BUSINESS PROPERTY LEASE
THIS LEASE is entered into this 30th dav of November, 1998, between F & J
Enterprises, Inc., Landlord, and Advanced Business Sciences, Inc., Tenant.
PREMISES
1. Landlord leases to Tenant 3343, 3345 and.3347 North 000 0x Xxxxxx, Xxxxx,
Xxxxxxxx, 00000 - as outlined in red on attached Exhibit "A" Omaha, Xxxxxxx
County, Nebraska, (the "Premises"), containing approximately 6,212 square feet
of area, on the following terms and conditions.
TERM
2. This Lease shall be for a term of Three (3) years, beginning on the I" day of
December, 1998 and ending on the 30th day of November, 2001, unless terminated
earlier as provided in this Lease.
If for any reason the Premises are delivered to Tenant on any date before or
after the, term commencement day, rental for the period between the date of
possession and the term commencement date shall be adjusted on a pro rata basis.
Such earlier or later taking of possession shall not change the termination date
of this Lease. This Lease shall not be void or voidable in the event of a late
delivery by Landlord, nor shall Landlord be liable to Tenant for any resulting
loss or damage.
USE OF PREMISES
3. The Premises are leased to Tenant, and are to be used by Tenant, for the
purposes of office, sales and service of semi-conductor/GPS Systems and no other
purpose. Tenant agrees to use the Premises in such a manner as to not interfere
with the right of other tenants in the Real Estate, to comply with all
applicable governmental laws, ordinances, and regulations in connection with its
use of the Premises, to keep the Premises in a clean and sanitary condition, to
keep the Premises and all sidewalks and approaches thereto in a safe condition
free and clear of ice and snow and all other matter which may be dangerous to
the public and free of all obstructions, and to use all reasonable precaution to
prevent waste, damage, or injury to the Premises.
RENT
4. (a) Base Rent. The total Base Rent under this Lease is One Hundred Sixty
Seven Thousand Seven Hundred Twenty-Four and no/100 Dollars ($167,724.00).
Tenant agrees to pay rent to Landlord at 0000 Xxxxx 000'x Xxxxxx, Xxxxx,
Xxxxxxxx 00000, or at any other place Landlord may designate in writing, in
lawful money of the United States, in monthly installments in advance, on the
first day of each month, as follows:
For the period from December 1, 1998 to November 30, 2001, $4,659.00 per month.
(b) Operating Expenses. In addition to the Base Rent, Tenant shall pay a pro
rata share of operating expenses of the real estate of which the Premises are
part, parking areas, and grounds ("Real Estate"). "Operating expenses" shall
mean all costs of maintaining and operating the Real Estate, including but not
limited to all taxes and special assessments levied upon the Real Estate,
fixtures, and personal property used by Landlord at the Real Estate, all
insurance costs, all costs of labor, material and supplies for maintenance,
repair, replacement, and operation of the Real Estate, including but not limited
to line painting, lighting, snow removal, landscaping, cleaning, depreciation of
machinery and equipment used in such maintenance, repair and replacement, and
management costs including building superintendents. Operating Expenses shall
not include property additions and capital improvements to the real estate,
alterations made for specific tenants, depreciation of the Real Estate, debt
service on long-term debt or income taxes paid by Landlord.
"Tenant's pro rata share" shall mean the percentage determined by dividing the
square feel of the Premises as shown in Paragraph 1 by the square feet of store
area of the Real Estate, as defined by the American National Standard published
by Building Owners and Managers Association, which at the date hereof is agreed
to be 30,074 square feet.
Tenant's pro rata share of the Operating Expenses shall be determined on an
annual basis for each calendar year ending on December 31 and shall be prorated
for the number of months Tenant occupied the Premises if Tenant did not occupy
the Premises the full year. Tenant shall pay One Thousand Ninety-Nine and 53/100
Dollars ($1099.53) per month, on the first of each month in advance with rent
for Tenant's estimated pro rata share of the Operating Expenses. Landlord may
change this amount at any time upon written notice to Tenant. At the end of each
year, an analysis of the total year's Operating Expenses shall be presented to
Tenant and Tenant shall pay the amount, if any, by which the Tenant's pro rata
share of the Operating Expenses for the year exceeded the amount of the
Operating Expenses paid by Tenant. Tenant shall pay any such excess charge to
the Landlord within thirty (30) days after receiving the statement. In the event
this lease terminates at any time other than the last day of the year, the
excess Operating Expenses shall be determined as of the date of termination.
Upon termination of this Lease, any overpayment of Operating Expenses by Tenant
shall be applied to the amounts due Landlord from Tenant under this Lease and
any remaining overpayment shall be refunded to Tenant.
(c) Payment of Rent. Tenant agrees to pay the Base Rent as and when due,
together with Tenant's share of the Operating Expenses and all other amounts
required to be paid by Tenant under this Lease. In the event of nonpayment of
any amounts due under this Lease, whether or not designated as rent, Landlord
shall have all the rights and remedies provided in this Lease or by law for
failure to pay rent.
(d) Late Charge. If the Tenant fails to pay the Base Rent together with the
Tenant's share of the Operating Expenses and all other amounts required to be
paid by Tenant under this Lease, on or before the third day after such payments
are due, Tenant agrees to pay Landlord a late charge of Ten (10%) Percent of
Total Base Rent and Operating Expenses.
(e) Security Deposit. As partial consideration for the execution of this Lease,
the Tenant has delivered to Landlord the sum of $5,758.53 as Security Deposit.
The Security Deposit will be returned to Tenant at the expiration of this Lease
if Tenant has fully complied with all covenants and conditions of this Lease.
SERVICES
Landlord shall furnish electricity, Sewer, Water and Gas Lines to the Premises
at Landlord's Expense. Tenant shall be responsible for payment of all bills for
utilities to the Premises during normal business hours, and at such other times
as Landlord may deem necessary or desirable, in the manner customary to the Real
Estate. Landlord shall have the right to discontinue any service during any
period for which rent is not promptly paid by Tenant. Landlord shall not be
liable for damages, nor shall the rental be abated, for failure to furnish, or
delay in furnishing, any service when failure to furnish, or delay in
furnishing, is occasioned in whole or in part by needful repairs, renewals, or
improvements, or by any strike or labor controversy, or by any accident or
casualty whatsoever, or by any unauthorized act or default of any employee of
Landlord, or for any other cause or causes beyond the control of Landlord.
Tenant shall pay when due, all water, gas, electricity, sewer use fees, incurred
at or chargeable to the Premises.
ASIGNMENT OR SUBLEASE
6. Tenant shall not assign this Lease or sublet the whole or any part of the
Premises, transfer this Lease by operation of law or otherwise, or permit any
other person except agents and employees of Tenant to occupy the Premises, or
any part thereof, without the prior written consent of Landlord. Landlord may
consider the following in determining whether to withhold consent: (a) financial
responsibility of the new tenant, (b) identity and business character of the new
tenant, (c) nature and legality of the proposed use of the Premises.
Landlord shall have the right to assign its interest under this Lease or the
rent reserved hereunder.
TENANT'S IMPROVEMENTS
7. Tenant shall have the right to place partitions and fixtures and make
improvements or other alterations in the interior of the Premises at its own
expense. Prior to commencing any such work, Tenant shall first obtain the
written consent of Landlord for the proposed work. Landlord may, as a condition
to its consent, require that the work be done by Landlord's own employees and/or
under Landlord's supervision, but at the expense of Tenant, and that Tenant give
sufficient security that the Premises will be completed free and clear of liens
and in a manner satisfactory to Landlord. Upon termination of this Lease, at
Landlord's option, Tenant will repair and restore the Premises to its former
condition, at Tenant's expense, or any such improvements, additions, or
alteration installed or made by Tenant, except Tenant's trade fixtures at the
termination of tie Lease provided Tenant is not then in default and provide
further that Tenant repairs any damage cause by such removal.
REPAIRS
8. Landlord agrees to maintain in good condition, and repair as necessary the
foundations, exterior walls and the roof of the Premises. Tenant agrees that it
will make, at its own cost and expense, all repairs and replacements to the
Premises not required to be made by Landlord, including, but not limited to, all
interior and exterior doors, door frames, windows, plate glass, and the heating,
air conditioning, plumbing and electrical systems servicing the Premises. Tenant
agrees to do all redecorating, remodeling, alteration, and painting required by
it during the term of the Lease at its own cost and expense, to pay for any
repairs to the Premises or the Real Estate made necessary by any negligence or
carelessness of Tenant or any of its agents or employees or persons permitted on
the Real Estate by Tenant, and to maintain the Premises in a safe, clean, neat,
and sanitary condition. Tenant shall be entitled to no compensation for
inconvenience, injury, or loss of business arising from the making of any
repairs by Landlord, Tenant, or other tenants to the premises or the Real
Estate.
CONDITION OF PREMISES
9. Except as provided herein, Tenant agrees that no promises, representations,
statements or warranties have been made on behalf of Landlord to Tenant
respecting the condition of the Premises, or the manner of operating the Real
Estate, or the making of any repairs to the Premises. By taking possession of
the Premises, Tenant acknowledges that the Premises were in good and
satisfactory condition when possession was taken. Tenant shall, at the
termination of this Lease, by lapse of time or otherwise, remove all of Tenant's
property and surrender the Premises to Landlord in as good condition as when
Tenant took possession, normal wear excepted.
PERSONAL PROPERTY AT RISK OF TENANT
10. All personal property in the Premises shall be at the risk of Tenant only.
Landlord shall not be liable for any damage to any property of Tenant or its
agents or employees in the Premises caused by steam, electricity, sewage, gas or
odors, or from water, rain, or snow which may leak into, issue or flow into the
Premises from any part of the Real Estate, or from any other place, or for any
damage done to Tenant's property in moving same to or from the Real Estate or
the Premises. Tenant shall give Landlord, or its agents, prompt written notice
of any damage to or defects in water pipes, gas or warming or cooling apparatus
in the Premises.
LANDLORD'S RESERVED RIGHTS
11. Without notice to Tenant, without liability to Tenant for damage or injury
to property, person, or business, and without effecting an eviction of Tenant or
a disturbance of Tenant's use or possession or giving rise to any claim for
setoff or abatement of rent, Landlord shall have the right to:
Change the name or street address of the Real Estate. Install and maintain
signs on the exterior of the Real Estate.
Have access to all mail chutes according to the rules of the United Sates
Post Office Department. At reasonable times, to decorate, and to make, at its
own expense, repairs, alterations, additions, and
improvements structural or otherwise, in or to the Premises, the Real Estate, or
part thereof, and any adjacent building, land, street, or alley, and during such
operations to take into and through the Premises or any part of the Real Estate
all materials required, and to temporarily close or suspend operation of
entrances, doors, corridors, elevators, or other facilities to do so. (e)
Possess passkeys to the Premises. (f) Show the Premises to prospective tenants
at reasonable times. (g) Take any and all reasonable measures, including
inspections or the making of repairs, alterations, and additions and
improvements to the Premises or to the Real Estate, which Landlord deems
necessary or desirable for the safety, protection, operation, or preservation of
the Premises or the Real Estate. (h) Approve all sources furnishing signs,
painting, and/or lettering to the Premises, and approve all signs on the
Premises prior to installation thereof.
INSURANCE
12. Tenant shall not use or occupy the premises or any part thereof in any
manner which could invalidate any policies of insurance now or hereafter placed
on the real estate or increase the risks covered by insurance on the real estate
or necessitate additional insurance premiums or policies of insurance, even if
such use may be in furtherance of tenant's business purposes. In the event any
policies of insurance are invalidated by acts or omissions of tenant, landlord
shall have the right to terminate this lease or, at landlord's option, to charge
tenant for extra insurance premiums required on the real estate on account of
the increased risk caused by tenant's use and occupancy of the premises. Each
party hereby waives all claims for recovery from the other for any loss or
damage to any of its property insured under valid and collectible insurance
policies to the extent of any recovery collectible under such policies.
Provided, that this waiver shall apply only when permitted by the applicable
policy of insurance.
INDEMNITY
13. Tenant shall indemnify, hold harmless, and defend Landlord from and against,
and Landlord shall not be liable to Tenant on account of, any and all costs,
expenses, liabilities, losses, damages, suits, actions, fines, penalties,
demands, or claims of any kind, including reasonable attorney's fees, asserted
by or on behalf of any person, entity, or governmental authority arising out of
or in any way connected with either (a) a failure by Tenant to perform any of
the agreements, terms or conditions of this Lease required to be performed by
Tenant; (b) a failure by Tenant to comply with any laws, statutes, ordinances,
regulations
or order of any governmental authority; or (c) any accident, death, or personal
injury, or damage to, or loss or theft of property which shall occur on or about
the Premises, or the Real Estate, except as the same may be the result of the
negligence of Landlord, its employees, or agents.
LIABILITY INSURANCE
14. Tenant agrees to procure and maintain continuously during the entire term of
this Lease, a policy or policies of insurance in a company or companies
acceptable to Landlord, at Tenant's own cost and expense, insuring Landlord and
Tenant from all claims, demands or actions; such comprehensive insurance shall
protect and name the Tenant as the Insured and shall provide coverage of at
least $1,000,000.00 for injuries to any one person, $2,000,000.00 for injuries
to persons in any one accident and $1,000,000.00 for damage to property, made by
or on behalf of any person or persons, firm or corporation arising from, related
to, or connected with the conduct and operation of Tenant's business in the
Premises, or arising out of and connected with the use and occupancy of
sidewalks and other Common Areas by the Tenant. All such insurance shall provide
that the Landlord shall be given a minimum of ten (10) days notice by the
insurance company prior to cancellation, termination or change of such
insurance. Tenant shall provide Landlord with copies of the policies or
certificates evidencing that such insurance is in full force and effect and
stating the term and provisions thereof. If Tenant fails to comply with such
requirements for insurance, Landlord may, but shall not be obligated to obtain
such insurance and keep the same in effect, and Tenant agrees to pay Landlord,
upon demand, the premium cost thereof.
DAMAGE BY FIRE OR OTHER CASUALTY
15. If, during the term of this Lease, the Premises shall be so damaged by fire
or any other cause except Tenant's negligent or intentional act so as to render
the Premises untenantable, the rent shall be abated while the Premises remain
untenantable; and in the event of such damage, Landlord shall elect whether to
repair the Premises or to cancel this Lease, and shall notify Tenant in writing
of its election within sixty (60) days after such damage. In the event Landlord
elects to repair the Premise, the work or repair shall begin promptly and shall
be carried on without unnecessary delay. In the event Landlord elects not to
repair the Premises, the Lease shall be deemed cancelled as of the date of the
damage. Such damage shall not extend the Lease term.
CONDEMNATION
16. If the whole or any part of the Premises shall be taken by public authority
under the power of eminent domain, then the term of this Lease shall cease on
that portion of the Premises so taken, from the date of possession, and the rent
shall be paid to that date, with a proportionate refund by Landlord to Tenant of
such rent as may have been paid by Tenant in advance. If the portion of the
Premises taken is such that it prevents the practical use of the Premises for
Tenant's purposes, then Tenant shall have the right either (a) to terminate this
Lease by giving written notice of such termination to Landlord not later than
thirty (30) days after the taking; or (b) to continue in possession of the
remainder of the Premises, except that the rent shall be reduced in proportion
to the area of the Premises taken. In the event of any taking or condemnation of
the Premises, in whole or in part, the entire resulting award of damages shall
be the exclusive property of Landlord, including all damages awarded as
compensation for diminution in value to the leasehold, without any deduction for
the value of any unexpired term of this Lease, or for any other estate or
interest in the Premises now or hereafter vested in Tenant.
DEFAULT OR BREACH
Each of the following events shall constitute a default or a breach of this
Lease by Tenant:
In Tenant fails to pay Landlord any rent or additional when due hereunder;
If Tenant vacates or abandons the Premises;
If Tenant files a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act, or voluntarily takes advantage of any
such act by answer or otherwise, or makes an assignment for the benefits of
creditors;
If involuntary proceedings under any bankruptcy or insolvency act shall be
instituted against Tenant, or if a receiver or trustee shall be appointed of all
or substantially all of the property of Tenant, and such proceedings shall not
be dismissed or the receivership or trusteeship vacated within thirty (30) days
after the institution or appointment; or
If Tenant fails to perform or comply with any other term or condition of
this Lease and if such nonperformance shall continue for a period of ten (10)
days after notice thereof by Landlord to Tenant, time being of the essence.
EFFECT OF DEFAULT
In the event of any default or breach hereunder, in addition to any other
right or remedy available to Landlord, either at law or in equity, Landlord may
exert, any one or more of the following rights:
Landlord may re-enter the Premises immediately and remove the property and
personnel of Tenant, and shall have the right, but not the obligation to store
such property in a public warehouse or at a place selected by Landlord, at the
risk and expense of Tenant.
Landlord may retake the Premises and may terminate this Lease by giving
written notice of termination to Tenant. Without such notice, Landlord's
retaking will not terminate the Lease. On termination, Landlord may recover from
Tenant all damages proximately resulting from the breach, including the cost of
recovering the Premises and the difference between the rent due for the balance
of the Lease term, as though the Lease had not been terminated, and the
reasonable rental value of the Premises, which sum shall be immediately due
Landlord from Tenant.
Landlord may relet the Premises or any part thereof for any term without
terminating this Lease, at such rent and on such terms as it may choose.
Landlord may make alternations and repairs to the Premises. In addition to
Tenant's liability to Landlord for breach of this lease, Tenant shall be liable
for all expenses of the reletting, for any alterations and repairs made, and for
the rent due for the balance of the lease term, which sum shall be immediately
due Landlord from Tenant. The amount due Landlord will be reduced by the net
rent received by Landlord during the remaining term of this Lease from reletting
the Premises or any part thereof. If during the remaining term of this Lease
Landlord receives more than the amount due Landlord under this subparagraph, the
Landlord shall pay such excess to Tenant, but only to the extent Tenant has
actually made 1,i, payment pursuant to this sub-paragraph.
SURRENDER - HOLDING OVER
19. Tenant shall, upon termination of this Lease, whether by lapse of time or
otherwise, peaceably and promptly surrender the Premises to Landlord. If Tenant
remains in possession after the termination of this Lease, without written Lease
duly executed by the parties, Tenant shall be deemed a trespasser. If Tenant
pays, and Landlord accepts, rent for a period after termination of this Lease,
Tenant shall be deemed to be occupying the Premises only as a Tenant from month
to month, subject to all the terms, conditions, and agreements of this Lease,
except that the rent shall be two times the monthly rent specified in the Lease
immediately before termination.
SUBORDINATION AND ATTORNMENT
20. Landlord reserves the right to place liens and encumbrances on the Premises
superior in lien and effect to this lease, This Lease, and all rights of Tenant
hereunder, shall, at the option of Landlord, be subject and subordinate to any
liens and encumbrances now or hereafter imposed by Landlord upon the Premises or
the Real Estate or any part thereof, and Tenant agrees to execute, acknowledge,
and deliver to Landlord, upon request, any and all instruments that may be
necessary or proper to subordinate this Lease and all rights herein to any such
lien or encumbrance as may be required by Landlord.
In the event any proceedings are brought for the foreclosure of any mortgage on
the Premises, Tenant will attorn to the purchaser at the foreclosure sale and
recognize such purchaser as the Landlord under this Lease. The purchaser, by
virtue of such foreclosure, shall be deemed to have assumed, as substitute
Landlord, the terms and conditions of
this Lease until the resale or other disposition of its interest. Such
assumption, however, shall not be deemed an acknowledgment by the purchaser of
the validity of any then existing claims of Tenant against the prior Landlord.
Tenant agrees to execute and deliver such further assurances and other
documents, including a new lease upon the same terms and conditions contained
herein, confirming the foregoing, as such purchaser may reasonably request.
Tenant waives any right of election to terminate this Lease because of any such
foreclosure proceedings.
NOTICE
21. Any notice of demands to be given hereunder shall be given in writing and
sent by registered or certified mail to Landlord at Century Development, 0000
Xxxxx 000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000 and to Tenant at Advanced Business
Sciences, Inc., 3345 North 000 xx Xxxxxx, Xxxxx, Xxxxxxxx 00000 or at such other
address as either party may from time to time designate in writing. Each such
notice shall be deemed to have been given at the time it shall be personally
delivered to such address or deposited in the United States mail in the manner
prescribed herein.
RIGHT TO TERMINATE
22. Landlord shall have the right to terminate this Lease at the end of any
calendar month by giving the Tenant written notice at least six months before
the date of the termination of Landlord's intention to remodel, remove or
demolish the Premises, or to sell, or make a ground lease of the land
thereunder.
RULES AND REGULATIONS
23. Tenant and Tenant's agents, employees and invitees shall fully comply with
all rules and regulations of the Veal Estate, as amended from time to time,
which are made a part of this lease as if fully set forth herein. Landlord shall
have the right to amend such rules and regulations as Landlord deems necessary
or desirable for the safety, care, cleanliness, or proper operation of the
Premises and the Real Estate.
NET LEASE
24. This is a net-net-net Lease and the parties agree and understand that Tenant
shall pay Tenant's proportionate share of the real estate taxes, special
assessments, insurance and all other Operating Expenses as described in
subparagraph 4.b of this Lease.
MISCELLANEOUS
25. (a) Binding on Assigns. All terms, conditions, and agreements of this Lease
shall be binding upon, apply, and inure to the benefit of the parities hereto
and their respective heirs, representatives, successors, and assigns. (b)
Amendment in Writing. This Lease contains the entire agreement between the
parties and may be amended ~i, only by subsequent written agreement. (c) Waiver
- None. The failure of Landlord to insist upon strict performance of any of the
terms, conditions and agreements of this Lease shall not be deemed a waiver of
any of its rights or remedies hereunder and shall not be deemed a waiver of any
subsequent breach or default of any of such terms, conditions, and agreements.
The doing of anything by Landlord which Landlord is not obligated to do
hereunder shall not impose any future obligation on Landlord nor otherwise amend
any provision of this Lease. (d) No Surrender. No surrender of the Premises by
Tenant shall be effected by Landlord's acceptance of the keys to the Premises or
of the rent due hereunder, or by any other means whatsoever, without Landlord's
written acknowledgment that such acceptance constitutes a surrender. (e)
Captions. The captions of the various paragraphs in this Lease are for
convenience only and do not define, limit, describe, or construe the contents of
such paragraphs. (f) Brokers. Tenant hereby warrants that no real estate broker
has or will represent it in this transaction and that
no finder's fees have been earned by a third party.
(g) Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Nebraska.
Until this Lease is executed on behalf of all parties hereto, it shall be
construed as an offer to lease of Tenant to Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
F & J Enterprises, Inc.
Landlord
Witness By:____________________
Advanced Business Sciences, Inc.
Tenant
Witness By:_____________________
