1
Exhibit 10.2
SUBLEASE AGREEMENT
Agreement of Sublease ("Sublease"), dated as of the 1st day of
April, 1996 by and between Lockheed Engineering & Sciences Company, a Texas
corporation, having an office at 0000 Xxx Xxxx Xxxxxxxxx, Xxxxxxx, Xxxxx 00000
(the "Sublessor") and Global Discount Travel Services LLC, a Nevada limited
liability company, having an office at 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxx 00000 (the "Sublessee").
W I T N E S S E T H
WHEREAS, by Agreement of Lease dated June 19, 1991, ("Underlying
Lease"), between Xxxxxx Xxxxxx Properties, Limited Partnership, as landlord
("Underlying Landlord"), and Sublessor, as tenant, Underlying Landlord demised
to Sublessor certain premises consisting of approximately 53,760 square feet of
a two story office space (which premises are referred to herein and in the
Underlying Lease as the "Premises") in the building located at the Xxxxxxxxx
Xxxxxx xx Xxxxxx Xxxx xxx Xxxxxxxx, Xxx Xxxxx, Xxxxxx, commonly known as 000
Xxxxx Xxxxxxx Xxxxx (the "Building"), and
WHEREAS, Sublessor desires to sublease to Sublessee (i) the entire
second floor of the Premises, which consist of approximately 26,480 rentable
square feet on the second floor of the Building and (ii) a computer room
("Computer Room") situated on the first floor of the Building consisting of
approximately 855 square feet together with access rights and use of lobby,
stairs, elevator (if any), corridors and other areas of the Premises necessary
to the ingress, egress and maintenance of the Sublet Premises (the "Sublet
Premises"), and Sublessee desires to sublet the Sublet Premises from Sublessor
on the terms, covenants and conditions contained herein.
NOW, THEREFORE, in consideration of the rental payments to be made
hereunder by the Sublessee to the Sublessor and the mutual terms, covenants and
conditions hereinafter set forth, the Sublessor does hereby sublet to the
Sublessee and the Sublessee does hereby take and hire from the Sublessor, the
Sublet Premises on the terms and conditions as more particularly set forth
herein.
2
1. Underlying Lease
(a) This Sublease shall be expressly subject and subordinate
to all the terms, covenants and conditions contained in the Underlying Lease,
and to all matters to which the Underlying Lease is subject and subordinate. A
true and complete copy of the Underlying Lease is annexed hereto as Exhibit A.
(b) The Sublessee covenants and agrees (i) not to do or suffer
or permit anything to be done or fail to do anything which would violate the
terms of the Underlying Lease or result in a default under the Underlying Lease
(beyond the expiration of applicable grace, notice and/or cure periods) or cause
the Underlying Lease to be terminated, (ii) to perform and observe as to the
Sublet Premises all of the terms, covenants and conditions on the part of the
Tenant under the Underlying Lease to be observed and performed except the
payment of Fixed Rent and Additional Rent under the Underlying Lease and except
those other provisions of the Underlying Lease made inapplicable by the express
provisions of this Sublease or the Excluded Provisions (as hereinafter defined).
Except for the Excluded Provisions, all of the terms, covenants and conditions
of the Underlying Lease are incorporated herein with the same force and effect
as if herein set forth in full. The rights and obligations contained in the
Underlying Lease are hereby imposed upon the Sublessor and the Sublessee during
the term of this Sublease, "Sublessor" being substituted for "Landlord" and
"Sublessee" being substituted for "Tenant" and the "Sublet Premises" for the
"Premises".
(c) In all instances where Sublessor's consent is required
hereunder, Sublessor agrees that Sublessor's consent shall not be unreasonably
withheld or delayed. If any request for consent or approval of Underlying
Landlord is made by Sublessee, Sublessor shall promptly cooperate with Sublessee
in obtaining the appropriate consent and furnish the appropriate parties all
materials received from Sublessee, together with such notices, instructions and
materials as may be required to be furnished by Sublessor.
(d) Sublessee shall be entitled to the services, maintenance,
repairs and access which the Under lying Landlord is obligated to furnish or
supply to, or for
-2-
3
the benefit of, the Sublet Premises pursuant to the terms of the Underlying
Lease. Sublessee agrees to pay for all utilities used in the Sublet Premises
other than those utilities and services which are provided without charge under
the Underlying Lease. Sublessor hereby represents and warrants and Sublessee
hereby acknowledges that the Building has been submetered to measure electricity
usage independently for the first and second floors of the Building. From and
after the Commencement Date Sublessee shall pay the electricity charges shown on
such meter with respect to the Sublet Premises only. Sublessee acknowledges that
there is one meter which measures electrical consumption on the first floor of
the Building. With respect to the Computer Room, Sublessee shall pay a share of
the electricity charges shown on such meter equal to 3% (i.e.: 855/ expense,
install submeters on the first floor of the Building to measure electrical
consumption, including, but not limited, a separate meter serving the Computer
Room exclusively, and in such event, Sublessee shall pay, without any surcharge,
the normal and customary rates with respect to such electrical consumption as
shown on the Computer Room meter. Sublessor shall be under no duty to perform
any of the covenants, agreements or requirements of the Underlying Landlord and
Sublessor shall not be liable to Sublessee because of any failure or delay on
the part of the Underlying Landlord in furnishing such services or making such
repairs unless such failure or delay results from Sublessor being in default
under the Underlying Lease (other than a default under the Underlying Lease
caused by a default by Sublessee hereunder or Sublessor's negligent or wilful
misconduct).
(e) The Sublessor shall perform and observe the covenants and
agreements on the part of the Sublessor, as Tenant under the Underlying Lease,
to be observed and performed and the Sublessor covenants and agrees not to do
anything or fail to do anything which would result in a default under or cause
the Underlying Lease to be terminated; provided however, the Sublessor does not
assume any obligation to perform the terms, covenants and conditions contained
in the Underlying Lease on the part of the Underlying Landlord to be performed.
The Sublessee shall accept performance by the Underlying Landlord under the
Underlying Lease of any of the obligations of the Sublessor under this Sublease.
-3-
4
(f) The Sublessee shall not be allowed any abatement or
diminution of rent under this Sublease because of the Underlying Landlords'
failure to perform any of its obligations under the Underlying Lease.
Notwithstanding the foregoing, in the event that the Sublessor actually receives
an abatement or diminution of rent from the Underlying Landlord with respect to
the Premises, some or all of which is properly allocated to the Sublet Premises,
the Sublessee shall be entitled to the portion of such abatement or diminution
which is properly allocable to the Sublet Premises.
(g) The Sublessor shall enforce the obligations of the
Underlying Landlord pertaining to the Sublet Premises. In the event the
Sublessor initiates any action or proceeding to compel the performance of
Landlord under the Underlying Lease, to the extent that such enforcement action
benefits both the Sublessor as Tenant under the Underlying Lease, and the
Sublessee hereunder, the Sublessee shall pay an amount equal to a fair and
equitable share of such costs and expenses which, in the case of any matter
affecting the Sublet Premises and the balance of the Premises in substantially
an equivalent manner shall be the Sublessee's Proportionate Share (as
hereinafter defined) of such expenses. All costs and expenses of the Sublessor
under this Section which are to be reimbursed by the Sublessee shall be
Additional Rent hereunder and shall be paid by the Sublessee with the next
ensuing Fixed Rent payment. If the Sublessor fails to enforce such obligations,
after request by the Sublessee, the Sublessor shall assign to the Sublessee all
of the Sublessor's right, title and interest in any such claim and the
enforcement thereof and after such assignment, the Sublessee shall be entitled
to enforce such claim in its own name or in the name of the Sublessor.
(h) The Sublessor reserves the right at any time during the
term of this Sublease to amend the Under lying Lease to provide for a reduction
of fixed rent and/or additional rent and to obtain other financial concessions
from the Underlying Landlord, its successors or legal representatives provided
that the Sublessor shall not enter into any amendment of the Underlying Lease
which shall amend any other terms of the Underlying Lease which shall be
applicable to or govern the Premises as the same pertains to the Sublet Premises
and the entrances, exits and corridors leading to and from the Sublet Premises
and to the duties of the Sublessor or the Underlying Landlord with respect
-4-
5
thereto and with respect to the services, equipment and facilities provided
thereto. If, as and when the Sublessor enters into any such amendment of the
Underlying Lease with the Underlying Landlord, the term "Underlying Lease" as
defined herein shall be deemed to include any such amendment from and after the
effective date of such amendment subject, however to the provisions of this
Section 1(h) of this Sublease.
2. Term
Provided that the consent (as more particularly described in Section
13 herein), required from the Underlying Landlord has been received, the term of
this Sublease shall commence on March 23, 1996, or in the event the Underlying
Landlord's consent has not been received by April 12, 1996, then, on the first
business day following the date on which the consent by the Underlying Landlord
is received by the Sublessee (the "Commencement Date"), but in no event later
than April 26, 1996, and shall end at 5:00 P.M. eastern standard time on
September 29, 2000 (the "Expiration Date"), if not sooner terminated pursuant to
the terms of this Sublease or the Underlying Lease.
3. Fixed Rent
(a) Sublessee shall pay to Sublessor at its office (or at such
other place as Sublessor may designate in a notice to Sublessee) in lawful money
of the United States which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment by check, without prior demand
therefor and without any offset or deduction whatsoever, except as specifically
provided for herein from the date hereof through and including September 29,
2000 (subject to CPI Adjustment as provided for herein), an annual rental equal
to FOUR HUNDRED TWELVE THOUSAND NINE HUNDRED FIFTEEN DOLLARS and 20/100
($412,916.20) ("Fixed Rent") per annum payable in equal monthly installments of
THIRTY FOUR THOUSAND FOUR HUNDRED NINE DOLLARS and 60/100 ($34,409.60);
(b) On the date of execution hereof, Sublessee has paid rent
in advance in the amount of $34,409.60 representing one month's payment of Fixed
Rent receipt of which by Sublessor, subject to collection, is hereby
acknowledged. If the Commencement Date is not on the first day of the calendar
month, then the amount of Fixed Rent due to Sublessor on the first day of the
month
-5-
6
following the month in which the Commencement Date occurs, shall be an amount
equal to the product of (i) $34,409.60, multiplied by (ii) a fraction, the
numerator of which is the number of days from and including the Commencement
Date to and including the last day of the calendar month in which the
Commencement Date occurs and the denominator of which shall be equal to the
actual number of days in the calendar month in which the Commencement Date
occurs. Thereafter, each monthly installment of Fixed Rent shall be paid in
advance on or before the first day of each and every calendar month during the
term. With the exception of the first month of the sublease term, the Fixed Rent
for any month of the term of this Sublease which does not begin or end on the
first or last day of the calendar month shall be prorated on a daily basis in
accordance with the Fixed Rent due for such calendar month. The Sublessee's
obligation to make such payment shall survive the expiration or sooner
termination of this Sublease.
(c) Commencing on the first day of the month preceding the
first anniversary of the Commencement Date and continuing with each anniversary
date thereafter, the Fixed Rent (without taking into account any previous CPI
Adjustment) shall be increased in proportion to the increase, if any, in the
Index (as defined in the Underlying Lease) which has occurred between the month
which is three (3) months prior to the first month of this Sublease term
(January, 1996) and the month which is three months prior to each such
Adjustment Month. For purposes of this Sublease, an Adjustment Month(s) shall
mean each April, commencing with April 1, 1997 ("CPI Adjustment").
(d) All other costs, expenses and charges which are the
obligation of the Sublessee hereunder or which the Sublessee under the
Underlying Lease assumes or agrees to pay, shall be deemed additional rent
("Additional Rent").
4. Additional Rent
(a) Sublessor represents that its Tenant's Share, as Tenant
under the Underlying Lease, as defined in Article 1 of the Underlying Lease is
100%. Commencing April 1, 1997 and continuing with each ensuing calendar year
thereafter, Sublessee shall pay Additional Rent within ten (10) business days
after demand, which Additional Rent shall be equal 51.6% ("Sublessee's
Proportionate Share") of the amount, if any, by which the Operating Costs (as
such term is defined in the Underlying Lease) in each such calendar
-6-
7
year subject to proration with respect to the last year of the Sublease term if
less than a full calendar year, exceed the Operating Costs paid or charged to
the Sublessor as tenant under the Underlying Lease for the calendar year 1996.
Sublessor shall, upon Sublessee's request, request of Underlying Landlord the
supporting data required to verify the charges for Additional Rent sought to be
passed on to Sublessee as occupant of the Sublet Premises pursuant to the
Underlying Lease and shall disclose to Sublessee all information or findings
pertaining to the duty of Sublessor or Sublessee to pay such charges as
Additional Rent, including such matters with respect to such items of Additional
Rent as may have been called to Sublessor's attention by Sublessee. If Sublessor
shall not otherwise be contesting such charges, the cost and expense of
obtaining such supporting data, if any, shall be paid by Sublessee, as
Additional Rent.
(b) If Sublessor receives any refund or credit under the
Underlying Lease relating to any payment made by the Sublessee for Additional
Rent pursuant to this Article, Sublessee shall be entitled to receive from
Sublessor the entire amount of such refund or credit (less sums, if any,
expended by Sublessor in connection with ob taining such refund or credit) to
the extent relating to any payment made by Sublessee to Sublessor for Additional
Rent promptly following receipt by Sublessor.
(c) Sublessor shall cause to be provided to the Building,
including the Sublet Premises, services consisting of maintenance, repairs,
cleaning of the Building (other than the Sublet Premises), cellular service,
pest control, sanitation and waste removal ("Sublessor's Services") which shall
be paid for by Sublessor and Sublessee as herein provided. Sublessee's expense
base based on Sublessee's Proportionate Share is $0.17 per square foot
("Sublessee's Expense Base"). Commencing on the first anniversary of the
Commencement Date and continuing with each anniversary date thereafter, if the
cost of Sublessor's Services shall be greater than Sublessee's Expense Base,
Sublessee shall pay to Sublessor, as additional rent for such year, an amount
equal to the Sublessee's Percentage of the excess of the cost of Sublessor's
Services for such year over the Sublessee's Expense Base ("Sublessee's Expense
Payment"). Sublessor shall submit to Sublessee, prior to, or within 30 days
following the commencement of each year of the Sublease Term, an expense
statement certified by the Sublessor, setting forth the costs and expenses of
the
-7-
8
Sublessor's Services for the preceding year and the payment, if any due to
Sublessor from Sublessee for such year. In the event there is a decrease in the
cost of Sublessor's Services, Sublessee's Expense Payments shall be adjusted to
reflect the decrease.
5. Use
Sublessee shall use and occupy the Sublet Premises for executive and
general offices, including, without intention to limit the generality of the
foregoing in any respect, Sublessee shall have the right to operate in the
Sublet Premises 24 hours a day, 365 days a year, its wholesale and retail travel
related sales and services business, distribution of airline tickets and travel
related documents, and to install and incorporate into the Sublet Premises,
throughout the term of this Sublease (a) computers and related equipment, (b)
telephone system and data bank, (c) word processing, mailing and related
equipment and (d) photocopying facilities and related services and equipment.
The Sublet Premises shall not be used for retail sale to walk-in customers or
clients.
6. Representations
(a) The Sublessee represents and warrants that it has
inspected the Sublet Premises and is familiar with the condition thereof.
Sublessee agrees that it enters into this Sublease without any representation or
warranties by Sublessor, its agents, representatives, employees, servants,
brokers or any other person as to the present or future condition of the
Building or the Sublet Premises or the appurtenances thereto except as herein
contained. Sublessee agrees that Sublessee accepts the Sublet Premises "as-is"
in its condition as of the date hereof and except for delivery of Sublessor's
Tenant Improvement Payment (as hereafter defined), Sublessor shall not be
obligated to furnish any work, materials or services or rent concessions in
order to ready the Sublet Premises for Sublessee's occupancy. Contemporaneously
with the execution and delivery of this Sublease, Sublessor shall deliver a
check made payable to Sublessee in the amount of $30,000 to be applied by
Sublessee to any improvements Sublessee may elect to undertake in the Sublet
Premises ("Sublessor's Tenant Improvement Payment").
(b) The Sublessor hereby represents and warrants that (i) the
Underlying Lease is in full force and
-8-
9
effect; (ii) Exhibit A contains a true, complete and correct copy of the
Underlying Lease and that there have been no amendments or modifications
thereto; (iii) the Underlying Landlord is not in default under the Underlying
Lease; (iv) the Sublessor, as Tenant, is not in default under the Underlying
Lease; (v) the Sublessor's interest under the Underlying Lease has not been
encumbered by any prior transfer, assignment or encumbrance; (vi) the Sublessor
has full and lawful authority to sublease the Sublet Premises pursuant to the
terms and conditions set forth herein, subject only to the Underlying Landlord's
consent thereto; (vii) the Sublet premises are in compliance with all applicable
laws and building codes; and (vii) Sublessor's option to terminate the
Underlying Lease as provided for in Section 3.05 of the Underlying Lease is of
no force and effect and the Sublessor, as tenant under the Underlying Lease has
no right to terminate the Underlying Lease prior to the Expiration Date.
(c) Each party shall, at any time and from time to time, upon
not less than ten (10) days prior written notice from the requesting party,
execute, acknowledge and deliver to the requesting party, a statement in writing
(i) certifying that this Sublease is unmodified and in full force and effect
(or, if modified, stating the nature of the modification and certifying that
this Sublease, as so modified, is in full force and effect) and the dates to
which the Fixed Rent and any Additional Rent and other charges are paid in
advance, and (ii) acknowledging that there are no defaults on the part of the
Sublessor or Sublessee, as the case may be, or specifying such defaults if any
are claimed.
7. Insurance
Sublessee covenants and agrees to provide at its sole cost and
expense on or before the Commencement Date, and to keep in force during the
Sublease Term, a Commercial General Liability insurance policy naming the
Sublessor and the Underlying Landlord as named insured parties, which policy
shall include, but not be limited to, contractual liability insurance, property
damage and personal injury coverage protecting Sublessee, Sublessor and the
Underlying Landlord against any liability whatsoever, occasioned by any
occurrence on or about the Sublet Premises or any appurtenances thereto. Such
policy shall be written by and delivered, all companies as provided for in
Article 4.05(c) of the Underlying Lease. As of the date of this Sublease,
-9-
10
Sublessor requires that limits of liability under the policy be not less than
$1,000,000.00 and such amount may be subject to periodic increases as provided
for in Article 4.05(b) of the Underlying Lease. Such policy shall also have the
indemnity clause referred to in Article 5.05 of the Underlying Lease and Section
16 hereof typed on the policy evidencing that the "hold harmless" clause has
been insured. Sublessee's failure to provide and keep in force the
aforementioned insurance shall be regarded as a default hereunder entitling
Sublessor to exercise any and all of the remedies provided for in the Sublease
(and in the Underlying Lease, as incorporated by reference into this Sublease)
in the event of Sublessee's default.
8. Broker
Sublessor and Sublessee each covenant, warrant and represent to the
other that there was no broker, finder, consultant or like agent except CB
Commercial Real Estate Group, Inc. ("CB Commercial") instrumental in
consummating this Sublease and that no conversations or negotiations were held
with any broker, finder, consultant or like agent other than CB Commercial
concerning the leasing of the Sublet Premises. Each party agrees to hold the
other harmless against any claims for brokerage commissions arising out of any
conversations or negotiations had by such party with any broker, finder,
consultant or like agent except CB Commercial. Sublessor has agreed to pay any
and all brokerage commissions to CB Commercial pursuant to a separate agreement.
The representations, warranties and covenants contained in this Article shall
survive the expiration or earlier termination of this Sublease.
9. Assignment and Subletting
Subject to the rights of the Underlying Landlord under Article 9 of
the Underlying Lease to consent to a proposed assignment or sublet, (a)
Sublessee shall not assign this Sublease or sublet or permit the use of all or
any portion of the Sublet Premises without obtaining the prior written consent
of the Sublessor, which consent Sublessor agrees will not be unreasonably
withheld or delayed; provided, however, that Sublessee shall be permitted, upon
prior written notice to the Sublessor and the Underlying Landlord but without
either the Sublessor's or the Underlying Landlord's consent, to assign this
Sublease, sublet all or any portion of the Sublet Premises or provide the use of
all or any portion of the Sublet
-10-
11
Premises, to one or more Affiliates of Sublessee or to an entity into or with
which Sublessee shall be merged or consolidated or an entity to which all or
substantially all of the assets of Sublessee shall be transferred. For purposes
of this Sublease, the term "Affiliate" is defined as any entity or person
directly or indirectly controlling, controlled by or under common control with
Sublessee. The term "control" is defined as ownership of 50% or more of all of
the issued and outstanding stock of any corporation or the equivalent ownership
interest in any non corporate entity.
10. Quiet Enjoyment
Sublessor covenants and agrees to perform all of its obligations as
Tenant pursuant to the Underlying Lease so that this Sublease shall at all times
during the term continue in full force and effect and that Sublessee's occupancy
of the Sublet Premises will not be interfered with or disturbed. Sublessee, upon
paying the rent and all other charges as herein provided shall quietly have and
enjoy the Sublet Premises during the term of this Sublease without hinderance or
molestation by anyone claiming by, through, or under Sublessor.
11. Default
(a) In the event Sublessee shall default in the performance of
any of the terms, covenants and condi tions on its part to be performed under
this Sublease, or in the event that Sublessee shall default in performance of
any of the terms, covenants and conditions on the Tenant's part to be performed
under the Underlying Lease which are the obligations of Sublessee to perform
under this Sublease and which are not cured prior to the expiration of the time
for curing thereof thereunder, Sublessor shall have the same rights and remedies
with respect to the such default as are given to the Underlying Landlord under
the Underlying Lease with respect to a default by Tenant under the Underlying
Lease, all with the same force and effect as though the provisions of the
Underlying Lease with respect to defaults were and the rights and remedies of
the Underlying Landlord thereunder in the event thereof were set forth at length
in this Sublease. Sublessor shall notify Sublessee promptly of any notices of
default relating to the Sublet Premises which may be received by Sublessor from
Underlying Landlord.
-11-
12
(b) If Sublessee shall default in the performance of any of
the Sublessee's obligations hereunder or under any the provisions of the
Underlying Lease which are the obligations of the Sublessee to perform under
this Sublease beyond any applicable grace periods after notice, Sublessor,
without thereby waiving such default, may, at Sublessor's option, perform the
same for the account and at the sole cost and expense of Sublessee, without
notice in the event of an emergency, and after ten (10) day prior written notice
in any other event unless Sublessee notifies Sublessor in writing of its intent
to perform within said 10 day period after receipt of said notice. If Sublessor
makes any expenditures or incurs any obligations for the payment of money,
including without limitation, reasonable counsel fees in instituting,
prosecuting or defending any action or proceeding, by reason of any default of
Sublessee hereunder, such sums paid or obligations incurred, shall be deemed to
be Additional Rent and shall be payable by Sublessee to Sublessor upon demand.
12. Notices
(a) Any notice to be given under this Sublease shall be in
writing and shall be sent by certified mail, return receipt requested, or by
Federal Express or similar overnight courier service addressed as follows:
If to Sublessor:
Lockheed Engineering & Sciences Company
0000 Xxx Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy each to:
Lockheed Environmental Systems &
Technologies Company
Two Xxxxx Center
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx
Attention: Xxxxxx Xxxxxx
and
Lockheed Environmental Systems &
Technologies Company
000 Xxxxx Xxxxxxx Xxxxx
-00-
00
Xxx Xxxxx,Xxxxxx 00000
Attention: Xxxx X. Xxxxx
If to Sublessee:
Global Discount Travel Services LLC
0000 X. Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to:
Global Discount Travel Services LLC
c/o Icahn Associates
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Each party shall have the right to designate by notice in writing to the other
party any other address to which such party's notice is to be sent. Any notice
shall be deemed given (i) when received, (ii) three (3) business days after
mailing, or (iii) one (1) business day after delivery to Federal Express or
similar overnight courier, whichever occurs first.
13. Consent
(a) This Sublease is subject to and conditioned upon Sublessor
securing (i) the consent of the Underlying Landlord and the Underlying
Landlord's lender to this subletting to the extent required under the Underlying
Lease, (ii) the consent of the Underlying Landlord to the use of the
Supplemental Parking and the Parking License (as hereinafter defined) as
provided for in the Parking License, (iii) the execution and delivery to
Sublessee of the non-disturbance agreement by the Underlying Landlord
substantially in the same form of the agreement attached hereto as Exhibit C
("Non-Disturbance Agreement") and (iv) the execution and delivery by the
Underlying Landlord of an estoppel certificate in the form attached hereto as
Exhibit D of the Underlying Landlord called for herein.
(b) Sublessor agrees that upon the signing of this Sublease it
will proceed with diligence to obtain (i) the consent of the Underlying Landlord
to this Sublease and to furnish the Sublessee a fully executed copy of such
consent, which consent shall be unconditional; (ii) the execution by the
Underlying Landlord of the Non-Disturbance
-13-
14
Agreement and the delivery of a fully executed Non- Disturbance Agreement to
Sublessee and (iii) an estoppel certificate from the Underlying Landlord
pertaining to the Underlying Lease in the form called for under 13(a) of this
Sublease. In the event the Sublessor is unable to secure such consent to this
Sublease, such estoppel certificate or said Non-Disturbance Agreement, as the
case may be, within 15 days from the date hereof, either party shall thereafter
have the right, exercisable by notice to the other party given at any time
before such parties have been notified that the consent, the Non-Disturbance
Agreement and the estoppel certificate have been obtained, to cancel this
Sublease unless such condition is promptly waived by the other party. If this
Sublease is so canceled, this Sublease shall be null and void, Sublessor shall
promptly return to Sublessee the initial installment of Fixed Rent paid upon
execution of this Sublease, and thereafter, neither party shall have any claim
against the other except as provided for in Section 8 hereof. Either party may
waive any provision of this Sublease which is for such parties exclusive benefit
in connection with the procurement of such consent, and Sublessee may waive the
requirement for the Non-Disturbance Agreement, the approval of the Parking
License and the estoppel certificate in the forms required hereunder.
14. Entire Agreement
This Sublease contains the entire agreement between the parties with
respect to the matter hereof and supersedes all prior understandings, if any,
with respect thereto, This Sublease may not be modified, changed or
supplemented, nor may any obligations hereunder be deemed waived, except by
written instrument signed by the party to be charged or by its agent duly
authorized in writing or as otherwise expressly permitted.
15. Excluded and Modified Provisions
It is expressly understood and agreed by and between the Sublessor
and the Sublessee that notwithstanding the obligations of the Sublessor to the
Underlying Landlord under the Underlying Lease, the Underlying Lease provisions
listed on Exhibit B attached hereto and incorporated by reference herein are
either expressly excluded from and not incorporated by reference into this
Sublease or modified to the extent reflected on Exhibit B ("Excluded
Provisions").
-14-
15
16. Indemnity Provision
(a) Sublessee covenants that it will, and does hereby agree
to, indemnify and hold Sublessor, its officers, directors, shareholders, agents,
successors and assigns, harmless from and against any and all actions, claims,
demands, damages, liabilities, and expenses (including, without limitation,
attorneys' fees and disbursements and costs of enforcing this indemnity) paid or
incurred by Sublessor on account of any default under the Underlying Lease
caused by the Sublessee (whether through its own acts or omissions, or the act
or omission of its agents, servants, employees or invitees) as a result of any
failure of the Sublessee to perform and observe as to the Sublet Premises any of
the terms, covenants and conditions on the part of the Sublessee under this
Sublease to be performed and observed except for any default by the Sublessor
under this Sublease or the Underlying Lease.
(b) Sublessor covenants that it will, and does hereby agree
to, indemnify and hold Sublessee, its officers, directors, shareholders, agents,
successors and assigns, harmless from and against any and all actions, claims,
demands, damages, liabilities and expenses (including, without limitation
reasonable attorneys' fees and disbursements and costs of enforcing this
indemnity) incurred or sustained by Sublessee on account of any default by
Sublessor, its agents, servants, employees or invitees, under this Sublease or
the Underlying Lease in performing or observing any of the covenants and
agreements on the part of the Sublessor as Tenant under the Underlying Lease to
be performed or observed, except for any default by the Sublessor under the
Underlying Lease or this Sublease resulting from a default by the Sublessee
under this Sublease.
17. Non-Disturbance and Attornment
(a) In the event of termination, re-entry or dispossess by
Underlying Landlord under the Underlying Lease prior to the expiration of the
Sublease term, Sublessee may in its sole discretion, attorn to the Underlying
Landlord under the Underlying Lease for the then remaining term of this Sublease
upon and subject to the then executory provisions of this Sublease. Upon such
attornment by Sublessee to the Underlying Landlord and upon Underlying Landlord
accepting such attornment, this Sublease shall continue in full force and effect
as if it were a direct
-15-
16
lease between the Sublessee and the Underlying Landlord and all of the terms,
covenants and conditions of this Sublease shall be applicable after such
attornment except that the Underlying Landlord under the Underlying Lease shall
not (i) be liable for any previous acts or omissions of the Sublessor under this
Sublease, (ii) be subject to any offset, not expressly provided in this Sublease
which theretofore accrued to Sublessee against Sublessor, or (iii) be bound by
any previous modification of this Sublease made without the Underlying
Landlord's written consent or by any previous prepayment of more than one
month's Fixed Rent or of payments of Additional Rent due in accordance with the
provisions of this Sublease.
(b) Sublessor and Sublessee hereby agree that this Sublease is
conditioned upon Sublessor delivering the Non-Disturbance Agreement to Sublessee
between Sublessee and the Underlying Landlord, which agreement provides that in
the event of a termination of the Underlying Lease during the term of this
Sublease and election by the Sublessee to remain in possession of the Sublet
Premise, the Underlying Landlord shall at Sublessee's request, accept attornment
by Sublessee under this Sublease for the balance of the term hereof, but upon
and subject to all of the terms and provisions of the Underlying Lease to the
extent not otherwise provided for in the Non-Disturbance Agreement, and this
Sublease, in such event shall be and be deemed to have been amended so as to
have incorporated all of the terms and provisions of the Underlying Lease as if
set forth herein at length, and such terms and provisions shall, to the extent
not otherwise provided for in the Non-Disturbance Agreement supersede the terms
and provisions of the Sublease; provided, however, that the Sublessee will be
under no obligation to cure any default or rectify any condition under the
Underlying Lease which gave rise to a default under the Underlying Lease, nor be
bound by any amendment to any Underlying Lease hereafter made not consented to
by Sublessee, but nothing herein contained shall excuse performance by Sublessee
of its obligation as tenant under this Sublease as the same shall be and be
deemed to have been amended from and after the effective date of such attornment
and acceptance of attornment. Sublessee shall execute and deliver to Underlying
Landlord any and all amendments to this Sublease as may be necessary to
effectuate or confirm the foregoing provisions of this Section.
-16-
17
18. Access
Notwithstanding anything contained in this Sublease or in the
Underlying Lease to the contrary, Sublessor or Sublessor's agents shall have no
right, except upon prior reasonable notice and at reasonable times, to enter
upon the Sublet Premises except in the case of emergency, or when circumstances
otherwise warrant, and further provided that such entry shall not unreasonably
disrupt the conduct of Sublessee's business.
19. Waiver of Sublessor's Lien
Sublessee has informed Sublessor that one or more companies (each, a
"Leasehold Mortgagee"), has extended or may in the future extend credit to
Sublessee, whether by way of a personal property lease or secured in part by
Sublessee's interest in any personal property, inventory, equipment or trade
fixture to be installed or located at the Sublet Premises (the "Pledged Personal
Property"). Sublessor agrees that any Pledged Personal Property will remain
personal property at all times even if affixed to or installed upon the Sublet
Premises, and waives any right, title or interest in such Pledged Personal
Property, including, without limitation, Sublessor's statutory lien, if any, for
rent. Sublessor agrees that Leasehold Mortgagee may enter the Sublet Premises
and remove the Pledged Personal Property at any time upon providing Sublessor
reasonable notice, without further consent from the Sublessor, in the event of a
default under that Pledged Personal Property lease or the secured obligation,
whether or not the Sublease is terminated, provided that Leasehold Mortgagee
agrees to reimburse Sublessor for the cost of repair of the physical damage to
the Sublet Premises caused by such removal (but not for any reduction in the
value of the Sublet Premises caused by the absence of the personal property so
removed). Sublessor agrees that the Sublessee's interest in this Sublease may be
pledged to the Leasehold Mortgagee provided the Leasehold Mortgagee shall be
bound by all other terms, provisions and conditions contained in this Sublease
should the Leasehold Mortgagee acquire Sublessee's interest in this Sublease.
20. Alterations
(1) Sublessee shall have the right, at its own cost and
expense to make all alterations, decorations, additions or improvements as may
be required for the conduct
-17-
18
of Sublessee's business in the Sublet Premises, except that Sublessee shall be
required to obtain the consent of the Sublessor to alterations, additions or
improvements in the Sublet Premises (which consent the Sublessor agrees will not
be unreasonably withheld or delayed), provided that the Sublessor shall not
withhold its consent to the following alterations to be performed by the
Sublessee to the Sublet Premises:
a) Relocation of partitions and doors;
b) Relocation and/or installation of additional electrical and
telephone outlets;
c) carpet, paint and wallcovering;
d) installation of signs on the entrance to the Sublet
Premises and outside the Building in accordance with Section 22 of this
Sublease; and
e) construction of "break room" consisting of a sink,
dishwasher, microwave oven and vending machines
provided Sublessee shall obtain the consent of the Underlying Landlord if such
consent is required pursuant to the terms of the Underlying Lease. Sublessee
shall comply in the performance of such work with all laws, ordinances, rules
and regulations of all governmental authorities having jurisdiction over the
Sublet Premises.
(2) Sublessor represents and warrants to Sublessee that
Sublessor is not under any duty, as a Tenant under the Underlying Lease, to make
alterations to the Premises in order to restore the Premises to the condition
into which the Premises are to be put to comply with the requirement of the
Underlying Lease relating to Sublessor's surrender of the Premises at the
expiration of the term of the Underlying Lease.
(3) All articles of personal property and all business and
trade fixtures, machinery, equipment, furniture and movable partitions owned by
the Sublessee or installed by the Sublessee at its expense in the Sublet
Premises shall be and remain the property of the Sublessee and may be removed by
the Sublessee at any time during the term of this Sublease provided that
Sublessee shall repair any damage caused by said removal and shall deliver the
Sublet Premises to Sublessor broom clean and in
-18-
19
substantially the same condition as upon commencement of the term hereof,
reasonable wear and tear excepted, except however, Sublessee shall not be
required to remove any alteration, including any structural alteration it may
have been allowed to make pursuant to the terms of the Underlying Lease, or with
the consent of the Underlying Landlord (unless required by the terms of such
consent).
21. Parking
(a) Notwithstanding anything contained in the Underlying Lease
to the contrary, Sublessor covenants and agrees to provide Sublessee with 200
parking spaces at the Premises (as such term is defined in the Underlying Lease)
("Sublessee's Parking") which shall be provided as follows: (i) 140 parking
spaces shall be provided to Sublessee from the parking spaces allocated to
Sublessor under the Underlying Lease (referred to in the Underlying Lease as the
Common Parking Area), and (ii) 60 parking spaces located at 000 Xxxxx Xxxxx, Xxx
Xxxxx, Xxxxxx ("Supplemental Parking") shall be provided to Sublessee from the
parking spaces allocated to Sublessor pursuant to a lease dated November 17,
1990 between the Sublessor, as tenant, and the Underlying Landlord, as landlord,
for the premises located at 000 Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx (the "Additional
Lockheed Lease"). The expiration date of the Additional Lockheed Lease is
December 31, 2000.
(b) Sublessor hereby grants to Sublessee an exclusive license
to utilize the Supplemental Parking (the "Parking License"). The Parking
License, including, but not limited to the continuation thereof as set forth
further within this subsection (b), is a material part of the rights granted by
Sublessor to Sublessee hereunder. The Sublessor and Sublessee hereby agree that
the Parking License shall continue in full force and effect notwithstanding the
termination of the Underlying Lease so long as the Sublessee shall remain in
possession of the Sublet Premises whether as a subtenant or a direct tenant of
the Underlying Landlord or any successor-in-interest to the Underlying Landlord
until the expiration of the Sublease term. Sublessor hereby covenants and agrees
that the Additional Lockheed Lease will remain in full force and effect
throughout the Sublease Term.
(c) Sublessee hereby agrees to provide all its employees with
parking stickers which shall identify the name of the Sublessee and shall
further provide Sublessor
-19-
20
and Underlying Landlord with a quarterly listing of the license plate numbers
for all employee vehicles utilizing the Sublessee's Parking. In the event there
are visitors or service companies visiting the Sublet Premises for or on behalf
of the Sublessee, Sublessee agrees to provide each such visitor with a parking
pass to be inserted in the inside front window of the vehicle indicating the
vehicle as a visitor to the Sublet Premises.
(d) Sublessee hereby covenants and agrees that Sublessee,
including, but not limited to any of Sublessee's employees, visitors, vendors or
other service companies servicing the Sublet Premises, shall not occupy any more
than 200 parking spaces at any one time and that it shall be a default under
this Sublease if Sublessee shall utilize more than the 200 spaces allocated to
Sublessee at any one time (a "Parking Default"). In the event of a Parking
Default, Sublessor shall provide immediate telephonic notice to Sublessee's
Representative (as hereinafter defined) at the Sublet Premises and thereafter
written notice to Sublessee within 3 days of the Parking Default specifying the
nature of the default, including, but not limited to, the time and date upon
which the Parking Default occurred (a "Parking Default Notice"). Sublessee's
Representative shall be two (2) or more individuals designated by Sublessee,
notice of which shall be provided to Sublessor and Underlying Landlord. At the
inception of the Sublease Term, the Sublessee's Representatives shall be Xxxxx
X'Xxxx and Xxxxx XxXxxxxxx.
(e) Following or contemporaneously with the first Parking
Default Notice, a copy of which notice shall be delivered to Sublessee by the
Sublessor, the Underlying Landlord may retain a parking attendant to monitor the
parking at the Premises and Sublessee acknowledges that the Underlying Landlord
may require that the Sublessor pay for a parking attendant retained by the
Underlying Landlord to monitor the parking at the Premises and the Supplemental
Parking. Upon written notice of the Underlying Landlord to Sublessor of its
election to retain a parking attendant, a copy of which notice shall be provided
to Sublessee, Sublessee shall, pay to Sublessor, as additional rent such sums as
required to be paid by the Underlying Landlord for the reasonable costs and
expenses of such parking attendant.
(f) In the event Sublessee shall have received three (3) or
more Parking Default Notices within any 12 month period during the Sublease
Term, and provided
-20-
21
that Sublessor has received a written notice from Underlying Landlord requesting
that Sublessor terminate the Sublease as a result of three Parking Default
Notices to Sublessee within the preceding 12 month period, Sublessor shall
provide written notice to Sublessee of Underlying Landlord's notice, which
notice shall include a copy of Underlying Landlord's notice, and such Parking
Default shall be considered and be deemed to be an Event of Default under this
Sublease without any opportunity on the part of the Sublessee to cure, and
concurrently with such notice, this Sublease shall terminate, and Sublessor
shall be entitled to exercise all rights and remedies against Sublessee as
provided for in this Sublease.
22. Signage
Subject to the rights of the Underlying Landlord as contained in
Article 5.04 of the Underlying Lease, Sublessee shall have the right to install
a sign on the front door of the Sublet Premises and Sublessor shall provide a
directional sign in the parking lot of the Building consistent with those signs
already located in the parking lot indicating the location of the Sublet
Premises similar to Sublessor's existing signs and in accordance with the
Requirements of the Airline Reporting Corporation .
23. Guaranty of Sublease
The Obligation of Sublessee under this Sublease shall be guaranteed
by Highcrest Investors Corporation (the "Guaranty"). A copy of the form of
Guaranty is attached hereto as Exhibit E.
24. Miscellaneous
(a) This Sublease shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of the State of Nevada
applicable to agreements made and to be performed wholly within the State of
Nevada.
(b) The terms, covenants and conditions contained in this
Sublease shall bind and inure to the benefit of the Sublessee and Sublessor and
their respective successors and assigns.
-21-
22
(c) Each right and remedy of the Sublessor provided for in
this Sublease shall be cumulative and shall be in addition to every other right
and remedy provided for in this Sublease or now or hereafter existing at law or
in equity by statute or otherwise.
SUBLESSOR
LOCKHEED ENGINEERING &
SCIENCES COMPANY
By:___________________________
SUBLESSEE
GLOBAL DISCOUNT TRAVEL
SERVICES LLC
By: Highcrest Investors Corp.
By:___________________________
Xxxxxx X. Xxxxxxxx
Assistant Secretary
-22-
