LEASE
BETWEEN
▇. ▇. ▇▇▇▇▇▇▇ COMPANY
AS LANDLORD
AND
TRANSTERRA COMPANY
AS TENANT
COVERING PREMISES AT
▇▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇
E0257
Revised September 1995
TABLE OF CONTENTS
ARTICLE
1. Lease Premises
2. Rental
3. Increases in Taxes and Operating Expenses
4. Work
5. Possession
6. Use
7. Compliance With Laws
8. Tenant's Obligations
9. Repairs and Maintenance
10. Services
11. Alterations
12. Surrender
13. Subletting or Assignment
14. Indemnification and Insurance
15. Real Estate Taxes
16. Damage and Destruction
17. Condemnation
18. Signs
19. Parking
20. Access
21. Subordination and Non-Disturbance
22. Holding Over
23. Default
24. Rules and Regulations
26. Option to Renew
27. Broker
28. Quiet Enjoyment
29. Notices
30. Arbitration
31. Landlord's Authority
32. Titles of No Effect
33. No Waiver of Remedy
34. Binding Effect
35. Estoppel Certificate
EXHIBITS
A. Outline of the Premises.
B. Tenant's Estoppel Certificate
LEASE
This LEASE (the "Lease") is made as of the date set forth on the
signature page below, between ▇. ▇. ▇▇▇▇▇▇▇ Company, a Delaware Corporation
having offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Landlord") and TransTerra Company, a Nebraska corporation having an office at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Tenant").
WITNESSETH:
1. LEASED PREMISES; TERM
a. LEASED PREMISES
(1) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the space (the "Premises"), on the First floor of the building located at ▇▇▇▇▇
▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Building"), which Premises are more particularly
shown outlined on Exhibit A, attached hereto and made a part hereof.
(2) Landlord represents that the Premises contain 4616 usable square feet.
b. LEASE TERM
(1) The term of this Lease (the "Lease Term") shall commence on December 1,
1995 or at such date as the premises are substantially complete, whichever is
earlier (the "Commencement Date").
(2) The Lease Term shall end 24 months after the commencement date, or such
earlier date as this Lease may terminate as provided herein (the "Expiration
Date").
(3) "Lease Year" shall mean each twelve-month period starting with the
Commencement Date.
2. RENTAL
a. BASE RENT
Except as modified by Section c. of this Article 2, beginning on the
Commencement Date, Tenant shall pay Landlord rent (the "Base Rent") at the
annual rate of Fifty-seven thousand seven hundred dollars and eight cents
($57,700.08), payable in equal monthly installments of Four thousand eight
hundred eight dollars and thirty-four cents ($4,808.34), in advance on the
first day of each calendar month during the Lease Term, at Landlord's address
set forth above, or at such other address as Landlord may specify by written
notice to Tenant from time to time. This rental is based on an annual rental
rate of $12.50 per rentable square foot.
b. ADDITIONAL RENT
Tenant shall pay as Additional Rent Tenant's Proportionate Share of any Increase
in Operating Expenses and Taxes for any Comparison Year over Operating Expenses
and Taxes for the Base year (as those terms are hereinafter defined) in
accordance with Article 3 of this Lease, and any other item defined in this
Lease as an item of Additional Rent.
c. PRORATION
Base Rent and Additional Rent for any portion of a month during the Lease Term
shall be prorated.
3. INCREASES IN TAXES AND OPERATING EXPENSES
a. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
(1) "Base Year" - The Base Year for Operating Expenses or the Base Year for
Taxes, as the case may be, as those terms are hereinafter defined.
(2) "Base Year for Operating Expenses" - The period from January 1, 1996
through December 31, 1996. During any Extended Term (as hereinafter defined)
the Base Year for Operating Expenses shall be changed to the calendar year or
the Lease Year in which such Extended Term commences, whichever is later.
(3) "Base Year for Taxes" - The period from January 1, 1996 through December
31, 1996. During any Extended Term (as hereinafter defined), the Base Year for
Taxes shall be changed to the calendar year or the first full tax year in which
such Extended Term commences, whichever is later.
(4) "Comparison Year" - The twelve-month period of the Lease Term commencing
on the termination of the Base Year for Operating Expenses, or the twelve-month
period of the Lease Term commencing upon the termination of the Base Year for
Taxes, as the case may be, and each twelve-month period thereafter.
(5) "Tenant's Proportionate Share" - The percentage arrived at by conversion
of a fraction whose denominator is the number of rentable square feet in the
Building (18,589 square feet) and whose numerator is the number of rentable
square feet in the Premises (4616 square feet) or 24.83%.
(6) "Operating Expenses" - Those reasonable and competitive expenses paid by
Landlord during the Base Year for Operating Expenses or a Comparison Year, with
respect to the operation and maintenance of the Building, based upon one hundred
percent (100%) occupancy of the Building in the Base Year, including cost of
insurance, materials, supplies, labor, utilities, services, repairs, and
maintenance, subject to the exclusions set forth in Section b. of this Article
3. The computation of Operating Expenses shall be made in accordance with
generally accepted accounting principles consistently applied, and sound
management practices as applied to the operation and maintenance of first-class
office buildings.
(7) "Taxes" - The real estate taxes and assessments, special or otherwise,
levied or assessed for the Base Year for Taxes or a Comparison Year, upon or
with respect to the Building and the land upon which it is located (the "Land"),
by the federal, state, or local government,
provided that such Taxes are levied on the Building and Land as fully completed
and assessed, and subject to the exclusions set forth in Section c. of this
Article 3.
b. EXCLUSIONS FROM OPERATING EXPENSES
Operating Expenses shall exclude, without limitation, all of the following:
(1) The cost of any structural repairs or modifications or of any capital
expenditures, improvements, or repairs.
(2) Expenses for repairs arising from any latent defect in the Building or
Building equipment; or expenses for repairs for damage caused by any insurable
casualty, which expenses are reimbursed by insurance carried by Landlord, or
would be reimbursed by insurance required to be carried by Landlord pursuant to
this Lease.
(3) Legal fees or expenses or arbitration costs incurred in enforcing the
terms of any lease or resolving disputes between Landlord and any tenant of the
Building as to the interpretation or administration of any lease.
(4) Any cost or expense incurred by Landlord for performing work or services
for any other tenant pursuant to a lease with such tenant which landlord does
not perform to any degree for Tenant under this Lease.
c. EXCLUSIONS FROM TAXES
Taxes shall exclude, without limitation, all of the following:
(1) Any taxes attributable to improvements for other tenants over building
standard, or to the construction of additional square footage or rentable area
in the Building, or payable in connection with or resulting from the sale of the
Building or Land after the date of this Lease.
(2) Any income, franchise, payroll, excise, corporate, estate, inheritance,
capital stock or transfer tax levied on Landlord.
(3) Any water charges, sewer rents, or similar charges in the nature of
payments for utilities, however denominated unless imposed as a substitute in
whole or in part for real estate taxes; provided, however, that all such charges
not included as Taxes shall be included as Operating Expenses.
(4) Any late payment penalties or interest charges.
d. LANDLORD'S STATEMENTS
(1) Within sixty (60) days after the end of the Base Year for Operating
Expenses, or as soon thereafter as practicable, Landlord shall furnish Tenant
with a detailed statement of the amount of Operating Expenses and Taxes for such
Base Year (the "Base Year Statement").
(2) Within sixty (60) days after the end of the Base Year for Operating
Expenses, or as soon thereafter as practicable, Landlord shall furnish Tenant
with a detailed statement, (the "Annual Comparative Statement") setting forth:
(i) the amount of Operating Expenses and Taxes for such Base Year;
(ii) the amount of Operating Expenses and Taxes for such Comparison
Year;
(iii) the increase ("Increase") or decrease ("Decrease"), if any, in the
Operating Expenses and Taxes for such Comparison Year in relation
to the Operating Expenses and Taxes for such Base Year; and
(iv) the amount of Tenant's Proportionate Share of any such Increase or
Decrease.
(3) Tenant's Proportionate Share of any Increase or Decrease set forth in the
Annual Comparative Statement shall be prorated if the Lease Term shall have
ended, or shall be proportionately reduced to reflect the reduction of the
Premises or Tenant's use of the Premises as a result of fire or other casualty
or condemnation, prior to the last day of the Comparison year covered by such
Annual Comparative Statement.
e. REFUND UPON DECREASE
Tenant's Proportionate Share of any Decrease shall be refunded by Landlord to
Tenant or credited to succeeding monthly installments of Base Rent and
Additional Rent within thirty (30) days after receipt of Landlord's statement.
In no instance shall such credit reduce monthly installments to less that the
Base Rent.
f. PAYMENT OF ADDITIONAL RENT
Tenant's Proportionate Share of any Increase shall be payable as Additional Rent
as follows:
(1) Within thirty (30) days after receipt of any Annual Comparative
Statement, Tenant shall pay to Landlord any unpaid Additional Rent, if any, due
for the preceding Lease Year for Operating Expenses and Taxes, and for the
period of the current Lease Year to the date of said statement, prorated on the
basis of such expenses for the preceding Lease Year.
(2) As of the date of each Annual Comparative Statement, each monthly
installment of Base Rent for the ensuing calendar months to the date of the next
such statement shall be accompanied by a payment of Additional Rent in an amount
equal to one-twelfth (1/12) of the amount payable as Additional Rent for the
preceding Lease Year pursuant to any such statement.
(3) Any overpayment or underpayment of Additional Rent by Tenant for any
Lease Year shall be adjusted when Landlord furnishes Tenant with the Annual
Comparative Statement for such Lease Year or, at Landlord's election, by
applying any overpayment as a credit to succeeding monthly installments of Base
Rent and Additional Rent. In no instance shall such credit reduce the monthly
installments to less than the Base Rent.
4. WORK
a. AVAILABILITY OF PREMISES
The premises are made available to tenant on an "As Is" condition. Any work
done in premises must be performed at Tenant's expense and approved in
advance in writing by Landlord. All contractors performing work in premises
must be approved in advance by Landlord.
b. LANDLORD'S WORK
In preparation for making premises available to Tenant, Landlord will do the
following work:
1. Remove its belongings from premises
2. Erect a demising wall and doorway to create common access to the
restrooms.
3. Create a doorway in the wall between the Landlord's reception area
and the premises.
5. POSSESSION
a. DELIVERY OF POSSESSION
Landlord shall deliver possession of the Premises upon completion of Landlord's
work.
b. COMMENCEMENT DATE AGREEMENT
Promptly upon the Commencement Date, Landlord shall deliver to Tenant, and upon
Tenant's approval both parties shall execute and deliver to each other, an
agreement (the "Commencement Date Agreement") setting forth the actual
Commencement Date, Rent Commencement Date, and Expiration Date.
6. USE
a. INTENDED USES
Tenant may use the Premises for general office purposes and related uses (the
"Intended Uses").
b. WARRANTIES ON USE
Landlord further represents and warrants that the Premises lawfully may be used
for the Intended Uses.
c. OTHER TENANTS AND USES
Landlord agrees that no part of the Complex will be leased or occupied for other
than first-class office uses.
7. COMPLIANCE WITH LAWS
a. LANDLORD'S COMPLIANCE
Landlord shall comply with all laws to which the Building and the Premises may
be subject during the Lease Term (other than compliance required by reason of
Tenant's use of the Premises).
b. TENANT'S COMPLIANCE
During the Lease Term, Tenant shall comply with all applicable laws, rules,
regulations and ordinances with respect to the Premises of all federal, state,
county, and municipal authorities having jurisdiction thereof which impose any
duty arising out of Tenant's use of the Premises.
8. TENANT`S OBLIGATIONS
a. In addition to Landlord's obligation to provide janitorial services for
the Premises and maintenance services for the Building, Tenant will keep the
Premises clean and maintain the Premises in good condition and repair.
b. Tenant will conduct its business and maintain the Premises in compliance
with all laws, codes, regulations and ordinances.
c. Tenant shall be responsible for the cost of all repairs to the Building
or Complex necessitated by any act or neglect of Tenant, its employees, its
agents or its contractors.
d. Tenant shall not place a load upon any floor in the Premises exceeding
the floor load per square foot which the floor was designed to carry and which
is allowed by law. Business machines and equipment shall be placed and
maintained by Tenant at Tenant's expense in a manner to absorb and prevent
vibration, noise and annoyance.
9. REPAIRS AND MAINTENANCE
a. TENANT'S OBLIGATIONS
Tenant shall at its sole cost and expense make all repairs required by the
negligence of Tenant or its officers, agents, servants, representatives,
employees, or contractors, and keep the Premises in good order and condition,
other than those matters that are within Landlord's obligation pursuant to this
Lease.
b. LANDLORD'S OBLIGATIONS
Landlord shall, as part of the rental payable hereunder:
(1) Maintain, repair, replace as necessary, and keep in good working order
and condition throughout the Lease Term all equipment, facilities, pipes,
lines and systems serving the Premises, including, without limitation, the
Mechanical Systems of the Premises and Building, and all interior and
exterior structural elements of the Premises and Building, including, without
limitation, the doors, walls, windows, glass, ceilings, floors, foundation,
and roof.
c. STRUCTURAL AND MECHANICAL MAINTENANCE
Landlord shall throughout the Lease Term operate and maintain the Premises and
Building and its structural and Mechanical Systems on a level comparable to
standards maintained in other first-class buildings in the Area.
10. SERVICES
a. LANDLORD'S OBLIGATIONS
Landlord shall furnish the following utilities and services throughout the Lease
Term, the costs of which utilities and services shall be included as Operating
Expenses:
(1) Heat, ventilation, and air-conditioning, Monday through Saturday, from
6:00 a.m. to 9:00 p.m.
(2) Hot and cold water at all times for lavatory, cleaning, drinking, food
preparation and dining facility purposes.
(3) Electrical energy for lighting and the operation of all machines and
equipment, including, without limitation, any computers used in the conduct of
Tenant's business operations at the Premises, Mondays through Saturdays during
the hours of 6:00 a.m. to 9:00 p.m. Landlord shall install and replace all
lighting tubes, ballasts, lamps and bulbs used in the Premises in building
standard fixtures.
(4) Electric current, fixtures, bulbs and equipment for the lighting of all
common areas, including, without limitation, lobbies, public corridors and
public elevator lobbies, as well as electric current for Building
air-conditioning and heating machinery, elevators, other Building equipment, and
all Mechanical Systems.
b. ADDITIONAL SERVICES
In addition to the services, hours and amounts specified above, which are all
included as part of the rental payable hereunder, Landlord shall also furnish
all other, additional, or after-hours services reasonably requested by Tenant
for its business operations at the Premises, and Tenant shall reimburse Landlord
for Landlord's costs for such other, additional, or after-hours services.
11. ALTERATIONS
Tenant may make alterations or improvements to the premises subject to
Landlord's consent, which consent shall not be unreasonably withheld or delayed.
12. SURRENDER
At the expiration or earlier termination of this Lease, Tenant shall quit and
surrender the Premises in substantially the same condition as they were after
completion of the Work identified on Exhibit C, and after completion of any
other alterations or improvements subsequent to that time, reasonable wear and
tear and damage by fire, the elements, or other casualty excepted. All
improvements made by Tenant to the Premises which are so attached that they
cannot be removed without material injury to the Premises shall remain at the
Premises and become the property of Landlord upon termination of this Lease. If
Landlord shall require Tenant to remove any other items that are movable at the
termination of the Lease Term, Landlord shall give Tenant notice of such
requirement at the time that such items are installed. Otherwise, Tenant may at
its option either abandon in place or remove any improvements, fixtures,
paneling, floor covering, equipment, or partitions installed at its expense,
provided that it repairs any damage caused by such removal or pays Landlord the
cost of such repair.
13. SUBLETTING OR ASSIGNMENT
Tenant shall have the right to assign this Lease or sublet all or any portion of
the Premises to any other entity, subject to Landlord's consent. Landlord, at
its option, in lieu of approving sublease or assignment, may choose to reclaim
premises and terminate Lease. If Landlord does not exercise such option and
consents to requested sublease or assignment, any profit Tenant receives in its
sublease or assignment must be divided equally with the Landlord.
Landlord's consent will not be required for assignment or sublet to subsidiary
or affiliate of Tenant.
14. INDEMNIFICATION AND INSURANCE
a. INDEMNITY
Tenant and Landlord shall each indemnify and hold the other harmless from all
liability, claims, expenses and penalties resulting from any breach by such
party of any of its obligations pursuant to this Lease, or from the negligence,
acts or omissions of such party or its partners, officers, agents,
representatives, servants, employees, contractors or invitees.
b. LANDLORD'S INSURANCE
Landlord shall maintain a policy of all-risk fire and extended coverage
insurance on the Building, its improvements and fixtures, the cost of which
insurance shall be included as an Operating Expense.
c. WAIVER OF SUBROGATION
Notwithstanding anything to the contrary in this Lease, Landlord and Tenant
hereby waive and release each other of and from any and all rights of recovery,
claims, actions, or causes of action against each other or their agents,
officers, partners, representatives, employees, servants, contractors and
invitees for any loss or damage that may occur to the Premises, the Building,
improvements or fixtures therein or thereon, or any personal property within the
Building, from any cause whatsoever which would be covered by any insurance
required to be carried by Tenant or Landlord pursuant to this Article, or which
actually is insured against under the terms of an all-risk fire and extended
coverage insurance policy, regardless of cause or origin, including the
negligence of Landlord or Tenant or their agents, officers, partners,
representatives, servants, employees, contractors, or invitees.
d. TENANT'S INSURANCE
Tenant shall maintain a policy of general liability and property damage
insurance (including broad form contractual liability, independent contractor's
hazard and completed operations coverage). Tenant shall also maintain an
all-risk policy on all property of Tenant and its employees while in the
Building, the Premises or the Complex. Tenant shall also maintain all insurance
required by law, including unemployment and ▇▇▇▇▇▇▇'▇ compensation insurance,
and shall require any third-party retained by Tenant to do the same. Landlord
shall be named as an "additional insured" on all such insurance policies.
e. AMOUNTS OF INSURANCE
Landlord and Tenant agree to maintain in full force and effect throughout the
Lease Term adequate property and liability insurance covering their obligations
and liabilities pursuant to this lease, and to furnish each other upon request
with certificates of insurance evidencing such coverages and waivers of
subrogation rights against each other.
f. TENANT'S RISK
Tenant occupies and uses the Premises, and areas of the Building and Complex at
its own risk. Landlord shall have no liability to Tenant for any loss or damage
to Tenant's property. It is Tenant's responsibility to insure itself against
loss from such risk.
15. REAL ESTATE TAXES
Landlord shall pay real estate taxes, charges and assessments levied against the
Premises, the Building and the Complex, and their improvements, all of which
taxes, charges and assessments shall be included as Taxes.
16. DAMAGE AND DESTRUCTION
a. PARTIAL DAMAGE
(1) In the event that the Premises shall be partially damaged by fire or
other casualty, the damage shall be repaired by and at the expense of Landlord
as quickly as possible, and the Base Rent and Additional Rent shall be abated
and apportioned from the date of such damage until such repairs are fully
completed, according to the affected portion of the Premises. Promptly after
the casualty Landlord shall begin and shall thereafter diligently pursue to
completion the work required to restore the Premises to the condition they were
in immediately prior to the occurrence of the casualty.
(2) Landlord shall use its best efforts to notify Tenant within thirty (30)
days after the casualty stating its best estimation of how long restoration of
the Premises will take. If the Premises cannot be reasonably restored within
120 days of the casualty, Tenant may cancel this Lease on written notice to
Landlord not less that 30 days prior to cancellation date.
b. TOTAL DESTRUCTION
If the Premises are totally damaged by fire or other casualty or rendered
substantially unusable for the Intended uses, this Lease shall terminate as of
the date of such casualty at the election of either party, written notice of
such election to be given to the other party within thirty (30) days after such
casualty. In the event of any such casualty, Base Rent and Additional Rent
shall cease as of the date of such casualty. If neither party elects to
terminate this Lease, Landlord shall rebuild and restore the Premises, the
Building, and the Complex as quickly as possible to the condition they were in
immediately prior to the occurrence of the casualty, including restoration of
the Work identified on Exhibit C and any improvements made to "substantially
complete" the Premises, provided that if the Premises are not fully restored
within one hundred twenty (120) days from the date of the casualty, Tenant shall
have the option, but not the obligation, to terminate this Lease.
17. CONDEMNATION
If any portion of the Building, Premises, or parking areas that is condemned
or taken by eminent domain shall result in Tenant's loss of reasonable access
to the Premises or shall render the balance of the Premises unsuitable for
the Intended Uses, Tenant may at its option cancel this Lease upon thirty
(30) days' prior written notice to Landlord, effective as of Tenant's
surrender of possession of the Premises. It a portion of the Premises is
taken which does not render the balance unsuitable for the Intended Uses,
Landlord shall, at its expense, restore the reduced Premises as far as
practicable to the condition existing just prior to such taking, and the Base
Rent and Additional Rent shall thereafter be equitably abated. Tenant shall
have the right to appear at any condemnation proceeding to claim any separate
award with respect to the value of Tenant's fixtures, improvements,
furniture, partitions, equipment, relocation expenses, and loss of business.
18. SIGNS
All Tenant signage must be approved in advance by Landlord in writing.
19. PARKING
Tenant shall have access to parking spaces on a "first come, first served"
basis.
20. ACCESS
Landlord and Landlord's authorized agents shall have the right from time to
time during Tenant's normal business hours, upon reasonable prior notice to
Tenant (except in emergencies), to enter the Premises for the purpose of
making repairs required pursuant to this Lease or agreed upon by the parties,
or during the last three months of the Lease Term (unless Tenant exercises
any renewal option) for the purpose of showing the Premises to prospective
tenants and purchasers, provided that such entry does not interfere with the
conduct of Tenant's business or its use of the Premises.
21. SUBORDINATION AND NON-DISTURBANCE
a. SUBORDINATION
Subject to the following conditions precedent, this Lease shall be subject and
subordinate to the lien of all mortgages and underlying leases that may now or
hereafter affect the real property of which the premises are a part and to all
renewals, extensions, modifications, amendments, replacements, and
consolidations thereof.
b. SUBORDINATION AGREEMENTS
Tenant agrees to promptly execute and deliver any instruments confirming such
subordination as requested by any mortgage or ground lessor. In the event
Tenant does not execute and deliver any such instrument on its own behalf within
five days of its receipt, Tenant appoints Landlord its attorney-in-fact to
execute and deliver any such instrument on Tenant's behalf. No property owned
or removable by Tenant shall be subject to the lien of any mortgage.
22. HOLDING OVER
If Tenant remains in possession of the Premises after the expiration of the
Lease Term or any extension or renewal thereof without agreement of the parties,
such possession shall be as a month-to-month tenant, at a monthly Base Rent
equal to 200% of the Monthly Base Rent payable during the last month of the
preceding term, as liquidated damages. In no event shall this Lease renew for
any term other than month-to-month by reason of such holding over, unless by
written agreement between Landlord and Tenant.
23. DEFAULT
a. EVENTS OF DEFAULT
The following events shall each be deemed a default under this Lease:
(1) The failure of Tenant to pay any installment of Base Rent or Additional
Rent within fifteen (15) days after Tenant's receipt of prior written notice of
such failure from Landlord;
(2) The failure of Tenant to perform any other requirement of this Lease
which failure continues for thirty (30) days after Tenant's receipt of prior
written notice of such failure from Landlord (excepting, however, any
requirement which cannot be cured within said thirty-day period and which Tenant
has commenced and with due diligence is proceeding to cure);
(3) The filing by Tenant of a voluntary petition in bankruptcy or for
reorganization, the making by Tenant of an assignment for the benefit of its
creditors, the admission in writing by Tenant that it is unable to pay its debts
generally as they become due, or the issuance of a court order or decree that
the Tenant is adjudicated a bankrupt or declared insolvent, or is dissolved; or
(4) The filing of a petition proposing the liquidation or reorganization of
Tenant pursuant to the Federal Bankruptcy Act against Tenant which petition is
not discharged or denied within sixty (60) days after the date on which it was
filed.
b. LANDLORD'S RIGHTS ON DEFAULT
If during the Lease Term any default should occur, then providing that Tenant is
not in good faith contesting Landlord's allegations of default by appropriate
legal proceedings, Landlord may terminate this lease on not less than ten (10)
days' prior written notice to Tenant, and Tenant shall quit and surrender the
Premises to Landlord. If this Lease shall have been so terminated by Landlord,
Landlord may at any time thereafter, by any lawful means, remove Tenant or any
other occupants and their effects, and resume possession of the Premises.
c. DAMAGES ON TENANT'S DEFAULT
In the event of any such default and termination of this Lease by Landlord,
Landlord shall use its best efforts to re-let the Premises as soon as possible
thereafter and mitigate its damages. Tenant shall be liable to pay Landlord all
the following amounts as liquidated damages:
(1) Any unpaid Base Rent and Additional Rent;
(2) Landlord's costs and expenses of recovering possession of the Premises,
including reasonable attorney's fees therefor;
(3) Landlord's costs of repairing any damage caused by Tenant to the Premises;
and
(4) The Base Rent monthly as it becomes due and owing throughout the
remainder of the Lease Term, until and except to the extent that Landlord is
able to recoup such Base Rent by leasing the Premises or any portion thereof to
another tenant or tenants.
24. RULES AND REGULATIONS
Landlord has the right to establish rules and regulations applicable to the
Building and the Complex, and to Tenant's occupancy and use of the Premises;
provided, however, that such rules and regulations shall not be construed to
prevent Tenant from using the Premises for the Intended Uses.
25. RIGHT OF FIRST REFUSAL TO LEASE ADDITIONAL SPACE
a. TENANT'S RIGHT
Tenant shall have a right of first refusal to lease any contiguous space on the
same floor as the premises (the "Additional Space"), as it becomes available
during the Lease Term or any extension thereof. In the event Tenant does not
exercise such right in any case, Landlord may then lease the Additional Space to
another party. Failure to exercise its right in any particular case shall not
prejudice Tenant's later first right of refusal to lease that Additional Space
or other Additional Space as it becomes available in the future. Such space
shall be made available to Tenant at the then escalated rental rate.
b. LEASE AMENDMENT
In each instance when the Tenant accepts the Additional Space, the Landlord
and Tenant shall enter into a lease for such Additional Space on the same
terms as the Lease, and appropriately amending the area, percentages, rent,
and making the lease for such Additional Space co-terminous with this Lease.
26. OPTION TO RENEW
Providing Tenant is not, and has not been, in default under the terms of this
Lease, the Landlord shall, not later that June 1, 1997, advise the Tenant in
writing whether the Landlord will extend to the Tenant the right to renew the
Lease for a further period to be mutually agreed between the landlord and the
Tenant, commencing upon the expiration hereof, upon the same terms and
conditions as set out herein, save as to the rental rate and to any further
right of renewal. The Tenant shall have thirty days to accept or reject the
Landlord's offer.
27. BROKER
Landlord and Tenant mutually represent to each other that they have not
negotiated with any broker in connection with this Lease. Each party agrees
that if a claim is made against the other party for a commission or fee by
reason of the acts of such party, the party upon whose acts such claim is
predicated shall indemnify, defend, and hold the other party harmless from and
against any and all liability and expenses in connection with such claim, up to
the amount of the commission claimed.
28. QUIET ENJOYMENT
Landlord covenants that as long as Tenant is not in default hereunder beyond
the applicable grace or cure periods, Tenant shall peacefully and quietly have,
hold and enjoy the Premises during the entire Lease Term including any
extensions or renewals thereof.
29. NOTICES
Any and all notices hereunder shall be in writing, sent by overnight courier, or
by certified or registered mail, return receipt requested, and shall be
effective upon receipt, except as otherwise provided in this Lease. Notices to
Landlord shall be sent to Landlord's address set forth on the first page of this
Lease. Notices to Tenant shall be sent to Tenant at its address set forth on
the first page of this Lease, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President.
30. ARBITRATION
Any dispute arising out of this Lease shall at the option of either party be
settled by arbitration. Within ten (10) days after either party shall have
requested arbitration in writing, the parties shall agree on an impartial
arbitrator, and failing agreement, such arbitrator shall be selected by the
American Arbitration Association at the request of either party. The
arbitration shall be conducted in accordance with the then current rules of the
American Arbitration Association, and judgment upon the award granted by the
arbitrator may be entered in any court having jurisdiction thereof. Fees,
costs and expenses of the arbitrator shall be borne by the party against whom
the arbitration shall be determined, or in such proportions as the arbitrator
shall designate.
31. LANDLORD'S AUTHORITY
Landlord represents that it is the sole owner of the Building and the Land, that
it has the full right and authority to enter into this Lease, and that the
execution of this Lease by the officer(s) executing it as Landlord's agent(s)
has been duly authorized by all required actions of Landlord's Board of
Directors (or, if Landlord is a partnership, that the general partner(s)
executing this Lease has (have) full authority to bind Landlord pursuant to the
Partnership Agreement and all other agreements to which Landlord is a party).
32. TITLES OF NO EFFECT
The titles of Articles and Sections set forth in this Lease are intended for
ease of reference only, and shall have no force or effect in the interpretation
of this Lease.
33. NO WAIVER OF REMEDY
The failure of Landlord or Tenant to insist upon strict performance of any of
the terms, conditions, or covenants of this Lease shall not be deemed a waiver
of any rights or remedies that such party may have, and shall not be deemed a
waiver of any such or any subsequent breach or default of the terms, conditions,
or covenants of this Lease.
34. BINDING EFFECT
All rights and remedies of Landlord and Tenant under this Lease shall extend
to the representatives, successors and assigns of both parties. Each of the
provisions of this Lease shall extend to and bind or inure to the benefit of
not only Landlord and Tenant, but also their successors, representatives and
assigns.
35. ESTOPPEL CERTIFICATE
Tenant shall upon at least thirty (30) days prior written notice execute and
deliver a statement in writing in the form attached as Exhibit B stating (a)
whether or not this Lease has been modified; (b) the date to which the Base
Rent has been paid; and (c) whether or not, to Tenant's knowledge there exists
any uncured default on the part of the Landlord under this Lease, and specifying
the nature of such default.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the 5th
day of October, 1995.
Witness ____________________________(LANDLORD)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: CONTROLLER
--------------------------------
Witness: TRANSTERRA CO. (TENANT)
------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: VICE PRESIDENT
--------------------------------
LEASE-3
September 1995
E0257
EXHIBIT A of E0257
EXHIBIT A
OUTLINE OF PREMISES
TO BE ATTACHED