Exhibit 10.3
OFFICE BUILDING LEASE
THIS LEASE, dated for reference purposes only as of the 21st day of
June, 1996, is entered into by and between Miller & Paine, a Nebraska
corporation, ("Landlord"), and Union Bank and Trust Company, a Nebraska state
banking corporation, ("Tenant").
PREAMBLE:
Landlord, in consideration of the rent to be paid and the covenants and
agreements to be performed by Tenant, as hereinafter set forth, does hereby
lease, demise, and let unto Tenant and Tenant hereby leases and accepts from
Landlord that certain office space in the "Building," as defined below, shown
and designated on the floor plan attached hereto as Exhibit A and incorporated
herein by this reference (the "Premises") for the "Term," as defined below,
unless sooner terminated as herein provided. The Premises are leased by Landlord
to Tenant and are accepted and are to be used and possessed by Tenant upon and
subject to the following terms, provisions, covenants, agreements, and
conditions.
1. PRINCIPAL LEASE PROVISIONS. Each reference in this Lease to any of
the terms described in this Article I shall mean and refer to the following;
however, the other Articles of this Lease contain numerous refinements and
exceptions which qualify the provisions of this Article; all other terms are as
defined in this Lease.
1.1. Landlord's Address:
Miller & Paine
121 South 13th Street
Lincoln, Nebraska 68508
ATTN: Robert E. Campbell, II
1.2. Tenant's Address:
Union Bank and Trust Company
3643 South 48th Street
P 0 Box 6155
Lincoln, Nebraska 68506-0155
ATTN: Angie Muhleisen, President
1.3. Building. The term "Building," as used herein, shall refer
collectively to Lincoln Square, of which the Premises are a part, located at
13th and 0 Streets, Lincoln, Nebraska, including land described as follows: Lots
1-9 and the North 67 feet of Lots 17 and 18, Block 57, Original Plat to the City
of Lincoln, Lancaster County, Nebraska (the "Land"), the improvements, fixtures,
and other facilities now or hereafter located on the Land or appurtenant thereto
which Landlord makes available to tenants of the Building.
1.4. Floor. 1st Floor.
1.5. Building Area. The Building Area shall be the number of net
leasable square feet in the Building, not including areas leased in
substantially unfinished condition for the purposes of storage and at rates
substantially below market for office or retail space, as measured by the
Landlord's architect using industry standards for such space measurement. The
number of such net leasable square feet is 194,387 as presently determined by
actual leases and by estimates of unleased space by the Landlords architect.
This number is subject to change from time to time by the Landlord as actual
leasable space configurations are determined. Landlord will notify Tenant of
such change in the total number of leasable square feet at least sixty (60) days
before such altered numbers are used in the calculation of Tenant's Percentage
under Section 1.17 as it applies to rent payments or adjustments, or payment of
Operating Expenses.
1.6. Floor Area. Intentionally Deleted.
1.7. Premises Area. The leasable area of the Premises shall be
approximately 4,075 square feet of space in the location within the Building
reflected on the Final Plans. Such square footage is a significant factor in the
negotiated rent for this Lease and the above figure is not subject to alteration
following the final space plan and any further recalculation of useable area.
1.8. Initial Rental Per Square Foot. $11.50 per square foot annually.
1.9. Suite Number. 101.
1.10. Lease Term. Seven years.
1.11. Option Terms. Two option terms, the first term for five (5) years
and the second term for four (4) years.
1.12. Lease Year. A 12-month period commencing on July 1, 1996, and on
any yearly anniversary thereof.
1.13. Commencement Date. The Commencement Date is July 1, 1996.
1.14. Termination Date. June 30, 2003, or as extended pursuant to
Section 3.4 of the Lease.
1.15. Initial Monthly Rental. Initial Rental per Square Foot ($11.50)
times 4,075 square feet of the Premises Area, divided by twelve (12) months. The
Initial Monthly Rental is $3,905.21, starting on July 1, 1996 or as determined
in Section 3.2 hereof.
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1.16. Monthly Rental. The rent due each month as provided in Section
1.15 and Section 4.2 of the Lease and payable according to provisions of Section
4.1 of the Lease for rent of the Premises.
1.17. Tenant's Percentage. The percentage which the square footage of
the Premises Area is to the total Building Area. The initial Tenant's Percentage
is estimated to be 2.10%.
1.18. Floor Percentage. Intentionally Deleted.
1.19. Security Deposit. None.
1.20. Broker. Neither Landlord or Tenant have used the service of a
broker in relation to this Lease, and no broker fees apply.
1.21. Permitted Uses. Office and customer service functions ordinarily
associated with a bank.
1.22. Final Plans. The Final Plans for the Premises, as shown on Exhibit
A.
2. PREMISES.
2.1. Premises. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the Premises.
2.2. Common Areas. Tenant shall have, as appurtenant to the Premises,
the nonexclusive right, in common with others, subject to reasonable rules of
general applicability to tenants of the Building from time to time made by
Landlord and of which Tenant is given notice, to the use of the following areas
of the Building: common entrances, lobbies, corridors, stairways, elevators,
ramps, drives, restrooms and common walkways necessary for access to the
Building (the "Common Area"). Landlord reserves the right from time to time: (a)
to install, use, maintain, repair, replace and relocate for service to the
Premises and/or other parts of the Building pipes, ducts, conduits, wires,
appurtenant fixtures, and mechanical systems, wherever located in the Premises
or the Building, and (b) to alter, remodel, close or relocate any facility in
the Common Areas, and to relocate or redefine Common Areas within the Building
and Premises, so long as there is not substantial interference with tenant's and
their invitee's access to the premises, restrooms, elevators and exits.
2.3 Option Area. Intentionally Deleted
3. TERM AND POSSESSION.
3.1. Term. The term of this Lease shall commence on the Commencement
Date as set forth in Section 1.13 and end on the Termination Date as set forth
in Section
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1.14, unless sooner terminated as provided in this Lease, or unless
extended pursuant to Section 3.4.
3.2. Possession. Landlord shall deliver possession of the Premises to
the Tenant on the Commencement Date and Monthly Rental for the Premises shall be
payable to Landlord by Tenant on such date according to the provisions of
Sections 1.15 and 4.1 herein.
3.3. Acceptance of Premises. Tenant shall construct improvements to the
Premises having taken possession in its then "as is" condition at the
Commencement Date as described in Section 3.2 herein. Such improvements shall be
constructed in accordance with the Final Plans described in Section 1.22 hereof
and according to terms of the Work Letter detailed as Exhibit B and Schedule 1,
attached hereto. Landlord will thoroughly clean, paint and repair the Premises
to make the Premises ready for occupancy, and repair Building components prior
to Tenant's possession and will replace outside windows of the Premises with
thermal pane glass; provided, however, that Landlord shall not perform or pay
the cost of remodeling to be done by Tenant at Tenant's discretion including
painting of any new partitions within the Premises.
3.4. Option to Extend Term. Provided Tenant timely exercises its right
as hereinafter provided and is not in default under the Lease at the time of
exercise of such right or at the commencement of any option period ("Option
Term"), Tenant shall have the right to extend the term of this Lease for two
periods, the first for Five (5) years and the second for Four (4) years, on the
same terms and conditions as contained in this Lease, except for the Monthly
Rental. The Monthly Rental during the first and second Option Terms, if
exercised, shall be $13.50 per square foot, plus any applicable Rental
Adjustments described in Section 4.2, times the total Premises Area (4,075)
divided by twelve (12) months. The Monthly Rental in both Option Terms will be
subject to adjustment as described in Section 4.2 of the Lease.
Not later than six (6) months prior to the date the term of this Lease
would otherwise expire, Tenant shall notify Landlord in writing of its election
to exercise the right to extend the term hereof as provided above. The right to
extend the term of this Lease shall terminate if not timely exercised as herein
provided. This Lease and the option to extend this Lease herein granted shall be
personal to Union Bank and Trust Company and any successor to such corporation
by merger or consolidation, and may not be transferred or assigned without
Landlord's prior written consent, which consent may not be unreasonably
withheld.
3.5. Security Deposit. None.
4. RENT.
4.1. Payment of Rent. Tenant shall pay the Monthly Rental, without any prior
demand therefor and without any deduction or offset whatsoever, in lawful money
of the United States of America, to Landlord on the first day of each calendar
month during the
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term of this Lease as rent for the Premises for such month. Tenant shall make
all payments of rent and other expenses to Landlord at the Building manager's
office at the Building or at such other address as Landlord may from time to
time request in writing. If the term of this Lease commences other than on the
first day of a month or ends other than on the last day of a month, the rent for
a partial month shall be prorated on a thirty (30) day month, based on the
number of days in such month that this Lease is in effect.
4.2. Monthly Rental Adjustment. Beginning with the second year of the
initial Lease Term and each year thereafter to the end of the initial Lease
Term, the Monthly Rental shall be adjusted to the following:
LEASE ANNUAL GROSS MONTHLY
YEAR LEASE RATE RENTAL
2 11.83 $4,017.27
3 12.17 $4,132.73
4 12.50 $4,244.79
5 12.83 $4,356.85
6 13.17 $4,472.31
7 13.50 $4,584.38
Beginning with the first year of the first Option Term and each succeeding year
of the Option Terms, if exercised, the Monthly Rental shall be/increased
annually by an amount equal to the percentage of such Monthly Rental which
percentage is the same as the percentage increase in the cost of living during
the preceding calendar year. The cost of living will be based upon the National
Consumer Price Index "all items" published by the Bureau of Labor Statistics of
the United States Department of Labor ("CPI"). A calendar year percentage
increase in the CPI will be determined by comparing the CPI at the end of a
calendar year to the CPI at the end of the previous calendar year. Monthly
Rental shall not be reduced in the event there should be a reduction in the CPI.
4.3 RENT RENEGOTIATION. Notwithstanding anything to the contrary in this
Lease, in the event authority is not granted by the necessary regulatory
entities allowing Tenant to use the Premises as a branch bank, by July 1, 1997,
Tenant and Landlord will renegotiate the rent taking into consideration the
limitation of use.
5. OPERATING EXPENSES.
5.1 Payment of Operating Expenses. Landlord shall pay for all Operating
Expenses (as that term is defined in Section 5.2 hereof) with the exception of
the costs of any telephone system or services and personal property taxes on
Tenant's personal property.
5.2 Definition of Operating Expenses. "Operating Expenses" means
Landlord's operating expenses attributable to the operation, maintenance, and
repair of the Building, as determined under generally accepted accounting
principles consistently applied, whether
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the Operating Expenses are undertaken by Landlord pursuant to specific
provisions of this Lease or undertaken by Landlord in the exercise of its
reasonable discretion. Operating Expenses include, but are not limited to, the
costs of cleaning, trash removal, utilities, heating, air conditioning,
ventilation, plumbing casualty and liability insurance, property taxes and
assessments. Operating Expenses shall also include amounts necessary to a)
amortize the cost of improvements installed to reduce Operating Expenses, but
not to exceed the savings achieved on an annual basis, b) amortize the cost of
replacement of carpeting, draperies and wall coverings for the common areas of
the Building following the completion of restoration of the Building, c) and the
costs of operating, maintaining and repairing any skywalk access to the Building
under any existing or future skywalk agreements.
6. SERVICES AND UTILITIES.
6.1. Services by Landlord. Landlord shall furnish to the Premises during
normal business hours of Tenant's business days (Monday through Saturday) such
amounts of air conditioning, heating, and ventilation as may be reasonably
necessary for the comfortable use and occupation of the Premises. Landlord shall
at all times furnish the Premises with elevator service and of electricity for
normal heating, air conditioning, lighting and office machines. The Landlord
shall provide sewer service, normal trash removal services, and snow removal
services. Landlord shall provide daily, except Holidays, custodial service,
including emptying waste paper baskets, dry mopping and wet mopping, vacuuming,
cleaning window sills, and cleaning carpet as reasonably needed. The term
"Holiday" means New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and such other national holidays as may be
established after the date hereof by the United States Government. Landlord
shall replace at Landlord's expense fluorescent tubes, ballasts, and light bulbs
as required for those Building standard fixtures supplied by Landlord or by
Tenant in accordance with Building standard specifications.
6.2. Maintenance and Repair by Landlord. Landlord shall maintain the
Premises and common areas of the Building in a good condition, shall maintain
the plumbing, heating, ventilating, air conditioning, elevator, electrical, and
other mechanical systems of the Building in good working order, shall make
necessary repairs to the roof and the shell of the Building, and shall repair
promptly any damage to the Premises and the Building as provided in Article 10.
6.3. Confidentiality of Tenant Records. Whenever any employee or agent
of Landlord enters the Premises to perform any duty or act required or permitted
under this Lease, Landlord shall take precautions to ensure that all personal
property of any nature, including without limitation all records and information
of Tenant, shall be maintained as confidential.
6.4 Interruption of Service. Prior to becoming an event of default under
this Lease, Landlord shall have a reasonable amount of time, in any event not to
exceed five (5) days, in which to make reasonable efforts to abate, and be
successful in abating,
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interruptions to the telephone, plumbing, heating, ventilating, air
conditioning, elevator, electrical or other mechanical or utility systems or
cleaning services, by reason of accident, emergency, repairs, alterations,
improvements, or shortages or lack of availability of materials or services,
which are not due to Landlord's negligence or intentional act. At any time
during the term of this Lease, any utilities or services may be conserved by
Landlord without abatement of rent or other expenses if undertaken by Landlord
as required by any governmental agency or in a reasonable effort to reduce
energy or other resource consumption.
7. USE AND OCCUPANCY BY TENANT.
7.1. Use by Tenant. Tenant shall continually use and occupy the Premises
for the purposes of the Permitted Uses as described in Section 1.21 and for no
other purposes without the prior written consent of the Landlord. Tenant shall
operate its business on the Premises during normal business hours to receive and
supervise visitors to the Premises. Tenant shall furnish and decorate the
Premises in a manner consistent with its business and the other businesses in
the Building. Tenant shall not do or permit anything to be done in or about the
Premises which would constitute a nuisance to the other tenants or occupants of
the Building or significantly interfere with their use of any area of the
Building other than the Premises.
7.2. Rules and Regulations. Tenant and its employees, agents, and
visitors shall observe faithfully the Rules and Regulations attached hereto as
Exhibit C and made a part hereof, and such other and further reasonable Rules
and Regulations as Landlord may from time to time adopt, provided, however, that
in the event of any conflict between such Rules and Regulations and this Lease,
this Lease shall control. Landlord shall not be liable to Tenant for violation
of any Rules and Regulations or the breach of any provision in any lease by any
other tenant or other party in. the Building, unless such breach interferes with
Tenant's use of the Premises.
7.3. Prohibited Uses. Tenant shall not conduct or permit to be conducted
on the Premises any business which is unlawful or is damaging to the reputation
or public image of the building, as reasonably determined by Landlord. Tenant
will not store, use or dispose of any hazardous materials in, on or about the
Premises or the Building. Tenant will be solely responsible for and will defend,
indemnify and hold Landlord, its agents and employees harmless from and against
all claims, costs and liabilities, including attorneys' fees and costs, arising
out of or in connection with Tenant's breach of its obligations in this section.
Tenant will be solely responsible for and will defend, indemnify and hold
Landlord, its agents and employees harmless from and against any and all claims,
costs, and liabilities, including attorneys' fees and costs, arising out of or
in connection with the removal, cleanup and restoration work and materials
necessary to return the Premises and any other property of whatever nature
located on the Project to their condition existing prior to the appearance of
the Tenant's hazardous materials on the Premises. Tenant's obligations under
this Section will survive the end of this Lease.
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Tenant will not do or permit to be done any act or thing upon the Premises or
the Building which would (i) jeopardize or be in conflict with fire insurance
policies covering the Building, and fixtures and property in the Building, or
(ii) increase the rate of fire insurance applicable to the Building to an amount
higher than it otherwise would be for general office use of the Building, unless
Tenant pays for any increase, or (iii) subject Landlord to any liability or
responsibility for injury to any person or persons or to property by reason of
any business or operation being carried on or upon the Premises.
8. MAINTENANCE. REPAIRS, AND ALTERATIONS.
8.1. Maintenance and Repair. During the term of this Lease, Tenant shall
take good and reasonable care of the Premises and fixtures therein. Landlord
shall maintain fixtures in the Premises in good order, condition and repair in a
quality and class equal to the original work, ordinary and reasonable wear
excepted. During the term of this Lease, Tenant shall be responsible for the
expense of any problems or damages to the Premises and fixtures therein caused
by negligence or willful misconduct of the Tenant, its employees, agents,
guests, and visitors. Upon surrender of the Premises to Landlord, Tenant shall
deliver the Premises to Landlord, broom clean, in as good order, condition, and
repair as they are on the commencement of the term of this Lease, ordinary and
reasonable wear excepted. During the term of this Lease, Landlord shall take
good care of common areas and fixtures therein and the exterior of the Building.
8.2. Alterations. After taking possession, Tenant shall not make or
permit any alterations, additions, or improvements to be made to the Premises
which would exceed $2,000 in cost without obtaining Landlord's prior written
consent which shall not be unreasonably withheld, and then only by contractors
or mechanics approved by Landlord which approval will not be unreasonably
withheld. Landlord shall generally consent to alterations, additions, or
improvements which do not affect the value of the Premises significantly and
which do not affect the structure or operation of the Building. All alterations,
additions and improvements to the Premises upon completion shall not lower the
fair market value of the Premises without the Landlord's written consent. Tenant
covenants and agrees that all work done by Tenant shall be performed in full
compliance with all laws, rules, orders, ordinances, directions, regulations,
and requirements of law or Landlord's insurance companies. If alterations,
additions and improvements to the Premises requested by Tenant are performed by
Landlord, the cost thereof shall be paid by Tenant. Tenant hereby indemnifies
Landlord against liens, costs, damages, and expenses with respect to any such
Tenant alteration, addition, or improvement. All alterations, additions, and
improvements to the Premises by Landlord or Tenant shall become part of the
realty and belong to Landlord and, at the end of the term hereof, shall remain
on the Premises without compensation of any kind to Tenant, except that any
trade fixtures which are installed and paid for by Tenant shall remain the
property of Tenant and may be removed by Tenant during the term of this Lease,
provided Tenant repairs any damage to the remaining improvements of the Premises
caused by the removal of such fixtures. Movable furniture and equipment of
Tenant shall remain the property of the Tenant.
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8.3 Maintenance of Glass. Landlord shall clean the interior and exterior
of all glass facings abutting the Premises on the 13th Street, "0" Street, and
the Common Area sides of the Premises. In the event that any glass abutting the
Premises from 13th Street, "0" Street or the Common Areas shall be broken or
otherwise damaged, regardless of the cause of such damage, Landlord shall
promptly repair and/or replace such glass, and pay the cost of said replacement
and/or repair. Landlord may maintain glass insurance with respect to the glass
abutting the exterior Premises on 13th Street, "0" Street and the Common Areas,
in which case Landlord shall pay the cost of any such insurance.
9. INSURANCE AND INDEMNIFICATION.
9.1. Landlord Insurance. The insurance which shall be maintained by the
Landlord includes the following:
9.1.1 Hazard Insurance. Insurance against loss or damage to the
Building by fire and extended coverage and from such other hazards as may be
covered by a form of "all risk" insurance then in effect, all in an amount
sufficient to cover 100% of the fair market value prior to any loss or damage of
the Building, machinery, equipment and improvements, but excluding land value.
9.1.2 Public Liability. Comprehensive general liability insurance
(containing the so-called "occurrence clause") against claims for bodily injury,
and property damage occurring in or about the Building and Common Areas. Such
insurance shall afford minimum protection of ONE MILLION DOLLARS ($1,000,000)
combined single limit for bodily injury and property damages.
9.1.3 The policies maintained by Landlord as provided in 9.1.1
and 9.1.2 above may not be terminated nor may coverage be reduced except by ten
(10) days prior written notice to Tenant.
9.2 Tenant's Insurance. The insurance which shall be maintained by the
Tenant includes the following:
Comprehensive general liability insurance (containing the
so-called "occurrence clause") against claims for bodily injury
and property damage occurring in or about the Premises. Such
insurance shall afford minimum protection of ONE MILLION DOLLAR
($1,000,000) combined single limit without limitation.
Certificates of insurance together with copies of the endorsements, when
applicable, naming Landlord as an additional insured will be delivered to
Landlord prior to Tenant's occupancy of the Premises and from time to time at
least ten (10) days prior to the expiration of the term of each such policy
showing the renewal thereof or the securing of alternative coverage. All such
policies maintained by Tenant will provide that they may not be terminated nor
may coverage be reduced except after ten (10) days' prior written notice to
Landlord.
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9.3 Indemnification.
(a) Tenant hereby waives all claims against Landlord, its agents, and
employees for loss, theft, or damage to equipment, furniture, records, and other
property on or about the Premises, for loss or damage to Tenant's business or
for . death or injury to persons on or about the Premises or the Building,
except to the extent caused by the negligence or willful misconduct of Landlord,
its agents, or employees. Tenant shall indemnify and hold harmless Landlord, its
agents, and employees from and against any and all claims and liability for the
loss, theft, or damage to property on or about the Premises, except Tenant's
indemnification shall not include an indemnification for liability for the
negligence or willful misconduct of Landlord, its agents, or employees. Tenant
shall indemnify and hold. Landlord, its agents, and employees harmless from and
against any and all claims and liability arising from any breach or default by
Tenant in the performance of any obligation of Tenant under this Lease or
arising from the negligence or willful misconduct of Tenant, its agents,
employees, or visitors. Landlord shall not be liable to Tenant for any
negligence or act of any occupant of the Building or any owner or occupant of
any property adjoining the Building other than such as arise out of the
negligence or wrongful acts of Landlord, its agents, and employees.
(b) Landlord hereby waives all claims against Tenant, its agents, and
employees for loss, theft, or damage to equipment, furniture, records, and other
property on or about the Premises, for loss or damage to Landlord's business or
for death or injury to persons on or about the Premises or the Building, except
to the extent caused by the negligence or willful misconduct of Tenant, its
agents, or employees. Landlord shall indemnify and hold harmless Tenant, its
agents, and employees from and against any and all claims and liability for the
loss, theft, or damage to property on or about the Premises, except Landlord's
indemnification shall not include an indemnification for liability for the
negligence or willful misconduct of Tenant, its agents, or employees. Landlord
shall indemnify and hold Tenant, its agents, and employees harmless from and
against any and all claims and liability arising from any breach or default by
Landlord in the performance of any obligation of Landlord under this Lease or
arising from the negligence or willful misconduct of Landlord, its agents,
employees, or visitors. Tenant shall not be liable to Landlord for any
negligence or act of any occupant of the Building or any owner or occupant of
any property adjoining the Building other than such as arise out of the
negligence or wrongful acts of Tenant, its agents, and employees.
9.4 Waiver of Subrogation. Without limiting the obligation of Tenant to
maintain insurance which permits waiver of subrogation (unless otherwise
approved in writing by Landlord), Landlord and Tenant hereby waive all causes of
action and rights of recovery against each other, against all subtenants or
assignees of Tenant, against all other tenants of the building and their
assignees and sublessees, and against any other person or entity holding an
interest in the Building (together, the "Affected Parties"), and against the
agents, officers, and employees of the Affected Parties for any loss occurring
to the property of the
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Affected Parties resulting from any of the perils insured against under any and
all casualty insurance policies in effect at the time of any such loss
regardless of cause or origin of such loss, including the negligence of the
Affected Parties or the agents, officers, or employees or the Affected Parties
to the extent of any recovery on such policies of insurance, except to the
extent that any of such policies of insurance are invalidated, in whole or part,
by said waiver, and so long as such policies of insurance shall contain (and
Landlord and Tenant hereby agree to use their best efforts to cause such
policies to contain), by endorsement or otherwise, a clause in such form or
having substantially the same effect as the following: "It is hereby stipulated
that this insurance shall not be invalidated in whole or in part should the
insured or any of them waive in writing prior to a loss any or all rights of
recovery against any person or entity for loss occurring to the property
described herein. " Any self-insurance by Tenant shall be deemed to include such
waiver of subrogation against the Affected Parties. The obligation of Landlord
to use its best efforts to cause such policies to contain the above-described
clause shall not obligate Landlord to obtain such insurance from insurance
companies unacceptable to Landlord nor to incur premium charges therefor which
exceed one hundred ten percent (110%) of the premium charges for such insurance
which does not include such a clause. The obligation of tenant to use its best
efforts to cause such policies to contain the above-described clause shall not
obligate tenant to obtain such insurance from insurance companies unacceptable
to tenant nor to incur premium charges therefore which exceed one hundred ten
percent (110%) of the premium charges for such insurance which does not include
such a clause. Landlord shall promptly notify Tenant in writing if such policies
of Landlord do not contain the above-described clause. Tenant shall promptly
notify Landlord in writing if such policies of Tenant do not contain the
above-described clause and, in such event, Landlord shall promptly endeavor to
notify the other Affected Parties of such event.
10. DAMAGE OR DESTRUCTION.
10.1. Repair of Damage. If the Premises or the Building are damaged or
destroyed by fire or other casualty covered by the usual form of fire and
extended coverage, Landlord shall commence repair or restoration within sixty
(60) days of such damage or destruction and shall diligently pursue such repair
and restoration to completion unless this Lease is terminated as provided
herein. Landlord shall pay the cost of repair to any damage or destruction of
the Building or the Premises unless caused by the negligence or willful conduct
of the Tenant, its employees, guests, agents and invitees.. Tenant shall pay the
reasonable cost of repair of any damage or destruction of the building caused by
the negligence or willful misconduct of Tenant, its employees, agents or
visitors. Tenant shall vacate such portion of the premises as Landlord
reasonably requires to enable Landlord to repair the premises or the building.
10.2. Abatement. If the Premises are damaged or destroyed by fire or
other casualty not caused by the negligence or willful misconduct of Tenant, its
agents, employees, or visitors, the Monthly Rental and the payment by Tenant of
its share of operating expenses shall abate until such damage or destruction is
repaired in proportion to the reduction of the area of the Premises usable by
Tenant, or shall abate entirely if an
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insufficient amount of the premises are usable to the extent necessary for the
reasonable operation of Tenant's business. Except as specifically provided in
this Lease, this Lease shall not terminate, Tenant shall not be released from
any of its obligations under this Lease, the rent and other expenses payable by
Tenant under this Lease shall not abate, and Landlord shall not have liability
to Tenant for any damage or destruction to the Premises or the Building or any
inconvenience or injury to Tenant by reason of any maintenance, repairs,
alterations, decoration, additions, or improvements to the Premises or the
Building.
10.3. Termination by Landlord. If the Building is damaged or destroyed,
Landlord shall have the option to terminate this Lease within sixty (60) days of
such damage, if Landlord reasonably determines that the cost of repair to the
Building exceeds twenty-five percent (25%) of the value of the Building
exclusive of the land prior to such damage. If the Premises are damaged or
destroyed, Landlord shall have the option to terminate the term of this Lease
within sixty (60) days of the date of such damage or destruction if the cost of
repair of the Premises, as reasonably determined by Landlord, exceeds the
insurance proceeds estimated by Landlord to be payable to Landlord for such
damage or destruction.
10.4. End of Term. Landlord shall not have any obligation to repair,
reconstruct, or restore the Premises during the last twelve (12) months of the
term of this Lease or any extension thereof, as a result of any damage to the
Premises if the cost of such repair, reconstruction, or restoration as
reasonably estimated by the Landlord exceeds the then Monthly Rental. If
Landlord elects not to repair the Premises of the Building pursuant to this
Section 10.4, Tenant may elect to terminate this Lease within thirty (30) days
of receipt of Landlord's notification of its election not to repair pursuant to
this Section 10.4. If Tenant elects to terminate this Lease as provided in this
Section, this Lease shall terminate and rent shall abate from the date of
damage. If Tenant does not elect to terminate this Lease within such thirty (30)
day period, the rent and other expenses payable by Tenant shall abate, Landlord
may repair the Premises at Tenant's cost and expense except to the extent of
insurance proceeds received by Landlord for such damage, and Tenant shall
deposit with Landlord in advance an amount estimated by Landlord as the cost of
such repair in excess of such insurance proceeds.
11. CONDEMNATION.
11.1. The term of this Lease shall terminate as to the portion of the
Premises taken or condemned by any authority under power of eminent domain or
transferred by Landlord by agreement with such authority under threat of
condemnation, with or without any condemnation action being instituted, as of
the date such authority requests possession of such portion of the Premises. The
Monthly Rental and the Tenant's Percentage shall be adjusted in the proportion
that the square footage of the portion of the Premises taken bears to the total
square footage of the Premises prior to such taking. Tenant shall not be
entitled to any compensation, allowance, claim or offset of any kind against the
Landlord as damages or otherwise, by reason of being deprived of the Premises or
by the termination of this Lease, except that Tenant shall be entitled to such
portion of any separate award for damages or any improvements to the Premises
paid for by Tenant in an amount not to
12
exceed the unamortized cost of such improvements with such costs amortized over
the term of this Lease without reference to any unexercised options. Any portion
of the Building, other than the Premises taken by eminent domain or dedicated to
public use, shall upon such taking or dedication be excluded from the area over
which Tenant is granted rights hereunder, and this Lease shall continue in full
force and effect without any reduction in rental. Tenant may terminate the Lease
upon written notice to Landlord within 30 days of Tenant receiving notice of
condemnation if an insufficient amount of the premises shall remain usable to
the extent necessary for the reasonable operation of Tenant's business, or if
public access to the premises is substantially restricted.
12. ASSIGNMENT, SUBLETTING. AND RECAPTURE
12.1. Consent Required. Tenant shall not assign, sublease, or otherwise
transfer, by operation of law or otherwise, this Lease or any interest herein
without the prior written consent of the Landlord, which consent shall not be
unreasonably withheld; provided, however, that Tenant may assign, sublease or
otherwise transfer this Lease or any interest herein, without the prior consent
of Landlord, to any entity in order to provide banking and related financial,
real estate and investment services and products which Tenant (directly or
indirectly) or its affiliates regularly provide. Landlord 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 Tenant under this Lease and upon Landlord's determination that
(1) the proposed assignee or subtenant is financially responsible as a tenant;
(ii) the proposed assignee or subtenant will conduct a business on the Premises
in compliance with all special permits, laws, ordinances, and regulations
governing the Building; and (iii) the rent payable by such subtenant is at the
then current fair market rental for the portion of the Premises assigned or
subleased.
12.2. Prohibitions. Partial assignments of Tenant's interest in this
Lease are permitted at any time, from time to time, without consent of Landlord.
12.3. Payments to Landlord. Intentionally Deleted.
12.4. No Release. Any sale, assignment, encumbrance, subleasing,
occupation, or other transfer shall not release Tenant from any of Tenant's
obligations hereunder unless Landlord agrees in writing. The collection or
acceptance of rent or other payment by Landlord from any person other than
Tenant shall not be deemed a release of Tenant from any obligation under this
Lease.
13. DEFAULT AND REMEDIES.
13.1. Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default: (a) the failure by Tenant
to make any payment of rent or any other payments required to be made by Tenant
under this Lease when due if such failure continues for twenty (20) days after
written notice by Landlord to Tenant of such failure; (b) the failure by Tenant
to observe or perform any of the provisions of this Lease
13
to be observed and performed by the Tenant if such failure continues for a
period of twenty (20) days, or such other period if this Lease specifically
provides a different period for a particular failure, after written notice by
Landlord to Tenant of such failure; provided, however, that with respect to any
failure which cannot reasonably be cured within twenty (20) days, an Event of
Default shall not be considered to have occurred if Tenant commences to cure
such failure within such twenty (20) days period and continues to proceed
diligently with the cure of such failure; (c) the failure by Tenant to pay its
obligations as they become due; the making of any general assignment or general
arrangement for the benefit of creditors by Tenant, or the filing by or against
Tenant of a petition to have Tenant adjudged 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 Tenant, such petition is
dismissed within sixty (60) days; the appointment of a trustee or a receiver to
take possession of the Premises, where possession is not restored to Tenant
within thirty (30) days; or (d) if Tenant transfers or agrees to transfer this
Lease or possession of all or any portion of the Premises without Landlord's
prior written consent.
13.2. Remedies. On the occurrence of an Event of Default, Landlord may
at any time thereafter, with notice and demand and without limiting Landlord in
the exercise of a right or remedy which Landlord may have by reason of such
default or breach, exercise one or more of the following rights and remedies:
(1) declare the Lease at an end and terminated;
(2) reenter the Premises and eject all persons therefrom,
using necessary force to do so. Any such reentry shall
be allowed by Tenant without hindrance, and Landlord
shall not be liable for damages for any such reentry, or
be guilty of trespass or forcible entry;
(3) recover for any damages sustained by Landlord;
(4) continue the Lease in effect and relet the Premises on
such terms and conditions as Landlord may deem
advisable, with Tenant remaining liable for the Monthly
Rent plus the reasonable cost of obtaining possession of
the Premises, and of any repairs and alterations
necessary to prepare the Premises for reletting, less
the rentals received from such reletting, if any.
No action by Landlord shall be construed as an election to terminate the Lease
unless written notice of such intention be given to Tenant.
13.3. Damages on Termination. Intentionally deleted.
13.4. Mitigation of Damages. In the event that Landlord terminates
Tenant's right of use and possession of the Premises without terminating this
Lease and elects the remedy set forth in Section 13.2 (4), Landlord shall use
reasonable efforts to relet the Premises or
14
any part thereof for the account of Tenant for such rent and term and upon such
terms and conditions as are reasonable and acceptable under the circumstances.
13.5. Past Due Obligations. All amounts which Tenant is obligated to pay
Landlord pursuant to this Lease or when due shall bear interest at an interest
rate of 12% per annum, from the due date until paid, unless otherwise
specifically provided herein. The payment of such interest shall not excuse or
cure any default by Tenant under this Lease.
13.6. Exclusive and Cumulative Remedies. The remedies of Landlord set
forth in this Article 13 shall be exclusive and yet cumulative. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future law if Tenant is evicted or dispossessed for any cause or if
the Landlord obtains possession of the Premises by reason of the breach by
Tenant of any of its obligations under this Lease.
14. ADDITIONAL RIGHTS OF LANDLORD.
14.1. Entry by Landlord. Landlord and its agents and employees shall
have the right to enter the Premises at all reasonable times during Tenant's
regular business hours (or such other times as may become necessary in the event
of emergency), to examine the same, to make such maintenance and repairs of the
Premises and to exhibit the Premises to prospective tenants during the last six
(6) months of the term of this Lease. Landlord may erect, use and maintain pipes
and conduits in and through the Premises, provided such pipes and conduits do
not detract from the appearance of the Premises. Landlord shall take reasonable
precautions to minimize the disruption to Tenant and prevent any disclosure of
Tenant's confidential records or information during any entry to the Premises by
Landlord as provided in this Section.
14.2. Building Planning. Intentionally Deleted.
14.3. Transfer by Landlord. Landlord may transfer or assign its interest
in the Premises and this Lease without the consent of Tenant, at any time and
from time to time. Any assignment or transfer shall not release Landlord from
any of Landlord's obligations hereunder unless Tenant agrees in writing, not to
be unreasonably withheld.
14.4. Default by Landlord. Tenant shall be entitled to terminate this
Lease and/or seek remedies as allowed by applicable law if Landlord fails to
perform obligations required of Landlord within a reasonable time, but in no
event later than five (5) days after written notice by Tenant to Landlord,
specifying Landlord's failure to perform such obligation; provided, however,
that if the nature of Landlord's obligations is such that more than five (5)
days are required for performance, Tenant shall not be entitled to terminate
this Lease, and shall instead be entitled to seek remedies otherwise allowed by
applicable law if Landlord commences performance within such five (5) day period
and thereafter diligently prosecutes its efforts to satisfy such obligation and
does, in fact, satisfy such obligation. If the nature of Landlord's obligation
materially interferes with Tenant's use of the Premises, the rent and other
expenses due hereunder shall be equitably abated following Tenant's
15
notice of the obligation to Landlord. Any notice to Landlord by Tenant of
Landlord's default under this Lease shall also be concurrently provided, by
registered or certified mail, to any holder of a mortgage or similar security
interest covering the Premises, whose address shall have been furnished to
Tenant ("Mortgagee Notice").
14.5 Subordination. This Lease may, at the option of Landlord, be
subordinate to any ground or underlying leases, mortgages, deeds of trust or
other lien which may hereafter affect the Building or any part thereof, and
Tenant will execute and deliver upon the demand of Landlord from time to time
and upon receipt of an acceptable Agreement of Non-Disturbance, any and all
instruments desired by Landlord, subordinating in the manner requested by
Landlord this Lease 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 Landlord
in the Building will not disturb Tenant's possession of the Premises if Tenant
attorns to such successor as Landlord and otherwise performs its obligations
under this Lease. Tenant agrees that Tenant shall attorn to any landlord under
any ground lease affecting the Building in the event of the termination or
cancellation of such ground leases or to any purchaser upon foreclosure or sale
pursuant to any lien. Landlord may from time to time grant or declare such
restrictions or covenants as may be reasonably required by Landlord or adopt and
record such parcel maps, subdivision maps or condominium plans as may be
reasonably required by Landlord relating to all or any portion of the Building
and the provisions of all such documents shall be senior to this Lease and
Tenant shall sign any of such documents upon receipt of Landlord, provided such
documents do not unreasonably interfere with the use of the Premises by Tenant
as permitted by this Lease.
14.6. Lender's Rights. On receipt of written request from Landlord,
Tenant shall enter into a written agreement with Landlord and any ground lessor
or any holder of any encumbrance on the Building in a form satisfactory to such
ground lessor or holder which provides as follows: (a) Tenant shall attorn to
such ground lessor or encumbrancer; and (b) without the written approval of such
ground lessor or encumbrancer, Tenant shall not make any payments to Landlord
more than thirty (30) days prior to the date such payment is due. Pursuant to
this Lease, Tenant shall not subordinate its interest in this Lease to any
subsequent ground lease or encumbrance.
14.7. Estoppel Certificate. Tenant shall upon ten (10) days' written
notice from Landlord execute, acknowledge and deliver to Landlord a statement in
writing (a) 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; (b) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
the Landlord hereunder or specifying such defaults if any are claimed; (c)
setting forth the date of commencement of rents and the date of expiration of
the term of this Lease and setting forth any options of Tenant to extend the
term of this Lease, the nature of such options, and whether any such options
have been exercised by Tenant; and (d) stating the amount of security deposit
made by Tenant to Landlord and the amount and period covered by any prepayments
of rents or other charges by Tenant. Any such
16
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 real property of which the Premises are a part.
14.8. Financial Information. Intentionally Deleted.
15. MISCELLANEOUS.
15.1. Brokers. Tenant represents and warrants to Landlord that it has
not had dealings with any broker or finder other than as listed in Section 1.20
hereof in locating the Premises and that it knows of no other person who is or
might be entitled to a commission, finder's fee, or other like payment in
connection herewith and does hereby indemnify and agree to hold Landlord
harmless from and against any and all claims, liabilities, and expenses that
Landlord may incur should such representation and warranty be incorrect.
Landlord agrees to indemnify and hold Tenant harmless from any claims or
liability to any broker or other person arising out of or relating to any
agreement by Landlord to pay a brokerage commission, finder's fee, or like
payment to such broker or such person relating to the leasing of the Premises;
provided, however, that Landlord shall not be obligated to Tenant for any claims
or liability to any broker or other person with whom Tenant has dealing
concerning the Building whose identity Tenant has failed to disclose to
Landlord, as required by this Section 15.1.
15.2. Holding Over. If Tenant, with or without Landlord's consent,
remains in possession of the Premises, or any part thereof, after the expiration
of the term hereof, such occupancy shall be a tenancy from month to month upon
all the provisions of this Lease, except (a) rent shall be adjusted pursuant to
Section 4.2 and 4.3 and (b) all options and rights of first refusal, if any,
granted under the term of this Lease shall be terminated and be of no further
effect during such month-to-month tenancy.
15.3. 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 made of the essence of each and every one and all of the terms,
covenants, and conditions to be kept, observed, or performed under this Lease.
15.4. Notices. Any notices required or permitted to be given under this
Lease shall be in writing and may be delivered personally or by certified mail
to the Landlord at the address set forth in Section 1.1 and to Tenant at the
address set forth in Section 1.2. Any notice given by mail shall be deemed
received two (2) business days following the date of such notice and the
required copies are mailed as provided in this Section. Either party may change
its address for purposes of this Section by giving the other party written
notice of the new address in the manner set forth above.
15.5. Merger. There shall be no merger of this Lease or of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof by
reason of the fact that the same person, firm, corporation, or other legal
entity may acquire or hold, directly
17
or indirectly, this Lease or the leasehold estate and the fee estate in the
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.
15.6. Termination. On termination of the Lease, Tenant shall execute and
deliver to Landlord immediately upon Landlord's request a quitclaim deed in
recordable form transferring to Landlord any interest of Tenant in the Premises.
15.7. Applicable Laws. This Lease shall be governed by and construed in
accordance with the laws of the State of. Nebraska.
15.8. Professional Fees. If Tenant or Landlord brings any action for any
damages or other relief against the other or for a declaration or determination
of any matter relating to this Lease, including a suit by Landlord for the
recovery of rent or other payments from Tenant or for possession of the
Premises, the losing party shall pay to the prevailing party a reasonable sum
for attorneys', architects', engineers', brokers' and other professionals' fees
in. such suit, and such obligation shall be incurred on commencement of any
action whether or not such action is prosecuted to judgment or final
determination.
15.9. Modification. This Lease and any other written agreements dated as
of the date of this Lease contain all of the terms and conditions agreed upon by
the Landlord and Tenant with respect to the Premises and the Building. All prior
negotiations, correspondence, and agreements are superseded by this Lease and
any. other. contemporaneous documents. No officer or employee of any party has
any authority to make any representation or promise not contained in this Lease
and other contemporaneous documents, and each of the parties hereto agrees that
it has not executed this Lease in reliance upon any representation or promise
not set forth in this Lease or such contemporaneous documents. This Lease may
not be modified or changed except by written instrument signed by Landlord and
Tenant. Notwithstanding the foregoing, if, in connection with obtaining
construction, interim or permanent financing for the Building, the lender shall
request reasonable modifications in this Lease as a condition to such financing,
Tenant shall not unreasonably withhold, delay, or defer its consent thereof,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's rights hereunder.
15.10. 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 and agent or of partnership or of joint
venture or of any association between Landlord and Tenant, other than the
relationship of landlord and tenant.
15.11. Waiver. 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
18
times, be deemed a waiver or relinquishment of such rights and powers at any
other time or times or under any other circumstance(s).
15.12. Partial Invalidity. 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.
15.13. 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.
15.14. 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.
15.15 Tenant as Partnership. Intentionally Deleted.
15.16. Tenant as Corporation. If Tenant executes this Lease as a
corporation, then Tenant and the persons executing this Lease on behalf of
Tenant represent and warrant that the individuals executing this Lease on
Tenant's behalf are duty authorized to execute and deliver this Lease on its
behalf in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof and
in accordance with the Bylaws of Tenant, and this Lease is binding upon Tenant
in accordance with its terms.
15.17. Exhibits. All exhibits, riders and schedules, if any, attached
hereto shall be deemed a part of this Lease.
15.18. Security. Tenant shall be responsible for the security of the
premises and for Tenant's employees, agents, guests and invitees. Tenant shall
be responsible to lock and secure all doors, windows, and entrances connecting
the Premises to the common areas, except that Landlord and its agents and
employees, including cleaning personnel, shall be responsible to lock and secure
all doors, windows and entrances connecting the premises to the common area
after their entrance into the Premises unless during regular business hours when
Tenant's personnel are present. All doors of the Building and all doors and
entrances connecting the Premises to the common area shall contain lock barrel,
locks and handle hardware approved by the Landlord, such approval shall not be
unreasonably withheld. Tenant shall be responsible and pay the cost of
purchasing and installing any new lock tulips and handle hardware after the
commencement of this Lease, unless such replacement occurs as a part of the
repair duty of Landlord. Tenant shall request keys to specific doors from
Landlord where employees need such keys. Landlord shall provide Tenant with such
keys
19
and Tenant, Tenant's employees, agents, guests and invitees, shall not duplicate
such keys or change the lock barrel of any door in the Building, or any door in
the Premises, without the consent of Landlord, which consent shall not be
unreasonably withheld.
15.19. Force Majeure. In the event either party hereto shall be delayed
or hindered in. or prevented from the performance of any act required hereunder
by a reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulation, riots,
insurrections, war, civil commotion, or other reason of a like nature not the
fault of the party delayed in performing work or doing acts required under the
terms of the Lease, then performance of such acts shall be excused for the
period of the delay and the period of performance of any act shall be extended
for a period equivalent to the period of such delay.
15.20. Preservation of Building Quality and Design. Tenant's plans for
Tenant finish improvements and fixturing within the Premises shall be subject to
review and approval of Landlord, such approval not be unreasonably withheld.
Such approval is intended to ensure consistency between the significant
architectural design features of the Building and the design of the Tenant
finish and fixturing in the Premises.
15.21. Space Availability. The commencement of this Lease and possession
of the Premises by Tenant is subject to the vacating of the Premises by Morrow's
Card Shops, Inc according to the terms of a Lease Termination Agreement of May
10, 1996 by and between Miller & Paine and Morrow's Card Shop Inc. ("Termination
by Agreement"). Landlord has agreed to pay Morrow's Card Shops, Inc, $90,000.00
in consideration for terminating its lease of the Premises, and Tenant has
agreed to pay half, or $45,000.00 of the above amount. Landlord and Tenant shall
make such payment of $90,000.00 to Morrow's Card Shops Inc. according to the
terms of the Termination Agreement as attached to and made a part of this Lease
as Exhibit D.
15.22 Restrictive covenant relating to securities dealers. This Lease is
subject to a covenant granted by Landlord to A.G. Edwards & Sons, Inc. in that
certain Office Building Lease of January 2, 1991 which covenant is as follows:
Landlord Lease Restriction. Landlord hereby covenants and agrees that during the
Lease Term and, if exercised, the Option Term, Landlord will not lease space in
the basement, first or second floors of the Building to a tenant which is a
member of the National Association of Securities Dealers or to a tenant which is
a member of a securities exchange or commodities exchange. In the event Landlord
breaches this covenant, Tenant's rent shall abate for the remainder of the Lease
Term or Option Term.
Landlord will use its best effort to obtain a waiver from A.G. Edwards and Sons,
Inc. from the provisions of the above covenant if future business activities of
Tenant pose a potential violation of the terms of the above covenant.
15.23 Landlord shall review Tenant's plans for securing its Premises
space at the stairwell in the southeast corner of the Premises and shall
accommodate any reasonable plan
20
that is in keeping with the character and design of the Building and its common
areas and that provides a continues access to the basement level of the
Building.
15.24 Landlord shall provide space on the outside the Premises and/or on
the service tower on the top of the Building for signage. Tenant shall pay all
costs of the signage and installation, maintenance, removal, and, electricity
for illumination if applicable. Landlord shall review plans for such signage for
Landlord approval, such approval hot to be unreasonably withheld.
15.25 Banking Authority. Notwithstanding any other provisions contained
in this lease, in the event the Tenant is closed or taken over by the banking
authority of the State of Nebraska, or other bank supervisory authority, the
Landlord may terminate the lease only with the concurrence of such banking
authority or other bank supervisory authority, and any such authority shall in
any event have the election either to continue or to terminate the Lease:
Provided, that in the event this Lease is terminated, the maximum claim of
Lessor for damages or indemnity for injury resulting from the rejection or
abandonment of the unexpired term of the lease shall in no event be in an amount
exceeding the rent reserved by the lease, without acceleration, for the year
next succeeding the date of the surrender of the Premises to the Lessor, or the
date of re-entry of the Lessor, whichever first occurs, whether before or after
the closing of the bank, plus an amount equal to the unpaid rent accrued,
without acceleration up to such date.
IN WITNESS WHEREOF, the parties hereto hereby execute this Lease as of
the day and year first above written.
"LANDLORD" "TENANT"
Miller & Paine, a Nebraska
corporation
By: /s/ Robert E. Campbell II By: /s/ Mike Dunlap
------------------------------------- --------------------------------
Robert E. Campbell II, (Name and Title)
Chairman and Chief Executive Officer
21
STATE OF NEBRASKA )
) ss.
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 21st day of
June, 1996, by Robert E. Campbell II, President of Miller & Paine, a Nebraska
corporation, on behalf of the corporation.
/s/ Cynthia Done
--------------------------------
[SEAL] Notary Public
STATE OF ____________________ )
) ss.
COUNTY OF __________________ )
The foregoing instrument was acknowledged before me this 5 day of July,
1996, by Mike Dunlap of Union Bank and Trust Company, on behalf of the
corporation.
/s/ Cynthia L. Chapman
--------------------------------
[SEAL] Notary Public
22
Exhibit B
WORK LETTER
Miller & Paine - Landlord
Union Bank and Trust Company - Tenant
1. Definitions. In this Work Letter, some defined terms are used. They
are:
1.1 Tenant's Representative: _________________________
1.2 Landlord's Representative: Cynthia L. Done'
1.3 Tenant's Work:
(a) Work to accomplish Tenant Improvements as shown
on Schedule 1 to Exhibit B of the Lease.
(b) Architectural services, engineering services,
interior decorating services and decorator items
associated with Tenant Improvements not included
in Landlord's work herein.
1.4 Landlord's Work:
(a) Work to accomplish Landlord Improvements as shown
on schedule 1 to Exhibit B of the Lease.
(b) Architectural, engineering and other professional
services associated with Landlord Improvements.
Any capitalized term which is used in this Work Letter but not defined in this
Work Letter has the meaning set forth for such term in the Lease.
2. Representatives. Landlord appoints Landlord's Representative to act
for Landlord in all matters covered by this Work Letter. Tenant appoints
Tenant's Representative to act for Tenant in all matters covered by this Work
Letter. All inquiries, requests, instructions, authorizations and other
communications with respect to the matters covered by this Work Letter will be
made to Landlord's Representative or Tenant's Representative, as the case may
be. Tenant and Landlord will not make any inquiries of, or requests to, and will
not give any instructions or authorizations to, any other employee or agent of
the other party, including that party's architect, engineers and contractors or
any of their agents or employees, with regard to matters covered by this Work
Letter. Either party may change its Representative under this Work Letter at any
time by three (3) days' prior written notice to the other party.
3. Building Standard. Tenant must use items approved by Landlord for the
Building in order to assure the consistent quality and appearance of the
Building.
4. Tenant's Responsibility for Design and Contracting. Tenant will be
responsible for contracting and paying for design and construction services,
subject to Landlord's review and approval, provisions of this Work Letter, in
order to construct Tenant Improvements as shown on Schedule 1 herein. Tenant
will also be responsible for the layout, design, installation, function and
maintenance of trade fixtures, equipment, signage and furnishings that Tenant
requires for its occupancy of the Premises.
1
5. Payment for Tenant's Work. Tenant or its contracted agents will serve
as the primary contractor and construction manager for the improvements to the
Premises, and shall make timely payment for all such services and construction
costs, including required permits, taxes and fees relating to the construction
of such improvements. Tenant shall be responsible for paying all costs related
to Tenant Improvements, but shall be reimbursed by Landlord for any Landlord
Improvements that Tenant contracts for and pays directly.
6. Payment for Landlord's Work. Landlord will separately contract for
and timely pay all costs of design and construction for Landlord's Improvements
shown on Schedule I herein. In the event Landlord, with Tenant's approval, has
any of Landlord's Work designed by, mangaged by, or constructed by contractors
or agents of Tenant, Tenant shall pay such contractors or agents and Landlord,
upon submission by Tenant of invoices, shall reimburse Tenant for actual
construction and materials costs, plus a pro rata share of design, engineering
or management fees if such fees cannot be separately determined and invoiced.
7. Coordination of Landlord's Work with Tenant's Work. Landlord's
Representative will coordinate with Tenant's Representative the plans, timing,
sequencing and design criteria of all Landlord's Work that is separately
contracted by Landlord. Tenant's Representative will keep Landlord's
Representative informed of plans and construction progress during construction
and will obtain Landlord's approvals when review is required by this Work
Letter.
8. Landlord's Approval. Landlord, in its sole discretion, may withhold
its approval of any Tenant Space Plan, Tenant Working Drawings, or Change Orders
which require work which:
(a) exceeds the structural integrity or capacity of
the Building;
(b) is not approved by the holder of any mortgage or
deed of trust encumbering the Building at the
time the work is proposed;
(c) Landlord reasonably believes will materially and
unreasonably increase the cost of operation or
maintenance of any of the systems of the
Building.
(d) Landlord reasonably believes will reduce the
market value of the Premises or the Building at
the end of the Term;
(e) does not conform to applicable building code or
is not approved by any governmental authority
with jurisdiction over the Premises; or
(f) does not conform to materials, appearance and
workmanship generally used in the Building.
9. Schedule of Tenant Improvement Activities. Approval of the Tenant
Space Plan, referred to as Final Plans in the Lease and attached as Exhibit A
dated __________________________, and/or any revisions thereto specifically
requested by the Tenant, shall be indicated by signature upon the Tenant Space
Plan by both the Tenant's Representative and the Landlord's Representative. Upon
such evidence of approval by both parties, the Tenant Space Plan shall serve as
the basis for preparation of construction documents for the proposed
improvements and the area set forth on the Tenant Space Plan shall constitute
the minimum area to be incorporated in the Lease.
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Tenant shall prepare and supervise a project timing and completion schedule for
all work to the Premises and provide Landlord a copy of such schedule and any
changes. Landlord shall provided Tenant copies of plans, working drawings and
change orders for Landlord Improvements and Tenant shall incorporate such
costruction into the overall project schedule. Tenant shall provide Landlord
copies of the Tenant Space Plan, working drawings of Tenant's Work, and Change
Orders thereto. Within five days of receipt, Landlord shall provide Tenant
written approval as required by this Work Letter, or shall notify Tenant of
concerns relating to such Plans, drawings or Change Orders.
10. Change Orders. Either Landlord or Tenant may initiate in writing
changes to the project during construction ("Change Order"). Landlord shall
submit such Change Orders for Landlord Improvements to Tenant to be incorporated
in the schedule of work and to be submitted to Tenant's contractor if
applicable. Tenant shall submit Change Orders for Tenant Improvements to
Landlord for approval as required by this Work Letter.
11. Completion and Commencement Date. Tenant's obligation for the
payment of Rent pursuant to the Lease will commence on the Estimated
Commencement Date, except as provided to the contrary in the Lease, and not upon
occupancy or completion of improvements.
12. Responsibility for Other Improvements. Tenant will be responsible
for the design, function and maintenance of all additional improvements required
by Tenant, but which are not listed in "Landlord and Tenant Improvements" of
Schedule 1, whether or not approved by Landlord or installed by Landlord at
Tenant's request.
AGREED AND ACCEPTED this 21st day of June, 1996.
MILLER & PAINE
By: /S/ ROBERT E. CAMPBELL, II
--------------------------------
Title: President
Union Bank and Trust Company Tenant
By:
---------------------------------
Title:
-----------------------------
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Schedule 1 To Work Letter
Landlord and Tenant Improvements
1. Landlord Improvements
Additions to Building directories on first and second floor
(subsequent changes to be paid by Tenant)
New thermal pane windows along both 13th Street and "0" Street
sides, or, at Tenant's sole discretion, apply the
$12,768.00 cost of such windows toward Tenant's cost of
HVAC system changes required as part of Tenant Improvements
Repainting of Premises interior as existing (or comparable cost of
work toward Premises as improved)
Thorough cleaning of Premises interior as existing (or comparable
cost of work toward Premises as improved)
2. Tenant Improvements.
In addition to the above features provided by the Landlord, the
following Tenant's Improvement/Modifications to the Premises as
detailed on Tenant Space Plans may be provided by Tenant at
Tenant's expense:
New partitions as required
New doors and refinishing of existing doors
Electrical within premises
Telephone and communication conduit
Lighting and light switch changes
Painted walls or wall finishes of additional offices or built-in
fixturing
Carpeting and VCT changes
Window treatment
Interior central heating and air conditioning ductwork drops,
grilles, and thermostatic DDC controls
Ceilings, if new "drop in" are required by tenant.
Counter, cabinets, and plumbing if required by tenant
Cost of wiring for dedicated circuits where required for computer
operations
Modifications to sprinkler system if required by new office
configuration
Demolition of any existing construction to be removed
Modifications to HVAC system required by design changes to
fixturing layout or creation of isolated office areas
Signage inside or outside of premises
Changes to utilities, including utility connections to Premises,
required by Tenant modifications to Premises
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