Rent payable under this Lease during the unexpired portion of
the Lease Term shall be adjusted equitably. Landlord and Tenant shall each be
entitled to receive and retain such separate awards and portions of lump sum
awards as- may be allocated to their respective interests in any condemnation
proceeding. The termination of this Lease shall not affect the rights of the
parties to such awards.
ARTICLE TEN: ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord, which shall not
be unreasonably withheld, assign this Lease or sublet the Demised Premises or
any portion thereof. Any assignment or subletting shall be expressly subject to
all terms and provisions of this Lease, including the provisions of Section 6.01
pertaining to the use of the Demised Premises. In the event of any assignment or
subletting, Tenant shall remain fully liable for the fun performance of all
Tenant's obligations under this Lease. Tenant shall not assign its rights under
this Lease or sublet the Demised Premises without first obtaining a written
agreement from the assignee or sublessee whereby the assignee or sublessee
agrees to assume the obligations of Tenant under this Lease and to be bound by
the terms of this Lease. If an event of default occurs while the Demised
Premises is assigned or sublet, Landlord may, at Landlord's option, in addition
to any other remedies provided in this Lease or by law, collect directly from
the assignee or subtenant all rents becoming due under the terms of the
assignment or subletting and apply the rent against any sums due to Landlord
under this Lease. No direct collection by Landlord from any assignee or
subtenant will release Tenant from Tenant's obligations under this Lease.
Notwithstanding the above, Tenant shall have the right to sublet or assign all
or any part of the Demised Premises, without Landlord's prior consent, to any
affiliate or subsidiary of Tenant. Tenant shall give Landlord prior written
notice of such subletting or assignment, with pertinent information relating
thereto.
ARTICLE ELEVEN: DEFAULT AND REMEDIES
11.01. Default Each of the following events is an event of default under this
Lease:
A. Failure of Tenant to pay any installment of the Rent or other sum payable
to Landlord under this Lease on the date that it is due and the continuance of
that failure for a period of five (5) business days after Landlord delivers
written notice of the failure to Tenant. This clause shall not be construed to
permit or allow a delay in paying Rent beyond the due date and shall not affect
Landlord's right to impose a Late Charge as permitted in Section 3.03.
B. Failure of Tenant to comply with any term, condition or covenant of this
Lease, other than the payment of Rent or other sum of money, and the continuance
of that failure for a period of thirty (30) days after Landlord delivers written
notice of the failure to Tenant;
C. Failure of Tenant or any guarantor of Tenant's obligations under this
Lease to pay its debts as they become due or an admission in writing of
inability to pay its debts, or the making of a general assignment for the
benefit of creditors;
D. The commencement by Tenant or any guarantor of Tenant's obligations;
under this Lease of any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property;
E. The commencement of any case, proceeding or other action against Tenant
or any guarantor of Tenant's obligations under this Lease seeking to have an
order for relief entered against it as debtor, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property, and
Tenant or any guarantor: (i) fails to obtain a dismissal of such case,
proceeding, or other action within sixty (60) days of its commencement; or (ii)
converts the case from one chapter of the Federal Bankruptcy Code to another
chapter; or (iii) is the subject of an order of relief which is not fully stayed
within seven (7) business days after the entry thereof; and
F. Abandonment by Tenant of any substantial portion of the Demised Premises
or cessation of the use of the Demised Premises for the purpose leased.
11.02. Remedies. Upon the occurrence of any of the events of default listed in
Section 11.01, Landlord shall have the option to pursue any one or more of the
following remedies without any prior notice or demand.
A. Terminate this Lease, in which event Tenant shall immediately surrender
the Demised Premises to Landlord. If Tenant fails to so surrender the Demised
Premises, Landlord may, without prejudice to any other remedy which it may have
for possession of the Demised Premises or Rent in arrears, enter upon and take
possession of the Demised Premises and expel or remove Tenant and any other
person who may be occupying the Demised Premises or any part thereof, by force
if necessary, without being liable for prosecution or any claim for damages.
Tenant shall pay to Landlord on demand the amount of all loss and damage which
Landlord may suffer by reason of the termination, whether through inability to
re-let the Demised Premises on satisfactory terms or otherwise.
B. Enter upon and take possession of the Demised Premises, by force if
necessary, without terminating this Lease and without being liable for
prosecution or for any claim for damages, and expel or remove Tenant and any
other person who may be occupying the Demised Premises or any part thereof.
Landlord may re- let the Demised Premises and receive the rent therefor. Tenant
agrees to pay to Landlord monthly or on demand from time to time any deficiency
that may arise by reason of any such re-letting. In determining the amount of
the deficiency, the professional service fees, attorneys' fees, court costs,
remodeling expenses and other costs of re-letting shall be subtracted from the
amount of rent received under the re-letting.
C. Enter upon the Demised Premises, by force if necessary, without
terminating this Lease and without being liable for prosecution or for any claim
for damages, and do whatever Tenant is obligated to do under the terms of this
Lease. Tenant agrees to pay Landlord on demand for expenses which Landlord may
incur in thus effecting compliance with Tenant's obligations under this Lease,
together with interest thereon at the rate of twelve percent (12%) per annum
from the date expended until paid. Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by negligence of Landlord
or otherwise.
D. Accelerate and declare the Rent for the entire Lease Term, and all other
amounts due under this Lease, at once due and payable, and proceed by
attachment, suit or otherwise, to collect all amounts in the same manner as if
all such amounts due or to become due during the entire Lease Term were payable
in advance by the terms of this Lease, and neither the enforcement or collection
by Landlord of such amounts nor the payment by Tenant of such amounts shall
constitute a waiver by Landlord of any breach, existing or in the future, of any
of the terms or provisions of this Lease by Tenant or a waiver of any rights or
remedies which the Landlord may have with respect to any such breach.
E. In addition to the foregoing remedies, Landlord shall have the right to
change or modify the locks on the Demised Premises in the event Tenant fails to
pay the monthly installment of Rent when due. Landlord shall not be obligated to
provide another key to Tenant or allow Tenant to regain entry to the Demised
Premises unless and until Tenant pays Landlord all Rent which is delinquent.
Tenant agrees that Landlord shall not be liable for any damages resulting to the
Tenant from the lockout. At such time that Landlord changes or modifies the
lock, Landlord shall post a "Notice of Change of Locks" on the front of the
Demised Premises. Such Notice shall state that:
(1) Tenant's monthly installment of Rent is delinquent, and therefore,
under authority of Section 11.02.E of Tenant's Lease,
the Landlord has exercised its contractual right to change or modify Tenant's
door locks;
(2) The Notice has been posted on the Tenant's front door by a
representative of Landlord and Tenant should make arrangements with the
representative to pay the delinquent installments of Rent when Tenant picks up
the key; and
(3) The failure of Tenant to comply with the provisions of the Lease and
the Notice and/or tampering with or changing the door lock(s) by Tenant may
subject Tenant to legal liability.
F. No re-entry or taking possession of the Demised Premises by Landlord
shall be construed as an election to terminate this Lease, unless a written
notice of that intention is given to Tenant. Notwithstanding any such re-letting
or re-entry or taking possession, Landlord may, at any time thereafter, elect to
terminate this Lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any other remedies provided by law, nor
shall pursuit of any remedy provided in this Lease constitute a forfeiture or
waiver of any monthly installment of Rent due to Landlord under this Lease or of
any damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants contained in this Lease. Failure of Landlord to declare
any default immediately upon its occurrence, or failure to enforce one or more
of Landlord's remedies, or forbearance by Landlord to enforce one or more of
Landlord's remedies upon an event of default shall not be deemed or construed to
constitute a waiver of default or waiver of any violation or breach of the terms
of this Lease. Pursuit of any one of the above remedies shall not preclude
pursuit by Landlord of any of the other remedies provided in this Lease. The
loss or damage that Landlord may suffer by reason of termination of this Lease
or the deficiency from any re-letting as provided for above shall include the
expense of repossession and any repairs or remodeling undertaken by Landlord
following possession. If Landlord terminates this Lease at any time for any
default, in addition to other Landlord's remedies, Landlord may recover from
Tenant all damages Landlord may incur by reason of the default, including the
cost of recovering the Demised Premises and the Rent then remaining unpaid.
11.03. Notice of Default. Tenant shall give written notice of any failure by
Landlord to perform any of Landlord's obligations under this Lease to Landlord
and to any ground Lessor, mortgagee or beneficiary under any deed of trust
encumbering the Demised Premises whose name and address have been furnished to
Tenant in writing. Landlord shall not be in default under this Lease unless
Landlord (or such ground lessor, mortgagee or beneficiary) fails to cure the
nonperformance within thirty (30) days after receipt of Tenant's notice.
However, if the nonperformance reasonably requires more than thirty (30) days to
cure, Landlord shall not be in default if the cure is commenced within he 30-day
period and is thereafter diligently pursued to completion.
11.04. Limitation of Landlord's Liability. As used in this Lease, the term
"Landlord" means only the current owner or owners of the fee title to the
Demised Premises or the leasehold estate under a ground Lease of the Demised
Premises at the time in question. Each Landlord is obligated to perform the
obligations of Landlord under this Lease only during the time such Landlord owns
such interest or title. Any Landlord who transfers its title or interest is
relieved of all liability with respect to the obligations of Landlord under this
Lease accruing on or after the date of transfer, and Tenant agrees to recognize
the transferee as Landlord under this Lease. However, each Landlord shall
deliver to its transferee the Security Deposit held by Landlord if such Security
Deposit has not then been applied under the terms of this Lease.
ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN
[DELETED]
ARTICLE THIRTEEN: PROTECTION OF LENDERS
13.01. Subordination and Attornment. Landlord shall have the right to
subordinate this Lease to any future ground Lease, deed of trust or mortgage
encumbering the Demised Premises, and advances made on the security thereof and
any renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded. Landlord's right to obtain such a subordination is
subject to Landlord's providing Tenant with a written Subordination. Non-
disturbance and Attornment Agreement from the ground lessor, beneficiary or
mortgagee wherein Tenant's right to peaceable possession of the Demised Premises
during thc Lease Term shall not be disturbed if Tenant pays the Rent and
performs all of Tenant's obligations under this Lease and is not otherwise in
default in which case Tenant shall attorn to the transferee of or successor to
Landlord's interest in the Demised Premises and recognize the transferee or
successor as Landlord under this Lease. If any ground lessor, beneficiary or
mortgagee elects to have this Lease superior to the lien of its ground lease,
deed of trust or mortgage and give Tenant written notice thereof, this Lease
shall be deemed superior to the ground lease, deed of trust or mortgage whether
this Lease is dated prior or subsequent to the date of the ground lease, deed of
trust or mortgage or the date of recording thereof. Tenant's rights under this
Lease, unless specifically modified at the time this Lease is executed, are
subordinated to any existing ground lease, deed of trust or mortgage encumbering
the Demised Premises.
13.02. Signing of Documents. Tenant shall sign and deliver any instruments or
documents necessary or appropriate to evidence any attornment or subordination
or any agreement to attorn or subordinate. If Tenant fails to do so within ten
(10) days after written request, Tenant hereby makes, constitutes and
irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver the attornment or
subordination document or agreement.
13.03. Estoppel Certificates.
A. Upon Landlord's written request, Tenant shall execute and deliver to
Landlord a written statement certifying: (1) whether Tenant is an assignee or
subtenant; (2) the expiration date of the Lease; (3) the number of renewal
options under the lease and the total period of time covered by the renewal
option(s); (4) that none of the terms or provisions of the Lease have been
changed since the original execution of the Lease, except as shown on attached
amendments or modifications; (5) that no default by Landlord exists under the
terms of the Lease (or if Landlord is claimed to be in default, stating why);
(6) that the Tenant has no claim against the landlord under the Lease and has no
defense or right of offset against collection of rent or other charges accruing
under the Lease; (7) the amount and date of the last payment of Rent; (8) the
amount of any security deposits and other deposits, if any; and (9) the identity
and address of any guarantor of the lease. Tenant shall deliver the statement
to Landlord within ten (10) days after Landlord's request. Landlord may forward
any such statement to any prospective purchaser or lender of the Demised
Premises. The Purchaser or lender may rely conclusively upon the statement as
true and correct.
B. If Tenant does not deliver the written statement to Landlord within the
ten (10) day period, Landlord, and any prospective purchaser or lender, may
conclusively presume and rely upon the following facts: (1) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (2) that this Lease has not been canceled or terminated except as
otherwise represented by Landlord; (3) that not more than one monthly
installment of Base Rent and other charges have been paid in advance; (4) there
are no claims against Landlord nor any defenses or rights of offset against
collection of Rent or other charges; and (5) that Landlord is not in default
under this Lease. In such event, Tenant shall be estopped from denying the
truth of the presumed facts.
13.04. Tenant's Financial Condition. Within ten (10) days after written
request from Landlord, Tenant shall deliver to Landlord Tenant's most recent
financial statements prepared as required by Tenant's corporate structure, as
are reasonably required by Landlord to verify the net worth of tenant, or any
assignee, subtenant, or guarantor of Tenant.* In addition, Tenant shall deliver
to any lender designated by Landlord any financial statements required by the
lender to facilitate the financing or refinancing of the Demised Premises.
Tenant represents and warrants to landlord that each financial statement is a
true, complete, and accurate statement as of the date of the statement. All
financial statements shall be confidential and shall be used only for the
purposes set forth in this Lease.
ARTICLE FOURTEEN: ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY
14.01. Tenant's Compliance with Environmental Laws. Tenant at Tenants expense,
shall comply with all laws, rules, orders, ordinances, directions, regulations
and requirements of Federal, State, county and municipal authorities pertaining
to Tenant's use of the Property and with the recorded covenants, conditions and
restrictions, regardless of when they become effective, including, without
limitation, all applicable Federal, State and local laws, regulations or
ordinances pertaining to air and water quality, Hazardous Materials (as defined
in Section 14.05), waste disposal, air emissions and other environmental
matters, all zoning and other land use matters, and with any direction of any
public officer or officers, pursuant to law, which impose any duty upon Landlord
or Tenant with respect to the use or occupancy of the Property.
14.02. Tenant's Indemnification. Tenant shall not cause or permit any
Hazardous Materials to be brought upon, kept or used in or about the Property by
Tenant, its agents, employees, contractors or invitees without the prior written
consent of Landlord. If Tenant breaches the obligations stated in the preceding
Section or sentence, or if the presence of Hazardous Materials on the Property
caused or permitted by Tenant results in contamination of the Property or any
other property, or if contamination of the Property or any other property by
Hazardous Materials otherwise occurs for which Tenant is legally liable to
Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and
hold Landlord harmless from any and an claims, judgments, damages, penalties,
fines, costs, liabilities or losses (including, without limitation, diminution
in value of the Property, damages for the loss or restriction on use of
_________________________
* Said financial statements shall not be required to be dated more recently than
the calendar quarter prior to Landlord's request, but shall not be dated later
than a year prior to said request. Landlord shall keep Tenant's financial
statements confidential and shall not disclose Tenant's financial statements to
third parties without Tenant's written consent, which consent shall not be
unreasonably withheld. Landlord may disclose Tenant's financial statements to
those individuals within Landlord's organization and financial institutions
involved with the Demised Premises, who examine Tenant's credit worthiness.
rentable or unusable space or of any amenity or appurtenance of the Property,
damages arising from any adverse impact on marketing of building space or land
area, sums paid in settlement of claims, reasonable attorneys' fees, court
costs, consultant fees and expert fees) which arise during or after the Lease
Term as a result of the contamination. This indemnification of Landlord by
Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any clean-up, remedial work, removal or
restoration work required by any Federal, State or local government agency
because of Hazardous Materials present in the soil or ground water on or under
the Property. Without limiting the foregoing, if the presence of any Hazardous
Materials on the Property (or any other property) caused or permitted by Tenant
results in any contamination of the Property, Tenant shall promptly take all
actions at Tenant's sole expense as are necessary to return the Property to the
condition existing prior to the introduction of any such Hazardous Materials,
provided that Landlord's approval of such actions is first obtained. The
foregoing indemnity shall survive the expiration or termination of this Lease.
14.03. Landlord's Representations and Warranties. Landlord represents and
warrants, to the best of Landlord's actual knowledge, that: (i) any handling,
transportation, storage, treatment or usage of Hazardous Materials that has
occurred on the Property to date has been in compliance with all applicable
Federal, State, and local laws, regulations and ordinances; and (ii) no leak,
spin, release, discharge, emission or disposal of Hazardous Materials has
occurred on the Property to date and that the soil or groundwater on or under
the Property is free of Hazardous Materials as of the Commencement Date, unless
expressly disclosed by Landlord to Tenant in writing
14.04. Landlord's Indemnification. Landlord hereby indemnifies, defends and
holds Tenant harmless from any claim, judgments, damages, penalties, fines,
costs, liabilities, (including sums paid in settlements of claims) or loss,
including, without limitation, attorneys' fees, court costs, consultant fees,
and expert fees, which arise during or after the term of this Lease from or in
connection with the presence or suspected presence of Hazardous Materials in the
soil or groundwater on or under the Property, unless the Hazardous Material is
released by Tenant or is present solely as a result of the negligence or willful
conduct of Tenant. Without limiting the generality of the foregoing, the
indemnification provided by this Section 14.04 shall specifically cover costs
incurred in connection with any investigation of site conditions or any clean-
up, remedial work, removal or restoration work required by any Federal, State or
local governmental authority.
14.05. Definition. For purposes of this Lease, the term "Hazardous Materials"
means any one or more pollutant, toxic substance, hazardous waste, hazardous
material, hazardous substance, solvent or oil as defined in or pursuant to the
Resource Conservation and Recovery Act, as amended, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, the Federal
Clean Water Act, as amended, or any other Federal, State or local environmental
law, regulation, ordinance, or rule, whether existing as of the date of this
Lease or subsequently enacted.
14.06. Survival. The representations and indemnities contained in " Article 14
shall survive the expiration or termination of this Lease.
ARTICLE FIFTEEN: PROFESSIONAL SERVICE FEES
15.01. Amount and Manner of Payment. Professional service fees due to the
Principal Broker and Co-operating Broker shall be calculated and paid [DELETED]
pursuant to separate agreement between Landlord and Brokers.
A. [DELETED]
B. [DELETED]
15.02. Other Brokers. Both Landlord and Tenant represent and warrant to the
other party that they have had no dealings with any person, firm or agent in the
negotiation of this Lease other than the Broker(s) named in this Lease, and no
other broker, agent, person, firm or entity other than the Broker(s) is entitled
to any commission or fee in connection with this Lease.
15.03. [DELETED]
15.04. [DELETED]
15.05. Landlord's Liability. If this Lease is negotiated by Principal Broker in
cooperation with another broker, Landlord shall be liable for payment of all
Professional Service Fees to Principal Broker only, whereupon Landlord shall be
protected from any claims from a Cooperating Broker. The Principal Broker may
pay a portion of the Fee to any Cooperating Broker pursuant to a separate
agreement between the Brokers.
15.06. [DELETED]
15.07. [DELETED]
15.08. [DELETED]
15.09. Intermediary Relationship.
[DELETED]
ARTICLE SIXTEEN: MISCELLANEOUS
16.01. Disclosure. Landlord and Tenant understand that a real estate broker is
qualified to advise on matters concerning real estate and is not expert in
matters of law, tax, financing, surveying' hazardous materials, engineering,
construction, safety, zoning, land planning, architecture or the ADA. The
Brokers hereby advise Tenant to seek expert assistance on such matters. Brokers
do not investigate a property's compliance with building codes, governmental
ordinances, statutes and laws that relate to the use or condition of a property
and its construction, or that relate to its acquisition. If Brokers provide
names of consultants or sources for advice or assistance, Tenant acknowledges
that the Brokers do not warrant the services of the advisors or their products
and cannot warrant the suitability of property to be acquired or leased.
Furthermore, the Brokers do not warrant that the Landlord will disclose any or
all property defects, although the Brokers will disclose to Tenant any actual
knowledge possessed by Brokers regarding defects of the Demised Premises and the
Property. In this regard, Tenant agrees to make all necessary and appropriate
inquiries and to use diligence in investigating the Demised Premises and the
Property before consummating this Lease. Landlord and Tenant hereby agree to
indemnify, defend, and hold the Brokers harmless of and from any and all
liabilities, claim, debts, damages, costs, or expenses, including but not
limited to reasonable attorneys' fees and court costs, related to or arising out
of or in any way connected to representations concerning matters properly the
subject of advice by experts. In addition, to the extent permitted by applicable
law, the Brokers' liability for errors or omissions, negligence, or otherwise,
is limited to the return of the Fee, if any, paid to the Brokers pursuant to
this Lease.
16.02. Force Majeure. If performance by Landlord of any term condition or
covenant in this Lease is delayed or prevented by any Act of God, strike,
lockout, shortage of material or labor, restriction by any governmental
authority, civil riot, flood, or any other cause not within the control of
Landlord, the period for performance of the term, condition or covenant shall be
extended for a period equal to the period Landlord is so delayed or prevented.
16.03. Interpretation. The captions of the Articles or Sections of this Lease
are to assist the parties in reading this Lease and are not_a part of the terms
or provisions of this Lease. Tenant shall be responsible for the conduct, acts
and omissions of Tenant's agents, employees, customers, contractors, invitees,
agents, successors or others using the Demised Premises with Tenant's expressed
or implied permission. Whenever required by the context of this Lease, the
singular shall! include the plural and the plural shall include the singular,
and die masculine, feminine and neuter genders shall each include the other.
16:04. Waivers. All waivers to provisions of this Lease must be in writing and
signed by the waiving party. Landlord's delay or failure to enforce any
provisions of this Lease or its acceptance of late installments of Rent shall
not be a waiver and shall not prevent Landlord from enforcing that provision or
any other provision of this Lease in the future. No statement on a payment check
from Tenant or in a letter accompanying a payment check shall be binding on
Landlord. Landlord may, with or without notice to Tenant, negotiate, cash, or
endorse the check without being bound to the conditions of any such statement.
16.05. Severabi1ity. A determination by a court of competent jurisdiction that
any provision of this Lease is invalid or unenforceable shall not cancel or
invalidate the remainder of that provision or this Lease, which shall remain in
fill force and effect.
16.06. Joint and Several Liability. All parties signing this Lease as Tenant
shall be jointly and severally liable for all obligations of Tenant.
16.07. Amendments or Modifications. This Lease is the only agreement between
the parties pertaining to the lease of the Demised Premises and no other
agreements are effective unless made apart of this Lease. All amendments to this
Lease must be in writing and signed by all parties. Any other attempted
amendment shall be void.
16.08. Notices. All notices and other communications required or permitted
under this Lease must be in writing and shall be deemed delivered, whether
actually received or not, on the earlier of (i) actual receipt if delivered in
person or by messenger with evidence of delivery; or (ii) receipt of an
electronic facsimile transmission ("Fax") with confirmation of delivery; or (1)
upon deposit in the United States Mail as required below. Notices may be
transmitted by Fax to the Fax telephone numbers specified in Article One on the
first page of this Lease, if any. Notices delivered by mail must be deposited in
the U.S. Postal Service, first class postage prepaid, and properly addressed to
the intended recipient as set forth in Article One. After possession of the
Demised Premises by Tenant, Tenant's address for notice purposes will be the
address of the Demised Premises unless Tenant notifies Landlord in writing of a
different address to be used for that purpose. Any party may change its address
for notice by delivering written notice of its new address to an other parties
in the manner set forth above. Copies of all notices should also be delivered to
the Principal Broker, but failure to notify the Principal Broker will not cause
an otherwise properly delivered notice to be ineffective.
16.09. Attorneys' Fees. If on account of any breach or default by any party to
this Lease in its obligations to any other party to this Lease (including bid
not limited to the Principal Broker), it becomes necessary for a party to employ
an attorney to enforce or defend any of is rights or remedies under this Lease,
the non-prevailing party agrees to pay the prevailing party its reasonable
attorneys' fees and court costs, if any, whether or not suit is instituted in
connection with the enforcement or defense.
16.10. Venue. All obligations under this Lease, including but not limited to the
payment of Fees to the Principal Broker, shall be performed and payable in the
county in which the Property is located. The laws of the State of Colorado shall
govern this Lease.
16.11. Survival. An obligations of any party to this Lease which are not
fulfilled at the expiation or the termination of this Lease shall survive such
expiration or termination as continuing obligations of the party.
16.12. Binding Effect. This Lease shall inure to the benefit of, and be
binding upon, each of the parties to this Lease and their respective heirs,
representatives, successors and assigns. However, Landlord shall not have any
obligation to Tenant's successors or assigns unless the rights or interests of
the successors or assigns are acquired in accordance with the terms of this
Lease.
16.13. Consult an Attorney. This Lease is an enforceable, legally binding
agreement. Read it carefully. The brokers involved in the negotiation of this
Lease cannot give you legal advice. The parties to this Lease acknowledge that
they have been advised by the Brokers to have this Lease reviewed by competent
legal counsel of their choice before signing this Lease. By executing this
Lease, Landlord and Tenant each agree to the provisions, terms, covenants and
conditions contained in this Lease.
16.14. Offer. The execution of this Lease by the first party to do so
constitutes an offer to lease the Demised Premises. Unless within the number of
days stated in Section 1. 14 above after the date of its execution by the first
party to do so, this Lease is signed by the other party and a fully executed
copy is delivered to the first party, such offer to lease shall be automatically
withdrawn and terminated.
ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS
17.01. EARLY TERMINATION OPTION:
(A) Notwithstanding anything else contained herein, Tenant shall have the
right to terminate this lease at the end of the 84th month of the lease term. If
Tenant elects to terminate the lease early, Tenant shall give Landlord 180 days
prior written notice of said election to terminate. If Tenant does not notify
Landlord of termination as required above, then this lease shall run the full
ten (10) year term.
(B) Should Tenant exercise the Early Termination Option, Tenant shall pay a
penalty to Landlord with the payment of rent for the 84th month of the lease
term. Said penalty to include the following: (1) The balance of the Tenant
Occupancy Expense not previously amortized. The "Tenant Occupancy Expense" shall
include but not be limited to: physical Improvements, space planning, and design
fees; (2) Commission paid to brokers applicable to the unexpired portion of the
lease term; (3) six (6) months of base rent (months 85 thru 90 per the Rent
Schedule); and (4) Six (6) months of operating expenses estimated by Landlord
(based upon previous current activity).
(C) Should Tenant exercise the Early Termination Option, but enter Into a
binding agreement with Landlord to design and build a new facility, the six (6)
month rent and operating expense portion of the option penalty shall be waived.
17.02. PARKING:
Tenant shall be allocated 175 parking stalls (based upon the 25,000 square
footage of Demised Premises). If available, at Landlord's discretion,
Landlord will deliver additional' parking stalls on the site for Tenant's use.
17.03 GENERATOR:
Tenant shall have the right to install an enclosed backup generator on the site
outside the building. Landlord reserves the right to approve the site and
configuration of said generator/enclosure prior to construction and/or
installation. Tenant shall not be required to pay additional rent for the space
which it takes for this purpose.
LANDLORD TENANT
XXXXXXX DEVELOPMENT CO. CHEAP TICKETS, INC.
------------------------------------------------------------------------------
By [Signature]: /s/ Xxxxxx X. Xxxxxxx By [Signature]: /s/ Xxxx Xxxxxxx
---------------------------- -----------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxxx
----------------- -----------------------
Title: Vice President Title: President and CEO
----------------- ----------------------
Date of Execution: 12/22/98 Date of Execution: 12/17/98
------------------------- ------------
PRINCIPAL BROKER COOPERATING BROKER
BACH COMMERCIAL BROKERAGE COMPANY XXXXXX XxXXXXXXXX CO.
--------------------------------------------------------------------------------
By [Signature]:___________________________ By [Signature]:___________________
Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxx
------------------------------------- -----------------------------
Title: Chief Operating Officer Title: Senior Marketing consultant
------------------------------------ ----------------------------
Copyright Notice: This form is provided for the use of members of the North
Texas Commercial Association of Realtors, Inc. Permission is hereby granted to
make limited copies of this form for use in a particular Texas real estate
transaction. Contact the NTCAR office to confirm that you are using the current
version of this form.
EXHIBIT A
A TRACT OF LAND IN THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 13 SOUTH, RANGE
67 WEST OF THE 6TH P.M., IN THE CITY OF COLORADO SPRINGS, EL PASO COUNTY,
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST
CORNER OF SAID SECTION 22; THENCE N 00 (degrees) 33'33" E, ALONG THE EASTERLY
LINE OF THE SOUTHEAST CORNER OF SAID SECTION, 30.13 FEET TO A POINT ON THE
NORTHERLY RIGHT-OF-WAY LINE OF EXISTING GARDEN OF THE GODS ROAD AND THE TRUE
POINT OF BEGINNING; THENCE CONTINUE N 00 (degrees) 33'33" E, ALONG SAID EASTERLY
LINE, 1603.33 FEET TO A POINT ON THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF EXISTING
80 FOOT WIDE XXXXXX ROAD; THENCE 5 42 (degrees) 00'29" W, ALONG SAID
SOUTHEASTERLY RIGHT-OF-WAY LINE, 577.33 FEET; THENCE 5 16 (degrees) l4'44" E,
PARALLEL WITH AND 31.25 FEET WESTERLY OF THE NORTHEASTERLY LINE OF AN EXISTING
UTILITY EASEMENT DESCRIBED IN DEED RECORDED IN BOOK 1615 AT PAGE 308 OF THE
RECORDS OF EL PASO COUNTY, COLORADO, 1222.81 FEET TO A POINT ON THE AFORESAID
NORTHERLY RIGHT-OF-WAY LINE OF GARDEN OF THE GODS ROAD; THENCE 5 89 (degrees)
25'39" E, ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, 28.64 FEET TO THE TRUE POINT
OF BEGINNING.
EXHIBIT B
MOUNTAIN SHADOWS BUSINESS PARK - BUILDING 1
[Floor Plan of Building No. 1]
ADDENDUM A TO LEASE
EXPENSE REIMBURSEMENT
Demised Premises/Address: 0000 X. 00xx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
-----------------------------------------------
[Check all boxes which apply. Boxes not checked do not
apply to this Lease.]
A. Expense Reimbursement. Tenant shall pay the Landlord as additional Rent a
portion of the following expenses (collectively the "Reimbursement") which are
incurred by or assessed against the Demised Premises [check all that are to
apply]:
[X] Ad Valorem Taxes:
[X] Insurance Premiums;
[X] Common Area Maintenance (CAM) Expenses;
[X] Operating Expenses;
[X] [DELETED]
B. Expense Reimbursement Limitations. The amount of Tenant's Reimbursement
shall be determined by one of the following methods as described in Section 4
below [check only one]:
[DELETED]
[X] Pro Rata Adjustment;
[DELETED]
C. Expense Reimbursement Payments. Tenant agrees to pay any end-of-year lump
sum Reimbursement within thirty (30) days after receiving an invoice from
Landlord. Any time during the Lease Term (or any renewals or extensions)
Landlord may direct Tenant to pay monthly an estimated portion of the projected
future Reimbursement amount. Any such payment directed by Landlord shall be due
and payable monthly on the same day that the Base Rent is due. Landlord may, at
Landlords option and to the extent allowed by applicable law, impose a Late
Charge on any Reimbursement payments which are not actually received by Landlord
on or before the due date, in the amount and manner set forth in Section 3.03 of
this Lease. Any Reimbursement relating to partial calendar years shall be
prorated accordingly. Tenant's Pro Rata Share of such Reimbursements shall be
based on the square footage of useable area contained in the Demised Premises in
proportion to the square footage of useable building area of the Property.
Tenant may audit or examine those items of expense in Landlords records which
relate to Tenant's obligations under this Lease. Landlord shall promptly refund
to Tenant any overpayment which is established by an audit or examination. If
the audit or examination reveals an error of more than five percent (5%) over
the figures billed to Tenant, Landlord shall pay the reasonable cost of the
audit or examination. SEE PARAGRAPH 11.
D. Definitions.
1. Ad Valorem Taxes. All general real estate taxes, general and special
assessments, parking surcharges, rent taxes, and other similar governmental
charges levied against the Property for each calendar year.
2. Insurance Premiums. All Landlords insurance premium attributable to
the Property, including but not limited to insurance for fire, casualty, general
liability, property damage, medical expenses, and extended coverage, and loss of
rents coverage for six months' Rent.
3. Common Area Maintenance Expenses. Common area maintenance expenses
("CAM") means all costs of maintenance, inspection and repairs of the common
areas of the Property, including but not limited to those costs for security,
lighting, painting, cleaning, decorations and fixtures, utilities, ice and snow
removal, trash disposal, project signs, minor roof defects, pest control,
project promotional expenses, property owners' association dues, wages and
salary costs of maintenance personnel, and other expenses benefiting all the
Property which may be incurred by Landlord, in its discretion, including sales
taxes and a reasonable service charge for the administration thereof. The
"common area" is defined as that part of the Property intended for the
collective use of all tenants including, but not limited to, the parking areas,
driveways, loading areas, landscaping, gutters and downspouts, plumbing,
electrical systems, exterior walls, sidewalks, malls, promenades (enclosed or
otherwise), meeting rooms, doors, windows, corridors and public rest rooms. CAM
does not include depreciation on Landlord's original investment, cost of tenant
improvements, real estate brokers' fees, Landlord's management office and
overhead expenses, or interest or depreciation on capital investments.
4. Operating Expenses. All costs of ownership, building management,
maintenance, repairs and operation of the Property, including but not limited to
taxes, insurance, CAM, reasonable management fees, wages and salary costs of
building management personnel, overhead and operational costs of a management
office, janitorial, utilities, and professional services such as accounting and
legal fees. Operating Expenses do not include the capital cost of management
office equipment and furnishings, depreciation on Landlord's original
investment, roof and structural maintenance, the cost of tenant improvements,
real estate brokers' fees, advertising, or interest or depreciation on capital
investments.
5. Roof and Structural Maintenance Expenses. All costs of maintenance,
repair and replacement of the roof, roof deck, flashings, skylights, foundation,
floor slabs, structural components and the structural soundness of the building
in general.
6. [DELETED]
7. Pro Rata Adjustment. Tenant shall pay to Landlord as additional Rent
Tenant's Pro Rata Share of the total amount of Landlord's Ad Valorem Taxes,
Insurance Premiums, CAM, Operating Expenses, [DELETED] whichever are applicable,
for every calendar year during the Lease Term and during any extension of this
Lease.
8. [DELETED]
9. [DELETED]
10. Tenant Obligations Performed by Landlord. There may be expenses that
are specific to Tenant, for example, janitorial services, which Tenant desires
Landlord provide at Tenant's cost. Tenant shall pay these expenses to Landlord
monthly in advance, subject to adjustment after the end of each calendar year
based upon the actual cost.
11. Estimated Monthly Payments. Subject to adjustment after the end of
each calendar year on the basis of the actual cost for such year, Tenant shall
pay monthly as Additional Rent estimated costs for ad valorem taxes, insurance
premiums, common area maintenance expenses, operating expenses and tenant
obligations performed by Landlord. Initially, Landlord estimates CAM, tax and
insurance to commence at the rate of $2.75 per square foot. Operating expenses
and tenant obligations performed by Landlord are to be determined as an estimate
(TBD) and outlined in the Commencement Date letter to be executed at
commencement of the Lease Term.
13. Cost Adjustment of Monthly Payments. Within a reasonable time before
commencement of each calendar year during the Lease Term or as soon as
reasonably practical thereafter, Landlord shall deliver to tenant a reasonable
estimate of anticipated costs for the forthcoming calendar year. Tenant shall
pay to Landlord, as additional rent, commencing on the commencement date and
continuing on the first day of each calendar month thereafter, an amount equal
to one-twelfth (1/12d) of the product obtained by multiplying the estimated
costs times Tenant's Prorata Share. The estimated monthly charge for Tenant's
Prorata Share of the costs may be adjusted semiannually by Landlord during the
calendar year on the basis of Landlord's reasonably anticipated costs. Any costs
incurred by Landlord during the year, which were not included in determining the
estimated costs may be billed separately to Tenant according to Tenants Prorata
Share of the Costs.
13. Itemized Statement of Costs. Within ninety (90) days following the end
of each calendar year, Landlord shall furnish Tenant with a detailed itemized
statement covering the calendar year just expired, showing the actual costs for
that year, the amount of Tenant's Prorata Share of the costs for such calendar
year, and the monthly payments made by Tenant during the year for such costs. If
the Tenant's Prorata Share of the actual costs exceeds its prior payments,
Tenant shall pay Landlord the deficiency within fifteen (15) days after receipt
of the annual statement. If the payments for the calendar year exceed Tenant's
Prorata Share of the actual costs, Landlord shall apply the excess against
payments toward costs next due. In the event the term of this Lease expires, or
this lease is otherwise terminated, Landlord shall compute the credit or
deficiency up to the date the Lease expired or was terminated, and payment by
Tenant or refund by Landlord, whichever is applicable, shall be made within
thirty (30) days after such expiration or termination. Landlord must provide
reconciliation within 180 days after the end of each calendar year, at a
minimum. Should Landlord not provide reconciliation at least within said 180
day period, Tenant shall not be obligated to pay additional amounts reflected as
due per the reconciliation submitted later than 180 days after the end of a
calendar year.
ADDENDUM B TO LEASE
RENEWAL OPTIONS
Demised Premises/Address. 0000 X. 00xx Xxxxxx. Xxxxxxxx Xxxxxxx, XX 00000
-----------------------------------------------
A. Option to Extend Term. Landlord grants to Tenant Two (2) option(s) (the
-------
"Option") to extend the Lease Term for an additional term of (60) months each
(the "Extension"), on the same terms, conditions and covenants set forth in this
Lease, except as provided below. Each Option may be exercised only by written
notice delivered to the I ancilord no earlier than One Hundred Sixty (60) months
each the (the "Extension") , on the same terms, conditions and covenants set
forth in this Lease, except as provided below. Each Option may be exercised only
by written notice delivered to the Landlord no earlier than One Hundred Eighty
(180) days before, and no later than One Hundred Twenty (120) days before, the
expiration of the Lease Term or the preceding Extension of the Lease Term,
whichever is applicable. If Tenant fails to deliver Landlord written notice of
the exercise of an Option within the prescribed time period, such Option and any
succeeding Options shall lapse, and there shall be no further right to extend
the Lease Term. Each Option may only be exercised by Tenant on the express
condition that, at the time of the exercise, Tenant is not in default under any
provisions of this Lease. [DELETED]
B. Calculation of Rent. The Base Rent during the Extension(s) shall be
determined by one of the following methods [check one]:
[DELETED]
[X] 2. Fair Market Rental Value. The Base Rent during the Extension shall be
the Fair market Rental determined as follows:
a. The "Fair Market Rental" of the Demised Premises means the price that
a ready and willing tenant would pay as of the commencement of the Extension as
monthly rent to a ready and willing landlord of demised premises comparable to
the Demised Premises if the property were exposed for lease on the open market
for a reasonable period of time, and taking into account the term of the
Extension, the amount of improvements made by Tenant at its expense, the
creditworthiness of the Tenant, and all of the purposes for which the property
may be used and not just the use proposed to be made of the Demised Premises by
Tenant. Upon proper written notice by Tenant to Landlord of Tenant's election to
exercise the renewal Option, Landlord shall within fifteen (15) days thereafter
notify Tenant in writing of Landlords proposed Fair Market Rental amount and
Tenant shall thereupon notify Landlord of Tenant's acceptance or rejection of
Landlord's proposed amount. Failure of Tenant to reject Landlords Fair Market
Rental amount within days after receipt of Landlords notice shall be deemed
Tenant's acceptance of Landlords proposed Fair Market Rental amount within
thirty (30) days after receipt of Landlord's notice shall be deemed Tenant's
acceptance of Landlord's proposed Fair Market Rental amount.
b. If Landlord and Tenant have not been able to agree on the Fair Market
Rental amount prior to the date the option is required to be exercised, the rent
for the Extension shall be determined as follows: Within thirty (30) days
following the exercise of the option, Landlord and Tenant shall endeavor in good
faith to agree upon a single Appraiser (defined below). If Landlord and Tenant
are unable to agree upon a single Appraiser within the thirty day period, each
shall then appoint one Appraiser by written notice to the other, given within
ten (10) days after the thirty day period. Within ten (10) days after the two
Appraisers are appointed, the two Appraisers shall appoint a third Appraiser. If
either Landlord or Tenant fails to appoint its Appraiser within the prescribed
time period the single Appraiser appointed shall determine the Fair Market
Rental amount of the Demised Premises. Each parry shall bear the cost of the
appraiser appointed by it and the parties shall share equally the cost of the
third appraiser. The term "Appraiser" means a Stare Certified Real Estate
Appraiser licensed by the State of CO to value commercial property.
c. The Fair Market Rental Value of the Demised Premises shall be the
average of two of the three appraisals which are closest in amount as described
below, and the third appraisal shall be disregarded. If the Fair Market Rental
is not determined prior to the commencement of the Extension, then Tenant shall
continue to pay to Landlord the Rent applicable to the Demised Premises
immediately prior to the Extension until the Fair Market Rental amount is
determined. and when it is determined, Tenant shall pay to Landlord within ten
(10) days after receipt of such notice the difference between the Rent actually
paid by Tertant to Landlord and the new Rent determined under this Lease.
C. [DELETED]
ADDENDUM C TO LEASE
RIGHT OF FIRST REFUSAL FOR ADDITIONAL SPACE
Demised Premises/Address: 0000 X. 00xx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
-----------------------------------------------
A. During the initial Lease Term, and any extension thereof, Tenant shall have
a right of first refusal (the "Right of First Refusal") to lease the additional
space shown on Exhibit B, FLOOR PLAN OR SITE PLAN, attached to this Lease,
described or known as Mountain Shadows Business Park - Building 1, containing
approximately 10,750 square feet of area (the "Additional Space"), on the same
terms and conditions as per this agreement. When Landlord receives a legally
sufficient offer which Landlord desires to accept to lease the Additional Space
from a third party, Landlord shall notify Tenant in writing and Tenant shall
thereafter have ten (10) days in which to accept or reject the offer in writing.
If Tenant rejects the offer or fails to properly and timely accept the offer
[DELETED], then Landlord shall be free to lease the Additional Space to the
third party [DELETED]. If Landlord does not enter into a lease with the third
party, the Right of First Refusal shall continue to apply and Landlord shall be
required to submit any future offer to Tenant in the foregoing manner.
B. The Right of First Refusal shall, at Landlord's election, be null and void
if Tenant is in default under the Lease on the date Landlord would otherwise
notify Tenant of the offer concerning the Additional Space or at any time
thereafter and prior to commencement of the lease for the Additional Space.
After Tenant validly exercises the Right of First Refusal provided herein, the
parties shall execute an amendment to the Lease adding the Additional Space, or
a new lease for the Additional Space, or such other documentation as Landlord
may reasonably require, promptly after Landlord prepares the documentation, in
order to confirm the leasing of the Additional Space to Tenant. An otherwise
valid exercise of the Right of First Refusal contained herein shall be fully
effective, whether or not such confirming documentation is executed.
C. The Right of First Refusal shall apply only with respect to the entire
Additional Space and may not be exercised with respect to only a portion
thereof, unless only a portion first becomes the subject of a legally sufficient
offer acceptable to Landlord (in which case, the Right of First Refusal shall
apply to the portion subject to the offer). If the Additional Space, or any
portion thereof, is the subject of an offer which includes other building space
at the Property, and the offer is acceptable to Landlord, the Right of First
Refusal shall apply to the entire building space which is the subject of the
offer, and Tenant shall be obligated to either accept or refuse to lease the
entire space. [DELETED]
D. If Tenant exercises the Right of First Refusal, Landlord does not guarantee
that the Additional Space will be available on the commencement date for the
lease thereof if there are additional improvements required to be built or if
the then existing occupants of the Additional Space hold over for any reason
beyond Landlord's reasonable control. In such event, Tenant's sole recourse
shall be that the Rent with respect to the Additional Space shall be abated
until Landlord legally delivers possession of the Additional Space to Tenant.
Tenant's exercise of such Right of First Refusal shall not operate to cure any
default 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 the
default. If the Lease or Tenant's right to possession of the Demised Premises
terminates in any manner before Tenant exercises the right herein provided, or
if Tenant has subleased or assigned all or any portion of the Demised Premises,
then immediately upon such termination, sublease or assignment, the Right of
First Refusal shall simultaneously terminate and become null and void. [DELETED]
E. [DELETED]
ADDENDUM F TO LEASE
CONSTRUCTION OF IMPROVEMENTS
Demised Premises/Address: 0000 X. 00xx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
-----------------------------------------------
A. Construction of improvements.
1. Landlord agrees to construct (or complete) a building and interior
finishes and other improvements upon the Demised Premises in accordance with
detailed Plans and Specifications to be promptly prepared by Landlord and
delivered to Tenant. Upon approval by Tenant, two or more sets of the Plans and
Specifications shall be signed by both parties, with one signed set retained by
Tenant. Changes to the Plans and Specifications may be made only by written
addenda signed by both parties.
2. Upon approval of the Plans and Specifications and issuance of a building
permit (which will be promptly applied for and diligently pursued by Landlord),
Landlord shall promptly begin construction and pursue the construction to its
completion with reasonable diligence and in a good and workmanlike manner.
B. Completion Date.
1. It is estimated by Landlord that the building and other improvements
will be completed by May 31, 1999.
------------
2. Landlord shall notify Tenant in writing within five (5) days of the
Date of Completion. Tenant shall then promptly inspect the building and other
improvements, and if they have in fact been completed in accordance with the
Plans and Specifications, the Lease Term shall begin upon the Date of Completion
or on the Commencement Date, whichever is later. If Tenant reasonably determines
that the improvements have not been completed in accordance with the Plans and
Specifications, Tenant may deliver a written objection to Landlord specifying
the deficiencies. If Tenant does not, within ten (10) days after Landlord's
notice of completion, deliver to Landlord either a written objection or a
written Letter of Acceptance of the improvements, then Tenant shall be deemed to
have approved the improvements as constructed and the date of Landlord's notice
of completion shall be the Date of Completion.
3. If the building and other improvements have not in fact been completed
in accordance with the Plans and Specifications, and Tenant has delivered to
Landlord a written objection specifying the items deemed incomplete, then
Landlord shall promptly proceed to finish the incomplete items, and the Lease
Term shall begin upon the date that the items are in fact complete.
4. Completion, as used in this Addendum, means substantial completion.
Substantial completion will be deemed to have occurred when (i) Landlord obtains
a Certificate of Occupancy issued by the local municipal authorities whose
jurisdiction includes the Demised Premises, and (ii) the construction is
sufficiently complete in accordance with the Plans and Specifications so that
the Tenant is able to occupy or utilize the Demised Premises for its intended
use, except for minor "punch list" items remaining to be completed.
C. Letter of Acceptance. Upon Completion of the improvements to the Demised
Premises, Tenant agrees to execute and deliver to Landlord, with a copy to the
Principal Broker, a Letter of Acceptance, addressed to Landlord and signed by
Tenant (or its authorized representative) acknowledging that construction has
been completed in accordance with the Plans and Specifications, acknowledging
acceptance of the improvements (subject to "punch list" items being completed),
acknowledging the Date of Completion, and acknowledging the Commencement Date of
the Lease Term.
D. Taking of Possession. The taking of possession of the Demised Premises by
Tenant shall be deemed conclusively to be acknowledgment by Tenant that
construction has been completed in accordance with Plans and Specifications
(except for latent defects and "punch list" items) whether or not a Certificate
of Occupancy has been obtained, and that the Lease Term has begun as of the Date
of Completion.
E. Failure to Complete. If the building and other improvements have not been
completed in accordance with the Plans and Specifications by the date in B(1)
----------------
above, or by such date as extended by application of Section 16.02, Tenant
-----
shall have the right and option to terminate this Lease by giving written notice
of Tenant's intention to terminate as of a certain date specified by Tenant in
the notice of termination (the "Termination Date"). The notice must be given to
Landlord not less than fifteen (15) days prior to the Termination Date. If the
building and other improvements have not been completed by the Termination Date,
this Lease shall terminate, unless further extended by Tenant in writing, with
no further liability of one party to the other.
F. EXTENSION OF COMPLETION DATE.
The completion date shall be extended one (1) day for each day that Landlord's
General Contractor is unable to work because of delays caused by rain, snow, or
extreme cold. [DELETE] In order to obtain the benefit of these extensions of the
Date of Completion or any extension by application of Section 16.02, Landlord
must promptly notify Tenant in writing of the occurrence of such event(s). Such
notice must specify the date upon which such event occurred and the estimated
number of days that the work is anticipated to be delayed.
G. WARRANTY OF CONSTRUCTION.
Notwithstanding anything to the contrary contained herein (including without
limitation Sections 6.01, 6.02 and 7.01), Landlord represents and warrants to
Tenant that the Demised Premises shall be constructed in accordance with the
Plans and Specifications in a good and workmanlike manner free of latent,
structural or construction defects and in compliance with all applicable laws
and regulations including all zoning laws and the ADA. Such representation and
warranty shall survive for a period of one (1) year after the Date of
Completion, and Landlord agrees to promptly correct any defect or item of non-
compliance for which Tenant delivers to landlord written notice prior to the
expiration of such period.
H. FINISH-OUT.
Tenant shall have a finish-out allowance of $26.00 per square foot to be used
for Tenant improvements, space planning, and design documents (including plans
and specifications) (Tenant Occupancy Expense). Tenant may select high quality
non-standard materials, if the design selection so dictates. However, Tenant
shall pay any costs over and above the allowance amount to Landlord upon receipt
of an invoice from Landlord after the Date of Completion. If Tenant requests,
Landlord will amortize the cost over and above the allowance amount over the
initial ten year term of the lease, at an interest rate of nine (9%) percent per
annum.
1. TENANT OCCUPANCY EXPENSE.
The Tenant Occupancy Expense shall include, but shall not be limited to, all
items necessary to open and maintain an office for Tenant's business in a
generally accepted manner and according to all prevailing government codes, with
the exception of all work to improve and to construct on the Property site a new
"Shell" building in which the Demised Premises are to be located and to improve
said site as outlined below, in accordance with the general site plan attached
to this lease as a part of this Addendum "F". It is understood and agreed that
in the construction of said building, Landlord shall furnish and install the
following general features:
a. Total site improvements consisting of all exterior paving, sidewalks,
landscaping, lawn sprinkler, lighting and utilities per approved
development plan.
b. An architcctural painted tilt-up concrete wall panel shell building
complete with concrete flooring, and glass exterior storefronts with
windows per city approved permit plans, as well as, at all overhead door
openings.
c. All utilities will be stubbed to the building including electrical,
water, fire protection, gas and sewer. All distribution will be covered in
the tenant finish allowance except the sanitary sewer, which will be
distributed in a floor leave-out for future tenant connections.
d. The HVAC system units will be set on the roof with all duct
distribution being covered in the tenant allowance.
e. The electrical service for the total building will be 1600 amps,
3-phase, 208/210 voltage at the main panel.
It is understood and agreed that Tenant finish-out improvement work would
include but not be limited to interior walls, doors, ceilings, toilet
facilities, exterior wall insulation, lighting, fire protection piping,
etc...
MOUNTAIN SHADOWS BUSINESS PARK FILING NO. 1
DEVELOPMENT PLAN
[SURVEY OF PROPERTY]
ADDENDUM G TO LEASE
RULES AND REGULATIONS
Demised Premises/Address: 0000 X. 00xx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
-----------------------------------------------
A. Application. The following standards shall affect and shall be observed by
Tenant, Tenant's employees and invitees, for the mutual safety, cleanliness,
care, protection, comfort and convenience of all tenants and occupants of the
Property, and shall be applicable to the building(s), to the parking garages, if
any, to the common areas, driveways, parking lots, and to the Demised Premises,
including the land situated beneath and any appurtenances thereto.
B. Consent Required. Any exception to these Rules and Regulations must first
be approved in writing by Landlord. For purposes of these Rules and Regulations,
the term "Landlord" includes the building manager, the building manager's
employees, and any other agent or designee authorized by Landlord to manage or
operate the Property.
C. Rules and Regulations:
1. Tenant may not conduct any auction, "flea market" or "garage sale" on
the Demised Premises nor store any goods or merchandise on the
Property except for Tenant's own business use. Food may not be
prepared in the Demised Premises except in small amounts for
consumption by Tenant. Vending machines or dispensing machines may not
be placed in the Demised Premises without Landlord's written approval.
The Demised Premises may not be used or occupied as sleeping quarters
or for lodging purposes. Animals may not be kept in or about the
Property.
2. Tenant shall not obstruct sidewalks, driveways, loading areas, parking
areas, corridors, hallways, vestibules, stairs and other similar areas
designated for the collective use of tenants, or use such areas for
Tenant's storage, temporary or otherwise, or for any purpose other
than ingress and egress to and from the Demised Premises. Tenant shall
comply with parking rules and guidelines as may be posted on the
Property from time to time.
3. Tenant shall not make any loud noises, unusual vibrations, unpleasant
odors, objectionable or illegal activities on the Property. Tenant
shall not permit the operation of any equipment in the Demised
Premises that could annoy other occupants of the Property. Tenant
shall not interfere with the possession of other tenants of the
Property.
4. Tenant may not bring any flammable, explosive, toxic, noxious,
dangerous or hazardous materials onto the Property.
5. Installation of security systems, telephone, television and other
communication cables, fixtures and equipment must comply with Section
7.04 of die Lease, except that routine installation and construction
of normal communication devices which do not require any holes in the
roof or exterior walls of the Property do not require the written
approval of Landlord.
6. Movement into or out of the building through public entrances, lobbies
or corridors which requires use of a hand truck, dolly or pallet xxxx
to carry freight, furniture, office equipment, supplies and other
large or heavy material, must be limited to the service entrances and
freight elevators only and must be done at times and in a manner so as
not to unduly inconvenience other occupants of the Property. All
wheels for such use must have rubber tires and edge guards to prevent
damage to the building. Tenant shall be responsible for and shall pay
all costs to repair damages to the building caused by the movement of
materials by Tenant.
7. Requests by Tenant for building services, maintenance and repair must
be made in writing to the office of the building manager designated by
Landlord and must be dated. Tenant shall give prompt written notice to
Landlord of any significant damage to or defects in the Demised
Premises or the Property, especially including plumbing, electrical
and mechanical systems, heating, ventilating and air conditioning
systems, roofs, windows, doors, foundation and structural components,
regardless of whose responsibility it is to repair such damage.
8. Tenant shall not change locks or install additional locks on doors
without the prior written consent of Landlord. If Tenant changes locks
or installs additional locks on the Property, Tenant shall within five
days thereafter provide Landlord with a copy of each separate key to
each lock. Upon termination of Tenant's occupancy of the Demised
Premises, Tenant must surrender all keys to the Demised Premises and
to the Property to Landlord.
9. Harmful liquids, toxic wastes, bulky objects, insoluble substances and
other materials which may cause clogging, stains or damage to plumbing
fixtures or systems must not be placed in the lavatories, water
closets, sinks, or drains. Tenant must pay the costs to repair and
replace drains, plumbing fixtures and piping which is required because
of damage caused by Tenant.
10. Tenant shall cooperate with Landlord and other occupants of the
Property in keeping the Property and the Demised Premises neat and
clean. Nothing may be swept, thrown or left in the corridors,
stairways, elevator shafts, lobbies, loading areas, parking lots or
any other common areas on the Property. All trash and debris must be
properly placed in receptacles provided therefor.
11. Landlord has the power and authority to regulate the weight and
position of heavy furnishings and equipment on the floor of the
Demised Premises, including safes, groups of filing cabinets,
machines, and any other item which may overload the floor. Tenant
shall notify the Landlord when heavy items are to be taken into or out
of the building, and the placement and transportation of heavy items
may be done only with the prior written approval of Landlord.
12. No window screens, blinds, draperies, awnings, solar screen films,
window ventilators or other materials visible from the exterior of the
Demised Premises may be placed in the Demised Premises without
Landlord's approval. Landlord is entitled to control all lighting that
maybe visible from the exterior of the building.
13. No advertisement, sign, notice, handbill, poster or banner may be
exhibited, distributed, painted or affixed upon the Property. No
directory of tenants is allowed on the Property other than that
provided by Landlord.
14. Tenant agrees to cooperate with and assist Landlord in the prevention
of peddling, canvassing and soliciting on the Property.
15. Tenant accepts any and all liability for damages and injuries to
persons and property resulting from the serving and sales of alcoholic
beverages on or from the Property.
16. Any person entering and leaving the building before and after normal
working hours, or building hours if posted by Landlord, whichever
applies, maybe required to identify himself to security personnel by
signing a list and giving the time of day and destination or location
of the applicable Demised Premises. Normal building business hours are
established by Landlord from time to time.
D. Revisions. Landlord reserves the right to revise and/or rescind any of
these Rules and Regulations and to make additional rules which Landlord may
determine are necessary from time to time for the safety, care, cleanliness,
protection, comfort and convenience of the tenants and occupants of the Property
and for the care, protection and cleanliness of the building. Revisions and
additions will be binding upon the Tenant as if they had been originally
prescribed herein when furnished in writing by Landlord to Tenant, provided the
additions and revisions apply equally to all tenants occupying the Property.
E. Enforcement. Any failure or delay by Landlord in enforcing these Rules and
Regulations will not prevent Landlord from enforcing these Rules and Regulations
in the future. If any of these Rules and Regulations is determined to be
unenforceable, it shall be severed from this Lease without affecting the
remainder of these Rules and Regulations.
RENT SCHEDULE ADDENDUM "H" FILE NAME: CHEAPRPS
CHEAP TICKETS, INC.
11/19/98 Page 1 of 3
GUARANTEED MINIMUM RENTAL (BASE RENT):
INITIAL SQUARE FOOTAGE 15,000 11.50 $172,500.00 $14,375.00
ADD COMMITTED S.F. 10,000 11.50 $115,000.00 $ 9,583.33
TOTAL SQUARE FOOTAGE 25,000 $287,500.00 $23,958.33
MONTHS 1 THRU 3 43,125.00 14,375.00 /MONTH
MONTHS 4 THRU 12 258,749.97 215,624.97 23,958.33 /MONTH
MONTHS 13 THRU 24 5,175.00 293,250.00 24,437.50 /MONTH
MONTHS 25 THRU 36 5,750.00 299,115.00 24,926.25 /MONTH
MONTHS 37 THRU 48 305,097.36 25,424.78 /MONTH
MONTHS 49 THRU 60 311,199.24 25,933.27 /MONTH
MONTHS 61 THRU 72 317,423.28 26,451.94 /MONTH
MONTHS 73 THRU 84 323,771.64 26,980.97 /MONTH
MONTHS 85 THRU 96 330,247.08 27,520.59 /MONTH
MONTHS 97 THRU 108 336,852.12 28,071.01 /MONTH
MONTHS 109 THRU 120 343,589.16 28,632.43 /MONTH
--------------
3,119,294.85
==============
SECURITY DEPOSIT: $ 28,632.43
==============
ESTIMATED CAM, INSURANCE & TAXES (CIT): $2.75 PER YEAR
10,000 S.F. $2,291.67 /MONTH
15,000 S.f. $3,437.50 /MONTH
ESTIMATED COMMENCEMENT OF LEASE 06/01/99
ESTIMATED
$2.75 TENANT
MONTH ESTIMATED DUE ESTIMATED BASE ESTIMATED ESTIMATED OBLIGATIONS TOTAL
DATES RENT CAM, TAX & INS OPERATING PERFORMED RENT PMT.
CHARGES EXPENSES BY LANDLORD DUE COMMENTS
==================================================================================================================================
1 06/01/99 14,375.00 2,291.67 TO BE 16,666.67
DETERMINED
2 07/01/99 14,375.00 2,291.67 XXX XXX 16,666.67
3 08/01/99 14,375.00 2,291.67 XXX XXX 16,666.67
4 09/01/99 23,958.33 3,437.50 XXX XXX 27,395.83
5 10/01/99 23,958.33 3,437.50 XXX XXX 27,395.83
6 11/01/99 23,958.33 3,437.50 XXX XXX 27,395.83
7 12/01/99 23,958.33 3,437.50 XXX XXX 27,395.83 ADJUST ADDITIONAL RENTS
BASED ON ACTUALS.
8 01/01/00 23,958.33 3,437.50 XXX XXX 27,395.83
9 02/01/00 23,958.33 3,437.50 XXX XXX 27,395.83
10 03/01/00 23,958.33 3,437.50 XXX XXX 27,395.83
11 04/01/00 23,958.33 3,437.50 XXX XXX 27,395.83
12 05/01/00 23,958.33 3,437.50 XXX XXX 27,395.83
13 06/01/00 24,437.50 3,437.50 XXX XXX 27,875.00 2% INCREASE
14 07/01/00 24,437.50 3,437.50 XXX XXX 27,875.00
15 08/01/00 24,437.50 3,437.50 XXX XXX 27,875.00
16 09/01/00 24,437.50 3,437.50 XXX XXX 27,875.00
17 10/01/00 24,437.50 3,437.50 XXX XXX 27,875.00
18 11/01/00 24,437.50 3,437.50 XXX XXX 27,875.00
19 12/01/00 24,437.50 3,437.50 XXX XXX 27,875.00 ADJUST ADDITIONAL RENTS
BASED ON ACTUALS.
20 01/01/01 24,437.50 3,437.50 XXX XXX 27,875.00
21 02/01/01 24,437.50 3,437.50 XXX XXX 27,875.00
22 03/01/01 24,437.50 3,437.50 XXX XXX 27,875.00
23 04/01/01 24,437.50 3,437.50 XXX XXX 27,875.00
24 05/01/01 24,437.50 3,437.50 XXX XXX 27,875.00
25 06/01/01 24,926.25 3,437.50 XXX XXX 28,363.75 2% INCREASE
26 07/01/01 24,926.25 3,437.50 XXX XXX 28,363.75
27 08/01/01 24,926.25 3,437.50 XXX XXX 28,363.75
RENT SCHEDULE ADDENDUM "H" FILE NAME: CHEAPRPS
CHEAP TICKETS, INC.
11/19/98 Page 2 of 3
$2.75 ESTIMATED ESTIMATED ESTIMATED TENANT
ESTIMATED DUE ESTIMATED BASE CAM, TAX & INS OPERATING OBLIGATIONS TOTAL RENT PMT.
MONTH DATES RENT CHARGES EXPENSES PERFORMED BY LANDLORD DUE COMMENTS
====================================================================================================================================
28 09/01/01 24,926.25 3,437.50 XXX XXX 28,363.75
29 10/01/01 24,926.25 3,437.50 XXX XXX 28,363.75
30 11/01/01 24,926.25 3,437.50 XXX XXX 28,363.75
31 12/01/01 24,926.25 3,437.50 XXX XXX 28,363.75 ADJUST ADDITIONAL RENTS
BASED ON ACTUALS
32 01/01/02 24,926.25 3,437.50 XXX XXX 28,363.75
33 02/01/02 24,926.25 3,437.50 XXX XXX 28,363.75
34 03/01/02 24,926.25 3,437.50 XXX XXX 28,363.75
35 04/01/02 24,926.25 3,437.50 XXX XXX 28,363.75
36 05/01/02 24,926.25 3,437.50 XXX XXX 28,363.75
37 06/01/02 25,424.78 3,437.50 XXX XXX 28,862.28 2% INCREASE
38 07/01/02 25,424.78 3,437.50 XXX XXX 28,862.28
39 08/01/02 25,424.78 3,437.50 XXX XXX 28,862.28
40 09/01/02 25,424.78 3,437.50 XXX XXX 28,862.28
41 10/01/02 25,424.78 3,437.50 XXX XXX 28,862.28
42 11/01/02 25,424.78 3,437.50 XXX XXX 28,862.28
43 12/01/02 25,424.78 3,437.50 XXX XXX 28,862.28 ADJUST ADDITIONAL RENTS
BASED ON ACUALS.
44 01/01/03 25,424.78 3,437.50 XXX XXX 28,862.28
45 02/01/03 25,424.78 3,437.50 XXX XXX 28,862.28
46 03/01/03 25,424.78 3,437.50 XXX XXX 28,862.28
47 04/01/03 25,424.78 3,437.50 XXX XXX 28,862.28
48 05/01/03 25,424.78 3,437.50 XXX XXX 28,862.28
49 06/01/03 25,933.27 3,437.50 XXX XXX 29,370.77 2% INCREASE
50 07/01/03 25,933.27 3,437.50 XXX XXX 29,370.77
51 08/01/03 25,933.27 3,437.50 XXX XXX 29,370.77
52 09/01/03 25,933.27 3,437.50 XXX XXX 29,370.77
53 10/01/03 25,933.27 3,437.50 XXX XXX 29,370.77
54 11/01/03 25,933.27 3,437.50 XXX XXX 29,370.77
55 12/01/03 25,933.27 3,437.50 XXX XXX 29,370.77 ADJUST ADDITIONAL RENTS
BASED ON ACTUALS.
56 01/01/04 25,933.27 3,437.50 XXX XXX 29,370.77
57 02/01/04 25,933.27 3,437.50 XXX XXX 29,370.77
58 03/01/04 25,933.27 3,437.50 XXX XXX 29,370.77
59 04/01/04 25,933.27 3,437.50 XXX XXX 29,370.77
60 05/01/04 25,933.27 3,437.50 XXX XXX 29,370.77
61 06/01/04 26,451.94 3,437.50 XXX XXX 29,889.44 2% INCREASE
62 07/01/04 26,451.94 3,437.50 XXX XXX 29,889.44
63 08/01/04 26,451.94 3,437.50 XXX XXX 29,889.44
64 09/01/04 26,451.94 3,437.50 XXX XXX 29,889.44
65 10/01/04 26,451.94 3,437.50 XXX XXX 29,889.44
66 11/01/04 26,451.94 3,437.50 XXX XXX 29,889.44
67 12/01/04 26,451.94 3,437.50 XXX XXX 29,889.44 ADJUST ADDITIONAL RENTS
BASED ON ACTUALS.
68 01/01/05 26,451.94 3,437.50 XXX XXX 29,889.44
69 02/01/05 26,451.94 3,437.50 XXX XXX 29,889.44
70 03/01/05 26,451.94 3,437.50 XXX XXX 29,889.44
71 04/01/05 26,451.94 3,437.50 XXX XXX 29,889.44
72 05/01/05 26,451.94 3,437.50 XXX XXX 29,889.44
73 06/01/05 26,980.97 3,437.50 XXX XXX 30,418.47 2% INCREASE
74 07/01/05 26,980.97 3,437.50 XXX XXX 30,418.47
75 08/01/05 26,980.97 3,437.50 XXX XXX 30,418.47
76 09/01/05 26,980.97 3,437.50 XXX XXX 30,418.47
77 10/01/05 26,980.97 3,437.50 XXX XXX 30,418.47
78 11/01/05 26,980.97 3,437.50 XXX XXX 30,418.47
79 12/01/05 26,980.97 3,437.50 XXX XXX 30,418.47 ADJUST ADDITIONAL RENTS
BASED ON ACTUALS.
80 01/01/06 26,980.97 3,437.50 XXX XXX 30,418.47
81 02/01/06 26,980.97 3,437.50 XXX XXX 30,418.47
82 03/01/06 26,980.97 3,437.50 XXX XXX 30,418.47
83 04/01/06 26,980.97 3,437.50 XXX XXX 30,418.47
RENT SCHEDULE ADDENDUM "H" FILE NAME: CHEAPRPS
CHEAP TICKETS, INC.
11/19/98 Page 3 of 3
$2.75 ESTIMATED ESTIMATED ESTIMATED TENANT
ESTIMATED DUE ESTIMATED BASE CAM, TAX & INS OPERATING OBLIGATIONS TOTAL RENT PMT.
MONTH DATES RENT CHARGES EXPENSES PERFORMED BY LANDLORD DUE COMMENTS
====================================================================================================================================
84 05/01/06 26,980.97 3,437.50 XXX XXX 30,418.47 TENANT MAY
TERMINATE AT END
OR 84TH MONTH
W/180 DAY NOTICE
0.00 2% INCREASE
85 06/01/06 27,520.59 3,437.50 XXX XXX 30,958.09
86 07/01/06 27,520.59 3,437.50 XXX XXX 30,958.09
87 08/01/06 27,520.59 3,437.50 XXX XXX 30,958.09
88 09/01/06 27,520.59 3,437.50 XXX XXX 30,958.09
89 10/01/06 27,520.59 3,437.50 XXX XXX 30,958.09
90 11/01/06 27,520.59 3,437.50 XXX XXX 30,958.09
91 12/01/06 27,520.59 3,437.50 XXX XXX 30,958.09 ADJUST ADDITIONAL
RENTS BASED ON
ACTUALS.
92 01/01/07 27,520.59 3,437.50 XXX XXX 30,958.09
93 02/01/07 27,520.59 3,437.50 XXX XXX 30,958.09
94 03/01/07 27,520.59 3,437.50 XXX XXX 30,958.09
95 04/01/07 27,520.59 3,437.50 XXX XXX 30,958.09
96 05/01/07 27,520.59 3,437.50 XXX XXX 30,958.09
97 06/01/07 28,071.01 3,437.50 XXX XXX 31,508.51 2% INCREASE
98 07/01/07 28,071.01 3,437.50 XXX XXX 31,508.51
99 08/01/07 28,071.01 3,437.50 XXX XXX 31,508.51
100 09/01/07 28,071.01 3,437.50 XXX XXX 31,508.51
101 10/01/07 28,071.01 3,437.50 XXX XXX 31,508.51
102 11/01/07 28,071.01 3,437.50 XXX XXX 31,508.51
103 12/01/07 28,071.01 3,437.50 XXX XXX 31,508.51 ADJUST ADDITIONAL
RENTS BASED ON
ACTUALS.
104 01/01/08 28,071.01 3,437.50 XXX XXX 31,508.51
105 02/01/08 28,071.01 3,437.50 XXX XXX 31,508.51
106 03/01/08 28,071.01 3,437.50 XXX XXX 31,508.51
107 04/01/08 28,071.01 3,437.50 XXX XXX 31,508.51
108 05/01/08 28,071.01 3,437.50 XXX XXX 31,508.51
109 06/01/08 28,632.43 3,437.50 XXX XXX 32,069.93 2% INCREASE
110 07/01/08 28,632.43 3,437.50 XXX XXX 32,069.93
111 08/01/08 28,632.43 3,437.50 XXX XXX 32,069.93
112 09/01/08 28,632.43 3,437.50 XXX XXX 32,069.93
113 10/01/08 28,632.43 3,437.50 XXX XXX 32,069.93
114 11/01/08 28,632.43 3,437.50 XXX XXX 32,069.93
115 12/01/08 28,632.43 3,437.50 XXX XXX 32,069.93 ADJUST ADDITIONAL
RENTS BASED ON
ACTUALS.
116 01/01/09 28,632.43 3,437.50 XXX XXX 32,069.93
117 02/01/09 28,632.43 3,437.50 XXX XXX 32,069.93
118 03/01/09 28,632.43 3,437.50 XXX XXX 32,069.93
119 04/01/09 28,632.43 3,437.50 XXX XXX 32,069.93
120 05/01/09 28,632.43 3,437.50 XXX XXX 32,069.93 ADJUST ADDITIONAL
RENTS BASED ON
ACTUALS.
TOTAL 3,119,294.85 409,062.51 3,528,357.36
RENT
