EXHIBIT 10.21
ASSIGNMENT AND ASSUMPTION OF LEASE
AND CONSENT TO ASSIGNMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND CONSENT TO ASSIGNMENT
(hereinafter the "Assignment") is made and entered into on this 7th day of
November, 2005, by and among AmCore Financial, Inc., ("Assignor"), West
Bancorporation, Inc., ("Assignee"), and Magnum Property Partners No. 1, L.L.C.,
("Landlord").
RECITALS
WHEREAS, Assignor and Landlord entered into a Lease dated the 24th day of
July, 2002, (hereinafter the "Lease"), for certain premises consisting of
approximately 24,410 rentable square feet ("Premises") on the 2nd floor of the
Century II office building, located at 1415 South 28th Street, West Des Moines,
Iowa (the "Building"), the current term of which Lease expires on the 31st day
of October, 2010; and
WHEREAS, Assignor and Assignee desire that all Assignor's right, title,
and interest under the Lease be assigned to Assignee subject to the terms and
conditions set forth herein and with the consent of Landlord.
NOW, THEREFORE, the parties, in consideration of the premises and the
mutual covenants herein contained, intending to be legally bound hereby, agree:
1) Effective on or about December 31, 2005 (the "Effective Date") Assignor
assigns to Assignee its successors and assigns, all right, title, and
interest of Assignor under the Lease.
2) Assignor represents and warrants to Assignee that as of the Effective
Date:
(a) Assignor and, to the best of Assignor's knowledge, Landlord have
complied with and fulfilled all terms and conditions of the Lease
and the Lease is in full force and effect;
(b) Excepting normal wear and tear, the Premises are in at least as
good condition as on the commencement date of this Lease, including
all equipment and facilities within the Premises, which shall
include, but not be limited to, electrical, plumbing and heating,
and air conditioning systems;
(c) Assignor has no knowledge of, nor has it been put on notice of,
any failure of the Premises to be in compliance with any applicable
governmental statutes, laws, rules, orders, regulations, and
ordinances;
(d) All of Assignor's covenants in the Lease have been observed.
3) On and after the Effective Date, Assignee shall comply with all of the
covenants, terms, conditions, and obligations of Assignor under the Lease,
and Assignee shall indemnify, defend and hold Assignor harmless from and
against any and all claims, liabilities, demands, judgments, damages or
expenses of any kind or nature, including, without limitation, reasonable
attorney's fees, arising out of or in any way connected with any default
under the Lease by Assignee occurring on or after the Effective Date.
4) Annual Base Rent and Direct Expenses shall be prorated between the
parties for the remainder of the current calendar year after the Effective
Date, based upon the number of days each of the parties hereto is in
possession of the Premises.
5) Assignee shall use the Premises solely for the purposes as stated in
the Lease.
6) On and after the Effective Date, all notices, consents, requests,
approvals, instructions, and other communications provided for or
permitted under the Lease to be sent to Assignor, shall be sent to
Assignee in writing and delivered by registered or certified mail, first
class postage prepaid, return receipt requested, and addressed to the
attention of the Assignee at the Premises.
7) In the event that this transaction between AMCORE Financial and West
Bancorporation does not take place, this agreement shall be considered
null and void and AMCORE shall remain responsible for the lease.
The terms and conditions of this Assignment shall be binding upon and
inure to the benefit of the parties and their respective heirs, successors, and
assigns.
ASSIGNOR: AMCORE FINANCIAL, INC.
By: /s/ James Waddell
-----------------------------------
Its: Executive Vice President
ASSIGNEE WEST BANCORPORATION, INC.
By: /s/ Thomas E. Stanberry
-----------------------------------
Its: Chairman & CEO
LANDLORD: MAGNUM PROPERTY PARTNERS NO. 1, L.L.C.
A NEBRASKA LIMITED LIABILITY COMPANY
By: Magnum Resources, Inc, a Wyoming corporation,
Its Manager
By: /s/ Kelly A. Walters
-----------------------------------
Name: Kelly A. Walters
Title: Senior Vice President
CENTURY I & II OFFICE BUILDINGS
(2700 WESTOWN PARKWAY, WEST DES MOINES, IOWA)
OFFICE LEASE
MAGNUM PROPERTY PARTNERS NO. 1, L.L.C.,
A NEBRASKA LIMITED LIABILITY COMPANY
LANDLORD
AND
AMCORE FINANCIAL, INC.
TENANT
OFFICE LEASE
THIS OFFICE LEASE (the "Lease") is made and entered into by and between
Magnum Property Partners No. 1, L.L.C., a Nebraska limited liability company
("Landlord"), and AmCore Financial, Inc. ("Tenant"), as of this 24th day of
July, 2002 (the "Effective Date").
Landlord and Tenant specifically agree as follows:
ARTICLE I - DEFINED TERMS AND BASIC TERMS
The terms listed below shall have the following meanings throughout this
Lease:
(a) Landlord: Magnum Property Partners No. 1, L.L.C.,
c/o Magnum Resources, Inc.
11422 Miracle Hills Drive
Suite 400
Omaha, Nebraska 68154
(b) Landlord's Agent: Magnum Resources, Inc
(c) Tenant: AmCore Financial,
Inc. 501 7th
Street Rockford
IL, 61104
Attn: Facilities Office
(d) Complex: Century I & II Office Buildings
2700 Westown Parkway
West Des Moines, Iowa
(e) Building: Century II
(f) Premises: That portion of the 2nd floor, Suite 200
of the Century II Office Building as more
particularly shown on the floor plan
attached as Exhibit "A"
(g) Rentable Area of Building: approximately 97,664 square feet
(h) Rentable Area of Premises: approximately 24,410 square feet
Initial Premises: 17,498 square feet
First Expansion Premises: 3,591 square
feet
Second Expansion Premises: 3,321 square
feet
(i) Premises Delivery Dates: The Premises Delivery Dates for the
Initial Premises, First Expansion
Premises and Second Expansion Premises
are as set forth below, except as the
same can be modified pursuant to the
terms of this Lease
Initial Premises: October 15, 2002
First Expansion Premises: November 1,
2004
Second Expansion Premises: November 1,
2006
(j) Term Commencement Date: November 1, 2002
(k) Term: Eight (8) years
(l) Expiration Date: October 31, 2010
(m) First Expansion Date: The date Tenant takes possession of the
First Expansion Premises but in no event
later than November 1, 2004
(n) Second Expansion Date: The date Tenant takes possession of the
Second Expansion Premises but in no event
later than November 1, 2006
(o) Annual Base Rent Prior to $306,215.00 $17.50 psf
First Expansion Date
(p) Monthly Base Rent Prior to
First Expansion Date $ 25,517.92
(q) Annual Base Rent After
First Expansion Date and
Prior to Second Expansion
Date $369,057.50 $17.50 psf
(r) Monthly Base Rent After
First Expansion Date and
Prior to Second Expansion
Date $ 30,754.80
(s) Annual Base Rent After
First Expansion Date
and Second Expansion Date: $427,175.00 $17.50 psf
(t) Monthly Base Rent After
First Expansion Date and
Second Expansion Date $ 35,597.92
(u) Tenant's Proportionate
Share: (i) 17.9166% prior to the First Expansion
Date; and
(ii) 21.5935% from and after the First
Expansion Date and prior to the Second
Expansion Date; and
(iii) 24.9939% from and after the Second
Expansion Date
(v) Base Year: 2002
(w) Rent Commencement Dates Initial Premises: November 1, 2002 First
Expansion Premises: First Expansion Date
Second Expansion Premises: Second
Expansion Date
(x) Security Deposit: $0.00
(y) Use: General Office Use
(z) Tenant Improvements See Section 10.01
(aa) Tenant's Address for AmCore Financial Inc.
Notices: 501 7th Street
Rockford IL, 61104
Attn: Facilities Office
(ab) Landlord's Address for Magnum Property Partners No. 1, L.L.C.
Notices: C/O Magnum Resources, Inc
11422 Miracle Hills Drive
Suite 400
Omaha, Nebraska 68154
(ac) Tenant's Broker: None
Certain other defined terms are defined when they first appear within the body
of this Lease.
ARTICLE II - PREMISES
Section 2.01. Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises, for the Term and subject to the
agreements, conditions and provisions contained in this Lease to each and all of
which Landlord and Tenant hereby mutually agree.
Section 2.02. Rentable Area. The Rentable Area of the Premises and the
Rentable Area of the Building shall mean the amounts as set forth in Article I.
During the Term and after alterations or changes to the Premises or Building,
Landlord shall have the right to redetermine the Rentable Area of the Premises,
and the Rentable Area of the Building so long as such redetermination does not
change the amount due for Base Rent or Tenant's Proportionate Share of Direct
Expenses hereunder. Any re-measurement of the Building or the Premises shall be
completed in a manner consistent with the standards set forth by Building Owner
Manager's Association ("BOMA").
Section 2.03. Common Areas. "Common Areas" shall mean any lobby, plaza and
sidewalk areas, any surface parking areas and other similar areas of general
access and the areas on individual floors in the Building devoted to corridors,
fire vestibules, elevators, foyers, lobbies, electric and telephone closets,
stairways, rest rooms, mechanical rooms, janitor's closets, and other similar
facilities and shall also mean those areas of the Building devoted to mechanical
and service rooms and levels servicing the Building and basement, mezzanine and
penthouse service facilities.
Section 2.04 Expansion Space. Tenant shall have the right to occupy the
First Expansion Space or the Second Expansion Space at any time after the Term
Commencement Date, subject to the following provisions.
(a) First Expansion Space: In the event Tenant uses all or any portion of
the First Expansion Space at any time after the Term Commencement Date but prior
to the First Expansion Date for storage purposes only, Tenant shall pay Landlord
Base Rent for the First Expansion Space at the rate of $7.00 per rentable square
foot. In the event Tenant uses all or any portion of the First Expansion Space
at any time after the Term Commencement Date but prior to the First Expansion
Date for business operation purposes, Tenant shall pay Landlord Monthly Base
Rent as set forth in Article I, subparagraph I and Tenant's Proportionate Share
shall be increased to the amount set forth in Article I, subparagraph (u) (ii).
The payment of Monthly Base Rent and Adjustment Rent for the First Expansion
Premises shall commence on the date Tenant shall commence using the First
Expansion Premises for business operation purposes, but in no event later than
the First Expansion Date, and shall continue through the Expiration Date of the
Lease.
(b) Second Expansion Space: In the event Tenant uses all or any portion of
the Second Expansion Space at any time after the Term Commencement Date but
prior to the Second Expansion Date for storage purposes only, Tenant shall pay
Landlord Base Rent for the Second Expansion Space at the rate of $7.00 per
rentable square foot. In the event Tenant uses all or any portion of the Second
Expansion Space at any time after the Term Commencement Date but prior to the
Second Expansion Date for business operation purposes Tenant shall pay Landlord
Monthly Base Rent as set forth in Article I, subparagraph (t) and Tenant's
Proportionate Share shall be increased to the amount set forth in Article I,
subparagraph (u) (ii). The payment of Monthly Base Rent and Adjustment Rent for
the Second Expansion Premises shall commence on the date Tenant shall commence
using the Second Expansion Premises for business operation purposes, but in no
event later than the Second Expansion Date, and shall continue through the
Expiration Date of the Lease.
ARTICLE III - TERM
Section 3.01. Initial Term. Upon the Premises Delivery Date and prior to
the occurrence of the Term Commencement Date, the terms and provisions hereof
shall be fully binding upon Landlord and Tenant. If Landlord is unable to tender
possession of the Premises to Tenant on or before the Premises Delivery Date,
the Term Commencement Date shall be extended one day for each day of such delay
and the Expiration Date shall be extended to end on the last day of the eighth
consecutive full lease year as said term "Lease Year" is hereinafter defined. In
the event Landlord is unable to deliver possession of the Premises due to delays
caused by the acts or omissions of Tenant said Term Commencement Date and Rent
Commencement Date shall not be extended as set forth herein. In the event
Landlord is unable to deliver possession of the Initial Premises within sixty
(60) days after the Premises Delivery Date for the Initial Premises, then Tenant
may terminate this Lease. Except as set forth above, no failure to tender
possession of the Initial Premises to Tenant on or before the Premises Delivery
Date for the Initial Premises shall in any way affect any other obligations of
Tenant hereunder. Tenant's acceptance of possession of the Premises upon
Landlord's tender thereof shall constitute Tenant's acknowledgment that the
Premises are in good order and satisfactory condition; provided, if there are
any improvements to be constructed by Landlord within the Premises pursuant to
Section 10.01, Tenant may provide to Landlord at the time of tender of
possession, and Tenant's possession shall be subject to, a written punch-list
for any such incomplete or unfinished improvements.
Section 3.02. Lease Year Defined. The term "Lease Year" as used herein
shall mean a period of twelve (12) consecutive full calendar months. The first
Lease Year shall begin on the Term Commencement Date if the Term Commencement
Date shall occur on the first day of a calendar month; if not, then the first
Lease Year shall commence upon the first day of the calendar month next
following the Term Commencement Date. Each succeeding Lease Year shall commence
upon the anniversary date of the first Lease Year.
Section 3.03. Option Term.
(a) Subject to the conditions set forth in subparagraph (b) below, Tenant
is granted two (2) options to renew this Lease for additional renewal periods of
four (4) years each. The "First Renewal Term" shall commence on the date
following the Expiration Date of the Initial Term and shall extend for a period
of four (4) years. The "Second Renewal Term" shall commence on the date
following the Expiration Date of the First Renewal Term and shall extend for a
period of four (4) years. Said options to renew this Lease shall be on the same
terms, conditions, provisions and covenants as are set forth herein, except as
specifically set forth hereinafter:
(i) Annual Base Rent during the First Renewal Term shall be
$463,790.00 ($19.00 per rentable square foot). The Monthly Base Rent
during the First Renewal Term shall be $38,649.17. The Base Year shall
remain the same for the First Renewal Term.
(ii)Annual Base Rent during the Second Renewal Term shall be
$488,200.00 ($20.00 per rentable square foot). The Monthly Base Rent
during the Second Renewal Term shall be $40,683.33. The Base Year shall
remain the same for the Second Renewal Term.
(b) The renewal terms set forth herein shall be conditioned upon and
subject to each of the following: (i) Tenant shall notify Landlord in writing of
Tenant's exercise of the First Renewal Term no earlier than twelve (12) months
and no later than six (6) months prior to the expiration of the Initial Term and
shall notify Landlord in writing of Tenant's exercise of the Second Renewal Term
no earlier than twelve (12) months and no later than six (6) months prior to the
expiration of the First Renewal Term; (ii) at the time Landlord receives
Tenant's notice as provided in subparagraph (b)(i) above and at the scheduled
commencement of the renewal term no Event of Default shall exist under this
Lease.
(c) This options to renew shall be deemed personal to Tenant named herein
and may not be exercised by any permitted assignee or subtenant hereunder,
except an Affiliate of Tenant as set forth in Section 12.01.
(d) Landlord shall have no obligation to improve or perform any work on or
to the Premises or otherwise provide or contribute any tenant improvement
allowance as a result of the exercise of Tenant's options to renew.
Section 3.04. Termination Option.
(a) Tenant shall have an option (the "Termination Option") to terminate
the Lease effective as of the last day of the fifth year of the Term of this
Lease (the "Termination Date"). The Termination Option is granted subject to the
following terms and conditions: (i) Tenant shall give Landlord written notice of
Tenant's election to exercise the Termination Option and of the applicable
Termination Date, which notice is given not later than nine (9) months prior to
such Termination Date; (ii) no Event of Default has occurred under the Lease
either on the date that Tenant exercises the Termination Option or on the
Termination Date; and (iii) Tenant shall pay to Landlord, concurrently with
Tenant's exercise of the Termination Option, a lease termination fee of an
amount equal to (1) the unamortized brokerage fees paid in connection with the
execution of this Lease, plus (2) the unamortized cost of the Initial
Improvements as set forth in Section 10.01 of this Lease, plus (3) nine (9)
months Base Monthly Rent (the "Fee").
(b) If Tenant timely and properly exercises the Termination Option, then:
(i) the Lease shall terminate effective as of the Termination Date and Rent
shall be paid through the Termination Date (in addition to payment by Tenant of
the Fee); and (ii) Tenant shall surrender and vacate the Premises and deliver
possession thereof to Landlord on or before the Termination Date in the
condition required pursuant to the Lease.
(c) The Termination Option shall automatically terminate and become null
and void upon the earlier to occur of (i) the termination of Tenant's right to
possession of all or any part of the Premises pursuant to the terms of the
Lease; (ii) the assignment of the Lease by Tenant, in whole or in part, except
to an Affiliate as defined in Section 12.01; (iii) the sublease by Tenant of all
or any part of the Premises, except to an Affiliate as defined in Section 12.01;
or (iv) the failure of Tenant to timely or properly exercise the Termination
Option.
ARTICLE IV - BASE RENT
Section 4.01. Base Rent. Tenant shall pay to Landlord for the use of the
Premises (in addition to the Adjustment Rent as described in Article VI below)
an Annual Base Rent in an amount specified in Article I, payable without notice
or demand in equal monthly installments in advance, beginning on the Term
Commencement Date and on the first day of each calendar month thereafter during
the Term in the amount of the Monthly Base Rent specified in Article I;
provided, however, that so long as no Event of Default occurs, Tenant shall not
be obligated to make any payments of Monthly Base Rent until the later of: a)
Rent Commencement Date specified in Article I; or b) the date Landlord delivers
possession of the Initial Premises, at which time Tenant's obligation to pay
Monthly Base Rent shall commence.
Section 4.02. Payment. All payments required to be made by Tenant under
this Lease shall be in lawful money of the United States of America and shall be
made without any set off, deduction or counterclaim whatsoever and shall be made
payable to and delivered to Landlord at the office of Landlord or such other
place as Landlord may designate. Notwithstanding the foregoing, Landlord, in its
sole discretion, may require all payments made by Tenant under this Lease to be
made through a debit payment entry or other electronic transfer directly to a
demand deposit account designated by Landlord.
Section 4.03. Partial Months. If the Rent Commencement Date is a day other
than the first day of a calendar month or if the Term expires or is terminated
on a day other than the last day of a calendar month, then the Monthly Base Rent
for such fractional months shall be prorated on the basis of the number of days
elapsed in the subject month.
ARTICLE V - DIRECT EXPENSES AND TAXES
Section 5.01. Definition of Direct Expenses. "Direct Expenses" as used
herein shall include all costs, charges, expenses and disbursements of every
kind, nature and character incurred in the course of ownership, management,
administration, operation, repair, replacement, security and maintenance of the
Building, the Premises, the Common Areas, the areas adjacent thereto, and all
related improvements and appurtenances thereto, including, without limitation:
(a) Wages, salaries and other compensation, expenses, benefits, and other
sums payable, as well as any adjustment thereto, for employees, independent
contractors and agents of Landlord.
(b) Costs and payments of service, maintenance, repair, replacement and
inspection for the following: landscaping, lawns, trees, shrubbery, janitorial,
windows, window cleaning, rubbish removal, exterminating, Parking Areas and
drives, elevator, escalator, life and safety, security, plumbing,
telecommunication, electrical and mechanical equipment (including, but not
limited to HVAC) or installations and the costs of purchasing or renting all
such additional mechanical installations and equipment, service contacts,
painting, exterior waterproofing and caulking, wall covering, carpeting,
bathroom repairs and modernization, building identification signs (except those
relating to a specific tenant), roof maintenance, repair and replacement,
equipment, supplies, tools, materials and uniforms.
(c) Premiums and other charges for insurance, including without
limitation, all risk, earthquake, public liability, property damage and workers'
compensation insurance, cost of insurance deductibles and charges, and such
other insurance coverage in such amounts as Landlord, in its sole discretion,
shall elect to maintain.
(d) Costs of electricity, water, gas, steam, sewer and other utility
services.
(e) Sales, use and excise taxes on goods and services purchased or
furnished by Landlord.
(f) License, permit, testing and inspection costs and fees.
(g) Attorneys', accountants' and consultants' fees.
(h) Fees for local civic organizations and dues for professional and trade
associations, including without limitation, any amount paid to local civic
groups for the betterment of the neighborhood in which the Complex is located.
(i) Fees for management and accounting services and costs incidental
thereto, whether provided by an independent management company, Landlord, or an
affiliate of Landlord. Said management fee shall not exceed an amount equal to
the management fees customarily charged in the Des Moines, Iowa suburban market.
(j) The costs of any improvements, equipment or devices installed or paid
for by Landlord in order to conform with any laws, rules, regulations or
requirements of any governmental or quasi-governmental authority having
jurisdiction or of the Board of Fire Underwriters or similar insurance body.
(k) The costs of any improvements (including improvements required by
law), equipment or devices installed or paid for by Landlord and reasonably
intended to effect a labor saving, energy saving measure or to effect other
economies in the operation or maintenance of the Complex. Such costs shall be
amortized over the shorter of the useful life of the improvements, or the period
over which the labor or energy saving costs equal the improvement cost. In
addition such costs shall not exceed the savings achieved from such
improvements.
(l) "Direct Expenses" shall not include: expenses for repairs,
replacements, and general maintenance paid by proceeds from insurance or by
Tenant or other third parties; alterations attributable solely to Tenants of the
Building other than Tenant; principal and interest payments made by Landlord on
mortgages on the Building; depreciation; and leasing commissions.
Direct Expenses shall specifically exclude the following:
1. Advertising or real estate broker's commissions;
2. Leasing commissions, attorney's fees, costs and disbursements and
other expenses incurred in connection with negotiations or disputes
with tenants, or prospective tenants;
3. Expenses incurred in renovating or otherwise improving or
decorating, painting or redecorating space for tenants;
4. Except as set forth in Section 5.01 subparagraphs (j) and (k) of
this Lease, any expenses that are considered to be capital expenses
shall be excluded from Direct Expenses. Capital expenses are more
specifically defined as (a) costs incurred in connection with the
original construction of the Building or with any major changes to
same, including but not limited to, additions or deletions of
corridor extensions, renovations and improvements of the common
areas beyond the costs caused by normal wear and tear and upgrades
or replacements of major Building systems; (b) costs of correcting
defects (including latent defects), including any allowances for
same, in the construction of the Building or its related facilities;
(c) costs incurred in renovating or otherwise improving, designing,
redesigning, decorating or redecorating space for tenants or other
occupants in the Building or other space leased or held for lease in
the Building.
5. Overhead and profit increment paid to subsidiaries or affiliates of
Landlord for services on or to the real property, to the extent only
that the costs of such services exceed competitive costs of such
services were they not so rendered by a subsidiary or affiliate;
6. Interests on debt or amortization payments on any mortgage or
mortgages, and rental under any ground or underlying leases or
lease;
7. Cost of refinancing any present or future mortgage
8. Costs and expenses incurred by Landlord to remove, enclose or
encapsulate any asbestos or hazardous materials or wastes which were
not brought onto the Premises by Tenant;
9. Attorneys' fees and disbursements and other costs in connection with
any judgment, settlement or arbitration resulting from any tort
liability on the part of Landlord and the amount of such settlement
or judgment;
10. Charitable and political contributions made by Landlord;
11. Salaries of employees above the level of building superintendent or
an equivalent position;
12. Any costs, fines or penalties incurred due to violations by Landlord
of any governmental rule or authority.
(m) "Prime Rate" shall mean the base rate (or its equivalent) of interest
announced publicly in New York, New York from time to time by Citibank, N.A. (or
if Citibank, N.A. ceases to exist, the largest bank headquartered in the State
of New York), but in no event in excess of the maximum rate of interest
permitted by law.
Section 5.02. Taxes. "Taxes" as used herein shall include all taxes,
assessments and charges (including costs and expenses (including without
limitation, legal fees and disbursements) of contesting the amount or validity
thereof by appropriate administrative or legal proceedings) levied upon or with
respect to the Building or any personal property of Landlord, or Landlord's
interest in the Building or such personal property, including without
limitation, all real property taxes and general and special assessments;
charges, fees, levies or assessments for transit, housing, police, fire or other
governmental services or purported benefits to the Building; service payments in
lieu of taxes; and any tax, fee or excise on the act of entering into this Lease
or any other lease of space in the Building, on the use or occupancy of the
Building or any part thereof, or on the rent payable under any lease or in
connection with the business of renting space in the Building, which may now or
hereafter be levied or assessed against Landlord by the United States of
America, the State of Iowa, or any political subdivision, public corporation,
district or other political or public entity, and any other tax, fee or other
excise, however described, that may be levied or assessed as a substitute for,
or as an addition to (in whole or in part) any other property taxes, whether or
not now customary or in the contemplation of the parties on the date of this
Lease. If the Building is taxed to the Landlord as a larger parcel, Landlord may
allocate such tax among all the Buildings.
Section 5.03. Additional Taxes. In addition to the Monthly Base Rent,
Adjustment Rent and other charges to be paid by Tenant hereunder, Tenant shall
reimburse Landlord upon demand for any and all taxes, surcharges, levies,
assessments, fees and charges payable by Landlord, whether or not now customary
or within the contemplation of the parties hereto: (a) upon, measured by or
reasonably attributable to the cost or value of Tenant's equipment, furniture,
fixtures and other personal property located in the Premises, or the cost or
value of any leasehold improvements, regardless of whether title to such
improvements shall be in Tenant or Landlord; (b) upon, or measured by, any rent
or other amounts payable hereunder, including, without limitation, any gross
income tax, gross receipts tax or excise tax levied by the City of West Des
Moines, State of Iowa, the federal government of the United States or any other
governmental body with respect to the receipt of such rent or other amounts; (c)
upon, or with respect to, the possession, leasing, operation, management,
maintenance, alteration, repair, restoration, use or occupancy by Tenant of the
Premises or any portion thereof; or (d) upon this transaction or any document to
which Tenant is a party creating or transferring an interest or an estate in the
Premises.
Notwithstanding anything contained in this Article to the contrary, Taxes shall
not include any federal and state taxes on income, capital stock, succession,
transfer, franchise, gift, estate or inheritance taxes; provided, however, if at
any time during the Term, a tax or excise on income is levied or assessed by any
governmental entity, in lieu of or as a substitute for, in whole or in part,
real estate taxes or other ad valorem taxes, such tax shall constitute and be
included in Taxes.
ARTICLE VI - ADJUSTMENT RENT
Section 6.01. Adjustment Rent. Tenant shall pay to Landlord (in addition
to the Annual Base Rent, as described in Article IV above) an amount equal to
Tenant's Proportionate Share of (a) the increase in Direct Expenses for any
calendar year over the Direct Expenses for the Base Year, and (b) the increase
in Taxes for any calendar year over the Taxes for the Base Year (collectively
the "Adjustment Rent"). Prior to each calendar year, Landlord shall estimate the
amount of Adjustment Rent due for such year, and Tenant shall pay Landlord
one-twelfth (1/12th) of such estimate on the first day of each month during such
year with Tenant's payment of the Monthly Base Rent. Such estimate may be
revised by Landlord not more than once per calendar year. After the end of each
calendar year, Landlord shall deliver to Tenant a report setting forth the
actual Direct Expenses and Taxes for such calendar year and a statement in the
amount of Adjustment Rent that Tenant has paid and is payable for such year.
Within thirty (30) days after receipt of such report, Tenant shall pay to
Landlord the amount of Adjustment Rent due for such calendar year minus any
payments of estimated Adjustment Rent made by Tenant for such year. If Tenant's
estimated payments of Adjustment Rent exceed the amount due Landlord for such
calendar year, Landlord shall, provided Tenant is not then in default hereunder
beyond any applicable grace and notice periods, apply such excess as a credit
against Tenant's other payment obligations under this Lease or promptly refund
such excess to Tenant if the Term has already expired, in either case without
interest to Tenant. In the event Landlord shall fail to give Tenant an estimate
of Adjustment Rent prior to the beginning of any calendar year, Tenant shall
continue to pay Adjustment Rent at the rate for the previous calendar year until
Landlord delivers such estimate. Notwithstanding the foregoing, Landlord's
obligation to credit Tenant's account pursuant to this Section 6.01 shall be
conditional upon Tenant having first paid all of its monthly installments toward
Tenant's Share of the estimated Direct Expenses and Taxes pursuant to this
Section.
Section 6.02. Occupancy. If during all or any portion of any year
(including the Base Year) the Building is not at least ninety-five percent (95%)
rented and occupied, Landlord shall make an appropriate adjustment of Direct
Expenses and Taxes for such year to determine the Direct Expenses and Taxes that
would have been paid or incurred by Landlord had the Building been at least
ninety-five percent (95%) rented and occupied for the entire year and the amount
so determined shall be deemed to be the Direct Expenses and Taxes for such year.
Notwithstanding the foregoing, (a) only those components of Direct Expenses that
are affected by variations in occupancy levels in the Building shall be adjusted
pursuant to this clause, and (b) the Direct Expenses collected from tenants
shall never exceed the actual costs incurred by Landlord for the Direct Expenses
Section 6.03. Review. Tenant shall have the right, at its cost, upon
reasonable prior written notice to Landlord, to inspect Landlord's accounting
records relative to Direct Expenses and Taxes during normal business hours at
Landlord's offices in Omaha, Nebraska, at any time within ninety (90) days
following the furnishing to Tenant of the annual statement of Adjustment Rent;
and, unless Tenant shall take written exception to any item in any such
statement within such ninety (90) day period, such statement shall be considered
as final and accepted by Tenant.
Section 6.04. Survival. In the event of the termination of this Lease
prior to any determination of Adjustment Rent, Tenant's agreement to pay any
such sums and Landlord's obligation to refund any such sums shall survive the
termination of this Lease.
ARTICLE VII - SECURITY DEPOSIT
This Article has been intentionally omitted.
ARTICLE VIII - USE
Section 8.01. General. The Premises shall be used only for the Use
specified in Article I and for no other use or purpose.
Section 8.02. No Nuisance or Waste. Tenant shall not do or permit anything
to be done in, or about the Premises which will in any way obstruct or interfere
with the rights of Landlord and other tenants or occupants or invitees of the
Building or injure or annoy them or use or allow the Premises to be used for any
improper, immoral or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on, or about the Building or the Premises. Tenant shall
not commit or suffer the commission of any waste in, on, or about the Building
or the Premises.
Section 8.03. No Illegal Use. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance, or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated or which conflicts with any
certificate of occupancy for the Building or is prohibited by the Rules and
Regulations attached hereto as Exhibit "B" (the "Rules and Regulations"). Tenant
shall not do or permit anything to be done in or about the Premises or bring or
keep anything therein which will in any way increase the rate of applicable
insurance upon the Building or any of its contents, and Tenant shall, at its
sole cost and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations, and requirements now in force or which may
hereafter be in force, and with the requirements of any Board of Fire
Underwriters or other similar body now or hereafter constituted relating to or
affecting Tenant's use or occupancy of the Premises.
Section 8.04. Alterations to Common Areas. If changes or alterations are
made by Landlord to any portion of the Building, including, without limitation,
the Common Areas, Landlord shall not thereby be subject to any liability nor
shall Tenant be entitled to any compensation or any reduction or abatement of
rent and such changes or alterations shall not be deemed to be a constructive or
actual eviction or a breach of Landlord's covenant of quiet enjoyment. In the
event of any such changes or alterations, Landlord agrees to use reasonable good
faith efforts to avoid unreasonable interference with Tenant's use of the
Premises.
Section 8.05. Hazardous Substances. In the event Tenant knows, or has
reasonable cause to believe, that any release by Tenant of a hazardous substance
has come to be located on, within or beneath the Premises or the Building,
Tenant shall give written notice of such condition to Landlord and Tenant shall
comply with all statutes, laws, ordinances, rules, regulations and orders of
governmental authorities with respect to any such hazardous substances.
ARTICLE IX - SERVICES AND UTILITIES
Section 9.01. General. During the Term Landlord shall:
(a) Operate or cause the operation of the heating, ventilating and air
conditioning ("HVAC") system serving the Premises from 8:00 a.m. to 7:30 p.m.,
Monday through Friday (Saturday from 8:00 a.m. to 1:00 p.m.), except for state
and national holidays which are customarily observed in the West Des Moines,
Iowa metropolitan area ("Ordinary Business Hours") at temperatures reasonably
determined by Landlord to be consistent with other comparable office buildings
in the West Des Moines, Iowa metropolitan area, subject to any governmental,
municipal or public utility rules or regulations. Any HVAC provided by Landlord
to Tenant during other than Ordinary Business Hours shall be furnished only upon
the prior request of Tenant delivered before 5:00 p.m. on the preceding business
day and Tenant shall pay Landlord's then customary charges for such services.
Tenant shall also be responsible for and shall pay Landlord any additional costs
(including, without limitation, the costs of installation of additional HVAC
equipment, if required by Landlord) incurred because of the failure of the HVAC
system to perform its function due to (i) arrangement of partitioning in the
Premises or changes or alterations thereto, or (ii) from occupancy of the
Premises exceeding one person per two hundred (200) square feet of Rentable
Area, or (iii) from failure of Tenant after notice from Landlord to keep all
HVAC vents within the Premises free of obstruction. Tenant at all times agrees
to cooperate fully with Landlord and to abide by the reasonable regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the HVAC system. Landlord, its contractors and agents throughout
the Term, shall have free access to any and all mechanical installations of
Landlord or Tenant, including, but not limited to, air-cooling, fan, ventilating
and machine rooms and electrical and telephone closets; and Tenant agrees there
shall be no construction of partitions or other obstructions which may interfere
with Landlord's free access thereto, or interfere with the moving of Landlord's
equipment to and from the enclosures containing such installations. Tenant
further agrees that neither Tenant, nor its agents, employees or contractors
shall at any time enter the said enclosures or tamper with, adjust or touch or
otherwise in any manner affect such mechanical installations.
(b) Subject to any governmental, municipal or public utility rules or
regulations and to the Rules and Regulations, furnish electricity for normal
lighting and fractional horsepower office machines, the cost of which shall be
included in Direct Expenses. Tenant shall not, without the prior written consent
of Landlord, use any apparatus or device in the Premises which will in any way
increase the amount of electricity used above that usually furnished or supplied
for the use of the Premises as general office space; nor connect any apparatus
or device with electric current lines except through existing electrical outlets
in the Premises. If Tenant desires to use electric current in excess of that
usually furnished or supplied for the use of the Premises as general office
space, Tenant shall request the same from Landlord in writing. If such request
is granted, Landlord may cause an electrical current meter to be installed in
the Premises to measure the amount of electric current consumed. Tenant agrees
to pay promptly upon demand therefor from Landlord, the cost of any such meter
and of the installation, maintenance and repair thereof, and the charges for all
electric current consumed as shown by said meters in excess of the amount
consumed in connection with the use of the Premises as general office space, at
the rates charged for such services by the utility furnishing the same, plus any
additional expense incurred in keeping account of the electric current so
consumed. If a separate meter is not installed, Tenant agrees to pay the cost
for such excess electric current as established by an estimate of the amount of
such excess use made by a utility company or electrical engineer selected by
Landlord.
(c) Provide access to water in the lavatories in the Building and operate,
maintain, clean, light, heat, ventilate and/or air condition as applicable those
portions of the Common Areas available for tenant usage. Tenant waives all
claims against Landlord for losses due to theft or burglary, or for damages done
by unauthorized persons in the Building.
(d) Provide such janitorial service as Landlord deems appropriate, subject
to access being granted to the person or persons employed or retained by
Landlord to perform such work. A description of the services currently provided
by Landlord is attached to this Lease as Exhibit "D." Landlord maintains the
right to change or amend such services at any time during the term of this
Lease, provided that Landlord does not materially change the scope of work.
Section 9.02. Supplementary Services. Tenant shall pay Landlord, at the
charges established by Landlord from time to time, for all supplementary
services requested by Tenant and provided by Landlord or its agents, which
charges shall be payable by Tenant within ten (10) days after receipt of
Landlord's invoice. Such supplementary services may include, without limitation,
maintenance, repair, janitorial, cleaning, HVAC and other services in addition
to those described in section 9.01 above or otherwise provided during hours
other than Ordinary Business Hours.
Section 9.03. Interruption of Access, Use or Services. Landlord shall not
be liable for any failure to provide access to the Premises, to assure the
beneficial use of the Premises or to furnish any services or utilities when such
failure is caused by natural occurrences, riots, civil disturbances,
insurrection, war, court order, public enemy, accidents, breakage, repairs,
strikes, lockouts, other labor disputes, the making of repairs, alterations or
improvements to the Premises or the Building, the inability to obtain an
adequate supply of fuel, gas, steam, water, electricity, labor or other supplies
or by any other condition beyond Landlord's reasonable control, and Tenant shall
not be entitled to any damages resulting from such failure, nor shall such
failure relieve Tenant of the obligation to pay all sums due hereunder or
constitute or be construed as a constructive or other eviction of Tenant. If any
governmental entity promulgates or revises any statute, ordinance or building,
fire or other code, or imposes mandatory or voluntary controls or guidelines on
Landlord or the Building or any part thereof, relating to the use or
conservation of energy, water, gas, steam, light or electricity or the provision
of any other utility or service provided with respect to this Lease, or if
Landlord is required or elects to make alterations to the Building in order to
comply with such mandatory or voluntary controls or guidelines, Landlord may, in
its sole discretion, comply with such mandatory or voluntary controls or
guidelines, or make such alterations to the Building. Neither such compliance
nor the making of such alterations shall in any event entitle Tenant to any
damages, relieve Tenant of the obligation to pay any of the sums due hereunder,
or constitute or be construed as a constructive or other eviction of Tenant.
ARTICLE X - ALTERATIONS
Section 10.01 Initial Improvements Landlord or its agents shall construct
the initial improvements to configure the Premises as shown on Tenant's floor
plan, attached hereto as Exhibit "A," using Building standard materials (the
"Initial Improvements"). The architectural plans and specifications for the
Initial Improvements shall be prepared by Landlord's architect and shall be
mutually approved by Landlord and Tenant. Tenant shall fully cooperate with
Landlord in constructing the Initial Improvements. Notwithstanding the foregoing
to the contrary, any changes requested or made in the Initial Improvements
("Change Orders") shall be at Tenant's sole cost and expense. No Change Orders
will be made without the prior written consent of Landlord after written request
therefor by Tenant. Landlord shall be not obligated to incorporate such Change
Orders into the Initial Improvements until Tenant shall have paid Landlord's
reasonable estimate of the cost of such Change Order.
Section 10.02. Alterations. Tenant shall not make or suffer to be made any
future alterations, additions or improvements (collectively "Alterations") in,
on or to the Premises or any part thereof without the prior written consent of
Landlord, which consent will not be unreasonably withheld; provided, however,
Landlord may withhold its consent in its sole discretion if any proposed
Alterations may adversely affect the structure or safety of the Building, the
electrical, plumbing, HVAC, mechanical or life safety systems of the Building.
When applying for any such consent, Tenant shall comply with the requirements of
Exhibit "C". If Landlord consents to the making of any Alterations, the same
shall be made by Tenant at Tenant's sole cost and expense or, if Landlord and
Tenant so agree, by Landlord at Tenant's sole cost and expense. Tenant's Initial
Improvements and any subsequent Alterations shall be the property of Tenant.
ARTICLE XI - REPAIRS
No representations, except as contained herein, have been made to Tenant
respecting the condition of the Premises or the Building, and the acceptance of
possession of the Premises by Tenant shall be conclusive evidence as against
Tenant that the Premises are now in a tenantable and good condition. Tenant
shall take good care of the Premises and shall make all repairs as and when
necessary in order to preserve the Premises in good working order and condition.
In addition, Tenant shall reimburse Landlord, within ten (10) days after demand,
for the cost of any and all structural or nonstructural repairs, replacements or
maintenance necessitated or occasioned by the acts, omissions or negligence of
Tenant or any person claiming through or under Tenant, or any of their servants,
employees, contractors, agents, visitors or licensees, or by the use or
occupancy or manner of use or occupancy of the Premises by Tenant or any such
person. Landlord shall not be liable for, and there shall be no abatement of
rent with respect to any injury to or interference with Tenant's business
arising from any repairs, maintenance, alteration or improvement in or to any
portion of the Premises, the Common Areas or the Building or in or to the
fixtures, appurtenances or equipment therein. Tenant hereby waives all right to
make repairs at Landlord's expense under any statute or common law and instead,
all improvements, repairs and/or maintenance expenses incurred with respect to
the Premises shall be at the expense of Tenant, and shall be considered as part
of the consideration for leasing the Premises. All damages or injury done to the
Premises by Tenant or by any person who may be in or upon the Premises with
Tenant's consent or at Tenant's invitation, shall be repaired with material of
equal or better quality than the then existing installation of Building Standard
materials and Tenant shall, at the termination of this Lease, surrender the
Premises to Landlord in as good condition and repair as when accepted by Tenant,
reasonable wear and tear excepted.
ARTICLE XII - ASSIGNMENT AND SUBLETTING
Section 12.01. General. Tenant shall not, without the prior written
consent of Landlord: (a) assign, mortgage, pledge, encumber or otherwise
transfer this Lease, the term or estate hereby granted, or any interest
hereunder; (b) permit the Premises or any part thereof to be utilized by anyone
other than Tenant (whether as concessionaire, franchisee, licensee, permittee or
otherwise); or (c) except as hereinafter provided, sublet or offer or advertise
for subletting the Premises or any part thereof. Subject to the provisions of
this Lease and this Article, Landlord shall not withhold its consent to a
proposed assignment or sublease so long as no Event of Default (as hereinafter
defined) then exists, the use of the Premises by the proposed assignee or
sublessee would be permitted under Section 8.01 hereof, and the proposed
assignee or sublessee is of good business reputation and of sound financial
condition, as solely determined by Landlord. Tenant acknowledges, however, that
one or more existing or future mortgagees of a Mortgage (as hereinafter defined)
affecting the Premises may have the right to approve any such assignment,
sublease or other transfer, before Tenant may carry it out, and that, whenever
such is the case, Landlord shall withhold its consent to the assignment,
sublease or other transfer if any such mortgagee withholds its consent thereto.
Any assignment, mortgage, pledge, encumbrance, transfer or sublease without
Landlord's consent shall be voidable and, at Landlord's election, shall
constitute an Event of Default. The acceptance of any Monthly Base Rent or other
payments by Landlord from a proposed transferee shall not constitute consent to
such assignment or sublease by Landlord or a recognition of any transferee, or a
waiver by Landlord of any failure of Tenant or such other transferor to comply
with the provisions of this Article XII.
Notwithstanding the foregoing, Tenant may at any time assign this lease or
sublet all or a portion of the Premises to an Affiliate of Tenant (as defined
herein) without the consent of Landlord and without triggering any recapture
right of Landlord. As used herein "Affiliate" shall mean any corporation,
partnership or other business entity which controls, is controlled by or is
under common control with Tenant or which acquires substantially all of the
assets or stock of Tenant or which survives a merger with Tenant. No such
assignment or subletting shall release or discharge Tenant from its obligations
under the lease.
Section 12.02. Notice and Procedure. If at any time during the Term,
Tenant desires to assign or sublet all or any part of the Premises, then at
least thirty (30) days, but not more than one hundred twenty (120) days, prior
to the date when Tenant desires the assignment or subletting to be effective
(the "Transfer Date"), Tenant shall give Landlord a notice (the "Transfer
Notice") which shall set forth the name, address and business of the proposed
assignee or sublessee, information (including financial statements and
references) concerning the character of the proposed assignee or sublessee, a
detailed description of the space proposed to be assigned or sublet, which must
be a single, self-contained unit of not less than 1,000 rentable square feet
(the "Space"), any rights of the proposed assignee or sublessee to use Tenant's
improvements and the like, the Transfer Date, the proposed use for the Space,
the term and the fixed rent and/or other consideration and all other material
terms and conditions of the proposed assignment or subletting, all in such
detail as Landlord may reasonably require. If Landlord requests additional
detail, the Transfer Notice shall not be deemed to have been received until
Landlord receives such additional detail. Landlord shall have the option,
exercisable by giving notice to Tenant at any time within twenty (20) days after
Landlord's receipt of the Transfer Notice, in the case of an assignment or
sublease, to terminate this Lease as to the Space as of the date (the
"Termination Date") set forth in Landlord's notice, in which event Tenant shall
be relieved of all further obligations hereunder as to the Space as of the
Termination Date. No failure of Landlord to exercise such option with respect to
the Space shall be deemed to be Landlord's consent to the assignment or
subletting of all or any portion of the Space. If Landlord does not exercise
such option, Tenant shall be free to assign or sublet the Space to any entity or
person upon receipt of Landlord's prior written consent, but only if Tenant's
proposed assignment or sublease complies with the terms and provisions of this
Article XII and each of the following conditions:
(a) no Event of Default then exists under this Lease;
(b) the assignment or sublease shall be on the same terms set forth in the
Transfer Notice given to Landlord;
(c) no assignment or sublease shall be valid, and no assignee or sublessee
shall take possession of the Space, until an executed counterpart of the
assignment or sublease has been delivered to Landlord;
(d) no assignee or sublessee shall have a right further to assign or
sublet;
(e) any proposed subletting would not result in more than two subleases of
portions of the Premises being in effect at any one time during the Term;
(f) the Monthly Base Rent (adjusted on a rentable square foot basis) shall
be at or higher than the Monthly Base Rent then being agreed upon by Landlord on
new leases in the Building for comparable size space for comparable terms and
Tenant shall not grant greater concessions to the assignee or sublessee than is
then being offered by Landlord (adjusted on a rentable square foot basis) to new
tenants leasing a comparable amount of space for a comparable period of time;
(g) no assignee or sublessee shall be an existing tenant of the Building;
(h) no assignee or sublessee shall be a governmental entity or otherwise
immune from the jurisdiction of the courts of the State of Iowa; and
(i) fifty percent (50%) of any sums or other economic consideration
received by Tenant as a result of such assignment or subletting (except
reasonable leasing commissions) whether denominated rent or otherwise, which
exceed, in the aggregate, the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated as to any sublease to reflect obligations
allocable to that portion of the Premises subject to such sublease) shall be
payable monthly to Landlord as additional rent under this Lease, without
affecting or reducing any other obligation of Tenant hereunder.
Section 12.03. Continuing Liability of Tenant. Regardless of Landlord's
consent, no subletting or assignment shall release Tenant's obligation or alter
the primary liability of Tenant, unless Landlord agrees otherwise in its sole
and absolute discretion. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. If any assignee of
Tenant or any successor of Tenant defaults in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such assignee or successor. Landlord may consent
to subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto,
and such action shall not relieve Tenant of its liability under this Lease. If
Tenant assigns this Lease, or sublets all or a portion of the Premises, or
requests the consent of Landlord to any assignment or subletting, or if Tenant
requests the consent of Landlord for any act that Tenant proposes to do, then
Tenant shall pay Landlord's reasonable processing fee and reimburse Landlord for
all reasonable attorneys' fees incurred in connection therewith.
Section 12.04. Bankruptcy. If a petition is filed by or against Tenant for
relief under Title 11 of the United States Code, as amended (the "Bankruptcy
Code"), and Tenant (including for purposes of this Section 12.04 Tenant's
successor in bankruptcy, whether a trustee or Tenant as debtor in possession)
assumes and proposes to assign, or proposes to assume and assign, this Lease
pursuant to the provisions of the Bankruptcy Code to any person or entity who
has made or accepted a bona fide offer to accept an assignment of this Lease on
terms acceptable to Tenant, then notice of the proposed assignment setting forth
(a) the name and address of the proposed assignee, (b) all of the terms and
conditions of the offer and proposed assignment, and (c) the adequate assurance
to be furnished by the proposed assignee of its future performance under the
Lease, shall be given to Landlord by Tenant no later than twenty (20) days after
Tenant has made or received such offer, but in no event later than ten (10) days
prior to the date on which Tenant applies to a court of competent jurisdiction
for authority and approval to enter into the proposed assignment. Landlord shall
have the prior right and option, to be exercised by notice to Tenant given at
any time prior to the date on which the court order authorizing such assignment
becomes final and nonappealable, to receive an assignment of this Lease upon the
same terms and conditions, and for the same consideration, if any, as the
proposed assignee, less any brokerage commissions which may otherwise be payable
out of the consideration to be paid by the proposed assignee for the assignment
of this Lease. If this Lease is assigned pursuant to the provisions of the
Bankruptcy Code, Landlord: (i) may require from the assignee a deposit or other
security for the performance of its obligations under the Lease in an amount
substantially the same as would have been required by Landlord upon the initial
leasing to a tenant similar to the assignee; and (ii) shall receive, as
additional rent, the sums and economic consideration described in Section 12.02.
Any person or entity to which this Lease is assigned pursuant to the provisions
of the Bankruptcy Code shall be deemed, without further act or documentation, to
have assumed all of the Tenant's obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall, upon demand, execute
and deliver to Landlord an instrument confirming such assumption. No provision
of this Lease shall be deemed a waiver of Landlord's rights or remedies under
the Bankruptcy Code to oppose any assumption and/or assignment of this Lease, to
require a timely performance of Tenant's obligations under this Lease, or to
regain possession of the Premises if this Lease has neither been assumed nor
rejected within sixty (60) days after the date of the order for relief or within
such additional time as a court of competent jurisdiction may have fixed.
Notwithstanding anything in this Lease to the contrary, all amounts payable by
Tenant to or on behalf of Landlord under this Lease, whether or not expressly
denominated as rent, shall constitute rent for the purposes of Section 502(b)(6)
of the Bankruptcy Code.
Section 12.05. Limitation on Remedies. Tenant shall not be entitled to
make, nor shall Tenant make, any claim, and Tenant by this Section 12.05 waives
any claim, for money damages (nor shall Tenant claim any money damages by way of
set off, counterclaim or defense) based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed its consent or
approval to a proposed assignment or subletting as provided for in this Article.
Tenant's sole and exclusive remedy shall be an action or proceeding to enforce
any such provision, or for specific performance, injunctive relief or
declaratory judgment.
Section 12.06. Ownership Information. Upon Landlord's request from time to
time, Tenant shall promptly provide Landlord with a statement certified by the
Tenant's chief operating officer, which shall provide the following information:
(1) the state in which Tenant is incorporated; (2) the location of Tenant's
principal place of business; (3) information regarding a material change in the
corporate structure of Tenant, including, without limitation, a merger or
consolidation; and (3) any other information regarding Tenant's ownership
interest that Landlord reasonably requests.
ARTICLE XIII - INDEMNIFICATION
Section 13.01. Waiver of Liability. Neither Landlord nor any of the
Parties (as hereinafter defined) nor any Superior Lessor (as hereinafter
defined) or mortgagee of any Mortgage (collectively the "Indemnitees") shall be
liable or responsible in any way for, and Tenant hereby waives all claims
against the Indemnitees with respect to or arising out of any death or any
injury of any nature whatsoever that may be suffered or sustained by Tenant or
any employee, licensee, invitee, guest, agent or customer of Tenant or any other
person, from any causes whatsoever, or for any loss or damage or injury to any
property outside or within the Premises belonging to Tenant or its employees,
agents, customers, licensees, invitees, guests or any other person other than by
reason of the gross negligence or willful misconduct of the Indemnitees, their
employees or agents. Without limiting the generality of the foregoing, none of
the Indemnitees shall be liable for any damage or damages of any nature
whatsoever to persons or property caused by explosion, fire, theft or breakage,
by sprinkler, drainage or plumbing systems, by failure for any cause to supply
adequate drainage, by the interruption of any public utility or service, by
steam, gas, water, rain or other substances leaking, issuing or flowing into any
part of the Premises, by natural occurrence, acts of the public enemy, riot,
strike, insurrection, war, court order, requisition or order of governmental
body or authority, or for any damage or inconvenience which may arise through
repair, maintenance or alteration of any part of the Building, or by anything
done or omitted to be done by any tenant, occupant or person in the Building.
Neither Landlord's Agent nor any partners comprising Landlord, nor any
shareholders, directors or officers of Landlord or Landlord's Agent
(collectively the "Parties") shall be liable for the performance of Landlord's
obligations under this Lease. Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties. The liability of Landlord for Landlord's obligations under this
Lease shall not exceed and shall be limited to Landlord's interest in the
Building and Tenant shall not look to the property or assets of any of the
Parties in seeking either to enforce Landlord's obligations under this Lease or
to satisfy a judgment for Landlord's failure to perform such obligations.
Section 13.02. Indemnity.
(a) Tenant shall hold the Indemnitees harmless and defend the Indemnitees
from and against any and all losses, damages, claims, or liability for any
damage to any property or injury, illness or death of any person: (a) occurring
in, on, or about the Premises, or any part thereof, arising at any time and from
any cause whatsoever other than solely by reason of the gross negligence or
willful misconduct of the Indemnitees, their employees or agents; and (b)
occurring in, on, or about any part of the Building or the areas adjacent
thereto other than the Premises, when such damage, injury, illness or death
shall be caused in whole or in part by the negligence or willful misconduct of
Tenant, its agents, servants, employees, invitees or licensees. The provisions
of this Article shall survive the termination of this Lease with respect to any
damage, injury, illness or death occurring prior to such termination. References
herein to the Indemnitees shall include their respective agents and employees.
(b) Landlord shall hold the Tenant harmless and defend the Tenant from and
against any and all losses, damages, claims, or liability for any damage to any
property or injury, illness or death of any person: (a) occurring in, on, or
about the Building or the areas adjacent thereto other than the Premises, or any
part thereof, arising at any time and from any cause whatsoever other than
solely by reason of the gross negligence or willful misconduct of the Tenant,
their employees or agents; and (b) occurring in, on, or about any part of the
Premises, when such damage, injury, illness or death shall be caused in whole or
in part by the negligence or willful misconduct of Landlord, its agents,
servants, employees, invitees or licensees. The provisions of this Article shall
survive the termination of this Lease with respect to any damage, injury,
illness or death occurring prior to such termination. References herein to the
Tenant shall include their respective agents and employees.
ARTICLE XIV - DESTRUCTION OR DAMAGE
In the event of a fire or other casualty in the Premises, Tenant shall
immediately give notice thereof to Landlord. The following provisions shall
apply to fire or other casualty occurring in the Premises and/or the Building:
(a) If the damage is limited solely to the Premises and the Premises can
be made tenantable with all damage substantially repaired within five (5) months
from the date of damage or destruction, then Landlord shall be obligated to
rebuild the same and shall proceed diligently to do so; provided, however, that
Landlord shall have no obligation to repair or restore the initial Improvements
or Alterations in the Premises (whether installed by Tenant or by Landlord)
except to the extent that Landlord has received insurance proceeds from either
Landlord's or Tenant's casualty insurer sufficient for such purposes and for all
other restoration and repair purposes or unless Tenant pays all costs and
expenses related to the reconstruction of uninsured or underinsured Initial
Improvements or Alterations.
(b) If portions of the Building outside the boundaries of the Premises are
damaged or destroyed (whether or not the Premises are also damaged or destroyed)
and the Premises and the Building can both be made tenantable with all damage
substantially repaired within nine (9) months from the date of damage or
destruction, and provided that Landlord determines that it is economically
feasible, Landlord shall be obligated to do so; provided, however, that Landlord
shall have no obligation to repair or restore Initial Improvements or
Alterations in the Premises except to the extent that Landlord has received
insurance proceeds from either Landlord's or Tenant's casualty insurer
sufficient for such purposes and for all other restoration and repair purposes
or unless Tenant pays all costs and expenses related to the reconstruction of
uninsured or underinsured Initial Improvements or Alterations.
(c) If neither clause (a) nor (b) above applies, Landlord shall notify
Tenant within sixty (60) days after the date such damage or destruction is
adjusted by Landlord and Landlord's casualty insurer and either Tenant or
Landlord may terminate this Lease within thirty (30) days after the date of such
notice.
(d) During any period when the Premises, as a result of destruction or
damage, are unusable and are actually unused by Tenant, Monthly Base Rent shall
abate proportionately until such time as the Premises are made tenantable. There
shall be no abatement of Monthly Base Rent attributable to the time period
following the repair of damage to the Premises by the Landlord where the
Premises would have been otherwise reasonably deemed available for Tenant's
occupancy, except for reconstruction of the Initial Improvements or Alterations
where such reconstruction did not or has not occurred because of the failure of
Tenant to pay to Landlord, or cause to be paid to Landlord, prior to the
commencement of the anticipated repairs and reconstruction, an amount sufficient
to pay for the cost of the anticipated repair and/or reconstruction or because
of any other delays caused by Tenant.
(e) The proceeds from any insurance paid by reason of damage to or
destruction of the Building or any part thereof, insured by Landlord, shall
belong to and be paid to Landlord subject to the rights of any Superior Lessor
or any mortgagee of any Mortgage which constitutes an encumbrance.
(f) Notwithstanding anything contained in this Article XIV, Landlord shall
have no obligation to rebuild the Premises or the Building in the event any
Superior Lessor or any mortgagee of any Mortgage shall retain, and not make
available to Landlord, the proceeds from any insurance or in the event the
damage or destruction of the Premises or the Building occurs during the last
year of the Term (excluding any unexercised options, if applicable).
ARTICLE XV - WAIVER OF SUBROGATION
Tenant and Landlord agree that insurance required to be carried by either
of them against loss or damage by fire or other casualty shall contain a clause
whereby the insurer waives its rights to subrogation against the other party,
its agents, officers and employees for any loss or damage to its property or to
the property of others covered by insurance.
ARTICLE XVI - RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the Rules and Regulations
and, after notice thereof, all reasonable modifications thereof and additions
thereto from time to time promulgated in writing by Landlord, all of which are
hereby incorporated herein by this reference. Landlord shall not be responsible
to Tenant for the nonperformance by any other tenant or occupant of the Building
or Building of any of the Rules and Regulations.
ARTICLE XVII - ENTRY BY LANDLORD
Section 17.01. Entry to the Premises. Landlord, its agents, contractors or
employees may enter the Premises to: (a) inspect the same; (b) exhibit the same
to Superior Lessors, prospective purchasers, lenders or, during the last six (6)
months of the Term, tenants; (c) determine whether Tenant is complying with all
of its obligations hereunder; (d) supply janitorial service and any other
service to be provided by Landlord to Tenant hereunder or to any other tenant of
the Building; (e) post notices of nonresponsibility; and (f) make repairs
required of Landlord under the terms hereof for which Landlord deems necessary
or desirable or to make repairs to any adjoining space or utility services or to
make repairs, alterations or improvements to any other portion of the Building;
provided, however, that all such work shall be done so as to cause as little
interference to Tenant as reasonably possible. Tenant hereby waives any claim
for damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned by such entry. Landlord shall at all times have and retain
a key with which to unlock all of the doors in, on or about the Premises
(excluding Tenant's vaults, safes and similar areas agreed upon in writing by
Tenant and Landlord). Landlord shall have the right to use any and all means
which Landlord may deem proper to open such doors in an emergency in order to
obtain entry to the Premises, and no entry to the Premises obtained by Landlord
by any of such means shall under any circumstance be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises or an eviction,
actual or constructive, of Tenant from the Premises, or any portion thereof.
Section 17.02. Alterations to Building. Landlord shall have the right from
time to time to alter the Building and, without the same constituting an actual
or constructive eviction and without incurring any liability to Tenant therefor,
to change the arrangement or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building or
the Complex is commonly known, provided any such change does not (a)
unreasonably reduce, interfere with or deprive Tenant of access to the Building
or Premises or (b) reduce the Rentable Area (except by a de minimis amount) of
the Premises. All parts (except surfaces facing the interior of the Premises) of
all walls, windows and doors bounding the Premises (including exterior Building
walls, exterior core corridor walls, exterior doors and entrances), all
balconies, terraces and roofs adjacent to the Premises, all space in or adjacent
to the Premises used for shafts, stacks, stairways, chutes, pipes, conduits,
ducts, fan rooms, heating, air cooling, plumbing and other mechanical
facilities, service closets and other Building facilities are not part of the
Premises, and Landlord shall have the use thereof, as well as access thereto
through the Premises for the purposes of operation, maintenance, alteration and
repair.
ARTICLE XVIII - DEFAULT
Section 18.01. Events of Default. In addition to any other event specified
in this Lease as an event of default, the occurrence of any one or more of the
following events (each, an "Event of Default") shall constitute a breach of this
Lease by Tenant: (a) failure by Tenant to pay any Monthly Base Rent or
Adjustment Rent as the same becomes due and payable if such failure continues
for more than ten (10) days after written notice thereof from Landlord; (b)
failure by Tenant to pay any other sum when and as the same becomes due and
payable if such failure continues for more than ten (10) days after written
notice thereof from Landlord; (c) failure by Tenant to perform or observe any
other obligations of Tenant hereunder, or to comply with the Rules and
Regulations, if such failure continues for more than twenty (20) days after
written notice thereof from Landlord (unless such failure cannot reasonably be
cured within such twenty (20) day period and Tenant shall within such period
commence and diligently pursue the curing of such failure); (d) the making by
Tenant of a general assignment for the benefit of creditors, or the admission of
its inability to pay its debts as they become due or the filing of a petition,
case or proceeding in bankruptcy, or the adjudication of Tenant bankrupt or
insolvent, or the filing of a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, or the filing of an answer
admitting or failing reasonably to contest the material allegations of a
petition filed against it in any such proceeding, or the seeking or consenting
to or acquiescence in the appointment of any trustee, receiver or liquidator of
Tenant or any material part of its properties; (e) if within ninety (90) days
after the commencement of any proceeding against Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation, such
proceeding shall not have been dismissed, or if, within ninety (90) days after
the appointment without the consent or acquiescence of Tenant, of any trustee,
receiver or liquidator of Tenant or of any material part of its properties, such
appointment shall not have been vacated; or (f) if this Lease or any estate of
Tenant hereunder shall be levied upon under any attachment or execution and such
attachment or execution is not vacated within ten (10) days.
Section 18.02. Landlord's Remedies. (a) Upon the occurrence of an Event of
Default, Landlord may elect to terminate this Lease, or, without terminating
this Lease, terminate Tenant's right to possession of the Premises. Upon any
such termination, Tenant shall immediately surrender and vacate the Premises and
deliver possession thereof to Landlord. Tenant grants to Landlord the right to
enter and repossess the Premises and to expel Tenant and any others who may be
occupying the Premises and to remove any and all property therefrom, without
being deemed in any manner guilty of trespass and without relinquishing
Landlord's rights to rent or any other right given to Landlord hereunder or by
operation of law.
(b) If Landlord terminates Tenant's right to possession of the Premises
without terminating this Lease, Landlord may relet the Premises or any part
thereof. In such case, Landlord may first lease Landlord's other available space
and shall not be required to accept any tenant offered by Tenant or to observe
any instructions given by Tenant about such reletting. Tenant shall reimburse
Landlord for the costs and expenses of reletting the Premises including, but not
limited to, all brokerage, advertising, legal, alteration and other expenses
incurred to secure a new tenant for the Premises. In addition, if the
consideration collected by Landlord upon any such reletting, after payment of
the expenses of reletting the Premises which have not been reimbursed by Tenant,
is insufficient to pay monthly the full amount of the Rent (as hereinafter
defined), Tenant shall pay to Landlord the amount of each monthly deficiency as
it becomes due. If such consideration is greater than the amount necessary to
pay the full amount of the Rent, the full amount of such excess shall be
retained by Landlord and shall in no event be payable to Tenant.
(c) If Landlord terminates this Lease, Landlord may recover from Tenant
and Tenant shall pay to Landlord, on demand, as and for liquidated and final
damages, an accelerated lump sum amount equal to the amount by which the
aggregate amount of Rent owing from the date of such termination through the
Expiration Date plus the aggregate expenses of reletting the Premises, exceeds
the fair rental value of the Premises for the same period (after deducting from
such fair rental value the time needed to relet the Premises and the amount of
concessions which would normally be given to a new tenant), both discounted to
present value using a discount rate of four percent (4%) per annum.
Section 18.03. Rent Computation. For purposes of computing the rent which
would have accrued from the date of termination through the Expiration Date,
Rent shall consist of the sum of:
(a) the total Monthly Base Rent for the balance of the Term; plus
(b) recapture of the prorated portion (over the initial Term) of any
construction allowance, lease commission or fee paid by Landlord to Tenant or on
Tenant's behalf (or to Tenant or any affiliate of Tenant), or any free rent
period (granted to Tenant or any affiliate of Tenant) or other fees that were
left unpaid by Tenant or any affiliate of Tenant; plus
(c) the Adjustment Rent for the balance of the Term. For purposes of
computing Direct Expenses the Direct Expenses for the calendar year of the
default and each future calendar year in the Term shall be assumed to be equal
to the Direct Expenses for the calendar year prior to the year in which default
occurs compounded at a rate equal to the mean average rate of inflation for the
three (3) calendar years preceding the calendar year of the default, as
determined by using the United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index (All Urban Consumers, All Items, 1982-84=100).
If such index is discontinued or revised, the average rate of inflation shall be
determined by reference to the index designated as the successor or substitute
index by the government of the United States.
Section 18.04. Interest. Every installment of rent and every other payment
due hereunder from Tenant to Landlord not paid within ten (10) days of the date
when due shall bear interest at the rate of four percent (4%) over the Prime
Rate, or at the highest rate legally permitted, whichever is less, from the date
that the same became due and payable until paid, whether or not demand be made
therefor.
Section 18.05. Late Charges. Tenant acknowledges that late payment by
Tenant to Landlord of Monthly Base Rent or Adjustment Rent will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of such costs
being extremely difficult and impracticable to fix. Such costs include, without
limitation, processing and accounting charges, and late charges that may be
imposed on Landlord by the terms of any note secured by an encumbrance covering
the Premises. Therefore, if any installment of Monthly Base Rent or Adjustment
Rent due from Tenant is not received by Landlord within ten (10) days of the
date when due, Tenant shall pay Landlord a late charge equal to ten percent
(10%) of such delinquent amount. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Landlord will incur
by reason of such late payment by Tenant. Acceptance of any late charge shall
not constitute a waiver of Tenant's default with respect to the overdue amount,
or prevent Landlord from exercising any of the other rights and remedies
available to Landlord.
Section 18.06. Lease Continues Until Termination. Even though Tenant has
breached this Lease and abandoned the Premises, this Lease shall continue in
effect for so long as Landlord does not terminate this Lease under Section 18.02
and Landlord may enforce all its rights and remedies under this Lease, including
the right to recover the Rent as it becomes due under this Lease. Acts of
maintenance or preservation or efforts to relet the Premises or the appointment
of a receiver upon initiative of Landlord to protect Landlord's interest under
this Lease shall not constitute a termination of Tenant's right to possession.
Section 18.07. Remedies Cumulative. The remedies provided for in this
Lease are in addition to any other remedies available to Landlord at law or in
equity by statute or otherwise.
Section 18.08. Waiver of Redemption. Tenant hereby waives, for itself and
all persons claiming by and under Tenant, all rights and privileges which it
might have under any present or future law to redeem the Premises or to continue
the Lease after being disposed or ejected from the Premises.
ARTICLE XIX - LANDLORD'S RIGHT TO CURE DEFAULTS
All agreements and provisions to be performed by Tenant under any of the
terms of this Lease shall be at Tenant's sole cost and expense. If Tenant shall
fail to perform any of its obligations hereunder, then Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant from any
obligations, perform any such obligations on Tenant's behalf. All sums so paid
by Landlord and all costs incurred by Landlord in performing Tenant's
obligations shall be deemed additional rent hereunder and shall be paid to
Landlord on demand.
ARTICLE XX - ATTORNEYS' FEES
In the event of any action or proceeding brought by either party against
the other under this Lease, the prevailing party shall be entitled to recover
court costs and the fees of its attorneys in such action or proceeding (whether
at the administrative, trial or appellate levels) to the extent permitted by
law.
ARTICLE XXI - HOLDING OVER
If Tenant shall remain in possession after the expiration or sooner
termination of this Lease with Landlord's consent (which Landlord may withhold
in its sole and absolute discretion), all of the terms, covenants and agreements
hereof shall continue to apply and bind Tenant so long as Tenant shall remain in
possession insofar as the same are applicable; provided, however, the Monthly
Base Rent shall be one hundred fifty percent (150%) of the Monthly Base Rent
payable for the last month of the Term, prorated on a daily basis for each day
that Tenant remains in possession. Tenant shall indemnify Landlord and
Landlord's Agent against any and all claims, losses and liabilities for damages
resulting from failure to surrender possession, including, without limitation,
any claims made by any succeeding tenant. If Tenant remains in possession with
Landlord's written consent, such tenancy shall be from month to month,
terminable by either party on not less than thirty (30) days written notice.
ARTICLE XXII - WAIVER
The failure of Landlord to exercise its rights in connection with any
breach or violation of any term, covenant or condition herein contained or in
the Rules and Regulations shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease other than the
failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
ARTICLE XXIII - EMINENT DOMAIN
Section 23.01. Taking of Premises. If all or any part of the Premises
shall be taken by any public or quasi public authority as a result of the
exercise of the power of eminent domain, this Lease shall terminate as to the
part so taken as of the date of taking, and, in the case of a partial taking,
either Landlord or Tenant shall have the right to terminate this Lease as to the
balance of the Premises by written notice to the other within thirty (30) days
after the date of such taking; provided, however, that a condition to the
exercise by Tenant of such right to terminate shall be that the portion of the
Premises taken shall, in Landlord's judgment, be of such extent and nature as
substantially to handicap, impede and impair Tenant's use of the balance of the
Premises. If a material part of the Common Areas or the Building is condemned or
taken or if substantial alteration or reconstruction of the Building shall, in
Landlord's sole opinion, be necessary or desirable as a result of such
condemnation or taking, Landlord may terminate this Lease by written notice to
Tenant within thirty (30) days after the date of taking.
Section 23.02. Condemnation Award. In the event of any taking, Landlord
shall be entitled to any and all compensation, damages, income, rent, awards,
and any interest therein whatsoever which may be paid or made in connection
therewith, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease or otherwise. In the event of a partial taking of
the Premises which does not result in a termination of this Lease, the Monthly
Base Rent thereafter to be paid shall be equitably reduced by Landlord.
Section 23.03. Temporary Taking. If all of the Premises shall be condemned
or taken for governmental occupancy for a period of more than twelve (12)
months, this Lease shall terminate as of the date of taking and Landlord shall
be entitled to any and all compensation, damages, income, rent and awards in
connection therewith. If all or any part of the Premises shall be taken by any
public or quasi-public authority on a temporary basis for a period of twelve
(12) months or less, this Lease shall remain in full force and effect. Tenant's
rent hereunder shall be abated for the period of the temporary taking and
Landlord shall be entitled to any and all compensation, damages, income, rent,
awards and interest in connection therewith.
ARTICLE XXIV - SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building, the same
shall operate to release Landlord from any future liability upon any of the
agreements, obligations covenants or conditions, express or implied, herein
contained in favor of Tenant, and in such event Tenant agrees to look solely to
the successor in interest of Landlord in and to this Lease. In addition,
Tenant's right of recovery as to any pre-existing agreements, obligations,
covenants or conditions, express or implied, herein contained in favor of Tenant
shall be expressly limited to the net cash proceeds of sale actually received by
Landlord, if any. This Lease shall not be affected by any such sale, however,
and Tenant agrees to attorn to the purchaser or assignee, such attornment to be
effective and self-operative without the execution of any further instruments on
the part of any of the parties to this Lease.
ARTICLE XXV - SUBORDINATION
Section 25.01. Subordination of this Lease. Unless Landlord or any lender
holding a lien which affects the Premises elects otherwise, this Lease shall be
subject and subordinated at all times to: (a) all ground or underlying leases
which now or hereafter may affect the Building (a "Superior Lease"), and (b) the
lien of all mortgages and deeds of trust (a "Mortgage") in any amount or amounts
whatsoever now or hereafter placed on or against the Building, on or against
Landlord's interest or estate therein, and on or against all such ground or
underlying leases, all without the necessity of having further instruments
executed on the part of Tenant to effectuate such subordination. Notwithstanding
the foregoing: (i) in the event of termination for any reason whatsoever of any
such Superior Lease, Tenant shall, if requested, attorn to the landlord of any
such Superior Lease (the "Superior Lessor"), or, if requested, enter into a new
lease for the balance of the original or extended Term then remaining, upon the
same terms and provisions as are contained in this Lease; (ii) in the event of a
foreclosure of any such Mortgage or of any other action or proceeding for the
enforcement thereof, or of any sale thereunder, or the giving of any deed in
lieu of such foreclosure, Tenant shall, if requested, attorn to the purchaser at
such foreclosure sale or other action or proceeding, or to the grantee under any
such deed given in lieu of foreclosure, or, if requested, enter into a new lease
with such successor to Landlord's interest for the balance of the original or
extended Term then remaining upon the same terms and provisions as are in this
Lease contained (it being understood, however, that no such successor to
Landlord's interest shall be bound by any payment of rent or any other charges
under this Lease, other than security deposits, made more than one (1) month in
advance, or by any amendment to or modification of this Lease made without such
successor's consent); and (iii) Tenant agrees to execute and deliver upon demand
such further instruments evidencing such subordination of this Lease to such
deed, to such Superior Leases, and to the lien of any such Mortgages as may
reasonably be required by Landlord. Tenant shall from time to time on request
from Landlord execute and deliver any documents or instruments that may be
required by any lender to effectuate any subordination. If Tenant fails to
execute and deliver any documents or instruments, Tenant irrevocably constitutes
and appoints Landlord as Tenant's special attorney in fact to execute and
deliver such documents or instruments.
Section 25.02. Subordination of Mortgage. Notwithstanding anything to the
contrary set forth above, any mortgagee under any Mortgage may at any time
subordinate its Mortgage to this Lease in whole or in part, without any need to
obtain Tenant's consent, by execution of a written document subordinating such
Mortgage to this Lease to the extent set forth in such document and thereupon
this Lease shall be deemed prior to such Mortgage to the extent set forth in
such document without regard to their respective dates of execution, delivery
and/or recording. In that event, to the extent set forth in such document, such
Mortgage shall have the same rights with respect to this Lease as would have
existed if this Lease had been executed, and a memorandum thereof, recorded
prior to the execution, delivery and recording of the Mortgage.
ARTICLE XXVI - NO MERGER
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger unless Landlord shall elect
otherwise.
ARTICLE XXVII - SURRENDER OF PREMISES
At the end of the Term or upon sooner termination of this Lease, Tenant
shall peaceably deliver up to Landlord possession of the Premises, together with
Initial Improvements and Alterations, by whomsoever made, in the same condition
as received, or first installed, reasonable wear and tear excepted. Tenant may,
upon the termination of this Lease, remove all movable partitions of less than
full height from floor to ceiling, as well as other trade fixtures installed by
Tenant, repairing any damage caused by such removal. Property not so removed
shall be deemed abandoned by Tenant and title to the same shall thereupon pass
to Landlord. Notwithstanding the foregoing, Tenant, at its cost, shall remove
any or all improvements or alterations designated by Landlord at the time of
installation of such improvements or alterations. Tenant shall, at the sole
expense of Tenant, remove all cabling which has been installed by or on account
of the Tenant.
ARTICLE XXVIII - ESTOPPEL CERTIFICATE
At any time and from time to time, but in no event on less than ten (10)
days prior written request by Landlord, Tenant shall execute, acknowledge and
deliver to Landlord, promptly upon request, a certificate certifying: (a) that
Tenant has accepted the Premises (or, if Tenant has not done so, that Tenant has
not accepted the Premises, and specifying the reasons therefor); (b) the
commencement and expiration dates of this Lease; (c) whether there are then
existing any defaults by Landlord in the performance of its obligations under
this Lease (and, if so, specifying the same) (d) that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that this
Lease is in full force and effect, as modified, and stating the date and nature
of each modification); (e) the capacity of the person executing such
certificate, and that such person is duly authorized to execute the same on
behalf of Tenant; (f) the date, if any, to which rent and other sums payable
hereunder have been paid; (g) that Tenant is not in default under the Lease nor
does any event exist which, with the passage of time or the giving of notice or
both would constitute an Event of Default (except as to defaults specified in
the certificate); (h) the amount of any security deposit and prepaid rent; and
(i) such other matters as may be reasonably requested by Landlord. Any such
certificate may be relied upon by any prospective purchaser, mortgagee or
beneficiary under any Mortgage affecting the Building. If Tenant fails to
deliver the executed certificate within ten (10) days after receipt thereof by
Tenant, Tenant irrevocably constitutes and appoints Landlord as its special
attorney in fact to execute and deliver the certificate to any third party.
ARTICLE XXIX - NO LIGHT, AIR OR VIEW EASEMENT
Any diminution or shutting off of light, air or view by any structure
which is now or may hereafter be erected on lands adjacent to the Building shall
in no way affect this Lease or impose any liability on Landlord. Noise, dust or
vibration or other incidents to new construction of improvements on lands
adjacent to the Building, whether or not owned by Landlord, shall in no way
affect this Lease or impose any liability on Landlord.
ARTICLE XXX - NOTICES
All notices or other communications which are required or permitted herein
shall be in writing and sufficient if delivered personally, sent by prepaid air
courier, or sent by registered or certified mail, postage prepaid, return
receipt requested, at the addresses set forth in Article I or at such other
address as the party to whom notice is to be given may have furnished to the
other party in writing in accordance herewith. Any such communication shall be
deemed to have been given when delivered if delivered personally, on the
business day after dispatch if sent by air courier, or on the third business day
after posting if sent by mail.
ARTICLE XXXI - RELOCATION OF PREMISES
Landlord shall have the option to relocate Tenant to alternative space in
the Building, which alternative space shall be of comparable size to or larger
than the Premises. Landlord shall give Tenant not less than ninety (90) days
prior written notice of such relocation, which notice shall include the date on
which Tenant shall be required to relocate or move and a description of the
space to which Tenant will be relocated. Landlord shall pay all out-of-pocket
costs and expenses of relocating Tenant (including the cost of preparing such
comparable space for occupancy). However, if Tenant is relocated prior to
occupancy and construction of the Initial Improvements, Landlord shall only be
required to pay the costs otherwise agreed to be paid by Landlord under this
Lease for construction of improvements to the Premises, if any, plus costs and
expenses incident to changes in the Initial Improvements as a result of such
relocation in excess of those which would have been borne by Tenant if there had
been no relocation. In the event of such relocation, such alternative space
shall for all purposes be deemed the Premises hereunder and this Lease shall
continue in full force and effect without any change in the other terms or
condition hereof.
ARTICLE XXXII - SUCCESSORS
All the terms, covenants, and conditions hereof shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors, and
assigns of the parties hereto, provided that nothing in this Article XXXII shall
be deemed to permit any assignment, subletting, occupancy or use by Tenant
contrary to the provision of Article XII.
ARTICLE XXXIII - INSURANCE
Section 33.01. Liability Insurance. Tenant shall obtain and keep in full
force a policy of commercial general liability and property damage insurance
(including automobile, personal injury, broad form contractual liability and
broad form property damage) under which Tenant is named as the insured and
Landlord, Landlord's Agent and any Superior Lessors and mortgagees of Mortgages
(whose names shall have been furnished to Tenant) are named as additional
insureds and under which the insurer agrees to indemnify and hold the Landlord,
Landlord's Agent and all applicable Superior Lessors and mortgagees harmless
from and against all cost, expense and/or liability arising out of or based upon
the indemnification obligations of this Lease. The minimum limits of liability
shall be a combined single limit with respect to each occurrence of not less
than One Million Dollars ($1,000,000). The policy shall contain a cross
liability endorsement and shall be primary coverage for Tenant and Landlord for
any liability arising out of Tenant's and Tenant's employees' use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall provide that it is primary insurance and not "excess over" or contributory
with any other valid, existing and applicable insurance in force for or on
behalf of Landlord. The policy shall not eliminate cross-liability and shall
contain a severability of interest clause. Not more frequently than once each
year, if, in the opinion of Landlord's lender or of the insurance consultant
retained by Landlord, the amount of public liability and property damage
insurance coverage at that time is not adequate, Tenant shall increase the
insurance coverage as required by either Landlord's lender or Landlord's
insurance consultant.
Section 33.02. Tenant's Property Insurance. Tenant at its cost shall
maintain on all of its personal property, Initial Improvements (whether
constructed by Landlord or Tenant), and Alterations, in, on, or about the
Premises, a special cause of loss form insurance policy with theft, to the
extent of at least full replacement value without any deduction for
depreciation. The proceeds from any such policy shall be used by Tenant for the
replacement of such personal property or the restoration of such Initial
Improvements or Alterations. The "full replacement value" of the improvements to
be insured shall be determined by the company issuing the insurance policy at
the time the policy is initially obtained. Not less frequently than once every
three (3) years, Landlord shall have the right to notify Tenant that it elects
to have the replacement value redetermined by an insurance company or insurance
consultant. The redetermination shall be made promptly and in accordance with
the rules and practices of the Board of Fire Underwriters, or a like board
recognized and generally accepted by the insurance company, and each party shall
be promptly notified of the results by the company. The insurance policy shall
be adjusted according to the redetermination.
Section 33.03. Worker's Compensation Insurance. Tenant shall maintain
Worker's Compensation and Employer's Liability insurance as required by law.
Section 33.04. Other Coverage. Tenant, at its cost, shall maintain such
other insurance as Landlord may reasonably require from time to time.
Section 33.05. Insurance Criteria. All the insurance required under this
Lease shall:
(a) be issued by an insurance company with an A.M. Best Rating of A- or
better;
(b) be issued as a primary policy;
(c) contain an endorsement requiring thirty (30) days' written notice from
the insurance company to both parties and to Landlord's lender before
cancellation or change in the coverage, scope, or amount of any policy; and
(d) with respect to property loss or damage by fire or other casualty, a
waiver of subrogation must be obtained, as required by Article XV.
Section 33.06. Evidence of Coverage. A duplicate original policy, or a
certificate of the policy with the actual policy attached, together with
evidence of payment of premiums, shall be deposited with Landlord on the Term
Commencement Date.
ARTICLE XXXIV - SIGNAGE
Landlord may maintain in the lobby of the Building a directory containing
the names of Tenant and other tenants of the Building. If so maintained by
Landlord, Tenant shall be entitled, at no additional cost, to initially list on
such directory its name and that of its employees and permitted subtenants as
Tenant desires, provided, the number of names so listed shall be in the same
proportion to all names listed on such directory as the Rentable Area of the
Premises bears to the Rentable Area of all tenants who are included in the
directory. If Tenant requests Landlord to make any revisions or substitutions to
the names initially included within any lobby directory, Landlord shall be
entitled to charge Tenant, on a nondiscriminatory basis, its standard
reprogramming or relettering fee.
Tenant shall be permitted, at the sole expense of Tenant, to erect signage
on the Building. A drawing of Tenant's proposed signage for the Building is
attached hereto as Exhibit "E." Tenant shall submit a complete set of plans and
specifications regarding the location, size and method of attachment of the sign
to the Building prior to installation of such signage. Approval of such signage
shall also be subject to approval by local governing authorities. By execution
of this lease Landlord approves attached signage copy.
ARTICLE XXXV - PARKING
Tenant, together with Tenant's employees, agents and invitees, shall have
the non-exclusive right to utilize on a first come, first serve basis those
parking areas for the Building (the "Parking Areas) on a prorata basis. Tenant
shall at all times comply with (and the provisions hereof shall be expressly
subject to) all applicable ordinances, rules, regulations, codes, laws, statutes
and requirements of all federal, state, county and municipal governmental bodies
or their subdivisions regarding the use of the Parking Areas. Landlord reserves
the right to adopt, modify and enforce reasonable rules governing the use of the
Parking Areas from time to time. Landlord may refuse to permit any person who
violates any such rules to park in the Parking Areas, and any violation of the
rules shall subject the car to removal, at such person's expense from the
Parking Areas. Landlord shall have no liability whatsoever for any damage to
property or any other items located in the Parking Areas, nor for any personal
injuries or death arising out of any matter relating to the Parking Areas, and
in all events, Tenant agrees to look to its insurance carrier for payment of any
losses sustained in connection with any use of the Parking Areas. Landlord
reserves the right to assign a reasonable number of specific spaces for
visitors, small cars, handicapped persons and for other tenants, guests of
tenants or other parties designated by Landlord, and Tenant shall not park in
any such assigned or reserved spaces. Landlord also reserves the right to close
all or any portion of the Parking Areas in order to make repairs or perform
maintenance services, or to alter, modify, restripe or renovate the Parking
Areas, or if required by casualty, strike, condemnation, act of God,
governmental law or requirement or other reason beyond Landlord's reasonable
control.
ARTICLE XXXVI - MISCELLANEOUS
Section 36.01. Captions. The captions and headings of the Articles and
Sections in this Lease are for convenience only and shall not in any way limit
or be deemed to construe or intercece the terms and provisions hereof.
Section 36.02. Time of Essence. Time is of the essence of this Lease and
of all provisions hereof, except in respect to the delivery of possession of the
Premises.
Section 36.03. Number and Genders; Joint and Several Liability. The words
"Landlord" and "Tenant," as used herein, shall include the plural as well as the
singular. Words used in the masculine gender include the feminine and neuter. If
there be more than one Landlord or Tenant or if Tenant is a partnership, the
respective obligations hereunder imposed upon Landlord, Tenant and the general
partners of Tenant, as the case may be, shall be joint and several.
Section 36.04. Governing Law. This Lease shall be construed and enforced
in accordance with the laws of the State of Iowa.
Section 36.05. Cumulative Remedies. It is understood and agreed that the
remedies herein given to Landlord shall be cumulative, and the exercise of any
one remedy by Landlord shall not be to the exclusion of any other remedy.
Section 36.06. Entire Agreement. The terms of this Lease are intended by
the parties as a final expression of their agreement with respect to such terms
as are included in this Lease and may not be contradicted by evidence of any
prior or contemporaneous agreement. The parties further intend that this Lease
constitutes the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial proceedings, if
any, involving this Lease.
Section 36.07. Invalidity. If any provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent permitted by law.
Section 36.08. Authority. If Tenant signs as a corporation or a
partnership, each of the persons executing this Lease on behalf of Tenant does
hereby covenant and warrant that Tenant is a duly authorized and existing
entity, that Tenant has and is qualified to do business in Iowa, that Tenant has
full right and authority to enter into this Lease, and that each and both of the
persons signing on behalf of Tenant are authorized to do so. Upon Landlord's
request, Tenant shall provide Landlord with evidence reasonably satisfactory to
Landlord confirming the foregoing covenants and warranties.
Section 36.09. Offer. The submission and negotiation of this Lease shall
not be deemed an offer to enter into a lease by Landlord, but the solicitation
of such an offer by Tenant and Landlord's acceptance of this Lease shall be
evidenced only by Landlord signing and delivering this Lease to Tenant.
Section 36.10. No Representations or Warranties. Neither Landlord nor
Landlord's agents or attorneys have made any representations or warranties with
respect to the Premises, the Building or this Lease, except as expressly set
forth herein, and no rights, easements or licenses are or shall be acquired by
Tenant by implication or otherwise.
Section 36.11. Brokers. Tenant and Landlord each represent to the other
that it has dealt with no broker in connection with this Lease, other than
Landlord's Agent and Tenant's Broker, and each shall hold the other harmless
from and against any and all liability, loss, damage, expense, claim, action,
demand, suit or obligation arising out of or relating to a breach of such
representation.
Section 36.12. Amendments. This Lease may not be altered, changed, or
amended except by an instrument signed by both parties hereto.
Section 36.13. Proration. Any proration required hereunder shall, unless
expressly provided otherwise herein, be done on the basis of a three hundred
sixty (360) day year and/or a thirty (30) day month.
Section 36.14. Waiver of Jury Trial. Landlord and Tenant hereby waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties to this Lease against the other on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises, or any other claims (except
claims for personal injury or property damage).
Section 36.15. No Recordation. Neither Landlord nor Tenant shall record
this Lease or any short form or memorandum thereof.
Section 36.16. Liens. Tenant shall be responsible for the satisfaction or
payment of any liens for any provider of work, labor, material or services
claiming by, through or under Tenant. Tenant shall also indemnify, hold harmless
and defend Landlord against any such liens, including the reasonable fees of
Landlord's attorneys. Such liens shall be discharged by Tenant within thirty
(30) days after notice of filing thereof by bonding, payment or otherwise,
provided that Tenant may contest, in good faith and by appropriate proceedings
any such liens.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
dates set forth below and this Lease shall be effective as of the date first
written above.
LANDLORD: Magnum Property Partners No. 1, L.L.C.
a Nebraska limited liability company
By: MR No. 7, L.L.C., a Nebraska limited liability
company
Managing Member of
Magnum Property Partners No. 1, L.L.C.
By: Magnum Resources, Inc,
a Nebraska corporation,
Managing Member of MR No. 7, L.L.C.
By: /s/ Kelly A. Walters
------------------------------------------
Name: Kelly A. Walters
Title: Senior Vice President
TENANT: AmCore Financial, Inc.
By: /s/ Donald H. Hanna
------------------------------------------
Name: Donald H. Hanna
Title: Senior Vice President