EXHIBIT 10.6
LEASE
THIS LEASE is made and entered into effective as of the 1st day of
March, 1995, by and between XXXXXX X. XXXXXXXX, 000 Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Landlord"), and AUSTINS OMAHA, INC., a Nebraska
corporation, 0000 Xxxxx 000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Tenant").
THE PARTIES HERETO DO HEREBY MUTUALLY COVENANT AND AGREE AS FOLLOWS:
1. LEASED PREMISES.
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of Tenant to be
paid, kept, performed and observed by Tenant, hereby demises and leases unto
Tenant, and Tenant hereby leases from Landlord, that certain real property
more particularly described as Lots 261, 262 and 000, Xxxxxx Xxxx, Xxxxxxx
Xxxxxx, Xxxxxxxx, together with all the buildings and improvements now or
hereafter erected thereon ("Tenant's building") and all rights, privileges
and easements appurtenant thereto which are hereinafter provided in this
lease (all of which shall constitute and comprise the "leased premises").
2. LEASE TERM.
2.1 INITIAL TERM. The term of this Lease shall be March 1, 1995
through July 31, 2006 unless this lease shall sooner terminate or be extended
as provided in this lease.
2.2 OPTION TO EXTEND. Tenant shall have two (2) successive options
to extend the term of this lease beyond the initial term upon the same terms
and conditions as those herein specified, except as to the monthly rental
which shall be adjusted pursuant to Section 5.2 hereinbelow, for two (2)
separate additional periods of five (5) years each. If Tenant elects to
exercise the first of said options, Tenant shall do so by giving
Landlord written notice of such election at least six (6) months prior to the
expiration of the initial term of this lease, and, if the Tenant elects to
exercise each additional option. Tenant shall do so by giving
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Landlord written notice of such election at least six (6) months before the
beginning of the additional period for which the term hereof is to be extended
by the exercise of each of said options. If Tenant gives any such notice, the
term of this lease shall be automatically extended for the additional period
of years covered by the option so exercised without execution of an extension
or renewal lease. As used in this lease, the phrases "term of this lease", "the
term hereof", or words of like import shall refer to the initial term of this
lease, together with any extended term with respect to which an option shall
be exercised.
3. USE OF PREMISES-COMPLIANCE WITH LAWS AND ORDINANCES.
3.1 USE OF PREMISES. Tenant shall be entitled to use the leased
premises and improvements to be constructed thereon for any use permitted by
law at all times during the term of this lease, and Tenant covenants and
agrees that Tenant will not use, suffer or permit the leased premises and
such improvements to be used for any other purpose without Landlord's prior
written consent.
3.2 COMPLIANCE WITH LAWS. Tenant covenants that during the lease
term, Tenant will comply, at Tenant's sole cost and expense, with all laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments and appropriate departments, commissions, boards
and officers thereof, which may be applicable to the leased premises, the
buildings, improvements and building equipment or the use or manner of use of
the leased premises, including, but not limited to, hazardous waste or
substance use, handling, storage and remediation, except for remediation of
conditions pre-existing Tenant's occupancy.
3.3 RIGHT TO CONTEST LAWS. Tenant shall have the right, after
notice to Landlord, to contest by appropriate legal proceedings, without cost
or expense to Landlord, the validity of any law, ordinance, order, rule,
regulation or requirement of the nature herein referred to and to postpone
compliance with the same, provided such contest shall be promptly and
diligently prosecuted by and at the expense of Tenant and so long as Landlord
shall not thereby suffer any civil, or be subjected to any criminal penalties
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or sanctions, and Tenant shall properly protect and save harmless Landlord
against any liability and claims for any such noncompliance or postponement
of compliance. Landlord shall have the right, but shall be under no
obligations to contest by appropriate legal proceedings, at Landlord's
expense, any such law, ordinance, rule, regulation or requirement.
4. TRADE FIXTURES.
All trade fixtures installed at any time
by Tenant, Tenant's suppliers, or any subtenants of Tenant in, on, or about
the leased premises shall be and remain the property of the person, firm or
corporation installing same and and shall be removable at any time during the
term of this lease. The removal of any such trade fixtures shall be at the
expense of the person, firm or corporation removing the same, who shall
repair any damage or injury to the leased premises occasioned by any such
removal. If Landlord at any time in the future obtains financing secured by
the leased premises, Landlord agrees to obtain waivers from Landlord's lender
to any rights such lender may claim to the trade fixtures installed by
Tenant, Tenant's suppliers, or any subtenants of Tenant as a result of such
lender's secured interest in the real property comprising the leased premises.
5. RENTAL.
5.1 INITIAL TERM. Tenant agrees to pay rent for the use and
occupancy of the premises as follows:
Subject to any adjustment provided for hereinafter, Tenant shall
pay to Landlord as rental for the use and occupancy of the leased premises
during the initial term of this lease the sum of $6,500 per month, each month
for the initial term of this Lease, all payable in advance on the first day
of each calendar month for each month of the initial term and any extension
thereof.
5.2 COST OF LIVING ADJUSTMENT. Commencing with the monthly rent
payable on July 1, 1999 and each time Tenant exercises Tenant's option to
extend the term of this lease as provided in Section 2.2 above, a cost of
living adjustment shall be made to the monthly rental provided herein. Each
adjustment shall be made to
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the monthly rental then in effect immediately prior to the applicable
adjustment, and the adjusted rental shall be payable for each and every month
thereafter until adjusted again or expiration of the term of this lease term.
The cost of living adjustment shall be determined in the manner and pursuant
to the following formula:
R = W x (A/P x 50%)
In such formula "R" represents the monthly rate of rent as
adjusted by the cost of living to be paid during the lease years for which
such rent is being computed under such formula; "W" represents the applicable
monthly rental rate being adjusted as provided herein; "P" represents the
consumer price index published and released in February, 1995 (in the case of
the first adjustment), in July, 1999 (in the case of the second adjustment),
and in July, 2006 (in the case of the third adjustment) reported by the U.S.
Department of Labor, Bureau of Labor Statistics for "U.S. City Average, All
Urban Consumers" and based upon the establishment of one hundred (100) as the
index for the year 1982-84; "A" represents such consumer price index most
recently published and released in the month immediately preceding the date
of beginning of the period for which rent is being adjusted hereunder. For
example, in the case of the first adjustment effective July 1, 1999, "P"
represents the index published in February, 1995 and "A" represents the index
published in June, 1999. If the index which is used or published for any
relevant time as provided in this lease is based upon the establishment of
100 as the price index for the year or a group of years other than 1982-84,
the consumer price index to be substituted for "A" in the above formula shall
be computed by converting the index as then issued or published to the basis
of 100 as the price index for 1982-84. In the event that no such index is
issued or published within one (1) year previous to each period for which
such rent is being adjusted and computed hereunder or that said Bureau should
cease to publish said index figure, then any similar index published by any
other branch or
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department of the U.S. Government shall be used and if none is so published,
then another index generally recognized as authoritative shall be substituted
by agreement. In any event, the base used by any index shall be reconciled to
the 1982-84 index.
It shall be the duty and obligation of Landlord to make the
computations and determinations pursuant to this Section and to communicate
the results to Tenant, together with working papers to support the
computation. The results shall be subject to Tenant's verification for
accuracy.
In no event shall the monthly rent decrease as a result of any
adjustment. If as a result of any adjustment, the rent would decrease, then
the current rental shall remain in effect until the next scheduled adjustment.
5.3 PLACE OF PAYMENT. All payments of rental shall be made by
Tenant to Landlord at the address hereinabove set forth in this lease or at
such other place within the United States of America as Landlord may from
time to time direct in writing.
5.4 SECURITY DEPOSIT. Through an assignment of the same from a
prior landlord, Tenant is deemed to have deposited with the Landlord herein
the sum of Three Thousand Five Hundred Dollars ($3,500.00) as security for
the performance by the Tenant of the terms of the lease. The Landlord may
use, apply, or retain the whole or any part of the security so deposited to
the extent required for the payment of any rent and additional rent or other
sum as to which the Tenant is in default or for any sum which the Landlord
may expend or may be required to expend by reason of the Tenant's default in
respect of any of the terms of this lease, including, but not limited to, any
damages or deficiency in the reletting of the leased premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by the Landlord. In the event that the Tenant shall comply with all
of the terms of this lease, the security shall be returned to the Tenant
after the date fixed as the end of the lease and after delivery of possession
of the leased premises to the Landlord. In the event of a sale or lease of
the premises of which
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the premises form a part, the Landlord shall have the right to transfer the
security to the vendee or lessee and the Landlord shall thereupon be released
from all liability for the return of such security. The Tenant shall look
solely to the new Landlord for the return of such security. The Tenant shall
not assign or encumber the money deposited as security, and neither the
Landlord nor his successors or assigns shall be bound by any such assignment
or encumbrance.
6. CONTINUED POSSESSION OF TENANT.
If Tenant shall hold over the leased premises after the expiration
of the term hereof with the consent of Landlord, either express or implied,
such holding over shall be construed to be only a tenancy from
month-to-month, subject to all the covenants, rental conditions and
obligations hereof performable by Tenant as provided in the term of this
lease and terminable by either party as provided by law; provided, however,
that nothing herein contained shall be construed to give Tenant any rights to
so hold over and to continue in possession of the leased premises after the
expiration of the term hereof.
7. ASSIGNMENT AND SUBLETTING.
7.1 APPROVAL REQUIRED. Neither this lease nor this term hereof
demised, nor any part thereof shall be mortgaged, pledged, assigned or
transferred by Tenant, its successors and assigns, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, and
any prohibited assignment shall be invalid for all purposes. Without such
consent, Tenant may assign this lease or sublet the leased premises to a
corporation which is majority owned by Tenant, provided that Tenant shall
remain liable for the performance of all its obligations hereunder, including
the payment of rent. Any consent to any assignment of this lease or any
interest herein shall not be construed as a consent to any further or
subsequent assignment or construed as a waiver of the right to object to any
further or subsequent assignment to which consent has not been first had and
obtained.
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8. REPAIRS AND MAINTENANCE.
Tenant covenants that during the initial term of this lease and any
extension thereof, Tenant shall, at Tenant's sole cost and expense, maintain
the leased premises, including the building and improvements located thereon,
in good order and condition except for reasonable wear and tear. Tenant's
maintenance shall include repair and replacement, as deemed reasonably
necessary and appropriate by Landlord, of such items with respect to the
leased premises as are typically characterized as capital improvements such
as, for example only, parking lot resurfacing and restriping, roof
replacement, carpeting replacement, painting and HVAC systems repair and
replacement. Tenant shall not be entitled to any reimbursement or credit from
Landlord for the cost of any of the same, it being intended that all
maintenance and replacement reasonably required by Landlord at the leased
premises during Tenant's occupancy and use of the same shall be borne by
Tenant at its sole cost and expense.
9. ALTERATIONS BY TENANT.
Subject to the prior written consent of Landlord, which will not be
unreasonably withheld, Tenant may at any time and from time to time during
the lease term make, at its sole cost and expense, such changes and
alterations, structural or otherwise, in or to the improvements upon the
leased premises as Tenant shall deem necessary or desirable. No building at
any time on the leased premises shall, however, be demolished without the
consent of the Landlord and any mortgagee of Landlord, which consent shall
not be withheld unreasonably, so long as the same is conditioned upon the
reconstruction of building improvements of at least equivalent quality to
those being demolished. All such permitted changes and alterations (herein
collectively referred to as "alterations") shall be made in all cases subject
to the following conditions which Tenant covenants and agrees to observe and
perform:
(a) No alteration shall be undertaken until Tenant shall have
procured and paid for, so far as the same may be required from time to time,
all municipal and other governmental
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permits and any authorizations of the various municipal departments and
governmental subdivisions having jurisdiction, and Landlord agrees to join,
at the expense of the Tenant, in the application for any such permits or
authorizations whenever such action is necessary.
(b) Each alteration, when completed, shall be of such a
character as not adversely to affect the value of the improvements and
equipment on the leased premises immediately before such alteration.
(c) All work done in connection with any alteration shall be
done promptly and in a good and workmanlike manner and in compliance with the
applicable municipal building and zoning and with all other laws, ordinances,
orders, rules, regulations and requirements of federal, state and municipal
governments and appropriate departments, commissions, boards and officers
thereof; the cost of any such alteration shall be paid in cash or its
equivalent, so that no liens shall be enforced against the leased premises
for labor and materials supplied or claimed to have been supplied to the
leased premises.
10. LIENS AND CLAIMS.
During the initial term of this lease and any extension thereof,
Tenant shall not suffer or permit any mechanic's liens or any other claims or
demands arising from the work caused by Tenant for the repair, alteration or
restoration of the building and all improvements to the leased premises, to
be enforced against the leased premises or any part thereof, and Tenant
agrees to hold Landlord and the leased premises free and harmless from all
liability for any such liens, claims or demands, together with all costs and
expenses in connection therewith; provided, however, if Tenant shall in good
faith contest the validity of any lien, claim or demand, then Tenant shall,
at its expense, defend itself and Landlord against the same and shall pay and
satisfy any final adverse judgment that may be rendered therein before the
enforcement thereof against Landlord or the premises, and Tenant shall name
Landlord as additional obligee under any surety bond furnished in any such
proceedings.
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11. UTILITIES.
During the initial term of this lease and any extension thereof,
Tenant shall pay or cause to be paid all charges for gas, electricity, water
and other utilities furnished to the leased premises and all sewerage charges
or similar charges or assessments for utilities levied against the leased
premises for any period included within the initial term of this lease or any
extension thereof.
12. TAXES AND ASSESSMENTS.
12.1 REAL ESTATE. As used herein, the term "real estate taxes"
shall mean all real estate taxes, assessments for improvements to the leased
premises, municipal or county water and sewer rates and charges which shall
be levied against the leased premises or the building and improvements
erected or caused to be erected thereon by Landlord and which become a lien
thereon during the initial or any extended term of this lease, excluding any
franchise, corporate, income, personal property, capital levy, capital stock,
excess profits, transfer, revenue, estate, gift, inheritance or succession
tax payable by Landlord or any other tax, assessment, levy or charge upon, or
measured in whole or in part by, the income or profits of Landlord; provided,
however, if at any time during the initial or any extended term of this
lease, the method of taxation prevailing on the date of this lease shall be
altered so as to cause any tax measured by or imposed upon the rental payable
hereunder in lieu of real estate taxes or assessments in the manner levied
shall be deemed included in the obligations of Tenant under this Section, but
only to the extent the same would be payable if the leased premises were the
only property of Landlord subject to such taxes.
12.2 PAYMENTS BY TENANT. Tenant shall pay or cause to be paid,
before any fine, penalty, interest or cost may be applied thereto for the
nonpayment thereof, all real estate taxes levied against the leased premises
during the initial or any extended term of this lease, including the
improvements on the leased premises, and all permitted alterations and
additions thereto.
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12.3 INSTALLMENT PAYMENTS. If any real estate, special tax or
assessments are at any time during the initial or any extended term of this
lease levied or assessed against the leased premises, which, upon exercise of
any option permitted by the assessing authority, may be paid in installments
or converted to an installment payment basis (irrespective of whether
interest shall accrue on unpaid installments), Tenant may elect to pay such
real estate taxes in installments with accrued interest thereon. In the event
of such election, Tenant shall be liable only for those installments of such
tax or assessment which become payable during the initial or any extended
term of this lease, and Tenant shall not be required to pay any such
installment which becomes due and payable after the expiration of the term of
this lease or sooner termination thereof. Landlord shall execute whatever
documents may be necessary to convert any real estate taxes to such an
installment payment basis unless requested not to do so by Tenant.
12.4 PRORATION. Any real estate taxes which are payable by Tenant
hereunder shall be prorated between Landlord and Tenant as of the date of
expiration or earlier termination of the initial term of this lease or any
extension thereof if such real estate taxes are payable before delinquency
during a calendar year which extends beyond the expiration or earlier
termination of the term hereof so that Tenant shall only pay that portion of
such real estate taxes equal to that proportion which the number of days of
such calendar year falling within the initial lease term and/or the extended
term, as applicable, bears to the total number of days of such calendar year.
12.5 RIGHT TO CONTEST. Tenant shall have the right to contest the
amount or validity of any real estate taxes, in whole or in part, by
appropriate administrative and legal proceedings, either in its own name,
Landlord's name or jointly with Landlord, without any cost or expense to
Landlord, and Tenant may postpone payment of any such contested real estate
taxes pending the prosecution of such proceedings and any appeals so long as
such proceedings shall operate to prevent the collection of such real estate
taxes and the sale of the leased premises to satisfy any
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lien arising out of the nonpayment of the same, and Tenant, if requested by
Landlord, shall furnish a bond to Landlord securing the payment of the same
in the event a decision in such contest shall be adverse to Tenant. Landlord
shall execute and deliver to Tenant whatever documents may be necessary or
proper to permit Tenant to so contest any such real estate taxes or which may
be necessary to secure payment of any refund which may result from any such
proceedings, and in the event Landlord fails or refuses to so execute,
Landlord hereby irrevocably designates Tenant as its attorney-in-fact to
execute such documents.
12.6 COOPERATION OF LANDLORD. Landlord agrees to execute such
documents and take such other action as may be reasonably required so that
the leased premises will be assessed and taxed as a separate parcel from the
entire parcel of real property owned by Landlord, should such be the case;
provided, however, Landlord's undertaking shall be one of best efforts and
Landlord shall provide Tenant an opportunity to join in such applications or
conferences with the taxing authority preliminary thereto.
12.7 IMPROVEMENT OR SPECIAL ASSESSMENT DISTRICT. If at any time
during the initial or any extended term of this lease any governmental
subdivision shall undertake to create an improvement or special assessment
district the proposed boundaries of which shall include any portion of the
leased premises, Landlord and Tenant shall each be entitled to appear in any
proceeding relating thereto and to present their respective positions as to
whether the leased premises should be included or excluded from the proposed
improvement or assessment district and as to the degree of benefit to the
leased premises resulting therefrom. Landlord shall promptly advise Tenant in
writing of the receipt of any notice or other information relating to the
proposed creation of any such improvement or special assessment district the
boundaries of which include any portion of the leased premises.
12.8 PERSONAL PROPERTY. Tenant covenants and agrees to pay before
delinquency all personal property taxes, assessments and liens levied during
the initial or any extended term of this lease
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upon all personalty belonging to Tenant and situated on or about the leased
premises.
13. INDEMNIFICATION AND NONLIABILITY OF LANDLORD.
13.1 INDEMNIFICATION BY TENANT. Tenant agrees to protect, defend,
indemnify and save harmless Landlord against any and all loss, damages and
liability on account of any, all and every demand or claim or assertion of
liability or any claim or any action founded thereon arising or alleged to
have arisen out of any act or omission of Tenant, its agents, servants,
employees, patrons, customers, licensees or invitees, including risks
associated with so called "dram shop" liability, arising out of the
occupation, use, possession, conduct or management of the leased premises
whether to person or property, including the property of Tenant, or death of
any person, made by any person, group or organization, whether employed by
either of the parties hereto or otherwise, except if Landlord shall have been
negligent or contributorily negligent under the circumstances involved.
14. INSURANCE.
14.1 FIRE AND EXTENDED COVERAGE. During the initial term of this
lease and any extension thereof, Tenant shall at Tenant's sole cost and
expense, for the mutual benefit and protection of Landlord, Landlord's lender
(if any) and Tenant, procure and maintain or cause to be procured and
maintained a policy or policies of fire and extended coverage insurance
covering the building and improvements located on the leased premises, in a
company or companies in a total amount of not less than one hundred (100%)
percent of the full replacement value of said building and appurtenances. The
term "full replacement value" shall mean the then actual replacement cost,
less physical depreciation, excluding excavation and foundation costs. Tenant
agrees to re-evaluate insurance coverage at Landlord's request, but not more
often than at three (3) year intervals and to increase said coverage if it
shall then be less than one hundred (100%) percent of the then full
replacement value.
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14.2 GENERAL LIABILITY. During the initial term of this lease, and
any extension thereof, Tenant shall, at Tenant's sole cost and expense, for
the mutual benefit and protection of Landlord and Tenant, maintain
comprehensive general liability insurance against claims for personal injury
or death and property damage occurring upon, in or about the leased premises
or on, in or about the adjoining sidewalks and passageways, such insurance to
afford protection to the limit of not less than a combined single limit of
$1,000,000 per occurrence in respect of personal injury or death and property
damage.
14.3 PRORATION OF PREMIUMS. With respect to any insurance
effective for a term extending beyond the initial term of this lease or any
extensions thereof, Tenant shall be obligated to pay only such proportion of
the premium upon such insurance as that portion of the term of the policy
prior to the expiration of such term of this lease bears to the entire term
of the policy.
14.4 WORKER'S COMPENSATION. During the course of any construction,
repairs, alterations and additions to the leased premises, the party
arranging for such work shall maintain or cause to be maintained, worker's
compensation insurance as required by law.
14.5 BLANKET POLICIES. All policies of insurance required
hereunder of the Tenant during the initial term of this lease and any
extension thereof may be in the form of "blanket" policies provided that the
coverage thereunder must be at least equal to that which would be provided
under the separate policies which Tenant must maintain pursuant to this
Section.
14.6 POLICIES AND CERTIFICATES OF INSURANCE. Tenant agrees during
the initial term of this lease and any extension thereof, to deliver to
Landlord certified copies of policies evidencing the insurance procured by
Tenant under the terms hereof, or to deliver in lieu thereof certificates of
coverage from the insurance company or companies writing said policy or
policies of insurance which certificates shall designate the company writing
the same, the number, amount and provisions thereof, and shall indicate on the
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face thereof that Landlord is named as an additional insured under said
policies and that any lender of Landlord holding a lien on the leased
premises shall be named as an additional insured for the policies provided in
this Section. Landlord agrees to provide Tenant with similar documents
evidencing the insurance to be provided by Landlord pursuant to this
Section 14.
14.7 CANCELLATION OR TERMINATION. All insurance policies to be
provided by Tenant shall contain a provision that said policies shall not be
canceled, terminated or expire without thirty (30) days prior notice from the
insurance company to Landlord. Tenant agrees that on or before twenty (20)
days prior to expiration of any insurance policy, Tenant shall deliver to
Landlord written notification in the form of a receipt or other similar
documents from the applicable insurance company that said policy or policies
have been renewed, or deliver certificates or coverage or certified copies
from another good and solvent insurance company for such coverage.
14.8 FAILURE TO PROCURE. In the event Landlord or Tenant should
fail to procure or keep in force the insurance which, as provided in this
Section, must be procured and kept by Landlord or Tenant respectively,
Landlord or Tenant may procure insurance for the other's benefit and recover
the cost thereof from said obligated party.
15. DAMAGE AND DESTRUCTION.
15.1 DAMAGE COVERED BY INSURANCE. If, during the initial term
of this lease or any extension thereof, the leased premises shall be damaged
or destroyed by a cause or casualty covered by the insurance Tenant is
required to carry pursuant to Section 14 above, Landlord shall repair or
replace the building and/or improvements damaged or destroyed by the
insurable cause of damage or destruction on the same plan and design as
existed immediately prior to such damage or destruction, subject to such
delays as may be reasonably attributable to governmental restrictions or
inability to obtain materials or labor, or other causes, whether similar or
dissimilar, beyond the control of Landlord. Materials
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used in repair shall be as nearly like original materials as may then be
reasonably procured in regular channels of supply. All proceeds of insurance
carried on the building and improvements pursuant to Section 14 hereinabove,
payable as a result of such damage or destruction, shall be used and applied
to the extent necessary for such repair or rebuilding. To the extent of any
shortfall, Tenant shall contribute its own funds to the remaining cost of
repair or rebuilding.
15.2 DAMAGE NOT COVERED BY INSURANCE. If, during the initial term
of this lease or any extension thereof, the leased premises shall be damaged
or destroyed by a cause or casualty not covered by the insurance Tenant is
required to maintain pursuant to Section 14 hereinabove to the extent of
thirty percent (30%) or more of the monetary value thereof, then by written
notice to the other party within thirty (30) days after the date of such
damage or destruction either party may elect to terminate this lease or to
cause the repair and restoration of the premises at the sole cost and expense
to the party electing to cause such repair or restoration. However, if either
party gives notice of termination to the other, this lease shall not be so
terminated if the other party shall, within thirty (30) days after receipt of
such notice, give written notice to the terminating party of said other
party's election to cause the repair and restoration of the leased premises.
The party electing to cause the repair and restoration shall, at its sole
expense, provide the funds necessary therefor and shall thereafter promptly
and diligently repair and restore the leased premises to the same extent
required in Section 15.1 hereinabove. In the event any such damage or
destruction, from a cause not covered by the insurance required to be
maintained in Section 14, is not sufficient to permit termination of the
lease pursuant to this Section 15.2, Landlord shall, at Landlord's sole cost
and expense, promptly repair and restore the leased premises to the same
extent required in Section 15.1 hereinabove.
15.3 REPLACEMENT OF TENANT'S EQUIPMENT. In the event of the damage
or destruction of the leased premises not giving rise to a
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termination of this lease, Tenant shall, at its own expense, replace and
repair so much of Tenant's equipment in the leased premises which may be
damaged or destroyed, as may, in the option of Tenant, be necessary for the
resumption by Tenant of its business in the leased premises. Such replacement
or repair shall commence as soon after the damage or destruction as may be
reasonably possible, subject to delays beyond the control of Tenant.
15.4 ABATEMENT OF RENT. In the event of a partial damage or
destruction of the leased premises such that if the lease is not terminated,
Tenant shall continue to utilize the leased premises for the operation of its
business to the extent that it may be practicable to do so from the
standpoint of good business. All rent shall xxxxx from the time any damage or
destruction occurs until the leased premises are wholly restored, unless
Tenant shall continue or resume doing business therein, in which event the
rent will be equitably reduced in the proportion that the unusable part of
the leased premises bears to the whole thereof.
15.5 RIGHT TO TERMINATE. In the event of the damage or destruction
of the leased premises by a cause or casualty covered by the insurance Tenant
is required to carry pursuant to Section 14 hereinabove, Landlord shall have
the right to terminate this lease if, during the last two (2) years of the
term of this lease including any extension of the term of this lease
exercised by Tenant within thirty (30) days of the date of such damage or
destruction, the leased premises are damaged in an amount exceeding sixty-six
and two-thirds (66-2/3%) percent of the then reconstruction cost thereof
provided that, in such event, such termination of this lease shall be
effected by written notice within thirty (30) days of the happening of the
casualty causing such damage, and all insurance proceeds shall be immediately
paid over and assigned to Landlord.
16. CONDEMNATION.
16.1 DEFINITION OF TERMS. The term "total taking" as used in this
Section means the taking of the entire leased premises under the power of
eminent domain or the taking of so much thereof as to
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prevent or substantially impair the use thereof by Tenant for the uses and
purposes hereinabove provided.
The term "partial taking" means the taking of a portion only of the
leased premises which does not constitute a total taking as defined above.
The term "taking" shall include a voluntary conveyance of all or
any portion of the leased premises by Landlord to an agency, authority or
public utility under threat of a taking under the power of eminent domain in
lieu of formal proceedings, or an involuntary forced conveyance by virtue of
formal proceedings.
The term "date of taking" shall be the date upon which title to the
leased premises or portion thereof passes to and vests in the condemnor or
the date of entry of an order for immediate possession by a court of
competent jurisdiction in connection with any judicial proceedings in eminent
domain.
16.2 EFFECT OF TAKING. If during the term hereof there shall be a
total or partial taking of the leased premises under the power of eminent
domain, then the leasehold estate of Tenant in and to the leased premises or
the portion thereof taken shall cease and terminate, as of the date of taking
thereof. If this lease is so terminated in whole or in part, all rentals and
other charges payable by Tenant to Landlord hereunder and attributable to the
leased premises or portion thereof taken shall be paid by Tenant up to the
date of taking by the condemnor, and the parties shall thereupon be released
from all further liability in relation thereto.
16.3 ALLOCATION OF AWARD. All compensation or damages awarded upon
a partial or total taking of the leased premises shall go to Landlord and
Tenant as provided by law; provided, however, that Tenant shall in any event
be entitled to receive from such award an amount equal to the unamortized
cost of all improvements made to the leased premises by Tenant and to the
unamortized cost of Tenant's trade fixtures (amortized on a straight line
basis over the useful life thereof to Tenant), provided that such amount is
separately stated and designated in any such award.
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16.4 REPAIR OR REPLACEMENT OF IMPROVEMENTS. Unless this lease is
terminated by reason of a taking, all compensation for the taking of the
building and improvements shall be first used for the prompt repair or
replacement of the building and improvements on the leased premises at the
time or taking. Landlord and tenant shall cooperate in approving plans and
specifications and in securing proper permits and any other documents
necessary or convenient in connection with such work. If such compensation is
insufficient to pay the costs of such work, Tenant shall pay any excess of
construction cost over the award to Landlord of such taking.
16.5 TENANT'S CLAIM. In the event of a taking, nothing contained
herein shall preclude Tenant from prosecuting a claim directly against the
taking authorities for diminution of the value of its leasehold interest
hereunder or for the loss of its business or goodwill or for damage to, or
cost of removal or relocation of, or value of its stock, furniture, fixtures
and equipment, or for any other claim authorized by law.
16.6 REDUCTION OF RENT ON PARTIAL TAKING. In the event of a
partial taking, the rent payable by Tenant hereunder shall be adjusted from the
date of taking to the date of the expiration of the term of this lease. Such
rental adjustment will be made by reducing the basic rental payable by Tenant
in the ratio that the fair market value of the leased premises at the date of
taking bears to the fair market value of the leased premises immediately
thereafter.
17. RIGHT OF INSPECTION BY LANDLORD.
Landlord and Landlord's representatives may enter the leased
premises at all reasonable times for the purpose of inspecting the premises;
performing any work which Landlord elects to undertake by reason of Tenant's
default hereunder, at Tenant's expense; or posting notices of
nonresponsibility under any mechanic's lien or similar law.
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18. SALE OF LEASED PREMISES BY LANDLORD.
In the event of any sale of the leased premises by Landlord,
Landlord shall be entirely freed and relieved of all liability under any and
all covenants and unaccrued obligations contained in or derived from this
lease arising out of any act, occurrence or omission occurring after the
consummation of such sale; provided, however, that Landlord shall not be
freed or relieved from such liability prior to the completion of the work and
provided further, that Landlord shall be responsible for all accrued and
unsatisfied obligations under this lease and provided further that the
purchaser at such sale or any subsequent sale of the leased premises shall,
in writing, covenant to and with Tenant to carry out any and all of the
covenants and obligations of Landlord under this lease.
19. CONDITIONAL LIMITATIONS-DEFAULT PROVISIONS.
19.1 EVENTS OF DEFAULT. If at any time during the term of this
lease, any one or more of the following events (herein called an "event of
default") shall occur, that is to say:
(a) If Tenant shall make an assignment for the benefit of its
creditors; or
(b) If any petition shall be filed against Tenant in any
court, whether or not pursuant to any statute of the United States of America
or of any State, in any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceedings, and Tenant shall thereafter be
adjudicated bankrupt, or if such proceedings shall not be dismissed within
sixty (60) days after the institution of the same, or if any such petition
shall be so filed by Tenant or liquidator; or
(c) If, in any proceeding, a receiver, receiver and manager,
trustee or liquidator be appointed for all or any portion of Tenant's
property, and such receiver, receiver and manager, trustee or liquidator
shall not be discharged within sixty (60) days after the appointment of such
receiver, receiver and manager, trustee or liquidator; or
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(d) If Tenant shall fail to pay any installment of rent
provided for herein, or any part thereof, when the same shall become due and
payable, and such failure shall continue for twenty (20) days after notice
thereof from Landlord or Tenant; or
(e) If Tenant shall fail to pay any item of real estate taxes
or any other charge or sum required to be paid by Tenant hereunder, and such
failure shall continue for forty-five (45) days after notice thereof from
Landlord by Tenant; or
(f) If Tenant shall fail to perform or observe any other
requirement of this lease (not hereinbefore in this Section specified) on the
part of Tenant to be performed or observed, and such failure shall continue
for forty-five (45) days after notice thereof from Landlord to Tenant; then
upon the happening of any one or more of the aforementioned events of
default, and the expiration of the period of time prescribed in any such
notice, Landlord shall have the right, then or at any time thereafter and
while such default or defaults shall continue, to give Tenant written notice
of Landlord's intention to terminate this lease on a date specified in such
notice, which date shall not be less than ten (10) days after the date of
giving of such notice, and on the date specified in such notice, Tenant's
right to possession of the premises shall cease and Tenant shall peaceably
and quietly yield to and surrender to Landlord the leased premises and
improvements located thereon and this lease shall thereupon be terminated and
all of the right, title and interest of Tenant hereunder and in the
improvements shall wholly cease and expire in the same manner and with the
same force and effect as if the date of expiration of such ten (10) day
period were the date originally specified herein for the expiration of this
lease and the lease term, and Tenant shall then quit and surrender the leased
premises and improvements to Landlord, but Tenant shall remain liable as
hereinafter provided.
19.2 RE-ENTRY BY LANDLORD. In the event of any termination of this
lease as so stated hereinabove or as otherwise permitted by law, or if an
event of default shall continue beyond the expiration of any grace period
above provided for without termination of this
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lease by Landlord, Landlord may enter upon the leased premises and
improvements and have, repossess and enjoy the same by summary proceedings,
ejectment or otherwise, and in any such event neither Tenant nor any person
claiming through or under Tenant by virtue of any statute or of an order of
any court shall be entitled to possession or to remain in possession of said
premises but shall forthwith quit and surrender the leased premises and
improvements. Landlord shall incur no liability to any person for or by
reason of any such entry, repossession or removal of Tenant or any person
claiming through or under Tenant.
19.3 PAYMENT OF RENTAL AND EXPENSES UPON DEFAULT. In case of any
such termination, re-entry or dispossession by summary proceedings, ejectment
or otherwise, the rent and all other charges required to be paid by Tenant
hereunder shall thereupon become due and payable up to the time of such
termination, re-entry or dispossession, and Tenant shall also pay to Landlord
all reasonable expenses which Landlord may then or thereafter incur for legal
expenses, reasonable attorneys' fees, brokerage fees and all other costs paid
or incurred by Landlord for restoring the leased premises and improvements to
good order and condition, for repairing and otherwise preparing the same for
reletting, for maintaining the lease premises and improvements and for
reletting the same. Landlord shall exercise reasonable diligence to mitigate
its damages upon any event of default, but Tenant shall remain liable for
payment of all rents and other charges under this lease accruing before and
after termination or dispossession, except as actually mitigated by Landlord.
19.4 WAIVER OF RIGHTS. The right of Landlord to recover from
Tenant the amounts hereinabove provided for shall survive the issuance of any
order for possession or other cancellation or termination hereof, and Tenant
hereby expressly waives any defense that might be predicated upon the
issuance of such order for possession or other cancellation or termination
hereof. Tenant, for itself and any and all persons claiming through or under
Tenant, including its creditors, upon the termination of this lease
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in accordance with the terms hereof, or in the event of entry of judgment for
the recovery of the possession of the leased premises and the improvements in
any action or proceeding, or if Landlord shall enter the leased premises and
the improvements by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all rights
or privileges which Tenant may or might have under and by reason of any
present or future law or decision, to redeem the leased premises and the
improvements or for a continuation of this lease for the term hereby demised
after having been dispossessed or ejected therefrom by process of law or
otherwise.
19.5 PERIODS TO CURE DEFAULTS. Anything in this Section to the
contrary notwithstanding, it is expressly understood that, with respect to
any event of default within the purview of subparagraph (f) of Section 19.1
hereof, if such event of default is of such a nature that it cannot, in fact,
with due diligence, be cured within a period of forty-five (45) days,
Landlord shall not be entitled to re-enter the leased premises and
improvements or serve a notice of termination upon Tenant, as provided in
said Section, nor shall the same be regarded as an event of default for any
of the purposes of this lease, if Tenant shall have commenced the curing of
such default within the period of forty-five (45) days referred to in said
subparagraph (f), and so long as Tenant shall thereafter proceed with all due
diligence to complete the curing of such default not susceptible of being
cured with due diligence within forty-five (45) days, and the time of Tenant
within which to cure the same shall be extended for, such period as may be
necessary to complete the same with all due diligence.
20. DEFAULT BY LANDLORD.
If Landlord shall be in default in the performance of any
provisions of this lease, after twenty (20) days notice thereof is given by
Tenant, Tenant may, at its option, cure such default for the account and at
the expense of Landlord, in which event Landlord shall reimburse Tenant for
all reasonable amounts paid to effect
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such cure (including, without limitation, interest at the minimum legal rate
and reasonable attorneys' fees). Tenant may, at Tenant's option, in addition
to any other right or remedy of Tenant pursuant to this lease, or at law or
in equity, elect to offset any sums payable by Landlord to Tenant pursuant to
this Section 20 against rental then due and payable or thereafter becoming
due and payable pursuant to Section 5 hereinabove.
21. GENERAL PROVISIONS.
21.1 NOTICES. Every notice, demand, request, designation,
consent, approval or other document or instrument required or permitted to be
served hereunder shall be in writing, shall be deemed to have been duly
delivered on the day of mailing and shall be sent by certified or registered
United States mail, postage prepaid, return receipt requested, addressed to
the parties hereto as their addresses appear hereinabove in this lease.
Either party may change the place for address of notice, or provide for the
delivery of not more than two (2) additional copies, by giving the other
party at least ten (10) days prior notice to such effect. Any written notice
served by registered or certified mail shall be deemed to have been served as
of the date it is mailed in accordance with the foregoing provisions.
21.2 ESTOPPEL CERTIFICATES. Each party agrees from time to time
upon not less than thirty (30) days prior notice from the other, to execute,
acknowledge and deliver, to the other party, a statement in writing
certifying (i) that this lease is unmodified and in full force and effect
(or, if there have been modifications, identifying the same by the date
thereof and specifying the nature thereof); (ii) that to the knowledge of
such party no uncured event of default exists hereunder (or, if such uncured
event of default does exist, specifying the same); (iii) the dates to which
the rent and other sums and charges payable hereunder have been paid; (iv)
that such party, to its knowledge, has no claims against the other party
hereunder except for the continuing obligations under this lease (or, if such
party has any such claims, specifying the same); and (v) whether or not there
are then existing any offsets or
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defenses against the enforcement of any of the terms, covenants or conditions
hereof.
21.3 FORCE MAJEURE. The time within which either party hereto
shall be required to perform any act under this lease, shall be extended by a
period of time equal to the number of days during which performance of such
act is delayed unavoidably by strikes, lock-outs, Acts of God, governmental
restrictions, failure or inability to secure materials or labor by reason of
priority or similar regulation or order of any governmental or regulatory
body, enemy action, civil disturbance, fire, unavoidable casualties or any
other cause beyond the reasonable control of either party hereto.
21.4 WAIVERS. No delay or omission by either party in exercising
any right or power accruing upon the noncompliance or failure of performance
by the other party hereto under the provisions of this lease shall impair any
such right or power or be construed to be a waiver thereof. A waiver by
either party hereto of any of the covenants, conditions or agreements hereto
to be performed by the other party shall not be construed as a waiver of any
succeeding breach of the same or any other covenants, agreements,
restrictions and conditions hereof.
21.5 MODIFICATIONS. Any alteration, change or modification of or
to this lease, in order to become effective, shall be made by written
instrument or endorsement hereon and in each such instance executed on behalf
of each party hereto.
21.6 APPLICABLE LAW. This lease shall be governed by, and
construed in accordance with, the laws of the State in which the leased
premises are situated.
21.7 PARTIAL INVALIDITY. If any term, provision, condition or
covenant of this lease or the application thereof to any party or
circumstances shall, to any extent, be held invalid or unenforceable, the
remainder of this lease, or the application of such term, provision,
condition or other covenant to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be affected
thereby, and each
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term and provision of this lease shall be valid and enforceable to the
fullest extent permitted by law.
21.8 COVENANTS RUNNING WITH THE LAND. All of the covenants,
agreements, conditions and restrictions set forth in this lease are intended
to be and shall be construed as covenants running with the land, binding
upon, inuring to the benefit of and enforceable by the parties hereto and
their successors and assigns.
21.9 SECTION HEADINGS. The section headings of this lease are
inserted as a matter of convenience and reference only and in no way define,
limit or describe the scope or intent of this lease or in any way affect the
terms and provisions hereof.
21.10 GENDER. The use herein of (i) the singular number shall be
deemed to mean the plural; (ii) the masculine gender shall be deemed to mean
the feminine or neuter; and (iii) the neuter gender shall be deemed to mean
the masculine or feminine whenever the sense of this lease so requires.
21.11 MEMORANDUM OF LEASE. A short form or memorandum of this
lease, incorporating this indenture of lease by reference, may be executed,
acknowledged and recorded at the commencement date of the initial term of
this lease setting forth the parties hereto, the legal description of the
leased premises, the term of this lease and the options granted to Tenant
hereunder if so requested by either party hereto to the other.
21.12 SURRENDER AND QUITCLAIM AT END OF TERM. Upon the end of the
term of this lease, as provided herein, or any extension thereof, or sooner
termination of this lease, Tenant shall surrender to Landlord all and
singular the leased premises, including the building and all improvements
constructed upon the leased premises, and Tenant shall execute, acknowledge
and deliver to Landlord within five (5) days after written demand from
Landlord to Tenant, any Quitclaim deed or other document required by any
title company to remove the claim of this lease from the leased premises.
21.13 ATTORNEYS' FEES. In the event any action is brought by
Landlord to recover any rent due and unpaid hereunder or to recover
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possession by Landlord or Tenant against the other to enforce or for the
breach of any of the terms, covenants or conditions contained in this lease,
the prevailing party shall be entitled to recover reasonable attorneys' fees
to be fixed by the court together with costs of such therein incurred.
21.14 RELATIONSHIP OF PARTIES. The relationship of the parties
hereto is that of Landlord and Tenant, and its is expressly understood and
agreed that Landlord does not in any way nor for any purpose become a partner
of Tenant or a joint venturer with Tenant in the conduct of Tenant's business
or otherwise, and that the provisions of any agreement between Landlord and
Tenant relating to rent are made solely for the purpose of providing a method
whereby rental payments are to be measured and ascertained.
21.15 TITLE. Landlord covenants that Landlord has good and
marketable title to the Premises in fee simple absolute and that the same are
subject to no leases, tenancies, agreements, encumbrances, liens or defaults
in title affecting or limiting in any way the rights granted Tenant in this
lease.
21.16 QUIET POSSESSION. Landlord covenants that Tenant, upon
payment of the rental herein reserved, and upon the due performance of the
covenants and agreements herein contained on Tenant's part to be performed,
shall and may at all times, for itself as tenant, peacefully and quietly
have, hold and enjoy the lease premises during the term of this lease.
21.17 CORPORATE AUTHORITY. In the event either party to this
lease is a corporation, each individual executing this lease on behalf of
said corporation represents and warrants that he or she is duly authorized to
execute and deliver this lease on behalf of said corporation, in accordance
with a duly adopted resolution of the Board of Directors of said corporation
or in accordance with the By-Laws of said corporation, and that this lease is
binding upon said corporation in accordance with its terms.
21.18 CONSENTS AND APPROVALS. Wherever the consent or approval of
either party is provided for in this lease, such consent or approval shall be
given in writing to the requesting
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party, and each party agrees to not unreasonably withhold or delay such
consent or approval, except as provided to the contrary in this lease.
21.19 ADDENDUM. Amendments to this lease must be in writing and
signed by the parties, and the same may be attached as addenda riders to this
lease, and the same when made and attached shall be deemed incorporated
herein and made a part hereof.
21.20 PRIOR LEASES. This lease replaces and supersedes any prior
leases of the leased premises involving Tenant or any predecessor of Tenant,
which prior leases are deemed null and void.
IN WITNESS WHEREOF, the parties hereto have executed this lease as
of the day and year first above written.
LANDLORD:
XXXXXX X. XXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
TENANT:
AUSTINS OMAHA, INC.
By: /s/ [illegible]
--------------------------------
Title: President
-------------------------
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