BUSINESS PROPERTY LEASE
THIS LEASE is entered into this 20th day of June, 1996, between Xxxxxx
Community Church of the Christian & Missionary Alliance, Landlord and Trans
Terra Company, Tenant.
PREMISES
1. Landlord leases to Tenant 00000 Xxxxxx Xxxxxx
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Omaha, Xxxxxxx County, Nebraska, (the "Premises"), containing approximately
17,323 square feet of area, on the following terms and conditions:
TERMS
2. This Lease shall be for a term of five (5) years beginning on the
1st day of August, 1996, and ending on the 31st day of July, 2001 unless
terminated earlier on the following conditions: Tenant will have the one time
right to cancel this lease at the end of the third lease year (July 31, 1999)
by providing written notice to the Landlord no later than February 1, 1999.
If for any reason the Premises are delivered to Tenant on any date before
or after the term commencement date, 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 late taking of possession shall not change the
termination date of this Lease. This Lease shall not be void of 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 purpose of a stock brokerage transaction office and for no other purpose.
Tenant agrees to use the Premises in such a manner as to not interfere with the
rights 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 approached 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 Nine Hundred
Thousand Seven Hundred Ninety Six and 00/100 Dollars ( $900,796.00 ). Tenant
agrees to pay rent to Landlord at 000 Xx. 000xx Xx., Xxxxx, XX 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 August 1, 1996 to July 31, 1999 $14,435.83 per month;
For the period from August 1, 1999 to July 31, 2001 $15,879.41 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, at the Real Estate, all insurance costs, repair, replacement, and
operation of the Real Estate, including but not limited to line painting,
lighting, snow removal, landscaping, cleaning, repair and replacement.
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.
(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 tenth day after such
payments are due, Tenant agrees to pay Landlord a late charge of 10% OF THE
MONTHLY RENTAL AMOUNT.
SERVICES
5. Landlord shall provide no services to Tenant 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.
ASSIGNMENT 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, such
approval shall not be unreasonably denied or delayed. 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. Said approval shall not be
unreasonably denied or delayed.
REPAIRS
8. Landlord agrees to maintain in good condition, and repair as necessary
the foundations, exterior walls and the roof of the Premises. Landlord will be
responsible for replacement of compressors and/or condensers in the HVAC units
during the first 12 months of this Lease.
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 person 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 jot 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. Landlord, with permission from Tenant may:
(a) 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.
(b) Show the Premises to prospective tenants at reasonable times in the
event that Tenant has given Landlord notice of lease termination.
(c) 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.
(d) Approve all sources furnishing signs, painting, and/or lettering to
the Premises, and approve al signs on the Premises prior to installation
thereof.
INSURANCE
12. Tenant shall not use or occupy the Premises or any part therof 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 the Lease
required to be performed by Tenant; (b) a failure by Tenant to comply with
any laws, statutes, ordinances, regulations, or orders of any governmental
authority; or (c) any accident, death, a 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 Tenants 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 $2,000,000.00 for injuries to any one
person, $500,000.00, for injuries to persons in any one accident and
$500.000.00 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 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 and
Tenant does not fulfill this insurance obligation after written notice from
Landlord, 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. Tenant's insurance provides for $2,000,000.00 for
General Liability plus a $3,000,000.00 Umbrella Coverage. Tenant will name
Landlord as a additional insured for the insurance coverage.
DAMAGE BY FIRE OR OTHER CASUALTY
15. If, during the term f 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 his election within sixty (60) days after such damage.
In the event Landlord elects to repair the Premises, 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
canceled 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 even 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
17. Each of the following events shall constitute a default or a breach
of this Lease by Tenant:
(a) If Tenant fails to pay Landlord any rent or other payments when due
hereunder;
(b) If Tenant vacates or abandons the Premises;
(c) 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 benefit of
creditors;
(d) 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 demised or the receivership or trusteeship vacated
within thirty (30) days after the institution or appointment; or
(e) 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
18. In the event of any default or breach hereunder, in addition to any
other right or remedy available to Landlord, wither at law or in equity,
Landlord may exert any one or more of the following rights:
(a) 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.
(b) 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.
(c) Landlord may relet the Premises or any part therof for any term
without terminating this Lease, at such rent and on such terms as it may
choose. Landlord may make alterations 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 sub-paragraph, the Landlord shall pay such excess to
Tenant, but only to the extent Tenant, but only to the extent Tenant has
actually made 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 a 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.
NOTICES
21. Any notice to given hereunder shall be given in writing and sent by
registered or certified mail to Landlord at 000 Xx. 000xx Xx., Xxxxx, XX
00000 and to Tenant at TransTerra Co., Attn: Xxxxxx X. Xxxxxx, Vice
President, 0000 Xx. 000xx Xx., Xxxxx, XX 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.
NET LEASE
22. 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 Expense as described
in subparagraph 4.b of this Lease.
MISCELLANEOUS
23. (a) BINDING ON ASSIGNS. All terms, conditions, and agreements of
this Lease shall be binding upon, apply, and inure to the benefit of the
parties 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 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 provisions 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. Landlord hereby warrants that N P Dodge Management Company
is the Real Estate Broker in this transaction and that Landlord has agreed to
pay a real estate fee to said Broker.
(g) APPLICABLE LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Nebraska.
OTHER PROVISIONS
24. 1. This Lease agreement will be null and void in the event that the
Landlord does not close on the purchase of this property by July 1, 1996 or
if this Lease is not approved by the Landlord.
2. Parking - Landlord will provide to Tenant 100 additional parking
stalls located on Landlord's church parking lot for Tenant to use during the
normal business hours of 7:00 am to 5:30 pm on Monday through Friday. Tenant
will allow Landlord to use the parking located at 10825 Xxxxxx after 6:00 pm
on Monday through Friday and all day on Saturday and Sunday.
3. Possession of Premises - Tenant will have possession of the
premises on July 1, 0000 xxxxxx xxxx 0/0 xx xxxx (xxxx xxx xxxx xxxx), which
will be available August 8, 1996.
4. Condition of Premises on Possession Date - The premises will be
given to Tenant in a clean condition i.e. carpets cleaned and all trash,
etc., removed from the premises.
5. Rental Deposit - Upon execution of this Lease Agreement by
Landlord, Tenant will pay the base rental for the month of August 1996.
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.
/s/ Xxxxxx Community Church
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Landlord
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
------------------------------- By --------------------------------
Witness Treasurer
------------------------------- By --------------------------------
Witness
/s/ TransTerra Co
--------------------------------
Tenant
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------------- By --------------------------------
Witness Vice President
------------------------------- By --------------------------------
Witness
