LEASE AGREEMENT Between Rushmore Cedar L.L.C. as Lessor and DLORAH, INC. d/b/a NATIONAL AMERICAN UNIVERSITY as Lessee Dated as of August , 2011
Exhibit 10.1
Between
Rushmore Cedar L.L.C.
as Lessor
and
DLORAH, INC.
d/b/a NATIONAL AMERICAN UNIVERSITY
as Lessee
Dated as of August , 2011
BASIC LEASE INFORMATION
Lease Date:
|
For identification purposes only, the date of this Lease is August _____, 2011. | |
Lessor:
|
Rushmore Cedar L.L.C., an Iowa limited liability company | |
Lessee:
|
Dlorah, Inc., d/b/a National American University, a South Dakota corporation |
|
Building:
|
A 2 story office building containing approximately 94,371 rentable square feet | |
Building Address:
|
0000 X. Xxxxxxx 00, Xxxxx Xxxx, Xxxxx Xxxxxx 00000 | |
Premises:
|
Lot One (1) of IGT Subdivision, City of Rapid City; as shown by the Plat recorded in Book 34 of Plats on Page 110 in the office of the Register of Deeds, Xxxxxxxxxx County, South Dakota | |
Term:
|
Twenty (20) years with two (2) options to renew for successive periods of five (5) years each | |
Commencement Date:
|
Earlier of November 1, 2011 or completion of Lessee Improvements under Section 2.03 of Lease | |
Expiration Date:
|
Twenty (20) years from Commencement Date | |
Base Rent:
|
Initially $1,038,081.00 per annum ($11.00 per square foot) during the first year of the Lease Term, subject to 2% per year increases as shown on the attached Schedule B. Base Rent during the Extension Period shall be as agreed by Lessor and Lessee. | |
Lessee’s Share:
|
Triple Net Lease for entire Premises |
Lessor’s Address for Notice Purposes: |
Rushmore Cedar L.L.C. c/o Xxxx Xxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 With copies to: Rushmore Cedar L.L.C. Attn: Xxxx Xxxxxxxx McGladrey & Xxxxxx, LLP 000 X. Xxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000 |
|
Lessee’s Address for Notice Purposes: |
Dlorah, Inc., d/b/a National American University ATTN: Business Xxxxxx 0000 X. Xxxxxxx 00, Xxxxx 000 Xxxxx Xxxx, XX 00000 With copies to: Dlorah, Inc., d/b/a National American University ATTN: General Counsel 0000 X. Xxxxxxx 00, Xxxxx 000 Xxxxx Xxxx, XX 00000 |
Exhibits |
||
Schedule A:
|
Legal Description | |
Schedule B:
|
Rent — Initial Term | |
Schedule C:
|
Commencement Date Form | |
Schedule D:
|
Sign Drawings |
2
THIS LEASE AGREEMENT (this “Lease”) is made and entered into as of the as of the date of the
last signature hereon by and between RUSHMORE CEDAR L.L.C., an Iowa limited liability company
(“Lessor”), and DLORAH, INC., d/b/a NATIONAL AMERICAN UNIVERSITY, a South Dakota corporation
(herein, together with permitted successors and assigns, called “Lessee”).
ARTICLE I
Section 1.01. Lease of Premises. (a) For and in consideration of the rents and covenants
herein stipulated to be paid and performed by Lessee and upon the terms and conditions herein
specified, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the exclusive use
of the real estate, and improvements thereto, including a building of approximately 94,371 square
feet rentable space, described in Schedule “A” attached hereto and made a part hereof having an
address of 0000 X. Xxxxxxx 00, Xxxxx Xxxx, Xxxxx Xxxxxx 00000. The Real Estate and the
Improvements thereon are collectively referred to herein as the “Premises.”
Section 1.02. Condition of Premises. The Premises are leased to Lessee in their present
condition and “as-is” condition without representation or warranty by Lessor and subject to the
rights of parties in possession, to the existing state of title, the existing state and quality of
the Premises, any state of facts that an accurate survey or physical inspection of the Premises
might show, all zoning regulations, restrictions, rules and ordinances, building restrictions and
other laws and regulations now in effect or hereafter adopted by any governmental authority having
jurisdiction, now or hereafter in effect. Within thirty (30) days of the execution of this Lease
by both Lessor and Lessee, Lessor shall at Lessor’s expense have the equipment necessary to operate
the building inspected by a qualified inspector and provide the report including an itemized list
of the equipment to Lessee. Lessee shall have thirty (30) days from receipt of said report to
determine whether Lessee is satisfied with the condition of the equipment as set forth in said
report. In the event that Lessee is not satisfied with the condition of the equipment, Lessee may
terminate this Lease with written notice to Lessor within thirty (30) days of receipt of said
written inspection report.
Section 1.03. Use. Lessee may use the Premises or cause it to be used only for Permitted
Uses. “Permitted Uses” are defined as all uses permitted by law, the certificate of occupancy and
regulations of the applicable local planning, building and other agencies. Lessee shall not use
the Premises for any other purpose without the prior written consent of Lessor, which consent may
be withheld in its absolute discretion. Without limiting the generality of the foregoing, Lessor
may condition or withhold such consent if the proposed use will significantly alter the character
or purpose or detract or diminish the value or operating efficiency of the Premises, significantly
impair the revenue-producing capability of the Premises, adversely affect the ability of Lessee to
comply with this Lease, increase the use, handling, generation, storage, transportation or disposal
of any Hazardous Materials or constitute a public or private nuisance.
[Execution Page Of Lease Agreement]
Section 1.04. Term and Possession.
(a) The term of this Lease (the “Initial Term”) will commence on the “Commencement
Date” which shall be the earlier of November 1, 2011, or completion of Lessee Improvements
under Section 2.03 herein and end twenty (20) years thereafter at midnight (the “Expiration
Date”), or such earlier date as this Lease is terminated pursuant to its terms or by law.
Lessee will have two (2) options to extend the Lease Term each for a successive period of
five (5) years
(the “Extension Term”, and together with the Initial Term may be referred to herein as
the “Lease Term”) provided an Event of Default does not exist as of the date of exercise of
the extension option and as of commencement date of the applicable Extension Term. The
extension option will be exercisable by written notice to Lessor given at least nine (9)
months prior to the Expiration Date of the Initial Term or the expiration of the preceding
Extension Term, as the case may be. The extension of the Lease Term shall be on the same
covenants, agreements, provisions, and conditions as set forth in the Lease for the Initial
Term, other than as expressly set forth herein. The rent during the extension option term
shall be at fair market rental rates as mutually agreed to by Lessor and Lessee.
(b) Once the actual Commencement Date is determined, the parties will execute the
Commencement Date Form as attached as Schedule C.
Section 1.05. Rent.
(a) Base Rent. Commencing on the Commencement Date, Lessee shall pay to Lessor Base
Rent as set forth in Schedule B attached hereto (“Base Rent”).
(b) Payment of Rent. (i) Lessee will pay to Lessor Base Rent and real estate taxes as
set forth in Section 1.2 at the principal office of Lessor, or at such other place or to
such agent as Lessor from time to time may designate by written notice to Lessee given not
later than the first day of the month for the following and subsequent months. Base Rent
shall be payable in equal monthly installments, in advance, on the first day of each
calendar month, and shall be prorated for any partial months. Lessee shall perform all its
obligations under this Lease at its sole cost and expense, and shall pay all Base Rent and
other amounts under this Lease, without notice or demand., and without setoff, counterclaim,
abatement, suspension, deduction or defense except as otherwise provided for in this Lease.
(c) Net Lease. This Lease is what is commonly called a “triple net lease,” it being
understood that Lessor shall receive the Base Rent and Real Estate Taxes free and clear of
any and all Taxes, other Impositions, liens, charges, or expenses of any nature whatsoever
incurred in connection with the ownership and operation of the Premises. During the Lease
Term, Lessee shall pay all costs and expenses related to the real estate and improvements
thereon including but not limited to the following:
(i) Real Estate Taxes under Section 1.2 herein.
(ii) Maintenance Expenses under Section 2.01 herein.
(iii) Alteration Expenses under Section 2.02 herein.
(iv) Utilities under Section 1.4 herein.
(v) Insurance Costs under Article XI herein.
(d) Late Payments and Interest. If any installment of Rent or other amount due is not
received by Lessor (i) within five (5) days after such payment is due (regardless of any
notice provisions contained in this Lease), Lessee shall pay Lessor a late charge equal to
5% of the amount so delinquent, notwithstanding the date on which such payment is actually
paid to Lessor, and (ii) within 30 days after such payment is due (regardless of any notice
provisions
contained in this Lease), then in addition to the late charge Lessee shall pay Lessor
interest on such amount from the date on which it was originally due until the date it is
actually paid at a per annum rate equal to the lesser of (y) 12% and (z) the maximum rate
permitted by applicable law. The foregoing amounts are intended as stipulated compensation
for the additional costs and expenses incurred by Lessor because of such late payment and
not as a penalty. Notwithstanding anything in this Section to the contrary, Lessor agrees
that it shall only impose the interest or the late payment charge on delinquent amounts if
Lessee fails to make timely payment of Rent on more than 1 occasion in any 12 month period.
(e) TAXES AND UTILITIES, REAL ESTATE ASSOCIATION FEES
1.2 Payment of Taxes. Lessee shall pay to Lessor the Taxes (as defined in Section
1.2.1 — 1.2.4) applicable to and due for the Premises during the Lease Term. Lessor shall provide
Lessee with copies of any tax bills applicable to the Premises promptly after receipt of such
bills.
During the Lease Term, Lessee shall pay to Lessor, monthly in advance, an amount equal to
one-twelfth (1/12th) of the Taxes for the current tax year, as reasonably estimated by
Lessor (“Estimated Tax Deposit”). If the actual amount of Taxes with respect to any tax year is
less than the total amount of Lessee’s Estimated Tax Deposit paid by Lessee for the tax year, the
excess shall be credited against Lessee’s Estimated Tax Deposit due for the succeeding tax year.
If the Lease term has expired or been terminated and Lessee is not then in default, Lessor shall
refund the amount of such overpayment to Lessee. If the actual amount of Taxes for any tax year
exceeds the total amount of Lessee’s Estimated Tax Deposit paid by Lessee for the tax year, Lessee
shall, upon receipt of invoices from Lessor, pay the difference between the actual amount paid by
Lessee and the actual amount of Taxes. Lessee shall pay Lessor the deficit within ten (10) days
after receipt of such notice. Lessor shall have the right, from time to time, during the Lease
term to notify Lessee in writing of any adjustments in the amount of the taxes and assessments
payable by Lessee and thereafter Lessee shall make its payment accordingly without notice or
demand. For the calendar year in which this Lease commences and terminates, the provisions of this
Section shall apply, and Lessee’s liability for such years shall be subject to a pro rata
adjustment based on the number of days of said calendar years during which the term of this Lease
is in effect. Lessee’s obligation for additional rent under this Section through the Termination
Date shall survive the expiration of the term of this Lease for tax obligations which are due prior
to the Termination Date.
Definition of “Taxes”. As used herein, the term “Taxes” shall include:
1.2.1 any form of real estate tax or assessment, ad valorem tax or gross receipts tax, imposed
by any authority having the direct or indirect power to tax, including any city, county, state, or
federal government, or any school, agricultural, sanitary, fire, street, drainage, or other
improvement district thereof, on, against or with respect to the Premises, this Lease, any legal or
equitable interest of Lessor in the Premises or in the real property of which the Premises are a
part;
1.2.2 any tax, fee, levy, assessment, penalty, interest or other charge (i) in substitution
of, partially or totally, any tax, fee, levy, assessment, or charge hereinabove included within
this definition of Taxes, or (ii) any tax or increase in any tax which is imposed as a result of a
transfer, either partial or total, of Lessor’s interest in the Premises to Lessee, or (iii) which
is imposed by reason of this transaction, any modifications or changes hereto, or any transfers
hereof; and
1.2.3 all inspection fees, taxes, bonds, permits, certificates, assessments and sales, use,
property or other taxes except as provided for in section 1.2.5 herein, fees or tolls of any nature
whatsoever (together with any related interest or penalties) hereafter imposed against Lessor or
Lessee by
any federal, state, county or local governmental authority upon or with respect to the
Premises or the use thereof or upon the possession, leasing, use, operation or other disposition
thereof or upon the rents, receipts or earnings arising therefrom or upon or with respect to this
Lease; and
1.2.4 all taxes assessed against and levied upon trade fixtures, furnishings, equipment, and
all other personal property of Lessee contained in the Premises or elsewhere, which Lessee shall
cause to be separately assessed and billed directly to Lessee.
1.2.5 “Taxes” shall not include any general income taxes, inheritance taxes,
and estate taxes imposed upon Lessor.
1.3 Lessee’s Right to Contest Taxes.
1.3.1 Lessee shall have the right, at its sole cost and expense, to contest the amount or
validity, in whole or in part, of any Taxes by appropriate proceedings diligently conducted in good
faith, but no such contest shall be carried on or maintained by Lessee after the time limit for the
payment of any Taxes unless Lessee shall (i) pay the amount involved under protest; (ii) procure
and maintain a stay of all proceedings to enforce any collection of any Taxes, together with all
penalties, interest, costs and expenses, by a deposit of a sufficient sum of money, or by such
undertaking, as may be required or permitted by law to accomplish such stay; or (iii) deposit with
Lessor, as security for the performance by Lessee of its obligations hereunder with respect to such
Taxes, 150% of such contested amount or such other reasonable security as may be demanded by Lessor
to insure payment of such contested Taxes and all penalties, interest, costs and expenses which may
accrue during the period of the contest. Upon the termination of any such proceedings, Lessee
shall pay the amount of such Taxes or part thereof, as finally determined in such proceedings,
together with any costs, fees (including all reasonable attorneys’ fees and expenses), penalties or
other liabilities in connection therewith; provided, however, that if Lessee has deposited cash or
cash equivalents with Lessor as security under clause (iii) above, then, so long as no default
exists under this Lease, Lessor shall arrange to pay such Taxes (or part thereof) together with the
applicable costs, fees and liabilities as described above out of such cash or cash equivalents and
return any unused balance, if any, to Lessee. Otherwise, Lessor shall return to Lessee all
amounts, if any, held by or on behalf of Lessor which were deposited by Lessee in accordance with
such clause (iii).
1.3.2 Lessee shall have the right, at its cost and expense, to seek a reduction in the
valuation of the Premises as assessed for tax purposes and to prosecute any action or proceeding in
connection therewith. Provided Lessee is not in default hereunder, Lessee shall be authorized to
retain any tax refund of any tax paid by Lessee.
1.3.3 Lessor agrees that whenever Lessor’s cooperation is required in any proceeding brought
by Lessee to contest any tax, Lessor will reasonably cooperate therein, provided same shall not
entail any cost, liability or expense to Lessor. Lessee shall pay, indemnify and save Lessor
harmless of and from, any and all liabilities, losses, judgments, decrees, costs and expenses
(including all reasonable attorneys’ fees and expenses) in connection with any such contest and
shall, promptly after the final settlement, fully pay and discharge the amounts which shall be
levied, assessed, charged or imposed or be determined to be payable therein or in connection
therewith, and Lessee shall perform and observe all acts and obligations, the performance of which
shall be ordered or decreed as a result thereof. No such contest shall subject Lessor to the risk
of any civil liability or the risk of any criminal liability.
1.4 Payment of Utilities. Lessee shall pay to the utility companies or other parties
entitled to payment the cost of all water, heat, air conditioning, gas, electricity, telephone, and
other utilities and services provided to or for the Premises, including, without limitation,
connection fees and taxes thereon.
1.5 Interruption in Utility Service. Lessor shall not be liable in damages or
otherwise for any failure or interruption of any utility or other service being furnished to the
Premises, and no such failure or interruption shall entitle Lessee to any abatement of, set off or
reduction in the amounts payable to Lessor hereunder or otherwise entitle Lessee to terminate this
Lease. Lessor shall not take any action which prevents or interrupt utility service to the
Premises.
Section 1.06. Quiet Enjoyment. Lessor covenants that Lessee, upon paying the Base Rent and
other sums payable hereunder and performing and complying with all the terms hereof, shall, subject
to the terms of this Lease, lawfully, peaceably and quietly hold, occupy, possess and enjoy the
Premises during the term of this Lease, without hindrance or molestation by Lessor or others
claiming through Lessor.
ARTICLE II
Section 2.01. Maintenance and Repair.
(a) Lessee’s Obligations. Lessee shall, at its sole cost and expense,
maintain in good repair, order, and serviceable condition the Premises and every part thereof,
including, without limitation all structural elements; the roof and all roof elements; all
plumbing, ventilation, heating, air conditioning, and electrical systems and equipment in, on, or
exclusively serving, the Premises; and all windows, doors, storefronts, plate glass, interior
walls, and ceilings which are part of the Premises. Lessee shall not make any claim or demand upon
or bring any action against Lessor for any loss, cost, injury, damage or other expense caused by
any failure or defect, structural or non-structural, of the Premises or any part thereof.
(b) Lessor’s Obligations. Lessor warrants that it is not aware, to the best
of its knowledge, of any latent or obvious defect or failure, structural or non-structural, on the
Premises. Lessor has no obligation to repair and maintain the Premises, nor any improvements or
equipment thereon, whether interior or exterior, structural or nonstructural, ordinary or
extraordinary. Lessee expressly waives the benefit of any statute or law now or hereafter in
effect which would otherwise afford Lessee the right to terminate this Lease because of Lessor’s
failure to keep the Premises in good order, condition, and repair, or the right to repair and
offset the cost related thereto against rent.
(c) Lessor’s Rights. If Lessee refuses or neglects to make repairs or
maintain the Premises, or any part thereof, in a manner reasonably satisfactory to Lessor, without
prejudice to any other remedy Lessor may have hereunder, upon giving Lessee 30 days prior written
notice, Lessor shall have the right to enter the Premises and perform such maintenance or make such
repairs on behalf of and for the account of Lessee. In the event Lessor so elects, Lessee shall
pay the cost of such repairs, maintenance, or replacements within 30 days following receipt of a
xxxx therefor. Lessee agrees to permit Lessor or its agent to enter the Premises, upon reasonable
prior written notice by Lessor, during normal business hours for the purpose of inspecting the
Premises. Lessee will not be responsible for any inspection fees associated with any inspections
of the Premises by or on behalf of Lessor.
Section 2.02. Alterations.
(a) Consent to Alterations. Subject to the prior written consent of Lessor,
which consent shall not be unreasonably withheld, Lessee may, at its sole cost and expense, make
alterations, replacements, additions, changes, and improvements (collectively referred to in this
Article as “Alterations”) to the Premises as it may find necessary or convenient for its
purposes, but only after giving Lessor written notice thereof, together with copies of all
architectural plans and specifications
relating to any such Alteration. Notwithstanding the foregoing, Lessor’s consent with respect to
any structural Alterations to the Premises, including the foundations, structural walls, roof, roof
membrane, utilities and/or building systems, may be conditioned upon Lessee’s removing any such
Alterations upon the expiration or termination of the Lease Term and restoring the Premises to the
condition which existed on the date Lessee took possession, subject to normal wear and tear.
Notwithstanding anything to contrary in this Section 2.02(a), Lessee’s notice to Lessor and Lessor
consent are only required for alterations that the cost of said alteration exceeds $100,000.00.
(b) Removal of Alterations. All Alterations made on the Premises except for
Lessee’s trade fixtures shall become the property of Lessor at the expiration or termination of the
Lease Term and shall be surrendered with the Premises.
(c) Alterations Required by Law. Lessee shall, at its sole cost and expense,
make any Alteration, structural or otherwise, to or on the Premises, or any part thereof, which may
be necessary or required by reason of any law, rule, regulation, or order promulgated by competent
government authority.
(d) General Conditions Relating to Alterations. Any Alteration shall be
subject to the following conditions:
(i) No Alteration shall be undertaken until Lessee shall have procured and paid for all
required permits and authorizations of all municipal departments and governmental subdivisions
having jurisdiction.
(ii) Any Alteration involving an estimated cost of more than $100,000 shall be conducted under
the supervision of a licensed architect or engineer selected by Lessee and satisfactory to Lessor,
and shall be made in accordance with detailed plans and specifications and cost estimates prepared
by such architect or engineer and approved in writing in advance by Lessor.
(iii) Any Alteration shall be made promptly and in a good workmanlike manner, by properly
qualified and licensed personnel, and in compliance with all applicable permits and authorizations
and building and zoning laws and all laws, and in accordance with the orders, rules and regulations
of the Board of Fire Insurance Underwriters and any other body hereafter exercising similar
functions having or asserting jurisdiction over the Premises.
(iv) No Alteration shall tie-in or connect the Premises or any improvements thereon with any
property outside the Premises without the prior written consent of Lessor.
(iv) No Alteration shall reduce the value of the Premises or impair the structural integrity
of any building comprising a part of the Premises.
(v) Liens. In connection with Alterations or otherwise, Lessee shall do all
things necessary to prevent the filing of any liens or encumbrances against the Premises, or any
part thereof, or upon any interest of Lessor or any mortgagee, by reason of labor, services or
materials supplied or claimed to have been supplied to Lessee, or anyone holding the Premises, or
any part thereof, through or under Lessee. If any such lien or encumbrance shall at any time be
filed against all or any portion of the Premises, Lessee shall either cause same to be discharged
of record within 30 days after the date of filing of same or, if Lessee in good faith determines
that such lien should be contested, Lessee shall either (i) bond over such lien in accordance with
applicable law, or (ii) furnish such security as Lessor shall, in its sole discretion, determine to
be necessary and/or required to prevent any foreclosure proceedings against all or any portion of
the Premises during the pendency of such contest. If Lessee shall fail to discharge or
bond over such lien or encumbrance or fail to furnish such security within such period, then, in
addition to any other right or remedy of Lessor resulting from said default of Lessee, Lessor may,
but shall not be obligated to, discharge the same either by paying the amount claimed to be due or
by procuring the discharge of such lien by giving security or in such other manner as is, or may
be, prescribed by law, and Lessee agrees to reimburse Lessor within 5 days after demand for all
costs, expenses, and other sums of money spent in connection therewith.
(e) Lessor under Section 2.03 below will not increase the Base Rent during the term of this
Lease and any extensions thereof. In addition, in the event that Lessee constructs, at its sole
cost, an approved Alteration which increases the rentable square footage of the Premises by 4,600
square feet or less, Lessor will not have the right to increase the Base Rent during the term of
this Lease and any extensions thereof. Lessee shall not have the right to increase the rentable
square footage of the Premises by more than 4,600 square feet without first reaching an agreement
with Lessor as to whether there will be an increase in the Base Rent to account for the additional
rentable square footage and if so, the amount and term of said increase. For purposes of this
paragraph, “rentable square footage” refers to the usable interior space of the buildings on the
Premises.
Section 2.03. Leasehold Improvements.
Notwithstanding anything to the contrary in this Lease, Lessee shall be permitted to construct
a campus facility in the current warehouse located in the Premises, remodel and renovate the
offices within the Premises previously occupied by I.G.T. and construct additional parking spaces
on the Premises. Lessor will provide Lessee with access to the Premises for purposes of
constructing such improvements upon execution of this Lease Agreement. If Lessee wishes to make
these improvements, Lessee shall first present to Lessor the following:
(i) detailed plans and specifications for the work, (ii) names and addresses of contractors
(“Contractors”) and subcontractors (“Subcontractors”), (iii) evidence of the public liability and
property damage insurance carried by each of Lessee’s Contractors and Subcontractors, (iv) copies
of contracts with each of Lessee’s Contractors and Subcontractors which shall provide, among other
things, that no changes, amendments, extras or additional work costing in excess of $50,000.00 are
permitted without the consent of Lessor, and (v) reports from engineers acceptable to Lessor
stating that the work will not in any way adversely affect the structural or mechanical systems in
the Premises, such as, but not limited to, the heating, ventilating, air conditioning or electrical
system.
Lessee’s right to make the above-described improvements is conditioned upon Lessor’s consent
which consent shall not be unreasonably withheld. If Lessor shall give its consent, such consent
shall be deemed conditioned upon Lessee acquiring a permit to do so from appropriate governmental
agencies, the furnishing of a copy thereof to Lessor prior to the commencement of such work, and
compliance by Lessee with all conditions of said permit in a prompt and expeditious manner. Lessee
shall pay when due all claims for labor or materials furnished to or for such alterations,
improvements or additions. Lessee shall give to Lessor not less than 10 days’ written notice prior
to the commencement of any work in or about the Premises. If Lessee shall, in good faith, contest
the validity of any lien, claim or demand, Lessee shall, at its sole cost and expense, defend
itself and Lessor against the same and shall pay and satisfy any adverse judgment that may be
rendered thereon before the enforcement thereof against Lessor or the Premises, upon the condition
that, if Lessor shall require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor
in an amount equal to such contested lien claim or demand indemnifying Lessor against liability for
the same and holding the Premises free from the effect thereof. All alterations, improvements or
additions which may be made in or about the Premises shall be the property of Lessor and shall
remain upon and be surrendered with the Premises at the expiration of the term hereof.
Notwithstanding the foregoing sentence, Lessee’s furniture, trade fixtures, equipment, merchandise
and other personal property, other than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises shall remain the property of Lessee and shall be
removed by Lessee on the last day of the term hereof, or on any sooner termination.
Any and all work performed under this Section 2.03 shall be performed in a good and
workmanlike manner.
Lessee shall notify Lessor when Lessee’s leasehold improvements made pursuant to this Section
2.03 have been completed, and Lessor shall promptly inspect the improvements and if the
improvements have been completed, provide Lessee a statement confirming that the improvements are
completed.
When the improvements are completed, Lessee shall also provide Lessor documentation, including
mechanic’s lien waivers that confirm that Lessee has paid any and all bills and costs associated
with construction of the improvements. Within 30 days of completion of the improvements and
receipt by Lessor of confirmation that all bills and costs of the leasehold improvements have been
paid by Lessee, Lessor shall pay Lessee the cost of the improvements (including up to 160 parking
spaces) or $2,000,000.00, whichever is less. Additional parking spaces may be built at Lessee’s
expense.
If construction of the improvements under this Section 2.03 is not commenced by the fifth
anniversary of the Commencement Date of the Lease, the rights and obligations under this Section
2.03 shall terminate.
Section 2.04. Encumbrances. If all or any part of the any improvements, structures or
alterations constructed for or on behalf of Lessee shall encroach upon any property, street or
right-of-way adjoining or adjacent to the Premises, or shall violate the agreements or conditions
affecting the Premises or any part thereof, or shall hinder, obstruct or impair any easement or
right-of-way to which the Premises are subject, then, promptly after written request of Lessor
(unless such encroachment, violation, hindrance, obstruction or impairment is not material) or of
any person so affected, Lessee shall, at its expense, either (a) obtain valid and effective waivers
or settlements of all claims, liabilities and damages resulting therefrom or (b) if Lessor consents
thereto, make such changes, including alteration or removal, to the improvement, structure or
alteration and take such other action as shall be necessary to remove or eliminate such
encroachments, violations, hindrances, obstructions or impairments.
Section 2.05. Compliance with Covenants and Laws. Lessee agrees that it will comply with and
cause the Premises to comply with and shall assume all obligations and liabilities with respect to
(i) all material covenants, conditions, reservations, agreements, easements or restrictions to
which the Premises may be subject on the Commencement Date or which may be imposed after said date
which are consented to in writing by Lessee, and (ii) all laws, ordinances and regulations and
other governmental rules, orders and determinations presently in effect or hereafter enacted, made
or issued, whether or not presently contemplated applicable to the Premises or the ownership,
operation, use or possession thereof.
Section 2.06. No Third-party Claims Against Lessor. Nothing contained in this Lease shall
constitute the consent or request of Lessor, express or implied, by inference or otherwise, to any
person, firm or entity for the performance of any labor or the furnishing of any materials or other
property in respect of the Premises or any part thereof, or as giving Lessee any authority to
contract for or permit the rendering of any services or the furnishing of any materials or other
property with the intent of making of any claim against Lessor. NOTICE IS HEREBY GIVEN THAT
LESSOR WILL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO
LESSEE, OR TO ANYONE HOLDING AN INTEREST IN THE PREMISES (OR ANY PART THEREOF) THROUGH OR
UNDER LESSEE, AND THAT NO CONSTRUCTION, MECHANIC’S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR IN THE PREMISES.
Section 2.07. Signage. Except with respect to such lettering, signs, or advertisements of
Lessee in place as of the Commencement Date or approved by Lessor prior to the Commencement Date,
Lessee shall not display or erect any lettering, sign or advertisement if the same can be seen from
outside of the Premises (any of which shall be considered a “Sign” for purposes of this Lease),
without the prior written approval of Lessor in each instance, which approval will not be
unreasonably withheld or delayed; provided, however, Lessee may, at its own cost, install signage
on the building and the lighted monument sign located due east of the Building located on the Land,
as depicted in Schedule D. All Signs must, at all times, conform with all applicable legal
requirements, including building and zoning codes. Lessee shall, at its sole cost and expense,
install, insure, operate and maintain its Signs in good order, condition, appearance and repair.
All Signs installed by or on behalf of Lessee shall, on or before the Expiration Date, be removed
by Lessee, at Lessee’s expense. Lessee shall promptly repair any damage resulting from such
removal.
ARTICLE III
Section 3.01. Removal of Equipment. Except as otherwise provided for in this Lease, Lessee
may remove its machinery, equipment, furniture, furnishings and other personal property installed
by Lessee. Any of Lessee’s Equipment not removed by Lessee prior to the expiration of the Lease or
earlier termination shall be considered abandoned by Lessee and may be appropriated, sold,
destroyed or otherwise disposed of by Lessor without notice to Lessee. Lessee shall pay Lessor
upon demand all reasonable costs and expenses incurred by Lessor in removing, storing and disposing
of same. Lessee will repair at its expense all damage to the Premises necessarily caused by the
removal of Lessee’s Equipment, whether effected by Lessee or by Lessor. All of Lessor’s existing
equipment used in the maintenance of the Premises (and as itemized in the report required by
section 1.02 herein) will be made available to Lessee to use at no charge. Lessee will care for
and maintain such equipment. Any replacement of such equipment will be purchased by and will be
property of Lessee. Notwithstanding anything to the contrary herein, all alterations,
improvements, additions and equipment affixed to the Premises which may be made in or about the
Premises shall be the property of Lessor and shall remain upon and be surrendered with the Premises
at the expiration of the term hereof.
ARTICLE IV
Section 4.01. Restriction on Transfers. Lessee covenants and agrees for Lessee and its
successors, assigns and legal representatives that neither this Lease nor the Lease Term and estate
hereby granted, nor any part hereof or thereof, will be assigned or mortgaged, pledged or
encumbered by Lessee or otherwise transferred (whether voluntarily, involuntarily, by operation of
law, or otherwise) or for any purpose other than as set forth herein, without the prior written
consent of Lessor in every case (a “Transfer”), except in accordance with this Section. A Transfer
shall be deemed to include any transfer, assignment or encumbrance of the controlling interests in
Lessee, whether occurring by reason of one transaction or cumulatively in any two (2) or more
transactions; provided, however, a Transfer shall not be deemed to occur solely as a result of the
death of any natural person or the transfer of any interest to a trust for estate planning purposes
without the release of the Lessee.
If the Transfer involves an assignment of this Lease, the assignee shall execute and deliver
to Lessor an agreement in form and substance in all respects reasonably satisfactory to Lessor
whereby such
assignee assumes and agrees to be bound by and perform all of the obligations of Lessee under
this Lease.
Section 4.02. Information About Proposed Transferee. Notwithstanding anything contained in
Section 4.01, in the event Lessee wishes to assign or otherwise make a Transfer of this Lease,
Lessee shall first notify Lessor of the name of the proposed transferee and of the material terms,
provisions and conditions contained in the proposed Transfer, and shall provide Lessor with such
information as to the proposed transferee’s financial condition, business experience and standing
as Lessor may reasonably require.
Section 4.03. Terms Relating to Consent. Lessor shall have the reasonable discretion to
withhold or condition its consent to any proposed Transfer unless the following conditions are met:
(a) the proposed transferee is of a financial standing which in Lessor’s reasonable
judgment will allow such proposed transferee to meet its obligations under this Lease as
they become due;
(b) the Premises will be used by such transferee for a Permitted Use;
(c) there shall be no material default by Lessee which has not been cured within any
(if any) applicable cure period under any of the terms, covenants and conditions of this
Lease at the time that Lessor’s consent to any such Transfer is requested or on the
effective date of the Transfer;
(d) Lessee shall reimburse Lessor for its actual reasonable expenses that may be
incurred by Lessor in connection with the proposed Transfer, including (without limitation)
the costs of making investigations as to the acceptability of a proposed transferee and all
legal expenses incurred in connection with the granting of any requested consent to the
Transfer. Upon request of Lessee, Lessor shall provide backup documentation for any such
expense; and
(e) any request for an assignment of this Lease shall be accompanied by the proposed
instrument of assignment and the assignment document will provide that the assignee cannot
further transfer its interest without complying with the transfer requirements of this
Lease.
Section 4.04. Subleases. Lessee may sublease the Premises to one or more sublessees without
the consent of Lessor, provided the sublease is subordinate to this Lease and to the Fee Mortgagee,
and the sublessee does not require a nondisturbance agreement with Lessor. “Fee Mortgage” means
any mortgage, deed of trust or similar instrument encumbering real property to secure an obligation
made by Lessor which is at any time a lien on Lessor’s interest in the Premises, the beneficiary of
which is referred to herein as “Fee Mortgagee.” All subleases shall expressly be made subject to
the provisions of this Lease. Any sublease of all or a portion of the Premises shall specifically
state that it is subject and subordinate to the terms and conditions of this Lease and to the Fee
Mortgage, that it shall be limited by the provisions hereof and that the lessee thereunder shall
not have any other or further rights than Lessee has under this Lease. No sublease shall extend
for any period longer than the term of this Lease.
Section 4.05. Effect of Transfer. No assignment, Transfer or sublease shall release Lessee
from liability hereunder or affect or reduce any obligations of Lessee named herein or of any other
Lessee assuming this Lease or affect or reduce the rights of Lessor hereunder. All obligations of
Lessee named herein and of any other Lessee assuming this Lease shall continue in full effect as
the joint and several obligations of a principal and not of a guarantor or surety, as though no
assignment, Transfer or
sublease had been made. In connection therewith, Lessee named herein and each succeeding
Lessee assuming this Lease agrees that the joint and several liability of each hereunder shall
continue in full force and effect and shall not be terminated or affected by any action which
Lessor may take or fail to take against any Lessee hereunder or by reason of any waiver of, or
failure to enforce, any rights or remedies reserved to Lessor, or otherwise.
Section 4.06. Collection of Rent. If Lessee’s interest in this Lease is assigned, whether or
not in violation of the provisions hereof, Lessor may collect Base Rent and other amounts payable
by Lessee to Lessor from the assignee. If the Premises is sublet to, or occupied by, or used by,
any person other than Lessee, whether or not in violation hereof, Lessor after default by Lessee
under this Lease, may collect Base Rent and other amounts payable by Lessee to Lessor from the
sublessee, user or occupant. In either case, no such assignment, sublease or collection shall
affect Lessee’s obligations hereunder, and Lessor shall apply the net amount collected to the Base
Rent and other obligations of Lessee reserved in this Lease in such order as Lessor elects.
ARTICLE V
Section 5.01. No Termination or Abatement of Rent. Except as otherwise expressly provided in
the Lease, this Lease shall not terminate, nor shall Lessee have any right to terminate this Lease
or be entitled to the abatement of any rent or any reduction thereof, nor shall the obligations
hereunder of Lessee be otherwise affected, by reason of (i) any damage to or destruction of all or
any part of the Premises from whatever cause, (ii) the taking of the Premises or any portion
thereof by condemnation or otherwise, (iii) the prohibition, limitation or restriction of Lessee’s
use of Premises, or interference with such use by any private person or corporation, or by reason
of any eviction by paramount title or otherwise, (iv) the bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding-up or other proceeding affecting
Lessor in any such proceeding and notwithstanding any action with respect to this Lease which may
be taken by any trustee or receiver of Lessor in any such proceeding or by any court in any such
proceeding, or (v) for any other cause whether similar or dissimilar to the foregoing, any present
or future law to the contrary notwithstanding, it being the intention of the parties hereto that
the Base Rent and all other charges payable hereunder to or on behalf of Lessor shall continue to
be payable in all events and the obligations of Lessee hereunder shall continue unaffected, unless
the requirement to pay or perform the same shall be terminated pursuant to an express provision of
this Lease. Nothing contained in this Section shall be deemed a waiver by Lessee of any rights
that it may have to bring a separate action with respect to any default by Lessor hereunder or
under any other agreement.
Section 5.02. No Adverse Possession. Lessee shall not suffer or permit the Premises or any
part or parts thereof to be used in such manner as might reasonably tend to impair Lessor’s title
to the Premises or any portion thereof, or in such manner as might reasonably make possible a claim
or claims of adverse usage or adverse possession, or of implied dedication of the Premises or any
portion thereof.
Section 5.03. Entry by Lessor. Lessor, the Fee Mortgagee and their authorized representatives
shall have the right to enter the Premises or any portion thereof at all reasonable times upon
reasonable prior written notice (except in cases of emergency, where no notice will be required) to
Lessee (a) for the purpose of inspecting the same (including without limitation any environmental
inspection) or, after the occurrence of an Event of Default by Lessee in completing any alterations
or repairs required hereunder, for the purpose of doing any work, and may take all such action
thereon as may be necessary or appropriate for any such purpose (but nothing contained in this
Lease or otherwise shall create or imply any duty upon the part of Lessor to make any such
inspection or do any such work), and (b) for the purpose of showing the Premises to prospective
purchasers and mortgagees and, within 9 months prior to
the expiration of the Lease Term, for the purpose of showing the same to prospective lessees.
No such entry shall constitute an eviction of Lessee. Lessee will not be obligated to pay any
fees or costs for any inspection of the Premises by Lessor.
Section 5.04. Liens. Lessee will remove and discharge any charge, lien, security interest or
encumbrance upon the Premises or upon any Base Rent or other sums payable hereunder which arises
for any reason from Lessee’s acts, omissions, negligence or misconduct, including (without
limitation) all liens which arise out of the possession, use, occupancy, construction, repair or
rebuilding of the Premises or by reason of labor or materials furnished or claimed to have been
furnished to Lessee or for the Premises, but not including this Lease and any assignment hereof or
any sublease permitted hereunder, or any mortgage, charge, lien, security interest or encumbrance
created or caused by Lessor or its agents, employees or representatives without the consent of
Lessee. Lessee may provide a bond or other security acceptable to Lessor to remove or pay all
costs associated with the removal of any such lien. Nothing contained in this Lease shall be
construed as constituting the consent or request of Lessor, express or implied, to or for the
performance (on behalf of or for the benefit of Lessor) by any contractor, laborer, materialman or
vendor, of any labor or services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Premises or any part thereof.
Section 5.05. Indemnification. Lessee will defend, protect, indemnify and save harmless
Lessor, its agents and employees and the Fee Mortgagee, from and against any and all liabilities,
obligations, damages, losses, penalties, claims, causes of action, costs, charges and/or expenses,
including reasonable attorneys’ fees and expenses, which may be imposed upon or incurred by or
asserted against Lessor, its agents or employees or the Fee Mortgagee by reason of (a) any
accident, injury to any person (including death) or damage to property occurring on or about the
Premises from all causes whatsoever (except to the extent caused solely and directly by the gross
negligence or willful misconduct of Lessor or Fee Mortgagee or any other Lessee of the Building),
(b) any loss arising out of any work performed on Premises by Lessee or any agent, employee or
contractor of Lessee or by any assignee or sublessee of Lessee or any agent, employee or contractor
of any such assignee or sublessee, (c) any default on the part of Lessee to perform or comply with
any term of this Lease, (d) any claim for the performance of labor or the furnishing of materials
or other property at Lessee’s request or at the request of anyone claiming under Lessee or
performed by Lessor in respect of the Premises or any part thereof, (e) any action or proceeding
pertaining to the Premises to which Lessor, its agents or employees or the Fee Mortgagee is made a
party or in which it becomes necessary in the judgment of Lessor to defend or uphold the validity
of the interest of Lessor in the Premises as a result of Lessee’s use of the Premises and (f) any
acts, omissions, or negligence of Lessee or the sublessees, contractors, agents, employees,
invitees, customers, concessionaires or licensees of Lessee (“Lessee’s Representatives”) (except to
the extent caused solely and directly by the gross negligence or willful misconduct of Lessor or
Fee Mortgagee).
Section 5.06. Environmental Compliance.
(a) Lessor’s Representations. Lessor represents that to the best of its knowledge,
that is has not used, placed or allowed the use of any Hazardous Material on the Leased
Premises and has no knowledge of the presence of any Hazardous Material on the Leased
Premises except as disclosed herein.
(b) Lessee’s Representations. As a material inducement for Lessor to enter into this
Lease, Lessee represents and warrants that (i) except as may be permitted by applicable law,
throughout the Lease Term (A) all parts of the Premises will be kept free (by Lessee,
Lessee’s Representatives and others) of Hazardous Materials (as defined below) and (B) no
part of the
Premises will be used by Lessee, Lessee’s Representatives or others to generate,
manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or
process Hazardous Materials and (ii) Lessee will not suffer or permit any activity in, at or
from all or any part of the Premises that will cause or contribute to pollution (by
petroleum or petroleum products, or otherwise) of the Premises in whole or in part or any
other property. “Hazardous Materials” shall mean all materials which because of their
quantity, concentration or physical, chemical or infectious characteristics may cause or
pose a present or potential hazard to human health or the environment when improperly
handled, treated, stored, transported, disposed of or otherwise managed. The term shall
include (without limitation) all petroleum, petroleum products, explosives, radioactive
materials, hazardous wastes, hazardous or toxic substances, asbestos or any other substance
or material now or hereafter defined as a “hazardous” or “toxic” substance, material or
product by the U.S. Environmental Protection Agency or the state in which the Premises is
located under the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control
Act (TSCA), the Federal Water Pollution Control Act (FWPCA) or comparable state statutes and
other Environmental Requirements (as defined below). Lessee shall comply fully with all
Environmental Requirements. “Environmental Requirements” shall mean all applicable laws
pertaining to the protection of human health and the environment, including (without
limitation) employee and community right-to-know laws and all laws regarding the use,
generation, storage, transportation, treatment, disposal or other handling of Hazardous
Materials. The only Hazardous Materials permitted on the Premises are cleaning products and
other materials in ordinary quantities which are used in the ordinary course of business and
necessary for the conduct of the Permitted Uses and which Lessee uses in strict compliance
with all applicable Environmental Requirements. Lessee agrees that Lessor has not ever
occupied the Premises.
(c) Lessee’s Remediation. If during the Lease Term any Hazardous Materials are dumped,
released, discharged, spilled or leaked onto or into the Premises by Lessee or found to be
contaminating the Premises as a result of an action or inaction by Lessee, its employees,
agents or contractors, (or if a party has reasonable cause to believe that such dumping,
releasing, discharge, spilling or leak may have occurred or that such Hazardous Materials
may be contaminating the Premises), the party will notify the other party in writing (except
in cases of an emergency as described in Section 5.05 in which event the party shall have
the right to take action without such notice as provided therein) as to the matter in
question. In such event or at any other time as may be requested by Lessor, the parties
will cooperate in having reasonable examinations, tests or investigations performed at
Lessee’s expense to determine the extent of the problem and nature of appropriate corrective
action (or if Lessee fails to cause such examinations or investigations to be performed
after notice of the required action Lessor will have the right to perform them on Lessee’s
behalf and at Lessee’s expense). If such examinations demonstrate that the Premises is
contaminated by Hazardous Materials at levels requiring remedial action under applicable
laws, Lessee will have 30 days (or such longer time as may be reasonably necessary under the
circumstances or such lesser time as may be required by emergency conditions, by law,
regulation or judicial order, or by any governmental entity, whichever is sooner) after
written notice from Lessor to eliminate same and (to the extent necessary) to restore the
Premises to prior condition but with new non-Hazardous Materials, failing which Lessor may
either terminate this Lease on written notice to Lessee or take all action deemed desirable
by Lessor to effect such elimination and (to the extent necessary) restoration. If Lessor
elects the latter, upon request and as Additional Rent, and without limiting the
indemnification set forth in subparagraph (c) below, Lessor will be entitled to receive from
Lessee all reasonable costs and expenses in any way associated therewith, plus interest at
the rate provided in Section 7.02(k) hereof. Lessee shall be
responsible for the remediation of any contamination of the Property that was not
caused by any other Lessee of the Property.
(d) Lessee’s Indemnity. Lessee, for itself, its successors and assigns, hereby agrees
to defend, indemnify, hold harmless and reimburse Lessor, its successors and assigns, and
any Fee Mortgagee from, against and for any and all damages, claims, demands, liabilities,
losses, penalties and expenses (including, without limitation, any and all clean-up costs,
remediation costs, court costs, reasonable attorneys’ fees and any diminution in the value
of the Premises) which are in any manner caused in whole or in part by the presence of any
Hazardous Materials on or about the Premises as a result of Lessee’s use and operation of
the Premises or the failure of Lessee, Lessee’s Representatives, agents or contractors or
the Premises to comply with any Environmental Requirements, or with respect to any
occurrence or condition on or about the Premises which is caused by any condition, act or
omission of Lessee, its representatives, agents or contractors, prior to the expiration of
this Lease, after the term of the Lease. Claims which are the subject of this
indemnification include without limitation, remedial actions, violations of law and claims
for personal injury, wrongful death, property damage or natural resource damages. This
indemnity shall survive the termination, expiration or forfeiture of this Lease.
ARTICLE VI
Section 6.01. Damage or Destruction of the Premises. In the event any part or all of the
Premises shall at any time during the term of this Lease be damaged or destroyed, regardless of
cause, Lessee shall give prompt notice to Lessor. If the holder Lessor’s mortgage, deed of trust or
other lien on the Premises at the time of the casualty elects, pursuant to such mortgage, deed of
trust or other lien, to require the use or part of the insurance proceeds on Lessor’s interest in
the Premises to the satisfaction of all or part of the indebtedness secured by the mortgage, deed
of trust, or other lien, then Lessor may elect to terminate this Lease and Lessee will assign all
insurance proceeds related to Lessor’s interest in the Premises to Lessor. If not and if such
damage or destruction is not total or substantial (as defined below), Lessee will repair and
restore the Premises to its original condition, including buildings and all other improvements on
the Premises, as soon as circumstances permit. In the event that the Premises are totally or
substantially damaged or destroyed (as defined below), Lessee may (1) repair and restore the
Premises or (2) assign all insurance proceeds related to Lessor’s interest in the Premises to
Lessor and terminate this Lease effective as of the date of such assignment. Lessee shall hold
Lessor free and harmless from any and all liability of any nature whatsoever resulting from such
damage or destruction, and such repairs and restoration except in the case of the fraud, gross
negligence or misconduct of Lessor. Lessee is entitled to reasonable, equitable rental abatement
during or resulting from any disturbance from partial or total destruction of the Premises. If
Base Rent is abated, Lessor may at its option extend the term of this Lease for a period equal to
the period of rental abatement by giving written notice of the same to Lessee.
(a) As used herein, the phrase “substantially damaged or destroyed” shall mean that the
restoration or repair cost as estimated by at least two (2) reputable general contractors
properly licensed in the State in which the Premises are located and reasonably acceptable
to and approved by Lessor, exceeds thirty-three percent (33%) of the replacement value of
the improvements on the Premises immediately prior to such damage or destruction.
(b) In the event Lessee is in default or breach of the Lease at the time of the
casualty, or in the event this Lease is terminated following a casualty pursuant to the
terms of this Section, Lessor, as assignee and as attorney-in-fact for Lessee, shall have
the right to collect the insurance
proceeds on Lessor’s interest in the Premises and apply same toward Lessee’s
obligations under this Lease.
(c) In the event of termination under this Section, the Lease will terminate effective
on the date Lessor receives the total sum due pursuant to this Section. Upon such
termination, Lessor and Lessee shall be released from all obligations and liabilities under
the Lease, with the exception of those liabilities which, pursuant to the terms of the
Lease, accrued prior to the termination date and survive termination or expiration of the
Lease.
Section 6.02. Condemnation. In the event of the taking or conveyance of the fee of, or
temporary use of, or perpetual easement upon, the whole or any part of the Premises by reason of
condemnation by any public or quasi-public body (“Condemnation”), Lessor and Lessee shall represent
themselves independently in seeking damages before the condemning body. Lessor shall be entitled
to the entirety of the award with the exception of the following, all of which shall belong to
Lessee:
(a) That portion of the award attributable to the value of Lessee’s leasehold
improvements, except those improvements paid for by Lessor, made to the Premises by Lessee
in accordance with this Lease;
(b) That portion of the award attributable to the value of Lessee’s Personal Property
installed in the Premises in accordance with this Lease, which Lessee’s Personal Property
Lessee has the right to remove from the Premises upon the expiration or termination of the
Lease pursuant to the provisions of this Lease, but which are to remain in the Premises as a
result of such taking;
(c) All relocation benefits separately awarded for: (i) removing Lessee’s Personal
Property; (ii) damage or loss to Lessee’s business and good will and (iii) Lessee’s moving
and relocation expenses;
(d) That portion of the award attributable to the unexpired portion of Lessee’s
interest in the leasehold estate created by this Lease and
(e) That portion of the award attributable to a temporary Condemnation to the extent
the temporary Condemnation solely affects Lessee’s leasehold interest in the Premises during
the Lease term and not Lessor’s fee interest in the Premises, such as (by way of example
only) the taking of a temporary construction easement which easement shall expire prior to
expiration of the Lease.
Section 6.03. Termination of Lease Due to Condemnation. In the event: (i) the entirety of the
Premises is acquired in Condemnation or (ii) a portion of the Premises is the subject of a
Condemnation, which Condemnation will materially adversely affect the Permitted Use of the Premises
as defined herein, Lessee may terminate the Lease by giving Lessor written notice of its intention
to terminate the Lease within thirty (30) days following the date upon which Lessee receives
written notice of the nature, extent and scope of the Condemnation or otherwise becomes aware, or
reasonably should be aware, of such facts sufficient to put Lessee on notice of the full effects of
the Condemnation. This Section shall not alter the method of distribution of the Condemnation
award set forth above in this Section of the Lease. In the event this Lease is terminated as
provided herein, the effective date of the termination shall be the date upon which fee simple
interest in the Premises is deemed to have passed to the condemning authority, and Lessee shall be
released from further obligations or liabilities arising under the Lease with the exception of
those obligations which accrued or arose prior to the effective date of the Condemnation
and those liabilities which, pursuant to the terms of the Lease, survive expiration or
termination of the Lease. In the event of termination, Base Rent, Taxes, and any other items paid
by Lessee under this Lease shall be prorated based upon the actual number of days in the period to
be prorated. Within thirty (30) days following the termination, Lessor shall refund to Lessee any
Rent and Taxes paid to Lessor in advance of the termination. Notwithstanding anything to the
contrary in this Section 6.03, in the event of a condemnation of less than the entire premises that
materially adversely affects the Permitted Use of the Premises, Lessee shall not have the right to
terminate this Lease if Lessor restores that part of the Premises which remains to as nearly its
former condition as circumstances permit within a reasonable time and if such restoration
reasonably allows Lessee’s Permitted Use.
ARTICLE VII
Section 7.01. Events of Default. Lessee shall be in default under this Lease if any one or
more of the following events (referred to herein as “Events of Default” or “Event of Default”)
shall occur:
(a) if default shall be made in the procurement or maintenance of any insurance
required under this Lease; or
(b) if default shall be made in the payment when due of any Base Rent or other
financial obligations of Lessee under this Lease and such default shall continue for ten
(10) days after Lessor gives Lessee written notice of such nonpayment; or
(c) [intentionally omitted]
(d) if default shall be made by Lessee in the performance of or compliance with any of
the terms of this Lease other than those referred to in any of the other subparagraphs in
this Section, and such default shall continue for a period of 30 days after Lessor gives
Lessee written notice thereof or if such default cannot reasonably be cured within 30 days,
if Lessee fails to commence cure within 30 days; or
(e) if Lessee or any guarantor of Lessee’s obligations under this Lease (each, if any,
a “Guarantor”) shall file a voluntary petition in bankruptcy or shall be adjudicated a
bankrupt or insolvent, or shall file any petition or answer seeking any reorganization,
arrangement, composition or readjustment, or similar relief for itself under any present or
future federal, state or other statute, law or regulation, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of itself or of all or
any substantial part of its or of the property, or shall take any general assignment for the
benefit of creditors or shall admit in writing its inability to pay debts generally as they
become due; or
(f) if a petition shall be filed against Lessee or any Guarantor seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future federal, state or other statute, law or regulation, and
shall remain undismissed or unstayed for a period of 60 days, or if in connection with any
such event any trustee, receiver or liquidator of Lessee or such Guarantor, or of all or any
substantial part of any of its property, shall be appointed without its consent or
acquiescence and such appointment shall remain unvacated or unstayed for a period of 30
days; or
(g) if Lessee shall vacate or abandon the Property; provided, however, Lessee’s
vacation of the Premises will not result in an Event of Default hereunder so long as Lessee
continues to pay Base Rent and any other sums due hereunder; or
(h) if this Lease or the estate of Lessee hereunder shall be transferred to or shall
pass to or devolve upon any other person except in a manner expressly permitted herein.
Section 7.02. Remedies Upon Lessee’s Default.
(a) Repossession, Reletting, etc., by Lessor. At any time after any Event of Default,
Lessor, without further notice except as required by applicable law and with no liability to
Lessee for any action in accordance with applicable law, may repossess the Premises by any
means provided by law, including (without limitation) summary or eviction proceedings,
ejectment or otherwise, and may remove Lessee and all other persons and any and all property
from the same. At any time or from time to time thereafter, Lessor may (but shall be under
no obligation to) relet the Premises or any part thereof for the account of Lessee, in the
name of Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms
(which may be greater or less than the period which would otherwise have constituted the
balance of the term of this Lease) and on such conditions and for such purposes as Lessor in
its discretion may determine, and may collect and receive the rents therefor. Lessor shall
not be liable for any failure to collect any rent due upon any such reletting.
(b) Payment of Damages. No such expiration or sooner termination of this Lease or of
Lessee’s right of possession shall relieve Lessee of its liability and obligations under
this Lease, all of which shall survive any such expiration or sooner termination. In the
event of any such expiration or sooner termination, Lessee will pay to Lessor the Base Rent
and other sums required to be paid by Lessee up to the time of such expiration or sooner
termination, and thereafter Lessee, until the end of what would have been the term of this
Lease in the absence of such expiration or sooner termination, and whether or not the
Premises or any part thereof shall have been relet, shall be liable to Lessor for, and shall
pay to Lessor, as and for liquidated and agreed current damages for Lessee’s default, the
Base Rent and other sums which would be payable thereafter under this Lease by Lessee, less
the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to
Section 7.02(a) during the period which would otherwise have constituted the balance of the
term of this Lease, after deducting all of Lessor’s reasonable expenses in connection with
such reletting, including (without limitation) all repossession costs, brokerage
commissions, attorneys’ fees, expenses of employees, costs incurred in alterations to the
Premises required in connection with the reletting of the Property for use by another lessee
and expenses of preparation for such reletting. Lessee will pay such amounts to Lessor
monthly on the days on which such Base Rent and all other sums would have been payable under
this Lease, and Lessor shall be entitled to recover the same from Lessee on each such day.
(c) Lump-sum Damage Payment. At any time after such expiration or sooner termination
of this Lease as provided herein or pursuant to law and good faith efforts by Lessor to
relet the Premises, whether or not Lessor shall have recovered any amounts under Section
7.02(b), Lessor shall be entitled to recover from Lessee and Lessee shall pay to Lessor, on
demand, as and for liquidated and agreed final damages for Lessee’s default, an amount equal
to the sum of the following, as of the date of such payment by Lessee:
(i) the worth of the unpaid Base Rent and other sums due and payable which had
been earned at the time of such expiration or sooner termination; plus
(ii) the worth of the unpaid Base Rent and other sums due and payable after
such expiration or sooner termination and on or before the time of Lessee’s lump-sum
payment pursuant hereto, after deducting from such unpaid amounts any (if any)
portion thereof that Lessee proves could have been reasonably avoided; plus
(iii) the worth of the unpaid Base Rent and other sums due and payable for the
balance of the Lease Term or, if termination occurs during an Extension Term, such
Extension Term, after deducting from such unpaid amounts any (if any) portion
thereof that Lessee proves can be reasonably avoided; plus
(iv) any other amount which is necessary to compensate Lessor for all the
detriment proximately caused by Lessee’s failure to perform Lessee’s obligations
under this Lease or which would be likely to result therefrom, including (without
limitation) any costs or expense incurred by Lessor: (A) in retaking possession of
the Premises; (B) in maintaining, repairing, preserving, restoring, replacing,
cleaning, altering or rehabilitating the Premises or any portion thereof, including
such acts for reletting to a new Lessee or Lessees; (C) for leasing commissions; or
(D) for any other costs necessary or appropriate to relet the Premises.
The “worth” of the amounts referred to in subparagraphs (i) and (ii) of this Section is
computed by accruing interest at the Default Rate on the unpaid rent and other sums due and payable
from the respective due dates for such amounts until Lessee’s lump-sum payment pursuant hereto.
The “worth” of the amount referred to in subparagraph (iii) of this Section is computed by
discounting such amount at a rate equal to the weekly average yield 10-year U.S. Treasury Constant
Maturities (as published in Federal Reserve Statistical Release H-15 [519]) on or nearest to the
Friday immediately preceding the date of Lessee’s lump-sum payment pursuant hereto. After payment
by Lessee to Lessor of the Lump-Sum Damage pursuant to this Lease and if Lessor thereafter relets
the Premises during what would have been the remainder of the Lease Term or any applicable
extension thereof, Lessor shall reimburse Lessee for rent and expenses paid to Lessor as a result
of such reletting, as the same are paid to Lessor up to the amounts collected under this section
(7.02(c)), it being the intent of Lessor and Lessee that Lessor not receive a “double recovery” for
damages sustained by Lessor.
(d) Receiver. Lessor may have a receiver appointed for Lessee to take possession of
the Premises and to apply any rent collected from the Premises and to exercise all other
rights and remedies granted to Lessor.
(e) Lessee’s Equipment. At any time after the occurrence of an Event of Default,
Lessor may send written notice to Lessee to remove all of Lessee’s Equipment from the
Premises. If Lessee shall fail to remove Lessee’s Equipment within five (5) business days
after receipt of such notice from Lessor, then Lessor may remove Lessee’s Equipment and
property from the Premises and arrange for storage of Lessee’s Equipment and property at
another location, all at the sole cost and expense of Lessee, and Lessee waives any and all
claims against Lessor regarding the removal and storage of Lessee’s Equipment including,
without limitation, the manner of removal, cost of removal, location of storage, cost of
storage and damage to or missing Lessee’s Equipment.
(f) Bankruptcy or Insolvency.
(i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter
11 of the Bankruptcy Code and Lessee or Lessee’s trustee shall fail to elect to
assume this Lease within 120 days after the filing of such petition or such
additional time as provided by the court, this Lease shall be deemed to have been
rejected. Immediately
thereupon, Lessor shall be entitled to possession of the Premises without
further obligation to Lessee or Lessee’s trustee, and this Lease, upon the election
of Lessor, shall terminate, but Lessor’s right to be compensated for damages
(including, without limitation, liquidated damages pursuant to any provision hereof)
or the exercise of any other remedies in any such proceeding shall survive, whether
or not this Lease shall be terminated.
(ii) An assumption of this Lease shall not limit Lessor’s right to declare an
Event of Default hereunder and exercise any and all remedies available to it if, at
any time after such assumption, Lessee is liquidated or files or has filed against
it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee’s trustee or the
debtor-in-possession shall be obligated to pay reasonable use and occupancy charges
for the use of the Premises, such charges shall not be less than the Base Rent,
Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee’s interest in this Lease or
its estate in the Premises shall pass to any trustee, receiver, assignee for the
benefit of creditors or any other person or entity, by operation of law or otherwise
under the laws of any state having jurisdiction of the person or property of Lessee,
unless Lessor shall have consented to such transfer. No acceptance by Lessor of
rent or any other payments from any such trustee, receiver, assignee, person or
other entity shall be deemed to constitute such consent by Lessor nor shall it be
deemed a waiver of Lessor’s right to terminate this Lease for any transfer of
Lessee’s interest under this Lease without such consent.
(v) In the event of an assignment of Lessee’s interests pursuant to this
Section, the right of any assignee to extend the Lease Term shall be extinguished.
(g) Limitation by Law. If any statute or rule of law governing a proceeding in which
liquidated final damages provided for in Section 7.02 are to be proved shall validly limit
the amount thereof to an amount less than the amount above agreed upon, Lessor shall be
entitled to the maximum amount allowable under such statute or rule of law.
(h) Remedies Cumulative, Etc. Each right, power and remedy provided for in this Lease
or now or hereafter existing at law or in equity or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power or remedy
provided for in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise of any one or more of the rights,
powers or remedies provided for in this Lease or now or hereafter existing in law or in
equity or by statute or otherwise shall not preclude the simultaneous or later exercise of
any or all other such rights, powers or remedies. The collection of any late payment charge
or any interest at the Default Rate shall not be deemed an election of remedies or in lieu
of any other remedies or damages. Lessor shall have the right to specifically enforce this
Lease and to enjoin any default or prospective or anticipated default hereunder.
(i) Statutory Rights. Lessee retains any rights of notice or rights of redemption, if
any, as may be required by applicable state law. However, any such notice required by law
may be given by Lessor in (or, at Lessor’s option, separate from) any notice required to be
given by
Lessor under this Lease, and the time periods provided in this Lease and required under
applicable law will not be “tacked” onto each other but will commence running from the
original date of delivery of such notices.
(j) Application of Funds. Any payments received by Lessor under any of the provisions
of this Lease during the existence or continuance of any Event of Default (and any payment
made to Lessor rather than Lessee due to the existence of an Event of Default) shall be
applied to Lessee’s obligations in such order as Lessor may determine or, if prescribed by
the laws of the State, in accordance with such laws subject to preservation of any rights or
disputes Lessee may have with respect to the sums to which the payment is applied.
(k) No Usury. The intention of the parties being to conform strictly to the usury laws
now in force, whenever any provision in this Lease provides for payment by Lessee to Lessor
of interest at a rate in excess of the legal rate permitted to be charged, such rate herein
provided to be paid shall be deemed reduced to such legal rate.
(l) Duty to Act Reasonably. In exercising any remedies hereunder, Lessor and Lessee
must act reasonably and have a duty to mitigate their damages.
ARTICLE VIII
Section 8.01. Lessee’s Notices and Remedies. In the event Lessor fails to perform its
responsibilities pursuant to this Lease, Lessee’s notice as to Lessor’s nonperformance will be sent
simultaneously to Lessor and the Fee Mortgagee if information necessary to provide such notice has
been provided in writing to Lessee. Lessor will be in default under this Lease if Lessor fails to
cause such responsibilities to be fully performed within 30 days after written notice by Lessee to
Lessor specifying the nature of the default with reasonable particularity. If the default is of
such a nature that it cannot be remedied fully within the 30-day period, this requirement shall be
satisfied if Lessor begins correction of the default within the 30-day period and thereafter
proceeds with reasonable diligence and in good faith to effect the remedy as soon as reasonably
practicable. Lessee shall not have the right to terminate this Lease as a result of Lessor’s
default. In the event of such default, Lessee shall have all remedies available under law for
breach of contract, including (without limitation) the right of specific performance. In addition,
Lessee may elect in its discretion to perform the required action or take corrective action
reasonably required to cure the default if it pertains to the Premises, in which event Lessor shall
reimburse Lessee for the reasonable out-of-pocket costs of such action, together with reasonable
and necessary costs and disbursements and interest, and such amounts may be deducted from the rent
thereafter to become due under this Lease, after at least 20 days’ written notice to Lessor (and
the Fee Mortgagee) as to the costs so incurred.
Section 8.02. Fee Mortgagee’s Right To Cure. The Fee Mortgagee that has notified Lessee of
its address in the manner provided for notices in this Lease will have the right to cure any
default by Lessor. The cure period will commence on delivery of notice to such Fee Mortgagee of
the default and extend for a period ending 10 days for unpaid Taxes and 30 days for any other
default after the end of the time period for Lessor to cure a default. In this connection, any
representative of the Fee Mortgagee shall have the right to enter upon the Premises for the purpose
of curing Lessor’s default.
ARTICLE IX
Section 9.01. Subordination and Nondisturbance. Lessor shall have the right to subordinate
this Lease and all rights of Lessee under this Lease to any advances made or hereafter to be made
under any mortgage, and to all renewals, modifications, consolidations, correlations, replacements
and extensions of, and substitutions for, the Fee Mortgage, provided that the Fee Mortgagee, as a
condition thereto, shall execute and deliver to Lessee a nondisturbance and attornment agreement in
form and substance approved by the Fee Mortgagee and reasonably acceptable to Lessee which provides
in substance that (a) if Lessor defaults under its mortgage, the Fee Mortgagee will not disturb the
occupancy of Lessee and this Lease shall remain in full force and effect in accordance with its
terms, provided that no Event of Default has occurred and is continuing (in the event of any such
Event of Default, the Fee Mortgagee shall have such rights and remedies with respect to such
default as are provided herein) and (b) Lessee shall, at the Fee Mortgagee’s option, attorn to such
Fee Mortgagee and the Lease shall continue as a direct lease between such Fee Mortgagee and Lessee.
The provisions of this Section shall be self-operative. Lessee shall also provide to the Fee
Mortgagee any and all other assurances or instruments the Fee Mortgagee may reasonably request to
evidence and confirm such provisions. All such agreements shall be in form suitable for recording.
Section 9.02. Attornment. At any time prior to the expiration of the Lease Term, Lessee
agrees, at the election and upon demand of any owner of the Premises, or of the Fee Mortgagee, to
attorn, from time to time, to any such owner or holder, upon the then executed terms and conditions
of this Lease, for the remainder of the term originally demised in this Lease and for any renewal
term, provided that such owner or holder, as the case may be, shall then be entitled to possession
of the Premises subject to the provisions of this Lease. However, Lessee’s right to quiet
possession of the Premises during the Lease Term shall not be disturbed if Lessee pays all sums due
under this Lease and performs all of Lessee’s obligations under this Lease and is not otherwise in
default beyond all applicable notice and cure period provided herein. Lessee, however, upon demand
of any such owner or holder agrees to execute, from time to time, instruments in confirmation of
the foregoing provisions of this Section, satisfactory to any such owner or holder acknowledging
such attornment and setting forth the terms and conditions of its tenancy.
Section 9.03. Limitations on Lessee. Lessee agrees that, if requested by Lessor or the Fee
Mortgagee, Lessee shall enter into an agreement with the Fee Mortgagee whereby Lessee shall agree
for the benefit of such Fee Mortgagee that Lessee will not, without in each case the prior written
consent of such Fee Mortgagee, (a) amend, modify, cancel or surrender the term of this Lease except
as expressly permitted by the provisions of this Lease, or enter into any agreement with Lessor so
to do or (b) pay any installment of Base Rent more than one month in advance of the due date
thereof or otherwise than in the manner provided for in this Lease.
Section 9.04. No Merger of Fee and Leasehold Estates. There shall be no merger of this Lease
nor of the leasehold estate created by this Lease with the fee estate in the Premises or any part
thereof by reason of the fact that the same person, firm or corporation or other entity may acquire
or own such estates directly or indirectly; and no such merger shall occur until all persons,
firms, corporations and other entitled, including the Fee Mortgagee, having any interest in this
Lease and the leasehold estate created hereby and the fee estate in the Premises or any party
thereof shall join in a written instrument effecting such merger and shall duly record it.
ARTICLE X
Section 10.01. Estoppel Certificate. Upon request, either party will, without charge,
execute, acknowledge and deliver to the other party, within 15 business days after request
therefor, a certificate certifying (a) 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 modifications), (b) the date, if any, to which the Base Rent has been paid, (c) whether
or not there are, to the knowledge of the
party, then existing any defaults under this Lease (if so, specifying the same) and (d) such
other matters as may be reasonably required. Any such certificate may be relied upon as to the
facts stated therein by any actual or prospective mortgagee or purchaser of the Premises from
Lessor or any actual or prospective sublessee or assignee of Lessee’s interest in this Lease in
connection with one of the transactions permitted or approved under Article IV.
(a) Financial Information. If at any time during the Lease Term Lessee is not a
publicly traded corporation or its financial information is not available through the
Securities and Exchange Commission (“SEC”), Lessee will provide Lessor with annual financial
statements of Lessee and its consolidated subsidiaries as of the end of such year prepared
by independent certified public accountants of recognized national standing selected by
Lessee, and, upon request of Lessor not more than once annually, within 90 days after the
end of each fiscal quarter of Lessee a balance sheet of Lessee and its consolidated
subsidiaries as of the end of such quarter and statements of profits and losses of Lessee
and its consolidated subsidiaries for such quarter, setting forth in each case, in
comparative form, the corresponding figures for the similar quarter of the preceding year,
in reasonable detail and scope, and certified by an officer of Lessee, all of the foregoing
financial statements being prepared in accordance with generally accepted accounting
principles, consistently applied, except as otherwise indicated in such statements. Lessee
warrants and represents that the public reports and filings of National American University
Holdings, Inc. (ticker symbol “NAUH”) provided through the SEC (including without
limitations, all 8-k, 10-k and 10-Q reports pursuant to Section 13(a) of the Securities Act
of 1934, as amended) include and accurately reflect the financial status and holdings of
Lessee.
ARTICLE XI
Section 11.01. Required Insurance Coverage. During the Lease Term, Lessee shall, at Lessee’s
sole cost and expense, secure and keep the following insurance (the “Insurance Requirements”) in
full force and effect:
(a) Commercial general liability insurance for the benefit of Lessor, Lessee and the
Fee Mortgagee, fully protecting Lessor, Lessee and the Fee Mortgagee in respect of personal
injuries and death to persons and property damage, with a combined single limit of not less
than $5,000,000 for personal injuries and death to persons and property damage. In the
event Lessee maintains blanket liability coverage, the total limits of liability required
hereunder must be available to the Premises.
(b) Flood (if the Premises is located in whole or in part within any flood plain area
as designated by any department or agency of the United States Government having
jurisdiction) and such other hazards and in such amounts as may be customary for comparable
properties in the area, provided the same is available at rates which are economically
practical in relation to the risks covered, as determined by Lessee and reasonably approved
by Lessor. Such flood insurance shall include business interruption coverage for Lessor, if
reasonably available.
(c) Workers’ compensation insurance coverage for all persons employed by Lessee on the
Premises with statutory limits and otherwise with limits of and provisions in accordance
with the requirements of applicable local, state and federal law.
(d) CASUALTY. Lessee, at its sole cost and expense, shall obtain and keep in force
during the term of this Lease a policy or policies of insurance covering loss or damage to
the entire building in which the leased premises is located in an amount equal to the full
replacement
value thereof as such value may exist from time to time, and in no event less than the
total amount required by any lender having a lien on the Premises as provided in writing to
Lessee by Lessor, providing protection against all perils included within the classification
of fire, extended coverage, vandalism, malicious mischief, terrorism, flood (in the event
same is required by any lender having such a lien), and special extended perils (“all risk”,
as such term is used in the insurance industry). Such insurance shall provide for payment of
loss thereunder to Lessor or to any lenders having liens on the Premises. Such casualty
insurance policy shall also include business interruption coverage for Lessor.
(e) PERSONAL PROPERTY. Lessee shall, at its sole cost and expense, also obtain and keep
in force during the term of this Lease, a policy or policies of insurance covering full
replacement value for loss or damage to its personal property, fixtures, equipment and
improvements on or in the Premises.
(f) FAILURE TO INSURE. If Lessee fails to procure and maintain any insurance required
under this Lease, Lessor may procure and maintain the same, but at the sole cost and expense
of Lessee, which cost, together with interest thereon as provided in Section 1.05(d), shall
become additional rental hereunder due with the next installment of Base Rent.
Section 11.02. Compliance With Insurance Requirements. Neither Lessee nor Lessor shall
violate or permit to be violated any of the conditions or provisions of any of the insurance
policies, and Lessee shall so perform and satisfy the requirements of the companies writing such
policies. Lessee further agrees to reasonably cooperate with Lessor as and when requested to
comply with loss prevention programs.
Section 11.03. Policy Provisions. All insurance policies maintained by Lessee pursuant to
this Lease shall name Lessee as insured, and, as applicable, Lessor and the Fee Mortgagee as
additional insureds and shall provide (a) that losses shall be payable notwithstanding any act or
negligence of Lessee and (b) that no cancellation, nonrenewal, or material alteration in the terms
and conditions of coverage thereof shall be effective until at least 30 days after written notice
thereof delivered by certified mail, return-receipt requested, is given to Lessor and to the Fee
Mortgagee.
Section 11.04. Companies and Form of Policies. All policies of insurance procured by Lessee
shall be issued by insurance companies licensed to do business in the State in which the Premises
are located and authorized to issue such policy or policies. All policies shall be in a form and
with companies reasonably acceptable to Lessor and may be part of blanket coverage relating to
various properties operated by Lessee.
Section 11.05. Certificates of Coverage. Upon the execution of this Lease, Lessee shall
deliver to Lessor and to the Fee Mortgagee a certificate of insurance coverage as to the policies
required by this Lease evidencing compliance with the terms of this Lease and bearing evidence of
payment of all premiums therefor. Thereafter, as to policy renewals, Lessee will provide Lessor
and the Fee Mortgagee with certificates or assurances of continued coverage within 15 days prior to
expiration of such policies.
Section 11.06. Procurement by Lessor. If premiums on any insurance policy shall not be paid
or if the memoranda of policies or certificates or evidence of payment of the premiums thereon
shall not be so delivered to Lessor as required herein, or if Lessor learns of any cancellation of
any policy required hereunder, Lessor may procure and/or pay for any such insurance for Lessor’s
benefit only and not for the benefit of Lessee, with notice to Lessee. The amount so paid by
Lessor with interest thereon from the date of payment shall become due and payable by Lessee as
additional rent with the next or any
subsequent installment of Base Rent which shall become due after such payment by Lessor; it
being expressly covenanted that payment by Lessor of any such premium shall not be deemed to waive
or release the default in the payment thereof by Lessee, or the right of Lessor to take such action
as may be permissible hereunder as in the case of default in the payment of Base Rent.
Notwithstanding the foregoing, Lessor acknowledges and agrees that the negotiation of renewal
policies may continue to the date of expiration. As such, Lessor agrees not to procure additional
insurance if Lessee has assured Lessor that a renewal policy will be issued on or before the
expiration date of the then current policy.
Section 11.07. Waiver of Subrogation. The party carrying insurance and suffering any loss
covered by that insurance releases the other party from all such covered claims with respect to
that loss, including claims with respect to the negligence of the other party. Lessor and Lessee
agree that their respective insurance companies shall have no right of subrogation against the
other on account of any such loss except as otherwise specifically provided herein.
ARTICLE XII
Section 12.01. Lessor’s Reversionary Interest; Surrender of Premises. Upon expiration or
termination of this Lease, Lessor shall, at no charge to Lessor, become the owner of, and have the
reversionary interest in, all of the Improvements. Lessee shall surrender the Premises to Lessor
in good repair, operating condition, working order and appearance, subject to reasonable wear and
tear and (to the extent provided herein for termination after casualty) damage by fire and other
casualty. All repairs for which Lessee is responsible will be completed to the latest practical
date prior to such surrender. Lessee shall promptly remove all of its own signs, inventory,
personal property, and equipment that remain the property of Lessee and will restore any physical
damage caused by such removal.
Section 12.02. Delivery of Rents and Records. Upon surrendering the Premises to Lessor,
Lessee will pay to Lessor all deposits or other security and all prepaid rents received from
sublessees and other occupants whose tenancies may continue beyond the last day of the Lease Term
or the sooner termination thereof and will deliver to Lessor all original subleases and
modifications thereof, lease files, plans, records, registers and all other papers and documents
which may be required for the proper operation and management of the Premises and are then in
Lessee’s possession or under its control. Lessee shall have access to any records, papers and
documents so delivered to such extent and at such times as the same may be reasonably required
after the last day of the term of this Lease Term or such sooner termination thereof. Nothing
herein shall require Lessor to recognize any such existing sublease as continuing in effect after
such last day or sooner termination. The provisions of this Section shall survive the expiration
or sooner termination of this Lease.
Section 12.03. Acceptance of Surrender. No surrender to Lessor of this Lease or of the
Premises or any part thereof, or of any interest therein, prior to the expiration of the Lease
Term, shall be valid or effective unless agreed to and accepted in writing by Lessor, and no act by
Lessor or any representative or agent of Lessor, other than such a written acceptance by Lessor,
shall constitute an acceptance of any such surrender.
Section 12.04. Holding Over. If Lessee remains in possession of the Premises or any part
thereof after the expiration or sooner termination of the term of this Lease (or any renewal term
hereof) without the execution of a new lease, such holding over, in the absence of a written
agreement to the contrary, shall be deemed, if Lessor so elects, to have created a tenancy from
month-to-month terminable on thirty (30) days’ notice by either party to the other. Such
month-to-month tenancy will be at a monthly rental equal to 125% of the sum of the monthly
installment of Base Rent payable during the last year of
the Lease Term, and Lessee will otherwise continue to pay additional rent as provided in this
Lease and perform its other obligations hereunder.
ARTICLE XIII
Section 13.01. Definition of “Lessor”. The term “Lessor,” as used in this Lease so far as
covenants or obligations on the part of Lessor are concerned, shall be limited to mean and include
only the owner or owners of the Premises or holder of the Fee Mortgage in possession at the time in
question of the Premises. In the event of any transfer or transfers of the title of the Premises,
Lessor herein named (and in case of any subsequent transfers or conveyances, the then grantor)
shall be automatically freed and relieved of its liabilities accruing from and after the date of
such transfer and conveyance of all liability as respects the performance of any covenants or
obligations on the part of Lessor contained in this Lease thereafter to be performed if the
assignee or transferee has accepted and agreed to be bound by all of the terms of this Lease.
Section 13.02. Exculpation of Lessor. Notwithstanding anything contained in the preceding
paragraph or in any other provision hereof, Lessee shall look solely to the estate and interest of
Lessor, its successors and assigns in the Premises (and any condemnation, insurance or other
proceeds thereof) for the collection of any judgment recovered against Lessor based upon the breach
by Lessor of any of the terms, conditions or covenants of this Lease on the part of Lessor to be
performed, and no other property or assets of Lessor shall be subject to levy, execution or other
enforcement procedures for the satisfaction of Lessee’s remedies under or with respect to either
this Lease, the relationship of Lessor and Lessee hereunder or Lessee’s use and occupancy of the
Premises. The foregoing limitation shall not apply in the event that Lessor transfers or otherwise
surrenders its interest in the Property and the applicable claim arises prior to such transfer.
ARTICLE XIV
Section 14.01. No Waiver, etc., by Parties. No failure by a party to insist upon the strict
performance of any term of this Lease or to exercise any right, power or remedy consequent upon a
breach thereof, and no acceptance of full or partial rent by Lessor during the continuance of any
such breach, shall constitute a waiver of any such breach or of any such term.
Section 14.02. Notices, etc. All notices and demands which are required or permitted to be
given by either party on the other hereunder shall be in writing. All notices and demands shall be
sent by United States Mail, certified or registered mail, return-receipt requested, or by
recognized overnight courier service (such as Federal Express), or by facsimile or other
telecommunication device capable of transmitting and creating a written record. Notices shall be
effective on the latter of two (2) business days following the date they are deposited in the
United States Mail or the date of delivery on the return receipt, one business day after delivery
to an overnight courier and on the day they are telefaxed (if a confirmation report results).
Unless a party designates another address for notices (by notice given pursuant to this Section,
notices shall be sent to the following address:
If to Lessor:
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Rushmore Cedar L.L.C. c/o Xxxx Xxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 With copies to: Rushmore Cedar L.L.C. ATTN: Xxxx Xxxxxxxx McGladrey & Xxxxxx, LLP 000 X. Xxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000 |
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If to Lessee:
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Dlorah, Inc., d/b/a National American University ATTN: Business Xxxxxx 0000 X. Xxxxxxx 00, Xxxxx 000 Xxxxx Xxxx, XX 00000 With copies to: National American University ATTN: General Counsel 0000 X. Xxxxxxx 00, Xxxxx 000 Xxxxx Xxxx, XX 00000 |
Any notices to be provided to the Fee Mortgagee shall be to such address as shall be provided to
the parties in writing by the Fee Mortgagee.
Section 14.03. Severability. Each and every covenant and agreement contained in this Lease
is, and shall be construed to be, a separate and independent covenant and agreement, and the breach
of any such covenant or agreement by Lessor shall not discharge or relieve Lessee from its
obligation to perform the same. If any term or provision of this Lease or the application thereof
to any person or circumstance shall to any extent be determined by a court of competent
jurisdiction to be invalid and unenforceable, the remainder of this Lease, or the application of
the term or provision to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be
valid and shall be enforced to the extent permitted by law unless such determination shall
effectively terminate the ability of Lessee to utilize the Premises for its intended purpose.
Section 14.04. Headings. The headings to the various Sections of this Lease have been
inserted for convenience of reference only and shall not limit or otherwise affect the meaning
thereof.
Section 14.05. Relationship of Parties; Disclaimer. The relationship of the parties to this
Lease is Lessor and Lessee. Lessor is not a partner, joint venturer, joint employer, principal or
agent of or with or a lender to Lessee in any respect or for any purpose in the conduct of Lessee’s
business or otherwise. No provision of this Lease or previous (or subsequent) conduct or
activities of Lessee or Lessor will be construed:
(a) as making either party a partner, joint venturer, joint employer, principal or
agent of or with each other or
(b) as making Lessee or Lessor responsible for payment or reimbursement of any costs
incurred by each other (except as may be expressly set forth herein or as expressly set
forth in other written agreements executed by the parties).
Section 14.06. Operating Lease. This Lease is specifically intended by the parties to be a
true lease. Lessor holds fee simple absolute title to the Premises, and such title was not
acquired or intended
to be held as any type of mortgage or security interest. This Lease is intended by Lessor and
Lessee to be an operating lease under generally accepted accounting principles.
Section 14.07. Joint Obligation. If there be more than one Lessee or assignee of Lessee, the
obligations imposed upon Lessee hereunder shall be joint and several.
Section 14.08. Prior Agreements. This Lease (including attached Exhibits) is the entire,
final and complete agreement of the parties only with respect to the specific matters set forth in
this Lease and supersedes and replaces all written and oral agreements previously or
contemporaneously made or existing by and between the parties or their representatives with respect
to such specific matters.
Section 14.09. Recording. This Lease shall not be recorded, but, upon the request of either
party, the parties shall execute and acknowledge a memorandum of this Lease in recordable form
which may be recorded by Lessor or Lessee.
Section 14.10. Authorization of Lease. Each of Lessee and Lessor hereby covenants and
warrants to the other that (a) it is duly qualified to do business in the state in which the
Premises is located, (b) it has full right and authority to enter into this Lease and to perform
all of its obligations hereunder and (c) each person (and all of the persons if more than one
signs) signing this on its behalf is duly and validly authorized to do so.
Section 14.11. Applicable Law. This Lease shall be governed by and construed and enforced in
accordance with the laws of the State in which the Land is located. Lessor and Lessee represent
and warrant that this Lease is valid and enforceable under the laws of South Dakota.
Section 14.12. Time of Performance. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
Section 14.13. Waiver of Jury Trial. LESSOR AND LESSEE HEREBY WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS LEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS AMONG LESSEE OR LESSOR RELATING
TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS LEASE OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG LESSOR AND LESSEE. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
(INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS LEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS LEASE OR ANY RELATED TRANSACTIONS. IN
THE EVENT OF LITIGATION, THIS LEASE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 14.14. Attorneys’ Fees. In the event of any action or proceeding by either party
against the other under this Lease, the prevailing party shall be entitled to recover for the fees
of its attorneys in such action or proceeding, including costs of appeal, if any, in such amount as
the court may adjudge reasonable as attorneys’ fees.
Section 14.15. Amendments. Neither this Lease nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by the party against
whom the enforcement of the change, waiver, discharge or termination is sought.
Section 14.16. Successors and Assigns. This Lease shall bind and inure to the benefit of
Lessor and its successors and assigns and Lessee and its successors and, without limiting Article
IV hereof, its assigns. Any assignment of this Lease by Lessor shall not terminate such Lessor’s
rights under the environmental and other indemnities provided by Lessee in this Lease unless
specifically agreed to by Lessor in writing. In furtherance of any proposed assignment by Lessor,
Lessor may share with the proposed assignee Lessee’s financial information and Property
information, provided such proposed assignee is directed to treat such information confidentially
(Lessor hereby agreeing to be responsible for any failure of any such proposed assignee to so treat
any such information).
Section 14.17. Brokers. Lessor and Lessee warrant that they have had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease and each knows of no
real estate broker or agent who is entitled to a commission in connection with this Lease. Lessee
shall defend and indemnify Lessor against all claims for any broker’s or agent’s fees, commissions
and expenses, except to the extent Lessor has agreed to pay the same in writing. Lessor is not
responsible for any real estate brokerage fees.
Section 14.18. Construction. Each party to this Lease has had the opportunity to consult with
its legal counsel, and this Lease shall not be construed against either party. All pronouns or any
variation thereof in this Lease shall be deemed to refer to masculine, feminine, neuter, singular
or plural as the identity of the person or persons may require. All of the provisions of this
Lease shall be deemed and construed to be “conditions” as well as “covenants” as though the words
specifically expressing or importing covenants and conditions be used in each separate provision
hereof.
Section 14.19. Execution in Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall constitute one and the
same instrument.
Section 14.20. Exhibits and Riders. All Exhibits, schedules, plats, riders and addenda, if
any, and other attachments to this Lease are a part hereof.
Section 14.21. Miscellaneous Provisions.
(a) This Lease is conditioned upon Lessor obtaining approval of this Lease from
Lessor’s Lender. In the event that Lessor does not obtain approval of this Lease from
Lessor’s Lender and notify Lessee in writing of such approval within sixty days of the date
of execution, this Lease shall be null and void.
(b) This Lease is further conditioned upon Lessee obtaining the necessary zoning
approvals to operate a university campus, including academic, administrative, and other
associated activities. In the event that such approvals are not obtained within a
reasonable time, Lessee may, at its option, terminate this Lease with thirty (30) days’
written notice to Lessor.
(c) This Lease is further conditioned upon Lessor’s approval of Lessee’s proposed plans
to construct a campus facility in the current warehouse located in the Premises, remodel and
renovate the offices within the Premises previously occupied by I.G.T. and construct
additional
parking spaces on the Premises, as further described in Section 2.03 above. In the
event that such consent is not obtained within a reasonable time, Lessee may, at its option,
terminate this Lease with thirty (30) days’ written notice to Lessor.
(d) Upon the Commencement Date of this Lease, any and all previous leasing agreements
between Lessor and Lessee, including that certain lease dated September 29, 2006 as amended
will terminate effective on the Commencement Date of this Lease. The Lessor and Lessee are
responsible and obligated under the terms of the previous leasing agreement through the
Commencement Date of this Lease. In the event that this Lease is not effective or is
terminated under a contingency provided for herein, the leasing agreements between Lessor
and Lessee in effect at time of execution of this Lease by Lessor and Lessee shall remain in
effect.
(e) Lessor shall not be permitted to subdivide the Premises until such time as this
Lease is terminated or expires.
(f) Lessee shall have the right to manage the Premises during the Lease Term until such
time as this Lease is terminated or expires.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the date first
above written.
| LESSOR: RUSHMORE CEDAR L.L.C., an Iowa limited liability company |
||||
| By: | /s/ Xxx X. Xxxxxxxxxx | |||
| Print: Xxx X. Xxxxxxxxxx | ||||
| Its: Managing Member | ||||
| Date: September 9, 2011 | ||||
| LESSEE: DLORAH, INC., d/b/a NATIONAL AMERICAN UNIVERSITY, a South Dakota corporation |
||||
| By: | /s/ Xxxxxx Shape | |||
| Dr. Xxxxxx Shape | ||||
| Chief Executive Officer | ||||
| Date: August 5, 2011 | ||||
