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EXHIBIT 10.26
LEASE AGREEMENT
BY AND BETWEEN
VANTAGE POINT PROPERTIES, INC.
AS LANDLORD
AND
CANDLEWOOD HOTEL COMPANY, INC.
AS TENANT
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1. LEASED PREMISES........................................................................ 2
1.1 Building Construction ........................................................ 2
1.2 Description of Leased Premises................................................ 2
1.3 Date of Occupancy............................................................. 2
2. TERM OF LEASE........................................................................... 4
2.1 Original Term.................................................................. 4
2.2 Acceptance of Leased Premises.................................................. 4
2.3 Early Occupancy................................................................ 4
2.4 Certificate of Possession...................................................... 4
3. RENTAL.................................................................................. 4
3.1 Base Building Rent............................................................. 4
3.2 Rent Adjustments............................................................... 4
3.3 Additional Rental.............................................................. 5
3.4 Estimates of Additional Expenses............................................... 5
3.5 Reconciliations................................................................ 6
3.6 Adjustments for Partial Years.................................................. 6
3.7 Survival of Obligation......................................................... 6
3.8 Common Areas................................................................... 6
3.9 Payment Address................................................................ 6
3.10 Interest Charges.............................................................. 7
4. ORDINANCES AND REGULATIONS.............................................................. 7
4.1 Leased Premises................................................................ 7
4.2 Total Building Facilities...................................................... 7
5. INSPECTION.............................................................................. 7
5.1 Right to Inspect, Repair, Alter and Add........................................ 7
5.2 Right to Show.................................................................. 8
6. ASSIGNMENT AND SUBLEASE................................................................. 8
6.1 No Assignment, Sublease or Encumbrance..........................................8
6.2 LANDLORD's Transfer............................................................ 8
6.3 Right to Collect from Assignee................................................. 8
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7. DESTRUCTION OF PREMISES................................................................ 8
7.1 Total Destruction............................................................. 8
7.2 Partial Destruction........................................................... 9
8. CONDEMNATION........................................................................... 9
8.1 Total Taking.................................................................. 9
8.2 Partial Taking................................................................ 9
9. INDEMNIFICATION........................................................................ 10
9.1 Indemnification of LANDLORD................................................... 10
9.2 Indemnification of TENANT..................................................... 10
9.3 LANDLORD's Liability.......................................................... 10
10. USE OF PREMISES....................................................................... 11
11. IMPROVEMENTS, REPAIRS, ALTERATIONS AND TAXES.......................................... 11
11.1 Prohibitions................................................................. 11
11.2 TENANT's Maintenance Obligations..............................................11
11.3 Mechanic Liens............................................................... 12
11.4 Bonding Against Liens........................................................ 12
11.5 Taxes on TENANT's Property and Improvements.................................. 12
12. INSURANCE............................................................................. 12
12.1 TENANT's Insurance........................................................... 12
12.2 LANDLORD's Insurance......................................................... 13
12.3 Waiver of Subrogation........................................................ 13
13. DEFAULT............................................................................... 13
13.1 Default - Cure Period........................................................ 13
13.2 Reletting.................................................................... 13
13.3 LANDLORD Occupancy........................................................... 14
13.4 Constructive Eviction........................................................ 14
13.5 No Waiver of Accord and Satisfaction......................................... 14
14. LEASE AND MORTGAGES................................................................... 14
14.1 Subordination................................................................ 14
14.2 Attornment................................................................... 15
14.3 Non-Disturbance.............................................................. 15
15. SECURITY DEPOSIT...................................................................... 15
15.1 Deposit...................................................................... 15
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15.2 Application of Deposit....................................................... 16
16. SERVICES AND UTILITIES................................................................ 16
16.1 Failure of Services.......................................................... 16
16.2 Standard Services............................................................ 16
16.3 Building Security / After Hours Access....................................... 17
17. PARKING............................................................................... 17
18. END OF TERM........................................................................... 17
18.1 Condition of Surrendered Premises............................................ 17
18.2 Notice of Option............................................................. 17
18.3 Holdover..................................................................... 18
19. GENERAL............................................................................... 18
19.1 Gender....................................................................... 18
19.2 Binding Effect............................................................... 18
19.3 Modifications................................................................ 18
19.4 Notices...................................................................... 18
19.5 Cumulative Remedies.......................................................... 19
19.6 Saving Clause................................................................ 19
19.7 Waivers...................................................................... 19
19.8 Captions..................................................................... 19
19.9 Choice of Law................................................................ 19
19.10 Estoppel Certificate......................................................... 19
19.11 Right to Cure............................................................... 19
19.12 Use of Building Name........................................................ 20
19.13 Counter Parts............................................................... 20
19.14 Time of the Essence......................................................... 20
20. AUTHORITY FOR EXECUTION............................................................... 20
20.1 Corporate Authority.......................................................... 20
21. QUIET ENJOYMENT....................................................................... 20
22. COMPLIANCE WITH DECLARATIONS.......................................................... 20
23. BROKERAGE............................................................................. 20
24. SIGNS................................................................................. 21
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25. DEMISED PREMISES CONSTRUCTION......................................................... 21
25.1 Shell Condition.............................................................. 21
25.2 TENANT's Finish Allowance.................................................... 21
25.3 Leasehold Improvements....................................................... 22
26. REPRESENTATIONS AND WARRANTIES OF LANDLORD............................................ 22
27. ENVIRONMENTAL COMPLIANCE.............................................................. 23
28. NOTICE OF VACANCY..................................................................... 24
29. EXISTING LEASE........................................................................ 24
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SUMMARY SHEET
THIS AGREEMENT made and entered into on this 30th day of April, 1998, in
Wichita, Kansas,
BY AND BETWEEN
VANTAGE POINT PROPERTIES, INC.,
a Kansas corporation, whose address is
▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ hereinafter referred to as
"LANDLORD"
AND
CANDLEWOOD HOTEL COMPANY, INC. a
Delaware corporation, whose address is
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
hereinafter referred to as
"TENANT"
SUMMARY OF GENERAL BASIC PROVISIONS
A. Leased Premises: Approximately 28,175 gross square feet of floor
space consisting of the entire second floor of a new office building to be
constructed in ▇▇▇▇▇▇ Estates Office Park, Wichita, Kansas
B. Term: Five (5) years, subject to options
C. Monthly Base Building Rent:$40,502.00 ($17.25 per square foot)
D. Additional Expenses: See Section 3.3 hereof
E. Security Deposit: $10,000
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W I T N E S S E T H:
For and in consideration of the mutual covenants and agreements
contained herein, the parties hereto for themselves, their respective successors
and assigns, agree as follows:
1. LEASED PREMISES:
1.1 BUILDING CONSTRUCTION: It is understood by the parties that
the LANDLORD intends to construct an office building to be known as the
Candlewood Hotel Company Office Building (herein the "BUILDING"). The Building
is located in ▇▇▇▇▇▇ Estates Office Park (herein the "OFFICE PARK"). A copy of
the site plan depicting the planned Office Park is attached hereto as Exhibit A
and made a part hereof by this reference. The Building will be constructed on
the land (herein the "LAND") described in Exhibit B, which is also attached
hereto and made a part hereof by this reference.
1.2 DESCRIPTION OF LEASED PREMISES: (a) LANDLORD does hereby
lease to TENANT and TENANT does hereby hire from LANDLORD office space,
hereinafter called the "DEMISED PREMISES" or "LEASED PREMISES" which constitutes
the entire second floor of the Building. The location of the demised premises is
shown and outlined on the floor plan attached hereto as Exhibit C and made a
part hereof by reference. It is agreed that the leased premises will contain
approximately 28,175 gross square feet and that the Building will contain
approximately 56,350 square feet of total gross space (exclusive of any basement
area). TENANT's prorata share of the Building is 50% of the total gross area of
the Building.
(b) Exhibits A and B are provided for informational purposes only
and shall not be deemed to be a warranty, representation or agreement by
LANDLORD that the Office Park, Land, Building or demised premises, or any other
information contained thereon will be exactly as indicated on such Exhibits.
Notwithstanding Exhibits A and B, or any other provision of this Lease to the
contrary, LANDLORD reserves the right to change, modify, add to or subtract from
the size and dimensions of the Office Park or Land, or parts thereof, including,
but not limited to, the number, location and dimensions of tenant spaces, the
size and configuration of parking areas, entrances, exits, corridors, signage,
number of tenant spaces, identity of tenants and the size, shape and arrangement
of Common Areas outside of the "Protected Zone." Inside the area described on
Exhibit A hereto as the "PROTECTED ZONE," LANDLORD must obtain TENANT's written
approval before making any changes or modifications, which approval shall not be
unreasonably withheld or unduly delayed.
1.3 DATE OF OCCUPANCY: (a) It is understood by the parties that
the LANDLORD will own the Building and the demised premises will be a part of
and located within said Building. The LANDLORD covenants and agrees to make all
reasonable efforts to have the
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demised premises completed and ready for occupancy by TENANT in accordance with
the following schedule, assuming the Lease is executed no later than May 1,
1998:
5/1/98: Break Ground
8/1/98: TENANT shall complete final design of the leased premises and submit
(3 mos) for LANDLORD approval, which approval shall not be unreasonably
withheld.
11/1/98: The demised premises, in Shell Condition as defined in Section 25.1
(6 mos) hereof, shall be weather-tight, ready for commencement of Leasehold
Improvement work.
2/1/99: TENANT has the right to enter into the demised premises for the purpose
(9 mos) of installing computer network cabling and telephone cabling. Said
entry shall not constitute early occupancy, and no rental payment shall
be due for said occupancy.
3/1/99: Target Commencement Date. The demises premises is Ready for Occupancy.
(10 mos)
(b) If Landlord fails, is delayed, or for any reason is unable to
deliver the demised premises to the TENANT, Ready for Occupancy, by April 15,
1999, then LANDLORD shall credit TENANT'S rent by $500 for each day that
LANDLORD delivers the leased premises, Ready for Occupancy, past April 15, 1999.
Said rent credit shall be in addition to the postponement of the Commencement
Date. In the event LANDLORD is unable to deliver the leased premises by May 15,
1999, then TENANT may, at its option, terminate this agreement no later than May
25, 1999. If such notice is given, this Lease, and the rights and obligations of
the parties hereunder, shall thereupon cease and terminate without need of the
execution of any further instrument, but if LANDLORD shall request, TENANT shall
execute an instrument in recordable form whereby TENANT releases and surrenders
all right, title and interest which it may have in and to the demised premises
under this Lease, or otherwise. Except as is otherwise herein expressly provided
to the contrary, this Lease shall not be voidable by TENANT, nor shall LANDLORD
be liable to TENANT for any loss or damage resulting from delay or failure in
the delivery of the demised premises to TENANT. In any case, LANDLORD shall
provide TENANT two weeks advance notice of the date carpet will be installed and
ready for placement of furniture in the demised premises.
(c) The phrase "READY FOR OCCUPANCY" shall mean that Leasehold
Improvements have been substantially completed, that vacant possession of the
demised premises, in broom clean condition, is available to be delivered to
TENANT, and that
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LANDLORD, on application and payment therefor, would have the right to obtain a
certificate of occupancy for the demised premises from governmental authorities
having jurisdiction over the issuance of such certificate.
(d) LANDLORD agrees to provide TENANT ten (10) business days,
rent abated, for moving in and setting up furniture in the demised premises
beginning on the latter of (i) the date specified in LANDLORD's notice to TENANT
regarding the date carpet will be installed and ready for placement of furniture
in the demised premises pursuant to 1.3(b) hereof; or (ii) the actual date the
carpet is installed and ready for placement of furniture in the demised
premises.
2. TERM OF LEASE:
2.1 ORIGINAL TERM: This Lease shall be for a period of Five (5)
years. The term of this Lease shall commence on the day LANDLORD delivers
possession of the demised premises to TENANT (herein the "COMMENCEMENT DATE")
and shall expire Five (5) years after the last day of the month in which the
Certificate of Possession was executed in accordance with the provisions of
paragraph number 2.4 hereof.
2.2 ACCEPTANCE OF LEASED PREMISES: By occupying the leased
premises, TENANT shall be deemed to have accepted the same as being in good and
sanitary order, condition and repair and to have acknowledged that the same
comply fully with LANDLORD's covenants and obligations hereunder except for
latent defects and punch-list items brought to LANDLORD's attention within sixty
(60) days after the Commencement Date.
2.3 EARLY OCCUPANCY: In the event that LANDLORD shall permit
TENANT to occupy the leased premises prior to the Commencement Date of the term,
such occupancy shall be at the Base Building Rental rate hereinafter provided
and such occupancy shall be subject to all other terms and provisions of this
Lease. Said early possession shall not advance the termination date hereinbelow
provided. If TENANT'S occupancy commences other than the first of the month,
TENANT shall occupy the leased premises under the terms and provisions of this
Lease and rent for the pro rata portion of said month shall be paid.
2.4 CERTIFICATE OF POSSESSION: The parties agree to execute a
certificate evidencing (i) the date that TENANT first took possession of the
leased premises; and (ii) the actual amount of Base Building Rent hereunder in
accordance with sections 3.1 and 25.2 hereof.
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3. RENTAL:
3.1 BASE BUILDING RENT: TENANT promises and agrees to pay to
LANDLORD as Base Building Rent for the leased premises the sum of Forty Thousand
Five Hundred Two and 00/100 Dollars ($40,502.00), based on $17.25 per gross
square foot, in advance on the first day of each and every month of the term
hereof.
3.2 RENT ADJUSTMENTS: The foregoing Base Building Rent shall be
adjusted at the beginning of each calendar year, beginning January 1, 2000. The
original Base Building Rent hereunder shall be increased proportionately with
any increase in the Consumer Price Index for "All Urban Consumers - All Items"
(1982-84 = $100.00) (The "BLS Index") issued by the Bureau of Labor Statistics
of the United States Department of Labor; provided, any increase due to such
Index for any calendar year shall not exceed 5%. The monthly Base Building Rent,
commencing with the first full calendar year of the term of this Lease, shall be
adjusted annually, as of each January 1, by multiplying the original Base
Building Rent by a fraction, the numerator of which shall be the BLS Index for
the month of January of the year for which the Base Building Rent is being
adjusted and the denominator of which shall be the BLS Index for the first month
of the term of this Lease. Said product shall be the adjusted Base Building Rent
thereafter until the following January when such rent shall be further adjusted
in accordance with the foregoing provisions. In the event the Bureau of Labor
Statistics shall no longer publish the BLS Index so the BLS Index figure for any
January shall not be available, the parties shall mutually agree on a substitute
of the nearest equitable and practical index available for achieving the same
purpose. In no event shall the monthly Base Building Rent for any calendar year
following the Commencement Date be less than the monthly Base Building Rent for
the immediately preceding calendar year. In the event the necessary index
figures are not available on January 1 of each calendar year of the term of this
Lease, then TENANT shall continue to pay rent at the rate for the preceding year
until such time as such figures are available and LANDLORD notifies TENANT of
the new rental rate. On the first day of the month following such notification,
TENANT shall commence to pay the Base Building Rent at its newly adjusted rate
and shall further pay all deficiencies in rent for any of the prior months
during which TENANT paid rent at the preceding year's rate.
3.3 ADDITIONAL TAXES: As additional rental (herein the
"ADDITIONAL TAXES"), TENANT agrees to pay to Landlord, in equal monthly
installments, during the term of this Lease the amount, if any, by which the
"Actual Tax Expense" (hereafter defined) exceeds the "Base Tax Expense"
(hereafter defined). For the purposes of this Lease, the phrase "ACTUAL TAX
EXPENSE" means one-half of the actual amount of "Taxes" (hereafter defined)
which become due and payable during the applicable calendar year of the term
hereof. For the purposes of this Lease, the phrase "BASE TAX EXPENSE" means
one-half of the actual amount of Taxes for the calendar year 1999, grossed up to
reflect 95% occupancy and full assessment. For the purposes
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of this Lease, the term "TAXES" means the aggregate of all taxes, rates,
charges, levies, and assessments (including assessments for governmental
improvements) payable by LANDLORD and imposed by any taxing authority upon or in
respect of the Building, Land and other improvement located on the Land,
including, without limitation, any tax imposed on the capital invested in the
Land or improvements on the Land, together with personal property taxes, and all
other governmental charges, impositions, assessments and fees, general and
special, ordinary and extraordinary, foreseen and unforeseen, of any kind and
nature whatsoever, which may at any time during the term be levied, assessed,
imposed upon or become a lien upon the Land or the rents, receipts and income
received by the LANDLORD, but not including federal, state and local income
taxes of the LANDLORD, or penalties assessed against LANDLORD for late payment
of taxes to the extent not caused by TENANT. In determining Taxes, any corporate
income, profits, excess profits, and business tax imposed upon the income of
LANDLORD and any other impost of a personal nature charged or levied against the
LANDLORD shall be excluded, except to the extent that it is levied in lieu of
taxes, rates, charges, or assessments in respect of the Building, Land or any
improvements thereon. If during the Lease term, any special assessments are
assessed against the Building or any portion of it which LANDLORD may elect to
currently pay in full, or elect to pay such assessment over a term of years with
interest, LANDLORD shall elect to cause such assessment to be paid over the
longest term possible, with interest, and only such installments of interest and
principal which become actually due and payable during any calendar year shall
be considered to be a portion of the taxes payable during such calendar year.
3.4 ESTIMATES OF ADDITIONAL TAX EXPENSES: LANDLORD shall furnish
to TENANT, beginning January 1, 2000, LANDLORD's written estimate of the
Additional Taxes for said calendar year and at the beginning of each calendar
year thereafter throughout the term of this Lease LANDLORD shall furnish TENANT
LANDLORD'S written estimate of the Additional Taxes for said calendar year and
TENANT shall pay to LANDLORD on the first day of each month of the term hereof
as additional rental 1/12 of the Additional Taxes.
3.5 RECONCILIATIONS: LANDLORD shall also furnish TENANT at the
end of each calendar year throughout the term of this Lease a copy of the actual
invoice for Taxes for the applicable calendar year. In the event TENANT has
overpaid TENANT'S proportionate share of the Additional Taxes, LANDLORD shall
credit such overpayment against future Additional Taxes required to be paid by
TENANT. In the event TENANT has underpaid TENANT'S proportionate share of the
Additional Taxes, TENANT shall pay LANDLORD such underpaid amount within thirty
(30) days following receipt by TENANT of a written notice of the amount of such
underpayment.
3.6 ADJUSTMENTS FOR PARTIAL YEARS: During the last calendar year
of the term of this Lease, TENANT shall be obligated to pay a pro rata portion
of the Additional Taxes due and
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payable for such calendar year based upon the part of such years during which
this Lease is in effect.
3.7 SURVIVAL OF OBLIGATION: TENANT's obligation to pay the
Additional Taxes as provided herein shall survive the termination of this Lease,
as shall LANDLORD's obligation to refund any excess Additional Tax payments.
3.8 COMMON AREAS: (a) TENANT and TENANT's employees, agents,
officers, contractors, and invitees shall have the right to use, in common with
the other tenants of the Building, the "Common Areas" (hereafter defined). The
term "Common Areas" shall be deemed to mean such areas, improvements, space, and
equipment in or at the Building and surrounding grounds reasonably designated by
the LANDLORD, from time to time, to the general usage of all tenants of the
Building and their employees, customers and invitees, including without
limitation, all designated parking areas, access roads, driveways, entrances and
exits, retaining walls, landscaped areas, roads and pathways, accommodation
areas such as sidewalks, grass plots, ornamental planting, entry monuments and
signs, directional signals and the like. Notwithstanding any other provision
hereof to the contrary, LANDLORD reserves the right, from time to time, to
change those areas which will constitute Common Areas and specifically reserves
the right to remove and exclude areas from constituting a part of the Common
Area. Common Areas and Land shall be referred to herein collectively as the
"Total Building Facilities." The number of parking spaces and the amount of
gross space associated with the leased premises are fixed in this Lease, and
LANDLORD cannot modify these in any way without written permission from TENANT
if said changes would result in a decrease in existing accommodations to TENANT
as provided herein.
3.9 PAYMENT ADDRESS: All payments for Base Building Rent and all
other sums (whether designated additional rent or otherwise) shall be paid to
LANDLORD at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or to such other
person or at such other place as LANDLORD may from time to time designate in
writing.
3.10 INTEREST CHARGES: TENANT does hereby covenant and agree
promptly to pay the Base Building Rent, Additional Taxes and other adjustments
and charges herein reserved as and when the same shall become due and payable,
without demand therefor, and without any set-off or deduction whatsoever, and to
keep and perform, and to permit no violation of, each and every one of the
covenants, agreements, terms, provisions and conditions herein contained on the
part and behalf of the TENANT to be kept and performed. Rental and other monies
due LANDLORD under this Lease not paid within ten (10) days after written notice
of Default shall bear interest from the date due at the highest rate allowed by
law but not to exceed one and one-half (1 1/2) percent per month.
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4. ORDINANCES AND REGULATIONS:
4.1 LEASED PREMISES: TENANT will maintain the leased premises in
a clean and healthful condition. TENANT hereby agrees to comply with all laws,
ordinances, orders, rules, and regulations (state, federal, municipal and other
agencies or bodies having any jurisdiction thereof) with reference to use,
condition or occupancy of the leased premises. TENANT further agrees to comply
with all reasonable and non-discriminatory rules and regulations which may be
hereafter established and consistently enforced from time to time by LANDLORD,
initially, those set forth on Exhibit 'D' hereto and made a part hereof by this
reference. LANDLORD reserves the right from time to time to make additional
modifications to said rules and regulations which shall be binding upon TENANT
upon delivery of a copy thereof to TENANT. LANDLORD shall not be responsible to
TENANT for the nonperformance by any other tenants or occupants of any of said
rules and regulations. TENANT will not knowingly violate or permit the violation
of any condition imposed by the standard fire insurance policy issued for office
buildings in the Wichita, Kansas area, and not knowingly do anything or keep
anything in the leased premises which would increase the fire or other casualty
insurance rate on the Building or the property therein, or which would result in
insurance companies of good standing refusing to insure the Building or any such
property in amounts and against risks reasonably determined by LANDLORD.
4.2 TOTAL BUILDING FACILITIES: LANDLORD will maintain the Total
Building Facilities in a clean and healthful condition. LANDLORD hereby agrees
to comply with all laws, ordinances, orders, rules and regulations (state,
federal, municipal and other agencies or bodies having any jurisdiction thereof)
with reference to use, condition or occupancy of the Total Building Facilities.
LANDLORD agrees to maintain the Total Building Facilities consistent with other
first class office buildings in Wichita, Kansas.
5. INSPECTION:
5.1 RIGHT TO INSPECT, REPAIR, ALTER AND ADD: TENANT will permit
LANDLORD and its officers, agents and representatives to enter into and upon any
and all parts of the leased premises during business hours to inspect the same,
clean or make repairs or alterations or additions after providing 24 hours oral
notice with the exception of emergencies. Significant alterations or repairs
will be made after business hours.
5.2 RIGHT TO SHOW: Upon 24 hours oral notice, TENANT will permit
LANDLORD, during business hours, to show the leased premises to any owner, or
mortgagee or any prospective purchaser, or any holder of any ownership or
security interest in the Building or the Land, or of LANDLORD'S interest therein
(and to their respective representatives) and similarly to show the leased
premises to any person contemplating the leasing of all or a portion
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of the same during the last three hundred sixty-five (365) days of the term or
any extended term hereof, provided TENANT has not exercised any option to extend
the Lease pursuant to Section 18.2 hereof.
6. ASSIGNMENT AND SUBLEASE:
6.1 NO ASSIGNMENT, SUBLEASE OR ENCUMBRANCE: TENANT will not
assign, mortgage, pledge or encumber this Lease, or any part thereof, directly
or indirectly, or allow the same to be assigned by operation of law or otherwise
or sublet the leased premises or any part thereof, or use or permit the same to
be used for any other purpose than stated in paragraph 10 hereinafter, without
the prior, written consent of LANDLORD in each instance, which consent shall not
be unreasonably withheld. Such permitted assignment or sublease shall not
relieve the TENANT from its obligations hereunder for the payment of rents or
the performance of conditions, covenants and provisions of this Lease.
Notwithstanding the above, TENANT shall have the absolute right from time to
time, to sublet, assign or otherwise transfer all or any portion of its interest
in this Lease to a Licensee, Franchisee, or operating subsidiary or affiliate of
TENANT, without LANDLORD's approval, written or otherwise, so long as TENANT
remains fully liable under this Lease. A transfer of ownership of TENANT shall
not constitute an assignment of this Lease.
6.2 LANDLORD'S TRANSFER: LANDLORD shall have the right to
transfer and assign, in whole or in part, any of its rights under this Lease and
in the Building and property referred to herein and, to the extent that such
assignee assumes LANDLORD'S obligations hereunder, LANDLORD shall by virtue of
such assignment be released from such obligations.
6.3 RIGHT TO COLLECT FROM ASSIGNEE: If the leased premises are
sublet or occupied by anybody other than TENANT and TENANT is in default
hereunder or if this Lease is assigned by TENANT then LANDLORD may collect rent
from the assignee under TENANT or occupant and apply the net amount collected to
the rent herein reserved; but no such collection shall be deemed a waiver of the
covenant herein against assignment or subletting or the acceptance of such
assignee under TENANT or occupant as "TENANT", or a release of TENANT from
further performance of the covenants herein contained.
7. DESTRUCTION OF PREMISES:
7.1 TOTAL DESTRUCTION: In the event that the Building should be
totally destroyed by fire, tornado or other casualty, or if the Building should
be so damaged that rebuilding or repairs cannot be completed within one hundred
eighty (180) days after the date of such damage, either LANDLORD or TENANT shall
have the option of terminating this Lease by giving
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written notice to the other at any time prior to the sixtieth (60th) day after
the date of such damage.
7.2 PARTIAL DESTRUCTION: If the leased premises are partially
damaged by fire, tornado, or other casualties, or totally destroyed thereby and
neither party elects to terminate this Lease within the provisions of paragraph
7.1 above, then the LANDLORD agrees to restore the leased premises to a kind and
quality substantially similar to that immediately prior to such destruction or
damage. LANDLORD further agrees to make reasonable efforts to find temporary
space for TENANT. Said restoration shall be commenced within forty-five (45)
days after the date of such damage and diligently prosecuted to completion by
LANDLORD. In case LANDLORD has not completed such repairs within one hundred
eighty (180) days after the date of the damage, then all rent accruing after
said one hundred eighty (180) days shall be equitably and proportionately
suspended and adjusted according to the nature and extent of the destruction or
damage, pending completion of rebuilding, restoration or repair, except that in
the event the destruction or damage is so extensive as to make it infeasible for
the TENANT to conduct all of its business on the leased premises, the rent shall
be proportionately reduced or abated (based on the extent to which the leased
premises is unusable) from the date of said damage until the premises are
restored by the LANDLORD or until the TENANT resumes the conduct of all of his
business on the leased premises, whichever shall first occur. In the event
LANDLORD cannot restore the premises within two hundred seventy (270) days from
the date of damage, TENANT may, at its option, terminate this Lease. The
LANDLORD shall not be liable for any inconvenience or interruption of business
of the TENANT occasioned by fire, tornado or other casualty. Notwithstanding the
foregoing to the contrary, LANDLORD shall not be obligated to make any repairs
which cost in excess of the amount of insurance proceeds received by LANDLORD in
connection with such damage.
8. CONDEMNATION:
8.1 TOTAL TAKING: If during the term of this lease, or any
renewal thereof, the whole of the leased premises, or such portion thereof as
will make the leased premises unusable for the purpose leased, be condemned by
public authority for public use, then, in either event, the term hereby granted
shall cease and come to an end as of the date of the vesting of title in such
public authority, or when possession is given to such public authority,
whichever event last occurs. Upon such occurrence, the rent shall be apportioned
as of such date and any prepaid rent shall be returned to the TENANT. TENANT
shall not be entitled to any part of the award or any payment in lieu thereof,
nor shall TENANT be entitled to any award for the loss of its leasehold estate.
The entire award for the taking of the leased premises, the Building and the
land upon which it is located shall belong solely and exclusively to LANDLORD.
TENANT may file a claim for loss of TENANT's trade fixtures and for TENANT's
moving expenses and loss of business.
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8.2 PARTIAL TAKING: If a portion of the leased premises or
Building is taken or condemned by public authority for public use so as not to
make the remaining portion of the leased premises unusable for the purposes
leased, this Lease shall continue in full force and effect unless LANDLORD
determines that the continued operation of the Building, after such taking, is
not practical, in which event LANDLORD may terminate this Lease by giving TENANT
written notice of termination to be effective upon the day the condemning
authority takes possession of the condemned portion. In the event of such a
termination, all rent and other charges shall be adjusted, prorated and paid to
the date of termination. In the event of such a partial taking and this Lease is
not terminated in accordance with the foregoing, then, effective upon the day
the condemning authority takes possession of the condemned portion, the rent
shall be equitably and fairly reduced and abated for the remainder of the term
in proportion to the amount of the leased premises taken and the LANDLORD shall
be entitled to the entire award for such partial taking.
9. INDEMNIFICATION:
9.1 INDEMNIFICATION OF LANDLORD: TENANT will defend, by counsel
reasonably acceptable to LANDLORD, indemnify and save harmless LANDLORD of and
from any and all fines, suits, claims, demands, expenses, costs and actions of
any kind arising out of, directly or indirectly, TENANT'S or TENANT's agents,
employees, contractors, guests or invitees use, occupancy, or control of the
leased premises or Common Areas, or any breach, violation or non-performance of
any covenant hereof on the part of TENANT; and except for LANDLORD'S own
negligence, LANDLORD shall not be liable to TENANT or TENANT'S agents,
employees, guests or invitees for any damage to persons or property due to
condition, design or defect in or on the leased premises, Building or its
mechanical systems which may exist or occur.
9.2 INDEMNIFICATION OF TENANT: LANDLORD will defend, by counsel
reasonably acceptable to TENANT, indemnify and save harmless TENANT of and from
any and all fines, suits, claims, demands, expenses, costs and actions of any
kind arising out of, directly or indirectly, LANDLORD's or LANDLORD's agents,
employees, contractors, guests or invitees use, occupancy, or control of the
Building or the Common Areas, or any breach, violation or non-performance of any
covenant hereof on the part of LANDLORD.
9.3 LANDLORD'S LIABILITY: LANDLORD and its agents shall not be
liable to TENANT or to TENANT'S officers, employees, agents, licensees or
invitees for any loss or damage to any part of the Building or the Land or
related improvements or appurtenances thereto becoming out of repair, any defect
in or failure of pipes or wiring, the backing up of any drains or the bursting
or leaking of any pipes, faucets and plumbing fixtures, any gas, water, steam,
electricity, oil or rain leaking, escaping or flowing into the leased premises
from any part of the
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Building, or from the pipes, appliances or plumbing works therein or from the
roof, street or subsurface or from any other place resulting from dampness or
any other cause whatsoever, theft, fire, explosion, Act of God, riot, war,
insurrection, court order or order of governmental authority or any other matter
beyond the control of the LANDLORD, unless caused by or due to the negligence of
LANDLORD, its agents, servants or employees. LANDLORD or its agents shall not be
liable for interference with the light or other incorporeal hereditaments, loss
of business by TENANT nor shall LANDLORD be liable for any latent defect in the
leased premises or in the Building. TENANT shall give prompt written notice to
LANDLORD in case of fire or accidents in the leased premises or in the Building
or of defects therein or in the fixtures or equipment located therein.
10. USE OF PREMISES:
TENANT shall use and occupy the leased premises and the Building
as and for the following purpose: General office use including, but not limited
to, training, sales, storage, and customer services and for no other purpose.
11. IMPROVEMENTS, REPAIRS, ALTERATIONS AND TAXES:
11.1 PROHIBITIONS: TENANT shall not, without LANDLORD'S prior
written consent, which shall not be unreasonably withheld:
a. make any alterations, additions or improvements in the
leased premises or the Building other than with respect to
TENANT's furnishings, decoration of the leased premises
and communications and computer cabling inside the leased
premises;
b. knowingly do or suffer anything to be done on the leased
premises or the Building which will render LANDLORD'S
insurance void or the insurance risk more hazardous;
c. permit the accumulation of waste or refuse matter other
than in the normal course of business;
d. abandon the leased premises for more than twelve months
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11.2 TENANT'S MAINTENANCE OBLIGATIONS: TENANT shall take good
care of the leased premises and the fixtures and appurtenances therein. TENANT
shall maintain the leased premises, at all times during the term of this Lease,
in good condition and repair, ordinary wear and tear excepted. All damage or
injury to the leased premises and to its fixtures, appurtenances and equipment
or to the Building of which the same form a part or to its fixtures,
appurtenances and equipment caused by TENANT moving property in or out of the
Building or by installation or renewal of furniture, fixtures or other property
or resulting from any cause of any kind or nature whatsoever due to
carelessness, omission, neglect, improper conduct or other cause of TENANT, its
servants, employees, agents, visitors, or licensees shall be repaired, restored
or replaced promptly by TENANT at its sole cost and expense to the reasonable
satisfaction of LANDLORD. All the aforesaid repairs, restorations or
replacements shall be in quality and class equal to the original work or
installations. If TENANT fails to make such repairs, restorations or
replacements, the same may be made by LANDLORD at the expense of TENANT and
collectible as additional rent or otherwise and shall be paid by TENANT within
ten (10) days after presentment of a ▇▇▇▇ or statement therefor. Alterations,
additions, improvements and immovable fixtures shall become the property of
LANDLORD upon installation and shall not be removed without LANDLORD'S prior
written consent.
11.3 MECHANIC LIENS: TENANT shall not have the power or right to
create in any way liens for labor or material which would be a lien upon any
interest of LANDLORD or in and to the leased premises and shall protect
LANDLORD'S interest against any liens or claims for improvements made by TENANT.
In the event any such liens are filed, TENANT agrees, at its expense, to cause
the same to be released or secured by a bond within ten (10) days after the same
are filed.
11.4 BONDING AGAINST LIENS: If TENANT plans to make improvements,
additions or alterations to the leased premises, and said alterations or
additions are estimated to cost in excess of $20,000.00, LANDLORD may require,
at LANDLORD'S sole option, that TENANT provide LANDLORD, at TENANT'S sole cost
and expense, a payment and performance bond in an amount equal to one and
one-half (1 1/2) times the estimated cost of said improvements, additions or
alterations, to insure LANDLORD against any liability for mechanics' and
materialmen's liens and to insure completion of the work.
11.5 TAXES ON TENANT'S PROPERTY AND IMPROVEMENTS: TENANT shall
pay or cause to be paid, before delinquent, any and all taxes levied or assessed
during the term hereof or any extension or renewal thereof, upon any and all of
TENANT'S leasehold improvements, equipment, furniture, fixtures, and personal
property located in the leased premises. If the same shall be assessed and taxed
with the Building, TENANT shall pay to LANDLORD its prorata share of such taxes
within thirty (30) days after delivery to TENANT of a written statement by
LANDLORD setting forth the amount of such taxes applicable to TENANT'S property.
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12. INSURANCE:
12.1 TENANT'S INSURANCE: With respect to the leased premises and
Common Areas, TENANT shall, at TENANT'S sole cost and expense, obtain and keep
in force at all times during the term of this Lease, comprehensive general
liability insurance, including property damage, in the amount of at least One
Million Dollars ($1,000,000.00) combined single limit, insuring LANDLORD and
TENANT against any liability arising out of the ownership, use, occupancy or
maintenance of the leased premises and all areas appurtenant thereto. The limit
of said insurance shall not, however, limit the liability of the TENANT
hereunder. TENANT may carry said insurance under a blanket policy providing,
however, said insurance by TENANT shall have a LANDLORD'S protective liability
endorsement attached thereto. Insurance required hereunder shall be in companies
licensed in the State of Kansas and shall have a rating of A or better in
"Best's Insurance Guide" and a financial rating of Class XII or better. Mutual
insurance companies may be used only if they are nonassessable. Such policy
shall name LANDLORD as an additional insured and shall be primary and
noncontributing with any insurance carried by LANDLORD. No policy shall be
cancelable or subject to reduction of coverage except after thirty (30) days
written notice to LANDLORD. LANDLORD shall receive reasonable evidence of
insurance upon request.
12.2 LANDLORD'S INSURANCE: LANDLORD shall maintain during the
Lease term and any option term, fire and broad form extended coverage insurance
on the Building and Common Areas for full replacement value. Each policy of
insurance maintained by LANDLORD shall be issued by a responsible and solvent
insurance carrier licensed to do business in the State of Kansas. Each such
policy of insurance shall provide protection against losses so insured for the
benefit of the LANDLORD, TENANT and any mortgagee as their interest may appear.
LANDLORD shall furnish TENANT proof thereof, and each such policy of insurance
shall expressly provide for thirty (30) days notice to the TENANT prior to any
cancellation or modification of coverage.
12.3 WAIVER OF SUBROGATION: LANDLORD and TENANT each hereby waive
all claims against the other for any loss of or damage to any of its property if
such property is insured against such loss or damage under any valid and
collectible insurance policy or policies, but only to the extent of any recovery
collected by it under such insurance, subject however, to the limitation that
this waiver shall apply only when permitted by the applicable policy or policies
of insurance. LANDLORD and TENANT each hereby further agree to cause any and all
policies containing extended coverage and/or material damage insurance now or
hereafter carried by it to be endorsed with a subrogation clause providing in
substance that the insurer has waived any or all rights of recovery against the
other party hereto for loss of or damage to the insured property first occurring
after the date of such waiver; provided, however, if there is a charge or
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extra premium for such an endorsement, the party obligated to obtain the same
shall be excused therefrom unless the other party pays such charge or extra
premium.
13. DEFAULT:
13.1 DEFAULT - CURE PERIOD: If (i) TENANT defaults in payment of
Base Building Rent or Additional Taxes or (ii) defaults in the performance of
any of the covenants or conditions hereof, LANDLORD, in such event(s), may give
to TENANT written notice of such default and if TENANT fails to cure any Base
Building Rent or Additional Taxes default within ten (10) days after the giving
of such notice or fails to cure any other default within thirty (30) days after
the giving of such notice, or, if such default other than Base Building Rent or
Additional Taxes, cannot be reasonably cured within 30 days, to immediately
begin to cure and diligently pursue said cure to completion, LANDLORD may, at
its election, terminate this Lease with TENANT, and on the date specified in
said notice the term of this Lease shall terminate and TENANT shall then quit
and surrender the leased premises to LANDLORD, but TENANT shall remain liable as
hereinafter provided. In the event of a default which is not cured in the
applicable cure period, LANDLORD may, with or without terminating this Lease, at
any time thereafter resume possession of the Building by any lawful means and
remove TENANT or other occupants and their effects.
13.2 RELETTING: In any case where LANDLORD has recovered
possession of the leased premises by reason of TENANT'S default, LANDLORD may,
at LANDLORD'S option, occupy the leased premises or cause the leased premises to
be reasonably redecorated, altered, divided, consolidated with other adjoining
premises, or otherwise changed or prepared for reletting, and may relet the
leased premises or any part thereof as agent of TENANT or otherwise for a term
or terms to expire prior to, at the same time as, or subsequent to the original
expiration date of this Lease, at LANDLORD'S option, and receive the rent
therefor, applying the same first to the payment of such expenses as LANDLORD
may have incurred in connection with the recovery of possession, redecoration,
altering, dividing, consolidating with other adjoining premises, or otherwise
changing or preparing for reletting, and the reletting, including reasonable
brokerage fees and attorneys' fees (to the extent allowed by law) and then to
the payment of damages in amounts equal to the rent hereunder and to the cost
and expense of performance of the other covenants of TENANT as herein provided;
and TENANT agrees, whether or not LANDLORD has relet, to pay to LANDLORD damages
equal to the rent and other sums herein agreed to be paid by TENANT during the
remainder of the original term of this Lease, less the net proceeds of the
reletting, if any, as ascertained from time to time and the same shall be
payable by TENANT on the several rent days above specified. LANDLORD shall have
the right, in reletting the leased premises, to grant reasonable rent
concessions and TENANT shall not be entitled to any credit by reason thereof. No
such reletting shall constitute a surrender and
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acceptance or be deemed evidence thereof or in any way relieve TENANT of its
obligations under this Lease except to the extent of the net proceeds received
from such reletting.
13.3 LANDLORD OCCUPANCY: In any case where LANDLORD has recovered
possession due to TENANT's Default, if LANDLORD elects to occupy and use the
leased premises or any part thereof during any part of the balance of the term
as originally fixed or since extended, there shall be allowed against TENANT'S
obligations for rent and other damages as herein defined, during the period of
LANDLORD'S occupancy, the reasonable value of such occupancy, not to exceed in
any event the rent herein reserved and such occupancy shall not be construed as
a release of TENANT'S liability hereunder.
13.4 CONSTRUCTIVE EVICTION: TENANT shall not be entitled to claim
a constructive eviction from the leased premises unless TENANT shall have first
notified LANDLORD in writing of the condition or conditions giving rise thereto
and unless LANDLORD shall have failed to remedy such conditions as soon as
reasonably practical after receipt of such notice. Notwithstanding the foregoing
to the contrary, in the event the conditions relied on by TENANT do not
constitute a constructive eviction, then no such eviction shall be deemed to
have occurred regardless of the fact that LANDLORD may not have remedy TENANT's
complaints.
13.5 NO WAIVER OF ACCORD AND SATISFACTION: No payment by the
TENANT or receipt by the LANDLORD of a lesser amount than the rent stipulated in
this Lease shall be deemed other than a payment on account of the earliest rent
due, nor shall any endorsement or statement on any check or on any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and the LANDLORD may accept such check or payment without prejudice to its right
to recover the balance of the rent or to pursue any other remedy provided for in
this Lease.
14. LEASE AND MORTGAGES:
14.1 SUBORDINATION: This Lease shall be and is subject and
subordinate to all underlying restrictions, declarations, leases and mortgages
which may now or hereafter affect the real property of which the building forms
a part, and also to all renewals, modifications, consolidations and replacements
of said underlying restrictions, declarations, leases and said mortgages.
Although no instrument or act on the part of TENANT will be necessary to effect
such subordination, TENANT will, nevertheless, execute and deliver such further
instruments confirming such subordination of this Lease as may be desired by the
holders of said mortgages or by any of the lessors under such underlying leases.
If any underlying lease to which this Lease is subject terminates, TENANT shall,
on timely request, attorn to the owner of the reversion. In the event TENANT
fails or refuses to deliver any instrument confirming such
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subordination, within thirty (30) days after LANDLORD's request therefor, such
failure or refusal shall constitute a default under this Lease, for which there
shall be no cure period, entitling LANDLORD to enforce all of its rights and
remedies set forth herein or provided by law.
14.2 ATTORNMENT: Without limitation of any of the provisions of
this Lease, in the event that, by reason of any default on the part of LANDLORD,
any mortgagee or lessor or their respective assigns shall succeed to the
interest of LANDLORD hereunder or of any successor-LANDLORD, then at the option
of such mortgagee or lessor, this Lease shall nevertheless continue in full
force and effect and TENANT shall and does hereby agree to attorn to such
mortgagee or its assigns and to recognize such mortgagee or lessor or its
assigns as its LANDLORD. In the event TENANT fails or refuses to deliver any
instrument confirming such attornment within thirty (30) days after LANDLORD's
request therefore, such failure or refusal shall constitute a default under this
lease, for which there shall be no cure period, entitling LANDLORD to enforce
all of its rights and remedies set forth herein or provided by law.
14.3 NON-DISTURBANCE: If the demised premises or any portion
thereof is subject to a mortgage at the time this Lease commences or at any time
during the term of this Lease or any extension hereof, LANDLORD agrees to obtain
from the holder of the mortgage an agreement, in recordable form, evidencing the
mortgagee's recognition of this Lease. Said document will include the
mortgagee's agreement not to disturb TENANT during the term of this Lease or any
extension thereof so long as TENANT is not in default hereunder. The term
"mortgage" as used herein means any mortgage, assignment, deed of trust or other
transfer of the demised premises in whole or in part made as security for any
indebtedness of LANDLORD; and the term "mortgagee" as used herein means any
person to whom or for whose benefit any such mortgage of the demised premises
has been made. LANDLORD represents and warrants that there are no mortgages,
deeds of trust or superior leases presently affecting the Building or the Land
except as may be specified in this Lease.
15. SECURITY DEPOSIT:
15.1 DEPOSIT: The TENANT, concurrently with the execution of this
Lease, has deposited with the LANDLORD the sum of Ten Thousand and 00/100
Dollars ($10,000.00), the receipt whereof is hereby acknowledged, which sum
shall be retained by the LANDLORD. The deposit shall be held by LANDLORD as
security for the performance by TENANT of TENANT'S covenants and obligations
under this Lease. It being expressly understood that such deposit shall not be
considered an advance payment of rental or measure of LANDLORD'S damages in case
of default by TENANT. LANDLORD shall be under no obligation to pay or account to
TENANT for any interest on earnings accruing to LANDLORD from the use of any
such security deposit.
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15.2 APPLICATION OF DEPOSIT: Upon the occurrence of any event of
default by TENANT, and the expiration of applicable cure periods therefore,
LANDLORD may, from time to time, without prejudice to any other remedy, use such
deposit to the extent necessary to make good any arrearages of rent and any
other damage, injury, expense or liability caused to LANDLORD by such event of
default. Following any such application of the security deposit, TENANT shall
pay to LANDLORD on demand the amount so applied in order to restore the security
deposit to its original amount. TENANT'S failure to do so shall be a material
breach of this Lease. If TENANT shall fully and faithfully perform every
provision of this Lease, the security deposit or any balance thereof shall be
returned to TENANT (or, at LANDLORD'S option, to the last assignee of TENANT'S
interest hereunder) at the termination of this Lease term.
16. SERVICES AND UTILITIES:
16.1 FAILURE OF SERVICES: The failure to any extent to furnish or
any stoppage of the water service or any other services to be furnished by
LANDLORD, resulting from causes beyond the control of LANDLORD, shall not render
LANDLORD liable in any respect for damages to either person or property, nor be
construed as an eviction of TENANT or work an abatement of rent, nor relieve
TENANT from fulfillment of any covenant or agreement hereof. Should any
equipment or machinery break down, or for any cause cease to function properly,
LANDLORD shall use reasonable diligence to repair same promptly, but TENANT
shall have no claim for rebate of rent or damages on account of any
interruptions in service, beyond the control of LANDLORD occasioned thereby or
resulting therefrom. In the event the interruption of services is within
LANDLORD's control, rent shall be equitably and proportionately adjusted after
the interruption has persisted for three (3) consecutive days if such disruption
materially interferes with TENANT's ability to conduct its business.
16.2 STANDARD SERVICES: LANDLORD shall, at its own cost and
expense, furnish the following services and utilities to TENANT throughout the
term of this Lease during the normal business hours of 7:00 a.m. to 6:00 p.m.
Monday through Friday, and 8:00 a.m. to 1:00 p.m. Saturdays. Such services
exclude holidays designated as New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day. In the event a holiday falls on a
weekend, services and utilities will be provided as normal on the Friday before
and the Monday following:
1. Heating and air conditioning for the comfortable use and occupancy of
the leased premises.
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2. Electricity for lighting and ordinary business purposes, including but
not limited to typewriters, adding machines, photocopy machines,
computers and any other office equipment.
3. Hot and cold running water for use in lavatories, drinking fountains and
all other plumbing fixtures.
4. Janitor service, five days each week
5. Snow removal and rubbish removal
6. Pest Control
7. Replacement of lighting tubes, lamp ballasts and bulbs
8. Parking in accordance with Section 17 of this Lease.
9. Common Area maintenance including the grounds
16.3 BUILDING SECURITY / AFTER HOURS ACCESS: Throughout the term
of this Lease, the Building will be unlocked during normal business hours of
7:00 a.m. to 6:00 p.m. Monday through Friday. TENANT will have access to the
Building and the demised premises outside of these times by use of Building keys
and/or combination locks supplied by LANDLORD in accordance with Exhibit D
hereto.
17. PARKING:
TENANT shall have the right to use in common with LANDLORD, other
tenants or occupants of the Building and their employees, agents, and business
invitees the parking facilities of the Building, if any, subject to the rules
and regulations, and any other charges of LANDLORD for such parking facilities
which may be established or altered by LANDLORD at any time or from time to time
during the term hereof. LANDLORD shall provide one hundred forty (140) parking
spaces for the demised premises plus four (4) parking spaces for every 1,000
square feet of usable area on the first floor of the Building (26,924 square
feet) which is equal to 108 parking spaces. The total number of parking spaces
for the Building shall be equal to 248 parking spaces.
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18. END OF TERM:
18.1 CONDITION OF SURRENDERED PREMISES: TENANT will, at the end
of the term of this Lease, quit and surrender to LANDLORD the leased premises
broom clean and in good order and condition except for ordinary wear and tear.
Any personal property which shall remain in the leased premises after the
expiration or termination of this Lease shall be deemed to have been abandoned,
and either may be retained by LANDLORD as its property or may be disposed of in
such manner as LANDLORD may see fit, any removal expense to be paid by the
TENANT. If the last day of the term of this Lease falls on a Sunday or a legal
holiday, this Lease shall expire on the business day immediately preceding.
18.2 NOTICE OF OPTION: (a) Provided it is not in Default
hereunder, TENANT shall have four options to extend the term of this Lease, each
for a term of sixty (60) months, upon the same terms and conditions as those
provided herein, except that no improvement allowance shall be paid for any
extended term. Base Building Rent for said option terms shall be equal to the
adjusted Base Building Rent in effect at the end of the immediately preceding
term pursuant to Sections 3.2 and 3.3 hereof.
(b) TENANT may exercise each option term by giving written notice
to LANDLORD of TENANT's election to renew, which notice must be given three
hundred sixty-five (365) days prior to expiration of the then current term.
(c) If TENANT exercises its option to extend the term of this
Lease by written notice, the Lease shall be automatically extended for the
additional period covered by the option so exercised without execution of any
further instrument.
18.3 HOLDOVER: In the event of a holdover by TENANT without
LANDLORD'S permission, TENANT shall be liable to LANDLORD for rent during the
unauthorized holdover period (determined on a daily basis) in an amount equal to
one hundred fifty (150%) percent of the Base Building Rent and Additional Taxes
in effect at the termination of the Lease. Such unauthorized holdover shall not
be construed to create any periodic tenancy rights in favor of TENANT.
19. GENERAL:
19.1 GENDER: Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in singular number shall be
held to include the plural, unless the context otherwise requires.
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19.2 BINDING EFFECT: The terms, provisions, covenants and
conditions contained in this Lease shall apply to, inure to the benefit of, and
be binding upon the parties hereto and their respective permitted assigns,
successors in interest, heirs and legal representatives except as otherwise
herein expressly provided.
19.3 MODIFICATIONS: Any modifications of this Lease, or any
collateral agreement with respect to the relationship between the LANDLORD and
TENANT shall not be binding upon the LANDLORD unless the same be made in writing
and signed by an authorized representative of the LANDLORD. In the event that
the Lease herein or any of its provisions or covenants shall be modified or
stricken out, or new covenants added thereto, said changes shall not be
considered a termination of this instrument and the same shall continue in full
force and effect as so changed.
19.4 NOTICES: All notices, demands, consents and requests which
may or are required to be given by either party to the other hereunder shall be
in writing and shall be either: (i) addressed and personally delivered to an
officer of the company; or (ii) sent by certified mail, return receipt
requested, postage prepaid, addressed as set forth in this section or to such
other place as either party may from time to time designate in a written notice
to the other party. Notices, demands, consents and requests which shall be
served upon either party in the foregoing manner shall be deemed served or given
for all purposes hereunder at the time such notice, demand, consent or request
shall be personally delivered or, if mailed, the day such notice, demand,
consent or request was mailed in accordance with this section. The notice
addresses of the parties are as follows:
As to Landlord: Vantage Point Properties, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
As to Tenant: Candlewood Hotel Company, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
19.5 CUMULATIVE REMEDIES: It is agreed that each and every one of
the rights, remedies and benefits provided by this Lease shall be cumulative,
and shall not be exclusive of any other said rights, remedies and benefits, or
of any other rights, remedies and benefits allowed by law.
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19.6 SAVING CLAUSE: Invalidation of any of the provisions herein
contained by law, judgment or court order shall in nowise affect any of the
other provisions which shall remain in full force and effect.
19.7 WAIVERS: One or more waivers of any covenant, condition,
rule or regulation by the LANDLORD shall not be construed as a waiver of a
further breach of the same.
19.8 CAPTIONS: The captions are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Lease nor the intent of any provision thereof.
19.9 CHOICE OF LAW: This Lease shall be governed exclusively by
the terms hereof, and by the laws of the State of Kansas.
19.10 ESTOPPEL CERTIFICATE: Upon not less than fifteen (15) days
prior notice by LANDLORD, TENANT will promptly execute and deliver to LANDLORD a
statement in writing certifying that this Lease is in full force and effect, the
dates to which any rent has been paid in advance, if any, and whether or not to
the best knowledge of signer, LANDLORD is in default and, if so, specifying each
default, and contain such other information or statements as LANDLORD may
require. The failure to timely deliver any such estoppel certificate shall
constitute a default hereunder.
19.11 RIGHT TO CURE: Either party ("CURING PARTY") shall have the
right, but not the obligation, at any time, without notice, to cure any default
by the other ("DEFAULTING PARTY") under this Lease and whenever the Curing Party
so elects, all costs and expenses incurred by the Curing Party in curing such
default, together with interest on the amount of costs and expenses so incurred
at the highest lawful rate, shall be paid by the Defaulting Party to the Curing
Party on demand.
19.12 USE OF BUILDING NAME: [ Intentionally Deleted ]
19.13 COUNTER PARTS: This Lease may be executed in one or more
counterparts each of which shall constitute one Lease binding on all the parties
hereto.
19.14 TIME OF THE ESSENCE: With respect to the Lease, time is of
the essence.
20. AUTHORITY FOR EXECUTION:
20.1 CORPORATE AUTHORITY: Each individual executing this Lease on
behalf of said corporation or association represents and warrants that he is
duly authorized to execute and
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28
deliver this Lease on behalf of said entity, in accordance with a duly adopted
resolution of the board of directors of said entity or in accordance with the
by-laws of said entity, and that this Lease is binding upon said entity in
accordance with its terms.
21. QUIET ENJOYMENT:
LANDLORD covenants that if, and so long as, TENANT keeps and
performs each and every covenant, agreement, term, provision and condition
herein contained on the part and on behalf of TENANT to be kept and performed
TENANT shall quietly enjoy the leased premises without hindrance or molestation
by LANDLORD, subject to the covenants, agreements, terms, provisions and
conditions of this Lease and to the leases or mortgages to which this Lease may
be subject and subordinate, as herein set forth.
22. COMPLIANCE WITH DECLARATIONS:
TENANT hereby acknowledges that the Building and Land are subject
to the terms and provisions of the Declaration of Covenants, Conditions and
Restrictions of ▇▇▇▇▇▇ Estates dated June 5, 1996, as amended, recorded in the
Office of the Register of Deeds of Sedgwick County, Kansas, in Film 1614, Page
1383 (herein the "DECLARATIONS"). TENANT hereby agrees that: (i) it is leasing
the demised premises subject to the Declarations; and (ii) it will observe and
comply with the terms and provisions of the Declarations in so far as they
relate to the demised premises and/or TENANT's use of the demised premises or
any other facilities in the Building or on the Land made available to TENANT by
LANDLORD. A copy of the Declarations is attached hereto as Exhibit E.
23. BROKERAGE:
LANDLORD and TENANT represent and warrant to each other that
neither has dealt with any real estate brokers in the negotiation of this Lease.
24. SIGNS:
TENANT shall have the right, at TENANT'S sole cost and expense,
to place its name on a shared monument sign along 21st Street as indicated on
Exhibit A hereto. TENANT shall also have the exclusive right to place its name
on the front of the Building and the non-exclusive right to place its name on
the tenant directory in the Building lobby. The design of the signs and TENANT'S
name shall be similar in design to other monument signs and building signs at
▇▇▇▇▇▇ Estates Office Park. All signs shall have interior or halo illumination
and shall require LANDLORD'S written approval prior to installation.
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29
25. DEMISED PREMISES CONSTRUCTION:
25.1 SHELL CONDITION: LANDLORD agrees to deliver the demised
premises in "Shell Condition" to TENANT at LANDLORD's sole cost and expense. For
the purposes of this Lease, "SHELL CONDITION" includes all base Building
structural systems, concrete floors, exterior walls framed and insulated inside
the demised premises, exterior window openings and standard building glazing,
Building standard doors from the Building common areas into the demises premises
complete with frames and hardware, primary heating and air conditioning
equipment including air handlers, HVAC control system, main trunk ductwork
stubbed into the demised premises, electricity for power and lighting available
from a panel in the second floor equipment room, a main fire sprinkler line
stubbed into the premises, two wet stacks consisting of sanitary sewer, vent and
cold water (one on each end of the Building, one women's and one men's restroom
on the second floor Exhibit F and a fire alarm system for the Building pursuant
to local codes. All systems and equipment provided as part of the Building Shell
shall be adequately sized and designed to accommodate standard office use in
Wichita, Kansas. LANDLORD shall make its best efforts to provide limited
participation for TENANT in the selection of colors of interior common areas and
colors of exterior materials. The following are attached hereto to further
define the Building shell:
Exhibit F: Building Shell Floorplan--This plan shows the extent that walls,
windows, stairs, etc. will be constructed as part of the Building Shell. Any
finishes other than those shown on the plan shall be included as part of
Leasehold Improvements as defined in Section 25.3 hereof.
Exhibit G: Building Elevations--These plans show the exterior appearance of the
Building from the front, side and back views.
Exhibit H: Building Shell Specifications--These specifications identify the
types and level of finish to be completed as part of the Building Shell. Any
work performed that is not included in the Building Shell specifications shall
be included as part of Leasehold Improvements as defined in Section 25.3 hereof.
25.2 TENANT'S FINISH ALLOWANCE: LANDLORD shall be responsible for
all costs and expenses of completing TENANT's Leasehold Improvements as defined
in Section 25.3 hereof, up to a maximum of Four Hundred Fifty Thousand Eight
Hundred and 00/100 Dollars ($450,800.00), based on $16.00 per gross square foot
in the leased premises. TENANT may, at TENANT'S option, obtain bids for the
construction of the Leasehold Improvements from LANDLORD-approved contractors.
If said bids reflect a lower cost than LANDLORD'S bid, TENANT may select said
low bidding contractor to complete the Leasehold Improvements and LANDLORD shall
reimburse TENANT for the cost of constructing the Leasehold Improvements up to a
maximum of $16.00 per square foot. A list of LANDLORD-approved contractors is
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attached hereto as Exhibit I. Any costs in excess of said allowance shall be
added to the Base Building Rent hereunder at a rate of $.25 per square foot for
every $1.00 per square foot of excess Leasehold Improvement costs incurred, or,
at TENANT'S option, said excess may be paid in cash within thirty days of
receipt of an invoice together with appropriate backup documentation.
25.3 LEASEHOLD IMPROVEMENTS: Subject to LANDLORD's approval of
TENANT's floor plans, finish schedules and building specifications, which
approval shall not be unreasonably withheld, LANDLORD shall perform the work to
complete TENANT's "Leasehold Improvements," pursuant to Section 25.2 hereof. For
the purposes of this Lease, "LEASEHOLD IMPROVEMENTS" shall include all
demolition of existing improvements, all Building and monument signage, any
structural requirements above base Building construction within the demises
premises, all distribution, equipment and control wiring for heating and air
conditioning within the demised premises, all electrical distribution, fixtures
and equipment for power and lighting within the demised premises, all
distribution and equipment for fire sprinkler systems within the demised
premises, and all interior finishes including millwork, plumbing, plumbing
fixtures, walls, ceilings, interior doors, door frames and hardware, floor
coverings, wall coverings, paint, architectural and engineering fees for the
demised premises and, at TENANT's option, interior space planning fees.
26. REPRESENTATIONS AND WARRANTIES OF LANDLORD:
LANDLORD covenants, warrants and represents to TENANT as follows:
(i) During the term of this Lease, the premises and the Building,
except as to TENANT installed improvements, fixtures, furniture and displays,
are and will at all times be in compliance with the terms and provisions of all
applicable laws, ordinances, rules and regulations, including but not limited to
the terms and provisions of the Americans With Disabilities Act of 1990, and all
amendments and supplements thereto, and all rules and regulations issued
thereunder (jointly referred to as "ADA"). LANDLORD understands that the
Building and premises are places of public accommodations pursuant to the ADA.
If the foregoing representation and warranty proves to be untrue, regardless of
any other provision of this Lease, LANDLORD hereby agrees to protect, defend,
indemnify and hold TENANT harmless from and against all liability resulting
therefrom, and to promptly bring the premises and the Building into compliance
therewith at no cost to TENANT. LANDLORD shall have such access to the premises
as is reasonably necessary to permit LANDLORD to comply with the foregoing
provision, provided however, that LANDLORD shall not unreasonably interfere with
TENANT's business or TENANT's use of the premises.
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31
(ii) LANDLORD has the full right and power to execute and deliver
this Lease, grant the estate created hereby and to perform its obligations
hereunder, all without notice to, or consent of, any other person or entity.
(iii) LANDLORD has no knowledge of any hazardous or toxic
materials or substances in or under the Building, including the leased premises.
27. ENVIRONMENTAL COMPLIANCE:
(a) Regardless of any other contrary provision in this Lease, it
shall be LANDLORD's sole responsibility, and LANDLORD shall indemnify and hold
TENANT harmless, from the consequences of any and all present and future
federal, state and local environmental statutes and all rules and regulations
promulgated thereunder (hereinafter collectively called "Environmental
Provisions") which apply to the Building or the leased premises which existed
prior to TENANT taking possession of the leased premises, if such condition was
not caused by TENANT. LANDLORD's obligations hereunder shall include, but not be
limited to, the submission of all information required hereunder by any
governmental authority; the development and implementation of any cleanup plan
required because of the existence of or because of any spill or discharge of any
material, hazardous substance or waste as defined in any Environmental
Provisions ("Hazardous Material"), including, without limitation, friable
asbestos bearing materials, under, at, on or in the Building or the leased
premises; and holding TENANT harmless from and against any and all liabilities,
losses and costs, including, without limitation, TENANT's reasonable attorney
fees and expenses, which TENANT may incur by reason of any claim or charge under
any Environmental Provision which names TENANT, or because of LANDLORD's failure
to comply with the foregoing provisions of this Section.
(b) If any release of Hazardous Material, or the clean-up of such
release within the Office Park materially interferes with TENANT's use or
occupancy of the leased premises (other than a release for which TENANT or its
agents, employees, or contractors are responsible), then (i) rent and all other
charges payable under this Lease shall be proportionately reduced or abated
during the period of such interference based on the extent to which TENANT's use
of the leased premises is impaired, as reasonably determined by TENANT; and (ii)
if such interference continues for a period in excess of 90 days, or poses a
health hazard to TENANT's agents, employees, or customers for any period of
time, then TENANT, at its option, can forthwith terminate this Lease. In the
event LANDLORD acquires actual knowledge of the presence or alleged presence by
any governmental or enforcement agency, of any Hazardous Material in the
Building, LANDLORD shall forthwith give TENANT notice of the presence or alleged
presence of such Hazardous Material and its location within the Building.
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(c) If TENANT breaches the obligations stated in this Section, or
if the presence of Hazardous Material under, at, on or in the Building or the
leased premises caused or permitted by TENANT results in the contamination of
the Building, leased premises or the Land, or if contamination of the Building,
leased premises or Land by Hazardous Material otherwise occurs for which TENANT
is legally liable to LANDLORD for damage resulting therefrom, TENANT shall
indemnify, defend and hold LANDLORD harmless from any and all claims judgement,
damages, penalties, fines, costs, liabilities or losses, including without
limitation reasonable attorney's fees, which arise during or after the term or
any extended term of the Lease as a result of such contamination. Without
limiting the foregoing, if the presence of any Hazardous Material under, at, on
or in the Building, leased premises or Land caused or permitted by TENANT
results in any contamination of the same, TENANT shall promptly take all actions
at its expense as are necessary to return the same to the condition existing
prior to the introduction of any such Hazardous Material, provided that
LANDLORD's approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld.
28. NOTICE OF VACANCY:
LANDLORD hereby agrees to give TENANT written notice of any
vacancies, or upcoming vacancies, in the Building within ten (10) days of
LANDLORD'S knowledge of said vacancy. TENANT shall respond to LANDLORD within
ten (10) days of TENANT'S intent to expand into said vacant space. TENANT'S
failure to respond to LANDLORD's notice within the time specified shall be
deemed the same as if TENANT had responded and chosen to decline expansion into
said vacant space. Furthermore, during the initial lease-up of the Building,
LANDLORD shall give TENANT oral notice if any third party shows serious interest
in leasing all or a portion of the vacant space in the Building for a period in
excess of three years. In the event TENANT expands within the Building during
the first twenty-four months of occupancy, LANDLORD shall lease the additional
space to TENANT at the then-current adjusted Base Building Rent, minus
Fifty-five cents ($.55) per square foot, under all the same terms and conditions
as this Lease, except that additional leased space shall be allocated four (4)
parking spaces per 1000 usable square feet in lieu of five (5) parking spaces
per 1000 usable square feet. In the event TENANT desires the term of the
expansion space lease to be coterminous with this Lease, LANDLORD shall prorate
the actual improvement costs pursuant to Section 25.2 hereof, based on a five
year amortization and eleven percent (11%) interest.
29. EXISTING LEASE:
LANDLORD hereby agrees to execute an agreement, concurrently with
the execution of this Lease, to assume the obligations of TENANT's existing
lease dated February 23, 1996, at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, upon
TENANT's occupancy of the demised premises.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease
as of the day and year first above written.
"TENANT"
CONSOLIDATED HOLDINGS, INC.
Name: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Sr. Vice President, Development
-------------------------------------
ATTEST /S/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
"LANDLORD"
VANTAGE POINT PROPERTIES, INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: President
-------------------------------------
ATTEST /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
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34
FIRST ADDENDUM TO THE LEASE
APRIL 30, 1998
THE FIRST ADDENDUM TO THE LEASE, BY AND BETWEEN: VANTAGE POINT PROPERTIES, INC.,
a Kansas Corporation, as "Landlord", and CANDLEWOOD HOTEL COMPANY, INC., a
Delaware Corporation, as "Tenant". Both Landlord and Tenant wish to modify the
LEASE AGREEMENT dated April 30, 1998 for 28,175 gross sq ft to be located at
▇▇▇▇▇▇ Estates Office Park, in Wichita, Kansas.
For and in consideration of the mutual covenants agreements contained herein,
the parties hereto for themselves, their respective successors and assigns,
agree to the following changes:
1) Page 1, entitled SUMMARY OF GENERAL BASIC PROVISIONS, subsection C.
Monthly Base Building Rent shall be changed to $41,792.91 ($17.80 per
square foot)
2) Page 4, paragraph 3.1, entitled BASE BUILDING RENT, shall be changed to
reflect the rent of Forty-one Thousand Seven Hundred Ninety-two and
91/100 Dollars ($41,792.91), based on $17.80 per gross square foot
3) Page 22, paragraph 25.2, entitled TENANT'S FINISH ALLOWANCE, shall have
the following sentences added:
A) After the fourth sentence ending with . . . attached hereto as
Exhibit 1. The following sentence shall be added: "TENANT shall
have the right to request additional contractors to be added to
Exhibit 1 per LANDLORD's approval, which said approval will not
be unreasonably withheld."
B) The following shall be added to the end of the paragraph: "If
TENANT fails to use it's entire $16.00 per square foot
($450,800.00) Tenant Finish Allowance, LANDLORD agrees to
reimburse Tenant in cash within 30 days of occupancy.
All other terms and conditions of the lease shall remain the same.
"TENANT" "LANDLORD"
CANDLEWOOD HOTEL COMPANY, INC. VANTAGE POINT PROPERTIES, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- -------------------------------
Title: Sr. Vice President, Development Title: President
Attest: /S/ ▇▇▇▇ ▇▇▇▇▇ Attest: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- ---------------------------
35
SECOND ADDENDUM TO THE LEASE
THIS SECOND ADDENDUM (herein the "Second Addendum") is made and entered into on
this 24th day of December, 1998 by and between CANDLEWOOD HOTEL COMPANY, INC., a
Delaware corporation (hereinafter called "TENANT") and VANTAGE POINT PROPERTIES,
INC., a Kansas corporation (hereinafter called "Landlord").
WITNESSETH THAT:
WHEREAS, Landlord and Tenant entered into one certain Lease Agreement dated
April 30, 1998 (herein the "Lease") for the Candlewood Building located at ▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, covering approximately 28,175 gross
square feet on the second floor identified as Suite 200 (herein the "leased
premises"); and
WHEREAS, the parties entered into one certain First Addendum to the Lease dated
April 30, 1998 (herein the "First Addendum"), to amend and modify the Lease in
certain respects; and
WHEREAS, the parties desire to further amend and modify the Lease in certain
respects.
NOW THEREFORE, in consideration of the foregoing recitation, the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. The square footage of the leased premises shall be adjusted to include
approximately 28,249 gross square feet on the second floor identified as suite
200. In addition, Tenant will occupy 740 usable square feet on the first floor
plus 74 square feet of common area on the first floor identified collectively as
suite 170 (total first floor space is 814 square feet). The total square footage
for the leased premises in suites 170 and 200 is 29,063 gross square feet. A
floorplan showing the leased premises is attached hereto as Exhibit `A'.
2. The Building will contain approximately 57,446 gross square feet (exclusive
of any basement area). Tenant's prorata share of the Building is 50% of the
total gross area of the Building.
3. The monthly Base Building Rent per Section 3.1 of the Lease, as amended in
the First Addendum, is hereby further adjusted to Forty-Three Thousand One
Hundred Ten and 12/100 Dollars ($43,110.12), based on $17.80 per square foot.
Said adjustment to the monthly Base Building Rent is intended to allow for the
increased square footage outlined in item 1 above. Said adjustment does not
include any adjustment for amortized improvements above Landlord's Allowance.
4. Notwithstanding anything in the Lease or First Addendum to the contrary,
Landlord shall pay to Tenant, or directly to the general contractor at
Landlord's sole option, an allowance (herein "Allowance") equal to $16.00 per
gross square foot in the leased premises ($465,008) for Tenant to complete its
Leasehold Improvements. The bid awarded for the Leasehold Improvements was Five
Hundred Sixty Thousand Seven Hundred Two and 00/100 ($560,702.00), excluding any
change orders.
5. The parties hereby agree to amortize Fifty-Two Thousand Three Hundred
Thirteen and 40/100 Dollars ($52,313.40) of the general construction contract
for Leasehold Improvements into the monthly Base Building Rent by increasing the
monthly Base Building Rent by an amount equal to Forty-Five Cents per square
foot ($.45 psf) in accordance with Section 25.2 of the Lease. Said adjustment in
the monthly Base Building Rent is intended to accommodate amortization of the
Leasehold Improvements
36
only, and does not include any adjustment for increased square footage in the
leased premises. The remaining costs to complete Tenant's Leasehold Improvements
shall be paid in cash by Tenant in the following manner:
(i) Fifty Thousand and 00/100 Dollars ($50,000.00) shall be paid toward
the first application for payment from ▇▇▇ Construction for the
Leasehold Improvement construction within fifteen (15) days of receipt
of an invoice therefor.
(ii) The remaining amount due, including all change orders, shall be
paid to ▇▇▇ Construction upon substantial completion of the project and
within fifteen (15) days of invoicing therefor, subject to ▇▇▇'▇
completion of reasonable punchlist items.
6. Total monthly Base Building Rent is hereby adjusted to an amount equal to
Forty-Four Thousand One Hundred Ninety-Nine and 98/100 ($44,199.98), which is
the sum of monthly Base Building Rent as adjusted for both increased square
footage and for amortized improvements.
The following table is included to provide a graphic representation of the
adjusted square footage, the adjusted rental amount, the amortized improvements
and the cash requirements of Tenant:
------------------------------------------------------------------------------
New Square Footage 29,063 gross square feet
------------------------------------------------------------------------------
Adjusted Monthly Rent (based on $43,110.12 ($17.80 psf)
square foot change)
------------------------------------------------------------------------------
Adjusted Monthly Rent (based on $1,089.86 ($.45 psf)
amortized improvements)
------------------------------------------------------------------------------
Total Adjusted Monthly Base Rent $44,199.98 ($18.25 psf)
(square foot adjustment plus
adjustment for amortized
improvements)
------------------------------------------------------------------------------
General Contract Amount (excluding $560,702.00
change orders)
------------------------------------------------------------------------------
Architecture Contract Amount $19,120.00
(Approximate amount only--billed at
actual hourly rate)
------------------------------------------------------------------------------
Approximate Total Construction $ $579,822.00
------------------------------------------------------------------------------
Landlord Allowance $465,008.00 ($16.00 psf)
------------------------------------------------------------------------------
Amortized Improvements $52,313.40
------------------------------------------------------------------------------
Initial Tenant Cash Requirement $50,000.00
------------------------------------------------------------------------------
Final Tenant Cash Requirement $12,500.60 plus change orders
------------------------------------------------------------------------------
Total Tenant Cash Requirement $62,500.60 plus change orders
------------------------------------------------------------------------------
7. Landlord's notice address is hereby changed to the following:
Vantage Point Properties, Inc.
Attn: Property Management
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. The Lease is hereby modified to conform to the provisions of this Second
Addendum. If any of the terms or provisions of the Lease or First Addendum
conflict with terms or provisions of this Second Addendum, the terms and
provisions of this Second Addendum shall control.
37
9. The capitalized words used in this Second Addendum shall have the same
meaning as the capitalized words as used in the Lease and the First Addendum.
10. This Second Addendum shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Second Addendum to be executed
as of the day and year first above written.
VANTAGE POINT PROPERTIES, INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: President
-------------------------------------
Attest: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
CANDLEWOOD HOTEL COMPANY
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Sr. Vice President, Development
-------------------------------------
Attest: /S/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------