1
EXHIBIT 10.11
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"),made as of the 9th day of April, 1999,
by and between IRET PROPERTIES, a North Dakota limited partnership (hereinafter
called "Landlord") and AMERITRADE HOLDING CORPORATION, a Delaware corporation
(hereinafter called "Tenant");
ARTICLE I. - BASIC TERMS
1.01 Basic Terms
(A) Address of Landlord: IRET Properties
00 Xxxxx Xxxx
Xxxxx, Xxxxx Xxxxxx 00000
or such other address as may from time to time be designated by Landlord in
writing.
(B) Address of Tenant: Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
or such other address as may from time to time be designated by Tenant in
writing.
(C) Premises: The real property which is legally described on Exhibit "A"
attached hereto, together with Building thereon.
(D) Building: The building now located on the Premises.
(E) Lease Term: The period of time commencing on the date hereof (the
"Commencement Date") and expiring on April 30, 2019 (the "Lease Term").
"Lease Year" shall be any twelve month period commencing on May 1, 1999 or
any anniversary thereof and ending on April 30 of the next succeeding year
thereafter.
(F) Rent: All sums, moneys or payments required to be paid by Tenant to
Landlord pursuant to this Lease are collectively referred to herein as
"Rent". All sums, moneys or payments required to be paid by Tenant to
Landlord other than Base Rent are sometimes herein referred to as
"Additional Rent."
(G) Base Rent: The Base Rent during the Lease Term shall be the annual
rental as provided in the Rent Schedule set forth on Exhibit "B" attached
hereto and incorporated herein by this reference, which such amount is
payable in equal monthly installments.
2
(H) Permitted Uses: For the purpose of an office building and other lawful
purposes.
(I) Exhibits: A. Legal Description of Premises
B. Rent Schedule
1.02 Effect of Reference to Basic Terms: Each reference in this Lease to any of
the Basic Terms contained in Section 1.01 shall be construed to incorporate into
such reference all of the definitions set forth in Section 1.01.
ARTICLE II. - GRANT AND LEASE TERM
2.01 Grant. In consideration of the rents, covenants, agreements and conditions
hereinafter provided to be paid, kept, performed and observed, Landlord hereby
leases to Tenant and Tenant hereby hires from Landlord the Premises described
in Section 1.01(C).
2.02 Lease Term. Tenant shall have and hold the Premises for and during the
Lease Term described in Section 1.01(E), subject to the payment of the Rent and
to the full and timely performance by Tenant of the covenants and conditions
hereinafter set forth.
ARTICLE III. - RENT
3.01 Base Rent. Except as otherwise provided in this Lease, Tenant covenants to
pay to Landlord without notice, deduction, set-off or abatement the Base Rent in
lawful money of the United States in advance on the first day of each month
during the Lease Term. Rent for any partial month shall be prorated on a per
diem basis, it being acknowledged by Landlord that Tenant has paid Rent for the
month of April, 1999. Rent shall be payable to Landlord at Landlord's address
shown at Section 1.01(A) above or such other place as Landlord may designate
from time to time in writing.
3.02 Real Estate Taxes. During the Lease Term, including any extensions or
holding over, Landlord shall pay the amount of all Real Estate Taxes when due.
"Real Estate Taxes" shall mean: (a) all ad valorem real estate taxes,
assessments, levies, impositions or charges on the Premises (adjusted after
protest or litigation, if any) for any part of the Term, exclusive of
penalties, (b) any taxes which shall be levied in lieu of any such ad valorem
real estate taxes, (c) any special assessments for benefits on or to the
Premises in annual installments by Landlord, (d) occupational taxes or
excise taxes levied on rentals derived from the operation of the Premises or
the privilege of leasing property, and (e) the expense of protesting,
negotiating or contesting the amount or validity of any such taxes, charges or
assessments, such expense to be allocable to the period of the item contested,
protested or negotiated only if there is a reduction. The provisions of this
Section 3.02 are subject to the provisions of Sections 23.01 and 23.02.
2
3
3.03 PAYMENT OF ADDITIONAL RENT. Any Additional Rent payable by Tenant under
this Lease shall be due and payable thirty (30) days after billing by Landlord.
3.04 SERVICE CHARGE. Tenant's failure to make any monetary payment required of
Tenant hereunder within fifteen (15) days of the due date therefor shall result
in the imposition of a service charge for such late payment in the amount of
five percent (5%) of the amount due. In addition, any sum not paid within thirty
(30) days of the due date therefor shall bear interest at an annual rate equal
to the lesser of (i) two percentage points above the reference rate published
from time to time by U.S. Bancorp (or its successors), or if U.S. Bancorp (or
its successors) discontinues publishing such a rate, two percentage points in
excess of the published prime rate or other equivalent reference rate of
interest of a major commercial bank reasonably designated by Landlord, or (ii)
the maximum contract interest rate permitted by applicable law (the "Interest
Rate").
ARTICLE IV. - USE: HAZARDOUS MATERIALS
4.01 HAZARDOUS MATERIALS.
(A) The following terms used in this Section are defined as follows:
(1) "Environmental Laws" means any and all federal, state and local
laws, regulations, ordinances, codes, standards or criteria, orders or
decrees of any jurisdiction where the Premises are located pertaining
to the pollution of or protection of the environment as now or at any
time hereafter in effect including but not limited to those related to
the air, water, noise, odor, pesticides, land, soil, hazardous or
toxic substances and wastes and specifically including, but not
limited to, the Comprehensive Environmental Response and Liability Act
("CERCLA"), as amended by Superfund Amendments and Reauthorization Act
of 1986 ("XXXX"), 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, ("RCRA"), 42 U.S.C. Section 6901 et
seq., Clean Air Act, 42 U.S.C. Section 7401 et. seq., as amended,
Clean Water Act, 33 U.S.C. Section 1251 et. seq., and the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., as all of the
same are amended from time to time.
(2) "Regulated Substances" means any toxic, radioactive or hazardous
substance or waste, pollutant or contaminant including but not limited
to asbestos, urea formaldehyde, the group of organic compounds known
as polychlorinated biphenyls, petroleum products including gasoline,
fuel oil, crude oil and the various constituents of such products, and
any substance or material whose generation, storage, treatment,
handling, release or disposal is regulated by Environmental Laws.
3
4
(B) Tenant will comply with all Environmental Laws. If any Regulated
Substance is now on the Premises or is brought or caused to be brought into
or onto the Premises during the Term, Tenant shall handle any such
substances in compliance with Environmental Laws. Tenant shall submit to
Landlord, if requested, copies of its approved hazardous materials
communication plan, OSHA monitoring plan, and any permits required by
Environmental Laws, if Tenant is required to prepare, file or obtain any
such plans or permits. Tenant will defend, indemnify and hold Landlord its
directors, officers, employees, agents, successors and assigns,
(hereinafter collectively referred to as the "Indemnitees") harmless from
any losses, liabilities, damages, costs, or expenses (including reasonable
attorneys' fees) which Landlord may suffer or incur as a result of the
presence or introduction into or onto the Premises of any Regulated
Substance or as a result of the violation of any Environmental Laws during
the Term by Tenant or any agent, assignee, subtenant or invitee of Tenant.
This Section shall survive the expiration or sooner termination of this
Lease.
ARTICLE V. - LAWS AND ORDINANCES
5.01 Compliance With Laws and Ordinances. Tenant covenants throughout the Lease
Term, at Tenant's sole cost and expense, to comply with all laws (including
without limitation the provisions of Title III of the Americans with
Disabilities Act of 1990 and the rules promulgated thereunder) and ordinances
an the orders, rules and regulations and requirements of all federal, state and
municipal governments and appropriate departments, commissions, boards, and
officers thereof, and the orders, rules and regulations of the Board of Fire
Underwriters where the Premises are situated, or any other body now or
hereafter constituted exercising similar functions, foreseen or unforeseen,
ordinary as well as extraordinary, and whether or not the same require
structural repairs or alterations, which may be applicable to the Premises, or
the use or manner of use of the Premises. Tenant will also observe and comply
with the requirements of all policies of commercial liability, property and
other insurance at any time in force with respect to the buildings and
improvements on the Premises and the equipment therein.
5.02 Tenants Right to Contest. Tenant shall have the right to contest by
appropriate legal proceedings without cost or expense to Landlord, the validity
of any law, ordinance, order, rule, regulation or requirement of the nature
herein referred to, and if, by the terms of any such law, ordinance, order,
rule, regulation or requirement, compliance therewith may legally be held in
abeyance without subjecting Tenant or Landlord to any liability for failure so
to comply therewith, Tenant may postpone compliance therewith until the final
determination of any such proceedings, provided that all such proceedings shall
be prosecuted with all due diligence and dispatch.
5.03 Licenses and Permits. During the Lease Term, Tenant shall obtain any
necessary licenses or permits(including any requisite certificate of
occupancy)to conduct or operate its business in and upon the Premises which are
required by any applicable governmental body or agency having
4
5
jurisdiction over the Premises and shall pay the fee or charge imposed for
issuance of such license or permit. Tenant shall renew any such licenses or
permits in accordance with the rules, codes, statutes or ordinances requiring
such licenses or permits. Tenant covenants during the Lease Term to conduct or
operate only the business for which it is licensed and in the event of a change
in the nature of its business or operation to obtain any necessary new or
additional licenses or permits. Tenant shall at its sole cost and expense comply
with all requirements and perform all necessary actions required under such
rules, codes, statutes or ordinances for the issuance of such permits or
licenses.
ARTICLE VI. - UTILITIES AND SERVICES
6.01 Landlord's Responsibility. Landlord shall timely pay for all charges for
electricity, gas, water, fuel, sewer charges, telephone, fire and security alarm
systems, trash hauling, snow removal, landscaping and lawn care, and any other
services or utilities used in, servicing or assessed against the Premises,
unless otherwise herein expressly provided, and to indemnify, defend and hold
Tenant harmless against any liability or damages on such account. The provisions
of this Section 6.01 are subject to the provisions of Sections 23.01 and 23.02.
If Tenant shall opt to perform these obligations under Section 23.01, Tenant may
contract in its own name for such purposes.
ARTICLE VII. - QUIET ENJOYMENT
7.01 Quiet Enjoyment. Landlord covenants that Tenant, on paying the Rents herein
provided and keeping, performing and observing the covenants, agreements and
conditions herein imposed on Tenant, shall peaceably and quietly hold and enjoy
the Premises for the term aforesaid, subject, however, to the terms of this
Lease.
ARTICLE VIII. - ASSIGNMENT AND SUBLETTING
8.01 General Prohibition. Except as specifically provided in this Article VIII,
Tenant shall not assign this Lease or sublet all or any part of the Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Notwithstanding any assignment or
subletting and except as otherwise provided below, Tenant shall remain
fully-liable on this Lease and shall not be released from performing any of the
terms, covenants and conditions hereof.
8.02 Sale of Business. Notwithstanding the provisions of Section 8.01, Landlord
agrees that no consent shall be required to an assignment of this Lease to any
person or entity which purchases substantially all of Tenant's assets provided
that:
5
6
(A) Tenant shall remain fully liable on this Lease and shall not be
released from performing any of the terms, covenants and conditions hereof,
unless the assignee has a net worth at least equal to the net worth of
Tenant immediately prior to the effective date of such assignment; and
(B) Landlord shall promptly be notified of such assignment and the
assignee shall assume in writing all of the obligations of Tenant arising
after the effective date of such assignment.
8.03 Affiliate Transfers. Notwithstanding the provisions of Section 8.01,
Landlord agrees that no consent shall be required for Tenant to assign this
Lease or sublet all or any portion of the Premises to an affiliate or
subsidiary of Tenant, provided, however, that Ameritrade Holding Corporation
shall remain fully liable on this Lease and shall not be released from
performing any of the terms, covenants and conditions hereof.
ARTICLE IX - DAMAGE OR DESTRUCTION
9.01 Landlord. If the Premises or the Building or any part thereof is damaged
by fire or other casualty, cause or condition (an "Occurrence"), Landlord, at
its sole expenses, shall restore the Premises or the Building, as the case may
be, to substantially the same condition as before the Occurrence, provided,
however, (i) Landlord shall not be required to spend more than the insurance
proceeds received for such purpose, and (ii) if the Occurrence occurs within
the last five (5) years of the Lease Term and renders the Premises or Building
substantially untenantable, Landlord may, by written notice to Tenant given
within sixty (60) days after the Occurrence, elect not to restore same and
terminate this Lease as of the date of the Occurrence.
9.02 Termination by Tenant. If as a result of fire or other casualty, cause or
condition whatsoever the Premises are made partially or wholly untenantable,
Tenant shall have the right to terminate this Lease within ninety (90) days
after the Occurrence unless Landlord's contractor estimates in writing that the
Premises can reasonably be expected to be restored within one hundred eighty
(180) days after the Occurrence. If (i) Landlord does not terminate this Lease
pursuant to Section 9.01, (ii) Tenant does not terminate this Lease pursuant to
the immediately preceding sentence, and (iii) Landlord fails within one hundred
eighty (180) days after the Occurrence to the eliminate substantial
interference with Tenant's use of the Premises or substantially to restore the
same, then Tenant may terminate this Lease by giving written notice to Landlord
within thirty (30) days after the expiration of such one hundred eighty (180)
day period, unless Landlord is then pursuing such restoration with reasonable
diligence (having due regard for, and subject always to, reasonable delay
caused by adjustment of insurance loss, strikes, labor difficulties or any
cause beyond Landlord's reasonable control, i.e. force majeure). If despite
Landlord's reasonable diligence, Landlord fails to eliminate substantial
interference with Tenant's use of the Premises or substantially
6
7
to restore the same within two hundred seventy (270) days after the Occurrence,
Tenant may terminate this Lease as of the end of said two hundred seventy (270)
day period by giving notice to Landlord not later than thirty (30) days after
the expiration of said two hundred seventy (270) day period. In any event,
Tenant shall be responsible for the removal, or restoration, when applicable,
of all its damaged property and debris from the Premises, upon request by
Landlord or reimburse Landlord for the cost of removal.
9.03 Restoration by Landlord. If this Lease is not terminated as provided in
either Section 9.01 or 9.02, and if the Premises are made partially or wholly
untenantable, Landlord shall restore the same with reasonable promptness to the
condition in which they were in immediately prior to the Occurrence at
Landlord's expense without any reimbursement by Tenant. Landlord shall be under
no obligation to restore any alterations, improvements or additions to the
Premises made by Tenant or paid for by Tenant after the commencement of the
Lease Term, including, but not limited to, any subsequent changes, alterations
or additions made by Tenant.
9.04 Rent Abatement. If, as a result of fire or other casualty, cause or
condition whatsoever the Premises are made partially untenantable and, if this
Lease has not been terminated as above provided, all Rent shall xxxxx from the
date of the fire or other relevant cause or condition until the Premises are
ready for occupancy and reasonably accessible to Tenant. If a portion of the
Premises is untenantable, rent shall be prorated on a per diem basis and
apportioned in accordance with the portion of the Premises which is usable by
the Tenant until the damaged part is ready for the Tenant's occupancy.
ARTICLE X - LANDLORD'S RIGHTS
10.01 Landlord Reserves the Following Rights.
(A) To exhibit the Premises to others after notice to Tenant (which notice
need not be in writing) at any reasonable time so long as Landlord does
not disrupt Tenant's operations and to display "For Lease" signs on the
Premises during the last six (6) months of the Lease Term; and
(B) To take any and all reasonable measures, including making
inspections, repairs, alterations, additions and improvements to the
Premises or to the Building as may be necessary or desirable for the
operation, safety, protection or preservation of the Premises or the
Building or of Landlord's interest therein.
Landlord may enter upon the Premises at any reasonable time after giving
reasonable notice to Tenant (except in the case of an emergency) and, if
requested by Tenant, accompanied by
7
8
representative of Tenant for the purpose of exercising any or all of the
foregoing rights hereby reserved without being deemed guilty of an eviction or
disturbance of Tenant's use or possession and without being liable in any
manner to Tenant.
ARTICLE XI - HOLDING OVER
11.01 In the event of a holding over by Tenant after expiration or termination
of this Lease without the consent in writing of Landlord, Tenant shall be
deemed a tenant at sufferance and shall pay rent for such occupancy at the rate
of 110% of the last-current Base Rent, prorated for the entire holdover
period, plus reasonable attorneys' fees and reasonable out-of-pocket expenses
incurred by Landlord in enforcing its rights hereunder, plus any other damages
occasioned by such holding over. Except as otherwise agreed, any holding over
with the written consent of Landlord shall constitute Tenant a month-to-month
tenant.
ARTICLE XII - SIGNS AND ADVERTISEMENTS
12.01 Tenant shall be permitted to place upon the Premises or the Building any
signs, billboards or advertisements it deems appropriate, provided, however,
such signs, billboards or advertisements comply with all applicable laws,
ordinances, regulations and restrictions of record.
ARTICLE XIII - MORTGAGE AND TRANSFER; ESTOPPEL CERTIFICATES
13.01 Landlord shall have the right to transfer, mortgage, pledge or otherwise
encumber, assign and convey, in whole or in part, the Premises, the Building,
this Lease, and all or any part of the rights now or hereafter existing and all
Rent payable to Landlord under provisions hereof.
13.02 Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (i) that none of the terms
or provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been canceled
or terminated, (iii) the last date of payment of the Base Rate and other charges
and the time period covered by such payment; (iv) that to the best of Tenant's
knowledge, Landlord is not in default under this Lease (or, if Landlord is
claimed to be in default, stating why), and (v) such other matters as may be
reasonably required by Landlord or the holder of a mortgage, deed of trust or
lien to which the Premises is or becomes subject. Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request. Any such
statement by Tenant may be given by Landlord to any prospective purchaser or
encumbrancer of the Premises. Such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct. If Tenant does not deliver
such statement to Landlord with such ten (10) day period, Landlord, and any
prospective purchaser or encumbrancer, may conclusively presume and rely upon
the following facts: (i) that the
8
9
terms and provisions of this Lease have not been changed except as otherwise
represented by Landlord, notice of which shall be provided to Tenant in
Landlord's written request made to Tenant hereunder; (ii) that this Lease has
not been canceled or terminated except as otherwise represented by Landlord,
notice of which shall be provided to Tenant in Landlord's written request made
to Tenant hereunder; (iii) that not more than one month's Base Rent or other
charges have been paid in advance; and (iv) that Landlord is not in default
under the Lease. In such event, Tenant shall be estopped from denying the truth
of such facts.
13.03 Upon Tenant's written request, Landlord shall execute, acknowledge and
deliver to Tenant a written statement certifying: (i) that none of the terms or
provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been canceled
or terminated; (iii) the last date of payment of the Base Rent and other charges
and the time period covered by such payment; (iv) that to the best of Landlord's
knowledge, Tenant is not in default under this Lease (or, if Tenant is claimed
to be in default, stating why); and (v) such other matters as may be reasonably
required by Tenant or any party who desires to acquire Tenant or substantially
all of the assets of Tenant or any party that has been asked to extend financial
accommodations for the benefit of Tenant. Any such statement by Landlord may be
given by Tenant to any such prospective purchaser or lender. Such purchaser or
lender may rely conclusively upon such statement as true and correct. If
Landlord does not deliver such statement to Tenant within such ten (10) day
period, Tenant, and any such prospective purchaser or lender, may conclusively
presume and rely upon the following facts; (i) that the terms and provisions of
this Lease have not been changed except as otherwise represented by Tenant,
notice of which shall be provided to Tenant in Landlord's written request made
to Tenant hereunder; (ii) that this Lease has not been canceled or terminated
except as otherwise represented by Tenant, notice of which shall be provided to
Tenant in Landlord's written request made to Tenant hereunder; (iii) that not
more than one month's Base Rent or other charges have been paid in advance; and
(iv) that Tenant is not in default under this Lease. In such event, Landlord
shall be estopped from denying the truth of such facts.
ARTICLE XIV - EMINENT DOMAIN
14.01 If the Premises or such substantial part thereof as reasonably renders the
remainder unfit for the intended uses shall be taken by any competent authority
under the power of eminent domain or be acquired for any public or quasi-public
use or purpose, the Lease Term shall cease and terminate upon the date when the
possession of said Premises or the part thereof so taken shall be required for
such use or purpose and without apportionment of the award and Tenant shall have
no claim against Landlord for the value of any unexpired Lease Term. For
purposes of this Section, "substantial part thereof as reasonably renders the
remainder unfit for the intended uses" shall mean either (i) twenty percent
(20%) or more of the parking facilities located on the Premises or (ii) ten
percent (10%) or more of the Building. Notwithstanding anything to the contrary
herein, the Lease shall not terminate
9
10
if Landlord is willing and able to substantially replace the portion of the
Premises so taken (or substantial or functional equivalent) to the satisfaction
of Tenant, which shall not be unreasonably withheld, conditioned or delayed. If
any condemnation proceedings shall be instituted in which it is sought to take
any part of the Building or to change the grade of any street or alley adjacent
to the Building and such taking or change of grade makes it necessary or
desirable to substantially remodel the Building, Landlord shall have the right
to terminate this Lease after having given written notice of termination to
Tenant not less than one hundred eighty (180) days prior to the date of
termination designated in the notice. In either of said events, Rent at the
then current rate shall be apportioned as of the date of the termination.
Notwithstanding anything to the contrary herein, the provision of this Section
14.01 shall not apply in the event only the skywalk or any portion thereof
connected to the Building are taken by condemnation proceedings. No money or
other consideration shall be payable by the Landlord to the Tenant for the right
of termination and the Tenant shall have no right to share in the condemnation
award or in any judgment for damages caused by the taking or the change of
grade. Nothing in this Section shall preclude an award being made to Tenant for
loss of business or depreciation to and cost of removal of equipment or
fixtures.
ARTICLE XV. - COMPLETION AND ACCEPTANCE OF
PREMISES, MAINTENANCE AND REPAIR
15.01 Completion and Acceptance. Tenant has inspected the Premises, and agrees
to accept them "as is". Except as otherwise specifically provided in this
Lease, Landlord disclaims any warranty that the Premises are suitable for
Tenant's use and Tenant acknowledges that it has had a full opportunity to make
its own determination in this regard.
15.02 Maintenance and Repair By Landlord. Landlord shall be responsible for
maintaining and repairing the Premises and all improvements located thereon;
Tenant shall have no obligation to make any repairs, perform any maintenance or
improve or replace any portion of the Premises or any improvements now or
hereafter located thereon, except as otherwise explicitly provided in this
Lease. Landlord shall keep the parking area in good repair and condition,
including periodic re-blacktopping as necessary. Landlord shall furnish and pay
for the upkeep, maintenance, repair, replacement and periodic servicing of the
mechanical and electrical systems, the fire sprinkler system, and overhead
doors servicing the Premises. If Landlord fails to comply with the immediately
preceding sentence, then Tenant may (but without any obligation to do so) enter
into service and maintenance contracts providing for the periodic inspection
and servicing of such equipment and systems, and if Tenant so elects, Landlord
shall reimburse Tenant for the cost and expense of the service, inspection and
repairs provided pursuant to such contracts. Notwithstanding the foregoing,
Tenant shall not be obligated to perform any work which would not be considered
a capital expenditure under generally accepted accounting principles or the
Internal Revenue Code if the useful life of the item in question would extend
beyond the Lease Term unless Landlord pays its proportionate share
10
11
of such capital expenditure. At the end of the Lease Term, Tenant shall
surrender possession of the Premises in good condition subject to reasonable
wear and tear, changes and alterations and damage by fire, casualty and the
elements. If Landlord fails to maintain the Premises as provided for herein,
Tenant shall, after giving Landlord notice and a reasonable opportunity to
correct such failure, have the right, but not the obligation, to perform such
maintenance, in which event Landlord shall promptly reimburse Tenant for its
costs in providing such maintenance or repairs. The provisions of this Section
15.02 are subject to the provisions of Sections 23.01 and 23.02.
ARTICLE XVI - LANDLORD'S RIGHT TO CURE
16.01 Landlord may, but shall not be obligated to, sure any default by Tenant,
after giving Tenant reasonable notice and a reasonable opportunity to cure any
defaults, including, but not limited to, tenant's failure to obtain insurance,
make repairs, or satisfy lien claims, and whenever Landlord so elects, all
costs and expenses paid by Landlord in curing any such default, including
reasonable attorneys' fees, shall be so much Additional Rent due on demand,
together with interest at the Interest Rate (as defined in Section 3.04).
ARTICLE XVII - ALTERATIONS AND ADDITIONS, MECHANICS' LIENS
17.01 Alterations and Additions. Tenant shall not make any alterations,
improvements, or additions to the Premises which would adversely affect the
structural integrity of the Building without the prior written consent and
approval of plans therefor by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed. Any and all of such alterations,
improvements, and additions shall be at the sole cost of Tenant and shall be
done in accordance with Section 17.02 hereof. Alterations, improvements or
additions so made upon the Premises, except moveable furniture, equipment, and
trade fixtures placed in the Premises at the expense of Tenant, shall be and
become the property of Landlord and shall remain upon and be surrendered with
the Premises as a part thereof at the termination of this Lease. If damage to
the Premises or the Building shall be caused by moving any of such furniture,
equipment, trade fixtures or improvements in or out of the Premises (other than
minor damage such as holes caused by nails, screws and other fasteners), such
damage shall be promptly repaired at the cost of Tenant.
17.02 Mechanic's Liens. Tenant shall not cause nor permit any mechanic's liens
or other liens to be placed upon the Premises or the Building and in case of
the filing of any such lien or claim therefor, Tenant shall promptly discharge
the same; provided, however, that Tenant shall have the right to contest the
validity or amount of any such lien upon its prior posting of security with
Landlord, which security, in Landlord's sole reasonable judgment, must be
adequate to pay and discharge any such lien in full plus Landlord's reasonable
estimate of its legal fees. Tenant agrees to pay all legal fees and other costs
incurred by Landlord because of any mechanic's or other liens attributable to
Tenant being placed upon the Premises or the Building.
11
12
ARTICLE XVIII - INSURANCE
18.01 PUBLIC LIABILITY, PROPERTY DAMAGE INSURANCE. Landlord shall maintain in
effect at all times during the Lease Term a "Commercial Liability Insurance"
policy (Insurance Services Office form title), providing coverage on a
"occurrence" rather than on a "claims made" basis, which policy shall include,
but not be limited to, coverage for bodily injury, property damage, personal
injury, contractual liability (applying to this Lease), independent
contractors, and products and completed operations liability, or an equivalent
form, so long as such equivalent form affords coverage which is at least as
broad. Such policy shall name Landlord as an additional insured thereunder.
Landlord shall maintain at all times during the Lease Term a total combined
liability policy limit of at least $1,000,000 applying to the liability for
bodily injury, personal injury and property damage, which total limit may be
satisfied by the limit afforded under its commercial general liability policy
or equivalent policy, or by such policy in combination with an umbrella policy,
provided that the umbrella policy provides coverage at least as broad as that
afforded by the underlying commercial general liability policy or equivalent
policy, and provided further that Tenant is included as an additional insured
thereunder. The provisions of this Section 18.01 are subject to the provisions
of Sections 23.01 and 23.02.
18.02 INSURANCE ON PREMISES. Landlord shall, throughout the Lease Term,
maintain "All Risk" property insurance, including loss of rents coverage, on
the Building and other improvements located on the Premises in such amounts and
with such deductibles as Landlord shall reasonably determine. While any
building or other improvement is in the course of being constructed or rebuilt
on the Premises, the aforesaid property insurance shall be in builder's risk
completed value form, including coverage available on the so-called "all risk"
non-reporting form of policy, for an amount equal to 100% of the insurable
value of such building or other improvement. If the Premises include steam
boilers or other equipment excluded from coverage pursuant to a boiler and
machinery exclusion, Landlord shall maintain boiler and machinery insurance in
an amount reasonably satisfactory to Landlord during the Lease Term. The
provisions of this Section 18.02 are subject to the provisions of Sections
23.01 and 23.02.
18.03 INSURANCE ON TENANT'S PROPERTY. Tenant shall, throughout the Lease Term,
maintain property insurance on all of Tenant's merchandise, trade fixtures,
furnishing, operating equipment and personal property located on the Premises.
18.04 INSURANCE REQUIREMENTS. All such insurance shall:
(A) Be written by an insurance company reasonably satisfactory to
Landlord;
12
13
(B) Name Landlord and others designated by Landlord as additional insureds
or loss payees, as applicable, except that this clause shall not apply to
the insurance required to be carried by Tenant pursuant to Section 18.03
above;
(C) Provide for thirty (30) days prior written notice to Landlord of
cancellation, restriction or reduction of coverage.
Tenant will deliver to Landlord proof of all policies evidencing the insurance
required hereunder, and shall promptly furnish to Landlord, upon request, copies
of all renewal notices and all receipts of paid premiums received by it. At
least thirty (30) days prior to the expiration date of a required policy, Tenant
shall deliver to Landlord a copy of a renewal policy in form reasonably
satisfactory to Landlord.
18.05 Indemnification of Landlord. Tenant shall indemnify, defend and hold
Landlord, its employees and agents harmless from and against all claims,
actions, damages, liabilities and expenses in connection with loss of life,
bodily and personal injury or damage arising from any occurrence in, upon or at
the Premises or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, servants, licensees,
concessionaires or invitees or by anyone permitted to be on the Premises by
Tenant except if due to Landlord's negligence or misconduct. Tenant assumes all
risks of and Landlord, its employees and agents shall not be liable for injury
to person or damage to property resulting from the condition of the Premises or
from the bursting or leaking of any and all pipes, utility lines, connections,
or air conditioning or heating equipment in, on or about the Premises, or from
water, rain or snow which may leak into, issue or flow from any part of the
Building. Tenant agrees at all times to defend, indemnify and hold Landlord
harmless against all actions, claims, demands, costs, damages or expenses of
any kind which may be brought or made against the Landlord or which the
Landlord may pay or incur by reason of Tenant's occupancy of the Premises or
Tenant's negligent performance of or failure to perform any of its obligations
under this Lease. If Landlord shall, without fault on its part, be made a party
to any litigation commenced by or against Tenant, then Tenant shall indemnify,
defend and hold Landlord harmless from and shall pay all costs, expenses, and
reasonable attorney's fees incurred or paid by Landlord in connection with such
litigation.
18.06 Waiver of Claims and Subrogation. Notwithstanding anything in this Lease
to the contrary, each party (the "Releasing Party") hereby releases the other
party (the "Released Party") from liability for any property damage which the
Released Party would, but for this Section, have had to the Releasing Party
resulting from the occurrence of any accident or casualty during the Lease
13
14
Term. Any insurance policy obtained by Landlord or Tenant shall recognize this
Section and contain an appropriate waiver of subrogation clause.
ARTICLE XIX - DEFAULT AND REMEDIES
19.01 Events of Default. Any of the following shall constitute an Event of
Default hereunder:
(a) if any Rent due hereunder shall be unpaid for ten (10) days after
Tenant receives written notice of such failure from Landlord.
(b) if Tenant shall be in default in performing any of the covenants,
terms and conditions of this Lease other than the provisions requiring the
payment of Rent and Landlord shall give to Tenant notice in writing of such
default, and if Tenant shall fail to cure such default within thirty (30)
days after service of such notice, or, if the default is of such character
as to require more than thirty (30) days to cure, Tenant shall fail to
promptly commence such cure and continue thereafter at all times to use
reasonable diligence in curing such default after services of such notice;
(c) the making of an assignment or general arrangement for the benefit of
creditors by Tenant or any guarantor of Tenant's obligations under the
Lease;
(d) the appointment of a receiver or trustee for all or substantially all
the assets of Tenant or any guarantor of Tenant's obligations under this
Lease and such receivership shall not have been terminated or stayed within
the time permitted by law;
(e) the attachment, execution or other judicial seizure of Tenant's
interest in this Lease where such seizure is not discharged within thirty
(30) days.
19.02 Remedies Upon An Event of Default. Upon the occurrence of any Event of
Default, Landlord may, at its option:
(A) Without such action constituting a waiver of the default, do whatever
Tenant is obligated to do under this Lease and enter the Premises without
being liable to prosecution or claim for damages in order to accomplish
such purpose, and if Landlord by reason of such default pays any sum or
does any act that requires the payment of any sum, the sum paid by Landlord
shall be immediately due and payable from Tenant to Landlord, which sum
shall be Additional Rent.
(B) By written notice to Tenant, terminate this Lease. Landlord, upon such
termination, shall be entitled to recover, as liquidated damages and not as
a penalty, a sum of money equal to the value of the Rent provided herein to
be paid by Tenant to Landlord for the remainder of the Lease Term, less the
fair rental value of the Premises for such period.
14
15
(C) Whether or not Landlord terminates the Lease, re-enter and take
possession of the Premises, by summary proceedings or by any other
appropriate legal action or proceedings, without such re-entry working
a forfeiture of the Lease and the rentals due hereunder, in which event
Landlord may, but shall be under no obligation so to do, relet all or
any part of the Premises for such rent and upon such terms as shall be
satisfactory to Landlord (including the right to relet the Premises for
a term greater or lesser than that remaining under the Lease Term, and
the right to relet the Premises as a part of a larger area, and the
right to change the character or use made of the Premises). Landlord
may, for the purposes of such reletting, decorate or make any repairs,
changes, alterations and additions in or to the Premises as may be
commercially reasonable to accommodate such reletting. If Landlord does
not relet the Premises, Tenant shall pay to Landlord as and when due
the Rent and other sums provided herein to be paid by Tenant for the
remainder of the Lease Term. If the Premises are relet and a sufficient
sum shall not be realized from such reletting after paying all of the
expenses of such decoration, repairs, changes, alterations and
additions not chargeable to or paid by the subsequent tenant, the
expenses of such reletting and the collection of the rent accruing
therefrom to satisfy the total Rent herein provided to be paid for the
remainder of the Lease Term, Tenant shall pay to Landlord, on demand,
any deficiency, and Tenant agrees that Landlord may, from time to time,
file suit to recover any sums falling due under the terms of this
Section.
No repossession as described above shall be deemed a termination of
this Lease unless Landlord shall notify Tenant in writing of its intention to
terminate this Lease, nor shall any such repossession without termination be
deemed a waiver on the part of Landlord of its right to thereafter at any time
terminate this Lease and proceed against Tenant for damages arising out of the
breach of this Lease.
19.03 Remedies Cumulative. All rights and remedies provided in this Lease of
Landlord's protection shall be cumulative and in addition to any other rights
and remedies provided by law, Landlord shall be entitled to recover from Tenant
its reasonable attorneys' fees incurred by enforcing its rights hereunder.
19.04 No Waiver. No waiver by Landlord of a breach or default by Tenant under
the terms and conditions of this Lease shall be construed to be a waiver of any
subsequent breach or default nor of any other term or condition of this Lease,
and the failure of Landlord to assert any breach or to declare a default by
Tenant shall not be construed to constitute a waiver thereof so long as such
breach or default continues unremedied.
19.05 No Reinstatement. No receipt of money by Landlord from Tenant after the
expiration or termination of this Lease, or after the service of any notice or
after the commencement of any suit, or after final judgment for possession of
the Premises, shall reinstate, continue or extend the Lease Term or affect any
such notice, demand or suit.
15
16
19.06 DEFAULT UNDER MORTGAGE. If Landlord shall be in default in performing any
of the covenants, terms and conditions under any mortgages against the Premises
executed by Landlord, and the holder of any of said mortgages commences
foreclosure proceedings, Tenant shall have the right to terminate this Lease
upon thirty (30) days written notice to Landlord unless, however, such mortgage
or the applicable subordination, non-disturbance and attornment agreement
provide that the mortgagee, in the event of acquiring title to the Premises
through foreclosure, power of sale, deed in lieu of foreclosure or equivalent,
shall recognize the validity of this Lease and shall honor the rights of the
Tenant hereunder so long as Tenant is not in default of this Lease and agrees
to attorn to such mortgagee as if it were the original landlord hereunder.
Notwithstanding anything to the contrary contained in this Lease or in any
other document, by virtue of that certain Subordination, Non-Disturbance and
Attornment Agreement (the "SNDA") among Landlord, Tenant and Jefferson Pilot
Financial Insurance Company ("Lender"), Tenant's right to terminate this Lease
under this Section 19.06 shall be of no force and effect as to, and shall not
be applicable to, or binding upon: the "Mortgage" or "Deed of Trust" (as
defined in the SNDA) and/or any document related thereto; Lender; any "New
Owner" (as defined in the SNDA) and/or any document related thereto; Lender;
any "New Owner" (as defined in the SNDA); and/or any legal representative,
successor or assign of Lender and or any New Owner.
19.07 MITIGATE DAMAGES. Notwithstanding anything to the contrary in this Lease,
Landlord shall use reasonable efforts to mitigate any damages that Landlord
would otherwise sustain by reason of any default by Tenant in the performance
of Tenant's obligations under this Lease.
ARTICLE XX - NOTICES
20.01 Except as otherwise herein provided, whenever by the terms of this Lease
notice shall or may be given either to Landlord or to Tenant, such notice shall
be in writing and shall be deemed to have been properly served if
hand-delivered or sent by overnight or by certified mail, return receipt
requested, postage prepaid, if to Landlord, at the place where rent is payable,
and if to Tenant, at the Premises. The date of such hand-delivery or mailing
shall be deemed the date of service.
ARTICLE XXI - RIGHT OF FIRST REFUSAL
21.01 GRANT. In consideration of this Lease, Landlord grants to tenant the
Right of First Refusal with respect to the Premises, on the terms set forth in
this Article XXI, provided, however, that such Right of First Refusal is
subject to any mortgage placed on the Premises by Landlord.
21.02 NOTICE. If Landlord decides to place the Premises on the market for sale,
Landlord agrees that it will notify Tenant of its intention to sell the
Premises, but this sentence creates no obligation whatsoever to sell to Tenant
at any time or at any price or terms. If Landlord receives a bona fide written
offer ("Offer") to purchase the Premises which Landlord desires to accept,
Landlord shall notify Tenant in writing ("the "Notice") of the Offer. The Notice
shall be accompanied by the Offer.
16
17
21.03 ACCEPTANCE. Tenant shall have a period (the "Acceptance Period") of thirty
(30) days in which to accept the Offer. Tenant's acceptance of the Offer shall
be made by written notice to Landlord, accompanied by an xxxxxxx money payment
by certified or cashier's check or by wire transfer of immediately available
funds, in an amount equal to the xxxxxxx money specified in the Offer. Upon such
valid acceptance, Tenant and Landlord shall enter into a purchase agreement
substantially in the form of the Offer. If the Offer includes a condition
precedent of the offerer's ability to obtain financing, Tenant shall also have
the benefit of such condition, but if Tenant then fails to obtain financing, the
xxxxxxx money tendered to Landlord shall be retained by Landlord in
consideration for Landlord's foregoing the opportunity to close in accordance
with the original Offer.
21.04 REJECTION. If Tenant does not accept the Offer within the Acceptance
Period, Tenant shall be deemed to have rejected the Offer, and thereupon
Landlord shall be free to sell the Premises substantially in accordance with the
terms of the Offer. In such case, Tenant shall, at Landlord's request, execute
and deliver to Landlord a release, quit claim deed or other instrument to
evidence that the Right of First Refusal has expired.
21.05 EXPIRATION OF RIGHT. The Right of First Refusal shall expire on the
earlier to occur of the following:
(A) The termination of this Lease for any reason.
(B) The termination of the purchase agreement due to the default of
Tenant.
(C) The sale of the Premises by Landlord in accordance with the terms of
an Offer which has been rejected by Tenant as described in Section 21.04
hereof.
21.06 CONDITIONS PRECEDENT. It is a condition precedent to the effective
exercise by Tenant of the Right of First Refusal granted herein that at the time
of the exercise, there shall be no Event of Default by Tenant under this Lease.
It is a condition precedent to Landlord's obligation to close on the purchase
after the exercise of the Right of First Refusal that as of the closing date,
Tenant shall have paid all Rent accruing hereunder through the closing date. The
purchase agreement shall provide that if all such Rent is not paid on or before
the scheduled closing date, such failure on the part of Tenant shall constitute
a breach of the purchase agreement, entitling Landlord to terminate the purchase
agreement and retain the xxxxxxx money payment.
ARTICLE XXII - MISCELLANEOUS
22.01 PERSONS BOUND. The agreements, convenants and conditions of this Lease
shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of each of the parties hereto, except
that no assignment, encumbrance or subletting by Tenant, unless permitted by the
provisions of this Lease, shall vest any right in the assignee, encumbrance or
subtenant of Tenant.
17
18
22.02 Partial Invalidity. If any term, covenant, condition or provision of
Lease or the application thereof to any person or circumstance shall, to any
extent be invalid, unenforceable or violate a party's legal rights, then such
term, covenant, condition or provision shall be deemed to be null and void and
unenforceable, however, all other provisions of this Lease, or the application
of such term or provision to persons or circumstances other than those to which
are held invalid, unenforceable or violative of legal rights, shall not be
affected thereby, and each and every other term, condition, covenant and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
22.03 Captions. The headings and captions used throughout this Lease are for
convenience and reference only and shall in no way be held to explain, modify,
amplify, or aid in the interpretation, construction or meaning of any provisions
in this Lease. The words "Landlord" and "Tenant" wherever used in this Lease
shall be construed to mean plural where necessary, and the necessary grammatical
changes required to make the provisions hereof apply either to corporations,
limited liability companies, partnerships, trusts or individuals, men or women,
shall in all cases be assumed as though in each case fully expressed.
22.04 No Option. Submission of this instrument for examination does not
constitute a reservation of nor option for the Premises. The instrument does
not become effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
22.05 Consents and Approval. If any provision or this Lease requires
Landlord's or Tenant's consent or approval, Landlord or Tenant shall not
unreasonably or arbitrarily withhold, condition or delay such consent or
approval. If any provision of this Lease requires Landlord or Tenant to do
anything to the satisfaction of the other party, the party whose satisfaction
must be obtained shall not unreasonably or arbitrarily refuse to state its
satisfaction with such action. If either party decides to deny such consent or
approval, or to withhold its statement of satisfaction with the other party's
performance, it shall simultaneously state its reasons for doing so. If either
party shall request the other party's consent, approval or statement of
satisfaction with respect to any matter hereunder, the other party's failure to
reply to such request within ten (10) days (or other time period set forth
elsewhere in this Lease) after delivery to the other party of copies of all
necessary information and documents that are available and necessary or
appropriate to enable the other party to decide whether to grant such consent,
approval or statement of satisfaction shall be deemed a consent, approval or
statement of satisfaction, as the case may be.
22.06 Applicable Law. This Lease, its interpretation and enforcement shall
be governed by the laws of the State of Nebraska.
22.07 Short Form. Landlord and Tenant agree that neither shall record this
Lease; provided, however, that the parties hereto agree that each will at the
request of the other execute, acknowledge and deliver a memorandum of lease, in
recordable form, describing the parties hereto, the Premises
18
19
and the Lease Term. Preparation, recording and similar charges and taxes shall
be paid for by the party requesting such memorandum of lease.
22.08 Financial Statements. Tenant has afforded the Landlord the right of
inspection of its financial statements, and agrees that from time to time in
connection with the sale or mortgage of Landlord's interest in Premises, it
will disclose its financial statements to the proposed lender or purchaser;
provided, that such financial statements shall be limited to such
information required to be filed by Tenant under applicable securities
regulations.
22.09 Landlord's Liability. Tenant shall look solely to the then interest of
Landlord in the Premises, or the interest in the Premises of any successor in
interest to Landlord, as owner of the Premises, for the satisfaction of any
remedy of Tenant for Landlord's breach of this Lease or failure to perform any
of Landlord's obligations under this Lease, express or implied, or under any
law. Neither Landlord nor any disclosed or undisclosed principal of Landlord
(or member, officer, director, stockholder, partner or agent of Landlord or of
any such principal), nor any successor of any of them, shall have any personal
liability for any such breach or failure under this Lease or otherwise.
ARTICLE XXIII - REIMBURSEMENT
23.01 Reimbursement of Tenant by Landlord. Tenant shall have the right
(without the obligation) to perform the obligations of the Landlord under
Sections 3.02, 6.01, 15.02, 18.01, and 18.02 herein. In the event Tenant incurs
expenses in fulfilling one or more obligations of the Landlord under any of the
foregoing Sections, Landlord shall reimburse Tenant for the cost and expense
incurred by Tenant in performing such obligations, subject to the limitations
set forth herein. Tenant shall submit to Landlord, on a monthly basis during
the Lease Term, copies of invoices paid by Tenant hereunder or other reasonable
evidence of such payments and Landlord shall pay to Tenant the amount of such
invoices and/or other payments within thirty (30) days after receipt thereof.
Landlord shall not be obligated to reimburse Tenant for expenses hereunder in
the event (i) such reimbursement will cause the Annual Obligation Limit
(defined in Section 24.01 below) to be exceeded or (ii) Tenant has failed to
pay the Base Rent.
23.02 Limitation on Landlord's Obligations. Notwithstanding anything to the
contrary contained herein, the total cost to Landlord of performing its
obligations under this Lease, including but not limited to real estate taxes,
insurance, repairs and maintenance, and utilities and services (including any
payments made to Tenant as reimbursement therefor), shall not exceed the
following annual amounts for any Lease Year:
19
20
LEASE YEARS ANNUAL OBLIGATION AMOUNT
1-5 $540,000
6-10 $594,000
11-15 $653,400
16-20 $718,740
Any amounts in excess of the Annual Obligation Limit shall be assumed, and
paid, by Tenant as Additional Rent or paid to Landlord as Additional Rent in
accordance with Section 3.3 hereof. The Annual Obligation Limit (and Tenant's
obligation to pay any amount in excess thereof) shall apply during any holdover
period under Section 11.01 hereunder. In the case of a partial lease year,
Landlord's Annual Obligation Limit shall be prorated on a per diem basis.
ARTICLE XXIV - ENTIRE AGREEMENT
24.01 This Lease together with Exhibits attached hereto contains the entire
agreement between the parties and no modification of this Lease shall be
binding upon the parties unless evidenced by an agreement in writing signed by
Landlord and the Tenant after the date hereof. If there be more than one Tenant
named herein, the provision of this Lease shall be applicable to and binding
upon such tenants jointly and severally.
20
21
IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement
as of the date and year hereinabove set forth.
LANDLORD:
IRET PROPERTIES,
a North Dakota Limited Partnership
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: XXXXXX X. XXXXX
-----------------------------------
Title: Vice President
----------------------------------
TENANT:
AMERITRADE HOLDING
CORPORATION, a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: XXXXX X. XXXXXX
-----------------------------------
Title: VP, Infrastructure & Facilities
----------------------------------
21
22
EXHIBIT A
Commitment No. C98-7427
That part of the NW1/4 of the NE1/4 of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00
Xxxx of the 6th P.M., in the City of Omaha, in Xxxxxxx County, Nebraska,
described as follows: Commencing at the NE corner of said NW 1/4 of the NE1/4;
thence southerly on the East line of said NW 1/4 of the NE1/4 83.00 feet; thence
N 89 degrees 10'18" W (assumed bearing) on a line 83.00 feet South of and
parallel to the North line of said NW1/4 of the NE1/4, 667.60 feet to the point
of beginning, said point being 654.78 feet East of West line of said NW 1/4 of
the NE 1/4; thence S 00"28'30" W on a line 654.78 feet East of and parallel to
the West line of said NW1/4 of the NE1/4, 574.68 feet; thence N 89 degrees
18'20" W (recorded) N 89 degrees 15'43" W (measured), 571.79 feet to a point on
the Easterly R.O.W. line of 102nd Street, said point being 83.00 feet East of
the West line of said NW1/4 of the NE1/4; thence N 00 degrees 28'30" E on a line
83.00 feet East of and parallel to the West line of said NW1/4 of the NE1/4 and
the Easterly R.O.W. line of said 102nd Street, 475.55 feet to a point of curve;
thence Northeasterly on a curve to the right (radius 99.38 feet, chord bearing N
45 degrees 39'06" E, chord distance 140.98 feet), an arc distance of 156.73 feet
to a point of tangency, said point being on the Southerly R.O.W. line of "F"
Street and 83.00 feet South of the North line of said NW 1/4 of the NE 1/4;
thence S 89 degrees 10'18" E on a line 83.00 feet South of and parallel to the
North line of said NW1/4 of the NE1/4 and the Southerly R.O.W. line of said "F"
Street, 471.80 feet to the point of beginning;
Together with non-exclusive easement rights reserved in Warranty Deed dated
September 30, 1974, filed October 17, 1974 in Book 1511 at Page 347 of the Deed
Records of Xxxxxxx County, Nebraska.
23
EXHIBIT "B"
LEASE TERM YEARS ANNUAL RENT
---------------- -----------
1-5 $1,288,000.00
6-10 $1,416,800.00
11-15 $1,558,480.00
16-20 $1,714,328.00
