Exhibit 10.32
BUILDING LEASE
This indenture, made this 5th day of September, 1997, by and between X.
X. Xxxxx, Trustee, and Xxxx X. Xxxxx, Trustee, hereinafter called the lessor,
and ACI Telecentrics, Incorporated, a Minnesota corporation, hereinafter called
the lessee.
Witnesseth:
The lessor, for and in consideration of the covenants and agreements
hereinafter contained to be kept and performed by the lessee, does hereby demise
and lease to the lessee and the lessee does hereby hire and take from the lessor
the premises, together with improvements thereon (hereinafter the premises),
located at 000 Xxxxx Xxxx, xx xxx Xxxx xx Xxxxxxxxx, Xxxxxx of Cherry, State of
Nebraska, and described as Lots 17 and 18, Original Town of Valentine, Cherry
County, Nebraska.
To have and to hold the premises hereby demised together with the rights,
easements, and appurtenances thereto belonging to the lessee, its successors,
and its assigns, on the following terms and conditions:
1. Term and use. The term of this lease shall be for a period of 120 months
commencing on November 15, 1997 , and shall continue to and include November 14,
2007, unless extended or sooner terminated as hereinafter provided. The lessee
may not use the premises for any unlawful use. The lessee further acknowledges
that it has inspected the premises and accepts the premises in an "as is"
condition.
2. Rent. (a) Fixed rent. The lessee shall pay to the lessor as and for fixed
rent (fixed rent) for the premises the amount of $420,000, payable $3,500 per
month, which amount shall be paid on the first day of each month during the term
hereof. The fixed rent shall be payable at the office of the lessor at the
address on the signature page of this lease, or such other place as is
designated by the lessor.
In the event of any fractional months occurring during the term of this lease,
the lessee shall pay rent on a pro rata basis calculated on the ratio of the
actual number of days of possession by the lessee to the total days in the month
in question.
(b) Additional rent. As and for additional rent (additional rent), the lessee
shall pay all costs and expenses of any nature or kind whatsoever attributable
to the premises during the term of this lease. These costs and expenses, if
applicable, shall include but are not necessarily limited to the following:
utilities (that is, gas, water, electric, and so forth); maintenance of the
premises, including but not necessarily limited to snow removal, sweeping of
sidewalks, painting, window cleaning, glass replacement, repair and upkeep of
roof, repair and upkeep of heating, airconditioning, and ventilation systems,
and repair and upkeep of plumbing and electrical systems; real estate taxes for
the premises and special assessments payable therewith prorated during the term
of this lease; all improvements placed on the premises by the lessee; and all
insurance premiums relative to the premises. It is specifically contemplated and
understood by the parties that by the terms of this section 2(b), the lessor
will not incur any financial responsibility relative to the premises during the
term of this lease.
3. Possession. Except as herein provided, the lessor shall deliver possession of
the premises in the condition required by this lease on or before the date
hereabove specified for commencement of the term, subject to unavoidable delays
beyond the lessor's control, but delivery of possession
prior to such commencement date shall not affect the expiration date of this
lease. If the premises shall not be available to the lessee for occupancy on the
first day of the term, the lessor shall not be liable to the lessee for damages,
but a pro rata part of the rent shall be abated until the premises are ready for
occupancy. The taking of possession of the premises by the lessee shall be
conclusive evidence that the premises are in the agreed condition at the
commencement of the lease term.
4. Unlawful use. The lessee agrees not to commit or permit any act to be
performed on the premises or any omission to occur that will be in violation of
any statute, regulation, or ordinance of any governmental body, that will
increase the insurance rate on the building, or that will be in violation of any
insurance policy carried on the premises by the lessor. The lessee shall not
disturb other occupants of the building by making any undue noise or otherwise
and shall not do or permit to be done in or about the premises anything that
will be dangerous to life or limb.
4.1. Environmental provisions.
(a) Lessor's representations. To the best of lessor's knowledge after
reasonable inquiry, lessor represents and warrants as follows:
(i) No claim, lawsuit, agency proceeding, or other legal
quasi-legal or administrative challenge has been brought concerning the
property, the operation of the property, or the existence of any
hazardous substances thereon during lessor's period of ownership.
(ii) Lessor has not used the property for any industrial or
commercial operation that utilizes hazardous substances. Owner is not
aware of any such prior use of the property.
(iii) Lessor has not spilled, discharged, released, deposited, or
emplaced any hazardous substance on the property, whether in containers
or other impoundments, or directly in the lands or waters of the
property. Lessor is not aware of any such substances in or on the
property.
(iv) Lessor has not installed or affixed any asbestos-containing
materials in the structures on the property.
(v) Lessor has not affixed or installed any electrical
transformers, fluorescent light fixtures or other electrical equipment
containing PCBs in the property.
(vi) Lessor has not installed any storage tanks, barrels, sumps,
impoundments, or other containers or equipment (movable or fixed) for
the containment of hazardous substances in any part of the property.
(vii) No governmental entity has served upon lessor any notice
claiming any violation of any statutes, ordinance, or regulations or
noting the need for any repair, construction, alteration, or
installation with respect to the property and hazardous substances or
radon, requiring any change in the means or methods of those conducting
operation thereon.
(b) Lessee's right to inspect. The lessee has been entitled to make an
environmental assessment by complete inspection and investigation of the
premises, either individually or by utilizing a third party. The lessee has
determined the premises to be free of hazardous substances.
(c) Maintenance.
(i) Lessee shall, at its expense, maintain and return the premises
free of any
contamination or damage by or from any hazardous substances.
(ii) Lessee shall not, without written consent of lessor, use,
maintain, or dispose of hazardous substances on the premises.
(d) Release. Lessee hereby waives, releases, and discharges forever lessor
from all present and future claims, demands, suits, legal and administrative
proceedings, and from all liability for damages, losses, costs, liabilities,
fees, and expense, present and future, arising out of or in any way connected
with lessor's use, maintenance, or operation of the premises prior to the
commencement of this lease term, any current condition of the environmental
contamination on the premises or the present existence of hazardous substances
on the premises, however they came to be placed thereon.
(e) Response. The parties may wish to decide prior to the lease on the
appropriate cleanup and/or legal response in case of contamination.
5. Lessor's access. The lessor, its employees, and its agents shall have the
right to enter the premises at all reasonable times for the purpose of
inspection, cleaning, repairing, altering, or improving the premises or to
exhibit the premises to prospective tenants, purchasers, or other. Nothing in
this section shall be interpreted as requiring the lessor to perform any such
acts independent of the requirements of the other provisions of this lease. The
lessor shall also be permitted to enter the premises for the purpose of posting
notices of nonresponsibility for alterations, additions, and repairs.
6. Improvements, alterations, and remodeling. The lessee shall be permitted to
perform the improvements, alterations, or remodeling on or to the premises as
set forth in exhibit B, attached hereto and made a part hereof; provided,
however, that they shall be done at the sole expense of the lessee. Any other
improvements, alterations, and remodeling shall be performed only with the
written consent of the lessor.
The lessor shall not be permitted to make any improvements or alterations to the
premises without the written consent of the lessee, except however, the lessor
may make repairs to the premises without the written consent of the lessee in
the event it reasonably appears that the lessee has failed to make the repairs
and when the continued failure to so repair will result in a substantial
diminution of the value of the lessor's reversionary interest in the premises.
The cost of any such repairs made by the lessor pursuant to this paragraph may
be charged to the lessee as additional rent.
7. Care of premises. All care, maintenance, and repair of the premises shall be
the sole responsibility of the lessee and shall be performed at the discretion
and expense of the lessee. In the event any such care, maintenance, or repair is
performed by the lessor or its designees, the lessor shall be entitled to
reimbursement therefor pursuant to the provisions contained in section 2 hereof.
8. Warranties of title and quiet possession. The lessor covenants that the
lessor has full right to make this lease subject to the terms hereof, and the
lessee shall have quiet and peaceful possession of the premises during the term
hereof as against the acts of all parties claiming title to, or a right to the
possession of, the premises.
9. Assignment and subletting. The lessee may not assign or hypothecate this
lease or sublet the premises or any part thereof, whether by voluntary act,
operation of law, or otherwise, without the prior written consent of the lessor
in each instance. Consent by the lessor to one assignment of this lease or to
one subletting of the premises shall not be a waiver of the lessor's rights
under this lease as to any subsequent assignment or subletting. The lessor's
rights to assign this lease
are and shall remain unqualified. No assignment shall release the lessee of any
of its obligations under this lease.
10. Eminent domain. If the premises are taken by any public authority under the
power of eminent domain or sold to any public authority pursuant to threat of
eminent domain, the lessee shall receive a proportionate share of the damages it
has suffered for the loss of the remainder of its lease. These damages shall be
mutually agreeable to the governmental authorities exercising the power of
eminent domain, to the lessor, and to the lessee. In the event that there is not
mutuality of agreement, the division of the damages shall be determined by
arbitration.
11. Fire and other casualty. If fire or other casualty shall render the premises
untenantable, this lease shall terminate forthwith, and any prepayments of rent
shall be refunded by the lessor pro rata; provided, however, that if the
premises can be repaired within ninety (90) days from the date of such event,
then at the lessor's option, by notice in writing to the lessee, mailed within
thirty (30) days after such damage or destruction, this lease shall remain in
full effect, but the rent for the period during which the premises are
untenantable shall be abated pro rata.
12. Insurance. It shall be the responsibility of the lessee to assure that the
premises are covered by hazard and public liability insurance policies. The
hazard insurance policies shall insure the premises against loss or damage by
fire and other perils as required by the Nebraska Standard Fire Insurance Policy
and extended coverage endorsements. Property damage shall be insured against in
the amount of $300,000.00. The public liability insurance policy shall provide
coverage at least in the amount of $1,000,000.00 per incident. The payment of
the premiums therefor shall be made by the lessee as additional rent, and in the
event the lessee chooses to maintain the current policies, a proration as of the
commencement of the term of this lease of any prepaid premiums shall be made.
The lessee shall at the request of the lessor provide proof of insurance
coverage required by this section.
13. Surrender. On the last day of the term of this lease or on the sooner
termination thereof, the lessee shall peaceably surrender the premises in good
condition and repair, reasonable wear and tear excepted, consistent with the
lessee's duty to make repairs as provided in section 6 hereof. On or before the
last day of the term of this lease or the sooner termination thereof, the lessee
shall at its expense remove all of its equipment from the premises, and any
property not removed shall be deemed abandoned. All alterations, additions, and
fixtures, other than the lessee's equipment, which have been made or installed
by either the lessor or the lessee on the premises shall remain as the lessor's
property and shall be surrendered with the premises as a part thereof. If the
premises are not surrendered at the end of the term or on the sooner termination
thereof, the lessee shall indemnify the lessor against any loss or liability
resulting from delay by the lessee in so surrendering the premises, including
without limitation claims made by any succeeding tenant founded on such delay.
The lessee shall promptly surrender all keys for the premises to the lessor at
the place then fixed for payment of rent and shall inform the lessor of
combinations on any locks and safes on the premises. In no event shall the
lessee be deemed to have abandoned the premises or this lease during the terms
hereof unless the lessee first obtains the express permission of the lessor. The
provisions of this section shall survive the termination of this lease.
14. Holding over. In the event that the lessee remains in possession of the
premises after the expiration of this lease without the execution of a new
lease, it shall be deemed to be occupying the premises as a tenant from month to
month, subject to all the conditions, provisions, and obligations of this lease
insofar as they can be applicable to a month-to-month tenancy.
15. Nonpayment of rent; defaults. On the occurrence of any of the following: (a)
a rent payment from the lessee to the lessor shall be and remain unpaid in whole
or part for more than thirty (30) days after it is due and payable; (b) the
lessee's violation or default in any of the other covenants,
agreements, stipulations, or conditions herein, and such violation or default
shall continue for a period of thirty days after written notice from the lessor
of such violation or default; or (c) if the lessee shall become insolvent or
have appointed a receiver of its property; then it shall be optional for the
lessor to declare this lease forfeited and the terms ended and to reenter the
premises.
16. Default of lessor. The lessor shall not be deemed to be in default under
this lease until the lessee has given the lessor written notice specifying the
nature of the default and unless the lessor does not cure the default within
thirty (30) days after the receipt of the notice or within such reasonable time
thereafter as may be necessary to cure the default where it is of such a
character as to reasonably require more than thirty (30) days to cure.
17. Covenants to hold harmless. Except in the case of the negligence of the
lessor, its agents, or its employees, the lessee agrees to save, hold harmless,
and defend the lessor against any liability for damages to any person or
property in or about the premises. The lessor shall not be liable to the lessee,
its agents, employees, representatives, customers, or invitees for any personal
injury, death, or damage to property caused by theft, burglary, water, gas,
electricity, fire, or for any other cause occurring on or about the premises.
All property kept, stored, or maintained in the premises shall be so kept,
stored, or maintained at the sole risk of the lessee. The lessee agrees to
promptly pay all sums of money in respect to labor, services, materials,
supplies, or equipment furnished or alleged to have been furnished to the lessee
in or about the premises.
18. Waiver of subrogation. The lessor and the lessee hereby mutually waive as
against each other any claim or cause of action for any loss, cost, damage, or
expense as a result of the occurrence of perils covered by the Nebraska Standard
Fire Insurance Policy and extended coverage endorsements.
19. Mechanic's liens. The lessee hereby covenants and agrees that the lessee
will not permit or allow any mechanic's or materialman's liens to be placed on
the lessor's interest in the premises during the term hereof. Notwithstanding
the previous sentence, however, in the event any such lien shall be so placed on
the lessor's interest, the lessee shall take all steps necessary to see that it
is removed within thirty (30) days of its being filed; provided, however, that
the lessee may contest any such lien provided the lessee first post a surety
bond, in favor of and insuring the lessor, in an amount sufficient to remove the
lien pursuant to the terms of the Nebraska lien laws.
20. No partnership, joint venture, or fiduciary relationship created hereby.
Nothing contained in this lease shall be interpreted as creating a partnership,
joint venture, or relationship of principal and agent between the lessor and the
lessee, it being understood that the sole relationship created hereby is one of
landlord and tenant.
21. Cumulative rights. No right or remedy herein conferred on or reserved to the
lessee or the lessor is intended to be exclusive of any other right or remedy
hereof provided by law, but each shall be cumulative in and in addition to every
other right or remedy given herein or not or hereafter existing at law or in
equity or by statute.
22. Reasonable consent. Whenever the lessor's or the lessee's consent shall be
required herein, such approval or consent shall not be arbitrarily or
unreasonably conditioned, delayed, or withheld and shall be deemed to have been
given, unless within twenty (20) days of the request therefor, the lessor or the
lessee as appropriate, notifies the requesting party that the lessor or the
lessee, as appropriate, is denying such approval or consent, stating in such
notice the reasonable ground therefor.
23. Further assurances. In addition to any other information which may
reasonably be requested, either party shall without charge, at any time and from
time to time hereafter, within ten (10) days
after written request for the same, certify by written instrument duly executed
and acknowledged to any person, firm, or corporation specified in such request:
(a) Whether this lease has been supplemented or amended, and if so, the
substance and manner of such supplement or amendment;
(b) The validity and force and effect of this lease, in accordance with its
tenor as then constituted;
(c) The existence of any default thereunder;
(d) The existence of any offsets, counterclaims, or defenses there to on
the part of such other party; and
(e) The commencement and expiration dates of the term of this lease.
Any such certificate may be relied on by the party who requested it and by any
other person, firm, or corporation to whom it may be exhibited or delivered, and
the contents of the certificate shall be binding on the party executing it.
24. Notices. All communications, demands, notices, or objections permitted or
required to be given or served under this lease shall be in writing and shall be
deemed to have been duly given or served if delivered in person to the other
party or its duly authorized agent or if deposited in the United States mail,
postage prepaid, for mailing by certified or registered mail, return receipt
requested, or if telegraphed, by prepaid telegram, and addressed to the other
party to this lease, to the address set forth next to that party's signature at
the end of this lease, or if to a person not a party to this lease, to the
address designated by a party to this lease in the foregoing manner. Any party
may change its address by giving notice in writing, stating its new address, to
any other party as provided in the foregoing manner. Commencing on the tenth
(lOth) day after the giving of notice, the newly designated address shall be
that party's address for the purpose of all communications, demands, notices, or
objections permitted or required to be given or served under this lease.
25. Successors and assigns. This lease shall be binding on and shall inure to
the benefit of the parties hereto and their respective assigns, executors,
heirs, personal representatives, and successors.
26. Subordination. The lessee agrees that at the lessor's election this lease
shall be subordinate to any land lease, mortgages, or trust deeds now on or
placed on the premises and to any and all advances to be made thereunder, and to
the interest thereon, and all renewals, replacements, and extensions thereof.
The lessee hereby appoints the lessor as its attorney-in-fact to execute such
documents as may be required to accomplish such subordination.
27. Brokerage fees. Each party hereto warrants that it has not incurred any real
estate brokerage fees, finders' fees, loan brokerage fees, or any other fees to
any third party in connection with this lease other than those listed by each
party in a n attached list marked Exhibit A. Each party shall be liable for any
such fees incurred by such party.
28. Amendment, modification, or waiver. No amendment, modification, or waiver of
any condition, provision, or term of this lease shall be valid or of any effect
unless made in writing, signed by the party or parties to be bound or by its
duly authorized representative, and specifying with particularity the extent and
nature of such amendment, modification, or waiver. Any waiver by any party of
any default of another party shall not affect or impair any right arising from
any subsequent default.
29. Severable provisions. Each provision, section, sentence, clause, phrase, and
word of this lease is intended to be severable. If any provision, section,
sentence, clause, phrase, or word hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of this lease.
30. Entire agreement. This lease contains the entire understanding of the
parties hereto with respect to the transactions contemplated hereby and
supersedes all proper agreements and understandings between the parties with
respect to such subject matter. No representations, warranties, undertakings, or
promises, whether oral, implied, written, or otherwise, have been made by either
party hereto to the other unless expressly stated in this lease or unless
mutually agreed to in writing between the parties hereto after the date hereof,
and neither party has relied on any verbal representations, agreements, or
understandings not expressly set forth herein.
31. Captions, headings, or titles. All captions, headings, or titles in the
paragraphs or sections of this lease are inserted for convenience of reference
only and shall not constitute a part of this lease as a limitation of the scope
of the particular paragraphs or sections to which they apply.
32. Reference to gender. Where appropriate, the feminine gender may be read as
the masculine gender or the neuter gender; the masculine gender may be read as
the feminine gender or the neuter gender; and the neuter gender may be read as
the masculine gender or the feminine gender.
33. Nebraska law. This lease shall be construed and enforced in accordance with
the laws of the state of Nebraska.
34. LB 775. All sales and use tax refunds payable pursuant to the Nebraska
Employment and Investment Growth Act ("LB 775") for construction of the
improvements pursuant to Section 6 hereof and the payment of sales and use taxes
for the purchase or lease of tangible personal property in conjunction with the
construction of the improvements shall be paid to lessee, whether paid directly
by the State of Nebraska to lessee, or is such amounts are initially paid to
lessor, such amounts will be remitted by lessor to lessee. All applicable
Nebraska state and local use taxes will be paid by lessor and lessor's
contractors and subcontractors. Lessor will contractually rquire all its
contractors and subcontractors to pay such taxes. Lessor shall appoint lessor's
contractors and subcontractors as agents to purchase the tangible personal
property (such as building materials) to be incorporated into the Building. The
appointment shall be made by having lessor enter into purchasing agent
appointment agreements with lessor's contractors and subcontractors before such
property is purchased by lessor's contractors and subcontractors. This
purchasing agent appointment agreement shall be in such form as is necessary for
purposes of LB 775. Lessor shall keep sufficient written records to establish
the payment to the State of Nebraska of all Nebraska state and local sales and
use taxes paid by lessor and lessor's contractors and subcontractors on tangible
personal property incorporated into the Building.
In witness whereof, the parties hereto have executed this lease the day and year
first above written.
/s/ X.X. XXXXX ACI TELECENTRICS, INCORPORATED
X. X. XXXXX, TRUSTEE, LESSOR LESSEE
/s/ XXXX X. XXXXX /s/ XXXXXX X. XXXX
XXXX X. XXXXX, TRUSTEE, LESSOR
Lessors' address: 143 North Main, Lessee's Address: 0000 Xxxx Xxxx Xx.
Xxxxxxxxx, XX 00000 Suite 000
Xxxxxxxxxxx, XX 00000
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF CHERRY )
The foregoing instrument was acknowledged before me on September 9,
1997, by X. X. Xxxxx, Trustee, and Xxxx X. Xxxxx, Trustee.
----------------------------------
NOTARY PUBLIC
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on September 5, 1997,
by Xxxxxx X. Xxxx, Vice President of ACI Telecentrics, Incorporated, a Minnesota
corporation, on behalf of said corporation.
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NOTARY PUBLIC
