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Exhibit 10.14
LEASE AGREEMENT
THIS WAREHOUSE LEASE (the "Lease") is made and entered into as of the 15th
day of July, 1997, by and between XXXXXXXX PROPERTIES CORPORATION, a Nebraska
corporation ("Lessor"), and CENTURION INTERNATIONAL, INC., a Nebraska
corporation ("Lessee").
RECITALS
WHEREAS, Lessor is the owner of the following described real property
generally located at 0000 Xxxxxxxx Xxxxxxxxx in Lincoln, Lancaster County,
Nebraska, and all improvements located thereon, consisting of approximately
66,500 square feet of warehouse and office space (the "Leased Premises"):
Xxx 0, 0 xxx 0, Xxxxx 0, Xxxxxxx industrial Park, City of Lincoln,
Lancaster County, Nebraska; and
WHEREAS, Lessee desires to lease from Lessor, and Lessor desires to lease
to Lessee, the Leased Premises pursuant to the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises,
covenants, representations and warranties hereinafter contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Term and Permission.
a. Initial Term. The initial term of this Lease shall be for a period
of three (3) years (the "Initial Term") beginning on August 1, 1997
(the "Commencement Date") and ending on July 31, 2000 (the
"Termination Date").
b. Quiet Enjoyment. Lessee shall have sole possession of the Leased
Premises for the entire Term (as defined below) hereof, subject to
satisfaction by Lessee of its obligations hereunder.
c. Renewal Option. Provided that Lessee is not in default of any
material term, condition or covenant contained in this Lease at the
time of renewal this Lease may be extended at the option of Lessee
for three (3) renewal terms of one (1) consecutive year each (each,
a "Renewal Term") on the same terms and conditions set forth herein,
subject to the rent adjustment described in Section 2(a)(ii) hereof.
In order to exercise each such renewal option, Lessee must deliver
written notice of its intent to renew to Lessor no less than one
hundred twenty (120) days prior to the expiration of the
then-current Term. The Initial Term and Renewal Terms, if any, shall
be referred to collectively herein as the "Term."
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d. Option to Terminate. Notwithstanding anything to the contrary set
forth herein, Lessee shall have the right to terminate this Lease as
of July 31, 1999 (the "Early Termination Date"). In order to
exercise such option, Lessee must deliver written notice of its
intent to terminate this Lease to Lessor on or before January 31,
1999. In the event that Lessee exercises its right to terminate this
Lease, Ninety-Nine Thousand Seven Hundred Fifty Dollars and
No/100ths ($99,750.00) (the "Early Termination Fee") shall be due
and payable by Lessee to Lessor on the Early Termination Date.
2. Rent.
a. Annual Rental.
i. Initial Annual Rental. During the Initial Term, Lessee agrees
to pay a minimum annual rental for Lessor's interest in the
Leased Premises in the sum of One Hundred Ninety-Nine Thousand
Five Hundred Dollars and No/100ths ($199,500.00) (the "Initial
Annual Rental") payable in twelve equal monthly payments of
Sixteen Thousand Six Hundred Twenty-Five Dollars and No/100ths
($16,625.00) (the "Initial Monthly Rental").
ii. Renewal Annual Rental. The annual rental for each Renewal
Term, if any, shall be established as follows, the Annual
Rental (as hereinafter defined) for the then-current Term
shall be adjusted on the first day of the first full calendar
month of the Renewal Term (the " Renewal Date"), to reflect
general consumer price changes in the United States economy.
These adjustments shall be made as follows:
(1) A fraction shall be determined whose denominator is the
U.S. Department of Labor Consumer Price Index for All
Urban Consumers for the Xxxxx Xxxxxxx Xxxx xx xxx Xxxxxx
Xxxxxx, Class C Cities, All Items Subindex (the "CPI-U")
for the third calendar month prior to calendar mouth in
which the then-current Term began (i.e. May, 1997) and
whose numerator is the CPI-U for the third calendar
month prior to the calendar month in which the Renewal
Date occurs (i.e. May, 2000).
(2) The Annual Rental for the then-current Term shall be
multiplied by the lesser of (i) the fraction determined
under subparagraph (1) above, or (ii) one hundred three
percent (103%), and the product shall be the annual
rental for the then-current Renewal Term (the "Renewal
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Annual Rental payable in twelve equal monthly payments
(the "Renewal Monthly Rental").
(3) The Initial Annual Rental, and Renewal Annual Rental
shall be referred to jointly herein as the "Annual
Rental." The Initial Monthly Rental and the Renewal
Monthly Rental shall be referred to jointly herein as
the "Monthly Rental."
(4) In no event shall the Renewal Annual Rental be lower
than the Annual Rental for the then-current Term.
(5) If the CPI-U is discontinued or replaced, then Lessor
shall substitute a reasonably equivalent other index
which will accomplish the same result of reflecting
general consumer price changes in the U.S. economy.
b. Payment of Rent. As of the Commencement Date, Lessee shall pay the
Monthly Rental without any prior demand therefor and without any
deduction or offset whatsoever, in advance in lawful money of the
United States of America, to Lessor on the first business day of
each calendar month during the Term hereof as minimum monthly rent
for Lessor's interest in the Leased Premises for such month. Lessee
shall make all payments of rent and other expenses to Lessor at
Lessor's address set forth in Section 16 hereof or at such other
address as Lessor may from time to time request in writing. The
first Monthly Rental shall be due and payable on the Commencement
Date and thereafter shall be due and payable on the first day of
each successive calendar month during the Term hereof and will be
delinquent if not paid within ten (10) days following receipt of
written notice from Lessor of the failure to pay such rent on the
first day of the month.
c. Additional Rent. On the Commencement Date, Lessee shall pay Ten
Thousand Dollars and No/100ths ($10,000.00) (the "Additional
Rental") in cash or certified funds to Lessor as additional rent
hereunder. In addition to the Annual Rental and the Additional
Rental (which is to include existing air conditioning and dock
levelers), Lessee shall pay all real and personal property taxes and
assessments levied against the Leased Premises during the Term
hereof prior to delinquency. Taxes and assessments which are levied
or assessed against the Leased Premises with respect to the first
and last years of the Term of this Lease shall be prorated. In the
event that such taxes are paid directly to the taxing authority by
Lessee, Lessee shall provide Lessor with a copy of the receipt
evidencing payment of all such taxes as and when such receipt is
received by Lessee.
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Draft Dated July 11, 1997
d. Net Rent. The Monthly Rental shall be net to Lessor in each year
during the Term of this Lease. All reasonable costs, expenses, and
obligations of every kind relating to the Leased Premises (except as
otherwise specifically provided in this Lease) which may arise or
become due during the Term of this Lease shall be paid by Lessee,
and Lessor shall be indemnified by Lessee against such costs,
expenses, and obligations.
e. Security Deposit. On the Commencement Date Lessee shall deposit with
Lessor the sum of Sixteen Thousand Six Hundred Twenty-Five Dollars
and No/100ths ($16,625.00) as a security deposit (the "Security
Deposit") to be held as security for the performance by Lessee of
all of Lessee's obligations imposed under this Lease. If Lessee
fails to pay rent or other charges due under this Lease, or
otherwise defaults with respect to any provision of this Lease,
Lessor may use, apply or retain all or any part of the Security
Deposit to cure the default or to compensate Lessor for all damage
sustained by it resulting from Lessee's default. if any part of the
Security Deposit is so used or applied Lessee shall, upon request,
deposit cash with Lessor in an amount sufficient to restore the
Security Deposit to its original amount. If Lessee shall fully and
faithfully perform all of its obligations under this Lease, the
Security Deposit or any balance of the Security Deposit shall be
returned to Lessee at the expiration of the Term hereof or after
Lessee has vacated the Leased Premises, whichever is later;
provided, however, that Lessor may retain the Security Deposit until
such time as any amount due from Lessee has been paid in full. No
right or remedy available to Lessor as provided in this Section 2(e)
shall preclude or extinguish any other right or remedy to which
Lessor may be entitled.
3. Use of Premises. Unless otherwise approved in writing by Lessor, Lessee
shall use and occupy the Leased Premises solely as a light manufacturing
plant and Lessee shall make no use of the Leased Premises which would
cause the fire and extended coverage insurance required hereby to be
canceled. Lessee shall conduct its business on the Leased Premises in
compliance with all federal, state, or municipal statutes, regulations, or
ordinances. Lessee shall not do or permit anything to be done in or about
the Leased Premises which would constitute a nuisance.
4. Insurance and Indemnification.
a. Lessee's Insurance. As additional rent during the Term of the Lease,
Lessee shall obtain and keep in full force and effect, at its sole
cost and expense, the following insurance (the "Lessee's Insurance")
with a responsible insurance company or companies admitted to do
business in the State of Nebraska and otherwise reasonably
acceptable to Lessor:
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i. Comprehensive commercial general liability insurance issued on
an occurrences basis in which the limits of liability for
primary coverage shall not be less than One Million and No/100
Dollars ($1,000,000.00) per occurrence, not less than Two
Million and No/100 Dollars ($2,000,000.00) in the aggregate,
with property damage limits of Five Hundred Thousand and
No/100 Dollars ($500,000.00). Further, Lessee shall provide
umbrella liability coverage of an additional Three million and
No/100 Dollars ($3,000,000.00) per occurrence.
ii. Property coverage and contents insurance for all of Lessee's
fixtures, furnishings, equipment and inventory.
iii. Workers' compensation and employer liability coverage as may
be required by the State of Nebraska, with a waiver of
subrogation in favor of Lessor.
iv. Fire and "all risk" extended coverage/named perils insurance
for the full replacement value of all improvements which form
a part of the Leased Premises.
b. Evidence of Lessee's Insurance. Lessee shall promptly provide to
Lessor evidence of the insurance coverages required to be maintained
by Lessee under this Section, represented by Certificates of
Insurance issued by the insurance carrier(s). The insurance coverage
required in Section 4(a)(i) hereof shall name Lessor as an
additional insured thereunder, contain cross-liability and
severability of interest endorsements, state that such insurance is
primary insurance as regards any other insurance carried by Lessee
and contain a waiver of subrogation in favor of Lessor. The
insurance coverage required in Section 4(a)(iv) hereof shall name
Lessor as loss payee thereunder, contain cross-liability and
severability of interest endorsements, state that such insurance is
primary insurance as regards any other insurance carded by Lessee
and contain a waiver of subrogation in favor of Lessor. All such
insurance policies and/or Certificates of Insurance required in this
Section shall state that Lessor will be notified in writing thirty
(30) days prior to cancellation, material change or non-renewal of
insurance. Timely renewal certificates shall be provided to Lessor
upon request.
c. Indemnification. Lessee hereby agrees to indemnify and hold harmless
Lessor, its agents, and employees from and against any and all
claims or demands for the loss, theft or damage to property or for
injury or death to any person from any cause whatsoever while in,
upon, or about the Leased Premises during the Term hereof, except to
the extent that such claim is compensated by insurance and except
further that Lessee's indemnification shall not include an
indemnification for liability for the
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gross negligence or willful misconduct of Lessor, its agents, or
employees. Each party hereto shall indemnify and hold the other
party, its agents, and employees harmless from and against any and
all claims and liability arising from any breach or default by such
indemnifying party in the performance of any obligation of such
indemnifying party under this Lease or arising from the gross
negligence or willful misconduct of such indemnifying party, its
agents, employees, or invitees.
d. Mutual Waiver of Subrogation. Without limiting the obligation of
Lessee to maintain insurance which permits waiver of subrogation
(unless otherwise approved in writing by Lessor) and notwithstanding
the indemnification provisions set forth above or anything else to
the contrary set forth herein, Lessor and Lessee hereby waive all
causes of action and rights of recovery against each other, against
all subtenants or assignees of Lessee and against any other person
or entity holding an interest in the Leased Premises (together, the
"Affected Parties"), and against the agents, officers, employees,
and invitees of the Affected Parties for any loss occurring to the
property of the Affected Parties resulting from any of the perils
insured against under any and all fire or other extended casualty
insurance policies in effect at the time of any such loss regardless
of cause or origin of such loss.
5. Maintenance, Repairs and Replacements. During the Term hereof, Lessee
shall take good and reasonable care of the Leased Premises and, at its
sole cost and expense, undertake and perform all necessary maintenance and
make all repairs and replacements as shall be reasonably necessary to keep
the Leased Premises in good condition and repair. Lessee agrees that all
damage or injury done to the Leased Premises by Lessee or by any person,
other than Lessor or those controlled or contracted by Lessor, who may be
in or upon the Leased Premises shall be repaired by Lessee at its sole
expense. Lessee further agrees at the expiration of this Lease or upon the
earlier termination thereof, to quit and surrender the Leased Premises in
good condition and repair, reasonable wear excepted. Notwithstanding
anything to the contrary contained in this Lease, nothing contained in
this Section shall act or be interpreted so as to prohibit Lessor or
Lessee from collecting any amounts covered by fire or other extended
casualty insurance and, subject to Lessee's obligations under Section 12
hereof, no party shall be liable to the other for damages to the Leased
Premises to the extent those damages are compensated in full by such
insurance and the proceeds thereof are paid to or received by the damaged
party and adequate therefor.
6. Utilities and Services. Lessee agrees to pay for all water, fuel, gas,
oil, heat, electricity, power, materials, and services which may be
furnished to it or used by it in or about the Leased Premises and to keep
the Leased Premises free and clear of any lien or encumbrance of any kind
whatsoever. Lessor shall not be liable, and the Monthly Rental and other
payments to Lessor shall not xxxxx, for interruptions to the telephone,
plumbing, heating, ventilating, air conditioning, elevator, electrical or
other mechanical or utility systems or
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cleaning services, by reason of accident, emergency, repairs, alterations,
improvements, or shortages or lack of availability of materials or
services.
7. Lessor's Improvements. Lessor shall, at Lessee's sole cost and expense,
pave or rock parking improvements on the Leased Premises for at least two
hundred fifty (250) parking stalls, as shown on Exhibit "A" attached
hereto and incorporated herein by this reference, and install one (1)
overhead door and an on-grade ramp on the Leased Premises (collectively,
the "Improvements"). All plans and specifications and bids for the
Improvements shall be approved by Lessor and Lessee. Construction of the
Improvements shall be commenced as soon as practicable after the
Commencement Date and Lessor shall cause construction to be completed as
soon as possible. The cost of construction of the Improvements (the
"Principal Amount") shall be paid for by Lessee over the term of this
Lease with interest thereon at a fixed rate equal to nine percent (9%) per
annum ("Interest"), payable in equal monthly installments of the Principal
Amount and Interest beginning on the Commencement Date and continuing on
the first day of each succeeding month thereafter until the Principal
Amount is paid in full. In the event that Lessee exercises its right to
terminate this Lease pursuant to Section 1(e) hereof, the Principal
Amount then remaining unpaid, together with all accrued and unpaid
Interest thereon, shall immediately become due and payable on the Early
Termination Date. Lessee shall make all payments of the Principal Amount
and Interest to Lessor at Lessor's address set forth in Section 16 hereof
or at such other address as Lessor may from time to time request in
writing. All such payments will be delinquent if not paid within ten (10)
days following receipt of written notice from Lessor of the failure to
make such payment on the first day of the month.
8. Alterations. Lessee shall not make, or suffer to be made, any
alternations, additions, or improvements to the Leased Premises without
the prior written consent of Lessor, which shall not be unreasonably
withheld. Lessor shall generally consent to alterations, additions, or
improvements which do not adversely affect the value of the Leased
Premises and which do not affect the structure or operation thereof.
Lessee covenants and agrees that all repair or other work done by Lessee
to the Leased Premises shall be performed in a good and workmanlike
manner, using first quality materials, and in full compliance with plans
and specifications approved by Lessor and all laws, rules, orders,
ordinances, directions, regulations, and requirements of law or Lessors'
insurance companies. Lessee shall pay all costs for such alterations,
additions, and improvements including any alterations, additions, or
improvements to the Leased Premises required by any governmental agency
during the Term hereof. Lessee shall keep the Leased Premises free from
any and all liens arising out of any work performed, materials furnished,
or obligations incurred by Lessee. Lessee hereby indemnifies Lessor
against liens, costs, damages, and expenses with respect to any such
Lessee alteration, addition, or improvement. Unless otherwise agreed to in
writing, all alterations, additions, and improvements to the Leased
Premises by Lessor or Lessee shall become part of the Leased Premises and
belong to Lessor and, at the end of the Term hereof,
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shall remain on the Leased Premises without compensation of any kind to
Lessee, except that any trade fixtures or personal property which are
installed and paid for by Lessee shall remain the property of Lessee and
may be removed by Lessee during the Term hereof, provided Lessee repairs
any damage to the remaining improvements of the Leased Premises caused by
the removal of such fixtures.
9. Environmental Compliance by Lessee. Neither Lessee nor Lessee's agents
shall cause or permit any Hazardous Materials (as hereinafter defined),
other than janitorial supplies in reasonable quantities and supplies
normal to light manufacturing which are used in accordance with
manufacturer's instructions and applicable law, to be brought upon,
stored, used, generated, released into the environment, or disposed of on,
in, under, or about the Leased Premises, without the prior written consent
of Lessor, which consent may be withheld in Lessor's reasonable
discretion. Lessee shall comply with all local, state or federal rules,
regulations or statutes concerning use, storage and disposal of any
Hazardous Materials brought onto, used, or stored on the Leased Premises.
Upon the expiration or sooner termination of this Lease, Lessee covenants
to remove from the Leased Premises, at its sole cost and expense, any and
all Hazardous Materials brought upon, stored, used, generated, or released
into the environment by Lessee or Lessee's agents and still located on the
Leased Premises. To the fullest extent permitted by law, each party hereto
hereby agrees to indemnify, defend, protect, and hold harmless the other
party and its agents, and respective successors and permitted assigns,
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities, and losses (including, without limitation, loss, or
restriction on use of rentable space or of any amenity of the Leased
Premises and sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) that arise during or after the Term
hereof directly or indirectly from the presence of Hazardous Materials on,
in, or about the Leased Premises which is or was caused or permitted by
such indemnifying party or its agents during the Term hereof.
As used in this Lease, the term "Hazardous Materials" shall mean and
include any hazardous or toxic materials, substances, or wastes including
(a) any materials, substances, or wastes that are toxic, ignitable,
corrosive, or reactive and that are regulated by any local governmental
authority, any agency of the state of Nebraska, or any agency of the
United States government, (b) petroleum and petroleum-based products, (c)
urea formaldehyde foam insulation, (d) polychlorinated biphenyls ("PCBs"),
(e) freon and other chlorofluorocarbons and (f) asbestos and
asbestos-containing materials.
10. Lessor's Reserved Rights.
a. Entry by Lessor. Lessor and its agents and employees shall have the
right to enter the Leased Premises at all reasonable times with
reasonable notice to examine the same, and to make such maintenance,
repairs, alterations, additions, and improvements to the Leased
Premises as Lessors are obligated or may elect to make. Lessor shall
take reasonable
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precautions to minimize the disruption to Lessee of any entry to the
Leased Premises by Lessor as provided in this Section.
b. Transfer by Lessor. Lessor may transfer or assign its interest in
the Leased Premises and this Lease without the consent of Lessee, at
any time and from time to time. The obligations of Lessor pursuant
to this Lease shall be binding upon Lessor and its successors and
assigns only during their respective periods of ownership.
c. Default by Lessor. Lessor shall not be liable to Lessee if Lessor is
unable to fulfill any of its obligations under this Lease to the
extent Lessor is prevented, delayed, or curtailed from so doing by
reason of any cause beyond Lessor's reasonable control. Lessor shall
not be in default unless Lessor fails to perform obligations
required of Lessor within a reasonable time, but in no event later
than thirty (30) days after written notice by Lessee to Lessor,
specifying Lessor's failure to perform such obligation; provided,
however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are reasonably required for performance, then
Lessor shall not be in default if Lessor commences performance
within such thirty (30) day period and thereafter diligently
prosecutes its efforts to satisfy such obligation, Except as
otherwise set forth herein, Lessee may not offset against any rent
or other amount due from Lessee under this Lease any amount due or
claimed to be due to Lessee from Lessor whether arising pursuant to
this Lease or otherwise.
d. Subordination. This Lease may, at the option of Lessor, be
subordinated to any ground or underlying leases, mortgages, deeds of
trust or other liens which may hereafter affect the Leased Premises
or any part thereof, and Lessee will execute and deliver upon the
demand of Lessor from time to time any and all instruments
reasonably desired by Lessor, effecting a subordination of this
Lease in the mariner requested by Lessor to such lease, mortgage,
deed of trust, or other lien, provided that in the event of the
termination of such lease or foreclosure of such mortgage, deed of
trust or lien, any successor to any interest of Lessor in the Leased
Premises will not disturb Lessee's possession of the Leased Premises
if Lessee attorns to such successor as Lessor and otherwise performs
its obligations under this Lease. Lessee agrees to attorn to any
landlord under any ground lease affecting the Leased Premises in the
event of the termination or cancellation of such ground leases or to
any purchaser upon foreclosure or sale pursuant to any lien.
e. Estoppel Certificate. Lessee shall upon ten (10) days written notice
from Lessor execute, acknowledge, and deliver to Lessor a statement
in writing (i) certifying that this Lease is unmodified and in full
force and effect or, if modified, stating the nature of such
modifications and certifying that this Lease, as so modified, is in
full force and effect; (ii) acknowledging that there are not, to
Lessee's knowledge, any uncured
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defaults on the part of the Lessor hereunder or specifying such
defaults if any are claimed; (iii) setting forth the Term hereof and
setting forth any options of Lessee to extend or terminate the Term
hereof, the nature of such options, and whether any such options
have been exercised by Lessee; and (iv) stating the amount of the
Monthly Rental and the Security Deposit. Any such statement may be
relied upon by any then existing or prospective lessor, purchaser,
or encumbrancer, and their successors and assigns, of all or any
portion of the Leased Premises.
11. Assignment, Subletting and Recapture.
a. Consent Required. Lessee shall not assign, sublease, or otherwise
transfer, by operation of law or otherwise, this Lease or the Leased
Premises or any interest herein or portion thereof without the prior
written consent of Lessor, which consent may not be unreasonably
withheld. Lessor may condition its consent to any assignment or
sublease on the execution by such assignee or sublessee of a written
assumption by such assignee or sublessee of the obligations of
Lessee under this Lease and upon Lessor's determination that the
proposed assignee or subtenant is financially responsible as a
tenant and will conduct a business on the Leased Premises in
compliance with all special permits, laws, ordinances, and
regulations governing the Leased Premises.
b. No Release. Lessor's consent to any sale, assignment, encumbrance,
subleasing, occupation, or other transfer shall not release Lessee
from any of Lessee's obligations hereunder or be deemed to be a
consent to any subsequent assignment, subleasing, or occupation
unless Lessor so agrees in writing. The collection or acceptance of
rent or other payment by Lessor from any person other than Lessee
shall not be deemed the acceptance of any assignee or subtenant as
the tenant hereunder or a release of Lessee from any obligation
under this Loam.
12. Destruction of Leased Premises. In the event of a total or partial
destruction of the Leased Premises during the Term hereof, Lessor shall
promptly and with all reasonable diligence (subject to strikes, lockouts,
inability to procure material and labor in the free market, governmental
restrictions, fire, the elements, and other extraordinary conditions
beyond Lessee's reasonable control) repair the same in a good and
workmanlike manner using first quality materials and otherwise to the
reasonable satisfaction of Lessor, provided such repairs can reasonably be
made within one hundred eighty (180) days under the laws and regulations
of state, federal, county or municipal authorities, but such destruction
shall in no way annul or void this Lease, except that the rent reserved to
be paid hereunder shall be equitably adjusted according to the amount of
space within the Leased Premises which is unusable for the operation of
Lessee's business during the course of such renovations, If such repairs
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cannot reasonably be made or are not completed within one hundred eighty
(180) days, this Lease may be terminated at the option of Lessor.
13. Condemnation. If the whole of the Leased Premises shall be taken or
condemned by any competent authority for any public use or purpose, then
this Lease shall terminate on the day prior to the taking of possession by
such authority or on the day prior to the vesting of title in such
authority, whichever first occurs, and rent hereunder shall be paid to and
adjusted as of that day. If a portion of the Leased Premises shall be
condemned or taken and, as a result thereof, there shall be such a major
change in the character of the Leased Premises as to prevent Lessee from
using the same in substantially the same manner as theretofore used, then
in that event, Lessee may either cancel and terminate this Lease, as of
the date when the part of the Leased Premises so taken or condemned shall
be required for such public purpose, or Lessee may continue to occupy the
remaining portion, provided, however, that Lessee shall give written
notice to Lessor, within fifteen (15) days after the date of any taking or
vesting of title, of its election. In the event Lessee shall remain in
possession and occupation of the remaining portion, all the terms and
conditions of this Lease shall remain in full force and effect with
respect to such remaining portion, except that the rent reserved to be
paid hereunder shall be equitably adjusted according to the amount and
value of such remaining space; and provided further that Lessor shall, at
Lessor's own expense, promptly and with all reasonable diligence (subject
to strikes, lockouts, inability to procure material and labor in the free
market, governmental restrictions, fire, the elements, and other
extraordinary conditions beyond Lessor's reasonable control) do such work
as to make a complete architectural unit of the remainder of the
improvements located on the Leased Premises and this Lease shall continue
for the balance of its terms, subject to the terms and conditions herein
stated.
The entire award of damages or compensation for the Leased Premises taken,
or the amount paid pursuant to private purchase in lieu thereof, whether
such condemnation or sale be total or partial, shall belong to and be the
property of Lessor, and Lessee hereby assigns to Lessor any rights it may
have at law or in equity to any and all such award or purchase price.
Nothing herein contained shall be deemed or construed to prevent Lessee
from interposing and prosecuting in any condemnation proceeding a claim
for the value of any trade fixtures installed in the Leased Promises, and
the cost, loss, or damages sustained by Lessee as the result of any
alterations, modifications, or repairs which may be reasonable required of
Lessee in order to place the remaining portion of the Leased Premises not
so condemned in a suitable condition for Lessee's further occupancy.
14. Default and Remedies.
a. Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default": (i) the
failure by Lessee to make any payment of
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rent or any other payments required to be made by Lessee under this
Lease within ten (10) days of receipt of written notice from Lessor
that such payment was not paid when due; (ii) the failure by Lessee
to observe or perform any of the provisions of this Lease to be
observed or performed by the Lessee if such failure continues for a
period of thirty (30) days, or such other period if this Lease
specifically provides a different period for a particular failure,
after written notice by Lessor to Lessee of such failure; provided,
however, that with respect to any failure which cannot reasonably be
cured within thirty (30) days, an Event of Default shall not be
considered to have occurred if Lessee commences to cure such failure
within such thirty (30) day period and continues to proceed
diligently with the cure of such failure; (iii) at Lessor's option,
if Lessee abandons the Leased Premises; or (iv) the failure by
Lessee to pay its obligations as they become due, the making of any
general assignment or general arrangement for the benefit of
creditors by Lessee, or the filing by or against Lessee of a
petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under bankruptcy law or laws affecting
creditor's rights unless, in the case of a petition filed against
Lessee, such petition is dismissed within sixty (60) days.
b. Remedies. On the occurrence of an Event of Default, Lessors may at
any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of a right or remedy which Lessor
may have by reason of such default or breach, exercise any rights or
remedies Lessor may have at law or in equity, including, but not
limited to, one or more of the following:
i. Declare the Lease at an end and terminated;
ii. Xxx for the rent due and to become due under the Lease;
iii. Xxx for any damages sustained by Lessor; and
iv. Continue the Lease in effect and relet Lessor's interest in
the Leased Premises on such terms and conditions as Lessor may
deem advisable, with Lessee remaining liable for the Monthly
Rental plus the reasonable cost of obtaining possession of the
Leased Premises, and of any repairs and alterations necessary
to prepare the Leased Premises for reletting, less the rentals
received from such reletting, if any.
No action by Lessor shall be construed as an election to terminate the Lease
unless written notice of such intention be given to Lessee by Lessor.
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c. Late Charge. If Lessee fails to make any payment of rent,
expenses, or other amounts required of Lessee under this Lease
within five (5) days of the date such amount is due as set
forth in this Lease, then, in addition to any other amounts
recoverable by Lessor hereunder, Lessee shall pay Lessor a
late charge in an amount equal to ten percent (10%) of such
late rent, expenses or other amounts.
d. Non-Exclusive Remedies. The remedies of Lessor set forth in
this Section shall not be exclusive, but shall be cumulative
and in addition to all rights and remedies now or hereafter
provided or allowed by law or equity, including, but not
limited to, the right of Lessor to seek and obtain an
injunction and the right of Lessor to damages in addition to
those specified herein. Lessee hereby expressly waives any and
all rights of redemption granted by or under any present or
future law if Lessee is evicted or dispossessed for any cause
or if Lessor obtains possession of the Leased Premises by
reason of the breach by Lessee of any of its obligations under
this Lease.
15. Contingency. This Lease is contingent upon Lessor entering into a Lease
Termination Agreement with Lincoln Snack Company, a Division of Lincoln
Foods Inc., a Delaware corporation ("Lincoln Snack"), pursuant to which
the Lease Agreement dated November 16, 1992, by and between Lincoln
Snack and Lessor shall be terminated and canceled as of July 31, 1997,
and Lincoln Snack shall vacate the Leased Premises before the
Commencement Date, on such terms and conditions as are reasonably
acceptable to Lessor.
16. Notices. All notices, requests, demands or other communications
hereunder (including notices of all asserted actions, claims or
demands) shall be given in writing and shall be deemed to have been
duly delivered upon personal delivery to the other party, or
twenty-four (24) hours after deposit with a reputable overnight courier
service, or forty-eight (48) hours after deposit in the U. S. Mail,
certified mail, return receipt requested, to the addressee at the
address herein designated or at such other address as may be designated
in writing by notice given in the manner provided herein.
If to Lessor: Xxxx X. Xxxxxxxx
President
Xxxxxxxx Properties Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to Lessee: Centurion International, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx 00000
Attn: /s/ Xxxx Xxxx
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17. Miscellaneous.
a. Holding Over. If Lessee, with or without Lessor's consent,
remains in possession of the Leased Premises, or any pad
thereof, after the expiration or termination of the Term
hereof, such occupancy shall, at Lessor's sole option, be a
tenancy from month to month upon all the provisions of this
Lease.
b. Performance. All payments to be made under this Lease shall be
made without prior legal notice or demand unless otherwise
provided herein. Time is hereby declared to be an essential
element to the performance of each and every one and all of
the terms, covenants, and conditions to be kept, observed, or
performed under this Lease.
c. Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the
Leased Premises or any part thereof by xxxxx of the fact that
the same person, firm, corporation, or other legal entity may
acquire or hold, directly or indirectly, this Lease or the
leasehold estate and the fee estate in the Leased Premises or
any interest in such fee estate without the prior written
consent of the holders of any mortgages or similar security
instruments covering the Leased Premises.
d. Termination. On termination of the Lease, Lessee shall execute
and deliver to Lessor immediately upon Lessor's request a
quitclaim deed in recordable form transferring to Lessor any
interest of Lessee in the Leased Premises.
e. Applicable Laws. This Lease shall be governed by and construed
in accordance with the laws of the State of Nebraska.
f. Headings. Headings of sections of this Lease are for
convenience of reference only and do not form a part hereof
and do not in any way modify, interpret or construe the
intentions of the parties.
g. Modification. This Lease contains all of the terms and
conditions agreed upon by the Lessor and Lessee with respect
to the Leased Premises. All prior negotiations,
correspondence, and agreements are superseded by this Lease
and any other contemporaneous documents. This Lease may not be
modified or changed except by written instrument signed by
Lessor and Lessee.
h. Relationship of Parties. Neither the method of computation of
rent nor any other provisions contained in this Lease nor any
acts of the parties shall be deemed or construed by the
parties or by any third person to create the relationship of
principal
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and agent or of partnership or of joint venture or of any
association between Lessor and Lessee, other than the
relationship of landlord and tenant.
i. Waiver. The acceptance of rent or other payments by Lessor or
the endorsement or statement on any check or any letter
accompanying any check for rent or other payment shall not be
deemed an accord or satisfaction or a waiver of any obligation
of Lessee regardless of whether Lessor had knowledge of any
breach of such obligation. Failure to insist on compliance
with any of the terms, covenants, or conditions hereof shall
not be deemed a waiver of such terms, covenants, or
conditions, nor shall any waiver or relinquishment of any
right or power hereunder, at any one time or more times, be
deemed a waiver or relinquishment of such rights and powers at
any other time or times or under any other circumstance(s).
j. Severability. If any term or provision of this Lease or the
application thereof to any person or circumstances shall to
any extent be invalid or unenforceable, the remainder of this
Lease or the application of such term or provision to persons
or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and
each term and provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.
k. Interpretations. Any uncertainty or ambiguity existing herein
shall not be interpreted against either party because such
party prepared any portion of this Lease, but shall be
interpreted according to the application of rules of
interpretation of contracts generally.
l. Successors and Assigns. This Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective permitted heirs, representatives, successors and
assigns.
m. Lessee as Corporation. Lessee and the persons executing this
Lease on behalf of Lessee represent and warrant that the
individuals executing this Lease on Lessee's behalf are duly
authorized to execute and deliver this Lease on its behalf in
accordance with a duly adopted resolution of the board of
directors of Lessee, and this Lease is binding upon Lessee in
accordance with its terms.
n. Security. Lessee shall be solely responsible for the security
of the Leased Premises and for the security of Lessee's
employees, agents, guests, and invitees on the Leased
Premises. Lessee shall be responsible to lock and secure all
doors, windows, and entrances to the Leased Premises and to
take any other reasonable security measures to protect persons
and property upon the Leased Premises.
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o. Memorandum of Lease. Upon the request of Lessor or Lessee, the
parties shall execute a Memorandum of this Lease in recordable
form, describing the Commencement Date, the Term hereof, and
Lessee's option to renew.
p. Limitations and Lessor's Liability. Notwithstanding anything
to the contrary contained herein, in the event of any default
or breach by Lessor of any of the terms of this Lease, Lessee
shall look solely to Lessor's interest in the Leased Premises
for the collection of any judgment (or any other judicial
procedures requiring the payment of money by Lessor), and no
other property or assets of Lessor shall be subject to levy,
execution or other procedures for satisfaction of Lessee's
remedies.
IN WITNESS WHEREOF, the parties hereto hereby execute this Lease as of
the day and year first above written.
"LESSOR"
XXXXXXXX PROPERTIES CORPORATION,
a Nebraska corporation
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Xxxx X. Xxxxxxxx, President
"LESSEE"
CENTURION INTERNATIONAL, INC.,
a Nebraska corporation
By: /s/ Xxxx X. Xxxx
--------------------------
Name: Xxxx X. Xxxx
--------------------------
Title: President
--------------------------
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STATE OF NEBRASKA )
) ss.
COUNTY OF LANCASTER )
The foregoing was executed before me this 25th day of July, 1997, by
Xxxx X. Xxxxxxxx, President of Xxxxxxxx Properties Corporation, a Nebraska
corporation, on behalf of the corporation.
/s/ Xxxxx XxXxxxx
-----------------------
Notary Public
STATE OF NEBRASKA )
) ss.
COUNTY OF LANCASTER )
The foregoing was executed before me this 15th day of July, 1997, by
Xxxx X. Xxxx of Centurion International, Inc., a Nebraska corporation, on behalf
of the corporation.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Notary Public
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