EXHIBIT 10.1(cc)
BUSINESS PROPERTY LEASE This is a legally binding contract prepared on behalf
of the Building Owners and Managers Association of
Omaha, Inc., which assumes no responsibility for its
content.
________________________________________________________________________________
THIS LEASE is entered into this 20th day of June, 1997, between Xxxx X.
Xxxxx, Landlord, and D/B/A CVE Services Group, CVE Corporation Wholly Owned by
PMT Services, Inc., Tenant.
PREMISES
1. Landlord leases to Tenant 000 X. 000 Xxxxxx, Xxxxx, XX 00000 Omaha,
Xxxxxxx County, Nebraska, (the "Premises"), containing approximately 16,000
square feet of area, on the following terms and conditions.
TERM
2. This Lease shall be for a term of five (5) years, beginning on the 1st
day of October, 1997, and ending on the 30th day of September, 2002, unless
terminated earlier as provided in this Lease.
If for any reason the Premises are delivered to Tenant on any date before
or after the term commencement date, rental for the period between the date of
possession and the term commencement date shall be adjusted on a pro rata basis.
Such earlier or later taking of possession shall not change the termination date
of this Lease.
USE OF PREMISES
3. The Premises are leased to Tenant, and are to be used by Tenant, for
the purpose of office space and for no other purpose. Tenant agrees to use the
Premises in such a manner as to not interfere with the rights of other tenants
in the Real Estate, to comply with all applicable governmental laws, ordinances,
and regulations in connection with its use of the Premises, to keep the Premises
in a clean and sanitary condition, to keep the Premises in a safe condition and
to use all reasonable precaution to prevent waste, damage, or injury to the
Premises.
RENT
4. (a) Base Rent. The total Base Rent under this Lease is One Million
Seventy Six Thousand Seven Hundred Ninety Nine Dollars and 96 cents
($1,076,799.96). Tenant agrees to pay rent to Landlord at 00000 Xxxx Xxxxx
Xxxx, Xxxxx, XX 00000, or at any other place Landlord may designate in writing,
in lawful money of the United States, in monthly installments in advance, on the
first day of each month as follows:
For the period from October 1, 1997 to September 30, 1998, $16,333.33 per month
For the period from October 1, 1998 to September 30, 1999, $17,133.33 per month
For the period from October 1, 1999 to September 30, 2000, $18,000.00 per month
For the period from October 1, 2000 to September 30, 2001, $18,866.67 per month
For the period from October 1, 2001 to September 30, 2002, $19,400.00 per month
(b) Operating Expenses. In addition to the Base Rent, Tenant shall pay a
pro rata share of operating expenses of the real estate of which the Premises
are part, parking areas, and grounds ("Real Estate"). "Operating expenses"
shall mean all costs of maintaining and operating the Real Estate, including but
not limited to all taxes and special assessments levied upon the Real Estate,
fixtures, and personal property used by Landlord at the Real Estate, all
insurance costs, all costs of labor, material and supplies for maintenance,
repair, replacement, and operation of the Real Estate, including but not limited
to line painting, lighting, snow removal, landscaping, cleaning, and management
costs, including building superintendents. Operating Expenses shall not include
property additions and capital improvements to the real estate, alterations made
for specific tenants, depreciation of the Real Estate, debt service on long term
debt or income taxes paid by Landlord.
"Tenant's pro rata share" shall mean the percentage determined by dividing
the square feet of the Premises as shown in Paragraph 1, by the square feet of
store area of the Real Estate, as defined by the American National Standard
published by Building Owners and Managers Association which at the date hereof
is agreed to be 60,000 square feet.
Tenant's pro rata share of the Operating Expenses shall be determined on an
annual basis for each calendar year ending on December 31 and shall be pro rated
for the number of months Tenant occupied the Premises if Tenant did not occupy
the Premises the full year. Tenant shall pay Three Thousand Dollars ($3,000.00)
per month, on the first of each month in advance with rent for Tenant's
estimated pro rata share of the Operating Expenses. Landlord may change this
amount at any time upon written notice to Tenant. At the end of each year, an
analysis of the total year's Operating Expenses shall be presented to Tenant and
Tenant shall pay the amount, if any, by which the Tenant's pro rata share of the
Operating Expenses for the year exceeded the amount of the Operating Expenses
paid by Tenant. Tenant shall pay any such excess charge to the Landlord within
thirty (30) days after receiving the statement. In the event this Lease
terminates at any time other than the last day of the year, the excess Operating
Expenses shall be determined as of the date of termination. Upon termination of
this Lease, any overpayment of Operating Expenses by Tenant shall be applied to
the amounts due Landlord from Tenant under this Lease and any remaining
overpayment shall be refunded to Tenant.
(c) Payment of Rent. Tenant agrees to pay the Base Rent as and when due,
together with Tenant's share of the Operating Expenses and all other amounts
required to be paid by Tenant under this Lease. In the event of nonpayment of
any amounts due under this Lease, whether or not designated as rent, Landlord
shall have all the rights and remedies provided in this Lease or by law for
failure to pay rent.
(d) Late Charge. If the Tenant fails to pay the Base Rent together with
the Tenant's share of the Operating Expenses and all other amounts required to
be paid by Tenant under this Lease, on or before the third day after such
payments are due, Tenant agrees to pay Landlord a late charge of 5% per month.
(e) Security Deposit. As partial consideration for the execution of this
Lease, the Tenant has delivered to Landlord the sum of 0 as a Security Deposit.
The Security Deposit will be returned to Tenant at the expiration of this Lease
if Tenant has fully complied with all covenants and conditions of this Lease.
SERVICES
5. Landlord shall furnish water, gas, sewer, and electricity to the
Premises during normal business hours, and at such other times as Landlord may
deem necessary or desirable, in the manner customary to the Real Estate.
Landlord shall have the right to discontinue any service during any period for
which rent is not promptly paid by Tenant. Landlord shall not be liable for
damages, nor shall the rental be abated, for failure to furnish, or delay in
furnishing, any service when failure to furnish, or delay in furnishing, is
occasioned in whole or in part by needful repairs, renewals, or improvements, or
by any strike or labor
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controversy, or by any accident or casualty whatsoever, or by any unauthorized
act or default of any employee of Landlord, or for any other cause or causes
beyond the control of Landlord. Tenant shall pay when due, all water, gas,
electricity, sewer use fees, incurred at or chargeable to the Premises.
6. Tenant shall not assign this Lease or sublet the whole or any part of
the Premises, transfer this Lease by operation of law or otherwise, or permit
any other person except agents and employees of Tenant to occupy the Premises,
or any part thereof, without the prior written consent of Landlord. Landlord
may consider the following in determining whether to withhold consent: (a)
financial responsibility of the new tenant, (b) identity and business character
of the new tenant, (c) nature and legality of the proposed use of the Premises.
Landlord shall have the right to assign its interest under this Lease or
the rent reserved hereunder.
TENANT'S IMPROVEMENTS
7. Tenant shall have the right to place partitions and fixtures and make
improvements or other alterations in the interior of the Premises at its own
expense. Prior to commencing any such work, Tenant shall first obtain the
written consent of Landlord for the proposed work. Landlord may, as a condition
to its consent, require that Tenant give sufficient security that the Premises
will be completed free and clear of liens and in a manner satisfactory to
Landlord. Upon termination of this Lease, at Landlord's option, Tenant will
repair and restore the Premises to its former condition, at Tenant's expense, or
any such improvements, additions, or alterations installed or made by Tenant,
except Tenant's trade fixtures, shall become part of the Premises and the
property of the Landlord. Tenant may remove its trade fixtures at the
termination of this Lease provided Tenant is not then in default and provided
further that Tenant repairs any damage caused by such removal.
REPAIRS
8. Landlord agrees to maintain in good condition, and repair as necessary
the foundations, exterior walls and the roof of the Premises.
Tenant agrees that it will make, at its own cost and expense, all repairs
and replacements to the Premises not required to be made by Landlord, including,
but not limited to, all interior and exterior doors, door frames, windows, plate
glass, and the heating, air conditioning, plumbing and electrical systems
servicing the Premises. Tenant agrees to do all redecorating, remodeling,
alteration, and painting required by it during the term of the Lease at its own
cost and expense, to pay for any repairs to the Premises or the Real Estate made
necessary by any negligence or carelessness of Tenant or any of its agents or
employees or persons permitted on the Real Estate by Tenant, and to maintain the
Premises in a safe, clean, neat, and sanitary condition. Tenant shall be
entitled to no compensation for inconvenience, injury, or loss of business
arising from the making of any repairs by Landlord, Tenant, or other tenants to
the Premises or the Real Estate.
CONDITION OF PREMISES
9. Except as provided herein, Tenant agrees that no promises,
representations, statements, or warranties have been made on behalf of Landlord
to Tenant respecting the condition of the Premises, or the manner of operating
the Real Estate, or the making of any repairs to the Premises. By taking
possession of the Premises, Tenant acknowledges that the Premises were in good
and satisfactory condition when possession was taken. Tenant shall, at the
termination of this Lease, by lapse of time or otherwise, remove all of Tenant's
property and surrender the Premises to Landlord in as good condition as when
Tenant took possession, normal wear excepted.
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PERSONAL PROPERTY AT RISK OF TENANT
10. All personal property in the Premises shall be at the risk of Tenant
only. Landlord shall not be liable for any damage to any property of Tenant or
its agents or employees in the Premises caused by steam, electricity, sewage,
gas or odors, or from water, rain, or snow which may leak into, issue or flow
into the Premises from any part of the Real Estate, or from any other place, or
for any damage done to Tenant's property in moving same to or from the Real
Estate or the Premises. Tenant shall give Landlord, or its agents, prompt
written notice of any damage to or defects in water pipes, gas or warming or
cooling apparatus in the Premises.
LANDLORD'S RESERVED RIGHTS
11. Without notice to Tenant, without liability to Tenant for damage or
injury to property, person, or business, and without effecting an eviction of
Tenant or a disturbance of Tenant's use or possession or giving rise to any
claim for setoff or abatement of rent, Landlord shall have the right to:
(a) [Omitted]
(b) [Omitted]
(c) Have access to all mail chutes according to the rules of the United
State Post Office Department.
(d) At reasonable times, to decorate, and to make, at its own expense,
repairs, alterations, additions, and improvements, structural or otherwise, in
or to the Premises, the Real Estate, or part thereof, and any adjacent building,
land, street, or alley, and during such operations to take into and through the
Premises or any part of the Real Estate all materials required, and to
temporarily close or suspend operation of entrances, doors, corridors,
elevators, or other facilities to do so.
(e) [Omitted]
(f) [Omitted]
(g) Take any and all reasonable measures, including inspections or the
making of repairs, alterations, and additions and improvements to the Premises
or to the Real Estate, which Landlord deems necessary or desirable for the
safety, protection, operation, or preservation of the Premises or the Real
Estate.
(h) Approve all sources furnishing signs, painting, and/or lettering to
the Premises, and approve all signs on the Premises prior to installation
thereof.
INSURANCE
12. Tenant shall not use or occupy the Premises or any part thereof in any
manner which could invalidate any policies of insurance now or hereafter placed
on the Real Estate or increase the risks covered by insurance on the Real Estate
or necessitate additional insurance premiums or policies of insurance, even if
such use may be in furtherance of Tenant's business purposes. In the event any
policies of insurance are invalidated by acts or omissions of Tenant, Landlord
shall have the right to terminate this Lease or, at Landlord's option, to charge
Tenant for extra insurance premiums required on the Real Estate on account of
the increased risk caused by Tenant's use and occupancy of the Premises. Each
party hereby waives all
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claims for recovery from the other for any loss or damage to any of its property
insured under valid and collectible insurance policies to the extent of any
recovery collectible under such policies. Provided, that this waiver shall apply
only when permitted by the applicable policy of insurance.
INDEMNITY
13. Tenant shall indemnify, hold harmless, and defend Landlord from and
against, and Landlord shall not be liable to Tenant on account of, any and all
costs, expenses, liabilities, losses, damages, suits, actions, fines, penalties,
demands, or claims of any kind, including reasonable attorney's fees, asserted
by or on behalf of any person, entity, or governmental authority arising out of
or in any way connected with either (a) a failure by Tenant to perform any of
the agreements, terms, or conditions of this Lease required to be performed by
Tenant; (b) a failure by Tenant to comply with any laws, statues, ordinances,
regulations, or orders of any governmental authority; or (c) any accident,
death, or personal injury, or damage to, or loss or theft of property which
shall occur on or about the Premises, or the Real Estate, except as the same may
be the result of the negligence of Landlord, its employees, or agents.
LIABILITY INSURANCE
14. Tenant agrees to procure and maintain continuously during the entire
term of this Lease, a policy or policies of insurance in a company or companies
acceptable to Landlord, at Tenant's own cost and expense, insuring Landlord and
Tenant from all claims, demands or actions; such comprehensive insurance shall
protect and name the Tenant as the Insured and shall provide coverage of at
least $1,000,000 for injuries to any one person, $1,000,000 for injuries to
persons in any one accident and $1,000,000 for damage to property, made by or on
behalf of any person or persons, firm or corporation arising from, related to,
or connected with the conduct and operation of Tenant's business in the
Premises, or arising out of and connected with the use and occupancy of
sidewalks and other Common Areas by the Tenant. All such insurance shall
provide that Landlord shall be given a minimum of ten (10) days notice by the
insurance company prior to cancellation, termination or change of such
insurance. Tenant shall provide Landlord with copies of the policies or
certificates evidencing that such insurance is in full force and effect and
stating the term and provisions thereof. If Tenant fails to comply with such
requirements for insurance, Landlord may, but shall not be obligated to, obtain
such insurance and keep the same in effect, and Tenant agrees to pay Landlord,
upon demand, the premium cost thereof.
15. If, during the term of this Lease, the Premises shall be so damaged by
fire or any other cause except Tenant's negligent or intentional act so as to
render the Premises untenantable; the rent shall be abated while the Premises
remain untenantable; and in the event of such damage, Landlord shall elect
whether to repair the Premises or to cancel this Lease, and shall notify Tenant
in writing of its election within sixty (60) days after such damage. In the
event Landlord elects to repair the Premises, the work or repair shall begin
promptly and shall be carried on without unnecessary delay. In the event
Landlord elects not to repair the Premises, the Lease shall be deemed cancelled
as of the date of the damage. Such damage shall not extend the Lease term.
CONDEMNATION
16. If the whole or any part of the Premises shall be taken by public
authority under the power of eminent domain, then the term of this Lease shall
cease on that portion of the Premises so taken, from the date of possession, and
the rent shall be paid to that date, with a proportionate refund by Landlord to
Tenant of such rent as may have been paid by Tenant in advance. If the portion
of the Premises taken is such that it prevents the practical use of the Premises
for Tenant's purposes, then Tenant shall have the right either (a) to terminate
this Lease by giving written notice of such termination to Landlord not later
than thirty (30) days after the taking; or (b) to continue in possession of the
remainder of the Premises,
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except that the rent shall be reduced in proportion to the area of the Premises
taken. In the event of any taking or condemnation of the Premises, in whole or
in part, the entire resulting award of damages shall be the exclusive property
of Landlord, including all damages awarded as compensation for diminution in
value to the leasehold, without any deduction for the value of any unexpired
term of this Lease, or for any other estate or interest in the Premises now or
hereafter vested in Tenant.
DEFAULT OR BREACH
17. Each of the following events shall constitute a default or a breach of
this Lease by Tenant:
(a) If Tenant fails to pay Landlord any rent or other payments when due
hereunder;
(b) If Tenant vacates or abandons the Premises;
(c) If Tenant files a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act, or voluntarily takes advantage of any
such act by answer or otherwise, or makes an assignment for the benefit of
creditors;
(d) If involuntary proceedings under any bankruptcy or insolvency act
shall be instituted against Tenant, or if a receiver or trustee shall be
appointed of all or substantially all of the property of Tenant, and such
proceedings shall not be dismissed or the receivership or trusteeship vacated
within thirty (30) days after the institution or appointment; or
(e) If Tenant fails to perform or comply with any other term or condition
of this Lease and if such nonperformance shall continue for a period of ten (10)
days after notice thereof by Landlord to Tenant, time being of the essence.
EFFECT OF DEFAULT
18. In the event of any default or breach hereunder, in addition to any
other right or remedy available to Landlord, either at law or in equity,
Landlord may exert any one or more of the following rights:
(a) Landlord may re-enter the Premises immediately and remove the property
and personnel of Tenant, and shall have the right, but not the obligation, to
store such property in a public warehouse or at a place selected by Landlord, at
the risk and expense of Tenant.
(b) Landlord may retake the Premises and may terminate this Lease by
giving written notice of termination to Tenant. Without such notice, Landlord's
retaking will not terminate the Lease. On termination, Landlord may recover from
Tenant all damages proximately resulting from the breach, including the cost of
recovering the Premises and the difference between the rent due for the balance
of the Lease term, as though the Lease had not been terminated, and the
reasonable rental value of the Premises.
(c) Landlord may relet the Premises or any part thereof for any term
without terminating this Lease, at such rent and on such terms as it may choose.
Landlord may make alterations and repairs to the Premises. In addition to
Tenant's liability to Landlord for breach of this Lease, Tenant shall be liable
for all expenses of the reletting, for any alterations and repairs made. The
amount due the Landlord will be reduced by the net rent received by Landlord
during the remaining term of this Lease from reletting the Premises or any part
thereof. If during the remaining term of this Lease Landlord receives more than
the amount due Landlord under this sub-paragraph, the Landlord shall pay such
excess to Tenant, but only to the extent Tenant has actually made payment
pursuant to this sub-paragraph.
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SURRENDER - HOLDING OVER
19. Tenant shall, upon termination of this Lease, whether by lapse of time
or otherwise, peaceably and promptly surrender the Premises to Landlord. If
Tenant remains in possession after the termination of this Lease, without a
written lease duly executed by the parties, Tenant shall be deemed a trespasser.
If Tenant pays, and Landlord accepts, rent for a period after termination of
this Lease, Tenant shall be deemed to be occupying the Premises only as a tenant
from month to month, subject to all the terms, conditions, and agreements of
this Lease, except that the rent shall be two times the monthly rent specified
in the lease immediately before termination.
SUBORDINATION AND ATTORNMENT
20. Landlord reserves the right to place liens and encumbrances on the
Premises superior in lien and effect to this Lease. This Lease, and all rights
of Tenant hereunder, shall, at the option of Landlord, be subject and
subordinate to any liens and encumbrances now or hereafter imposed by Landlord
upon the Premises or the Real Estate or any part thereof, and Tenant agrees to
execute, acknowledge, and deliver to Landlord, upon request, any and all
instruments that may be necessary or proper to subordinate this Lease and all
rights herein to any such lien or encumbrance as may be required by Landlord.
In the event any proceedings are brought for the foreclosure of any
mortgage on the Premises, Tenant will attorn to the purchaser at the foreclosure
sale and recognize such purchaser as the Landlord under this Lease. The
purchaser, by virtue of such foreclosure, shall be deemed to have assumed, as
substitute Landlord, the terms and conditions of this Lease until the resale or
other disposition of its interest. Such assumption, however, shall not be
deemed an acknowledgment by the purchaser of the validity of any then existing
claims of Tenant against the prior Landlord.
Tenant agrees to execute and deliver such further assurances and other
documents, confirming the foregoing, as such purchaser may reasonably request.
Tenant waives any right of election to terminate this Lease because of any such
foreclosure proceedings.
NOTICES
21. Any notice to given hereunder shall be given in writing and sent by
registered or certified mail to Landlord at Xxxx X. Xxxxx 00000 Xxxx Xxxxx Xxxx,
Xxxxx, XX 00000 and to Tenant at 000 X. 000 Xxxxxx, Xxxxx, XX 00000 or at such
other address as either party may from time to time designate in writing. Each
such notice shall be deemed to have been given at the time it shall be
personally delivered to such address or deposited in the United States mail in
the manner prescribed herein.
22. [Omitted]
RULES AND REGULATIONS
23. Tenant and Tenant's agents, employees and invitees shall fully comply
with all rules and regulations of the Real Estate, as amended from time to time,
which are made a part of this Lease as if fully set forth herein. Landlord
shall have the right to amend such rules and regulations as Landlord deems
necessary or desirable for the safety, care, cleanliness, or proper operation of
the Premises and the Real Estate.
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NET LEASE
24. This is a net-net-net Lease and the parties agree and understand that
Tenant shall pay Tenant's proportionate share of the real estate taxes, special
assessments, insurance and all other Operating Expenses as described in
subparagraph 4.b of this Lease.
MISCELLANEOUS
25. (a) Binding on Assigns. All terms, conditions, and agreements of this
Lease shall be binding upon, apply, and inure to the benefit of the parties
hereto and their respective heirs, representatives, successors, and assigns.
(b) Amendment in Writing. This Lease contains the entire agreement
between the parties and may be amended only by subsequent written agreement.
(c) Waiver - None. The failure of Landlord to insist upon strict
performance of any of the terms, conditions and agreements of this Lease shall
not be deemed a waiver of any of its rights or remedies hereunder and shall not
be deemed a waiver of any subsequent breach or default of any of such terms,
conditions, and agreements. The doing of anything by Landlord which Landlord is
not obligated to do hereunder shall not impose any future obligation on Landlord
nor otherwise amend any provisions of this Lease.
(d) No Surrender. No surrender of the Premises by Tenant shall be
effected by Landlord's acceptance of the keys to the Premises or of the rent due
hereunder, or by any other means whatsoever, without Landlord's written
acknowledgment that such acceptance constitutes a surrender.
(e) Captions. The captions of the various paragraphs in this Lease are
for convenience only and do no define, limit, describe, or construe the contents
of such paragraphs.
(f) Brokers. Tenant hereby warrants that no real estate broker has or
will represent it in this transaction and that no finder's fees have been earned
by a third party.
(g) Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Nebraska.
OTHER PROVISIONS
26. Landlord agrees to provide the tenant improvements described on the
attached Exhibit A.
Until this Lease is executed on behalf of all parties hereto, it shall be
construed as an offer to lease of Tenant to Landlord.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
Xxxx X. Xxxxx
________________________,
Landlord
By /s/ Xxxx X. Xxxxx
________________________ ________________________
Witness
By
________________________ ________________________
Witness
CVE Corporation Wholly Owned by PMT Services, Inc.
--------------------------------------------------
Tenant
________________________ By /s/ Xxxx Xxxxxxxxxx
Witness ________________________
________________________ By ________________________
Witness
PERSONAL GUARANTEE
The undersigned hereby unconditionally guarantee unto the Landlord the
payment of the rent and the performance of all of the covenants under the Lease
by the Tenant and hereby waive notice of any default under the Lease and agree
that this liability shall not be released or affected by an extension of time
for payment or by any forbearance by the Landlord.
Date this____________day of________, 19__.
By:___________________________ By:_____________________________
______________________________ _____________________________
Name Name
______________________________ _____________________________
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
______________________________ _____________________________
City State Zip City State Zip
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