EMBASSY PLAZA
STANDARD OFFICE LEASE
THIS LEASE is made this 2nd day of May, 1995, between The Prudential Insurance
Company of America, having an office at Xxx Xxxxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000 ("Landlord"), and Data Transmission Network Corporation,
having an office at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx, 00000
("Tenant"), for space in the building located at 0000 Xxxx Xxxxx Xxxx, Xxxxx,
Xxxxxxxx (such building, the related parking areas, driveways and other
improvement, together with the land described in Exhibit "C" attached hereto
upon which such building and improvements are situated, being herein referred to
as the "Building").
The following schedule sets forth certain basic terms of this Lease:
BASIC TERMS:
A. Premises: Approximately 75,931 rentable square feet (RSF) of space in the
Building described above, and more specifically known as Suites #175A
(10,144 RSF), #110 (4,141 RSF), #200 (27,719 RSF), #300 (2,268 RSF), #301
(1,843 RSF), #310 (5,970 RSF), #320 (1,406 RSF), #325 (2,177 RSF), #340
(12,477 RSF), #360 (6,472), and #362 (1,314 RSF), as shown on the floor
plans attached hereto, marked as Exhibits "A", "B", and "C" and by this
reference made a part hereof.
B. Base Rent: Nine Million, Nine Hundred Sixty-Six Thousand, Eight Hundred
Fifty-Six Dollars and Thirty-Seven Cents ($9,966,856.37) for the Term,
payable monthly as follows:
May 1, 1995 - May 31, 1995 $64,496.94 June 1, 1995 - December 31,
1997 $71,166.40 Per Month January 1, 1998 - May 31, 2000
$83,635.07 Per Month June 1, 2000 - May 31, 2005 $87,846.40 Per
Month
C. Term: That period of time commencing May 1, 1995; for Suites #000, #000,
#000, #000, #000, #000, and #362; June 1, 1995, for Suites #301, #320. and
#325; and January 1, 1998 for Suite 175A (the "Commencement Dates") and
ending May 31, 2005, (the "Expiration Date") unless sooner terminated as
set forth herein.
D. Tenant's Proportionate Share: Tenant's Proporationate Share shall be
equivilent to the percentage Tenant's total leased Premises is to the
Building's total rentable square feet (130,436 RSF). The following is a
schedule of Tenant's Proporationate Share relative to the Commencement
Dates specified in Paragraph C of the Basic Terms:
May 1, 1995 - May 31, 1995 46.37% (60,361 RSF / 130,173 RSF)
June 1, 1995 - December 31, 1997 50.44% (65,787 RSF / 130,436 RSF)
January 1, 1998 - May 31, 2005 58.21% (75,931 RSF / 130,436 RSF)
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E. Base Expense Year and Base Tax Year: 1994
F. Security Deposit: No Deposit Required
G. Broker(s): Pacific Realty Group, Inc. ("Broker")
H. Guarantor(s): None
I. Exhibits: A. First Floor Plan of Premises
B. Second Floor Plan of Premises
C. Third Floor Plan of Premises
D. Legal Description of Building
E. Tenant Improvement Work Schedule
F. Rules and Regulations
G. Antenna License Agreement
1. DEMISE AND TERM. Landlord leases to Tenant and Tenant leases from Landlord
the premises (the "Premises") described in Item "A" of the Basic Terms and shown
on the floor plans, attached hereto as Exhibits "A" and "B", subject to the
covenants and conditions set forth in this Lease, for a term (the "Term")
commencing on the Commencement Date and expiring on the Expiration Date
described in Item C of the Basic Terms, unless terminated earlier as otherwise
provided in this Lease. If Tenant shall occupy the Premises prior to the
beginning of the Term of this Lease with Landlord's consent, all the provisions
of this Lease shall be in full force and effect as soon as Tenant occupies the
Premises.
2. RENT.
A. Definitions. For purposes of this Lease, the following terms shall have the
following meanings:
(i) "Base Expenses" or "Base Expense Year" shall mean the amount or the
year set forth in Item E of the Basic Terms
(ii) "Expenses" shall mean all expenses, costs and disbursements (including
Taxes) paid or incurred by Landlord in connection with the ownership,
management, maintenance, operation, replacement and repair of the
Building. Expenses shall not include: (a) costs of tenant alterations;
(b) costs of capital improvements (except for costs of any capital
improvements made or installed for the purpose of reducing Expenses or
made or installed pursuant to governmental requirement or insurance
requirement, which costs shall be amortized by Landlord in accordance
with sound accounting and management principles); (c) interest and
principal payments on mortgages (except interest on the cost of any
capital improvements for which amortization may be included in the
definition of Expenses) or any rental payments on any ground leases
(except for rental payments which constitute reimbursement for Taxes
and Expenses); (d) advertising expenses and leasing commissions; (e)
any cost or expenditure for which Landlord is reimbursed, whether by
insurance proceeds or otherwise, except through Adjustment Rent
(hereinafter defined); (f) the cost of any kind of service furnished
to any other tenant in the Building which Landlord does not generally
make available to all tenants in the Building; (g) legal expenses of
negotiating leases; (h) salaries and fringe benefits of employees
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above the grade of building manager. Expenses shall be determined on a
cash or accrual basis, as Landlord may elect.
(iii)"Rent" shall mean Base Rent, Adjustment Rent and any other sums or
charges due by Tenant hereunder.
(iv) "Taxes" shall mean all taxes, assessments and fees levied upon the
Building, the property of Landlord located therein or the rents
collected therefrom, by any governmental entity based upon the
ownership, leasing, renting or operation of the Building, including
all costs and expenses of protesting any such taxes, assessments or
fees. Taxes shall not include any net income, capital stock,
succession, transfer, franchise, gift, estate or inheritance taxes;
provided, however, if at any time during the Term, a tax or excise on
income is levied or assessed by any governmental entity, in lieu of or
as a substitute for, in whole or in part, real estate taxes or other
ad valorem taxes, such tax shall constitute and be included in Taxes.
For the purpose of determining Taxes for any given year, the amount to
be included for such year (a) from special assessments payable in
installments shall be the amount of the installments (and any
interest) due and payable during such year, and (b) from all other
Taxes shall at Landlord's election either be the amount accrued,
assessed or otherwise imposed for such year or the amount due and
payable in such year.
(v) "Tenant's Proportionate Share" shall mean the percentage set forth in
Item D of the Basic Terms which has been determined by dividing the
rentable square feet in the Premises by the rentable square feet in
the Building.
B. Components of Rent. Tenant agrees to pay the following amounts to Landlord
at the office of the Building or at such other place as Landlord
designates:
(i) Base rent ("Base Rent") to be paid in monthly installments in the
amount set forth in Item B of the Basic Terms in advance on or before
the first day of each month of the Term, except that Tenant shall pay
the first month's Base Rent upon execution of this Lease.
(ii) Adjustment rent ("Adjustment Rent") in an amount equal to Tenant's
Proportionate Share of (a) the increase in Expenses for any calendar
year over the Base Expenses and (b) the increase in Taxes for any
calendar year over the Base Taxes. (If the Basic Terms set forth a
Base Expense Year and a Base Tax Year rather than Base Expenses and
Base Taxes, the Base Expenses and the Base Taxes shall equal the
amount of Expenses and Taxes, respectively, for the Base Expense Year
and the Base Tax Year.) Prior to each calendar year, Landlord shall
estimate the amount of Adjustment Rent due for such year, and Tenant
shall pay Landlord one-twelfth of such estimate on the first day of
each month during such year. Such estimate may be revised by Landlord
whenever it obtains information relevant to making such estimate more
accurate. After the end of each calendar year, Landlord shall deliver
to Tenant a report setting forth the actual Expenses and Taxes for
such calendar year and a statement of the amount of Adjustment Rent
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that Tenant has paid and is payable for such year. Within thirty days
after receipt of such report, Tenant shall pay to Landlord the amount
of Adjustment Rent due for such calendar year, minus any payments of
Adjustment Rent made by Tenant for such year. If Tenant's estimated
payments of Adjustment Rent exceed the amount due Landlord for such
calendar year, Landlord shall apply such excess as a credit against
Tenant's other obligations under this Lease or promptly refund such
excess to Tenant if the Term has already expired, provided Tenant is
not then in default hereunder, in either case without interest to
Tenant.
C. Payment of Rent. The following provisions shall govern the payment of Rent:
(i) if this Lease commences or ends on a day other than the first day or last
day of a calendar month, the Rent for the month in which this Lease so begins or
ends shall be prorated and adjusted accordingly; (ii) all Rent shall be paid to
Landlord without offset or deduction, and the covenant to pay Rent shall be
independent of every other covenant in this Lease; (iii) if during all or any
portion of any year the Building is not fully rented and occupied, Landlord may
elect to make an appropriate adjustment of Expenses and/or Taxes for such year
to determine the Expenses that would have been paid or incurred by Landlord had
the Building been fully rented and occupied for the entire year and the amount
so determined shall be deemed to have been the Expenses and/or Taxes for such
year; (iv) any sum due from Tenant to Landlord which is not paid when due shall
bear interest from the date due until the date paid at the annual rate of
eighteen percent (18%) or the maximum rate permitted by law, whichever is less
(the "Default Rate"); and, in addition, Tenant shall pay Landlord a late charge
for any Rent payment which is paid more than five days after its due date equal
to five percent of such payment; (v) if changes are made to this Lease or the
Building changing the number of square feet contained in the Premises or in the
Building, Landlord shall make an appropriate adjustment to Tenant's
Proportionate Share; (vi) Tenant shall have the right to inspect Landlord's
accounting records relative to Expenses and Taxes during normal business hours
at any time within thirty days following the furnishing to Tenant of the annual
statement of Rent Adjustment; and, unless Tenant shall take written exception to
any item in any such statement within such thirty day period, such statement
shall be considered as final and accepted by Tenant; (vii) in the event of the
termination of this Lease prior to the determination of any Adjustment Rent,
Tenant's agreement to pay any such sums and Landlord's obligation to refund any
such sums (provided Tenant is not in default hereunder) shall survive the
termination of this Lease; (viii) no adjustment to the Rent by virtue of the
operation of the rent adjustment provisions in this Lease shall result in the
payment by Tenant in any year of less than the Base Rent set forth in Item B of
the Basic Terms; (ix) Landlord may at any time change the fiscal year of the
Building; (x) each amount owed to Landlord under this Lease for which the date
of payment is not expressly fixed shall be due on the same date as the Rent
listed on the statement showing such amount is due; and (xi) if Landlord fails
to give Tenant an estimate of Adjustment Rent prior to the beginning of any
calendar year, Tenant shall continue to pay Adjustment Rent, as the case may be,
at the rate for the previous calendar year until Landlord delivers such
estimate.
D. Allocation of Rent. (INTENTIONALLY DELETED)
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3. USE. Tenant agrees that it shall occupy and use the Premises only as business
offices and for no other purposes. Tenant shall comply with all federal, state
and municipal laws, ordinances and regulations and all covenants, conditions and
restrictions of record applicable to Tenant's use or occupancy of the Premises.
Without limiting the foregoing, Tenant shall not cause, nor permit, any
hazardous or toxic substances to be brought upon, produced, stored, used,
discharged or disposed of in, on or about the Premises without the prior written
consent of Landlord and then only in compliance with all applicable
environmental laws. If as a result of Tenant's use of the Premises (a) the
amount of insurance premiums payable by Landlord for insurance maintained by
Landlord for or in respect to the Building is increased, (b) any such insurance
coverage is decreased, or (c) cancellation or refusal to renew any such
insurance policy is threatened, Landlord shall so notify Tenant, whereupon
Tenant shall immediately pay any such increased premium or cease any such use,
failing which (or in the event of a threatened cancellation or refusal to renew
any such insurance policy which may not be cured by the payment of an additional
premium) Landlord shall have the right and option, in addition to Landlord's
other rights and remedies hereunder, to terminate this Lease upon written notice
to Tenant effective on the date set forth in such notice.
4. CONDITION OF PREMISES. Tenant's taking possession of the Premises shall be
conclusive evidence that the Premises were in good order and satisfactory
condition when Tenant took possession. No agreement of Landlord to alter,
remodel, decorate, clean or improve the Premises or the Building (or to provide
Tenant with any credit or allowance for the same), and no representation
regarding the condition of the Premises or the Building, have been made by or on
behalf of Landlord or relied upon by Tenant, except as stated herein or in the
Tenant Improvement Work Schedule executed by Landlord and Tenant and attached
hereto as Exhibit "E".
5. BUILDING SERVICES.
A. Basic Services. Landlord shall furnish the following services: (i) heating
and air conditioning to provide a temperature condition required, in Landlord's
judgment, for comfortable occupancy of the Premises under normal business
operations, daily from 7:30 A.M. to 6:00 P.M. (Saturday from 8:00 A.M. to 1:00
P.M.), Sundays and holidays excepted; (ii) water for drinking, and, subject to
Landlord's approval, water at Tenant's expense for any private restrooms and
office kitchen requested by Tenant; (iii) men's and women's restrooms at
locations designated by Landlord, in common with other tenants of the Building;
(iv) daily janitor service in the Premises and common areas of the Building,
weekends and holidays excepted and (v) passenger elevator service in common with
Landlord and other tenants of the Building, 24 hours a day, 7 days a week; and
freight elevator service daily, weekends and holidays excepted, upon request of
Tenant and subject to scheduling and charges by Landlord. Notwithstanding the
above, Tenant will not be required to meter and pay for water used within the
Premises (except through the provisions of paragraph 2B(ii) as an Expense),
unless Tenant installs special equipment that specifically utilizes water for
processing or cooling, such as but not limited to air conditioning or computers,
excluding drinking fountains.
B. Electricity. Electricity shall be distributed to the Premises either by the
electric utility company serving the Building or, at Landlord's option, by
Landlord, and Landlord shall permit Landlord's wire and conduits, to the extent
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available, suitable and safely capable, to be used for such distribution. If and
so long as Landlord is distributing electricity to the Premises, Tenant shall
obtain all of its electricity from Landlord and shall pay all of Landlord's
charges, which charges shall be based, at Landlord's option, either on meter
readings or on a survey of Tenant's electrical usage made by Landlord or on
Tenant's prorata share of all space, including the Premises, which is commonly
metered with the Premises. If the electric utility company is distributing
electricity to the Premises, Tenant at its cost shall make all necessary
arrangements with the electric utility company for metering and paying for
electric current furnished to the Premises.
C. Telephones. Tenant shall arrange for telephone service directly with one or
more of the public telephone companies servicing the Building and shall be
solely responsible for paying for such telephone service. If Landlord acquires
ownership of the telephone cables in the Building at any time, Landlord shall
permit Tenant to connect to such cables on such terms and conditions as Landlord
may prescribe. In no event does Landlord make any representation or warranty
with respect to telephone service in the Building, and Landlord shall have no
liability with respect thereto.
D. Additional Services. Landlord shall not be obligated to furnish any services
other than those stated above. If Landlord elects to furnish services requested
by Tenant in addition to those stated above (including services at times other
than those stated above), Tenant shall pay Landlord's then prevailing charges
for such services as Additional Rent within ten (10) days of Landlord's invoice
therefor. If Tenant shall fail to make any such payment, Landlord may, without
notice to Tenant and in addition to all other remedies available to Landlord,
discontinue any additional services. No discontinuance of any such service shall
result in any liability of Landlord to Tenant or be considered as an eviction or
a disturbance of Tenant's use of the Premises. In addition, if Tenant's
concentration of personnel or equipment adversely affects the temperature or
humidity in the Premises or the Building, Landlord may install supplementary air
conditioning units in the Premises; and Tenant shall pay for the cost of
installation, utility charges, and maintenance thereof.
E. Failure or Delay in Furnishing Services. Tenant agrees that Landlord shall
not be liable for damages for failure or delay in furnishing any service stated
above if such failure or delay is caused, in whole or in part, by any one or
more of the events stated in Section 25(j) below, nor shall any such failure or
delay be considered to be an eviction or disturbance of Tenant's use of the
Premises, or relieve Tenant from its obligation to pay any Rent when due or from
any other obligations of Tenant under this Lease.
6. RULES AND REGULATIONS. Tenant shall observe and comply, and shall cause its
subtenants, assignees, invitees, employees, contractors and agents to observe
and comply, with the rules and regulations listed on Exhibit "E" attached hereto
and with such reasonable modifications and additions thereto as Landlord may
make from time to time. Landlord shall not be liable for failure of any person
to obey such rules and regulations. Landlord shall not be obligated to enforce
such rules and regulations against any person, and the failure of Landlord to
enforce any such rules and regulations shall not constitute a waiver thereof or
relieve Tenant from compliance therewith.
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7. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights,
each of which Landlord may exercise without notice to Tenant and without
liability to Tenant, and the exercise of any such rights shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to any claim for set-off or abatement of rent
or any other claim: (a) to change the name or street address of the Building or
the suite number of the Premises; (b) to install, affix and maintain any and all
signs on the exterior or interior of the Building; (c) to make repairs,
decorations, alterations, additions, or improvements, whether structural or
otherwise, in and about the Building, and for such purposes to enter upon the
Premises, temporarily close doors, corridors and other areas in the Building and
interrupt or temporarily suspend services or use of common areas, and Tenant
agrees to pay Landlord for overtime and similar expenses incurred if such work
is done other than during ordinary business hours at Tenant's request; (d) to
retain at all times, and to use in appropriate instances, keys to all doors
within and into the Premises; (e) to grant to any person or to reserve unto
itself the exclusive right to conduct any business or render any service in the
Building; (f) to show or inspect the Premises at reasonable times and, if
vacated or abandoned, to prepare the Premises for reoccupancy; (g) to install,
use and maintain in and through the Premises pipes, conduits, wires and ducts
serving the Building, provided that such installation, use and maintenance does
not unreasonably interfere with Tenant's use of the Premises; and (h) to take
any other action which Landlord deems reasonable in connection with the
operation, maintenance or preservation of the Building. Notwithstanding the
above, Landlord shall not change the name of the Building without the Tenant's
prior approval, which shall not be unreasonably withheld. In addition, the
Tenant's suite numbers will not be changed without prior approval of the Tenant,
which shall not unreasonably be withheld.
8. MAINTENANCE AND REPAIRS. Tenant, at its expense, shall maintain and keep the
Premises in good order and repair at all times during the Term. In addition,
Tenant shall reimburse Landlord for the cost of any repairs to the Building
necessitated by the acts or omissions of Tenant, its subtenants, assignees,
invitees, employees, contractors and agents, to the extent Landlord is not
reimbursed for such costs under its insurance policies. Subject to the preceding
sentence, Landlord shall perform any maintenance or make any repairs to the
Building as Landlord shall desire or deem necessary for the safety, operation or
preservation of the Building, or as Landlord may be required or requested to do
by the City of Omaha, Nebraska or by the order or decree of any court or by any
other proper authority.
9. ALTERATIONS.
A. Requirements. Tenant shall not make any replacement, alteration, improvement
or addition to or removal from the Premises (collectively an "alteration")
without the prior written consent of Landlord. In the event Tenant proposes to
make any alteration, Tenant shall, prior to commencing such alteration, submit
to Landlord for prior written approval: (i) detailed plans and specifications;
(ii) sworn statements, including the names, addresses and copies of contracts
for all contractors; (iii) all necessary permits evidencing compliance with all
applicable governmental rules, regulations and requirements; (iv) certificates
of insurance in form and amounts required by Landlord, naming Landlord and any
other parties designated by Landlord as additional insureds; and (v) all other
documents and information as Landlord may reasonably request in connection with
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such alteration. Tenant agrees to pay Landlord's standard charges for review of
all such items and supervision of the alteration. Neither approval of the plans
and specifications nor supervision of the alteration by Landlord shall
constitute a representation or warranty by Landlord as to the accuracy,
adequacy, sufficiency or propriety of such plans and specifications or the
quality of workmanship or the compliance of such alteration with applicable law.
Tenant shall pay the entire cost of the alteration and, if requested by
Landlord, shall deposit with Landlord, prior to the commencement of the
alteration, security for the payment and completion of the alteration in form
and amount required by Landlord. Each alteration shall be performed in a good
and workmanlike manner, in accordance with the plans and specifications approved
by Landlord, and shall meet or exceed the standards for construction and quality
of materials established by Landlord for the Building. In addition, each
alteration shall be performed in compliance with all applicable governmental and
insurance company laws, regulations and requirements, including, without
limitation, all requirements of The Americans with Disabilities Act. Each
alteration shall be performed in harmony with Landlord's employees, contractors
and other tenants. Each alteration, whether temporary or permanent in character,
made by Landlord or Tenant in or upon the Premises (excepting only Tenant's
furniture, equipment and trade fixtures) shall become Landlord's property and
shall remain upon the Premises at the expiration or termination of this Lease
without compensation to Tenant; provided, however, that Landlord shall have the
right to require Tenant to remove such alteration at Tenant's sole cost and
expense in accordance with the provisions of Section 15 of this Lease.
Notwithstanding the above, Landlord recognizes Tenant will arrange for and
supervise its own construction. Landlord's charges for review of plans and
construction will be limited to the actual cost of any third party consultants
reasonably required by Landlord (such as, but not limited to, Structural
Engineers, Mechanical/Electrical Engineers, or Architects). In addition,
Landlord recognizes that Tenant may relocate its existing self contained package
air conditioning units (with no network of above ceiling ductwork) to supplement
the Building's system in the Premises. If such is the case or if Tenant
purchases with its own funds and installs similar type units, upon expiration or
termination of this Lease, Tenant will be allowed to or Landlord, at its sole
discretion, may require Tenant to remove such units at Tenant's sole cost and
expense in accordance with the provisions of Section 15 of this Lease.
Notwithstanding the above, Landlord as a part of its review of Tenant's proposed
alterations under this Paragraph 9, shall stipulate at the time the Tenant
requests approval of the proposed alterations, any proposed alterations that
will be required to be removed by Tenant upon surrender of the Premises by the
Tenant.
B. Liens. Upon completion of any alteration, Tenant shall promptly furnish
Landlord with sworn owner's and contractors' statements and full and final
waivers of lien covering all labor and materials included in such alteration.
Tenant shall not permit any mechanic's lien to be filed against the Building, or
any part thereof, arising out of any alteration performed, or alleged to have
been performed, by or on behalf of Tenant. If any such lien is filed, Tenant
shall within ten days thereafter have such lien released of record or deliver to
Landlord a bond in form, amount, and issued by a surety satisfactory to
Landlord, indemnifying Landlord against all costs and liabilities resulting from
such lien and the foreclosure or attempted foreclosure thereof. If Tenant fails
to have such lien so released or to deliver such bond to Landlord, Landlord,
without investigating the validity of such lien, may pay or discharge the same;
and Tenant shall reimburse Landlord upon demand for the amount so paid by
Landlord, including Landlord's expenses and attorneys' fees.
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10. INSURANCE. Tenant, at its expense, shall maintain at all times during the
Term the following insurance policies: (a) fire insurance, including extended
coverage, vandalism, malicious mischief, sprinkler leakage and water damage
coverage and demolition and debris removal, insuring the full replacement cost
of all improvements, alterations or additions to the Premises made at Tenant's
expense, and all other property owned or used by Tenant and located in the
Premises; (b) commercial general liability insurance, contractual liability
insurance and property damage insurance with respect to the Building and the
Premises, with limits to be set by Landlord from time to time but in any event
not less than $3,000,000 combined single limit for personal injury, sickness or
death or for damage to or destruction of property for any one occurrence; and
(c) insurance against such other risks and in such other amounts as Landlord may
from time to time require. The form of all such policies and deductibles
thereunder shall be subject to Landlord's prior approval. All such policies
shall be issued by insurers acceptable to Landlord and licensed to do business
in the State of Nebraska and shall contain a waiver of any rights of subrogation
thereunder. In addition, the policies shall name Landlord and any other parties
designated by Landlord as additional insureds, shall require at least thirty
days' prior written notice to Landlord of termination or modification and shall
be primary and not contributory. Tenant shall, at least ten days prior to the
Commencement Date, and within ten days prior to the expiration of each such
policy, deliver to Landlord certificates evidencing the foregoing insurance or
renewal thereof, as the case may be.
11. WAIVER AND INDEMNITY.
A. Waiver. Tenant releases Landlord, Landlord's beneficiaries and their
respective agents and employees from, and waives all claims for, damage or
injury to person or property and loss of business sustained by Tenant and
resulting from the Building or the Premises or any part thereof or any equipment
therein becoming in disrepair, or resulting from any accident in or about the
Building. This paragraph shall apply particularly, but not exclusively, to
flooding, damage caused by Building equipment and apparatus, water, snow, frost,
steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise
or vibration or the bursting or leaking of pipes, plumbing fixtures or sprinkler
devices. Without limiting the generality of the foregoing, Tenant waives all
claims and rights of recovery against Landlord, Landlord's beneficiaries and
their respective agents and employees for any loss or damage to any property of
Tenant, which loss or damage is insured against, or required to be insured
against, by Tenant pursuant to Section 10 above, whether or not such loss or
damage is due to the fault or negligence of Landlord or such beneficiaries,
agents or employees, and regardless of the amount of insurance proceeds
collected or collectible under any insurance policies in effect.
B. Indemnity. Tenant agrees to indemnify, defend and hold harmless Landlord,
Landlord's beneficiaries and their respective agents and employees, from and
against any and all claims, demands, actions, liabilities, damages, costs and
expenses (including attorneys' fees), for injuries to any persons and damage to
or theft or misappropriation or loss of property occurring in or about the
Building and arising from the use and occupancy of the Premises or from any
activity, work, or thing done, permitted or suffered by Tenant in or about the
Premises (including, without limitation, any alteration by Tenant) or from any
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed under this Lease or due to any
other act or omission of Tenant, its subtenants, assignees, invitees, employees,
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contractors and agents. Without limiting the foregoing, Tenant shall indemnify,
defend and hold Landlord harmless from any claims, liabilities, damages, costs
and expenses arising out of the use or storage of hazardous or toxic materials
in the Building by Tenant. If any such proceeding is filed against Landlord or
any such indemnified party, Tenant agrees to defend Landlord or such party in
such proceeding at Tenant's sole cost by legal counsel reasonably satisfactory
to Landlord, if requested by Landlord.
12. FIRE AND CASUALTY. If all or a substantial part of the Premises or the
Building is rendered untenantable by reason of fire or other casualty, Landlord
may, at its option, either restore the Premises and the Building, or terminate
this Lease effective as of the date of such fire or other casualty. Landlord
agrees to give Tenant written notice within sixty days after the occurrence of
any such fire or other casualty designating whether Landlord elects to so
restore or terminate this Lease. If Landlord elects to terminate this Lease,
Rent shall be paid through and apportioned as of the date of such fire or other
casualty. If Landlord elects to restore, Landlord's obligation to restore the
Premises shall be limited to restoring those improvements in the Premises
existing as of the date of such fire or other casualty which were made at
Landlord's expense and shall exclude any furniture, equipment, fixtures,
additions, alterations or improvements in or to the Premises which were made at
Tenant's expense. If Landlord elects to restore, Rent shall xxxxx for that part
of the Premises which is untenantable on a per diem basis from the date of such
fire or other casualty until Landlord has substantially completed its repair and
restoration work, provided that Tenant does not occupy such part of the Premises
during said period. If the restoration takes longer than two hundred and ten
(210) days or if such damage occurs during the last eighteen (18) months of the
Lease Term, the Tenant shall have the option to terminate this Lease as of the
date of casualty by submitting written notice to the Landlord.
13. CONDEMNATION. If the Premises or the Building is rendered untenantable by
reason of a condemnation (or by a deed given in lieu thereof), then either party
may terminate this Lease by giving written notice of termination to the other
party within thirty days after such condemnation, in which event this Lease
shall terminate effective as of the date of such condemnation. If this Lease so
terminates, Rent shall be paid through and apportioned as of the date of such
condemnation. If such condemnation does not render the Premises or the Building
untenantable, this Lease shall continue in effect and Landlord shall promptly
restore the portion not condemned to the extent reasonably possible to the
condition existing prior to the condemnation. In such event, however, Landlord
shall not be required to expend an amount in excess of the proceeds received by
Landlord from the condemning authority. Landlord reserves all rights to
compensation for any condemnation. Tenant hereby assigns to Landlord any right
Tenant may have to such compensation, and Tenant shall make no claim against
Landlord or the condemning authority for compensation for termination of
Tenant's leasehold interest under this Lease or interference with Tenant's
business, unless Tenant is entitled by applicable law to separate award which
does not diminish or reduce award otherwise made to Landlord.
14. ASSIGNMENT AND SUBLETTING. The Tenant covenants and agrees not to assign,
sublet, license or grant a concession or part with possession of the leased
premises or any part thereof without first obtaining the written consent of the
Landlord, except in the case of assignment or sublet to Tenant affiliate
company, provided assignee or sublessee affiliate company has, at a minimum,
equal credit worthiness as Tenant such consent not to be unreasonable withheld.
44
Provided that in any such assignment, subletting, license, concession or parting
with possession, the Landlord shall reserve its right to approve any further
assignment, license or concession or parting with possession and may require the
Assignee, Sublessee, Licensee, Concessionaire or person taking possession to
covenant directly with the Landlord to observe, perform and comply with the
event of such assignment, subletting license, concession or parting with
possession, all monies payable by the Assignee, Sublessee, Licensee,
Concessionaire or person taking possession shall be paid directly to the
Landlord, who shall credit the same as payments required and reserve hereunder.
The Landlord shall be entitled to receive any excess of such monies over and
above monies payable and reserved hereunder, for its own use absolutely and
forever. Tenant shall remain responsible for all of the terms and conditions of
this Lease, except in the case when an assignment has been approved by Landlord
to an assignee to have, at a minimum, equal credit worthiness as Tenant.
If at any time herein: (i) any person other than the Tenant has or exercises the
right to manage or control the leased premises, or any part thereof or any of
the business carried on therein other than subject to the direct and full
supervisions and control of the Landlord; or (ii) effective control of the Lease
is acquired or exercised by any person or persons not having effective control
of the same shall constitute a default entitling the Landlord, at its option, to
terminate this Lease, unless prior thereto the Tenant shall have received the
written consent of the Landlord.
As an alternative to such consent (and without being so obliged or affecting its
other rights) the Landlord at its option, shall have the right within thirty
(30) days of its being asked for such consent to, by written notice to the
Tenant, cancel this Lease as of and from the date at which the Tenant wishes to
assign, sublet, license or grant a concession or part with possession of the
leased premises or any part thereof; provided the Tenant shall have thirty (30)
days from the date of its receipt of such written notice to deliver a written
revocation of such request for consent to the Landlord; in which event the
Landlord's right to cancel pursuant to this Paragraph 14 shall be deemed lapsed
until the next such request.
Any attempt to assign, sublet, license or grant a concession or part with
possession of the leased premises or any part thereof without complying with the
terms and provisions of this Paragraph shall be null and void.
15. SURRENDER. Upon termination of the Term or Tenant's right to possession of
the Premises, Tenant shall return the Premises to Landlord in good order and
condition, ordinary wear and damage by fire or other casualty excepted. If
Landlord requires Tenant to remove any alterations pursuant to Section 9, then
such removal shall be done in a good and workmanlike manner; and upon such
removal Tenant shall restore the Premises to its condition prior to the
installation of such alterations. If Tenant does not remove such alterations
after request to do so by Landlord, Landlord may remove the same and restore the
Premises; and Tenant shall pay the cost of such removal and restoration to
Landlord, plus a fee equal to twenty percent (20%) of Landlord's cost, as
Additional Rent upon demand. Tenant shall also remove its furniture, equipment,
trade fixtures and all other items of personal property from the Premises prior
to termination of the Term or Tenant's right to possession of the Premises. If
Tenant does not remove such items, Tenant shall be conclusively presumed to have
conveyed the same to Landlord without further payment or credit by Landlord to
Tenant; or at Landlord's sole option such items shall be deemed abandoned, in
which event Landlord may cause such items to be removed and disposed of at
45
Tenant's expense without notice to Tenant and without obligation to compensate
Tenant.
16. DEFAULTS AND REMEDIES.
A. Default. The occurrence of any of the following shall constitute a default (a
"Default") by Tenant under this Lease: (i) Tenant fails to pay any Rent when due
and such failure is not cured within five days after notice from Landlord (which
notice may be in the form of a landlord statutory five-day notice); (ii) Tenant
fails to perform any other provision of this Lease and such failure is not cured
within thirty days (or immediately if the failure involves a hazardous
condition) after notice from Landlord; (iii) the leasehold interest of Tenant is
levied upon or attached under process of law; (iv) Tenant or any guarantor of
this Lease dies or dissolves; (v) Tenant vacates the Premises; or (vi) any
voluntary or involuntary proceedings are filed by or against Tenant or any
guarantor of this Lease under any bankruptcy, insolvency or similar laws and, in
the case of any involuntary proceedings, are not dismissed within thirty days
after filing.
B. Right of Re-Entry. Upon the occurrence of a Default, Landlord may elect to
terminate this Lease or, without terminating this Lease, terminate Tenant's
right to possession of the Premises. Upon any such termination, Tenant shall
immediately surrender and vacate the Premises and deliver possession thereof to
Landlord. Tenant grants to Landlord the right to enter and repossess the
Premises and to expel Tenant and any others who may be occupying the Premises
and to remove any and all property therefrom, without being deemed in any manner
guilty of trespass and without relinquishing Landlord's rights to Rent or any
other right given to Landlord hereunder or by operation of law.
C. Reletting. If Landlord terminates Tenant's right to possession of the
Premises without terminating this Lease, Landlord may relet the Premises or any
part thereof. In such case, Landlord shall use reasonable efforts to relet the
Premises on such terms as Landlord shall reasonably deem appropriate; provided,
however, Landlord may first lease Landlord's other available space and shall not
be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant about such reletting. If the consideration
collected by Landlord upon any such reletting, after payment of the expenses of
reletting the Premises which have not been reimbursed by Tenant, is greater than
the amount necessary to pay the full amount of the Rent, the full amount of such
excess shall be retained by Landlord and shall in no event be payable to Tenant.
D. Termination of Lease. If Landlord terminates this Lease, Landlord may recover
from Tenant and Tenant shall pay to Landlord, on demand, as and for liquidated
and final damages, an accelerated lump sum amount equal to the amount by which
Landlord's estimate of the aggregate amount of Rent owing from the date of such
termination through the Expiration Date plus Landlord's estimate of the
aggregate expenses of reletting the Premises, exceeds Landlord's estimate of the
fair rental value of the Premises for the same period (after deducting from such
fair rental value the time needed to relet the Premises and the amount of
concessions which would normally be given to a new tenant) both discounted to
present value at the rate of five percent per annum.
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E. Other Remedies. Landlord may but shall not be obligated to perform any
obligation of Tenant under this Lease; and, if Landlord so elects, all costs and
expenses paid by Landlord in performing such obligation, together with interest
at the Default Rate, shall be reimbursed by Tenant to Landlord on demand. Any
and all remedies set forth in this Lease: (i) shall be in addition to any and
all other remedies Landlord may have at law or in equity, (ii) shall be
cumulative, and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future.
F. Bankruptcy. If Tenant becomes bankrupt, the bankruptcy trustee shall not have
the right to assume or assign this Lease unless the trustee complies with all
requirements of the United States Bankruptcy Code; and Landlord expressly
reserves all of its rights, claims, and remedies thereunder.
G. Waiver of Trial by Jury. Landlord and Tenant waive trial by jury in the event
of any action, proceeding or counterclaim brought by either Landlord or Tenant
against the other in connection with this Lease.
H. Venue. If either Landlord or Tenant desires to bring an action against the
other in connection with this Lease, such action shall be brought in the federal
or state courts located in Omaha, Nebraska. Landlord and Tenant consent to the
jurisdiction of such courts and waive any right to have such action transferred
from such courts on the grounds of improper venue or inconvenient forum.
17. HOLDING OVER. If Tenant retains possession of the Premises after the
expiration or termination of the Term or Tenant's right to possession of the
Premises, Tenant shall pay Rent during such holding over at one hundred and
forty percent (140%) of the rate in effect immediately preceding such holding
over computed on a monthly basis for each month or partial month that Tenant
remains in possession. Tenant shall also pay, indemnify and defend Landlord from
and against all claims and damages, consequential as well as direct, sustained
by reason of Tenant's holding over. The provisions of this Section do not waive
Landlord's right of re-entry or right to regain possession by actions at law or
in equity or any other rights hereunder, and any receipt of payment by Landlord
shall not be deemed a consent by Landlord to Tenant's remaining in possession or
be construed as creating or renewing any lease or right of tenancy between
Landlord and Tenant.
18. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deposit the
security deposit set forth in Item "F" of the Basic Terms (the "Security
Deposit") with Landlord as security for the performance of Tenant's obligations
under this Lease. Upon the occurrence of a Default, Landlord may use all or any
part of the Security Deposit for the payment of any Rent or for the payment of
any amount which Landlord may pay or become obligated to pay by reason of such
Default, or to compensate Landlord for any loss or damage which Landlord may
suffer by reason of such Default. If any portion of the Security Deposit is
used, Tenant shall within five days after written demand therefor deposit cash
with Landlord in an amount sufficient to restore the Security Deposit to its
original amount. Landlord shall not be required to keep the Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest on
the Security Deposit. In no event shall the Security Deposit be considered an
advanced payment of Rent, and in no event shall Tenant be entitled to use the
Security Deposit for the payment of Rent. If no default by Tenant exists
hereunder, the Security Deposit or any balance thereof shall be returned to
47
Tenant within thirty days after the expiration of the Term and vacation of the
Premises by Tenant. Landlord shall have the right to transfer the Security
Deposit to any purchaser of the Building. Upon such transfer, Tenant shall look
solely to such purchaser for return of the Security Deposit; and Landlord shall
be relieved of any liability with respect to the Security Deposit.
19. SUBSTITUTION OF OTHER PREMISES. Except for Tenant's computer and
transmission areas, at any time hereafter, Landlord may upon thirty days' prior
notice to Tenant substitute for the Premises other premises in the Building (the
"New Premises"), provided that the New Premises shall be reasonably usable for
Tenant's business hereunder; and, if Tenant is already in occupancy of the
Premises, then in addition Landlord shall pay the expenses of moving Tenant from
the Premises to the New Premises and for improving the New Premises so that they
are substantially similar to the Premises.
20. ESTOPPEL CERTIFICATE. Tenant agrees that, from time to time upon not less
than ten days' prior request by Landlord, Tenant shall execute and deliver to
Landlord a written certificate certifying: (i) that this Lease is unmodified and
in full force and effect (or if there have been modifications, a description of
such modifications and that this Lease as modified is in full force and effect);
(ii) the dates to which Rent has been paid; (iii) that Tenant is in possession
of the Premises, if that is the case; (iv) that Landlord is not in default under
this Lease, or, if Tenant believes Landlord is in default, the nature thereof in
detail; (v) that Tenant has no off-sets or defenses to the performance of its
obligations under this Lease (or if Tenant believes there are any off-sets or
defenses, a full and complete explanation thereof); and (vi) such additional
matters as may be requested by Landlord, it being agreed that such certificate
may be relied upon by any prospective purchaser, mortgagee, or other person
having or acquiring an interest in the Building. If Tenant fails to execute and
deliver any such certificate within ten days after request, Tenant shall be
deemed to have irrevocably appointed Landlord and Landlord's beneficiaries as
Tenant's attorneys-in-fact to execute and deliver such certificate in Tenant's
name.
21. SUBORDINATION. This Lease is and shall be expressly subject and subordinate
at all times to (i) any ground or underlying lease of the Building, now or
hereafter existing, and all amendments, renewals and modifications to any such
lease; and (ii) the lien of any mortgage or trust deed now or hereafter
encumbering fee title to the Building and/or the leasehold estate under any such
lease. If any such mortgage or trust deed is foreclosed, or if any such lease is
terminated, upon request of the mortgagee, holder or lessor, as the case may be,
Tenant will attorn to the purchaser at the foreclosure sale or to the lessor
under such lease, as the case may be. The foregoing provisions are declared to
be self-operative and no further instruments shall be required to effect such
subordination and/or attornment; provided, however, that Tenant agrees upon
request by any such mortgagee, holder, lessor or purchaser at foreclosure, to
execute and deliver such subordination and/or attornment instruments as may be
required by such person to confirm such subordination and/or attornment. If
Tenant fails to execute and deliver any such instrument within ten days after
request, Tenant shall be deemed to have irrevocably appointed Landlord and
Landlord's beneficiaries as Tenant's attorneys-in-fact to execute and deliver
such instrument in Tenant's name.
48
22. QUIET ENJOYMENT. As long as no Default exists, Tenant shall peacefully and
quietly have and enjoy the Premises for the Term, free from interference by
Landlord, subject, however, to the provisions of this Lease. The loss or
reduction of Tenant's light, air or view will not be deemed a disturbance of
Tenant's occupancy of the Premises nor will it affect Tenant's obligations under
this Lease or create any liability of Landlord to Tenant.
23. BROKER. Tenant represents to Landlord that Tenant has dealt only with the
broker(s) set forth in Item "G" of the Basic Terms (the "Broker") in connection
with this Lease and that, insofar as Tenant knows, no other broker negotiated
this Lease or is entitled to any commission in connection herewith. Tenant
agrees to indemnify, defend and hold Landlord and Landlord's beneficiaries and
agents harmless from and against any claims for a fee or commission made by any
broker, other than the Broker, claiming to have acted by or on behalf of Tenant
in connection with this Lease. Landlord agrees to pay the Broker a commission in
accordance with a separate agreement between Landlord and the Broker.
24. NOTICES. All notices and demands to be given by one party to the other party
under this Lease shall be given in writing, mailed or delivered, if to Tenant,
at Suite 200 in the Building, and if to Landlord at the address set forth below
or at such other address as either party may hereafter designate.
If to Landlord: The Prudential Insurance Company of America
One Prudential Plaza; Suite 1200
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Vice President - Equity Investments
and
The Prudential Insurance Company of America
One Prudential Plaza; Suite 1300
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Regional Counsel
with a copy to: Pacific Realty Group, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn.:Senior Vice President-
Management Operations
Notices shall be delivered by United States certified or registered mail,
postage prepaid, return receipt requested, or by a nationally recognized
overnight courier service. Notices shall be considered to have been given upon
the earlier to occur of actual receipt or two business days after posting in the
United States mail.
25. MISCELLANEOUS.
A. Successors and Assigns. Subject to Section 14 of this Lease, each provision
of this Lease shall extend to, bind and inure to the benefit of Landlord and
Tenant and their respective legal representatives, successors and assigns; and
all references herein to Landlord and Tenant shall be deemed to include all such
parties.
49
B. Entire Agreement. This Lease, and the riders and exhibits, if any, attached
hereto which are hereby made a part of this Lease, represent the complete
agreement between Landlord and Tenant; and Landlord has made no representations
or warranties except as expressly set forth in this Lease. No modification or
amendment of or waiver under this Lease shall be binding upon Landlord or Tenant
unless in writing signed by Landlord and Tenant.
C. Time of Essence. Time is of the essence of this Lease and each and all of its
provisions.
D. Execution and Delivery. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of space or an option for
lease, and it is not effective until execution and delivery by both Landlord and
Tenant. Execution and delivery of this Lease by Tenant to Landlord shall
constitute an irrevocable offer by Tenant to lease the Premises on the terms and
conditions set forth herein, which offer may not be revoked for fifteen days
after such delivery.
E. Severability. The invalidity or unenforceability of any provision of this
Lease shall not affect or impair any other provisions.
F. Governing Law. This Lease shall be governed by and construed in accordance
with the laws of the State of Nebraska.
X. Xxxxx in Possession. In no event shall Landlord be liable to Tenant if
Landlord is unable to deliver possession of the Premises to Tenant on the
Commencement Date for causes outside Landlord's reasonable control. If Landlord
is unable to deliver possession of the Premises to Tenant by the Commencement
Date, the Commencement Date shall be deferred until Landlord can deliver
possession to Tenant, and the Expiration Date shall be deferred for an equal
number of days.
H. Joint and Several Liability. If Tenant is comprised of more than one party,
each such party shall be jointly and severally liable for Tenant's obligations
under this Lease.
I. Force Majeure. Landlord shall not be in default hereunder and Tenant shall
not be excused from performing any of its obligations hereunder if Landlord is
prevented from performing any of its obligations hereunder due to any accident,
breakage, strike, shortage of materials, acts of God or other causes beyond
Landlord's reasonable control.
J. Demolition or Renovation. Landlord shall have the right to terminate this
Lease without compensation to Tenant upon one hundred and eighty (180) days'
prior notice to Tenant if Landlord is required to renovate or demolish the
Building or a substantial part thereof. However, if such renovation or
demolition is discretionary on behalf of the Landlord, Landlord will pay the
Tenant the fair market value of Tenant's remaining leasehold interest and
reasonable physical moving costs, based on the actual costs incurred.
K. Captions. The headings and titles in this Lease are for convenience only and
shall have no effect upon the construction or interpretation of this Lease.
50
L. No Waiver. No receipt of money by Landlord from Tenant after termination of
this Lease or after the service of any notice or after the commencing of any
suit or after final judgment for possession of the Premises shall renew,
reinstate, continue or extend the Term or affect any such notice or suit. No
waiver of any default of Tenant shall be implied from any omission by Landlord
to take any action on account of such default if such default persists or be
repeated, and no express waiver shall affect any default other than the default
specified in the express waiver and then only for the time and to the extent
therein stated.
M. Limitation of Liability. Any liability of Landlord under this Lease shall be
limited solely to its interest in the Building, and in no event shall any
personal liability be asserted against Landlord in connection with this Lease
nor shall any recourse be had to any other property or assets of Landlord.
N. Hazardous Materials. In the event any Hazardous Material (hereinafter
defined) is brought into or onto the Premises by Tenant, its employees or
agents, Tenant shall handle any such material in compliance with all applicable
federal, state and/or local regulations. For purposes of this Section,
"Hazardous Materials" means and includes any hazardous, toxic or dangerous
waste, substance or material defined as such in (or for purposes of) the
Comprehensive Environmental Response, Compensation and Liability Act, any
so-called "Superfund" or "Superlien" law, or any federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any
time hereafter in effect. Tenant shall submit to Landlord on an annual basis
copies of any approved hazardous materials communication plan, OSHA monitoring
plan and permits required by the Resource Recovery and Conversation Act of 1976,
which Tenant is required to prepare, file or obtain. Tenant will indemnify and
hold harmless Landlord from any losses, liabilities, damages, costs or expenses
(including reasonable attorneys' fees) which Landlord may suffer or incur as a
result of Tenant's introduction into or unto the Premises of any Hazardous
Material. This Section shall survive the expiration or sooner termination of
this Lease.
O. Modification for Mortgage. Should any mortgage, leasehold or similar
arrangement require a modification or modifications of this Lease, which
modification or modifications will not bring about any increased cost or expense
to Tenant or in any other way substantially change the rights and obligations of
Tenant hereunder, then and in such event, Tenant agrees that this Lease may be
so modified. Tenant further agrees to execute and deliver any documents
requested to evidence such modification within ten (10) days following such
request.
X. Xxxxx. A Rider consisting of one (2) pages, and containing paragraphs 26
through 32 is attached hereto and made a part of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first above written.
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TENANT: LANDLORD:
Data Transmission Network Corporation, The Prudential Insurance Company
a Delaware corporation of America, a New Jersey corporation
By: Pacific Realty Group, Inc.,
By: /s/ Xxxx X. Xxxxx its Managing Agent
----------------------------
Its: Executive Vice President
and Chief Operating Officer
----------------------------
52
EXHIBIT "D" - to be made a part of a Lease between THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA (Landlord) and DATA TRANSMISSION NETWORK CORPORATION
(Tenant), dated May 2, 1995.
LEGAL DESCRIPTION OF BUILDING
That part of the Southeast Quarter of the Southwest Quarter of Section 15,
Township 15 North, Range 12 East of the 6th P.M., in the City of Omaha, in
Xxxxxxx County, Nebraska, more particularly described as follows:
Beginning at a point on the Westerly right-of-way line of 00xx Xxxxxx which is
50.00 feet West of the East line and 92.59 feet North of the South line of said
Southeast Quarter of the Southwest Quarter; thence North 00(degree)00'00" East
(assumed bearing) along said Westerly right-of-way line of 00xx Xxxxxx a
distance of 718.41 feet to a point on the Southerly right-of-way line of Embassy
Row; thence North 90(degree)00'00" West along said Southerly right-of-way line
of Embassy Row a distance of 190.00 feet to a point of curve; thence
Southwesterly on a curve to the left, along said Southerly right-of-way line of
Embassy Row, said curve having a radius of 595.24 feet, a long chord of 420.72
feet bearing South 69(degree)18'22" West and an arc length of 430.09 feet;
thence South 44(degree)41'22" East a distance of 182.60 feet; thence South
00(degree)18'38" West a distance of 460.04 feet to a point on the Northerly
right-of-way line xx Xxxx Xxxxx Xxxx; thence South 89(degree)41'22" East along
said Northerly right-of-way line of West Dodge Road a distance of 173.30 feet;
thence North 00(degree)18'32" East along said Northerly right-of-way line of
West Dodge Road a distance of 11.00 feet; thence South 89(degree)41'22" East
along said Northerly right-of-way line of West Dodge Road, a distance of 270.00
feet; thence North 51(degree)10'21" East along said Northerly right-of-way line
of West Dodge Road a distance of 18.36 feet to the Point of Beginning.
53
EXHIBIT"E" to be made a part of a Lease between THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA (Landlord), and DATA TRANSMISSION NETWORK CORPORATION (Tenant), dated
May 2, 1995. (Page 1 of 2)
TENANT IMPROVEMENTS WORK SCHEDULE
ARTICLE I
Landlord's Construction Obligations
Landlord shall have no construction obligations under this Amendment.
Tenant accepts the Additional Premises in an "as is" condition, with all faults
and with the understanding that it shall be responsible for any and all
improvements required for its occupancy and use in accordance with Article II of
this Exhibit "B".
ARTICLE II
Construction of Tenant Improvements
Tenant shall have the right to place partitions and fixtures and make
improvements or other alterations in the Additional Premises in accordance with
the provisions of Paragraph 9 of the Lease. Landlord shall provide Tenant a
tenant finish allowance of up to One Hundred Eighty-Six Thousand, Eight Hundred
Forty Dollars and No Cents ($186,840.00) to be applied toward the cost of any
such tenant-provided improvements as follows:
1. The tenant finish allowance shall be paid in periodic installments, not
more frequently than once per month, equal to the total of the contractor's or
consultant's invoice amounts for improvements made to the Additional Premises,
excluding any furnishings or business equipment (such as computers,
satellite/microwave dish, office equipment, etc.), as submitted by Tenant and
verified to Landlord's reasonable satisfaction; provided, however, that such
payments will be made only if Tenant is not then in Default under the terms of
this Lease and invoices are accompanied by lien waivers in the amount equal to
that of the invoices. The tenant finish allowance shall be allocated and
distributed subject to the provisions of this Exhibit "B" as follows:
June 1, 1995 - February 29, 1996 Up To $65,112.00
January 1, 1998 - September 30, 1998 Up To $121,728.00
2. Upon the earlier of the end dates identified in the allocation schedule
specified in Paragraph 1 above, or the satisfaction of all obligations
associated with the tenant improvements covered under this Article II and
receipt of the associated lien waivers for the work, the Tenant shall forfeit
any unused portion of the allowance. Any requests for payment received by the
Landlord after the above specified end dates, will be returned to the Tenant and
will be the obligation and sole responsibility of the Tenant.
3. In addition to the provisions set forth in Paragraph 9 of the Lease,
Tenant's contractor shall (and its contract shall so provide):
(a) conduct its work in such a manner so as not to unreasonably
interfere with other tenants in the Building, Building operations,
or any other construction occurring on or in the Building or the
Premises;
54
(b) execute a set of and comply with all rules and regulations
relating to the construction activities in or on the Building as
may be reasonably promulgated from time to time by Landlord or its
agents;
(c) maintain such insurance (such as general liability and xxxxxxx'x
compensation) and bonds (such as performance and completion) in
force and effect as may be reasonably requested by Landlord or as
required by applicable law (but in any event said bonds shall be
in amounts equal to the full value or cost of the work being done
by the Tenant contractor);
(d) be responsible for reaching an agreement with Landlord and its
agents as to the terms and conditions for all contractor items
relating to the conducting of its work, including but not limited
to, those matters relating to hoisting, systems interfacing, use
of temporary utilities, storage of materials, placement of
dumpsters, access to the Premises and the Building, and the
purchase and return of Building standard materials.
(e) Upon completion of any tenant improvements, Tenant shall promptly
furnish Landlord with sworn owner's and contractors' statements
and full and final waivers of lien covering all labor and
materials included in such improvements. Tenant shall not permit
any mechanic's lien to be filed against the Building, or any part
thereof, arising out of any improvement performed, or alleged to
have been performed, by or on behalf of Tenant. If any such lien
is filed, Tenant shall within ten (10) days thereafter have such
lien released of record or deliver to Landlord a bond in form,
amount, and issued by a surety satisfactory to Landlord,
indemnifying Landlord against all costs and liabilities resulting
from such lien and the foreclosure or attempted foreclosure
thereof. If Tenant fails to have such lien so released or to
deliver such bond to Landlord, Landlord, without investigating the
validity of such lien, may pay or discharge the same; and Tenant
shall reimburse Landlord upon demand for the amount so paid by
Landlord, including Landlord's expenses and attorney's fees.
4. Landlord shall have the right to approve all subcontractors to be used
by the Tenant's contractor, which approval shall not be unreasonably withheld as
long as such subcontractors satisfy the requirements of this Article II.
5. Tenant shall indemnify and hold harmless Landlord, its agents,
contractors (including Building Contractor), and any mortgagee of Landlord, from
and against any and all losses, damages, costs (including costs of suit and
attorneys' fees), liabilities, or causes of action for injury to or death of any
person, for damage to any property, and for mechanic's materialmen's or other
liens or claims arising out of or in connection with the work done by the
Tenant's contractor (and Tenant's contractor's subcontractors and
sub-subcontractors) under its contract with Tenant.
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6. The failure by Tenant, after receiving written notice, to materially
comply with any of the provisions of Article II of this Exhibit shall constitute
a Default by Tenant under the terms of the Lease and Landlord shall have the
benefit of all remedies provided for in the Lease, except Tenant shall have a
thirty (30) day right to cure Default upon receipt of written notice .
7. Upon completion of the Tenant Improvements, Tenant shall deliver to
Landlord two (2) copies of the "as built" plans and specifications for the
Tenant Improvements completed under Article II of this Exhibit within thirty
(30) days of completing the same.
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EXHIBIT "F" to be made a part of a Lease between THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA (Landlord), and DATA TRANSMISSION NETWORK CORPORATION
(Tenant), dated May 2, 1995. (Page 1 of 2)
RULES & REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies and
other similar areas in the common areas of the Building shall not be used for
the storage of materials or disposal of trash, be obstructed by tenants or
Landlord, or be used by tenants or Landlord for any purpose other than entrance
to and from the tenant's leased areas and the Building and for going from one
part of the Building to another part of the Building.
2. Plumbing fixtures shall be used only for the purposes for which they are
designed, and no sweepings, rubbish, rags or other unsuitable materials shall be
disposed into them. Damage resulting to any such fixtures proven to result from
misuse by a tenant, and not by Landlord's cleaning contractors responsible for
cleaning the tenant's leased area and the Building, shall be the liability of
said tenant.
3. Signs, advertisements, graphics or notices visible in or from public
corridors, any common area or public areas of the Building or from outside the
Building shall be subject to Landlord's (or Landlord's property manager's) prior
written approval, which approval shall not be unreasonably withheld. No part of
the Complex may be defaced by Tenants .
4. Significant movement in or out of the Building of furniture, office
equipment, or any other bulky or heavy materials shall be restricted to such
hours as Landlord (or Landlord's property manager) shall reasonably designate.
Landlord (or Landlord's property manager) will determine the method and routing
of the movement of said items so as to ensure the safety of all persons and
property concerned and Tenant shall be responsible for all costs and expenses
associated therewith. Advance written notice of intent to move such items must
be made to the Landlord (or Landlord's property manager) at least twenty-four
(24) hours before the time of such move. For non significant movement in or out
of the Building of portable items which do not require use of dollies or other
moving equipment, notice to Landlord (or Landlord's property manager) shall not
be required.
5. All deliveries to a tenant's leased premises, requiring dedicated
elevator service for multiple trips that potentially will disrupt service for
visitors and other tenants of the Building during normal business operations as
defined in paragraph 5.A., shall be made through special arrangements with the
Landlord. In general, passenger elevators are to be used only for the movement
of persons and small deliveries during these normal business hours. Tenants may
obtain the prior written consent of Landlord (or Landlord's property manager)
for any exception to the provisions of this Paragraph 5.
6. Landlord (or Landlord's property manager) shall have the authority to
approve the proposed weight and location of any safes and heavy furniture and
equipment, which shall in all cases stand on supporting devices approved by
Landlord in order to distribute the weight.
7. Corridor doors which lead to common areas of the Building (other than
doors opening into the elevator lobby on floors leased entirely to a tenant)
shall be kept closed at all times.
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8. Each tenant shall cooperate with Landlord (and Landlord's property
manager) in keeping its leased area neat and clean. No tenant shall employ any
person for the purpose of such cleaning other than the Building's cleaning and
maintenance personnel without prior approval of Landlord (or Landlord's property
manager).
9. All elevator lobbies are to be kept neat and clean. The disposal of
trash or storage of materials in these areas is prohibited.
10. No birds, fish or other animals shall be brought into or kept in, on or
about the Building (except for Seeing Eye dogs).
11. Tenants shall not tamper with or attempt to adjust temperature control
thermostats in their leased premises. Landlord shall promptly respond to each
tenant's notices as to, and Landlord (or Landlord's property manager) shall
adjust thermostats as required to maintain, the Building standard temperature.
Each tenant shall use reasonable efforts to keep all window blinds down and
tilted at a 45 degree angle toward the street to help maintain comfortable room
temperatures and conserve energy.
12. Each tenant will comply with all security procedures necessary both
during business hours and after hours and on weekends. Landlord will provide
each tenant with prior notice of such security procedures and any changes
thereto promptly.
13. Tenants are requested to lock all office doors leading to corridors and
to turn out all lights at the close of their working day; provided, however,
that no tenant shall be responsible to ensure that Landlord's cleaning
contractor locks doors and turns out lights after cleaning the tenant's leased
premises.
14. All requests for overtime air conditioning or heating must be submitted
in writing to Landlord (or Landlord's property manager) by an authorized
representative of the tenant. A list of persons authorized to request such
overtime services (and any amendments thereto) will be furnished by the tenant
to Landlord and Landlord shall be entitled to rely thereon. Any such request
must be made by 2:00 p.m. on the day desired for weekday requests, by 2:00 p.m.
Friday for weekend requests and by 2:00 p.m. on the preceding business day for
holiday requests. Requests made after that time may result in an additional
charge (not to exceed Landlord's cost) to such Tenant, if acted upon by
Landlord. Landlord will make reasonable efforts to accommodate untimely requests
by Tenant for overtime air conditioning or heating. Charges for overtime
operation of air conditioning or heating shall be at the then current cost of
operating the required system components. Charges will be billed on Tenant's
monthly statement and are due within thirty (30) days of receipt of by Tenant of
the statement.
15. No flammable or explosive fluids or materials shall be kept or used
within the Building except in areas approved by Landlord, and each tenant shall
comply with all applicable building and fire codes relating thereto.
16. Tenants may not make any modifications, alterations, additions or
repairs to their leased premises and may not install any furniture, fixture or
equipment in their leased premises which is in violation of any applicable
building and/or fire code governing their lease premises or the Project. The
tenant must obtain prior approval from Landlord (or) Landlord's property
manager) of any such alterations, modifications and additions and shall deliver
58
"as built" plans therefor to Landlord (or Landlord's property manager), upon
completion, except as otherwise permitted in the tenant's lease. Such
alterations include, but are not limited to, any communication equipment and
associated wiring which must meet fire code. The contractor conducting the
modifications and additions must be a licensed contractor, is subject to all
rules and regulations of Landlord (and Landlord's property manager) while
performing work in the Building and must obtain all necessary permits and
approvals prior to commencing the modifications and additions.
17. No vending machines of any type shall be allowed in tenant space
without the prior written consent of Landlord (or Landlord's property manager),
which will not be unreasonably withheld. Landlord acknowledges that Tenant has
advised that it will have vending machines in their Premises.
18. All locks for doors in each tenant's leased areas shall be Building
Standard except as otherwise permitted by Landlord and no tenant shall place any
additional lock or locks on any door in its leased area without Landlord's (or
Landlord's property manager's) written consent except as otherwise permitted in
such tenant's lease. All requests for duplicate keys shall be made to Landlord
(or Landlord's property manager).
19. No tenant (or their visitors) shall interfere in any way with other
tenants' (or their visitors') quiet enjoyment of their leased premises.
20. Except in cases of gross negligence on behalf of the Landlord, Landlord
will not be liable or responsible for lost or stolen money, jewelry or other
personal property from any tenant's leased area or public areas of the Building
or Project.
21. No machinery of any kind other than normal office equipment shall be
operated by any tenant in its leased area without the prior written consent of
Landlord (or Landlord's property manager).
22. Canvassing, peddling, soliciting and distribution of hand bills in the
Building (except for activities within a tenant's leased premises which involve
only such tenant's employees) is prohibited. Each tenant is requested to notify
Landlord (or Landlord's property manager) if such activities occur.
23. All tenants will refer all contractors, contractors' representatives
and installation technicians tendering any service to them to Landlord for
Landlord's supervision, approval and control before the performance of any
contractual services. This provision shall apply to all work performed in the
Building (other than work under contract for installation or maintenance of
security equipment or banking equipment), including, but not limited to,
installations of telephones, telegraph equipment, electrical devices and
attachments, and any and all installations of every nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment and any other physical
portion of the Building.
24. Smoking is not permitted in the restrooms, stairwells, elevators,
public lobbies or public corridors.
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25. Each tenant and their contractors are responsible for removal of trash
resulting from large deliveries or move-ins. Such trash must be removed from the
Building and Building facilities may not be used for dumping. If such trash is
not promptly removed, Landlord (or Landlord's property manager) may cause such
trash to be removed at the tenant's sole cost and expense plus a reasonable
additional charge to be determined by Landlord to cover Landlord's
administrative costs in connection with such removal.
26. Tenants may not install, leave or store equipment, supplies, furniture
or trash in the common areas of the Building (i.e., outside their leased
premises).
27. Each tenant shall provide Landlord's property manager with names and
telephone numbers of individuals who should be contacted in an emergency.
28. Tenants shall comply with the Building life safety program established
by Landlord (or by Landlord's property manager), including without limitation
fire drills, training programs and fire warden staffing procedures, and shall
exercise all reasonable efforts to cause all tenant employees, invitees and
guests to comply with such program.
29. To insure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc., shall be delivered to any leased area except by
persons appointed or approved by Landlord in writing.
30. Should a tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct the electricians where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall approve. Electric current shall not be used for space heaters,
cooking or heating devices or similar appliances without Landlord's prior
written permission.
31. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways.
32. No portion of any tenant's leased area shall at any time be used or
occupied as sleeping or lodging quarters, nor shall personnel occupancy loads
exceed limits reasonably established by Landlord for the Building.
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EXHIBIT "G" - to be made a part of a Lease between THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA (Landlord) and DATA TRANSMISSION NETWORK CORPORATION (Tenant)
dated May 2, 1995. (Page 1 of 2)
Property #: 21139
ANTENNA LICENSE AGREEMENT
BETWEEN
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
AND
DATA TRANSMISSION NETWORK CORPORATION
This Agreement made as of the day of , 1995, by and between The Prudential
Insurance Company Of America, a New Jersey corporation, (hereinafter called
"Licenser") and Data Transmission Network Corporation, a Delaware corporation,
(hereinafter called "Licensee").
WITNESSETH:
I. Licenser, for and in consideration of the payments hereinafter set forth and
of the covenants and agreements made by Licensee herein contained, does hereby
grant unto the Licensee a non-exclusive license to utilize space in the building
located at 0000 Xxxx Xxxxx Xxxx, Xxxxx, Xxxxxxxx, (hereinafter called the
"Building") for the purpose of installing and using various satellite dishes
(herein referred to as "Antenna") to be attached to the roof of the Building
during the Term of the Lease unless extended or sooner terminated as provided
herein.
II. Licensee shall make payments to Licenser, at the office of the Building, or
elsewhere as designated from time to time by notice in writing to Licensee, in
monthly installments as follows:
"Except for the Rent required under the Lease and as otherwise provided
herein, Licensee shall not be required to pay any monthly rental for
this Antenna License Agreement."
III. The size, location and placement as well as the manner and method of
installation and removal of the Antenna and related equipment shall be subject
to the prior written approval of Licenser. If Licenser elects to hire
structural, mechanical, roofing and/or other engineers or consultants to review
such plans and specifications, Licensee shall reimburse Licenser for the
reasonable costs thereof, whether or not Licenser grants such approval.
Notwithstanding the above, all Antenna installed as of the date of this
agreement do not need written approval.
IV. In addition to the monthly rental, Licensee shall pay for all utilities
consumed to install, maintain, operate and remove its Antenna and equipment, as
well as the reasonable costs of any engineers or consultants employed by
Licenser to review or monitor same.
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V. Prior to the installation of said Antenna and equipment, Licensee shall
secure and shall at all time thereafter maintain all required approvals and
permits of the Federal Communications Commission and all other governmental
bodies having jurisdiction over its business, including its communications,
operations and facilities. Licensee shall at all times comply with all laws and
ordinances and all rules and regulations of municipal, state and federal
governmental authorities relating to the installation, maintenance, height,
location, use, operation, and removal of said Antenna and equipment and shall
fully indemnify Licenser against any loss, cost, or expense which may be
sustained or incurred by it as a result of the installation, maintenance,
operation, or removal of said Antenna and equipment. Licenser makes no
representation that applicable laws, ordinances or regulations permit the
installation or operation of antennas on the subject real estate.
VI. Licenser hereby grants unto Licensee the right, to be exercised as herein
set forth, to enter upon the roof of the Building for the sole purpose of
gaining access to the Licensee's installation. In addition thereto, Licenser
grants unto Licensee the right, to be exercised as herein set forth, to install
such equipment, conduits, cables and materials (hereinafter called "the
connecting equipment") in shafts, ducts, conduits, chases, utility closets and
other facilities of the Building as designated by Licenser as is reasonably
necessary to connect Licensee's Antenna to Licensee's other machinery and
equipment in other parts of the Building, subject to the requirements of any
permits and the codes, regulations and rules of any governmental body, agency or
authority. Licenser further grants to Licensee the right of access to the areas
where such connecting equipment is located for the purposes of maintaining,
repairing, testing and replacing the connecting equipment; provided, that such
access and installations do not cause damage to or interfere with the operation
or maintenance of any part of the Building or with any other tenant's operation.
VII. Licensee shall promptly reimburse Licenser for the costs of repairs of any
damage to the Building directly or indirectly caused by Licensee's installations
or the operation, maintenance or removal thereof.
VIII. Licensee, at its expense, shall be solely responsible for and shall
maintain its Antenna and related equipment in a safe, structural, sound, clean
and sightly condition and shall indemnify and save harmless Licenser against all
liens and claims of mechanics and material men furnishing labor and materials in
the construction and maintenance of same.
IX. Licensee agrees to defend, indemnify and save harmless Licenser and to
assume all liability for death or injury to any persons and all liability for
loss, damage or injury to any property incurred or sustained by Licensee arising
from, growing out of or resulting from Licensee's installation or its use of the
roof of the Building or any other areas in the Building where Licensee's related
equipment is located, including costs, attorney's fees and other expenses
incurred by Licenser in defending any such claim unless such loss, damage or
injury is due to the negligence of Licenser, its employees, agents, or invitees.
X. The license hereby granted to Licensee shall not be deemed to give to
Licensee the exclusive right to use the roof or tower of the Building and shall
not preclude Licenser from granting a license or licenses to others. The rights
of other licensees shall be exercised without causing unreasonable interference
with the activities being carried on by Licensee in accordance with this
62
license. Similarly, the rights of Licensee hereunder shall be exercised without
causing interference with the activities being carried on by other licensees in
accordance with their respective licenses. Licensee shall not change or
materially alter the Antenna or related equipment agreed to herein without the
prior written consent of Licenser.
XI. Licensee hereby waives and releases all claims arising out of this
agreement, or in any way whatsoever connected with the subject matter of this
agreement, against licenser its officers, directors, agents, employees and
servants, and agrees that they shall not be liable for injury to person or
damage to property sustained by Licensee or by any occupancy of the Building or
any other person occurring in or about the Building resulting directly or
indirectly from any existing or future condition, defect, matter of thing in the
Building or any part of it or from equipment or appurtenance becoming out of
repair, or from any occurrence, act, or from the negligence or omission of any
tenant or occupant of the Building or of any other person; except for the
negligence or omission by Licenser, its officers, directors, agents, employees
and servants.
XII. No notice or demand related to or required by this Agreement shall be
effective unless same is in writing and is delivered as provided in paragraph 24
of the Lease.
XIII. Licenser shall have the right to terminate this License upon written
notice to Licensee, in the event that: (a) Licensee shall default in the
performance of any of the obligations imposed upon it hereunder and shall not,
after being notified by Licenser of the existence of such default, immediately
take all reasonable steps to cure the same; or (b) it shall be determined that
such installation or use materially interferes with the operation of machinery
and apparatus of the Building, such as the elevators; or (c) it is found by
public authority having jurisdiction over the Building that such installation
and use constitute a nuisance or hazard to the public or to the occupants of the
Building; or (d) the use of such antenna interferes with the use of any tenant's
equipment or data processing machines in the Building; or (e) Licensee's lease
or right to possession of space in the Building shall expire or be terminated.
XIV. At the termination of this license by lapse of time or otherwise, the
Antenna and the related equipment installed under the terms of this license
shall be removed by Licensee and the area of the Building where they were
installed shall be restored by Licensee to as good condition as existed
immediately prior to installation of such Antenna and related equipment.
XV. This Agreement shall be binding upon the successors and assigns of the
parties hereto, provided that Licensee shall not assign or transfer this License
to anyone else without Licenser's prior written consent which may be withheld at
its sole discretion.
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LICENSEE: LICENSER:
Data Transmission Network Corporation, The Prudential Insurance Company Of
Delaware corporation America, New Jersey corporation
By: Pacific Realty Group, Inc.
its Managing Agent
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RIDER
This Rider forms a part of that certain Standard Office Lease dated May 2, 1995,
between The Prudential Insurance Company of America, as Landlord, and Data
Transmission Network Corporation, as Tenant.
OTHER PROVISIONS:
26. TENANT'S USE OF THE PREMISES. It is understood that the Tenant's intended
use of the Premises will be for general administration and office space, as well
as, for the installation and operation of the various technical equipment used
in Tenant's primary business, such as but not limited to, transmission and other
network equipment. In the event that the Tenant's use of the space or population
of either people or equipment within the Premises results in above standard
requirements of the base building's structural, mechanical and electrical
systems, it will be the obligation and sole responsibility of the Tenant to make
any modifications to or supplement the base building structural, mechanical and
electrical systems that may be required in the reasonable discretion of the
Landlord.
27. ELECTRICITY METERS. Notwithstanding the provisions of paragraph 5B of the
Lease, Tenant will be responsible for the cost of any above standard electrical
requirements as a result of its use and occupancy, including but not limited to,
the cost of providing the separate metering, additional service facilities, and
the on-going associated utility costs. Landlord will periodically undertake,
through a certified engineering consultant, a study of the estimated utility
usage and associated systems impact of all tenants of the Building. The study
will be used to establish the average usage per rentable square foot of tenants
with "like type office uses" in the building. This average will then be used as
a standard for the calculation of any above standard usage and any corresponding
utility charges to be paid by Tenant in accordance with the provisions of this
paragraph and paragraph 5B.
28. MONUMENT SIGNAGE. The Tenant will be allowed, at its sole cost and expense,
subject to the provisions of Exhibit "D" of the Lease, to cause to be designed
and installed a monument sign identifying its occupancy in the building, It is
anticipated that this monument sign will be low-profile and located on the West
Dodge Road side of the property. It is understood that the Tenant will be
limited to Tenant's Proportionate Share of the total signage allowed for the
project, based upon all current codes and ordinances that regulate monument
signage in Omaha, Nebraska. The Landlord reserves the right, in its reasonable
discretion, to approve the design and materials of the Tenant's proposed
monument sign. The final location of the proposed monument sign will be mutually
agreed upon between the Tenant and the Landlord.
29. FUTURE EXPANSION. Provided Tenant is not then in Default, and subject to the
further provisions of this Xxxxxxxxx 00, Xxxxxxxx grants to Tenant the following
opportunities to expand the Premises:
A. Option Space. Provided Tenant is not then in Default, Tenant shall have a one
time option add to the Premises, as a part of this Lease, Suite 175B (10,144
R.S.F.) (the "Option Space") on the first floor of the Building as further shown
on Exhibit "A", subject to the further provisions herein.
65
(i) Requirements. In order to exercise this option, Tenant must notify the
Landlord of its intent to exercise this option prior to June 1, 1997. If Tenant
exercises this option, then such Option Space will become part of the Premises
leased to Tenant, subject to all of the terms and conditions of the Lease.
Tenant agrees to enter into an amendment to the Lease setting forth the terms on
which the Option Space is to be added to the Premises within fifteen (15) days
after receipt of such amendment from Landlord. If Tenant does not timely
exercise its option, or if Tenant fails to execute and deliver such lease
amendment with respect thereto within such fifteen (15) day period, then
Landlord will have the right to lease such Option Space to a third party and
Tenant's option as to such space hereunder will lapse and be of no further
effect.
(ii) Terms and Conditions. Should Tenant exercise this option as provided
herein, the Commencement Date for said Option Space shall be January 1, 1998,
and end coterminous with this Lease. The annual Base Rental rate for the Option
Space will be $14.75 per R.S.F., plus the then current Adjustment Rent, based on
increases in Expenses over the Base Expenses and increases in Taxes over the
Base Taxes above the Base Expense Year and Base Tax Year of 1994. As a part of
this option, and subject to the provisions of Exhibit "E" to the Lease, Landlord
shall provide Tenant a tenant finish allowance of up to $121,728.00 to be
applied toward the cost of any tenant-provided improvements to the Option Space.
B. Right Of First Refusal. Provided Tenant is not then in Default, Landlord
grants to Tenant a right of first refusal on all or any space in the Building
that becomes "available" for lease during the term of the Lease. For the purpose
of this lease provision, "available" shall mean the rights contained in the
lease of an existing tenant have expired and the tenant has no other rights to
occupy the space. In addition, such right shall be subject to the rights of the
other current tenants of the Building.
(i) Requirements. If any space in the Building becomes available, prior to
leasing the available space to a third party, Landlord will notify Tenant of
Landlord's intent to lease such space and the date such space will be available
for occupancy ("Landlord's Notice"). Tenant will have five (5) business days
after receipt of Landlord's Notice, time being of the essence, within which to
exercise Tenant's right of first refusal by giving notice thereof to Landlord in
the manner specified in the Lease for giving notices. If Tenant exercises such
right of first refusal, then such additional space will become part of the
Premises leased to Tenant pursuant to the Lease, as amended, on the commencement
date specified in Landlord's Notice to Tenant, subject to all of the terms and
conditions of the Lease, as amended. Tenant agrees to enter into an amendment to
the Lease setting forth the terms on which the additional space is to be added
to the Premises within fifteen (15) days after receipt of such amendment from
Landlord. If Tenant does not timely exercise its right of first refusal, or if
Tenant fails to execute and deliver such lease amendment with respect thereto
within such 15-day period, then Landlord will have the right to lease such
additional space to a third party and Tenant's right of first refusal as to such
space hereunder will lapse and be of no further effect. This right of first
refusal is personal to Data Transmission Network Corporation, and in no event
will any assignee of the Lease or sublessee of the Premises have the right of
first refusal set forth in this Paragraph.
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(ii) Terms and Conditions. During the period from June 1, 1995, through January
1, 1998, the annual Base Rental rate for the space will be $14.75 per R.S.F.,
plus the then current Adjustment Rent, based on increases in Expenses over the
Base Expenses and increases in Taxes over the Base Taxes above the Base Expense
Year and Base Tax Year of 1994. Associated with this Base Rental rate, will be a
Tenant Improvement Allowance of up to $12.00 per R.S.F., pro-rated based on the
remaining lease term at the time the space becomes a part of the master lease.
Space that becomes available after January 1, 1998, shall be offered to the
Tenant at the then current market rate for similar space in the West Omaha
Suburban market.
30. SATELLITE SCREEN. At any time during the Term of this Lease, Landlord, at
its sole discretion, may require Tenant to spend up to $10,000.00 towards the
design and construction of architectural screening to be located around Tenant's
antennas and/or satellites located on the roof of the building. Landlord
reserves the right, in its sole discretion, to approve the design and materials
of any proposed screening. Provided however, in no event shall such screening
render the antennas and/or satellites inoperable.
31. TERMINATION OF PREVIOUS LEASES. Upon commencement of this Lease, the
previous lease between Data Transmission Network (Lessee) and The Prudential
Insurance Company Of America (Lessor), successor in interest to Pacific Realty
Group, Inc. and Embassy Plaza Limited Partnership, commencing June 1, 1990, and
as further amended by the parties in Addendum No. 1, dated October 12, 1990,
Lease Addendum No. 2, dated February 18, 1992, Lease Addendum No. 3, dated May
13, 1992, Lease Addendum No. 4, dated November 5, 1992, Lease Addendum No. 5,
dated February 23, 1993, Lease Addendum No. 6, dated June 8, 1993, and a
Modification of Lease Addendum, dated January 31, 1994, shall be terminated.
This termination shall not in any way relieve Tenant of any obligations owed
under such previous lease prior to its termination.
In addition, upon commencement of this Lease, the previous lease between Data
Transmission Network (Tenant) and The Prudential Insurance Company Of America
(Landlord), dated August 31, 1994, and as further amended by a First Amendment
to Lease, dated October 11, 1994, shall be terminated. This termination shall
not in any way relieve Tenant or Landlord of any obligations owed under such
previous lease prior to its termination.
32. SATTELLITE/ANTENNA AGREEMENTS. The satellite/antenna agreements contained in
this Lease and Exhibit G of this Lease shall supersede and replace in its
entirety any prior agreements related to satellites and/or antennas between the
parties, including agreements contained in that certain lease, commencing June
1, 1990, between Embassy Plaza Limited Partnership (Lessor) and Data
Transmission Network, a Delaware corporation, and as further amended by the
parties in Addendum No. 1, dated October 12, 1990, Lease Addendum No. 2, dated
February 18, 1992, Lease Addendum No. 3, dated May 13, 1992, Lease Addendum No.
4, dated November 5, 1992, Lease Addendum No. 5, dated February 23, 1993, Lease
Addendum No. 6, dated June 8, 1993, and a Modification of Lease Addendum, dated
January 31, 1994, and any other agreements either written or verbal.
TENANT: LANDLORD:
Data Transmission Network Corporation, The Prudential Insurance Company
a Delaware corporation of America, a New Jersey Corporation
By: Pacific Realty Group, Inc.,
its Managing Agent
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