EXHIBIT 10.35
SECOND LEASE AMENDMENT
This instrument dated as of the 1st day of December, 2002 (being
hereinafter referred to as the "Effective Date"), by and between 000 XXXXX
XXXXXX XXXXX, L.L.C., an Illinois limited liability company ("Landlord") and
ORBITZ, LLC, a Delaware limited liability company ("Tenant").
R E C I T A L S:
A. By instrument dated as of October 1, 2000, as amended by First Lease
Amendment dated as of March 1, 2001 (together, the "Lease"), Landlord demised
and leased to Tenant certain premises comprising the entirety of the eighteenth
(18th) and nineteenth (19th) floors and containing approximately 44,766 rentable
square feet in the aggregate (the "Existing Premises") in the Building known as
000 Xxxxx Xxxxxx Xxxxx (the "Building") in Chicago, Illinois, for a term
currently expiring on February 29, 2008 (the "Term"), on the terms and
conditions set forth therein.
B. Landlord is willing to lease to Tenant, and Tenant desires to lease
from Landlord, certain additional space comprised of the entirety of the
fifteenth (15th) floor of the Building containing approximately 21,897 rentable
square feet, and to further extend the Term of the Lease an additional period as
further set forth herein, all on the terms and conditions hereinafter provided.
C. Landlord and Tenant desire to amend the Lease as hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, receipt whereof
is hereby acknowledged, Landlord and Tenant covenant and agree as follows:
1. Effective on the Effective Date, the Lease shall be and hereby is
amended by adding to the Existing Premises that certain additional space
comprising approximately 21,897 rentable square feet located on the fifteenth
(15th) floor of the Building (the "Expansion Space") as shown and further
described on Exhibit A-1 attached hereto and made a part hereof. From and after
the Effective Date, the "Premises" demised by the Lease shall mean both the
Existing Premises and the Expansion Space and shall consist of an aggregate of
66,663 rentable square feet.
Tenant is currently in occupancy of the Expansion Space pursuant to a
Temporary Space Agreement dated as of November 27, 2002, and Tenant therefore
agrees to accept the Expansion Space in its existing condition as of the date
hereof; provided, however, that Landlord shall make available to Tenant an
allowance in the amount of Two Hundred Eighteen Thousand Nine Hundred Seventy
Dollars ($218,970.00) (calculated by multiplying $10.00 by 21,897, being the
number of rentable square feet in the Expansion Space) (the "Allowance") to be
applied towards costs incurred by Tenant (a) for moving into the Expansion Space
and (b) in refurbishing, furnishing, equipping, wiring, cabling or otherwise
improving the Expansion Space or the Existing Premises (collectively, the
"Improvements"). Tenant shall reimburse Landlord for any out-of-pocket costs
incurred by Landlord to third parties (other than the Building manager, The Buck
Management Group L.P.) in supervising or coordinating the Improvements, and
Landlord shall further permit the Allowance to be applied to such costs. So long
as Tenant is not then in monetary default or in default under any other material
term, covenant, or condition of the Lease (in any event beyond the expiration of
any applicable cure period), Tenant may also elect to have up to $109,485.00 of
the Allowance applied as a credit against the Base Rent next coming due under
the Lease. In the event Tenant has not
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requested application of all or any remainder of the Allowance by November 30,
2003, Landlord shall be entitled to the savings and Tenant shall no longer
receive credit therefor.
The Allowance is for Tenant personally and may not be applied or used for
the benefit of any subtenant approved by Landlord nor will such Allowance inure
to the benefit of any permitted assignee of Tenant other than those successors
of Tenant to whom the Lease is assigned pursuant to Section 15.H thereof. It
shall be a condition to the application of such Allowance that Tenant not be in
monetary default or in default under any other material term, covenant, or
condition of the Lease (in any event beyond the expiration of any applicable
cure period) at any time any of the Allowance is requested. To the extent the
Allowance is used to pay for Improvements, it shall be a condition of Landlord's
obligation to pay such portion of the Allowance that Tenant shall provide to
Landlord, as appropriate, contractor's affidavits and waivers of lien covering
all labor and materials expended and used and invoices reasonably acceptable to
Landlord establishing the actual cost of and full payment for all items
purchased with the Allowance. Landlord shall disburse the Allowance to Tenant or
Tenant's contractors (as directed by Tenant) within thirty (30) days after
Tenant has submitted the required information for each such draw and has
otherwise complied with the requirements hereof. Any Improvements performed by
Tenant in either the Existing Premises or the Expansion Space shall otherwise be
made in accordance with Section 8 (Alterations and Additions) of the Lease.
2. Effective as of the Effective Date, Section 1 of the Lease shall be
and hereby is amended by extending the Term of the Lease an additional period
ending on November 30, 2012 (the "New Termination Date"), the same as if the New
Termination Date were the expiration date
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of the Term of the Lease as originally set forth therein, on all of the terms
and conditions of the Lease as modified hereby.
3. Effective as of the Effective Date, Exhibit B to the Lease, being the
schedule of Base Rent referenced in Section 2 of the Lease, is amended by
deleting it in its entirety and by substituting in lieu thereof Exhibit B
attached to this Amendment.
4. Effective as of the Effective Date, Tenant's Proportionate Share as
set forth in Section 3A(ii) of the Lease is increased to 8.81%.
5. Notwithstanding anything herein to the contrary, Base Rent and
Additional Rent with respect to the Expansion Space shall be abated for the
period commencing on the Effective Date and ending on November 30, 2003, so long
as Tenant is not in monetary default or in default under any other material
term, covenant or condition of the Lease (in any event beyond the expiration of
any applicable cure period) on the date any such installment of such Base Rent
or Additional Rent is due.
6. Effective as of the Effective Date, Section 3 of the Lease (Additional
Rent) shall be and hereby is amended by deleting therefrom subsection A.(iv)c in
its entirety and by substituting in lieu thereof the following:
"c. Costs of capital improvements to the Building (including any
improvements required to the common areas of the Building in order to
comply with the provisions of the Americans With Disabilities Act of
1990 (42 U.S.C. Section 12-101 et seq.) (the "ADA")), except that
Operating Expenses shall include (a) the cost of any capital
improvement completed on or after the Commencement Date which is
intended to reduce any component of Operating Expenses; and (b) the
cost of any capital improvement (other than an improvement required in
order for the Building to comply with the ADA) which is made by
Landlord to keep the Land or Building in compliance with all
governmental rules and regulations applicable from time to time
thereto and enacted, adopted or modified after the date of this Lease.
The cost of any capital improvement so included in Operating Expenses
shall be evenly amortized over the useful life of each such capital
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improvement with interest on the unamortized amount at the lesser of
the cost to Landlord for borrowing funds to finance such improvements
or 2% per annum above the prime rate or base rate or other comparable
reference rate of interest announced from time to time by Bank One,
N.A. or other bank designated by Landlord if Bank One is not at any
time announcing a prime rate or base rate or other comparable
reference rate (but in no event at a rate which is more than the
highest lawful rate allowable in the State of Illinois);"
7. Effective as of the Effective Date, Section 6 of the Lease (Services)
shall be and hereby is amended by deleting therefrom the last grammatical
sentence of subsection C in its entirety and by substituting in lieu thereof the
following:
"Notwithstanding the foregoing, in the event of any such interruption
in the furnishing of any of the foregoing services in accordance with
the standards and otherwise pursuant to this Section 6C which, (i) if
within the reasonable control of Landlord to prevent, continues beyond
twenty-four (24) hours after written notice to Landlord, or (ii) if
beyond the reasonable control of Landlord to prevent, continues beyond
three (3) consecutive business days after written notice to Landlord
and, in either case, materially and adversely affects Tenant's ability
to conduct its business in the Premises, or any portion thereof, and
on account thereof Tenant ceases doing business in the Premises, or
such portion thereof, Base Rent and Additional Rent pursuant to
Section 3 shall equitably xxxxx from and after the date of such
interference for so long as and to the extent Tenant's ability to
conduct its business in the Premises or such portion thereof is so
affected."
8. Effective as of the Effective Date, Section 16 of the Lease (Surrender
of Possession) shall be and hereby is amended by deleting therefrom the second
grammatical paragraph in its entirety and by substituting in lieu thereof the
following:
"Upon the expiration of the Term or upon the termination of Tenant's
right of possession, whether by lapse of time or at the option of Landlord
as herein provided, Tenant shall forthwith surrender the Premises to
Landlord in good order, repair and condition, ordinary wear and tear and
damage by fire or other casualty excepted; provided, however, that Tenant
shall not be required to remove those alterations, improvements and
additions to the Premises, including built-in furniture or shelves,
electrical or communication wiring, cable, or conduit, and all other
attached items installed by Tenant in the Premises prior to December 1,
2002 and otherwise approved by Landlord at the time of the approval of
plans therefor pursuant to Section 8 hereof; and provided further that with
respect to those alterations, improvements and additions to the
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Premises, including built-in furniture or shelves, electrical or
communication wiring, cable, or conduit, and all other attached items
installed on or after December 1, 2002, Tenant shall be required to remove
only such alterations, improvements or additions identified by Landlord for
removal at the time of Landlord's approval of the plans therefor. Tenant
shall repair any damage caused by the removal of any such alterations,
improvements or additions to the Premises. Prior to the termination of the
Term or of Tenant's right of possession Tenant shall remove its office
furniture, trade fixtures, office equipment and all other items of Tenant's
movable property on the Premises. Tenant shall pay to Landlord upon demand
the cost of repairing any damage to the Premises and to the Building caused
by any removal. If Tenant shall fail or refuse to remove any property which
it is required to remove from the Premises, Tenant shall be conclusively
presumed to have abandoned the same, and title thereto shall thereupon pass
to Landlord without any cost either by set-off, credit, allowance or
otherwise, and Landlord may at its option accept the title to such property
or at Tenant's expense may (i) remove the same or any part in any manner
that Landlord shall choose, repairing any damage to the Premises caused by
such removal, and (ii) store, destroy or otherwise dispose of the same
without incurring liability to Tenant or any other person."
9. Effective as of the Effective Date, Section 20 of the Lease (Certain
Rights Reserved by Landlord) shall be and hereby is amended by deleting the last
full grammatical sentence from subsection (iii) thereof in its entirety and by
substituting in lieu thereof the following:
"Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage or entry upon
the Premises and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof, including clean-up and
removing tools and equipment from the work site."
10. Effective as of the Effective Date, Section 25 of the Lease (Letter of
Credit) shall be and hereby is amended by deleting therefrom the second full
grammatical sentence in its entirety and by substituting in lieu thereof the
following:
"Provided Landlord has not theretofore drawn on the Letter of Credit
and provided Tenant is not then in default in the payment of Rent or
other sums due and owing to Landlord under this Lease (beyond the
expiration of any applicable cure period) or then in default under any
other material term, covenant or condition of this Lease (beyond the
expiration of any applicable cure period), the Letter of Credit shall
be reduced as follows: to sum of $1,542,857.00 on February
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28, 2002; to the sum of $1,322,449.00 on November 30, 2005; to the sum
of $1,102,041.00 on November 30, 2006; to the sum of $881,633.00 on
November 30, 2007; to the sum of $661,225.00 on November 30, 2008; to
the sum of $440,817.00 on November 30, 2009; to the sum of $220,409.00
on November 30, 2010; and to zero ($-0-) on November 30, 2011."
11. Effective as of the Effective Date, Section 31 of the Lease (Option to
Extend) shall be and hereby is amended by deleting therefrom Subsection A in its
entirety and by substituting in lieu thereof the following:
"A. Such option to extend shall be exercised by Tenant by giving
written notice to Landlord on or before but not later than November
30, 2011."
12. Effective as of the Effective Date, Section 32 of the Lease (Tenant's
Option to Terminate) shall be and hereby is amended by deleting it in its
entirety and by substituting in lieu thereof the following:
"32. TENANT'S OPTION TO TERMINATE.
Tenant shall have and is hereby granted the option to terminate
this Lease effective on April 30, 2009 (the "Early Termination Date")
by:
(i) Delivering written notice to Landlord of its exercise of
such termination option on or before April 30, 2008; and
(ii) Paying to Landlord a termination fee in the amount of
the sum of the monthly installment of Base Rent and Additional
Rent payable (or reasonably estimated by Landlord to be payable)
hereunder for the month of April, 2009, multiplied by twelve
(12). The termination fee shall be paid to Landlord as follows:
One half (1/2) concurrently with delivery of the notice described
in clause (i), and the remainder no later than the date which is
thirty (30) days prior to the Early Termination Date.
Tenant's exercise of the foregoing option to terminate this Lease
is further subject to the condition that Tenant is not in monetary
default or in default under any other material term, covenant or
condition of this Lease (in any event beyond the expiration of any
applicable cure period) at the time that Tenant notifies Landlord of
the exercise of this termination option or upon the effective date of
such option. Tenant shall deliver the Premises to Landlord on or
before the effective termination date in accordance with the terms and
conditions of this
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Lease, the same as if such termination date were the original
expiration date of the Term of this Lease."
13. Effective as of the Effective Date, the Lease is further amended by
adding thereto a new Section 33 (Right of First Refusal) as follows:
"33. RIGHT OF FIRST REFUSAL. In the event that during the initial
Term of this Lease (i.e., the period ending on November 30, 2012) any
space on the sixteenth (16th) through twenty-fourth (24th) floors of
the Building becomes available for leasing, and provided Landlord has
a bona fide prospective third party tenant (a "BFT") prepared to enter
into a lease of said space (as evidenced by one of the following: (i)
a letter of intent signed by the BFT under which a good faith lease
negotiation between Landlord and such BFT is about to begin; or (ii) a
written proposal to or from the BFT under which a good faith lease
negotiation between Landlord and such BFT is about to begin; or (iii)
if no such letter of intent or written proposal has been submitted by,
or to, a BFT, then the terms of the lease which have been negotiated
in good faith by Landlord and the BFT and which Landlord is prepared
to accept), Tenant shall have and is hereby granted the right to add
the space which is the subject of such letter of intent, proposal or
lease, as the case may be, to the Premises demised hereunder. Landlord
shall notify Tenant in writing of the availability of such space and
shall deliver to Tenant a copy of such letter of intent, proposal or
lease, as the case may be, signed by the BFT. Tenant shall have ten
(10) days from receipt of such notice from Landlord within which to
notify Landlord in writing of Tenant's acceptance of such offer to add
such space to the Premises on the same economic terms and conditions
(i.e., rent, rent escalation, concessions and proportionate share) as
set forth in such letter of intent, proposal or lease and otherwise on
the same terms and conditions as set forth in this Lease (as it is now
or may hereafter be amended, including but not limited to any options
to extend the Term, termination rights and this right of first
refusal), except that any space so added to the Premises shall be
coterminous with the Term of this Lease, with a pro rata adjustment of
any concessions contained in such letter of intent, proposal or lease.
In the event Tenant does not so notify Landlord of Tenant's acceptance
of such offer within said ten (10) day period or thereafter does not
promptly enter into a lease amendment which adds such space to the
Premises on the terms set forth above, Landlord may thereafter lease
such space to the BFT and Tenant shall have no further right or
interest in such space during the term of such lease with the BFT;
provided, however, that if during the negotiations between Landlord
and the BFT, the economic terms of the proposed transaction with the
BFT improve (from a tenant's standpoint) by fifteen percent (15%) or
more, then Landlord must notify Tenant of such improved terms and
Tenant's right of first refusal set forth in this Section 33 shall
again apply, except that Tenant shall have three (3) business days
from receipt of notice from Landlord within which to notify Landlord
in writing of Tenant's acceptance of such offer to add such space to
the
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Premises on such improved economic terms and otherwise as set forth in
this Section 33.
Tenant's first refusal rights set forth in this Section 33 are
expressly subject and subordinate to the rights of any third parties
existing as of December 1, 2002, to lease any space on the sixteenth
(16th) through twenty-fourth (24th) floors of the Building, whether
pursuant to options to extend or expand, rights of first offer or
first refusal, or otherwise, and Landlord represents to Tenant that
Exhibit C attached to the Second Lease Amendment dated as of December
1, 2002 between Landlord and Tenant, describes such parties and such
prior rights. It shall be a condition of Tenant's right to exercise an
option to add space under this Section 33 that Tenant not be in
monetary default or in default under any other material term, covenant
or condition of this Lease (in any event beyond the expiration of any
applicable cure period) at the time it notifies Landlord of the
exercise of such option to add such space to the Premises or upon the
effective date of such option. The right of first refusal contained in
this Section 33 is personal to Orbitz, LLC and to those successors of
Orbitz, LLC to whom this Lease is assigned pursuant to Section 15.H
hereof and may not be exercised by or for the benefit of any other
party. This Section 33 shall be deemed deleted from the Lease and
shall be of no further force and effect as of December 1, 2012."
14. On or before October 1, 2003, Landlord shall, at its sole cost and
expense (but subject to inclusion in Operating Expenses to the extent provided
in Section 3 of the Lease), cause the elevator lobby on the sixteenth (16th)
floor of the Building to be improved to a building-standard condition and in any
event to a condition consistent with the elevator lobby on other multi-tenant
floors in the Building (the "Permanent Elevator Lobby Work"). Once Landlord
commences the Permanent Elevator Lobby Work, Landlord shall substantially
complete the Permanent Elevator Lobby Work within sixty (60) days thereafter
(subject to extension on a day-for-day basis for delays beyond the reasonable
control of Landlord). During the period when the Permanent Elevator Lobby Work
is in progress, Landlord may, following five (5) business days notice to Tenant,
close access to the sixteenth (16th) floor elevator lobby on a temporary basis
for such period of time as may reasonably be necessary for the Permanent
Elevator Lobby Work to be performed. At all times during the Term of the Lease
(except when
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the sixteenth (16th) floor elevator lobby is closed to permit the Permanent
Elevator Lobby Work to be performed, and except in an emergency) Landlord shall
provide Tenant with full and unimpeded access to and the nonexclusive right to
use, in common with Landlord, other tenants of the Building and their respective
employees, agents and invitees, the sixteenth (16th) floor elevator lobby as a
transfer/access floor between the Existing Premises and the Expansion Space,
notwithstanding that the entirety of the sixteenth (16th) floor of the Building
is or may be leased to a single tenant.
15. Promptly upon full execution and delivery of this Amendment by
Landlord and Tenant, Landlord shall execute and deliver to Tenant a xxxx of sale
(with a warranty as to ownership only), transferring to Tenant ownership of the
furniture (e.g., desks, chairs, tables, cubicles, etc.) existing in the
Expansion Space as of December 1, 2002.
16. Tenant represents and warrants to Landlord that neither Tenant nor
Tenant's officers nor agents nor anyone acting on Tenant's behalf has dealt with
any real estate broker other than The Xxxx Xxxx Company and Insignia/ESG, Inc.
in the negotiation or making of this Second Lease Amendment, and Tenant agrees
to indemnify and hold harmless Landlord from the claim or claims of any other
broker or brokers claiming to have caused Tenant to enter into this Second Lease
Amendment.
17. Except as expressly modified and amended hereby, all of the terms,
covenants and conditions of the Lease are hereby ratified and confirmed.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument as of
the day and year first above written.
LANDLORD:
000 XXXXX XXXXXX XXXXX, X.X.X.
By: The Equitable Life Assurance
Society of the United States, a
New York corporation, solely on
behalf and for the benefit of
its Separate Account 8, known as
the "Prime Property Fund"
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Its: Investment Officer
TENANT:
ORBITZ, LLC, a Delaware limited
ATTEST: liability company
By: By: /s/ X.X. Xxxx
-------------------------------- --------------------------------
Name: Name: Xxxxxxx X. Xxxx
-------------------------------- --------------------------------
Its: Its: Chairman, President and CEO
-------------------------------- --------------------------------
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XXXXXXX X-0
EXPANSION SPACE
[GRAPHIC]
A-1-1
EXHIBIT B
SCHEDULE OF BASE RENT
RENTABLE AREA: 66,663 SQUARE FEET
Period Rate Per Sq. Ft. Annual Base Rent Monthly Installment
--------------------------------------------------------------------------------------------------
December 1, 2002 -
November 30, 2003 $ 17.00 $ 1,133,271.00 $ 94,439.25
December 1, 2003 -
November 30, 2004 $ 17.51 $ 1,167,269.13 $ 97,272.43
December 1, 2004 -
November 30, 2005 $ 18.04 $ 1,202,600.52 $ 100,216.71
December 1, 2005 -
November 30, 2006 $ 18.58 $ 1,238,598.54 $ 103,216.55
December 1, 2006 -
November 30, 2007 $ 19.14 $ 1,275,929.82 $ 106,327.49
December 1, 2007 -
November 30, 2008 $ 19.71 $ 1,313,927.73 $ 109,493.98
December 1, 2008 -
November 30, 2009 $ 20.30 $ 1,353,258.90 $ 112,771.58
December 1, 2009 -
November 30, 2010 $ 20.91 $ 1,393,923.33 $ 116,160.28
December 1, 2010 -
November 30, 2011 $ 21.54 $ 1,435,921.02 $ 119,660.09
December 1, 2011 -
November 30, 2012 $ 22.19 $ 1,479,251.97 $ 123,271.00
B-1
EXHIBIT C
RIGHTS PRIOR TO ARTICLE 33 FIRST REFUSAL
20th and 21st floors: Lincoln Capital renewal option, effective 12/1/06
23rd floor: Archelon first refusal and first offer rights; also renewal option,
effective 2/1/11
24th floor: Archelon renewal option, effective 2/1/11
C-1
