THIRD AMENDMENT TO LEASE
This Third Amendment to Lease ("Amendment") is made effective as of the
_____ day of __________, 2005, by and between 12001 VENTURA CORPORATION, a
Delaware corporation ("Landlord") and TIX CORPORATION, a Delaware corporation
("Tenant") with reference to the following facts and circumstances.
A. Landlord is the Owner of that certain building located at
00000 Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000 (the
"Property").
B. Landlord's predecessor-in-interest and Tenant's
predecessor-in-interest entered into a certain Standard Office
Lease-Gross, dated March 21, 1995, as amended by that certain
First Amendment of Lease dated April 17, 1995, and that
certain Second Amendment to Lease dated July 27, 2000
(collectively, the "Lease") for certain premises described as
Suite 340 (the "Premises") located in the Property.
C. American Realty Advisors ("Advisor") is the real estate
investment manager to the Landlord.
D. Landlord and Tenant desire to amend the Lease upon terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing facts and
circumstances, the mutual covenants and promises contained herein and after good
and valuable consideration, the receipt and sufficiency of which is acknowledged
by each of the parties, the parties do hereby agree to the following:
1. Definitions. Each capitalized term used in this Amendment shall have
the same meaning as is ascribed to such capitalized term in the Lease, unless
otherwise provided for herein.
2. Term. The term of the Lease is hereby extended for the period
commencing on July 1, 2005 and ending on June 30, 2010 (the "Extension Period").
Tenant acknowledges and agrees that, unless expressly provided for in this
Amendment, Tenant has no right to renew or extend the term after the Extension
Period.
3. Rental. The Base Rent for the Extension Period shall be as follows:
Months Monthly Rent PSF Monthly Installment
------ ---------------- -------------------
7/1/05-6/30/06 $2.35 $4,770.50
7/1/06-6/30/07 $2.42 $4,912.60
7/1/07-6/30/08 $2.49 $5,054.70
7/1/08-6/30/09 $2.56 $5,196.80
7/1/09-6/30/10 $2.64 $5,359.20
Tenant hereby agrees to pay the Base Rent for July, 2005 to Landlord
upon the execution of this Amendment.
4. Conditional Rent. Provided that Tenant has faithfully performed all
of the terms and conditions of this Lease, Landlord agrees to xxxxx Tenant's
obligation to pay Base Rent for August, 2005 and September, 2005 (the
"Conditional Rent"). Notwithstanding the foregoing, however, during such
abatement period, Tenant shall still be responsible for the payment of all
Operating Expenses payable under this Amendment. In the event of a default at
any time during the Term, in addition to any other remedies to which Landlord
may be entitled, Landlord shall be entitled to recover the Conditional Rent
(i.e., the amount of the Conditional Rent shall not be deemed to have been
abated, but shall become immediately due and payable as unpaid Rent earned, but
due at the time of such default).
5. Operating Expenses. During the Extension Period, the Base Year, as
defined in Section 4.2(b) of the Lease, shall be calendar year 2005.
Additionally, Tenant shall not be obligated to pay any Operating Expenses until
July, 2006.
6. Parking. Notwithstanding anything in the Lease to the contrary,
Tenant shall have the right to use up to three (3) unreserved parking spaces for
every 1,000 rentable square feet of the Premises, subject to paying Landlord's
standard monthly rate for such unreserved spaces. Additionally, Tenant may
convert three (3) of those total unreserved spaces into reserved parking spaces,
subject to paying Landlord's standard monthly rate for such reserved spaces.
7. Tenant Improvements. Landlord hereby agrees, at Landlord's expense,
to re-paint the Premises using Building standard colors and to professionally
clean the existing carpets in the Premises.
8. Option to Renew.
a. Tenant shall have one (1) personal and non-transferable option to
renew the term of the Lease for a period of five (5) years. The renewal
term shall begin the first day following the expiration of the
Extension Period. Tenant shall have the right to exercise the renewal
option conferred herein by giving Landlord notice at least one hundred
eighty (180) days, but not more than two hundred seventy (270) days,
prior to the expiration of the Extension Period; provided that, at the
time of exercise and as of the commencement of the renewal term (i) no
default has occurred; and (ii) Tenant has not sublet any portion of the
Premises or assigned all or any portion of the Lease.
b. The renewal option shall be subject to all of the terms and
conditions contained in the Lease, except that rent during each renewal
term shall be Market Rent. "Market Rent" shall be the anticipated rate
in effect for the Premises as of the commencement of the renewal term,
together with any market rate increases during the renewal term, based
upon the rents generally in effect for new leases of space in the area
in which the building is located of equivalent quality, size, utility
and location, and taking into account the length of the renewal term
and the credit standing of Tenant. In no event shall the Market Rent be
less than the rent in effect for the immediately preceding term.
Landlord shall lease the Premises to Tenant in their then-current
condition, and Landlord shall not provide to Tenant any allowances
(e.g., moving allowance, construction allowance, free rent or the like)
or other tenant inducements. In the event that Tenant shall exercise an
option to renew the Lease, then the Market Rent shall be agreed upon in
a meeting of the parties hereto held at least ninety (90) days prior to
the expiration of the Extension Period. If the parties are able to
agree on an amount of rent that is mutually satisfactory, then such
agreements shall be placed in writing and shall be signed by the
parties hereto and shall thereupon become a part of the Lease.
c. If the parties hereto are unable to agree upon the rent at least
thirty (30) days prior to the commencement of the renewal term, then
the disagreement shall be promptly submitted to arbitration as provided
below.
d. Failure of Tenant properly to exercise any option herein granted
shall be construed as a waiver of all options herein granted, and the
Lease shall then terminate at the expiration of the Extension Period.
e. If the parties do not agree upon the Market Rent within the
stipulated time, no later than five (5) business days following the
expiration of the stipulated time, each party shall select an
arbitrator having not less than ten (10) years' actual experience in
the commercial real estate brokerage business, and the arbitrators so
selected shall immediately meet for the purpose of hearing and deciding
the dispute and fixing the relevant rate of rent. If the two
arbitrators selected cannot agree on the rental rate within ten (10)
business days after appointment (the "Initial Review Period"), but the
rental rates differ by less than five percent (5%), the rental rate
shall be the average of the two rates. If the rental rates differ by
more than five percent (5%), no later than five (5) business days
following the expiration of the Initial Review Period, the two
arbitrators shall select a third arbitrator with qualifications similar
to their own. Within ten (10) business days following appointment, the
third arbitrator shall select one of the two rental rates promulgated
by the first two arbitrators as the rental rate for the renewal period.
If the arbitrators cannot agree on the third arbitrator, they shall
petition the presiding judge of the local state court having
jurisdiction to appoint such arbitrator to act as an umpire between the
arbitrators selected by Landlord and Tenant. The decision of the third
arbitrator or presiding judge, as the case may be, shall be binding on
both parties. Landlord and Tenant shall each be responsible to pay
their respective arbitrators and will share equally the cost of the
third arbitrator.
f. Except as expressly set forth herein, Tenant shall have no option to
renew the Lease.
9. Restroom Installation. Tenant shall have the right, with Landlord's
prior written approval, to install one (1) restroom facility in the Premises,
subject to the following terms and conditions:
a. Installation shall be performed only by contractors approved in
advance by Landlord;
b. Tenant shall be solely responsible for the maintenance, upkeep and
repair of such restroom facility;
c. The restroom shall installed in accordance with all applicable
local, state and federal laws, including, but not limited to,
compliance with the Americans With Disabilities Act of 1990; and
d. Upon Landlord's request, Tenant shall completely restore, at
Tenant's expense, the Premises to their condition prior to the
installation of the restroom facility.
10. No Defenses. Tenant affirms that, as of the date of execution of
this Amendment, no default or breach by Landlord exists under the Lease and
Tenant has no defenses, offsets or counterclaims that could be asserted in an
action by Landlord to enforce Landlord's remedies under the Lease.
11. Broker. Tenant represents to Landlord that Tenant has not dealt
with any real estate broker, salesperson or finder in connection with this
Amendment, and no other such person initiated or participated in the negotiation
of this Amendment or is entitled to any commission in connection herewith.
Tenant hereby agrees to indemnify, defend and hold Landlord, its property
manager and their respective employees harmless from and against any and all
liabilities, claims, demands, actions, damages, costs and expenses (including
attorneys fees) arising from either (a) a claim for a fee or commission made by
any broker claiming to have acted by or on behalf of Tenant in connection with
this Amendment, or (b) a claim of, or right to lien under the statutes of the
state in which the Premises are located (the "State") relating to real estate
broker liens with respect to any such broker retained by Tenant.
12. Submission. Submission of this Amendment by Landlord to Tenant for
examination and/or execution shall not in any manner bind Landlord and no
obligations on Landlord shall arise under this Amendment unless and until this
Amendment is fully signed and delivered by Landlord and Tenant; provided,
however, the execution and delivery by Tenant of this Amendment to Landlord
shall constitute an irrevocable offer by Tenant of the terms and conditions
herein contained, which offer may not be revoked for thirty (30) days after such
delivery.
13. Miscellaneous.
a. Notices. The parties confirm their respective notice addresses to be
as follows
If to Landlord: 12001 Ventura Corporation
c/o American Realty Advisors
000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: 818-545-8460
If to Tenant: Tix Corporation
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: 000-000-0000
b. Time of Essence. Time is of the essence of this Amendment and each
and every term and provision hereof.
c. Modification. A modification of any provision herein contained, or
any other amendment to this Amendment, shall be effective only if the
modification or amendment is in writing and signed by both Landlord and
Tenant.
d. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
e. Number and Gender. As used in this Amendment, the neuter includes
masculine and feminine, and the singular includes the plural.
f. Governing Law. This Amendment shall be governed by, interpreted
under and construed and enforced in accordance with the laws of the
State applicable to agreements made and to be performed wholly within
the State.
g. Construction. Headings at the beginning of each Section and
subsection are solely for the convenience of the parties and are not a
part of this Amendment. Except as otherwise provided in this Amendment,
all exhibits referred to herein are attached hereto and are
incorporated herein by this reference. Unless otherwise indicated, all
references herein to Articles, Section, subsections, paragraphs,
subparagraphs or provisions are to those in this Amendment. Any
reference to a paragraph or Section herein includes all subparagraphs
or subsections thereof. This Amendment shall not be construed as if it
had been prepared by only Landlord or Tenant, but rather as if both
Landlord and Tenant had prepared the same. In the event any portion of
this Amendment shall be declared by any court of competent jurisdiction
to be invalid, illegal or unenforceable, such portion shall be deemed
severed from this Amendment, and the remaining parts hereof shall
remain in full force and effect, as fully as though such invalid,
illegal or unenforceable portion had never been part of this Amendment.
h. Integration of Other Agreements. This Amendment, the Lease and prior
amendments set forth the entire agreement and understanding of the
parties with respect to the matters set forth herein and supersedes all
previous written or oral understandings, agreements, contracts,
correspondence and documentation with respect thereto. Any oral
representation or modifications concerning this Amendment shall be of
no force or effect.
i. Duplicate Originals; Counterparts. This Amendment may be executed in
any number of duplicate originals, all of which shall be of equal legal
force and effect. Additionally, this Amendment may be executed in
counterparts, but shall become effective only after a counterpart
hereof has been executed by each party; all said counterparts shall,
when taken together, constitute the entire single agreement between
parties.
j. Days. The term "days," as used herein shall mean actual days
occurring, including Saturdays, Sundays and holidays. The term
"business days" shall mean days other than Saturdays, Sundays and
holidays. If any item must be accomplished or delivered hereunder on a
day that is not a business day, it shall be deemed to have been timely
accomplished or delivered if accomplished or delivered on the next
following business day.
k. Further Assurances. Landlord and Tenant each agree to execute any
and all other documents and to take any further actions reasonably
necessary to consummate the transactions contemplated hereby.
l. Joint and Several Liability. If Tenant consists of two (2) or more
parties, each of such parties (and each of Tenant's general partners)
shall be liable for Tenant's obligations under this Amendment, and all
documents executed in connection herewith, and the liability of such
parties shall be joint and several. Additionally, the obligations and
liabilities hereunder of the general partners or other appropriate
persons or entities that comprise Tenant, if any, are and shall be
joint and several.
m. No Third Party Beneficiaries. Except as otherwise provided herein,
no person or entity shall be deemed to be a third party beneficiary
hereof, and nothing in this Amendment, (either expressed or implied) is
intended to confer upon any person or entity, other than Landlord
and/or Tenant (and their respective nominees, successors and assigns),
any rights, remedies, obligations or liabilities under or by reason of
this Amendment.
n. Full Force and Effect. The Lease, as amended hereby, shall continue
in full force and effect, subject to the terms and provisions thereof
and hereof. In the event of any conflict between the terms of the Lease
and the terms of this Amendment, the terms of this Amendment shall
control.
o. ERISA. Tenant has been informed that a specified pension plan may
have an interest in the Property. Tenant hereby represents and warrants
that it is not a party in interest to such plan, within the meaning of
Section 3(14) of the Employee Retirement Income Security Act of 1974,
as amended.
IN WITNESS WHEREOF, this Amendment is executed as of the day and year
aforesaid.
LANDLORD:
12001 VENTURA CORPORATION, a Delaware corporation
By: /s/ XXXXX XXXX
Printed Name: Xxxxx Xxxx
Title: Asset Manager
Date: July 30, 2005
TENANT:
TIX CORPORATION, a Delaware corporation
By: /s/ XXXXX XXXXXXX
Printed Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
Date: July 15, 2005
