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EXHIBIT 10.23
AMERITRADE
LEASE
SOUTHROADS MALL
BELLEVUE, NEBRASKA
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ARTICLE I
DEMISED PREMISES AND SHOPPING CENTER
Section 1.01 Demised Premises
Section 1.02 Shopping Center
Section 1.03 Common Area
Section 1.04 Changes in Shopping Center and Common Areas
ARTICLE II
TERM OF LEASE
Section 2.01 Demised Term
Section 2.02 Options to Extend the Demised Term
Section 2.03 Lease Year
Section 2.04 Holding Over
Section 2.05 Option to Terminate
ARTICLE III
RENTAL
Section 3.01 Minimum Annual Rental
Section 3.02 Operating Expense Increase
Section 3.03 Payments
Section 3.04 Past Due Payments
ARTICLE IV
TENANT ALTERATIONS
ARTICLE V
OCCUPANCY AND USE OF DEMISED PREMISES
Section 5.01 Occupancy
Section 5.02 Use
ARTICLE VI
ASSIGNMENT AND SUBLETTING
Section 6.01 Assignment
Section 6.02 Expense
Section 6.03 Subletting
Section 6.04 Non-Release
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ARTICLE VII
UTILITY SERVICES
Section 7.01 Payment
Section 7.02 Suspension of Service
ARTICLE VIII
TENANT'S OBLIGATION
Section 8.01 Tenant's Obligation
Section 8.02 Landlord's Obligation
Section 8.03 Remodeling
Section 8.04 No Lien Clause
Section 8.05 Removal of Tenant's Property
ARTICLE IX
INDEMNIFICATION AND INSURANCE
Section 9.01 Indemnification
Section 9.02 Insurance to be Furnished by Landlord
Section 9.03 Waiver of Claim
Section 9.04 Title Insurance
ARTICLE X
DAMAGE TO DEMISED PREMISES
Section 10.01 Damage to Demised Premises
ARTICLE XI
EMINENT DOMAIN
Section 11.01 Condemnation of Demised Premises
Section 11.02 Condemnation of Parking Area
Section 11.03 Condemnation Award
ARTICLE XII
COMMON AREA AND PARKING
Section 12.01 Control of Common Area by Landlord
Section 12.02 Tenant Reimbursement
Section 12.03 License
Section 12.04 Parking
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ARTICLE XIII
SIGNS
Section 13.01 Consent as to Signs
ARTICLE XIV
TAXES
Section 14.01 Real Estate Taxes and Assessments and Payment
ARTICLE XV
INSOLVENCY OR BANKRUPTCY
Section 15.01 Insolvency or Bankruptcy
ARTICLE XVI
DEFAULT
Section 16.01 Rights on Xxxxxx's Default
Section 16.02 Default of Landlord
Section 16.03 Status of Landlord
ARTICLE XVII
MISCELLANEOUS
Section 17.01 Waivers
Section 17.02 Remedies Cumulative
Section 17.03 Subordination
Section 17.04 Warranties
Section 17.05 Notices and Certificates
Section 17.06 Relationship of Parties
Section 17.07 Construction
Section 17.08 Consent
Section 17.09 Law of Nebraska
Section 17.10 Costs
Section 17.11 Lease Memorandum
Section 17.12 Force Majeure
Section 17.13 Brokerage Involvement
Section 17.14 Landlord's Rules
Section 17.15 Complete Agreement
Section 17.16 Successors in Interest
Signature Page
Addenda
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LEASE
THIS LEASE, executed as of January 19, 1998 by and between UNITED INVESTMENT
JOINT VENTURE d/b/a SOUTHROADS MALL, as Managing Agent for SOUTHROADS SHOPPING
CENTER LIMITED LIABILITY COMPANY with its principal office at 0000 XXXX XXXXX
XXXX, XXXXXXXX, XXXXXXXX 00000 ("Landlord") and AMERITRADE HOLDING CORP. with
its principal office at 0000 XXXXX 000XX XXXXXX, XXXXX, XXXXXXXX 00000
("Tenant") WITNESS THAT, in consideration of the mutual covenants hereinafter
contained, and each act performed hereunder by either of the parties, Landlord
and Xxxxxx agree as follows:
ARTICLE I
DEMISED PREMISES AND SHOPPING CENTER
Section 1.01 Demised Premises
Landlord hereby lets and demises to Tenant, and Tenant hereby leases
from Landlord the storeroom outlined in red in Exhibit "A" which is attached
hereto and by reference made a part hereof, consisting of approximately 132,000
square feet of leased area as measured from the outside of the rear wall to the
outside of the front wall, and from the center of the side wall to the center
of the opposite side wall (the "Demised Premises") located at SOUTHROADS MALL
0000 XXXX XXXXX XXXX, XXXXXXXX, XXXXXXXX 00000. Landlord reserves to itself the
use of the roof, exterior walls, and the area above and below the Demised
Premises together with the right to maintain, use, repair, and replace pipes,
ducts, conduits, wires and structural easements leading through the Demised
Premises and which serve other parts of the "Shopping Center", as that term is
defined in Section 1.02; provided that such uses shall not interfere with
Tenant's use of the Demised Premises.
Section 1.02 Shopping Center
The Demised Premises are located in the Southroads Shopping Center, as
depicted in "Exhibit A", by reference made a part hereof (The "Shopping
Center"). Landlord reserves the right to add other land and/or buildings to
the Shopping Center.
Section 1.03 Common Area
The term "Common Area" shall mean all areas, improvement, space equipment
and special services in or at the Shopping Center provided by Landlord for the
common or joint use and benefit of tenants of the Shopping Center, their
officers, employees, agents, servants, customers and other invitees, including
all parking areas (subject to Tenant's rights in the Parking Area (as
hereinafter defined) as set forth below), access roads, driveways, entrances
and exits, retaining walls, landscaped areas, truck serviceways or tunnels,
loading docks, pedestrian malls, courts, stairs, ramps and sidewalks, exterior
stairs, comfort and first aid stations,
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washrooms and parcel pick-up stations, on-site and off-site signs identifying
or advertising the Shopping Center and maintenance buildings.
Section 1.04 Changes in Shopping Center and Common Areas
Landlord reserves the right to change the Shopping Center, except the
Parking Area and the Demised Premises as defined herein, by adding land and/or
buildings thereto and/or by changing therein the number and location of
buildings, building dimensions, the exterior facade of buildings, the number
floors in any of the buildings, store dimensions, the identity and type of
other stores and tenancies, and the Common Area, provided only that the size of
the Demised Premises shall not be changed, and reasonable access to the Demised
Premises and the parking facilities to be provided shall not be materially
impaired nor shall Tenant's use of the Demised Premises be limited.
ARTICLE II
TERM OF LEASE
Section 2.01 Demised Term
The "Demised Term" of this Lease and Xxxxxx's obligation to pay rental
hereunder shall commence on the "Commencement Date" which shall be the earlier
of (a) the day following the last day allowed to Tenant for completion of
"Tenant's Alterations" as that term is hereinafter defined, or (b) the day
which Tenant shall open the Demised Premises for business operations, and shall
end ten (10) years from (I) the Commencement Date if the Commencement Date
is the first day of a calendar month, or (II) the first day of the first
calendar month following the commencement date if the Commencement Date is not
the first day of a calendar month.
Notwithstanding the foregoing provisions of this Section and except for any
obligation Tenant to pay rental until such date as it shall initially become
due, Landlord may enforce and Tenant agrees to be bound by the terms and
conditions of this Lease from the date of execution hereof.
Tenant hereby agrees that if it fails to surrender the Demised Premises
at the end of the Demised Term, or any renewal thereof, Tenant will be liable
to Landlord for any and all damages which Landlord shall suffer by reason
thereof, and Xxxxxx will indemnify landlord against all claims and demands made
by any succeeding tenants against Landlord, founded upon delay by Landlord in
delivering possession of the Demised Premises to such succeeding tenant. For
the period of six (6) months prior to the expiration of the Demised Term,
Landlord shall with reasonable notice to Tenant have the right to display on
the exterior of the Demised Premises a "For Rent" sign and during such period
Landlord may show the Demised Premises and all parts thereof to prospective
tenants during normal business hours.
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Section 2.02 Options to Extend the Demised Term
Unless a Default (as defined herein) has occurred and is continuing at the
time any option is exercised, Tenant shall have the right and option to extend
the Lease Term for two additional periods of five years each at the rates set
forth in Section 3.01, each commencing upon the expiration of the then existing
term (a "Renewal Term"), unless this Lease shall expire or be terminated
pursuant to any provision hereof. Tenant shall exercise its option to renew by
giving notice of exercise of option no later than six (6) months prior to
expiration of the then existing term.
Section 2.03 Lease Year
The term "Lease Year" is hereby defined to mean a period of twelve (12)
consecutive months. The first full Lease Year shall commence on (I) the
Commencement Date if the Commencement Date is January 1, or (II) January 1,
following the Commencement Date if the Commencement Date is not January 1 and
each succeeding full Lease Year shall commence on January 1. Any portion of the
Demises Term commencing prior to the first full Lease Year or remaining after
the expiration of the last full Lease Year shall be deemed a partial Lease Year.
Section 2.04 Holding Over
In the event Tenant remains in possession of the Demised Premises after the
expiration of the Demised Term and without the execution of a new lease, it
shall be deemed to be occupying the Demised Premises as a tenant from month to
month, subject to all conditions, provisions, and obligations of this Lease
insofar as the same are applicable to a month to month tenancy except that (i)
the Minimum Annual Rental payable hereunder for each month during such holdover
period shall be equal to one and one half (1 1/2) the monthly installment of
Minimum Annual Rental payable during the last month of the Demised Term, and
(ii) all Additional Rental payable hereunder shall be prorated for each month
during such holdover period. Such month to month rental is subject to change by
thirty (30) days notice from Landlord.
Section 2.05 Option to Terminate
Tenant shall have the right and option to terminate the Lease on the
Anniversary Date of the execution of this Lease provided that such termination
may only be exercised if Tenant has given Landlord notice of such termination
at least six (6) months prior to the date of termination.
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ARTICLE III
RENTAL
Section 3.01 Minimum Annual Rental
Commencing on the Commencement Date, the Tenant shall pay to the Landlord
for the Lease Term and any Renewal Terms an annual rental in the amount set
forth in Schedule A on the first day of each month in advance, in equal
monthly installments. In the event the Commencement Date is other than the
first date day of a calendar month, Tenant shall pay prorated rental from the
Commencement Date to the first day of the first calendar month following the
Commencement Date of the Minimum Annual Rental.
Section 3.02 Operating Expense Increase
The Minimum Annual Rental is deemed to include payment by Landlord for all
of the expenses incurred in connection with the operation of the Shopping
Center and in providing services and performing obligations of the Landlord
with respect to the Demised Premises. Tenant has agreed to pay certain
increases in those operating expenses for real estate taxes, fire and casualty
insurance, and utilities incident to the heating and air conditioning system
(HVAC). The total expense for the year ending December 31, 1997, for the
Shopping Center, for real estate taxes was $138,453.00, and for the insurance
was $42,206.00 The amount allocable to the Demised Premises is determined by
multiplying each number by a fraction whose numerator is the number of square
feet in the Demised Premises (132,000) and whose denominator is the number of
square feet in the Shopping Center (451,000). Landlord will continue to be
responsible for the base expense for such items as determined at December 31,
1997, plus an additional three percent for each Lease Year thereafter,
determined on a cumulative basis in the same manner as the annual increases in
Minimum annual Rental on Exhibit A. The additional three percent shall apply to
the total amount of such expenses rather than each individual item. The amount
by which the total actual expense for the specified items shall exceed the base
expense amount (including the three percent annual additions) shall be
reimbursed to Landlord by Xxxxxx as additional rent. Landlord shall provide a
report to Tenant within ninety (90) days after the end of each Lease Year
detailing the actual expense and the amount by which the actual expense exceeds
the base amount expense, if any. Tenant shall pay the excess amount to Landlord
within thirty (30) days after receipt of such report.
With respect to the HVAC, Xxxxxxxx agrees to replace or add to the
existing heating air conditioning system, presently located on the roof of the
Demised Premises, with a new or improved system which will be capable of
heating and cooling the Shopping Center with no less capacity than the
existing system. It will also be capable of heating and cooling the Demised
Premises separately from the remainder of the Shopping Center. Tenant will
require and Landlord will provide heating and cooling on the basis of 24 hours
per day. The new system will be adequate to provide such service on a
continuous basis with appropriate backup support when repairs or maintenance
are being performed. The new system must be approved by Tenant
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and will be installed during the period when Xxxxxx is constructing the
improvements in the Demised Premises as provided in Article IV. The new system
shall be fully operational on or before the Commencement Date. The utility
charge for the HVAC will not be able to be determined until the new system has
been operational for at least one full year. Landlord will provide separate
metering to the Demised Premises to separately allocate the charge for HVAC
utilities. The amount charged for such utilities for the first Lease year shall
be the base expense for the HVAC operating expense, and Landlord shall be
responsible for that amount plus an additional three percent for each Lease
Year thereafter in the same manner as for real estate taxes and insurance
described above. At the end of the second Lease Year, the amounts for which the
Landlord is then responsible for real estate taxes, insurance and HVAC charges
will be totaled together, and the three percent increase will apply thereafter
to the total number of all these expenses rather that to each individual item.
Tenant acknowledges that its intended use of the Demises Premises on the
basis of 24 hours per day is more extensive than the usage by other Tenants in
the Shopping Center. Xxxxxx agrees to reimburse the Landlord for the amount by
which the cost of utilities per square foot for HVAC for the Demised Premises
exceeds the costs incurred per square foot for the remainder of the Shopping
Center. The cost of this extended usage shall be determined each Lease Year
by multiplying the total cost allocated to the Demised Premises by a fraction,
the numerator of which will be the difference between the total number of
hours of actual cooling time in the Demised Premises over the total number of
hours of actual cooling time in the remainder of the Shopping Center, and the
denominator of which will be the total number of hours of actual cooling time
in the Demised Premises. The amount so determined will be paid to Landlord as
additional rent as provided above. The remaining amount will be the amount to
be considered for base expenses purposes in the same manner as real estate taxes
and insurance.
Section 3.03 Payments
Rental checks are to be made payable to Landlord and mailed to Landlord
at SOUTHROADS MALL, 0000 XXXX XXXXX XXXX XXXXX, XXXXXXXX, XX 00000, or
otherwise as designated by Landlord from time to time in a written instrument
delivered to Tenant.
Section 3.04 Past Due Payments
If any monthly installment of Minimum Rental, or other payment required
under this Lease remains unpaid after the fifth (5) day of the calendar month in
which it is due or any subsequent calendar month, a Fifty Dollar ($50.00)
service charge may be charged by Landlord for each calendar month for which sum
is unpaid or is delinquent, for the purpose of defraying the additional
expenses incident to the handling of such overdue amount. If Tenant shall fail
to pay any monthly installment of Minimum Rental within 10 days after such
installment was due or if any other payment owing from Tenant to Landlord
pursuant to this Lease is not paid when such payment was due and payable, such
unpaid amounts shall bear interest from the due date thereof to the date of
payment at the rate of one and one-half percent (1.5%) per month.
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ARTICLE IV
TENANT ALTERATIONS
Tenant shall make alterations ("Tenant Alternations") to the Premises at
Tenant's expense, costing no less than $3,000,000.00. Such Tenant Alterations
shall be subject to Landlord's approval, which shall not be unreasonably
withheld and shall be supplied within 48 hours of Tenant's request or such
longer period if reasonably required by Landlord, provided that in no case
shall such approval take longer than one week. Furthermore, Tenant shall have
the approval of Landlord to install satellite dishes on the roof of the Demised
Premises, provided Tenant shall be responsible for any damage caused by the
satellite dishes on their installation, maintenance, removal or otherwise.
Landlord hereby consents to Tenant's addition of two to four exterior
generators to the Demised Premises and the removal of the escalator from the
Demised Premises. If, during Tenant Alterations, Tenant or Tenant's
contractors determine that any hazardous waste, hazardous materials, chemical
storage areas or asbestos are required to be removed or encapsulated under any
applicable environmental law. Landlord shall have its contractor conduct such
removal or encapsulation at Landlord's expense forthwith.
ARTICLE V
OCCUPANCY AND USE OF DEMISED PREMISES
Section 5.01 Occupancy
The Demised Premises shall be used and occupied by Tenant for the purpose
of conducting the Permitted Use under the Tenant's Trade name, and tenant
shall not use, permit, or suffer the use for any other purpose. Permitted Use
shall mean use as general office space and all activities generally related to
Tenant's business activities as a brokerage service.
Section 5.02 Use
Tenant shall use the Demised Premises for no unlawful purpose or act;
shall commit or permit no waste or damage to the Demised Premises; shall
comply with and obey all laws, regulations, or orders of any governmental
authority or agency, and all rules and regulations for the Shopping Center
promulgated by Landlord from time to time; shall not do or permit anything to
be done in or about the Demised Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Shopping Center
or injure or annoy them; and shall not do or permit anything to be done which
will invalidate the fire and extended coverage, public liability and property
damage insurance on or as to the Demised Premises and/or the Shopping Center,
or increase the premium rates therefore. Tenant shall comply with all requests
of any carrier of the foregoing insurance risks. Landlord shall not be
responsible to Tenant for the non-performance by any other tenant or occupant
of the Shopping Center of any of the Shopping Center rules and regulations
promulgated by Landlord pursuant to Section 17.14, but
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agrees to take reasonable measures to assure such other tenants' performance.
Tenant Agrees as follows:
(a) All loading and unloading, deliveries, and shipping of goods shall be
done at such times, in the areas, and through the entrances as
designated by Landlord.
(b) There shall be no overnight parking in the Shopping Center.
(c) No Aerial, Loudspeaker, or sound amplifier shall be erected on the
roof or exterior walls of the Demised Premises, or on any other areas
of the Shopping Center without the prior written consent of the
Landlord.
(d) No loudspeakers, televisions, phonographs, jukeboxes, radios or other
devices shall be used in a manner so as to be heard other than by
persons who are within the Demised Premises, without the prior written
consent of the Landlord.
(e) No activity shall take place on the Demised Premises which shall cause
any odor which can be smelled other than by persons who are within the
Demised Premises.
(f) Tenant shall keep the Demised Premises at a temperature sufficiently
high to prevent freezing of water in pipes and fixtures.
(g) The outside areas immediately adjoining the Demised Premises,
including but not limited to the sidewalks in front of and in back of
the Demised Premises, shall be kept clean and free from snow, ice,
dirt, and rubbish by Tenant to the satisfaction of Landlord.
(h) Tenant shall not permit or place any obstructions or merchandise
outside of the Demised Premises.
(i) The plumbing facilities in the Demised Premises shall not be used for
any purpose other than that for which they are constructed, and no
foreign substances of any kind shall be thrown therein, and the
expense of any breakage, stoppage, or damage resulting from a
violation of this provision shall be borne by Tenant.
(j) Tenant shall keep all windows of the Demised Premises clean.
(k) Tenant shall not keep, maintain or allow to be kept or maintained on
the Demised Premises any vending or gaming machinery without written
consent of the Landlord except such machinery as is a necessary part
of Tenant's business as referred to in 5.01 above; provided, however,
that Tenant shall be allowed to install and maintain vending machines
to provide food service to its employees.
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ARTICLE VI
ASSIGNMENT AND SUBLETTING
Section 6.01 Assignment
Tenant shall not in whole or in part assign, alienate, pledge, mortgage or
otherwise transfer this Lease without the prior written consent of Landlord. If
Tenant is a corporation, partnership or limited liability company, the
alienation of ten percent (10%) or more of the ownership of such entity or its
assets by its present owner or the merger, consolidation or other reorganization
of Tenant shall be considered an assignment of this Lease and shall constitute a
default by Tenant in Tenant's obligations under this Lease unless the prior
written consent of Landlord is obtained.
Section 6.02 Expense
Tenant shall reimburse Landlord for the reasonable time and expense
incurred by Xxxxxxxx, not to exceed the sum of Two Hundred Fifty and No/100
Dollars ($250.00) processing any request of Tenant for approval by Landlord of
assignment pursuant to this Lease.
Section 6.03 Subletting
Tenant shall have the right to sublet the Demised Premises or any portion
thereof at any time without the prior written consent of Landlord provided that
such subleasing of the Demised Premises shall in no way relieve Tenant of its
responsibilities and obligations hereunder. Additionally, Landlord shall be
entitled to fifty percent (50%) of any rent collected by Tenant in excess of
Tenant's total rental obligation for the Demised Premises.
Section 6.04 Non-Release
No assignment or transfer or mortgage or subletting or other action by
Tenant under this Article shall relieve Tenant or any guarantor or Tenant of
the obligations of Tenant under this Lease.
ARTICLE VII
UTILITY SERVICES
Section 7.01 Payment
During the Demised Term and any renewals thereof, Tenant shall pay all
charges for electrical use (which shall be separately metered), not including
HVAC charges which are addressed in Section 3.02, janitorial services and trash
removal based upon or in connection with the Demised Premises. Landlord shall
pay for all other utilities based upon or in connection
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with the Demised Premises including but not limited to assessments or charges
for sewage disposal.
Section 7.02 Suspension of Service
Landlord reserves the right to suspend service of the heating, elevators,
plumbing, air conditioning or other mechanical system in the Demised Premises
and the Shopping Center, and sweeping, snow removal and maintenance of the
Common Area, when necessary by reason of governmental regulations, civil
commotion or riot, accident or emergency, or for repairs, alterations, or
improvements which are in the judgment of Landlord desirable or necessary, or
for weather or for any other reason beyond the power or control of Landlord.
Landlord shall not in any way be liable or responsible to Tenant for any loss or
damage or expense which Tenant may sustain or incur if, during the Demised Term,
because of conditions beyond Landlord's control, the quantity or character of
any utility service is changed or is no longer available or suitable for
Tenant's requirements. Landlord, however, shall use reasonable efforts to
provide these services.
ARTICLE VIII
TENANT'S OBLIGATION
Section 8.01 Tenant's Obligation
Tenant shall be responsible for all maintenance, repairs or replacements
relating to the interior of the Demised Premises including electrical equipment.
Additionally, Tenant shall be responsible for any signs placed on the exterior
of Premises by Tenant and the exterior generator. The Demised Premises shall be
kept in good repair and order at all times by Xxxxxx. Tenant's obligation to
maintain, repair and replace includes, but is not limited to: windows, window
and door frames, all operating devices and all mechanical equipment located upon
or in the Demised Premises and the sewer line from plumbing fixtures in the
Demised Premises to the main sewer line of the Shopping Center. Landlord shall
be responsible for all maintenance, repairs or replacement of heating, air
conditioning and ventilation equipment ("HVAC") located outside of the Demised
Premises which serve the Demised Premises. The Covenants of repair herein shall
be subject to any warranties of contractors given in connection with the initial
construction of the Demised Premises. Tenant shall replace glass relating to the
interior or exterior of the Demised Premises and of the doors therein; provided,
however, Landlord agrees to replace any cracked or broken glass that is caused
by the settling of the structure relating to the Demised Premises or by any
casualty covered by fire or extended insurance that may be carried by Landlord.
Except in an emergency, Landlord shall access the HVAC equipment without
entering the Demised Premises.
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Section 8.02 Landlord's Obligation
Landlord shall be responsible for all maintenance, repairs, or replacements
relating to the exterior of the Demised Premises, not to include any signs
placed on the exterior of Premises by Tenant. Landlord shall keep the
foundation, exterior wall (excluding windows, doors, window and door frames, and
plate glass), roof, gutters, and downspouts relating to the Demised Premises in
good condition and repair and make sure modifications or replacement thereof are
made as may be necessary or required by law or ordinance. Landlord shall keep
the Parking Area in the Shopping Center in good condition and repair. Any
maintenance, repairs, or replacements to such foundation, walls, roof,
downspouts, gutters, and structural parts relating to the Demised Premises or
the Shopping Center made necessary by any acts of negligence of Tenant, or
resulting from Xxxxxx's operation of or to the Demised Premises, shall be paid
for by Tenant. Landlord reserves and at all times shall upon reasonable notice
have the right to re-enter the Demised Premises in any emergency, and also
during regular business hours to inspect the same, and to alter, improve, or
repair the Demised Premises and any portion of the Shopping Center or Common
Area as may be reasonably required without abatement of rental, provided such
activity does not materially interfere with Xxxxxx's use of the Demised
Premises.
Section 8.03 Remodeling
No remodeling, additions, alterations or structural change shall be made in
the Demised Premises by Tenant (other than those permitted in connection with
Section 4.01) without the prior written consent of Landlord. Tenant shall have
the right, at Tenant's cost, to install any trade fixtures, partitions,
equipment or other changes that it may find necessary to the conduct of Xxxxxx's
business. All such alterations, changes, partitions, and installations of trade
fixtures and equipment shall be at the cost of Tenant, and Xxxxxx hereby agrees
to identify and save harmless Landlord from any and all costs or expense,
including attorneys' fees, that Landlord may incur by reason of any claim for
labor performed or material furnished that may arise by reason of the
installation of any fixture or equipment or the installation of partitions by
the Tenant as herein provided or alterations or remodeling or any work of any
kind. Any and all trade fixtures and equipment installed by Tenant may be
removed by it at the termination of this Lease, provided that Tenant shall not
be in default in the performance of any of Tenant's obligations hereunder, and
provided that Tenant shall repair any and all damaged caused to the Demised
Premises by the removal of any such trade fixtures and equipment. If Landlord
shall so request, Tenant shall remove at the end of the Demised Term, any
partitions, alterations or trade fixtures installed by Tenant.
Section 8.04 No Lien Clause
No person shall ever be entitled to any lien, directly or indirectly
derived through or under Tenant, or through or under any act or omission of
Tenant, upon the Demised Premises, or any improvements now or hereafter situated
thereon, or upon any insurance policies taken out upon the Demised Premises, or
the proceeds thereof, for or on account of any labor or materials furnished to
the Demised Premises, or for or on account of any matter or thing whatsoever;
and
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nothing in this Lease contained shall be construed to constitute a consent by
Landlord to creation of any lien. In the event that any such lien shall be filed
against the Demised Premises, Tenant shall cause such lien to be released within
ten (10) days after notice of the filing thereof, or Tenant shall within such
time certify to Landlord that Tenant has a valid defense to such claim and such
lien and furnish to Landlord a bond, satisfactory to Landlord, indemnifying
Landlord against the foreclosure of such lien. In addition to any other remedy
herein granted, upon failure of Tenant to discharge such lien or to post a bond
indemnifying Landlord against foreclosure of any such lien as above provided,
Landlord may declare a default hereunder or Landlord, after notice to Tenant,
may discharge such lien, and all expenditures and costs incurred thereby, with
interest thereon, shall be payable as further rental hereunder at the next
rental payment date.
Section 8.05 Removal of Tenant's Property
At the expiration of the term of this Lease, Tenant shall repair any damage
caused by Tenant's removal of its personal property and shall leave the Demised
Premises broom clean and in good working condition and repair inside.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
Section 9.01 Indemnification
Tenant shall INDEMNIFY AND SAVE HARMLESS Landlord from any loss, liability,
cost or expense including attorneys' fees and court costs reasonably incurred by
Landlord, arising out of or in connection with Tenant's use and occupancy of the
Demised Premises or any products or services sold, to be sold or made available
either thereon or from the Demised Premises, including any injuries to persons
or damages to property, unless caused by the acts or omissions of Landlord.
Section 9.02 Burglary and Vandalism
Tenant shall be responsible at all times during the Demised Term for any
loss, cost or expense by reason of damage to or destruction of the foundation,
walls, roof, downspouts, gutters and structural parts relating to the Demised
Premises if said damage or destruction, was caused by vandalism or burglary by
Tenant's employees', guests or customers.
Section 9.03 Insurance to be Furnished by Landlord
Landlord shall keep the Shopping Center and any improvements and facilities
of Landlord within the Common Areas insured during the Demised Term against loss
or damage by fire and such other risks as are customarily covered by extended
coverage endorsement, including loss of rent coverage, in amounts and with
insurance carriers or companies decided upon by Landlord
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within its sole discretion; provided that such insurance coverage shall be in
such amounts sufficient to replace the Demised Premises with insurance
companies rated A:VI or better by Best's Insurance Guide.
Tenant shall not at any time during the Demised Term do or omit to do
anything in or about the Demised Premises which will in any way lend to
increase the insurance rates upon any building comprising a part of the
Shopping Center. Tenant shall pay to Landlord forthwith upon demand the entire
amount of any increase in fire and extended coverage insurance premiums that
may be charged during the Demised Term on the amount of insurance to be carried
by Landlord on any building or other part of the Shopping Center resulting from
the foregoing or from any act or omission of Tenant which shall increase the
insurance rates upon any building or other part of the Shopping Center, whether
or not Landlord shall have consented to such act or omission of Tenant. In the
event of a dispute with regard to payment of any such increase in insurance
premiums, a schedule or statement from the company providing the insurance
coverage to be maintained by this Section as to the reason or reasons for such
premium increase shall be deemed conclusive.
Landlord shall carry public liability and property damage insurance on
the Common Area and any other insurance Landlord deems reasonably necessary.
Section 9.04 Waiver of Claim
Landlord shall not be liable for and Tenant waives all claims against
Landlord for damages to persons or property sustained by Tenant or Tenant's
employees, agents, or servants resulting from the Demised Premises, or any
equipment or appurtenances becoming out of repair, or resulting from any
accident or occurrence in or about the Demised Premises, or resulting directly
or indirectly from any act or neglect of any third person, firm or corporation,
including any other tenants of the Shopping Center.
Landlord hereby releases Tenant (and anyone claiming through or under
Tenant) from any liability to Landlord (or any claiming through or under
Landlord by way of subrogation or otherwise) for any loss or damage to
Landlord's property (excepting and excluding all or any portion of such loss or
damage not covered because of an applicable deductible clause or in excess of
the amount of coverage provided) by the coverage afforded by the fire and
casualty insurance required to be maintained under this Lease, even if such
loss or damage shall have been caused by the fault or negligence of Tenant(or
anyone claiming through or under Tenant) or its agents or employees. Tenant
hereby releases Landlord from any liability or responsibility to Tenant (or
anyone claiming through or under Tenant by way of subrogation or otherwise)
for any loss or damage to Tenant's property caused by fire or other perils
normally covered by standard fire insurance (with extended coverage
endorsements), whether or not such property is actually insured against such
loss or damage, even if such loss or damage shall have been caused by the fault
or negligence of Landlord or its agents or employees. Any fire and casualty
insurance obtained by Landlord or Tenant shall recognize this Section and
contain an appropriate waiver of subrogation clause.
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Section 9.05 Title Insurance
Tenant may order a title insurance commitment on the Demised Premises
prepared by a title company ("Title Company") selected by Xxxxxx insuring Tenant
against loss or damage from and after the date when Tenant Alterations
commence hereunder. Tenant shall pay for 1/2 of the cost incurred in searching
title and acquiring leasehold title insurance policy and Landlord shall pay
for 1/2 of the cost. Landlord shall cooperate with Xxxxxx's efforts to acquire
such title insurance. The ability to obtain title insurance satisfactory to
Tenant in its judgment reasonably exercised as provided herein shall be a
condition precedent to any of the obligations of Xxxxxx and Landlord hereunder.
Section 9.06 Liability Insurance
Tenant shall carry comprehensive general liability and property damage
insurance, including a products liability clause, covering Landlord and Tenant
against bodily injury liability, property damage liability and automobile
bodily injury and property damage liability, including without limitation any
liability arising out of the ownership, maintenance, repair, condition or
operation of the Premises. Such insurance policy or policies shall contain a
broad form contractual liability endorsement under which the insurer agrees to
insure Tenant's obligations under Section 18 hereof to the extent insurable, and
a severability of interest" clause or endorsement which precludes the insurer
from denying the claim of either Tenant or Landlord because of the negligence
or other acts of the other, shall be in amounts of not less than $2,000,000.00
per injury and occurrence with respect to any insured liability, whether for
personal injury or property damage, or such higher limits as Landlord may
reasonably require from time to time, and shall be of form and substance
reasonably satisfactory to Landlord.
ARTICLE X
DAMAGE TO DEMISED PREMISES
Section 10.01 Damage to Demised Premises
In the event the Demised Premises are partially or totally destroyed by
fire or other casualty, which is not caused by the negligent or willful actions
of Tenant or Tenant's employees, Landlord and Tenant shall have the option
either to rebuild and repair the Demised Premises or to terminate this Lease as
hereinafter provided. (Partial destruction for these purposes shall mean that
Tenant is unable to reasonably carry on its operations from the Demised
Premises.) Either party shall give notice in writing to the other of the
election to rebuild and repair or to terminate this Lease, as the case may be,
within forty-five (45) days of the happening of the event of destruction or
damage.
In the event Landlord elects to rebuild and restore the Demised Premises,
and Tenant does not remain in possession and operate Tenant's business during
the period of rebuilding and repair, the Minimum Annual Rental shall xxxxx
(unless the casualty is a result of vandalism or
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burglary) based upon the portion of the Demised Premises until the Demised
Premises have been rebuilt and repaired. If Tenant remains in possession and
operated Tenant's business during the period of rebuilding and repair, the
Minimum Annual Rental shall ablate (unless the casualty is a result of
vandalism or burglary) based upon the loss of business, if any, resulting from
such destruction during the period of building and repair, using a base
figure, the gross sales of Tenant and of all licensees, concessionaires and
tenants of Tenant, from all business conducted upon or from the Demised
Premises, for the same period for the year immediately prior to the year, in
which the casualty occurs, provided, however, (a) if the casualty shall occur
during the first six (6) months of the Demised Term, the Minimum Annual Rental
shall xxxxx completely (unless the casualty is a result of vandalism or
burglary) until Landlord rebuilds and repairs the Demised Premises, and (b) if
the casualty shall occur during the period beginning on the first day of the
seventh month and ending the last day of the twelth month of the first year of
the Demised Term, the Minimum Annual Rental shall xxxxx (unless the casualty is
a result of vandalism or burglary) based upon the loss of business, if any,
resulting from such destruction during the period of rebuilding and repair
using as a base figure, the average of the monthly gross sales of Tenant and of
all licensees, concessionaires and tenants or Tenant, from all business
conducted upon or from the Demised Premises, for the period beginning on the
first day of the first calendar month of the Demised Term and ending on the
last day of the calendar month of the Demised Term occurring immediately prior
to the casualty. In the event Landlord elects to rebuild and repair, Landlord
shall proceed with the same as soon as practical and in all events such
rebuilding and repair shall be completed within one hundred eighty (180) days
after notice has been given of Xxxxxxxx's intent to rebuild and repair, subject
only to delays beyond Landlord's reasonable control.
ARTICLE XI
EMINENT DOMAIN
Section 11.01 Condemnation of Demised Premises
If the whole or any part of the Demised Premises shall be taken or acquired
by any public or quasi-public authority under the power or threat of eminent
domain, the Demised Terms shall cease as of the day possession is taken by such
public or quasi-public authority, and Tenant shall pay rental up to that date
with an appropriate refund by Landlord of such rental as may have been paid in
advance for any period subsequent to the date possession is taken.
Section 11.02 Condemnation of Parking Area
If more than twenty-five percent (25 %) of that portion of the Common Area
from time to time designated by Landlord as common parking areas, (the "Parking
Area") shall be taken or acquired as aforesaid, and if Landlord within one year
after such taking does not provide up to eighty percent (80%) of the number of
parking spaces so taken in a location reasonably accessible to the Demised
Premises, then Tenant, upon sixty (60) days notice, shall have the option,
exercisable if at all, by giving such notice within ten (10) days after the
expiration of
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said one year period, to terminate this Lease, and if before the effective date
set forth in that notice such substitute parking spaces shall not have been
provided, this Lease shall terminate and rental shall be paid or refunded as of
the date of termination.
Section 11.03 Condemnation Award
All compensation awarded for any taking of the Demised Premises, the
Building, the Shopping Center Area, or any interest in any of the same, shall
belong to and be the property of Landlord, Tenant hereby assigning to Landlord
all rights with respect thereto; provided, however, nothing contained herein
shall prevent Tenant from applying for reimbursement from the condemning
authority (if permitted by law) for moving expenses, or the expense of removal
of Xxxxxx's personal property and fixtures, or loss of Tenant's business good
will, but only if such action shall not reduce the amount of the award or other
compensation otherwise recoverable from the condemning authority by Landlord or
the owner of the fee simple estate in the Shopping Center Area.
Tenant shall be entitled to any award or payment for the value of
Tenant's leasehold interest in the Lease. Tenant shall also be entitled to
claim and receive any award or payment from the condemning authority expressly
granted for the taking of Tenant's personal property, the interruption of its
business and moving expenses, but only if such claim or award does not
adversely affect or interfere with the prosecution of Xxxxxx's claim for the
Taking.
ARTICLE XII
COMMON AREA AND PARKING
Section 12.01 Control of Common Area by Landlord
The Common Areas shall at all times be subject to the exclusive control
and management of Landlord, and Landlord shall have the right from time to time
to establish, modify and enforce rules and regulations; to cause its
concessionaires and suppliers, officers, agents, employees and independent
contractors so to abide and conform; and to use its best efforts to cause its
customers, invitees and licensees so to abide and conform, subject only to
Tenant's rights to the Parking Area. Landlord shall have the right to
construct, maintain and operate lighting facilities in an on the Common Area;
to police the same; from time to time to change the area, level, location and
arrangement of parking areas and other facilities located in the Common Area,
and to construct improvement thereon; to designate parking by tenants, their
officers, agents and employees to employee parking area; to close all or any
portion of the Common Area to such extent, if any, as may, in the opinion of
Landlord's counsel, be legally sufficient to prevent a dedication thereof or
the accrual of any rights to any person or the public therein; to discourage
non-customer parking, and to do and perform such other acts in and to the
Common Area as, in the use of good business judgment, Landlord shall determine
to be advisable with a view to the improvements of the convenience and use
thereof by tenants, their officers, agents, employees and customers, provided,
however, that nothing contained herein
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shall allow Landlord to interfere with the rights to parking granted to Tenant
and Xxxxxx's employees under the provisions of this Lease. Landlord will
operate and maintain the Common Area in such manner as Landlord, in its
reasonable discretion, shall determine from time to time. Without limiting the
scope of such discretion, Landlord shall have the full right and authority to
employ all personnel and to make all rules and regulations pertaining to and
necessary for the property operation and maintenance of the Common Area.
Section 12.02 Tenant Reimbursement
If the Common Area, Parking Area or exterior roofing of the Demised
Premises are not maintained in a reasonable manner by Landlord and such
non-maintenance materially interferes with Tenant's business at the Demised
Premises or Landlord shall have failed to pay the real estate taxes prior to
the date such taxes become delinquent (except those taxes being protested by
the Landlord in good faith and in due course) or to provide such services as
are required under this Lease, Tenant shall have The right to pay for the one
maintenance of said areas, pay said taxes or take such actions as may be
necessary to ensure the provision of said services and demand reimbursement
from Landlord the cost of such maintenance, taxes or services respectively,
provided Tenant has given Landlord written notice specifying wherein Landlord
has failed to meet its obligations in a reasonable manner and Landlord shall
have failed to remedy such failure, with forty-five (45) days after receipt of
such notice from Tenant. Tenant shall be entitled to offset or setoff such
amounts against any monetary amounts owed to Landlord hereunder.
Section 12.03 License
Tenant shall be permitted to use the Common Area under a nonexclusive
license, and if the amount of the Common Area be diminished, not to include
the Parking Area, Landlord shall not be subject any liability and Tenant shall
not be entitled to any compensation or diminution or abatement of rental,
except as otherwise specifically provided elsewhere herein, and such
diminution of the Common Area shall not be deemed constructive or actual
eviction.
Section 12.04 Parking
Landlord shall reserve a total of up to 900 parking spaces In the
Parking Area for exclusive use by Tenant and Tenant's employees gently as
provided in Exhibit B (the "Parking Area"). Landlord and Tenant shall agree
upon a more definitive Exhibit showing the location of parking stalls with
dimensions of at least 10 feet by 19 feet 10 inches and adequate driving and
turning lanes, prior to the Commencement Date. Additionally, Tenant shall have
the right to the non-exclusive use of an additional 200 unassigned parking
spaces in the remainder of the Common Area. Tenant shall have the right to
reserve the Parking Area for its clients, employees and customers by signage
and other reasonable indicia of Tenant's exclusive rights to the Parking Area.
Landlord shall cooperate in reserving and enforcing the exclusivity of said
Parking Area for Tenants's employees and customers. Tenant acknowledges that it
may not need the entire 900 spaces at all times and agrees to cooperate with
Landlord in
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making some part of the Parking Area available to other tenants of the Shopping
Center during periods when Tenant has less demand for parking spaces. Tenant
shall have substantially decreased demand after 5:00 p.m. on weekdays and the
entire day on weekends. While Tenant is expanding its work force during the
early months during the term of this Lease, Tenant may not have the need for
all of the parking spaces in the Parking Area. Tenant reserves the right in its
discretion to determine the number of parking spaces required for its purposes,
but Xxxxxx also agrees to cooperate with Landlord to make available such part of
the Parking Area which is not required by Tenant at various times. Prior to the
Commencement Date, Landlord shall sealcoat the Parking Lot.
ARTICLE XIII
SIGNS
Section 13.01 Consent as to Signs
Tenant may install a sign acceptable to Landlord on the front of the
Demised Premises. All signs, lettering, advertising, decorating, lighting or
any other thing of any kind visible from the exterior of the Demised Premises
installed by Tenant shall be first approved in writing by Landlord and the
location and method of installation of same shall be as designated or approved
by Landlord. Plans showing the dimensions and type of sign, lettering, colors,
mounting, brackets, advertising, decoration, lighting or any other thing of
any kind together with the proposed location thereof shall be submitted to
Landlord within (30) days following the execution of this Lease, and after
installation shall be maintained in good condition and repair at all times by
Tenant. Tenant shall give Landlord no less than forty eight (48) hours notice
of the date of installation of the items described in this Section.
ARTICLE XIV
TAXES
Section 14.01 Real Estate Taxes and Assessments and Payment
Landlord shall pay all real estate taxes and assessments levied against
all or any part of the Shopping Center except that Tenant shall reimburse
Landlord for a certain portion of said taxes as set forth in Section 3.02.
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ARTICLE XV
INSOLVENCY OR BANKRUPTCY
Section 15.01 Insolvency or Bankruptcy
The appointment of a receiver to take possession of all or substantially
all of the assets of Tenant or any of the persons constituting Tenant, or an
assignment of Tenant or any of the persons constituting Tenant for the benefit
of creditors or any action taken or suffered by Tenant or any of the persons
constituting Tenant under any insolvency, bankruptcy, or reorganization act,
shall constitute a breach of this Lease by Tenant. In no event shall this
Lease be assigned or assignable by operation of law or by voluntary or
bankruptcy proceedings or otherwise and in no event shall this or any rights
or privileges hereunder be an asset of Tenant or any of the persons
constituting Tenant under any bankruptcy, insolvency, or reorganization
proceedings.
ARTICLE XVI
DEFAULT
Section 16.01 Rights on Xxxxxx's Default
In the event (a) of any default by Tenant after ten (10) days' notice in
the payment when due of any rental provided in Article III or IV of this the or
other sums owed by Tenant to Landlord, or (b) any other default by Tenant In
its other obligations under this Lease which shall continue after ten days'
written notice by Landlord to Tenant (provided, however, Landlord shall not be
required to deliver a notice following any event described in Article VI or
XV), or (c) the admission in writing by Tenant or any such guarantor of its
inability to pay its debts when due, then, in addition to any other rights or
remedies Landlord may have be law or otherwise, Landlord shall have the right
either to re-enter and repossess the premises without prejudice to any other
rights or remedies Landlord may have, either in law or in equity, or Landlord
may testate this Incise at its option. If Landlord shall terminate this Lease
of Tenant's default, Landlord shall have the right to recover the full amount
of all rents and other charges payable by Tenant under the terms of this Lease,
as the same may be amended, for the remaining term of this Lease, plus all
Landlord's reasonable and necessary costs in obtaining, taking possession,
altering, fixing up and re-letting of the Demised Premises, including
attorneys fees and court costs including broker's fees. However, Xxxxxx shall
be entitled to a credit against such damages of the full amount of the rent
which can be reasonably anticipated to be received from the Demised Premises
for the then balance of the Demised Term.
If Landlord shall not terminate this Lease, Landlord may exercise any
over remedy available to it under law or in equity, including but not limited
to accelerating and recovering from Tenant all rent and over monetary sums due
and owing and scheduled to become due and owing under the Lease both before and
after the date of such breach. Landlord will relet the
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Premises or any part thereof and apply the proceeds of such reletting, after
first paying the expenses incident to fixing up and reletting The Premises, to
Xxxxxx's account. No such reletting shall be deemed an acceptance of the
surrender of this Lease. Tenant shall be liable for any and all prior defaults,
including its failure properly to maintain the Premises, whether or not Landlord
elects to terminate this Lease or elects other remedies. Tenant shall also be
liable to Landlord for all Landlord's reasonable and necessary costs,
including attorneys' fees, resulting from any default by Tenant. If Landlord
elects to take possession of the Demised Premises without terminating this
Lease, it may at any time thereafter terminate the Lease and be entitled to
damages as provided in the preceding subparagraph. No reference to any
specific right or remedy shall preclude Landlord from exercising any other
right or from having any over remedy or from maintaining any action to which it
may otherwise be entitled at law or in equity.
The failure of Landlord to exercise any option herein provided on account
of any default shall not constitute a waiver of the same for any subsequent
default, and no waiver of any condition or covenant of this Lease by either
party shall be deemed to constitute a waiver by either party of any default
for the same or any other condition or covenant.
Section 16.02 Default of Landlord
Landlord shall in no event be charged with default in the performance of
its obligations under this Lease unless and until Landlord shall have received
written notice from Tenant specifying wherein Landlord has failed to perform any
obligation hereunder, and Landlord shall have failed to perform such
obligation, or remedy such default, within thirty (30) days (or such
additional time as is reasonable required to correct any such default) after
receipt of such notice from Tenant.
Section 16.03 Status of Landlord
Notwithstanding any other provisions of this Lease, Xxxxxx agrees that
no officer, director, agent, partner, shareholder, member or employee of
Landlord or any subsequent owners of the Shopping Center shall be responsible
of liable for the performance or non-performance of any agreement, covenant,
or obligation of the Landlord in this Lease in his or her individual or
personal capacity and Xxxxxx agrees to look only to the Shopping Center as the
sole asset for the payment and satisfaction of all obligations and liabilities
of Landlord or any subsequent owners of the Shopping Center hereunder.
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ARTICLE XVII
MISCELLANEOUS
Section 17.01 Waivers
No waiver of any condition or covenant in this Lease by either party shall
be deemed to imply or constitute a further waiver of the same or any other
condition or covenant of this Lease.
Section 17.02 Remedies Cumulative
The remedies of Landlord shall be cumulative, and no one of them shall
be construed as exclusive of any other or of any remedy prodded by law.
Section 1.7.03 Subordination
This Lease shall, at all times, be subject, subordinate and inferior to
the ground lease of Shopping Center and the existing mortgages or deeds of trust
on the Demised Premises or the Shopping Cent. The same shall apply to future
mortgages or deeds of trust provided that a Nondisturbance and Attornment
Agreement as, discussed below is provided to Tenant. Tenant shall, upon demand,
execute any instrument necessary to effect the foregoing provision. Landlord
shall use its best efforts to obtain a Nondisturbance Agreement and Attornment
Agreement from the ground lessor of the shopping center and the mortgagee or
trust deed beneficiary of the improvements of the shopping center. If Landlord
is unable to obtain said Nondisturbance and Attornment Agreement in form
satisfactory to Tenant within 7 days from the date of execution hereof, then
this Lease shall terminate at Tenant's discretion exercised within 15 days
after Landlord has failed to obtain such Agreement.
Section 17.04 Warranties
Landlord represents and warrants that:
(a) so long as Tenant fulfills the conditions and covenants required of
it to be performed, Tenant will have peaceful and quiet possession
of the Demised Premises; and
(b) the figures stated in Section 3.02 are accurate.
(c) the Demised Premises contains no less than 132,000 square feet and
the total number of leasable square feet in the Shopping Center is
approximately 451,500.
(d) the existing heating and air conditioning equipment is adequate and
satisfactory to provide normal heating and cooling to the Demised
Premises for use as a retail
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department store. Water, electricity and gas for the same purposes
are also available to the Demised Premises. landlord will continue
to provide such utilities upon that same level, but Tenant must
provide such services for purposes and usage beyond that presently
provided.
(e) all of the equipment and machinery in the Demised Premises is in
good and satisfactory working condition.
(f) to the best of Xxxxxxxx's knowledge, there are no hazardous wastes,
hazardous materials, chemical storage areas or asbestos within the
Demised Premises which would cause unusual or extraordinary expense
to Tenant in remodeling the Demised Premises and if there are
Landlord shall remedy said problem.
Section 17.05 Notices and Certificates
All notices required under this Lease shall be deemed to be properly served if
sent by registered or certified mail with return receipt requested, to Landlord
and Tenant at the address as specified on the first page of this Lease, or to
such other addresses which Landlord or Tenant may designate in writing
delivered to the other party for such purpose. Date of service of a notice
served by mail and shall be the date on which such notice is deposited in a
post office of the United States Postal Service. If Xxxxxx is provided with the
name and address of any mortgagee holding a mortgage on property which includes
the Demised Premises, Tenant shall send to such mortgagee a copy of the notice
of default or demand for performance served on Landlord and shall permit such
mortgagee to cure such default or otherwise perform Landlord's obligations
within thirty (30) days after receipt of such written notice by such mortgagee.
Tenant and Landlord agree that, upon request of the other, it will execute a
certificate with respect to the status of this Lease setting forth that it is
in full force and effect and has not been altered, modified or amended (or
specifying the nature of same); that there are no defaults of the other party
known to the party so certifying (or specifying the nature of any known
details); stating the date to which rental has been paid; and setting forth
such additional information as Landlord may reasonably request. Upon written
request of Xxxxxx, Landlord shall provide Tenant with copy of Landlord's
computations and the appropriate back up documentation concerning Tenant's pro
rata share of insurance premiums and real estate taxes under Articles IX and
XIV and concerning Shopping Center's Operating Cost under Article XII.
Section 17.06 Relationship of Parties
Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent, or of partnership, or of joint venture, between the parties hereto,
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Section 17.07 Construction
Whenever a world appears herein in it singular for, such work shall include
the plural; and the neuter gender shall include the masculine and feminine
genders, this Lease shall be construed without reference of titles of Article or
Sections, which are inserted for reference only.
Section 17.08 Consent
Unless specified otherwise herein, Xxxxxxxx's consent to any request of
Xxxxxx will not be unreasonably withheld. Landlord shall have no liability for
damages resulting from Xxxxxxxx's failure to give any consent, approval or
instruction reserved to Landlord, Xxxxxx's sole remedy in any such event being
an action for injunctive relief.
Section 17.09 Law of Nebraska
This Lease has been executed under and shall be governed by the laws of
the State of NEBRASKA.
Section 17.10 Costs
Xxxxxx agrees to pay and indemnify Landlord against all costs and
charges, including attorneys' fees, incurred in enforcing any covenant or
agreement of Tenant contained in this Lease.
If the operation of the Demised Premises by the Tenant shall require the
Landlord to incur additional or increased expenses which are not similarly
required by other Tenants of the Shopping Center, then Tenant shall pay such
additional or increased expenses. Examples of such expenses are trash clean up
in the vicinity of the Demised Premises and any additional outside or parking
lot lighting required un Tenant's operation of the Demised Premises. Landlord
shall have the right to remove any persons from any portion of the Shopping
Center at any time, and to prevent or restrain the use of the Common Areas by
unauthorized person, or persons whose conduct or appearance is objectionable
to the Landlord.
Section 17.11 Lease Memorandum
This Lease shall not be recorded, provided, however, that Tenant shall have
the right to record a short-term Lease Memorandum at any time.
Section 17.12 Force Majeure
In the event that Landlord shall be delayed or hindered in or prevented
from doing or performing any act or thing required in this Lease by reason of
spikes, lock-outs, casualties, acts of God, labor troubles, inability to
procure materials, failures of power, governmental laws or
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regulations, riots, insurrection, war or other causes beyond the reasonable
control of Landlord, then Landlord shall not be liable or responsible for any
such delays and the doing or performing of such act or thing shall be excused
for the period of the delay and the period for the performance of any such act
shall be extended for a period equivalent to the period of such delay.
Section 17.13 Broker Involvement
Landlord and Xxxxxx represent and warrant to each other that no broker was
involved in the negotiations leading to the negotiations leading to the
execution of this Lease or brought it about either directly or indirectly with
the exception of Xxxxxxx Real Estate Company, Inc. ("Xxxxxxx"). Xxxxxxx'x
commission shall be paid by Landlord.
Section 17.14 Landlord's Rules
Landlord shall be entitled to promulgate from time to time, in addition
to the matters set forth in Section 5.02, reasonable rules and regulations
governing use of the Demised Premises and of the Common Area. Tenant shall
abide by all such reasonable rules and regulations.
Section 17.15 Complete Agreement
This Lease contains a complete expression of the agreement between the
parties and there are no problems, representations or inducements except such as
are herein provided.
Section 17.16 Successors in Intent
The covenants, agreements, terms, conditions and warranties of this Lease
shall be binding upon and inure to the benefit of Landlord and Tenant and
their respective heirs, executors, administrators, successors and assigns, but
shall create no right in any over person except as may be specifically provided
for herein.
Section 17.17 Right to Terminate
In the event that any services or facilities necessary for Tenant to
operate the Demised Premises for its intended purposes shall not be available
for any reason, except the negligence or willful action of Tenant or Tenant's
employees, and such service or facilities continue to be unavailable, Tenant
shall have the right to terminate this lease upon twenty (20) days written
notice, provided that such right to terminate shall be voided if Landlord
agrees in good faith to correct such deficiency and takes all necessary action
to correct such deficiency in a reasonable time frame.
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Section 17.18 Authority
Landlord warrants that it has the absolute right and authority to enter
this Lease Agreement and encumber the Demised Premises as provided herein.
Landlord and Tenant each warrants that they have the right and authority to
execute this Lease Agreement and the party signing on behalf of each of the
parties is fully authorized to sign on behalf of the applicable party.
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EXECUTION PAGE
SOUTHROADS MALL LEASE
UNITED INVESTMENT JOINT VENTURE, LANDLORD
AMERITRADE HOLDING CORPORATION, TENANT
EXECUTED ON THE DATE FIRST ABOVE WRITTEN
AMERITRADE HOLDING CORPORATION
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
By: /s/ Xxxx Xxx Xxxxxxxx
----------------------------
Its: Chairman & CEO
----------------------------
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledged before me this 19th day of
January, 1998, by Xxxx Xxx Xxxxxxxx, Chairman and CEO of AMERITRADE HOLDING
CORPORATION, a _____________ corporation, on behalf of the corporation.
Xxxxx X. Xxxxxxx
------------------------
Notary Public
30
EXECUTED ON THE DATE FIRST APPEARING HEREIN.
By /S/ Xxxx Xxxx By
------------------------------------- ----------------------------------
Its Chairman Its
------------------------------------ ---------------------------------
Printed Name Xxxx Xxxx Printed Name
--------------------------- ------------------------
UNITED INVESTMENT JOINT VENTURE AMERITRADE HOLDING CORP.
d/b/a SOUTHROADS MALL 0000 XXXXX 000XX XXXXXX
0000 XXXX XXXXX XXXX XXXXX XXXXX, XX 00000
XXXXXXXX, XX 00000
as Managing Agent tfor
SOUTHROADS SHOPPING CENTER
LIMITED LIABILITY COMPANY
LANDLOARD TENANT
-------------------------------------
Attest
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledged before me this 19th day of
January, 1998, by Xxxx Xxxx, Chairman of SOUTHROADS SHOPPING CENTER, LIMITED
LIABILITY COMPANY, a ______________ corporation, on behalf of the corporation.
Xxxxx X. Xxxxxxx
------------------------
Notary Public
25
31
SCHEDULE A
MINIMUM ANNUAL RENT
Lease Term Annual Rent
---------- -----------
1 $442,200.00
2 455,466.00
3 469,130.00
4 483,204.00
5 497,700.00
6 512,631.00
7 528,010.00
8 543,850.00
9 560,166.00
10 576,971.00
First Xxxxxxx Xxxx
------------------
11 594,280.00
12 612,108.00
13 630,471.00
14 649,385.00
15 668,867.00
Second Xxxxxxx Xxxx
-------------------
16 688,933.00
17 709,601.00
18 730,889.00
19 752,816.00
20 775,400.00
