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EXHIBIT 10.69
LEASE - BUSINESS PROPERTY
THIS LEASE AGREEMENT, executed in duplicate, made and entered into this
26th day of April 1995, by and between A.M. Henderson
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_______________________________(hereinafter called the "Landlord") whose
address for the purpose of this lease is P.O. Box 922, Cedar Rapids
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(Street and Number) (City)
Iowa 52406 and Telecom*USA Publishing Company
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(State) (Zip Code)
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_____________________________________(hererinafter called the "Tenant") whose
address for the purpose of this lease is 201 3rd Avenue SE, Ste. 550, Cedar
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(Street and Number) (City)
Rapids, IA 52401 , WITNESSETH THAT:
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(State) (Zip Code)
1. PREMISES AND TERM. The Landlord, in consideration of the rents
herein reserved and of the agreements and conditions herein contained, on the
part of the Tenant to be kept and performed, leases unto the Tenant and Tenant
hereby rents and leases from Landlord, according to the terms and provisions
herein, the following described real estate, situated in Linn County, Iowa, to
wit:
23,773 sq.ft. (see Exhibit B for breakdown)
931 Blairs Ferry Road NE, Cedar Rapids, Iowa
Legal: IRR SUR NE 3-83-7 N OF RR W 438.25' MEAS ON N LN LOT 5 & IRR
SUR NW N OF RR (LESS CITY) E 169' MEAS ON N LN LOT 2
with the improvements thereon and all rights, easements and appurtenances
thereto belonging, which, more particularly, includes the space and premises
as may be shown on "Exhibit A," if and as may be attached hereto, for a term of
5 years, commencing at midnight of the day previous to the first day of the
lease term, which shall be on the first day of August 1995, and ending at
midnight on the last day of the lease term, which shall be on the 31st day of
July 2000, upon the condition that the Tenant pays rent therefor,
and otherwise performs as in this lease provided.
2. RENTAL. Tenant agrees to pay to Landlord as rental for said term,
as follows: $12,824.28 per month, in advance, the first rent payment becoming
due upon
Strike XXXXXXXXXXXXXXXXXXX
one (b) the 1st day of August, 1995,
and the same amount, per month, in advance, on the _______day of each month
thereafter, during the term of this lease.
In addition to the above monthly rental Tenant shall also pay:
All sums shall be paid at the address of Landlord, as above designated,
or at such other place in Iowa, or elsewhere, as the Landlord may, from time
to time, previously designate in writing.
Delinquent payments shall draw interest at 9.0% per annum from five (5)
days after the due date, until paid.
3. POSSESSION. Tenant shall be entitled to possession on the first
day of the term of this lease, and shall yield possession to the Landlord at
the time and date of the close of this lease term, except as herein otherwise
expressly provided. Should Landlord be unable to give possession on said date,
Tenant's only damages shall be a rebating of the pro rata rental.
4. USE OF PREMISES. Tenant convenants and agrees during the term of
this lease to use and to occupy the leased premises only for
office/warehouse/training center.
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For restrictions on such use, see paragraphs 6(c), 6(d) and 11(b) below.
5. QUIET ENJOYMENT. Landlord covenants that its estate in said
premises is fee simple absolute
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and that the Tenant on paying the rent herein reserved and performing all the
agreements by the Tenant to be performed as provided in this lease, shall and
may peaceably have, hold and enjoy the demised premises for the term of this
lease free from molestation, eviction or disturbance by the Landlord or any
other persons or legal entity whatsoever. (But see paragraph 14, below.)
Landlord, shall have the right to mortgage all of its right, title,
interest in said premises at any time without notice, subject to this lease.
6. CARE AND MAINTENANCE OF PREMISES. (a) Tenant takes said premises in
their present condition except for such repairs and alterations as may be
expressly herein provided.
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(b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Landlord will keep the
roof, structural part of the floor, walls and other structural parts of the
building in good repair.
(c) TENANT'S DUTY OF CARE AND MAINTENANCE. Tenant shall, after taking
possession of said premises and until the termination of this lease and the
actual removal from the premises, at its own expense, care for and maintain
said premises in a reasonably safe and serviceable condition, except for
structural parts of the building. Tenant will furnish its own interior
decorating. Tenant will not permit or allow said premises to be damaged or
depreciated in value by any act or negligence of the Tenant, its agents or
employees. Without limiting the generality of the foregoing. Landlord will
make necessary repairs to the sewer, the plumbing, the water pipes and
electrical wiring, except as follows:
None
and Tenant agrees to keep faucets closed so as to prevent waste of water and
flooding of premises: to promptly take care of any leakage or stoppage in any
of the water, gas or waste pipes. The Tenant agrees to maintain adequate heat
to prevent freezing of pipes, if and only if the other terms of this lease fix
responsibilility for heating upon the Tenant. Landlord will be responsible for
the plate glass in the windows of the leased premises and for maintaining the
parking area, driveways and sidewalks on and abutting the leased premises, if
the leased premises include the ground floor, and if the other terms of this
lease include premises so described. Tenant shall make no structural
alterations or improvements without the written approval of the Landlord first
had and obtained, of the plans and specifications therefor.
(d) Tenant will make no unlawful use of said premises and agrees to
comply with all valid regulations of the Board of Health, City Ordinances or
applicable municipality, the laws of the State of Iowa and the Federal
government, but this provision shall not be construed as creating any duty by
Tenant to members of the general public. If Tenant, by the terms of this lease
is leasing premises on the ground floor, it will not allow trash of any kind
to accumulate on said premises in the halls, if any, or the alley or yard in
front, side or rear thereof, and it will remove same from the premises at its
own expense. Tenant also agrees to remove snow and ice and other obstacles
from the sidewalk on or abutting the premises, if premises include the ground
floor, and if this lease may be fairly-construed to impose such liability on
the Tenant.
7. (a) UTILITIES AND SERVICES. Tenant, during the term of this lease,
shall pay, before delinquency, all charges for use of telephone, electricity,
power, air conditioning, garbage disposal, trash disposal and not limited by
the foregoing all other utilities and services of whatever kind and nature
which may be used in or upon the demised premises.
(b) AIR CONDITIONING equipment shall be furnished at the expense of
Landlord and maintenance thereof at the expense of Landlord
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(Landlord or Tenant) (Landlord or Tenant)
(c) JANITOR SERVICE shall be furnished at the expense of
Tenant
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(Landlord or Tenant)
(d) HEATING shall be furnished at the expense of Landlord
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(Landlord or Tenant)
8. (a) SURRENDER OF PREMISES AT END OF TERM - REMOVAL OF FIXTURES.
Tenant agrees that upon the termination of this lease, it will surrender,
yield up and deliver the leased premises in good and clean condition, except
the effects of ordinary wear and tear and depreciation arising from lapse of
time, or damage without fault or liabilitiy of Tenant. [See also 11(a) and
11(e) below]
(b) Tenant may, at the expiration of the term of this lease, or renewal
or renewals thereof or at a reasonable time thereafter, if Tenant is not in
default hereunder, remove any fixtures or equipment which said Tenant has
installed in the leased premises, providing said Tenant repairs any and all
damages caused by removal.
(c) HOLDING OVER. Continued possession, beyond the expiratory date of
the term of this lease, by the Tenant, coupled with the receipt of the
specified rental by the Landlord (and absent a written agreement by both
parties for an extension of this lease, or for a new lease) shall constitute a
month to month extension of this lease.
9. ASSIGNMENT AND SUBLETTING. Any assignment of this lease or
subletting of the premises or any part thereof, without the Landlord's written
permission shall, at the option of the Landlord, make the rental for the
balance of the lease term due and payable at once. Such written permission
shall not be unreasonably withheld.
10. (a) ALL REAL ESTATE TAXES, except as may be otherwise expressly
provided in this paragraph 10, levied or assessed by lawful authority (but
reasonably preserving Landlord's rights of appeal) against said real property
shall be timely paid by the parties in the following proportions: by Landlord
100%; by Tenant 0%.
(b) Increase in such taxes, except as in the next paragraph provided,
above the amount paid for the base tax year of 1994/95 (base year if any and as
may be defined in this paragraph) shall be paid by Landlord, 0%; by Tenant
100%.
(c) Increase in such taxes caused by Improvements of Tenant shall be
paid by Landlord 0%; by Tenant 100%.
(d) PERSONAL PROPERTY TAXES. Tenant agrees to timely pay all taxes,
assessments or other public charges levied or assessed by lawful authority (but
reasonably preserving Tenant's rights of appeal) against its personal property
on the premises, during the term of this lease.
(e) SPECIAL ASSESSMENTS. Special assessments shall be timely paid by
the parties in the following proportions: by the Landlord 0%; by the Tenant
100%.
11. INSURANCE. (a) Landlord and Tenant will each keep its respective
property interests in the premises and its liability in regard thereto, and the
personal property on the premises, reasonably insured against hazards and
casualties; that is, fire and those items usually covered by extended coverage;
and Tenant will procure and deliver to the Landlord a certification from the
respective insurance companies to that effect. Such insurance shall be made
payable to the parties hereto as their interests may appear.
(b) Tenant will not do or omit the doing of any act which would vitiate
any insurance, or increase the insurance rates in force upon the real estate
improvements on the premises or upon any personal property of the Tenant upon
which the Landlord by law or by the terms of this lease, has or shall have a
lien.
(c) Subrogation rights are not to be waived unless a special provision
is attached to this lease.
(d) Tenant further agrees to comply with recommendations of Iowa
Insurance Service Bureau and to be liable for and to promptly pay, as if
current rental, any increase in insurance rates on said premises and on the
building of which said premises are a part, due to increased risks of hazards
resulting from Tenant's use of the premises otherwise than as herein
contemplated and agreed.
(e) INSURANCE PROCEEDS. Landlord shall settle and adjust any claim
against any insurance company under its said policies or insurance for the
premises, and said insurance monies shall be paid to and held by the Landlord to
be used in payment for cost of repairs or restoration [REMAINDER OF SENTENCE IS
MISSING]
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12. INDEMNITY AND LIABILITY INSURANCE. Except as to any negligence of
the Landlord, or any other tenants, Tenant will protect, indemnify and save
harmless the Landlord from and against any and all loss, costs, damage and
expenses occasioned by, or arising out of, any accident or other occurrence
causing or inflicting injury and/or damage to any person or property, happening
or done, in, upon or about the leased premises, or due directly or indirectly
to the tenancy, use or occupancy thereof, or any part thereof by the Tenant or
any person claiming through or under the Tenant. The Tenant further covenants
and agrees that it will at its own expense procure and maintain casualty and
liability insurance in a responsible company or companies authorized to do
business in the State of Iowa, in amounts not less than $100,000 ___________ for
any one person injured, and $500,000 ___________________ for any one accident,
and with the limits of $25,000 _____________ for property damage, protecting
the Landlord against such claim, damages, costs or expenses on account of injury
to any person or persons, or to any property belonging to any person or
persons, by reason of such casualty, accident or other happening on or about
the demised premises during the term thereof. Certificates or copies of said
policies, naming the Landlord, and providing for 30 days' notice to the
Landlord before cancellation shall be delivered to the Landlord within twenty
(20) __________ days from the date of the beginning of the term of this lease.
As to insurance of the Landlord for roof and structural faults, see paragraph
11(a) above.
13. FIRE AND CASUALTY, PARTIAL DESTRUCTION OR PREMISES. (a) In the
event of a partial destruction or damage of the leased premises, which is a
business interference, that is, which prevents the conducting of a normal
business operation and which damage is reasonably repairable within sixty (60)
days after its occurrence, this lease shall not terminate but the rent for the
leased premises shall abate during the time of such business interference. In
the event of partial destruction, Landlord shall repair such damages within 60
___________________ days of its occurrence unless prevented from so doing by
acts of God, the elements, the public enemy, strikes, riots, insurrection,
government regulations, city ordinances, labor, material or transportation
shortages, or other causes beyond Landlord's reasonable control.
(b) ZONING. Should the zoning ordinance of the city or municipality in
which this property is located make it impossible for Landlord, using diligent
and timely effort to obtain necessary permits and to repair and/or rebuild so
that Tenant is not able to conduct its business on these premises, then such
partial destruction shall be treated as a total destruction as in the next
paragraph provided.
(c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a destruction or
damage of the leased premises including the parking area (if a parking area is
a part of the subject matter of this lease) so that Tenant is not able to
conduct its business on the premises or the then current legal use for which
the premises are being used and which damages cannot be repaired within sixty
(60) _______________ days this lease may be terminated at the option of either
the Landlord or Tenant. Such termination in such event shall be effected by
written notice of one party to the other, within 30 days after such
destruction. Tenant shall surrender possession within ten (10) ____________
days after such notice issues, and each party shall be released from all future
obligations hereunder, Tenant paying rental pro rata only to the date of such
destruction. In the event of such termination of this lease, Landlord at its
option, may rebuild or not, according to its own wishes and needs.
14. CONDEMNATION. (a) DISPOSITION OF AWARDS. Should the whole or any
part of the demised premises be condemned or taken by a competent authority for
any public or quasi-public use or purpose, each party shall be entitled to
retain, as its own property, any award payable to it. Or in the event that a
single entire award is made on account of the condemnation, each party will
then be entitled to take such proportion of said award as may be fair and
reasonable.
(b) DATE OF LEASE TERMINATION. If the whole of the demised premises
shall be so condemned or taken, the Landlord shall not be liable to the Tenant
except and as its rights are preserved as in paragraph 14(a) above.
15. TERMINATION OF LEASE AND DEFAULTS OF TENANT. (a) TERMINATION UPON
EXPIRATION OR UPON NOTICE OF DEFAULTS. This lease shall terminate upon
expiration of the demised term; or if this lease expressly and in writing
provides for any option or options, and if any such option is exercised by the
Tenant, then this lease will terminate at the expiration of the option term or
terms. Upon default in payment of rental herein or upon any other default by
Tenant in accordance with the terms and provisions of this lease, this lease
may at the option of the Landlord be cancelled and forfeited, PROVIDED,
HOWEVER, before any such cancellation and forfeiture except as provided in
15(b) below, Landlord shall give Tenant a written notice specifying the
default, or defaults, and stating that this lease will be cancelled and
forfeited thirty (30) days after the giving of such notice, unless such
default, or defaults, are remedied within such grace period. (See paragraph 22,
below.) As an additional optional procedure or as an alternative to the
foregoing (and neither exclusive of the other) Landlord may proceed as in
paragraph 21, below, provided.
(b) BANKRUPTCY OR INSOLVENCY OF TENANT. In the event Tenant is
adjudicated a bankrupt or in the event of a judicial sale or other transfer of
Tenant's leasehold interest by reason by any bankruptcy or insolvency
proceedings or by other operation of law, but not by death, and such
bankruptcy, judicial sale or transfer has not been vacated or set aside within
ten (10) days from the giving of notice thereof by Landlord to Tenant, then,
and in any such events, Landlord may, at its option, immediately terminate this
lease, re-enter said premises, upon giving of ten (10) days' written notice
by Landlord to Tenant, all to the extent permitted by applicable law.
(c) In (a) and (b) above, waiver as to any default shall not constitute
a waiver of any subsequent default or defaults.
(d) Acceptance of keys, advertising and re-renting by the Landlord upon
the Tenant's default shall be construed only as an effort to mitigate damages
by the Landlord, and not as an agreement to terminate this lease.
16. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF THE OTHER. If
default shall be made by either party in the performance of, or compliance
with, any of the terms, covenants or conditions of this lease, and such
default shall have continued for thirty (30) days after written notice thereof
from one party to the other, the person aggrieved, in addition to all other
remedies now or hereafter provided by law, may, but need not, perform such
term, covenant or condition, or make good such default and any amount advanced
shall be repaid forthwith on demand, together with interest at the rate of 12%
per annum, from date of advance.
17. SIGNS (a) Tenant shall have the right and privilege of attaching,
affixing, painting or exhibiting signs on the leased premises, provided only
(1) that any and all signs shall comply with the ordinances of the city or
municipality in which the property is located and the laws of the State of
Iowa; (2) such signs shall not change the structure of the building; (3) such
signs if and when taken down shall not damage the building; and (4) such signs
shall be subject to the written approval of the Landlord, which approval shall
not be unreasonably withheld.
(b) Landlord during the last ninety (90) days of this lease, or
extension, shall have the right to maintain in the windows or on the building
or on the premises either or both a "For Rent" or "For Sale" sign and Tenant
will permit, at such time, prospective tenants or buyers to enter and examine
the premises.
18. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by,
through, or under the Tenant, shall have the right to file or place any
mechanic's lien or other lien of any kind or character whatsoever, upon said
premises or upon any building or improvement thereon, or upon the leasehold
interest of the Tenant therein, and notice is hereby given that no contractor,
sub-contractor, or anyone else who may furnish any material, service or labor
for any building, improvements, alteration, repairs or any part thereof, shall
at any time be or become entitled to any lien thereon, and for the further
security of the Landlord, the Tenant covenants and agrees to give actual
notice thereof in advance, to any and all contractors and sub-contractors who
may furnish or agree to furnish any such material, service or labor.
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21. RIGHTS CUMULATIVE. The various rights, powers, options, elections
and remedies of either party, provided in this lease, shall be construed as
cumulative and no one of them as exclusive of the others, or exclusive of any
rights, remedies or priorities allowed either party by law, and shall in no way
affect or impair the right of either party to pursue any other equitable or
legal remedy to which either party may be entitled as long as any default
remains in any way unremedied, unsatisfied or undischarged.
22. NOTICES AND DEMAND. Notices as provided for in this lease shall be
given to the respective parties hereto at the respective addresses designated
on page one of this lease unless either party notifies the other, in writing, of
a different address. Without prejudice to any other method of notifying a
party in writing or making a demand or other communication, such message shall
be considered given under the terms of this lease when sent, addressed as above
designated, postage prepaid, by registered or certified mail, return receipt
requested, by the United States mail and so deposited in a United States mail
box.
23. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC. Each and
every covenant and agreement herein contained shall extend to and be binding
upon the respective successors, heirs, administrators, executors and assigns of
the parties hereto; except that if any part of this lease is held in joint
tenancy, the successor in interest shall be the surviving joint tenant.
24. CHANGES TO BE IN WRITING. None of the covenants, provisions, terms
or conditions of this lease to be kept or performed by Landlord or Tenant shall
be in any manner modified, waived or abandoned, except by a written instrument
duly signed by the parties and delivered to the Landlord and Tenant. This
lease contains the whole agreement of the parties.
25. RELEASE OR DOWER. Spouse of Landlord, appears as a party signatory
to this lease soley for the purpose of releasing dower, or distributive share,
unless said spouse is also a co-owner of an interest in the lease premises.
26. CONSTRUCTION. Words and phrases herein, including acknowledgement
hereof, shall be construed as in the singular or plural number, and as
masculine, feminine or neuter gender according to the context.
27. See Addendum attached hereto and made a part hereof for all
purposes.
IN WITNESS WHEREOF, the parties hereto have duly executed this lease in
duplicate the day and year first above written.
/s/ A.M. HENDERSON
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LANDLORD'S SPOUSE A.M. Henderson LANDLORD
(See paragraph 25)
Telecom*USA Publishing Company
By: /s/ JAMES A. HADDAD
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TENANT'S SPOUSE James A. Haddad, Vice President TENANT
[See paragraph 19(b)]
[ATTACH APPROPRIATE ACKNOWLEDGEMENTS HERE]
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ADDENDUM
Addendum to Lease -- Business Property (the "Lease") between A.M. Henderson
("Landlord") and Telecom*USA Publishing Company, an Iowa corporation
("Tenant").
The provisions of this Addendum shall control over any conflicting provisions
of the Lease.
If the Lease is in full force and effect on June 30, 2000, Tenant shall have
the right, at its option, to extend the term of the Lease for an additional five
(5) years upon the same terms and conditions contained in the Lease, except
the rental for such extended period shall be increased by 80% of the percentage
increase in the Consumer Price Index All Consumers - U.S. Cities average, from
the commencement date through June 30, 2000, with such increased monthly rental
commencing on July 1, 2000. To exercise this option to extend, Tenant
shall notify Landlord in writing no later than December 31, 1999.
The parties acknowledge that Telecom is currently leasing other space for its
Cedar Rapids sales office at 1350 Boyson Road, Building D, Hiawatha, Iowa.
Scott Olson has agreed to attempt to sublet that lease space. The rent due
under this Lease shall be reduced by $1,000.00 per month beginning September 1,
1995 until that space is leased.
Landlord agrees to, prior to the commencement date of this Lease, repair the
parking lot surface on the property, clean up the area around the railroad
tracks, and paint the south wall of the building. In addition, Landlord shall
fence the warehouse area in accordance with the drawing attached hereto as
Exhibit "A and B".
Telecom shall be allowed to place signage on the west wall of the building,
over the loading dock area, and at the front of the property near Blairs Ferry
Road. Such signage shall be subject to the prior approval of Landlord, which
approval shall not be unreasonably withheld.
Tenant shall have the right to use one-half of the east parking lot on the
property until 4:00 p.m. each day. Tenant shall have the right to use at least
seventy parking spaces in the west parking lot at all times.
All notices to Tenant under the Lease shall be sent to the attention of James
A. Haddad.
Any increase in the amounts due from Tenant under this Lease, including, but
not limited to, any increase in real estate taxes, shall be paid by Tenant on a
pro rata basis based on the square footage under this Lease versus the square
footage of the entire building. Total taxes for 1994/95 are $$28,404.00.
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ADDENDUM
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Notwithstanding the provision of Section 6(d), Tenant shall not be obligated to
make any alterations or changes required by the Americans With Disabilities Act
or any other rules, regulations, ordinances, or laws, unless such alterations or
changes are required due to the nature of Tenant's use of the premises.
Landlord agrees to complete its work on the premises on or before September 1,
1995. If Landlord has not completed its work by such date, Tenant shall have
the right, at its option, to terminate this Lease upon written notice to
Landlord.
Tenant shall have the non-exclusive use of two loading docks and one ramp.
Landlord acknowledges that the warehouse space and the use of the loading docks
is an important requirement of Tenant in entering into the Lease. Therefore,
Tenant shall have the right, at its option, to terminate the Lease upon 60 days
written notice to Landlord if Tenant's reasonable use of the loading docks is
adversely affected or restricted.
The parties acknowledge that the rent due hereunder is based on the
calculations set out on Exhibit "C" attached hereto. As shown on such Exhibit,
$125,000 of the renovation costs have been amortized over a five year period
(the "5 year component"). Landlord agrees that if Tenant exercises its options
to extend the term of the Lease, the 5 year component shall be removed from the
calculation of the rent for the extended term of the Lease.
Attached hereto as Exhibit "B" are the improvements to be completed to the
premises. The allowance provided Tenant for such construction costs, including
design costs and a contingency fund, totals $325,000. Any amounts incurred by
Tenant above that amount shall be paid directly by Tenant.
Rate is based on gas annual usage of $0.19/sq.ft. If gas usage increases, rate
will be adjusted annually prorated by square footage.
TELECOM*USA PUBLISHING COMPANY
/s/ A.M. HENDERSON By: /s/ JAMES A. HADDAD
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A.M. Henderson James A. Haddad, Vice President