ACI BUILDING LEASE
THIS LEASE, made this 28 day of December, 1992, by and between Xxxxxx Realty
Trust, Inc., a Missouri corporation, through its Agent, Xxxxxx Xxxxxxxx Company,
a Missouri corporation (hereinafter referred to as "Landlord") and Applied
Communication, Inc., a Nebraska corporation (hereinafter referred to as
"Tenant");
WITNESSETH:
1. LEASED PREMISES. Landlord hereby demises and leases to Tenant the entire
building known as the ACI Building, located at 000 X. 000xx Xxxxxx, Xxxxx,
Xxxxxxxx 00000, containing approximately 70,000 square feet of space
(hereinafter referred to as the "Premises"). Tenant shall use and occupy the
Premises for general office purposes, demonstrations, education and any other
use applicable to Tenant's business, and for no other use. See Additional
Provisions, Section 28.
Tenant has inspected the Premises and accepts the same in its present "AS IS"
condition, acknowledging that the Premises are in good order and satisfactory
condition and suitable for the purposes for which they are leased. Tenant
further acknowledges that Landlord has made no representations to Tenant with
respect to any alterations, repairs or improvements to be constructed within the
Premises. See Additional Provisions, Section 29.
2. TERM. The term of this Lease shall be six (6) years and eight (8) months,
commencing on the 1st day of January, 1993, and expiring on the 31st day of
August, 1999, both inclusive.
3. RENT. Tenant shall pay the following Base Rent and Additional Rent
(hereinafter collectively referred to as "Rent") during the term of this Lease,
in advance, on the first day of each calendar month, or as otherwise set forth
in this Lease, without setoff or deduction, at the office of Landlord. In the
event any Rent is payable for a partial calendar month or year, such Rent shall
be prorated to reflect only that portion of the lease term within such month or
year. All accrued unpaid Rent shall survive the lease term.
(a) Base. See Additional Provisions, Section 30.
(b) Additional Rent. Tenant shall pay to Landlord, as Additional Rent, an
amount equal to Tenant's proportionate share of any increase in Taxes and
Operating Expenses over the Taxes and Operating Expenses for the1993 calendar
year. Tenant's proportionate share shall be payable to Landlord monthly, in
advance, without interest accruing thereon, in an amount estimated from time to
time by Landlord. After each calendar year, Landlord shall deliver a statement
to Tenant setting forth Tenant's actual obligation for Taxes and Operating
Expenses, and the total amount of monthly payments paid by Tenant to Landlord.
In the event Tenant's actual obligation exceeds Tenant's payments, Tenant shall
pay the difference to Landlord within thirty (30) days after receipt of
Landlord's statement. Conversely, in the event Tenant's total payments exceed
Tenant's actual obligation, Landlord shall either refund the overpayment to
Tenant or credit said overpayment against Tenant's monthly obligation in the
forthcoming year. Tenant's proportionate share is 100% of the Premises.
Taxes (as such term is used herein) shall include, without limitation, any
tax, assessment or similar governmental charge imposed against the Premises, or
against any of Landlord's personal property used in the operation and/or
maintenance of the Premises. Taxes, as herein contemplated, are predicated on
the present system of taxation in the state of Nebraska. Therefore, if due to a
future change in the method of taxation any rent, franchise, use, profit or
other tax shall be levied against Landlord in lieu of any charge which would
otherwise constitute a Tax, such rent, franchise, use, profit or other tax shall
be deemed to be a Tax for the purposes herein. In the event Landlord is assessed
with a Tax which Landlord, in its sole discretion, deems excessive, Landlord may
challenge said Tax or may defer compliance therewith to the extent legally
permitted; and, in the event thereof, Tenant shall be liable for Tenant's
proportionate share of all costs in connection with such challenge. See
Additional Provisions, Section 31.
Operating Expenses (as such term is used herein) shall include all costs and
expenses incurred by Landlord in operating and maintaining the Premises
including, without limitation: maintaining and repairing all systems therein,
the cost for all service agreements and subcontractor charges; landscaping;
janitorial services; wages/salaries and benefits of all employees engaged in the
operation and management of the Premises, together with any applicable social
security taxes, employment taxes or other taxes levied against such
wages/salaries; premiums for liability, property damage, fire, worker's
compensation and any and all other insurance for the Premises; management fees;
capital improvements which are required by any governmental authority to keep
the Premises in compliance with all applicable statutes, codes and regulations;
any applicable indenture or trustee's fees; and the amortized cost of any
capital improvement which reduces other Operating Expenses, but in an amount not
to exceed the reduction of Operating Expenses for the relevant year. Operating
Expenses shall not include capital improvements (other than aforesaid), ground
leases , principal or interest payments on any mortgage or deed of trust on the
Premises, or brokers' commissions. See Additional Provisions, Section 32.
Within one hundred eighty (180) days after receipt of each year-end
statement, Tenant or its authorized agent shall have the right, at Tenant's sole
cost and expense, to inspect and audit Landlord's records with respect to
Tenant's proportionate share of Operating Expenses, which audit shall be at the
office of Landlord's managing agent, upon five (5) days prior written notice,
during said agent's normal business hours. Except as aforesaid, Landlord shall
not be obligated to provide Tenant with detailed summaries or receipts for any
Operating Expenses incurred by the Premises; but Landlord shall provide Tenant
with a statement setting forth such expenses, categorized by class and amount.
Unless Tenant asserts specific errors within one hundred eighty (180) days after
receipt of each year-end statement, said statement shall be deemed to be
correct. See Additional Provisions, Section 33.
(c) Late Fee. In the event Tenant should fail to pay to Landlord any rent or
other charge within ten (10) days after receipt of written notice of
delinquency, Tenant shall be assessed a late fee for Landlord's increased
administrative expenses, in an amount equal to five (5%) percent, per month, of
the amount owed Landlord.
4. SERVICES. (a) Landlord shall provide electricity, gas sewer and water
(hereinafter referred to as the "utilities") to the Premises throughout the
lease term. Tenant shall pay to Landlord, as Additional Rent, the actual costs
of Tenant's utility charges which are in excess of Three Thousand, Five Hundred
and 00/100 ($3,500.00) Dollars, per calendar month. Payment shall be made within
thirty (30) days after receipt of Landlord's statement. In the event any utility
charge is payable for a partial calendar month or year, such charge shall be
prorated to reflect only that portion of the lease term within such month or
year.
(b) Landlord shall provide heat and air conditioning to the Premises; however
the obligation with respect to the utility costs to operate such heat and air
conditioning systems shall be subject to the provisions of Section 4(a), above.
(c) Landlord shall provide drinking water, restroom supplies and window
washing to the Premises.
(d) Landlord shall provide janitorial services to the Premises, Monday
through Friday, in a manner customarily furnished to comparable first class
office buildings in the area.
(e) Parking shall be provided on the parking lots adjacent to the Premises on
an unallocated basis. See Additional Provisions, Section 34.
(f) Landlord shall maintain and repair the Premises in a good and orderly
condition including, without limitation, lawn and shrub care, snow removal, and
maintenance of all structural, roof, mechanical and electrical equipment, but
excluding those items under Tenant's exclusive control and those items
specifically excepted elsewhere in this Lease.
Landlord shall make reasonable efforts to provide the foregoing services, but
in no event shall Landlord be liable for damages, nor shall the Rent be abated
due to any failure to furnish, or any delay in furnishing, any of the foregoing
services which are caused by Landlord's inability to secure electricity, fuel,
supplies, machinery, equipment or labor, or which are caused by necessary
repairs or improvements; nor shall the temporary failure to furnish any such
services be construed as a constructive eviction of Tenant or relieve Tenant
from the duty of observing and performing any of the provisions of this Lease.
See Additional Provisions, Section 35.
5. DESTRUCTION. If a substantial portion of the Premises are damaged in whole
or in part by casualty, and the Premises are made untenantable as a result
thereof, and if in Landlord's reasonable opinion such damages cannot be
substantially repaired within one hundred eighty (180) days from the date of
said casualty, this Lease may be terminated by either party. If the damages can
be repaired within one hundred eighty (180) days, but Landlord fails within the
first sixty (60) days after such casualty to either commence to make such
repairs or notify Tenant of Landlord's intent to make such repairs, Tenant shall
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have the right to terminate this Lease. Should Landlord elect to make such
repairs, this Lease shall remain in full force and effect, and Landlord shall
proceed with all due diligence to repair and restore the Premises to a condition
substantially similar to that condition which existed prior to such casualty. In
the event the repair and restoration of the Premises extends beyond one hundred
eighty (180) days after the date of such casualty due to causes beyond the
control of Landlord, this Lease shall remain in full force and effect, and
Landlord shall not be liable therefor; but Landlord shall continue to complete
such repairs and restoration with all due diligence.
In the event either party should elect to terminate this Lease, the party so
electing shall notify the other party in writing. The effective date of such
termination shall be the date of said casualty. In the event this Lease is
terminated, the parties shall have no further obligations to the other, except
for those obligations accrued through the effective date of such termination;
and, upon such termination, Tenant shall immediately surrender possession of the
Premises to Landlord. Tenant shall not be required to pay any Rent for any
period in which the Premises are untenantable. In the event only a portion of
the Premises are untenantable, Tenant's Rent shall be equitably abated in
proportion to that portion of the Premises which are so unfit. However, there
shall be no Rent abatement if the damages are due to the fault or negligence of
Tenant or Tenant's agents, employees or invitees.
6. LANDLORD'S RIGHTS. (a) Landlord may close the Premises, or portions
thereof, in emergency situations determined by Landlord, and during periods of
general construction, upon reasonable verbal notice, except in the event of an
emergency, during which times admittance may be gained only under such
regulations as may be prescribed by Landlord.
(b) Landlord may designate all sources of all services used by Landlord in
the operation, maintenance and repair of the Premises; and Landlord may
designate the source and grade of all materials and all personnel for all
construction, repairs and maintenance which Landlord is obligated to perform
under this Lease.
(c) Landlord may enter the Premises at any time upon reasonable verbal
notice, except in the event of an emergency, to examine or show the same to
existing or prospective fee owners or third party tenants, ground lessors,
mortgagees, Landlord's insurance carriers and by request of any governmental
agency. Additionally, Landlord may decorate, repair or otherwise prepare the
Premises for re-occupancy (without affecting Tenant's obligation to pay Rent)
during the last ninety (90) days of the lease term, if prior to that time Tenant
has vacated the Premises.
(d) Landlord may have pass keys to the Premises and all portions thereof.
(e) Landlord may change the name or street address of the Premises; and may
install, affix and maintain one or more signs within or about the Premises.
However, in the event thereof Landlord shall reimburse Tenant for Tenant's
reasonable costs as a result of such change.
(f) Landlord may enter the Premises upon reasonable verbal notice, except in
the event of an emergency, for inspection purposes, or perform any maintenance,
repairs or alterations for the benefit of the Premises.
(g) Landlord may temporarily close portions of the Premises, the parking lot,
or may temporarily suspend certain building services to facilitate the proper
maintenance and repair of the Premises, upon reasonable verbal notice, except in
the event of an emergency.
(h) Landlord has established certain Rules and Regulations with respect to
the Premises, as more fully set forth on Exhibit "A", attached hereto and made a
part hereof. Landlord reserves the right to establish additional Rules and
Regulations, or make amendments thereto, from time to time if, in Landlord's
reasonable opinion, Landlord determines the same to be necessary for the orderly
operation of the Premises. The non-compliance of any of such Rules and
Regulations by Tenant shall constitute a Default under this Lease. See
Additional Provisions, Section 36.
7. ALTERATIONS AND REPAIRS. Landlord does not warrant either expressly or
impliedly the condition or fitness of the Premises except as herein set forth.
Tenant shall keep those areas of the Premises which are under Tenant's exclusive
control in good repair, without expense to Landlord; and, upon the termination
of this Lease, Tenant shall return such areas to Landlord, together with all of
Tenant's keys, in the same condition as when received, reasonable wear and tear
excepted. Tenant shall make all repairs to those areas of the Premises which are
under Tenant's exclusive control, including the replacement of any broken glass,
unless such repairs shall be caused by the negligence of Landlord. In the event
Tenant should fail to make such repairs promptly and adequately after Landlord's
written demand, Landlord may make such repairs, whereupon Tenant shall
immediately reimburse to Landlord, as Additional Rent, the cost of such repairs.
Tenant shall not allow any waste or misuse of the utilities; and, in the event
thereof, Tenant shall pay for all damages to the Premises caused by any such
waste, misuse or negligence by Tenant.
Tenant shall not make any structural alterations, improvements or additions
to the Premises without the prior written consent of Landlord. Landlord reserves
the right but not the obligation to perform all alterations, improvements or
additions required by Tenant; and, in the event Landlord exercises such right,
Tenant shall reimburse Landlord for all of Landlord's costs within thirty (30)
days after receipt of Landlord's invoice. In the event Tenant undertakes any
alterations, improvements or additions within the Premises,
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all construction in connection therewith shall be performed by contractors
pre-approved by Landlord. All improvements made to the Premises by or on behalf
of Tenant shall, at the election of Landlord, become the property of Landlord
and shall be surrendered with the Premises upon the termination of this Lease.
However, unless Landlord specifically requests in writing that such improvements
remain within the Premises, Tenant shall remove all such improvements upon the
expiration or earlier termination of this Lease, and restore the Premises to a
condition substantially similar to that condition when delivered to Tenant. See
Additional Provisions, Section 37.
8. SUBLETTING AND ASSIGNING. Tenant shall not assign or sublet the Premises,
or any portion thereof, nor allow the same to be used or occupied by any other
person, without the prior written consent of Landlord which consent shall not be
unreasonably withheld or delayed. For purposes of this Section, the transfer of
any majority interest in any corporation or partnership shall be deemed to be an
assignment of this Lease. In no event shall any subtenant, assignee or other
occupant use the Premises for any purpose other than that specifically set forth
in Section 1 of this Lease. Further, in no event shall Landlord's consent to any
sublease or assignment constitute a release of Tenant from the full performance
of Tenant's obligations under this Lease. Tenant shall reimburse Landlord for
Landlord's reasonable attorney's fees to review and/or draft all documents
Landlord deems necessary in connection with the transfer of Tenant's interests.
See Additional Provisions, Section 38.
9. DEFAULT. If Tenant shall default in the payment of any Rent or breach any
covenant or agreement of this Lease (hereinafter singularly or collectively
referred to as "Default"), and if such Default shall continue for five (5) days
after receipt of written notice from Landlord, or if Tenant makes an assignment
for the benefit of creditors, abandons the Premises for more than thirty (30)
days, files or has filed against it a petition in bankruptcy, or is adjudicated
insolvent, Landlord may either (a) terminate this Lease or (b) terminate
Tenant's right of possession to the Premises without terminating this Lease. In
either event, Landlord shall have the right to expel and remove Tenant, or any
other person in occupancy, together with their property, and repossess the
Premises; and, upon Landlord taking possession of the Premises, Tenant shall be
liable for all expenses incurred by Landlord in recovering the Premises
including, without limitation, clean-up costs, legal fees, removal and storage
of Tenant's property, and restoration costs.
In the event Landlord elects to terminate this Lease, Landlord shall send
written notice to Tenant of such forfeiture, and all Rent through the effective
date of termination shall immediately become due, together with the aforesaid
expenses incurred by Landlord. In the event Landlord elects not to terminate
this Lease, but only to terminate Tenant's right of possession, Landlord may
dispossess Tenant; and, upon Landlord recovering possession, Landlord shall use
reasonable efforts to relet the Premiss upon terms and conditions satisfactory
to Landlord. Landlord shall have no duty to prioritize the reletting of the
Premises over the leasing of other property owned by Landlord; and, until the
Premises are relet, Tenant shall remain liable for all Rent payable under this
Lease. In the event the Premises are relet, Tenant shall be liable for the
aforesaid costs incurred by Landlord in recovering possession of the Premises,
along with all costs of reletting including, without limitation, any broker's
fees, legal fees, and/or tenant finish required to be paid in connection with
any reletting; and, in the event the rent payable under any reletting is less
than the Rent payable under this Lease, Tenant shall be liable for the
difference thereof. See Additional Provisions, Section 39.
No action by Tenant after final judgment for possession of the Premises shall
reinstate this Lease, and Tenant waives any and all rights of redemption in the
event Tenant is judicially dispossessed. Should Landlord elect not to exercise
any of its rights in the event of a Default, it shall not be deemed a waiver of
such rights as to subsequent Defaults. All of the aforesaid rights of Landlord
shall be in addition to any remedies which Landlord may have at law or in
equity. Tenant shall pay all costs and reasonable attorney's fees incurred by
Landlord from enforcing the covenants of this Lease.
10. HOLDOVER. Upon the expiration or earlier termination of this Lease,
Tenant shall surrender the Premises to Landlord, without demand, in as good
condition as when delivered to Tenant, reasonable wear and tear excepted. If
Tenant shall remain in possession of the Premises after the termination of this
Lease, and hold over for any reason, Tenant shall be deemed guilty of unlawful
detainer; or, at Landlord's election, Tenant shall be deemed a holdover tenant
and shall pay to Landlord monthly Rent equal to one hundred twenty-five (125%)
percent (for the first three (3) months of any such holdover) and one hundred
fifty (150%) percent (after the third holdover month) of the total Rent payable
hereunder during the last month prior to any such holdover, as well as any other
damages incurred by Landlord as a result of such holdover. Should any of
Tenant's property remain within the Premises after the termination of this
Lease, it shall be deemed abandoned, and Landlord shall have the right to store
or dispose of it at Tenant's cost and expense.
11. RIGHT TO CURE TENANT'S DEFAULT. If Tenant is in Default under any
provision of this Lease, other than for the payment of Rent, and Tenant has not
cured such Default within five (5) days after receipt of Landlord's written
notice, Landlord may cure such Default on behalf of Tenant, at Tenant's expense.
Landlord may also perform any obligation of Tenant, without notice to Tenant,
should Landlord deem such performance to be an emergency. If Landlord incurs any
expense, including reasonable attorney's fees, in instituting, prosecuting
and/or defending any action or proceeding by reason
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of any emergency or Default, Tenant shall reimburse Landlord for same, as
Additional Rent, with interest calculated thereon at the rate of three (3%)
percent over the prime rate charged by City Bank from time to time (but in no
event greater than thirteen (13%) percent per annum) from the date such payment
is due Landlord.
12. HOLD HARMLESS. Landlord shall not be liable to Tenant for any damages to
the Premises, nor for any damages to Tenant on or about the Premises, nor for
any other damages arising from the action or negligence of Landlord, Tenant, or
third persons; and Tenant hereby releases, discharges and shall indemnify, hold
harmless and defend Landlord, at Tenant's sole cost and expense, from all
losses, claims, liabilities, damages, and expenses (including reasonable
attorney's fees) due to any damage or injury to persons or property of the
parties hereto or of third persons, caused by Tenant's use or occupancy of the
Premises, Tenant's breach of any covenant under this Lease, or Tenant's use of
any equipment, facilities or property in, on, or about the Premises. In the
event any suit shall be instituted against Landlord by any third person for
which Tenant is hereby indemnifying Landlord, Tenant shall defend such suit at
Tenant's sole cost and expense with counsel reasonably satisfactory to Landlord;
or, at Landlord's election, Landlord may defend such suit, in which event Tenant
shall pay Landlord, as Additional Rent, Landlord's costs of such defense.
Notwithstanding the aforesaid, Landlord shall remain liable for its own
negligence, except with respect to liability for damages to real and personal
property for which the parties have waived their right of recovery pursuant to
Section 14.
13. CONDEMNATION. If a substantial portion of the Premises are taken in
condemnation, or transferred by agreement in lieu of condemnation, either Tenant
or Landlord may terminate this Lease by serving the other party with written
notice, effective as of the taking date; provided in the case of termination by
Tenant that the Premises (or the remaining portion thereof) may no longer be
adequately used for the purpose set forth in Section 1, of this Lease. If
neither Tenant nor Landlord elect to terminate this Lease, then this Lease shall
terminate on the taking date only as to that portion of the Premises so taken,
and the Rent and other charges payable by Tenant shall be reduced
proportionally. Landlord shall be entitled to the entire condemnation award for
all realty and improvements. Tenant shall only be entitled to an award for
Tenant's personal property and fixtures, provided Tenant independently petitions
the condemning authority for same. Notwithstanding the aforesaid, if any
condemnation takes a portion of the Premises which does not materially affect
Tenant's use thereof, or if any condemnation takes a portion of the parking area
the result of which does not reduce the minimum required parking ratio below
that established by local code or ordinance. this Lease shall continue in full
force and effect without modification.
14. INSURANCE. Tenant shall maintain in full force and effect throughout the
term of this Lease policies providing "all risk" insurance coverage protecting
against physical damage (including, but not limited to, fire, lightning,
vandalism, sprinkler leakage, water damage, collapse, and other extended
coverage perils) to the extent of 100% of the replacement cost of Tenant's
property and improvements, as well as broad form comprehensive or commercial
general liability insurance, in an occurrence form, insuring Landlord and Tenant
jointly against any liability (including bodily injury, property damage and
contractual liability) arising out of Tenant's use or occupancy of the Premises,
with a combined single limit of not less than $1,000,000, or for a greater
amount as may be reasonably required by Landlord from time to time. All such
policies shall be of a form and content satisfactory to Landlord; and Landlord
shall be named as an additional insured on all such policies. All policies shall
be with companies licensed to do business in the State of Nebraska, and rated A+
:XV in the most current issue of Best's Key Rating Guide. Tenant shall furnish
Landlord with certificates of all policies at least ten (10) days prior to
occupancy; and, further, such policies shall provide that not less than thirty
(30) days written notice be given to Landlord before any such policies are
cancelled or substantially changed to reduce the insurance provided thereby. All
such policies shall be primary and non-contributing with or in excess of any
insurance carried by Landlord. Tenant shall not do any act which may make void
or voidable any insurance on the Premises; and, in the event Tenant's use of the
Premises shall result in an increase in Landlord's insurance premiums, Tenant
shall pay to Landlord upon demands, as Additional Rent, an amount equal to such
increase in insurance. See Additional Provisions, Section 40.
Notwithstanding anything to the contrary in this Lease, it is expressly
agreed that the parties shall each bear the risk of their own property; and each
party hereby waives any and all right of recovery against the other party
directly, by way of subrogation or otherwise, due to the negligence of either
party, their agents or employees, for any real or personal property damage
occurring to the Premises, or to any personal property located therein (whether
or not the parties carry, or are required to carry, insurance for the same). The
parties shall each have the affirmative duty to inform their respective
insurance carriers of this Section and the mutual waiver of subrogation
contained herein.
15. MORTGAGES. This Lease is subject and subordinated to any mortgages, deeds
of trust or underlying leases, as well as to any extensions or modifications
thereof (hereinafter collectively referred to as "Mortgages"), now of record or
hereafter placed of record. In the event Landlord exercises its option to
further subordinate this Lease, Tenant shall at the option of the holder of said
Mortgage attorn to said holder. Any subordination shall be self-executing, but
Tenant shall at the written request of Landlord, execute such further assurances
as Landlord deems desirable to confirm such subordination. In the event Tenant
should fail or refuse to execute any instrument required under this Section,
within fifteen (15) days after Landlord's request, Landlord shall be granted a
limited power of attorney to execute such instrument in the name of Tenant. In
the event any existing or future lender, holding a mortgage, deed of trust or
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other commercial paper, requires a modification of this Lease which does not
increase Tenant's Rent hereunder, or does not materially change any obligation
or right of Tenant hereunder, Tenant agrees to execute appropriate instruments
to reflect such modification, upon request by Landlord.
16. LIENS. Tenant shall not mortgage or otherwise encumber or allow to be
encumbered its interest herein without obtaining the prior written consent of
Landlord. Should Tenant cause any mortgage, lien or other encumbrance
(hereinafter singularly or collectively referred to as "Encumbrance") to be
filed, against the Premises, Tenant shall dismiss or bond against same within
fifteen (15) days after the filing thereof. If Tenant fails to remove said
Encumbrance within said fifteen (15) days, Landlord shall have the absolute
right to remove said Encumbrance by whatever measures Landlord shall deem
convenient including, without limitation, payment of such Encumbrance, in which
event Tenant shall reimburse Landlord, as Additional Rent, all costs expended by
Landlord, including reasonable attorneys fees, in removing said Encumbrance. All
of the aforesaid rights of Landlord shall be in addition to any remedies which
either Landlord or Tenant may have available to them at law or in equity.
17. GOVERNMENT REGULATIONS. In addition, Tenant shall comply with any
reasonable requirements of Landlord's insurance carrier with respect to Tenant's
use of the Premises. The judgment of any court, or an admission of Tenant in any
action or proceeding at law, whether Landlord is a party thereto or not, shall
be conclusive of the fact as between Landlord and Tenant. See Additional
Provisions, Section 41.
18. NOTICES. All Rents which are required to be paid by Tenant shall be
delivered to Landlord by the United States mail, postage prepaid, at Landlord's
address set forth below. All notices which are required to be given hereunder
shall be in writing, and delivered by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to the parties hereto
at their respective addresses below:
LANDLORD: TENANT:
Xxxxxx Xxxxxxxx Company Applied Communications, Inc.
0000 Xxxxxxx Xxxxxxxxx 000 Xxxxx 000xx Xxxxxx
Xxxxxxx, XX 00000-0000 Xxxxx, XX 00000
Either party may designate a different address by giving notice to the other
party, at such party's last known address.
19. OWNERSHIP. Notwithstanding anything to the contrary in this Lease, the
term "Landlord", as used herein, shall be defined as the current owners of the
Premises. In the event the Premises are transferred, the party conveying same
shall be released from all liability with respect to any obligations thereafter
occurring or covenants thereafter to be performed by the Landlord or its agents.
It is expressly understood and agreed that none of Landlord's covenants under
this Lease are personal in nature, and that Tenant agrees to look solely to the
Premises for recovery of any damages for the breach or non-performance of any of
the obligations of Landlord hereunder. See Additional Provisions, Section 40.
21. ESTOPPEL CERTIFICATES. Within thirty (30) days after Landlord's request,
Tenant shall execute and return to Landlord or its designee a statement in a
form reasonably requested by Landlord certifying, to the extent true, that this
Lease is unmodified and in full force and effect, that Tenant has no defenses,
offsets or counterclaims against its obligations to pay any Rent or to perform
any other covenants under this Lease, that there are no uncured Defaults of
Landlord or Tenant, the dates to which
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the Rent and other charges have been paid, and any other information reasonably
requested by Landlord. In the event Tenant fails to return such statement within
said thirty (30) days, setting forth the above or, alternatively, setting forth
any lease modifications, defenses and/or uncured Defaults, Tenant shall be in
Default hereunder or, at Landlord's election, it shall be deemed that Landlord's
statement is correct with respect to the information therein contained. Any such
statement delivered pursuant to this Section may be relied upon by any
prospective purchaser, mortgagee, or assignee of any mortgagee of the Premises.
23. BROKERAGE. The parties warrant that they have dealt with no broker or
other person claiming a commission in connection with this transaction other
than Xxxxxx Xxxxxxxx Company; and each party shall hold the other party harmless
for any breach of such warranty. Landlord shall be liable for any commissions
payable to the aforesaid brokers.
24. SEVERABILITY. In the event any provision of this Lease is found to be
invalid or unenforceable, the same shall not affect or impair the validity or
enforceability of any other provision.
25. PERSONAL PROPERTY TAXES. Tenant shall timely pay all taxes assessed
against Tenant's personal property and those improvements to the Premises which
are in excess of Landlord's standard installations. In the event any of Tenant's
personal property or improvements are assessed with the property of Landlord,
Tenant shall pay to Landlord an amount equal to Tenant's share of such taxes,
within ten (10) days after receipt of Landlord's statement.
26. CONFIDENTIALITY. The parties acknowledge that the terms and conditions
set forth in this Lease are confidential in nature, and that the negotiations
preceding the drafting of this instrument are private as between Landlord and
Tenant. Therefore, neither party or its agents (including their respective
brokers and attorneys) shall disclose any of the terms or conditions herein
contained to any person other than authorized agents.
27. MISCELLANEOUS. (a) All of the covenants of Tenant hereunder shall be
deemed and construed to be "conditions" as well as "covenants", as though both
words were used in each separate instance within this Lease.
(b) This Lease shall not be recorded by Tenant without the prior written
consent of Landlord.
(c) The Section headings appearing in this Lease are inserted only as a
matter of convenience, and in no way define or limit the scope of any Section.
(d) Except with respect to Tenant's obligation for the payment of Rent, in
the event any obligation to be performed by either Landlord or Tenant is
prevented or delayed due to labor disputes, acts of God, inability to obtain
materials, government restrictions, casualty, or other causes beyond the
parties' control, the responsible party shall be excused from performing such
obligation for a period of time equal to any such delay.
(e) The submission of this Lease shall not be deemed to be an offer, an
acceptance, or a reservation of the Premises; and Landlord shall not be bound
hereby until Landlord has delivered to Tenant a fully executed copy of this
Lease, signed by both of the parties on the last page of this Lease in the
spaces herein provided. Until such delivery, Landlord reserves the right to
exhibit and lease the Premises to other prospective tenants.
(f) Landlord may withhold possession of the Premises from Tenant until such
time as Tenant has paid to Landlord the security deposit pursuant to Section 20
of this Lease, and the first month of Base Rent pursuant to Subsection 3(a) of
this Lease.
(g) This Lease and the parties' respective rights hereunder shall be governed
by the laws of the State of Nebraska.
(h) All of the terms of this Lease shall extend to and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
7
(i) This Lease is modified and affected by the following Exhibits which are
attached hereto and made a part hereof.
Exhibit "A": Rules and Regulations
WHEREFORE, Landlord and Tenant have respectively signed and sealed this Lease
the day and year first above written.
TENANT: LANDLORD:
APPLIED COMMUNICATIONS, INC. XXXXXX XXXXXXXX
a Nebraska corporation COMPANY,
Agent for the Owner
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxxx
Print Name:Xxxxxxx X. Xxxxx Print Name: Xxxxxxxx X. Xxxxxx
Title: Chief Financial Officer Title: Senior Vice President
8
ADDITIONAL PROVISIONS TO LEASE OF EVEN DATE HEREWITH
BY AND BETWEEN XXXXXX XXXXXXXX COMPANY, AS LANDLORD,
AND APPLIED COMMUNICATIONS, INC., AS TENANT
28. TERMINATION OF EXISTING LEASE. With respect to Section 1 of this Lease,
the parties acknowledge that Tenant is presently occupying the Premises under
that certain Lease, dated July 28, 1983, by and between Xxxxxx Xxxxxxxx Company,
as successor-in-interest to W. Eljay Co., and Applied Communications, Inc.
(hereinafter referred to as the "1983 Lease"). Said 1983 Lease is hereby
terminated, effective as of the commencement date of this Lease; and, upon such
date, all rights and obligations under said 1983 Lease shall be mutually
extinguished without further liability, except for those obligations (rents, and
other charges) which have accrued, but which may not have been either invoiced
or paid as of such date of termination. It is agreed between the parties that
any outstanding obligation under said 1983 Lease shall become an obligation
under this Lease; and, should Tenant fail to perform or pay any such obligation,
Tenant shall be in Default under this Lease in the same manner and to the same
extent as if the nonperformance or non-payment of such obligation was a Default
of a direct obligation under this Lease.
29. TENANT FINISH. With respect to Section 1 of this Lease, Tenant shall have
the right and option to have certain interior finish work performed within the
Premises. Such work shall be performed by Landlord or Tenant at Tenant's
election; however, all such work shall be subject to Landlord's prior approval,
which approval shall not be unreasonably withheld. Should Landlord undertake
such work, Tenant shall have the affirmative duty to review the plans for the
contemplated work for compliance with the requirements of the Americans with
Disabilities Act of 1990, and Tenant shall hold Landlord harmless with respect
to such compliance so long as Landlord performs the work according to such
plans. Should Tenant undertake such work, Tenant shall be solely responsible for
compliance with such Act, notwithstanding Landlord's approval of any plans. Any
changes, alterations, or additions made to the original approved plans shall be
in writing and also approved by Landlord prior to construction.
Landlord shall contribute toward the actual costs of Tenant's interior finish
in the amount of One Hundred Fifty Thousand and 00/100 ($150,000.00) Dollars.
Should Landlord perform such interior finish, Landlord shall directly pay for
such work; and in the event the actual costs exceed $150,000.00, Tenant shall
reimburse Landlord the actual costs of such interior finish work in excess of
Landlord's aforesaid contribution, within thirty (30) days after receipt of
Landlord's statement. Should Tenant perform such interior finish, Landlord shall
reimburse Tenant for the costs of same upon receipt of copies of paid invoices,
and all applicable lien waiver(s), but in no event more than $150,000.00.
Tenant acknowledges that the aforesaid work shall be performed while Tenant
is in possession of the Premises. In the event Tenant is inconvenienced by such
work, Tenant shall make no claim against Landlord, nor shall any Rent payable to
Landlord be reduced or abated while Landlord is performing such work. However,
Landlord shall remain liable for any personal injuries suffered by Tenant or
Tenant's invitees directly in the event such damage is caused by the negligence
of Landlord.
30. BASE RENT. With respect to Section 3(a) of this Lease, Tenant shall pay
to Landlord the following Base Rent, on the first day of each calendar month, in
advance, without setoff or deduction, at the office of Landlord:
(a) For the period January 1, 1993 through and including December 31, 1993,
Tenant shall pay to Landlord, as Base Rent, an amount equal to Eight Hundred
Thirty-three Thousand, Four and 00/100 ($833,004.00) Dollars, payable in equal
monthly installments of Sixty-nine Thousand, Four Hundred Seventeen and 00/100
($69,417.00) Dollars each.
(b) For the period January 1, 1994 through and including December 31, 1994,
Tenant shall pay to Landlord, as Base Rent, an amount equal to Eight Hundred
Fifty-seven Thousand, Four Hundred Ninety-six and 00/100 ($857,496.00) Dollars,
payable in equal monthly installments of Seventy-one Thousand, Four Hundred
Fifty-eight and 00/100 ($71,458.00) Dollars each.
(c) For the period January 1, 1995 through and including December 31, 1995,
Tenant shall pay to Landlord, as Base Rent, an amount equal to Eight Hundred
Eighty-two Thousand and 00/100 ($882,000.00) Dollars, payable in equal monthly
installments of Seventy-three Thousand, Five Hundred and 00/100 ($73,500.00)
Dollars each.
(d) For the period January 1, 1996 through and including December 31, 1996,
Tenant shall pay to Landlord, as Base Rent, an amount equal Nine Hundred Nine
Thousand, Nine Hundred Ninety-six and 00/100 ($909,996.00) Dollars, payable in
equal monthly installments of Seventy-five Thousand, Eight Hundred Thirty-three
and 00/100 ($75,833.00) Dollars each.
1
(e) For the period January 1, 1997 through and including December 31, 1997,
Tenant shall pay to Landlord, as Base Rent, an amount Nine Hundred Thirty-eight
Thousand, Four and 00/100 ($938,004.00) Dollars, payable in equal monthly
installments of Seventy-eight Thousand, One Hundred Sixty-seven and 00/100
($78,167.00) Dollars each.
(f) For the period January 1, 1998 through and including December 31, 1998,
Tenant shall pay to Landlord, as Base Rent, an amount equal to Nine Hundred
Seventy-two Thousand, Nine Hundred Ninety-six and 00/100 ($972,996.00) Dollars,
payable in equal monthly installments of Eighty-one Thousand, Eighty-three and
00/100 ($81,083.00) Dollars each.
(g) For the period January 1, 1999 through August 31, 1999, Tenant shall pay
to Landlord, as Base Rent, an amount equal to Six Hundred Sixty-seven Thousand,
Three Hundred Thirty-eight and 00/100 ($667,338.00) Dollars, payable in equal
monthly installments of Eighty- three Thousand, Four Hundred Seventeen and
25/100 ($83,417.25) Dollars each.
31. TAXES. With respect to Section 3(b) of this Lease, Landlord agrees to use
good faith efforts to timely review all Tax assessments or governmental charges
assessed against the Property, and to challenge any assessment when, in
Landlord's reasonable belief, the same could profitably be challenged. Landlord
agrees to provide Tenant with copies of any notices proposing increases in the
payment of Taxes upon the Property, upon request by Tenant, received by Landlord
no earlier than sixty (60) days prior to the last date established by law to
challenge such Taxes. In the event Landlord elects not to challenge any Tax or
assessment, Tenant shall have the right to independently make such challenge,
and Landlord agrees to cooperate with Tenant in such regard. Any such challenge
undertaken by Tenant shall be at Tenant's sole cost and expense. In the event
Tenant is successful with its challenge, Landlord shall reimburse to Tenant each
year that portion of the cost of such challenge which reflects the actual Tax
savings enjoyed by the Property for that year. However, it is expressly
understood that Landlord shall have no obligation to make any reimbursement
unless and until Landlord has actually received the Tax refund for such
challenge, so that Landlord does not have to come out-of-pocket for any such
challenge. In no event shall Landlord's total reimbursement exceed the total
actual Tax savings enjoyed by the Property. Once Landlord has reimbursed Tenant
for such expense, the same shall become an Operating Expense of the Property,
for which Tenant shall be liable for its proportionate share under the Lease. In
no event shall Landlord be required to challenge any assessment or Tax which
Landlord in good faith believes would not be successful. Tenant shall have no
right to withhold the payment of Tenant's proportionate share of Taxes during
the pendency of any proceeding or contest, whether instituted by either Landlord
or Tenant.
32. EXCLUSIONS FROM OPERATING EXPENSES. Notwithstanding anything to the
contrary in Section 3(b) of this Lease, Operating Expenses shall not include the
following.
(a) Legal fees, brokerage fees, leasing commissions, advertising costs, or
other related expenses incurred by Landlord in connection with the leasing of
the Property.
(b) Repairs, alterations, additions, improvements or replacements of a
capital nature made to rectify or correct any defect in the original design,
materials or workmanship of Landlord's building.
(c) Repairs to the Property as a result of any fire or other casualty
for which Landlord is reimbursed by insurance.
(d) Repairs to the Property as a result of any willful misconduct of Landlord
or Landlord's agents, and repairs to the Property as a result of any negligence
or willful misconduct of Landlord's contractors for which Landlord is
reimbursed.
(e) Charges for any portion of salaries or other benefits of Landlord's
officers or personnel, except those engaged in full-time management or
maintenance and operation of the Property, it being understood that a pro rata
portion of such salaries and other benefits may be charged for personnel working
part-time on the management or maintenance and operation of the Property, who
are also working part-time on other properties or other matters.
(f) Landlord's general overhead expenses which are not related to the
Property; it being understood that a pro rata portion of such overhead expenses
may be charged for such expenses which are incurred both in connection with the
Property and other properties managed by Landlord.
(g) Legal fees, accounting fees, and other expenses incurred in connection
with disputes with tenants or other occupants of the Property, or associated
with the enforcement of the terms of any leases with tenants, or the defense of
Landlord's title to, or interest, in the Property.
(h) Costs incurred due to a willful violation by Landlord of any term or
condition of this Lease or any third party lease within the Property.
2
(i) Costs (including permits, licensing and inspection fees) incurred in
renovating or otherwise improving, decorating, painting or altering space for
tenants or other occupants, or vacant space (excluding common areas) in the
Property, which are performed in connection with the leasing or re-leasing of
space, as opposed to the Landlord's repair obligations under any lease with any
tenant.
(j) Any real estate operating expense which, under generally-accepted
accounting principles consistently applied, would not be considered a reasonable
maintenance or operating expense of similar real estate.
(k) Any expense for which Landlord has been reimbursed, it being understood
between the parties that Landlord shall not collect in excess of one hundred
(100%) percent of its actual Operating Expenses, and shall not recover the cost
of any items more than once.
(l) Salaries of building management personnel who perform services solely
connected with the management, operations, repair or maintenance of the
building, which exceeds three (3%) percent of the gross revenues of the Property
per year.
(m) Alterations, additions, improvements or replacements of a capital nature
made to the roof or the heating and air conditioning system servicing the
Property; it being understood, however, that all repairs not of a capital
nature, made to the roof or the heating and air conditioning system. may be
included as an Operating Expense.
(n) Any principal or interest payments on the original purchase or
refinancing of the Property, or in connection with any capital expenditures made
to or with respect to the Property.
(o) Amortization, debt service, or other payments on loans to Landlord.
(p) Depreciation on Landlord's building, or any equipment therein, except as
expressly provided with respect to those items which reduce other Operating
Expenses, as more fully set forth in Section 3(b).
33. TENANT'S AUDIT. In the event Tenant elects to perform an audit of
Landlord's records, pursuant to Section 3(b) of this Lease, and in the further
event said audit discloses a net error in favor of Tenant of five (5%) percent
or greater, Landlord shall reimburse to Tenant the reasonable cost of such audit
within thirty (30) days after receipt of a copy of such audit disclosing
Landlord's error.
34. PARKING. With respect to Section 4(e) of this Lease, Landlord represents
and warrants that, so long as Tenant occupies and leases the entire building
constituting the Premises, Tenant shall have the exclusive right to use the
entire parking lot servicing the Property.
35. INTERRUPTION OF SERVICES. Notwithstanding anything to the contrary in
Section 4 of this Lease, in the event there is an interruption in services which
is not due in part to the negligence of Tenant and, as a direct result of such
interruption, Tenant is unable to conduct its business in the Premises, Landlord
shall not be liable to Tenant, but the Base Rent payable to Landlord shall be
abated from the fourth (4th) day after such interruption until such time as such
services are reinstated or Tenant again occupies the Premises.
36. RULES AND REGULATIONS. With respect to Section 6(h) of this Lease, Tenant
shall not be obligated to comply with any newly established Rule or Regulation
until such time as Tenant has received written notice thereof; and Tenant shall
not be in Default of any Rule or Regulation unless Tenant has failed to comply
with the same within thirty (30) days after receipt of written notice from
Landlord.
37. TENANT'S ALTERATIONS. Landlord agrees not to unreasonably withhold its
consent to any non-structural alterations, improvements or additions made to the
Premises; however, Landlord's consent shall not be deemed to be unreasonably
withheld if, as a condition to such consent, Landlord requires Tenant to restore
the Premises upon the termination of this Lease to substantially the same
condition which existed prior to Tenant making such alterations. In the event
Landlord elects to perform any alterations, improvements or additions to the
Premises on behalf of Tenant, and in the event the estimated cost thereof is
Twenty Thousand and 00/100 ($20,000.00) Dollars or more, Landlord agrees to
first secure bids from at least three (3) qualified contractors before
commencing such work.
Notwithstanding anything to the contrary in said Section 7, Tenant shall have
the absolute right upon the termination of this Lease to remove from the
Premises all of its trade fixtures including, without limitation, any
specially-installed computer floors, dedicated HVAC equipment, and other easily
removable improvements. Should Tenant elect to remove any such trade fixtures,
Tenant shall repair any damage caused to the Premises as a result thereof.
3
38. SUBLEASING AND ASSIGNING. Notwithstanding anything to the contrary in
Section 8 of this Lease, Tenant shall not require Landlord's prior written
consent to assign or sublease any portion of the Premises to any parent,
subsidiary or controlled affiliate company of Tenant. However, Tenant shall
nevertheless be obligated to inform Landlord of such assignment/sublease,
identify the name of all assignees/subtenants, provide Landlord with a copy of
the applicable assignment/sublease documents, and provide Landlord with any
other reasonable information in connection with such assignment/sublease.
39. TENANT'S DEFAULT. Notwithstanding anything to the contrary in Sections 9
and 11 of this Lease, Landlord agrees that, except for a Default in the payment
of any Rent or other charge, Landlord shall not enforce any of its rights under
said Sections so long as Tenant commences to cure said Default within fifteen
(15) days after receipt of written notice from Landlord, and thereafter proceeds
with all due diligence to continue to cure such Default through completion.
Notwithstanding anything to the contrary in this Lease, in the event any term
or condition of this Lease conflicts with any rights afforded Tenant under the
laws of the State of Nebraska, it is agreed that such term or condition shall be
modified to the extent necessary to comply with said laws.
40. LANDLORD'S INSURANCE. With respect to Section 14 of this Lease, Landlord
agrees to maintain in full force and effect throughout the term of this Lease a
general liability policy covering the Property with limits of not less than Five
Million Dollars.
41. GOVERNMENT REGULATIONS/ADA. With respect to Section 17 of this Lease,
Landlord shall use good faith efforts to comply with all laws and regulations of
any municipal, state, or federal authorities, including all requirements of the
Americans with Disabilities Act of 1990 (hereinafter collectively referred to as
"Laws"), as the same relate to the common areas of the Property, and those
portions of the Property and/or Premises under Landlord's primary control.
Landlord shall also comply with said Laws as they relate to Landlord's
obligation in connection with the construction of Tenant's interior finish.
Tenant shall comply with all said Laws as they relate to the areas of the
Premises under Tenant's primary control and Tenant's use of the Premises. Should
Tenant subsequently elect to undertake any alterations, additions or
construction within the Premises, Tenant shall be solely responsible for, and
Tenant shall hold Landlord harmless from, any liability as a result of any
non-compliance with said Laws in connection with Tenant's work; further,
Landlord's approval of any of Tenant's plans or specifications shall not relieve
Tenant of any such responsibility, or cause Landlord to incur any liability.
42. CONSULTANT FEES. The parties acknowledge that the Stuart Cott Company
(hereinafter referred to as "Cott") has acted as a consultant on behalf of
Tenant pursuant to a separate agreement between such parties. Landlord agrees to
directly pay Cott its consulting fees in an amount not to exceed the amount set
forth in that certain letter agreement between Landlord and Cott, dated October
26, 1992. In the event Landlord does not pay Cott such fees within sixty (60)
days after the execution of this Lease, Tenant shall have the right to pay such
fees to Cott, in which event Tenant shall have the right to offset the amount
thereof from any Rent due Landlord under this Lease.
WHEREFORE, Landlord and Tenant have executed these Additional Provisions to
Lease the day and year first above written.
TENANT: LANDLORD:
APPLIED COMMUNICATIONS, INC. XXXXXX XXXXXXXX COMPANY,
a Nebraska corporation Agent for the Owner
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxx
Chief Financial Officer Senior Vice President
4
EXHIBIT "A"
RULES AND REGULATIONS
Tenant agrees to comply with the following rules and regulations which
Landlord may reasonably modify from time to time. Landlord shall not be liable
for the non-observance of said rules and regulations by any other tenant.
(1) No sign or advertisement shall be displayed by Tenant on the outside or
the inside (and visible from the outside) of the Premises without the prior
written consent of Landlord. Notwithstanding the aforesaid, so long as Tenant
occupies and leases seventy-five (75%) percent or more of the Premises, Tenant
shall have the right to install whatever signage Tenant deems necessary upon or
about the Property, so long as such signage is in compliance with municipal code
and (in the event Tenant is no longer the exclusive user of the Property) the
placement of such signage does not unreasonably interfere with any other
tenant's use or enjoyment of the Property. Tenant shall not use any picture or
likeness of the Premises in any notices or advertisements, without Landlord's
prior written consent, which consent shall not be unreasonably withheld.
(2) No additional locks shall be placed upon any door of the Premises,
without the prior consent of Landlord.
(3) Landlord retains the power to prescribe the weight and proper position of
any bulky or excessively weighty objects which Tenant elects to place upon the
roof of the Property. All such objects shall be installed under the prior
written consent and supervision of Landlord and at such times and according to
such reasonable regulations as may be designated from time to time by Landlord.
Notwithstanding such supervision or the waiver of liability set forth in Section
14, Tenant shall be responsible for all damage to the Premises and to persons
caused by the placement, existence, maintenance and removal of such objects.
(4) Tenant shall not use any other fuel source other than electricity to
heat, cool or light the Premises.
(5) Tenant shall not store in the Premises any waste paper, sweepings, rags,
rubbish or other combustible matter, nor shall Tenant bring into the Premises
any hazardous wastes, kerosene, oil or other highly combustible material, except
as disclosed to Landlord for normal business operations.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE, made and entered into this 9th day of
September, 1998, by and between Xxxxxx Realty Trust, Inc., a Missouri
corporation, through its agent, Xxxxxx, Inc., a Missouri corporation
(hereinafter referred to as "Landlord") and Applied Communication, Inc., a
Nebraska corporation (hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain ACI Building Lease,
dated December 28, 1992 (hereinafter referred to as "Lease"), for certain space
known and numbered as 000 X. 000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000, containing
approximately 70,000 square feet of space (hereinafter referred to as the
"Premises"); and
WHEREAS, the primary term of said Lease commenced on January 1, 1993 and
shall expire on August 31, 1999; and
WHEREAS, both Landlord and Tenant are desirous of amending said Lease;
NOW THEREFORE, for and in consideration of the foregoing, and the mutual
covenants set forth below, it is agreed that said Lease is hereby modified and
amended as follows:
1. Term. Notwithstanding the stated expiration date set forth in said Lease,
the current lease term shall terminate on August 31, 1998, but shall thereafter
be extended and re-established for a new ten (10) year term, commencing
September 1, 1998 through and including August 31, 2008, upon the same terms and
conditions as said Lease, except as set forth below.
2. Construction. Tenant hereby ratifies acceptance of the Premises in its
present "AS IS" condition; and, except as set forth below, Tenant acknowledges
that Landlord has made no representations to Tenant with respect to any other
alterations, repairs or improvements to be performed by Landlord within the
Premises.
Tenant shall have the right and option to perform certain interior finish
work within the Premises, on the condition that all such work is performed in
accordance with plans and specifications prepared by Tenant and approved in
writing by Landlord, which approval shall not be unreasonably withheld. It is
expressly understood that any plans prepared by or on behalf of Tenant shall
incorporate all requirements of the Americans with Disabilities Act of 1990, and
Tenant shall be solely responsible for compliance with such Act, and hold
Landlord harmless therefrom, notwithstanding Landlord's approval of any plans or
construction. Additionally, in the event said Act is later modified or
interpreted differently by applicable governmental authorities, Tenant shall
conform with all such modifications and/or interpretations at Tenant's sole
cost.
Tenant shall select and contract directly with the general contractor
performing such interior finish work; however, such contractor shall be subject
to Landlord's prior approval, which approval shall not be unreasonably withheld.
Any changes, alterations, or additions made to the original approved plans shall
be in writing and also approved by Landlord prior to construction.
Landlord shall contribute an allowance toward the actual cost of Tenant's
interior finish work in an amount not to exceed Three Hundred Fifty Thousand and
00/100 Dollars ($350,000.00), upon the following terms and conditions. Tenant
must complete all interior finish work for which Tenant may apply the aforesaid
allowance, as well as submit to Landlord all paid invoices and lien waivers for
all such work, no later than August 31, 2001; and, to the extent any portion of
the aforesaid allowance is not supported by paid invoices and lien waivers as of
such date, such unsupported portion shall be forfeited. On or before October 1
of each year of the first three years of the re-established lease term (October
1, 1998, 1999 and 2000), Tenant shall submit to Landlord in writing a budget
estimate of the interior finish costs Tenant anticipates spending in the
following twelve (12) months. Such estimate shall be reasonably detailed,
identifying the general work to be performed and the associated costs thereof.
To the extent the actual interior finish costs are less than the budgeted costs
for the applicable year, the excess unused funds shall be made available to
Tenant in the subsequent year(s) (but not beyond August 31, 2001). To the extent
the actual interior finish costs exceed the budgeted cost by fifteen percent
(15%) or more for the applicable year, Landlord reserves the right to withhold
reimbursement to Tenant for that portion of the actual costs in excess of said
fifteen percent (15%) until the following year (but not beyond August 31, 2001).
In the event the total cost of Tenant's interior finish exceed the aforesaid
cash allowance, Tenant shall be solely liable for all such excess costs.
All construction undertaken by Tenant shall be in compliance with state,
federal, and local codes, and shall be built in a good and workmanlike manner,
and shall be subject to Landlord's inspection from time to time. Tenant shall
indemnify and hold Landlord harmless from any and all claims and damages
(including reasonable attorneys' fees), to persons or property of Landlord or
third persons, caused by Tenant's construction. Tenant shall also indemnify
Landlord against any mechanic's liens or other liens arising out of any
construction performed by or on behalf of Tenant; and Tenant, shall within
thirty (30) days after any construction furnish to Landlord lien waivers for all
work performed and materials furnished. In the event a lien is filed against the
Property for any reason as a result of any construction performed or alleged to
have been performed by or on behalf of Tenant, Tenant shall remove such lien
within fifteen (15) days. Should Tenant fail to remove any such lien within said
fifteen (15) days, Landlord shall have the absolute right to cause such lien to
be removed by whatever measures as Landlord, in Landlord's sole discretion,
shall deem convenient or necessary including, without limitation, payment to any
contractor, subcontractor, laborer, supplier or materialman (and any relating
attorney's fees) to extinguish such lien; and, in such event, Tenant shall pay
to Landlord, as Additional Rent, all of Landlord's costs and expenses including,
without limitation, any payment made by Landlord to any contractor,
subcontractor, laborer, supplier or materialman, the payment of any attorneys'
fees of any lienholder, as well as the payment of Landlord's attorneys' fees to
extinguish such lien.
Upon the termination of said Lease, all improvements made by Tenant to the
Premises which are pre-approved in writing by Landlord shall be delivered to
Landlord with the Premises. All improvements made by Tenant to the Premises
which are not pre-approved in writing by Landlord shall, at the option of
Landlord, be either delivered to Landlord with the Premises or removed by Tenant
prior to the lease termination date. In the event Landlord elects for Tenant to
remove any such improvements, Tenant shall repair and restore the Premises to a
condition substantially similar to the condition of such space immediately prior
to the installation of such improvements; and, in the event Tenant fails to make
such repairs and restoration, Tenant shall be liable for the costs thereof,
which liability shall survive the termination of said Lease.
Tenant acknowledges that the aforesaid work shall be performed while Tenant
is in possession of the Premises. In the event Tenant is inconvenienced by such
work, there shall be no Rent abatement or reduction of Rent payable to Landlord,
it being agreed that Tenant shall bear all responsibility and risk of
inconvenience associated with any construction.
3. Rent. Effective September 1, 1998, Tenant shall pay to Landlord the
following Base Rent, during the lease term, on the first day of each calendar
month, prior to demand, in advance, without setoff or deduction, at the office
of Landlord, pursuant to the terms and conditions of said Lease:
MONTHLY ANNUAL
PERIOD BASE RENT BASE RENT
===================================== ============== ===============
September 1, 1998 - December 31, 1998 $82,250.00 N/A
January 1, 1999 - December 31, 1999 $82,250.00 $987,000.00
January 1, 2000 - December 31, 2000 $84,717.50 $1,016,610.00
January 1, 2001 - December 31, 2001 $87,259.03 $1,047,108.00
January 1, 2002 - December 31, 2002 $89,876.80 $1,078,522.00
January 1, 2003 - December 31, 2003 $92,573.17 $1,110,878.00
January 1, 2004 - December 31, 2004 $95,350.33 $1,144,204.00
January 1, 2005 - December 31, 2005 $98,210.83 $1,178,530.00
January 1, 2006 - December 31, 2006 $101,157.17 $1,213,886.00
January 1, 2007 - December 31, 2007 $104,191.92 $1,250,303.00
January 1, 2008 - August 31, 2008 $107,317.64 N/A
4. Additional Rent. Effective September 1, 1998, Tenant's obligations with
respect to Additional Rent shall be adjusted such that Tenant shall pay to
Landlord, as Additional Rent, an amount equal to Tenant's proportionate share of
any increase in Taxes and Operating Expenses (as all such terms are used from
time to time in said Lease) over the Taxes and Operating Expenses for the 1999
calendar year.
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5. Roof. Landlord agrees to have the roof inspected by an independent third
party roof consultant. Landlord acknowledges that roof replacement may be
necessary during the term of this Lease, and the replacement of the roof is a
capital item and is the responsibility of Landlord.
6. Brokerage. Landlord and Tenant each warrant that they have dealt with no
broker or other person claiming a commission for or in connection with this
First Amendment to Lease, other than Xxxxxx, Inc.; and each party shall hold the
other party harmless for any breach of such warranty. Landlord shall be liable
for any commissions payable to the aforesaid broker.
7. Consultant Fees. The parties acknowledge that Tishman Real Estate Services
(hereinafter referred to as "Tishman") has acted as a consultant on behalf of
Tenant pursuant to a separate agreement between such parties. Landlord agrees to
directly pay Tishman its consulting fees in an amount not to exceed the amount
set forth in that certain letter agreement between Landlord and Tishman, dated
July 8, 1998. In addition, Landlord agrees to pay directly to Tenant the sum of
Fifty-one Thousand, One Hundred Fourteen and 56/100 Dollars ($51,114.56). In the
event Landlord does not pay Tishman such fees within sixty (60) days after the
execution of this Amendment, Tenant shall have the right to pay the applicable
unpaid (portion) of such fees to Tishman, and offset the amount thereof,
together with an amount equal to any consulting fees from any Rent due Landlord
under said Lease. In the event Landlord timely pays Tishman and Tenant the
aforesaid consulting fees, Tenant shall indemnify and hold Landlord harmless
from any claims by Tishman for any additional fees payable to Tishman in
connection to the consummation of this Amendment.
8. Acknowledgment. Tenant acknowledges that, as of the date of this
Amendment, Landlord is not in default of any term or condition of said Lease and
that the Premises are not in need of repair or maintenance; and, except as
specifically set forth in Section 2 above, Tenant hereby ratifies acceptance of
the Premises in its present "AS IS" condition.
Except as hereby amended, all other terms and conditions of said Lease shall
remain unchanged, and shall be in full force and effect as if again recited
herein.
WHEREFORE, the parties have executed this First Amendment to Lease the day
and year first above written.
LANDLORD: TENANT:
XXXXXX, INC., APPLIED COMMUNICATIONS, INC.,
Agent for the Owner a Nebraska corporation
By: /s/ Xxxxxxxx x. Xxxxxx By: /s/ Xxxxxx Xxxxxx
Xxxxxxxx X. Xxxxxx Xxxxxx Xxxxxx
President Vice President-Finance
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