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Exhibit
10.36
LEASE
AGREEMENT
This Lease Agreement made and
entered into in duplicate on the 1st day of December, 1999, by and
between MICHAEL W. BARKER, and DENVER D. HORN, hereinafter
collectively called “Lessor” and WORLDTRAVEL
TECHNOLOGIES, LLC d.b.a. OFS ONLINE FULFILLMENT SERVICES
hereinafter called “Lessee”.
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual covenants herein
contained in this Lease Agreement, the parties agree as
follows:
1. SUBJECT AND PURPOSE : Lessor
leases 3210 Dudley Avenue, Suite F in the City of Parkersburg, Wood
County, West Virginia, unto Lessee. The property leased consists of
9000 square feet and 60 parking spaces Improvements to be made to
the premises by Lessor for Lessee will be shown upon an attached
diagram with a description of all work upon the premises to be
performed by Lessor but said improvements shall include at a
minimum paving for the parking areas, a dryvit exterior finish, a
balloon type or styled awning at the rear entry of the building,
the erection of a protection fence to block the view of the
building to the South, and to finish the interior as designated on
the attached diagram. HVAC specifications are to be shown upon the
attached diagram. (If no diagram is attached to this lease and
initialed then it shall be presumed that Lessee accepts the
premises as is upon taking possession.) The parties had entered
into a prior lease dated March 13, 1998 and this lease is to
replace the prior lease where now the Lessee is taking more rental
space. The rent which Lessee is to pay shall be based upon the
prior lease through September 1999 and thereafter said prior lease
shall be considered null and void on
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condition that this lease is fully
executed and signature acknowledge. Notwithstanding anything to the
contrary contained herein, as of the Commencement Date, Lessor
hereby represents and warrants that the HVAC, electrical and
plumbing systems of the Premises are or will be in good working
order and repair and that all work within the Premises comply or
will comply with state and federal laws including ADA.
2. TERMS AND RENT : The Lessor
does demise the above described premises for an initial term of
five years (5) years, commencing on the first day of October, 1999,
and terminating on the last day of September, 2004, or sooner as
provided in this Lease Agreement. Lessee shall have the option to
exercise two additional one year lease extensions with written
notice to Lessor within sixty days of the end of the initial five
year term and for each successive one year option. The beginning
initial annual rent shall be $63,063.00, payable in equal
installments of $5,255.25 per month no later than the 5
th day of each month hereafter in advance of the
month wherein this Lease remains in effect. The initial rent shall
be increased thereafter and continue to be paid monthly as
aforesaid at the increased amount as follows: The annual rent for
October 1, 2000 through September 30, 2001 shall be $64,324.26, the
next year $65,610.74, the next year $66,922.96, the next year
$68,261.40 and the next year $69,626.63 if the option to renew is
exercised and the final year $71,019.16 if the option to renew is
exercised. Each time the lease is renewed, it shall be upon the
same terms and continue with the same provisions as herein set
forth. Any carry over where Lessee remains in possession shall be
upon the terms of this lease. During the term of this lease, Lessee
shall have the right of first refusal to lease any of the
remaining
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floor space in the remainder of the
building for an amount to be determined when and if the space
becomes available subject to terms to be agreed upon by Lessor and
Lessee. To exercise the right, Lessee, once notified in writing of
the right of refusal must in writing advise Lessor within fifteen
(15) days of its intent to exercise the right.
3. ADDITIONAL RENT : In addition
to the rent set forth in Paragraph 2 hereof, the Lessee shall pay
Eight Dollars ($8.00) in additional rent per day for each day that
the rent payment is late or overdue after the 5th of each month as
required to be paid under Paragraph 2 and all other reasonable
costs or expenses which the Lessee assumes or agrees to pay under
this Lease, and all other direct damages, reasonable costs,
expenses and sums that Lessor may suffer or incur, or that may
become due, by reason of any default of Lessee or failure by Lessee
to comply with the terms and conditions of this Lease Agreement.
All these items shall be deemed to be additional rent, and, in the
event of nonpayment, Lessor shall have all the rights and remedies
as provided in this Lease Agreement for failure to pay
rent.
4. ALTERATIONS, ADDITIONS, AND
IMPROVEMENTS :
A. Subject to the limitations
that no substantial portion of the building on the demised premises
shall be demolished or removed by Lessee without the prior,
express, and written consent of the Lessor, (which consent shall
not be unreasonably withheld or delayed) and, if necessary, of any
mortgagee, Lessee may at any time during the lease term, subject to
the conditions set forth below and at its own expense, make any
alterations, additions, or improvements in and to the demised
premises and the building. Alterations shall be
performed
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in a satisfactory manner and shall not
weaken or impair the structural strength, or lessen the value of
the building on the demised premises, or change the purposes for
which the building, or any part of the building, may be
used.
B. Conditions with respect to
alterations, additions, or improvements are as follows: Before
commencement of any work, all plans and specifications shall be
filed with and approved by all governmental departments or
authorities having jurisdiction and any public utility company
having an interest in such matters, and all work shall be done in
accordance with the requirements of local regulations.
C. All alterations,
additions, and improvements on or in the demised premises at the
commencement of the term, and which may be erected or installed
during the term, shall become part of the demised premises and
become the sole property of Lessor, except that all movable trade
fixtures or signs installed by the Lessee shall be and remain the
property of Lessee.
D. At the onset of this lease
and during the course of this lease, Lessee shall have the right to
erect signs for its business upon the condition that such signs
meet the standards and are approved by and are consistent with
applicable City of Parkersburg Zoning ordinances.
5. REPAIRS : Lessee shall, at all
times during the term of this Lease Agreement and at its or its
cost and expense, repair, replace, and maintain in a good, safe,
and substantial condition, all buildings and any improvements (to
include additions and alterations made by Lessee under Paragraph 4
hereof) to such buildings, on the demised premises
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with the exception of the roof and
structure which shall be maintained by the Lessor. Lessee shall use
all reasonable precaution to prevent waste, damage, or injury to
the demised premises.
6. REAL ESTATE TAXES : Lessor
shall pay the real estate taxes upon the premises.
7. UTILITIES : Lessee shall pay
all charges for sewer, water, gas, electricity, and garbage pick-up
used upon the premises. Lessee shall pay for any telephone or other
utility service.
8. INSURANCE : Lessor shall be
responsible to maintain a casualty policy of insurance upon the
premises to insure itself and any lender as a loss payee. Lessor
shall have no obligation to insure the Lessee for any loss. This
clause shall not be a waiver of Lessee should it make a claim upon
Lessor for loss to Lessee which Lessee may claim was caused by
Lessor’s negligence or intentional act. Lessee shall be
required to maintain an adequate policy for contents coverage which
equals the value of the contents located by the Lessee upon the
premises from time to time. The Lessee shall also have insurance
against liability for bodily injury and property damage, etc., in
an amount of not less than One Million Dollars ($1,000,000). Upon
receipt of a written request, Lessee shall provide Lessor with a
copy of the policy for contents and liability insurance.
9. UNLAWFUL OR DANGEROUS ACTIVITY
: Lessee shall neither use nor occupy the demised premises or any
part of the demised premises for any unlawful, disreputable, or
ultrahazardous business purposes nor operate or conduct its
business in a manner constituting a nuisance of any kind. Lessee
shall immediately, on discovery of any unlawful, disreputable, or
ultrahazardous use, take action to halt such activity.
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10. INDEMNITY : Lessee shall
indemnify Lessor against any and all expenses, liabilities, and
claims of every kind, including reasonable counsel fees, by or on
behalf of any person or entity arising out of either (1) failure by
Lessee to perform any of the terms or conditions of this Lease
Agreement, (2) any injury or damage happening on or about the
demised premises, (3) failure to comply with any law of any
governmental authority, or (4) any mechanic’s lien or
security interest filed against the demised premises or equipment
materials, or alterations of buildings or improvements on the
demised premises.
11. DEFAULT OR BREACH : Each of
the following events shall constitute a default or breach of this
Lease Agreement by Lessee:
A. If Lessee, or any
successor or assignee of Lessee while in possession, shall file a
petition in bankruptcy or insolvency or for reorganization under
the bankruptcy act, or shall voluntarily take advantage of any such
act by answer or otherwise, or shall make an assignment for the
benefit of creditors.
B. If involuntary proceedings
under any bankruptcy law or insolvency act shall be instituted
against Lessee, or if a receiver or trustee shall be appointed of
all or substantially all of the property of Lessee, and such
proceedings shall not be dismissed or the receivership or
trusteeship vacated within thirty (30) days after the institution
or appointment.
C. If Lessee shall fail to
pay Lessor any rent or additional rent when the rent shall become
due and shall not make the payment within thirty (30) days after
notice thereof by Lessor to Lessee.
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D. If Lessee shall fail to
perform or comply with any of the conditions of this Lease
Agreement and if the nonperformance shall continue for a period of
thirty (30) days after notice of nonperformance given by Lessors to
Lessee or, if the performance cannot be reasonably had within the
thirty-day period, Lessee shall not in good faith have commenced
performance within the thirty-day period and shall not diligently
proceed to completion of performance.
E. If Lessee shall vacate or
abandon the demised premises for more than five (5) business days
without the prior written consent of Lessors.
F. If this Lease Agreement or
the estate of Lessee under this Lease Agreement shall be
transferred to or shall pass to or devolve on any other person or
party, except in the manner permitted in this Lease
Agreement.
G. If Lessee fails to take
possession of the demised premises on the term commencement date,
or within thirty (30) days after notice that the demised premises
are available for occupancy, if the term commencement date is not
fixed in this Lease Agreement or shall be deferred as provided in
this Lease Agreement.
12. EFFECT OF DEFAULT : In the
event of any material default under this Lease Agreement, as set
forth in Section Eleven, the rights of Lessor shall be as
follows:
A. Lessor shall have the
right to cancel and terminate this Lease Agreement as well as all
of the right, title, and interest of Lessee under this Lease
Agreement, by giving to Lessee not less than thirty (30) days
notice of the cancellation right to cure and termination. On
expiration of the time fixed in the notice, this Lease
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Agreement and the right, title, and
interest of Lessee under this Lease Agreement, shall terminate in
the same manner and with the same force and effect, except as to
Lessee’s liability, as if the date fixed in the notice of
cancellation and termination were the end of the term originally
set forth in this Lease Agreement.
B. Lessor may elect, but
shall not be obligated, to make any payment required of Lessee in
this Lease Agreement or comply with any agreement, term, or
condition required by this Lease Agreement to be performed by
Lessee. Lessor shall have the right to enter the demised premises
for the purpose of correcting or remedying any such default and to
remain until the default has been corrected or remedied, but any
expenditure for the correction by Lessor shall not be deemed to
waive or release the default of Lessee or the right of Lessor to
take any action as may be otherwise permissible under this Lease
Agreement in the case of any material default.
C. Lessor may re-enter the
demised premises immediately and remove the property and personnel
of Lessee, and store the property in a public warehouse or at a
place selected by
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