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Exhibit 10.68
201
TOWN CENTRE
LEASE AGREEMENT
This LEASE AGREEMENT, made as of this 18th day of July 1995, between 2060
Partnership L.P., an Iowa Limited Partnership ("Landlord"), and Telecom * USA
Publishing Company, an Iowa corporation ("Tenant"),
WITNESSETH, THAT
1. PREMISES: Landlord, subject to the terms and conditions hereof,
hereby leases to Tenant certain premises (the "Premises") shown on the floor
Plan attached hereto as Exhibit A containing approximately 38,535 square feet of
useable area (48,438 square feet rentable area) on the Lower, Third, Fourth, and
Fifth floors, located in the building situated at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ (the "Building"), to be used by Tenant for general office uses and
purposes and for no other use or purpose. The Building, the land underlying and
contiguous thereto and all improvements thereon are hereinafter referred to as
the "Project".
2. TERM: Tenant takes the Premises from Landlord, upon the terms
and conditions contained herein, for the term (the "Term") of Ten (10) years
commencing on September 1, 1995 and ending on the 31st day of August, 2005,
unless terminated sooner as herein provided.
3. MONTHLY BASE RENT: Tenant agrees to pay Landlord during the Term
a Base Rent ("Base Rent") as follows:
Rate
Dates Monthly Base Rent Per/RSF
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September 1, 1995 to December 31, 1995 $30,071.93/month $7.45
January 1, 1996 to December 31, 1996 $31,242.51/month $7.74
January 1, 1997 to December 2001 $31,807.62/month $7.88
January 1, 2002 to December 31, 2002 $33,301.13/month $8.25
January 1, 2003 to December 31, 2004 $35,319.38/month $8.75
January 1, 2005 to August 31, 2005 $37,337.63/month $9.25
Base Rent is payable on the first day of each month in advance, without
deduction or set-off of any kind, to Landlord and delivered to Landlord at
Suite 700, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as may from time to time be designated by Landlord.
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4. OPERATING COSTS: Tenant shall, for the entire Term, pay to
Landlord as additional rent without any set-off or deduction therefrom, Fifty
and 27/100 percent (50.27%) of all costs which Landlord may incur in owning,
maintaining, and operating the Project during the Term. Beginning with calendar
year 1996 and each subsequent year, Landlord and Tenant agree that for the
purpose of computing Tenant's share of Operating Costs, the Project Operating
Costs shall be deemed to be the lesser of actual Operating Costs or an amount
equal to 105% of the previous year's Operating Costs. Said costs are referred
to herein as "Operating Costs" and are hereby defined to include, but shall not
be limited to, all gross real estate taxes and annual installments of special
assessments with respect to the Project, reasonable management fees, insurance
premiums, utility costs, costs of wages, services, equipment and supplies, and
all other costs of any nature whatsoever which, for Federal tax purposes may be
expensed rather than capitalized, but exclusive only of leasing commissions,
depreciation, costs of tenant improvements and payments of principal and
interest on any mortgages covering the Project. Operating Costs shall also
include the yearly amortization of capital costs incurred by Landlord for
improvements, but not structural repairs or modifications to the Project
required to comply with any change in the laws, rules or regulations of any
governmental authority having jurisdiction, or for purposes of reducing
Operating Costs, which costs shall be amortized over the useful life of such
improvements or repairs as reasonably estimated by Landlord in accordance with
generally accepted accounting principles.
As soon as reasonably practicable prior to the commencement
of each calendar year during the Term, Landlord shall furnish to Tenant an
estimate of Tenant's share of Operating Costs for the ensuing calendar year and
Tenant shall pay, as additional rent hereunder, together with each installment
of monthly Base Rent, one-twelfth (1/12th) of its estimated annual share of
such Operating Costs. As soon as reasonably practicable after the end of each
calendar year during the Term, Landlord shall furnish to Tenant a certified
statement of the actual Operating Costs for the previous calendar year,
including Tenant's share of such amount, and within thirty (30) days thereafter
Tenant shall pay to Landlord the difference between such actual and estimated
Operating Costs paid by Tenant. Tenant's share of such Operating Costs for the
years in which this Lease commences and terminates shall be prorated based upon
the dates of commencement and termination of the Term. If Tenant overpaid such
Operating Costs, Landlord shall, at Tenant's option, refund the overpayment or
apply it to the next sums due under the Lease. Any such refund shall be
payable within thirty (30) days after Landlord becomes aware of such
overpayment.
Tenant shall have the right at any time to inspect Landlord's books
and records to verify the actual and estimated Operating Costs. The cost of
any such inspection shall be borne by Tenant unless Tenant discovers an error
in Landlord's books and records equal to five percent (5.0%) or more of the
total amount paid by Tenant for Operating Expenses during the applicable year,
in which case, the cost of such inspection (not to exceed $300) shall be borne
by Landlord.
Notwithstanding any other provision herein to the contrary, it is
agreed that in the event the Project is not fully occupied during any partial
year or any full calendar year, an adjustment shall be made in computing the
operating expenses for such year so that the Operating Costs shall be
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computed for such year as though the Project has been fully occupied during such
year and for real estate tax purposes as if fully occupied and assessed as a
completed project; provided however, in no event shall Tenant be required to pay
more than 50.27% of all Operating Costs as outlined above.
5. ADDITIONAL TAXES: Tenant shall pay as additional rent to
Landlord, together with each installment of Base Rent, the amount of any gross
receipts tax, sales tax or similar tax or any tax imposed in lieu of real
property taxes (but excluding therefrom any income tax) or arising out of
ownership, payable, or which will be payable, by Landlord, by reason of the
receipt of the Base Rent and adjustments thereto.
6. OBLIGATIONS OF LANDLORD: Landlord agrees that it shall:
A. Furnish heat and air conditioning to provide a
temperature condition required for comfortable
occupancy of the Premises under Tenant's normal
business operations. Wherever heat generating
machines or equipment are used in the Premises which
affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to
install supplementary air conditioning equipment in
the Premises, and the cost, operation and maintenance
thereof shall be paid by Tenant to Landlord on the
monthly rent payment dates at such rates as are
determined by Landlord, providing Tenant has the
option to review such plans prior to installation.
B. Provide passenger elevator service in common with
others during working days. Elevator service shall
be available at all other times subject to necessary
maintenance and repair work.
C. Provide janitor service in and about the Premises;
Saturdays, Sundays, and holidays excepted.
D. Make all normal repairs to the Premises, excluding
repairs to any special treatments of walls, floors or
ceilings made by or at the request of Tenant and
excluding repairs to any fixtures or other
improvements installed or made by or at the request
of Tenant.
E. Provide water for drinking, lavatory, and toilet
purposes drawn through fixtures installed by Landlord.
F. Provide venetian or similar type of blinds for
exterior windows. Tenant, at its own expense, may
install drapes and window coverings to the inside of
said blinds (and if installed shall maintain them in
attractive and safe condition); provided, however, in
the sole discretion of Landlord, they are in harmony
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with the exterior and interior appearance of the
Project and create no safety or fire hazard.
G. Make and install or provide for the installation of
Tenant's leasehold improvements in accordance with the
plans and specifications, terms and conditions set
forth in Exhibit B and Exhibit D.
It is understood that Landlord does not warrant that any of the services and
utilities referred to above will be free from interruption from causes beyond
the reasonable control of Landlord. Such interruption of service or utilities
shall never be deemed an eviction or disturbance of Tenant's use and possession
of the Premises or any part thereof or render Landlord liable to Tenant for
damages by abatement of rent or otherwise or relieve Tenant from performance of
Tenant's obligations under this Lease, unless such interruption of services is
caused by the negligence or willful misconduct of Landlord. If the interruption
of services continues for a period of 10 days in more than 25% of the Premises
for reasons under Landlord's reasonable control, Tenant shall have the right to
terminate this Lease upon written notice to Landlord.
7. COVENANTS OF TENANT: Tenant agrees that it shall:
A. Observe such governmental ordinances, laws and
regulations and rules and regulations as from time to
time may be put in effect by Landlord for the general
safety, comfort, and convenience of Landlord,
occupants, and to tenants of the Project; provided
however, Tenant shall not be required to make any
structural repairs or modifications to the Premises
that may be required by such governmental ordinances,
laws, or regulations.
B. Give Landlord access to the Premises at all
reasonable times, without charge or diminution of
rent, to enable Landlord to examine or exhibit the
same and to make such inspections, repairs, additions
and alterations as Landlord may deem advisable.
C. Keep the Premises in good order and condition; Tenant
shall be responsible for payment of all costs
incurred by Landlord in replacing all broken glass
with glass of the same quality, save only glass
broken by fire and extended coverage risks or caused
by others than Tenant, and commit no waste on the
Premises.
D. Pay for all replacement electric lamps and ballasts
used in the Premises.
E. Upon the termination of this Lease in any manner
whatsoever, remove Tenant's goods and effects and
those of any other person claiming under Tenant, and
quit and deliver the Premises to Landlord peaceably
and quietly in as good order and condition as the
same are now in or hereafter may be put in by
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Landlord or Tenant, reasonable use and wear thereof
excepted. Goods and effects not removed by Tenant at
the termination of this Lease, however terminated,
shall be considered abandoned and Landlord may
dispose of the same as it deems expedient at Tenant's
expense. Tenant shall be responsible for any
restoration of the Premises needed by virtue of the
removal of Tenant's goods and effects whether removed
by Tenant or Landlord.
F. Not assign this Lease or sublet all or any part of
the Premises (other than to its parent corporation or
a wholly owned subsidiary of such parent corporation
or Tenant) without first obtaining Landlord's written
consent thereto, which consent will not be
unreasonably withheld provided (i) the occupancy of
any such assignee or sublessee is not inconsistent
with the character of the Project, (ii) such
assignee or sublessee shall assume in writing the
performance of the covenants and obligations of
Tenant hereunder, and (iii) a fully executed copy of
any such assignment or sublease shall be immediately
delivered to Landlord but any such assignment or
subletting shall not be deemed to release Tenant from
the payment and performance of any of its obligations
under this lease; (iv) Tenant shall promptly disclose
and pay to Landlord as additional rent hereunder any
rent or other payments pursuant to any sublease which
exceed the amounts payable hereunder and any other
consideration paid, or to be paid, by reason of the
assignment or sublease. Tenant specifically may
sublet that portion of Fourth Floor totaling 3,878
useable square feet as designated on Exhibit A
without Landlord's consent providing all conditions
of this Lease are met.
G. Not place additional signs on or about the Premises
or Project without first obtaining Landlord's written
consent thereto which will not unreasonably be
withheld.
H. Not overload, damage or deface the Premises or the
Project or do any act which may make void or voidable
any insurance on the Premises or the Project, or
which may render an increased or extra premium
payable for insurance.
I. Not make any alterations or additions to the Premises
without the prior written consent of Landlord and
until payment and completion bonds therefore have
been approved by Landlord; and all alterations,
additions or improvements (including carpeting or
other floor covering) which may be made by either of
the parties hereto upon the Premises, except movable
office furniture and equipment shall at Landlord's
election be the property of Landlord, and shall
remain upon and be surrendered with the Premises, as
a part thereof, at the termination of this Lease.
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J. Tenant shall pay the cost of all separately metered
electricity supplied to or used in the Premises at
rates prevailing for Tenant's class of use as
established by the company providing the electrical
service.
Tenant's, obligation under this paragraph numbered 7 to do or not to do a
specified act shall extend to and include Tenant's obligation to see to it that
Tenant's employees, agents and invitees shall do or shall not do such acts, as
the case may be.
8. CASUALTY LOSS: In case of damage to the Premises or the Project
by fire or other casualty, Tenant shall give immediate written notice to
Landlord, who shall within 30 days of such notice give notice to Tenant that:
(1) Landlord elects to terminate this Lease as hereinafter provided, or (2)
Landlord will cause the damage to be repaired with reasonable speed, at the
expense of the Landlord, subject to delays which may arise by reason of
adjustment of loss under insurance policies and for delays beyond the reasonable
control of Landlord, but Landlord shall have no obligation to restore or replace
any property owned by Tenant; and to the extent that the Premises are rendered
untenantable, the rent shall proportionately ▇▇▇▇▇, except in the event such
damage resulted from the act, fault or neglect of Tenant, Tenant's employees,
invitees or agents, in which event there shall be no abatement of rent. If the
damage shall be so extensive that the Landlord shall decide not to repair or
rebuild, this Lease shall, at the option of Landlord, be terminated as of the
date of such damage by written notice from Landlord to Tenant, and the rent
shall be adjusted to the date of such damage and Tenant shall thereupon promptly
vacate the Premises. If more than 50% of the Premises is rendered untenantable
for more than twenty (20) days, Tenant shall have the right to terminate this
Lease upon ten (10) days written notice to Landlord.
9. CONDEMNATION: If the entire Premises are taken by eminent
domain, this Lease shall automatically terminate as of the date of taking. If
fifty percent (50%) or more of the Premises are taken by eminent domain,
Landlord or Tenant shall have the right to terminate this Lease as of the date
of taking by giving written notice thereof to the other on or before the date
of taking. If neither Landlord or Tenant elect to terminate this Lease,
Landlord shall, at its expense, restore the Premises, exclusive of any
improvements or other changes made therein by Tenant, to as near the condition
which existed immediately prior to the date of taking as reasonably possible,
and to the extent that the Premises are rendered untenantable, the rent shall
proportionately ▇▇▇▇▇. All compensation awarded or paid upon such eminent
domain shall belong to and be the property of Landlord, without any
participation by Tenant; provided, however, nothing contained herein shall be
construed to preclude Tenant from prosecuting any claim directly against the
condemning authority for loss of business, depreciation to, damage to and/or
cost of removal of and/or for value of stock and/or trade fixtures, furniture
and other personal property belonging to Tenant as along as such claim does not
diminish or otherwise adversely affect Landlord's award.
10. DELAY IN POSSESSION: If the Premises shall on the scheduled
date of commencement of the Term not be ready for occupancy by the Tenant due
to the possession or occupancy thereof by any person not lawfully entitled
thereto, or because construction has not yet been
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completed, or by reason of any building operations, repair or remodeling to be
done by Landlord, Landlord shall use due diligence to complete such
construction, building operations, repair or remodeling and to deliver
possession of the Premises to Tenant. The Landlord, using such due diligence,
shall not in any way be liable for failure to obtain possession of the Premises
for Tenant or to timely complete such construction, building operations, repair
or remodeling, but the Base Rent and other charges payable by Tenant hereunder
shall ▇▇▇▇▇ until the Premises shall, on Landlord's part, be ready for the
occupancy of Tenant, this Lease remaining in all other respects in full force
and effect and the Term not thereby extended provided, however, if the Premises
are not ready for occupancy due to Landlord's negligence within 45 days of the
scheduled date of commencement of the Term, Tenant may terminate this Lease by
written notice to Landlord.
11. LIABILITY: Tenant agrees that Landlord and its officers,
agents and employees shall not be liable to Tenant for any damage to or loss of
personal property in the Premises unless such damage or loss is the result of
the negligence or willful misconduct of Landlord or its officers, agents and
employees.
12. DEFAULT: If Tenant shall fail to:
A. Pay, within five (5) days of its due date, any
Monthly Base Rent or Operating Costs, or
B. Pay any other sum payable hereunder within ten (10)
days after written notice has been given to Tenant, or
C. Keep, observe or perform any of the other terms,
covenants or conditions herein to be kept, observed
or performed by Tenant for more than thirty (30) days
after written notice is given to Tenant specifying
the nature of such default, or if such default so
specified shall be of such a nature that the same
cannot be reasonably cured or remedied within said
thirty (30) day period, than, if Tenant shall not in
good faith have commenced the curing or remedying of
such default within such thirty (30) day period and
is not thereafter continuously and diligently
proceeding therewith to completion;
then in any such event, Landlord, in addition to all other rights and remedies
available to Landlord, by law or by other provisions hereof, may, with due
process, re-enter immediately into the Premises and remove all persons and
property therefrom, and at Landlord's option, annul and cancel this Lease as to
all future rights of Tenant, and Tenant hereby expressly waives the service of
any notice in writing of intention to re-enter as aforesaid. Tenant further
agrees that in case of any such termination or re-entry Tenant will indemnify
the Lessor against all loss of rents and other damage which Landlord may incur
by reason of such termination, or re-entry, including but not being limited to,
costs of restoring and repairing the Premises and putting the same in rentable
condition, costs of renting the Premises to another tenant, loss or diminution
of rents and other damages which Landlord may incur by reason of
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such termination or re-entry, and all reasonable attorney's fees and expenses
incurred in enforcing any of the terms of this Lease. Neither acceptance of
rent by Landlord, with or without knowledge of breach, nor failure of Landlord
to take action on account of any breach hereof or to enforce its rights
hereunder shall be deemed a waiver of any breach, any absent written notice or
consent, said breach shall be a continuing one.
13. NOTICES: All bills, statements, notices or communications
which Landlord may desire or be required to give to Tenant shall be deemed
sufficiently given or rendered if in writing and either delivered to Tenant
personally or sent by registered or certified mail return receipt request
addressed to Tenant at the Premises and the time of rendition thereof or the
giving of such notice or communication shall be deemed to be the time when the
same is delivered to Tenant or deposited in the mail as herein provided. Any
notice by Tenant to Landlord shall be deemed sufficiently given or rendered if
in writing and either delivered to Landlord personally or sent by registered or
certified mail return receipt requested addressed to Landlord at the address
where the last previous rental hereunder was payable, or in case of subsequent
change upon notice given, to the latest address furnished, and the time of
rendition thereof or the giving of such notice or communication shall be deemed
to be the time when the same is delivered to Landlord or deposited in the mail
as herein provided.
14. HOLDING OVER: Should Tenant continue to occupy the Premises
after expiration or termination of the Term or any renewal or renewals thereof,
with Landlord's consent, such tenancy shall be from month to month and in no
event from year to year or for any longer term, and shall be on all the terms
and conditions hereof applicable to a month to month tenancy except that Base
Rent shall equal 150% of the Base Rent plus Tenant's share of Operating Costs
payable at the time of such expiration or termination. Nothing herein,
however, shall prevent Landlord from removing Tenant forthwith and seeking all
remedies available to Landlord in law or equity.
15. SUBORDINATION: The rights of Tenant shall be and are subject
and subordinate at all times to the lien of any mortgage now and hereafter in
force against the Project and Tenant shall execute such further instruments
subordinating this Lease to the lien or any such mortgage as shall be requested
by Landlord.
16. ESTOPPEL CERTIFICATE: Tenant shall at any time and from time
to time, within twenty (20) days after written request by Landlord, execute,
acknowledge and deliver to Landlord and any other parties designated by
Landlord, a certificate in writing certifying (a) that this Lease is in full
force and effect and is unmodified (or, if modified, stating the nature of such
modifications), (b) the date to which the rental and other charges payable
hereunder have been paid in advance, if any, and (c) that there are, to
Tenant's knowledge, no uncured defaults on the part of Landlord hereunder (or
specifying such defaults if any are claimed). Any such certificate may be
furnished to and relied upon by any prospective purchaser, lessee or
encumbrancer of all or any portion of the Project.
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17. INTEREST: Any amount due under this Lease which is not paid
when due shall bear interest at the lesser of the highest legal rate or 18
percent per annum from the date due until paid; provided, however, the payment
of such interest shall not excuse or cure the default upon which such interest
accrued.
18. BINDING EFFECT: The word "Tenant", wherever used in this
Lease, shall be construed to mean tenants in all cases where there is more than
one tenant, and the necessary grammatical changes required to make the
provisions hereof apply to corporations, partnerships or individuals, men or
women, shall in all cases be assumed as though in each case fully expressed.
Each provision hereof shall extend to and shall, as the case may require, bind
and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and assigns, provided that this Lease shall
not inure to the benefit of any assignee, heir, legal representative,
transferee or successor of the Tenant except upon the express written consent
or election of Landlord.
19. ENVIRONMENTAL PROVISIONS:
A. Tenant shall not cause or permit any Hazardous
Material to be brought upon, kept or used in or about
the Premises by Tenant, its agents, employees,
contractors or invitees.
B. Tenant shall not discharge, leak, or admit, or permit
to be discharged, leaked, or admitted any material
into the atmosphere, ground, sewer system or any
body of water, if that material (as is reasonably
determined by Landlord or any governmental authority)
does or may pollute or contaminate the same, or may
adversely effect (a) the health, welfare or safety of
persons, whether located on the Premises or
elsewhere, or (b) the condition, use or enjoyment of
the Premises or any other real or personal property.
C. As used herein the term "Hazardous Material" means:
i. Any "hazardous waste" as defined by the
Resource Conservation and Recovery Act of
1976, as amended from time to time, and
regulations promulgated thereunder;
ii. Any "hazardous substance" as defined by the
Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as
amended from time to time, and regulations
promulgated thereunder,
iii. Any oil, petroleum products, and their
byproducts; and
iv. Any substance that is or becomes regulated by
any federal, state or local governmental
authority.
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D. Tenant shall defend, indemnify and hold harmless
Landlord, its successors and assigns, and their
agents from and against any claims, demands,
penalties, fines, liabilities, settlements, damages,
costs or expenses (including without limitation
attorneys' and consultant's fees, court costs and
litigation expenses) of whatever kind or nature,
known or unknown, contingent or otherwise, arising out
of Tenant's acts or omissions after Tenant takes
possession of the Premises, and in any way related
to:
i. The presence, disposal, release or threatened
release of any Hazardous Material that is on,
from or affecting the soil, water,
vegetation, buildings, personal property,
persons, animals, or otherwise;
ii. Any personal injury (including wrongful
death) or property damage (real or personal)
arising out of or related to the Hazardous
Material;
iii. Any lawsuit brought or threatened, settlement
reached or government order relating to the
Hazardous Material; or
iv. Any violations of any laws or regulations
applicable thereto.
The provisions of this paragraph shall be in addition to any other
obligations or liabilities Tenant may have to Landlord.
20. COMMISSIONS: Tenant represents and warrants that Tenant has not
been and is not liable for any brokers' or finders' fees or commissions in
connection with Tenant's leasing of the Premises.
21. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfer
or transfers of Landlord's interest in the Premises or the Building, other than
a transfer for security purposes only, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer. Except that Tenant shall be
entitled to any rights of termination and/or rights of cancellation and/or
rights of cancellation and/or rights of abatement of rent to which Tenant is
entitled under the terms of this Lease.
22. INCORPORATION OF EXHIBITS: The following exhibits to this
Lease are hereby incorporated by reference for all purposes as fully as if set
forth at length herein:
EXHIBIT A Floor Plan of Premises
EXHIBIT B Leasehold Improvements Plan and
Specifications
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EXHIBIT C Intentionally Omitted
EXHIBIT D Additional Terms and Conditions
EXHIBIT D-1 Letter to Building Department
23. QUIET ENJOYMENT: Landlord covenants that its estate in the
Premises is fee simple and that Tenant, on paying the Monthly Base Rent and
Operating Costs herein reserved and performing all the agreements by Tenant to
be performed, shall and may peaceably have, hold and enjoy the Premises for the
Term of this Lease free from molestation, eviction or disturbance by Landlord
or any other persons or legal entity whatsoever.
24. DEFAULT BY LANDLORD: If Landlord breaches any of the
obligations required to be performed by Landlord under this Lease, and fails to
cure such breach within ten (10) days after written notice thereof, Tenant may
either cure such breach and deduct the cost thereof from any sum subsequently
due hereunder, or elect to terminate this Lease upon written notice to
Landlord.
25. ATTORNEY FEES: In the event either party hereto is successful
in enforcing against the other any remedy, legal or equitable, for a breach of
any of the provisions of this Lease, there shall be included in the judgment or
decree, the reasonable expenses and attorney's fees of the successful party.
26. APPLICABLE LAW: This Lease shall be construed and performed in
accordance with the laws of the State of Iowa.
27. ATTORNMENT: Tenant agrees that no action taken by the holder
of a mortgage by reason of default hereunder shall terminate this Lease or
invalidate or constitute a breach of any of the terms or conditions hereof and
Tenant shall attorn to the purchaser at any foreclosure sale or the grantee
in any conveyance in lieu of foreclosure as Landlord under this Lease, and
Tenant will execute such instruments as may be necessary or appropriate to
evidence such attornment, provided that the holder of the note and mortgage
agrees that as long as Tenant is not in default under this Lease, Tenant's
right to possession and use of the Premises shall be and remain undisturbed and
unaffected by the holder of the note and mortgage or by any foreclosure
proceedings thereunder.
28. WARRANTY: Landlord shall defend, indemnify and hold harmless
Tenant, its successors and assigns, from any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses
(including without limitation attorneys and consultant's fees, court costs and
litigation expenses) of whatever kind or nature, known or unknown, contingent
or otherwise, which arise out of Landlord's acts or omissions which are not
attributable to Tenant's acts or omissions and are not in any way related to the
items described in 19.D.(i-iv) above.
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IN WITNESS WHEREOF, the respective parties hereto have caused this
Lease to be executed as of the day and year first above written.
LANDLORD: TENANT:
2060 PARTNERSHIP, L.P. TELECOM*USA PUBLISHING COMPANY
By: 2001 Development Corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Executive Vice President Its: Vice President - Finance
Date: 7-18-95 Date: 7/18/95
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EXHIBIT B
LEASEHOLD IMPROVEMENT PLAN AND SPECIFICATIONS
Landlord and Tenant agree to the Leasehold Improvement Plan and Specifications
as shown in drawings by OPN Architects dated June 5, 1995. The Landlord will
pay $17,100.00 towards the improvements on the Lower Level location. Any
improvements in excess of the above amount shall be paid by Tenant.
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EXHIBIT D
ADDITIONAL TERMS AND CONDITIONS
1) LEASEHOLD IMPROVEMENTS (Lower Level):
Landlord and Tenant agree all Leasehold Improvements to the Lower
Level Premises location shall be constructed by ▇▇▇▇ Construction
Company (▇▇▇▇) in accordance with the Leasehold Improvement Plan and
Specifications agreed to by Landlord and Tenant as per drawings by OPN
Architects dated June 5, 1995. Landlord will pay $17,100.00 towards
improvements for the Lower Level. Any improvements in excess of this
amount shall be paid by Tenant. Landlord will amortize the excess
Leasehold Improvements in the amount of $52,670.00. The terms are 11%
interest over 60 months. The monthly Leasehold Improvement payment
will be $1,145.17.
2) RIGHT OF CANCELLATION. Tenant shall have the right to terminate this
Lease as of September 1, 2002 if:
(a) Tenant gives written notice to Landlord that it is
exercising that right no later than March 1, 2002 and
(b) Tenant is not in default under the Lease at the time
such termination right is exercised and at the time
such termination becomes effective, and
(c) Tenant pays to Landlord in cash on or before the date
of termination, One Hundred Ninety-Five Thousand and
Zero dollars ($195,000.00) in addition to all other
sums due and owing under the terms of the Lease as of
the date of termination.
If the foregoing conditions are met, on or before the date set forth
in Tenant's notice, the Term shall expire with the same force and
effect as if such date were the expiration date of the Term.
The respective rights and obligations of Landlord and Tenant with
respect to the Lease and the Premises shall be preserved and shall
survive the termination of this Lease as to all matters arising or
accruing prior to the date of termination.
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Within 15 days after receipt from Landlord or Tenant, the other party
shall execute and deliver those instruments reasonably requested to
evidence the termination of this Lease.
3) RENEWAL OPTION:
Landlord grants Tenant the option to extend the Term for 1 period of 60
months each subject to the following conditions:
(a) At the time Tenant exercises the option, Tenant is
not in default under the Lease.
(b) Tenant gives Landlord at least 8 months prior written
notice of Tenant's election to extend the Term no
later than January 1, 2005.
(c) The extended Term will be on the same terms,
covenants and conditions provided during the initial
Term except that there will be no further options to
extend the Term, and the Monthly Base Rent will be as
follows:
Base Rent
Dates Per/RSF
------------------------------------ ---------
September 1, 2005 to August 31, 2006 $ 9.25
September 1, 2006 to August 31, 2010 $10.75
(d) At the request of either, Landlord and Tenant will
execute and deliver appropriate documents covering
extension of the Term, the Monthly Base Rent and
other terms of this Lease during the extended Term.
(e) The rights of Tenant under this Section will not be
severed from this Lease or separately sold, assigned
or transferred, and will expire on the expiration or
earlier termination of this Lease.
4) EXPANSION:
(a) Tenant shall have the option to lease the area
designated Right of First Refusal on Exhibit A
(Fourth Floor) attached hereto effective January 1,
1997. Tenant shall notify Landlord in writing no
later than June 30, 1996 of its intention to lease
this area. The Monthly Base Rent during the Lease's
initial Term shall be calculated as follows if the
space is leased in "as-is" condition:
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Base Rent
Dates Per/RSF
------------------------------------ ---------
Commencement date - December 31, 2001 $6.88
January 1, 2002 - December 31, 2002 $7.25
January 1, 2003 - December 31, 2004 $7.75
January 1, 2005 - August 31, 2005 $8.25
The Monthly Base Rental rate for the Option period
shall be:
Rate
Dates Per/RSF
------------------------------------ -------
September 1, 2005 to August 31, 2006 $8.25
September 1, 2006 to August 31, 2010 $9.75
All other terms, covenants and conditions provided in
the Lease will apply to the expansion space.
The failure of Tenant to exercise its option as to
any space tendered pursuant to this paragraph shall
terminate the obligation of Landlord to again offer
that space to Tenant pursuant to the terms and
conditions of this paragraph.
(b) Effective January 1, 1997, Tenant shall have the
option to lease the corridor area on Exhibit A
(▇▇▇▇▇▇ ▇▇▇▇▇) only if Tenant exercises its option as
outlined in this Section 4, Item a. Tenant shall
notify Landlord in writing no later than June 30,
1996 of its intention to lease this area. Landlord
shall pay $22,965 towards Leasehold Improvements for
this area. The Monthly Base Rent shall be calculated
using the same rates as outlined in the Lease
(Section 3; Monthly Base Rent) and in Exhibit D
(Section 3, Item C; Renewal Option). All other terms
convenience and conditions provided in the Lease will
apply to the corridor space Any excess Leasehold
Improvement costs shall be paid by the Tenant.
Landlord will consider amortizing the excess cost at
reasonable rates, but is not committed to doing so.
5) PARKING:
Landlord shall cause to be made available to Tenant, and Tenant agrees
to rent up to 48 parking spaces ("Spaces") in the parking facility
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ and up to 96
spaces in the City of Cedar Rapids Fourth Avenue Parkade. Tenant
shall pay directly to the parking facility operator ("Operator") such
amounts as are from time to time agreed upon by Tenant and Operator.
Landlord does not warrant that these Spaces will be free from
interruption from causes beyond reasonable control of Landlord. Such
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interruption of Spaces shall never be deemed an eviction or
disturbance of Tenant's use and possession of the Premises or any part
thereof or render Landlord liable to Tenant for damages by abatement
of rent or otherwise relieve Tenant from performance of Tenant's
obligations under this Lease.
6) TERMINATION OF LEASE:
This Lease is in lieu of and to take the place of the certain Lease
Agreement for Third, Fourth, and Fifth floors dated February 12, 1993
and First Lease Amendment dated May 24, 1994, by and between 2060
Partnership, L.P. and Telecom*USA Publishing Company, which lease and
amendment shall terminate as of the commencement date of this Lease.
7) RESTROOMS - FIFTH FLOOR:
If Tenant exercises its option to lease the area outlined in this
Exhibit, Item 4a, Landlord agrees to pay for reasonable relocation
expansion and remodeling of the men's and women's restrooms on Fifth
Floor of the Premises to comply with applicable City Code requirements
and ordinances. Landlord agrees that reasonable relocation encompasses
any place on South side. See attached Exhibit D1 to the City of Cedar
Rapids Building Department.
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