<PAGE>
EXHIBIT 10.21
ASSIGNMENT AND ASSUMPTION OF LEASE
AND CONSENT TO ASSIGNMENT
THIS
ASSIGNMENT AND ASSUMPTION OF LEASE AND CONSENT TO ASSIGNMENT
(hereinafter the "Assignment") is made and entered into on this 7th
day of
November, 2005, by and among AmCore Financial, Inc., ("Assignor"),
West
Bancorporation, Inc., ("Assignee"), and Magnum Property Partners
No. 1, L.L.C.,
("Landlord").
RECITALS
WHEREAS,
Assignor and Landlord entered into a Lease dated the 24th day
of
July, 2002, (hereinafter the "Lease"), for certain premises
consisting of
approximately 24,410 rentable square feet ("Premises") on the 2nd
floor of the
Century II office building, located at 1415 South 28th Street, West
Des Moines,
Iowa (the "Building"), the current term of which Lease expires on
the 31st day
of October, 2010; and
WHEREAS,
Assignor and Assignee desire that all Assignor's right, title,
and interest under the Lease be assigned to Assignee subject to the
terms and
conditions set forth herein and with the consent of Landlord.
NOW,
THEREFORE, the parties, in consideration of the premises and
the
mutual covenants herein contained, intending to be legally bound
hereby, agree:
1)
Effective on or about December 31, 2005 (the "Effective Date")
Assignor
assigns to
Assignee its successors and assigns, all right, title, and
interest
of Assignor under the Lease.
2)
Assignor represents and warrants to Assignee that as of the
Effective
Date:
(a) Assignor and, to the best of Assignor's knowledge, Landlord
have
complied with and fulfilled all terms and conditions of the
Lease
and the Lease is in full force and effect;
(b) Excepting normal wear and tear, the Premises are in at least
as
good condition as on the commencement date of this Lease,
including
all equipment and facilities within the Premises, which shall
include, but not be limited to, electrical, plumbing and
heating,
and air conditioning systems;
(c) Assignor has no knowledge of, nor has it been put on notice
of,
any failure of the Premises to be in compliance with any
applicable
governmental statutes, laws, rules, orders, regulations, and
ordinances;
(d) All of Assignor's covenants in the Lease have been
observed.
3) On and
after the Effective Date, Assignee shall comply with all of the
covenants,
terms, conditions, and obligations of Assignor under the Lease,
and
Assignee shall indemnify, defend and hold Assignor harmless from
and
against
any and all claims, liabilities, demands, judgments, damages or
expenses
of any kind or nature, including, without limitation,
reasonable
attorney's
fees, arising out of or in any way connected with any default
under the
Lease by Assignee occurring on or after the Effective Date.
4) Annual
Base Rent and Direct Expenses shall be prorated between the
parties
for the remainder of the current calendar year after the
Effective
Date,
based upon the number of days each of the parties hereto is in
possession
of the Premises.
5)
Assignee shall use the Premises solely for the purposes as stated
in
the
Lease.
6) On and
after the Effective Date, all notices, consents, requests,
approvals,
instructions, and other communications provided for or
permitted
under the Lease to be sent to Assignor, shall be sent to
Assignee
in writing and delivered by registered or certified mail, first
class
postage prepaid, return receipt requested, and addressed to the
attention
of the Assignee at the Premises.
7) In the
event that this transaction between AMCORE Financial and West
Bancorporation does not take place, this agreement shall be
considered
null and
void and AMCORE shall remain responsible for the lease.
<PAGE>
The terms
and conditions of this Assignment shall be binding upon and
inure to the benefit of the parties and their respective heirs,
successors, and
assigns.
ASSIGNOR:
AMCORE FINANCIAL, INC.
By: /s/ James Waddell
-----------------------------------
Its: Executive Vice President
ASSIGNEE
WEST BANCORPORATION, INC.
By: /s/ Thomas E. Stanberry
-----------------------------------
Its: Chairman & CEO
LANDLORD:
MAGNUM PROPERTY PARTNERS NO. 1, L.L.C.
A NEBRASKA LIMITED LIABILITY COMPANY
By: Magnum Resources, Inc, a Wyoming corporation,
Its Manager
By: /s/ Kelly A. Walters
-----------------------------------
Name: Kelly A. Walters
Title: Senior Vice President
<PAGE>
CENTURY I & II OFFICE BUILDINGS
(2700 WESTOWN PARKWAY, WEST DES MOINES, IOWA)
OFFICE LEASE
MAGNUM PROPERTY PARTNERS NO. 1, L.L.C.,
A NEBRASKA LIMITED LIABILITY COMPANY
LANDLORD
AND
AMCORE FINANCIAL, INC.
TENANT
<PAGE>
OFFICE LEASE
THIS
OFFICE LEASE (the "Lease") is made and entered into by and
between
Magnum Property Partners No. 1, L.L.C., a Nebraska limited
liability company
("Landlord"), and AmCore Financial, Inc. ("Tenant"), as of this
24th day of
July, 2002 (the "Effective Date").
Landlord
and Tenant specifically agree as follows:
ARTICLE I - DEFINED TERMS AND BASIC TERMS
The terms
listed below shall have the following meanings throughout this
Lease:
(a)
Landlord:
Magnum Property Partners No. 1, L.L.C.,
c/o Magnum Resources, Inc.
11422 Miracle Hills Drive
Suite 400
Omaha, Nebraska 68154
(b)
Landlord's
Agent:
Magnum Resources, Inc
(c)
Tenant:
AmCore Financial,
Inc. 501 7th
Street Rockford
IL, 61104
Attn: Facilities Office
(d)
Complex:
Century I & II Office Buildings
2700 Westown Parkway
West Des Moines, Iowa
(e)
Building:
Century II
(f) Premises:
That portion of the 2nd floor, Suite 200
of the Century II Office Building as more
particularly shown on the floor plan
attached as Exhibit "A"
(g)
Rentable Area of
Building: approximately 97,664 square feet
(h)
Rentable Area of
Premises: approximately 24,410 square feet
Initial Premises: 17,498 square feet
First Expansion Premises: 3,591 square
feet
Second Expansion Premises: 3,321 square
feet
(i) Premises Delivery Dates:
The Premises
Delivery Dates for the
Initial Premises, First Expansion
Premises and Second Expansion Premises
are
as set forth below, except as the
same can be modified pursuant to the
terms of this Lease
Initial Premises: October 15, 2002
First Expansion Premises: November 1,
2004
Second Expansion Premises: November 1,
2006
(j)
Term
Commencement Date: November 1, 2002
(k)
Term:
Eight (8) years
(l)
Expiration Date:
October 31, 2010
(m)
First Expansion
Date: The date
Tenant takes possession of the
First Expansion Premises but in no event
later than November 1, 2004
(n)
Second Expansion
Date: The date Tenant
takes possession of the
Second Expansion Premises but in no event
later than November 1, 2006
<PAGE>
(o)
Annual Base Rent
Prior to $306,215.00
$17.50 psf
First Expansion Date
(p)
Monthly Base
Rent Prior to
First Expansion Date $
25,517.92
(q)
Annual Base Rent
After
First Expansion Date and
Prior to Second Expansion
Date
$369,057.50
$17.50 psf
(r)
Monthly Base
Rent After
First Expansion Date and
Prior to Second Expansion
Date
$ 30,754.80
(s)
Annual Base Rent
After
First Expansion Date
and Second Expansion Date: $427,175.00
$17.50 psf
(t)
Monthly Base
Rent After
First Expansion Date and
Second Expansion Date $
35,597.92
(u)
Tenant's
Proportionate
Share:
(i) 17.9166% prior to the First Expansion
Date; and
(ii) 21.5935% from and after the First
Expansion Date and prior to the Second
Expansion Date; and
(iii) 24.9939% from and after the Second
Expansion Date
(v)
Base Year:
2002
(w)
Rent
Commencement Dates Initial Premises:
November 1, 2002 First
Expansion Premises: First Expansion Date
Second Expansion Premises: Second
Expansion Date
(x)
Security
Deposit:
$0.00
(y)
Use:
General Office Use
(z)
Tenant
Improvements
See Section 10.01
(aa)
Tenant's Address for
AmCore Financial Inc.
Notices:
501 7th Street
Rockford IL, 61104
Attn: Facilities Office
(ab)
Landlord's Address for
Magnum Property Partners No. 1, L.L.C.
Notices:
C/O Magnum Resources, Inc
11422 Miracle Hills Drive
Suite 400
Omaha, Nebraska 68154
(ac)
Tenant's Broker:
None
Certain other defined terms are defined when they first appear
within the body
of this Lease.
ARTICLE II - PREMISES
Section
2.01. Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises, for the Term and subject
to the
agreements, conditions and provisions contained in this Lease to
each and all of
which Landlord and Tenant hereby mutually agree.
<PAGE>
Section
2.02. Rentable Area. The Rentable Area of the Premises and the
Rentable Area of the Building shall mean the amounts as set forth
in Article I.
During the Term and after alterations or changes to the Premises or
Building,
Landlord shall have the right to redetermine the Rentable Area of
the Premises,
and the Rentable Area of the Building so long as such
redetermination does not
change the amount due for Base Rent or Tenant's Proportionate Share
of Direct
Expenses hereunder. Any re-measurement of the Building or the
Premises shall be
completed in a manner consistent with the standards set forth by
Building Owner
Manager's Association ("BOMA").
Section
2.03. Common Areas. "Common Areas" shall mean any lobby, plaza
and
sidewalk areas, any surface parking areas and other similar areas
of general
access and the areas on individual floors in the Building devoted
to corridors,
fire vestibules, elevators, foyers, lobbies, electric and telephone
closets,
stairways, rest rooms, mechanical rooms, janitor's closets, and
other similar
facilities and shall also mean those areas of the Building devoted
to mechanical
and service rooms and levels servicing the Building and basement,
mezzanine and
penthouse service facilities.
Section
2.04 Expansion Space. Tenant shall have the right to occupy the
First Expansion Space or the Second Expansion Space at any time
after the Term
Commencement Date, subject to the following provisions.
(a) First
Expansion Space: In the event Tenant uses all or any portion of
the First Expansion Space at any time after the Term Commencement
Date but prior
to the First Expansion Date for storage purposes only, Tenant shall
pay Landlord
Base Rent for the First Expansion Space at the rate of $7.00 per
rentable square
foot. In the event Tenant uses all or any portion of the First
Expansion Space
at any time after the Term Commencement Date but prior to the First
Expansion
Date for business operation purposes, Tenant shall pay Landlord
Monthly Base
Rent as set forth in Article I, subparagraph I and Tenant's
Proportionate Share
shall be increased to the amount set forth in Article I,
subparagraph (u) (ii).
The payment of Monthly Base Rent and Adjustment Rent for the First
Expansion
Premises shall commence on the date Tenant shall commence using the
First
Expansion Premises for business operation purposes, but in no event
later than
the First Expansion Date, and shall continue through the Expiration
Date of the
Lease.
(b) Second
Expansion Space: In the event Tenant uses all or any portion of
the Second Expansion Space at any time after the Term Commencement
Date but
prior to the Second Expansion Date for storage purposes only,
Tenant shall pay
Landlord Base Rent for the Second Expansion Space at the rate of
$7.00 per
rentable square foot. In the event Tenant uses all or any portion
of the Second
Expansion Space at any time after the Term Commencement Date but
prior to the
Second Expansion Date for business operation purposes Tenant shall
pay Landlord
Monthly Base Rent as set forth in Article I, subparagraph (t) and
Tenant's
Proportionate Share shall be increased to the amount set forth in
Article I,
subparagraph (u) (ii). The payment of Monthly Base Rent and
Adjustment Rent for
the Second Expansion Premises shall commence on the date Tenant
shall commence
using the Second Expansion Premises for business operation
purposes, but in no
event later than the Second Expansion Date, and shall continue
through the
Expiration Date of the Lease.
ARTICLE III - TERM
Section
3.01. Initial Term. Upon the Premises Delivery Date and prior
to
the occurrence of the Term Commencement Date, the terms and
provisions hereof
shall be fully binding upon Landlord and Tenant. If Landlord is
unable to tender
possession of the Premises to Tenant on or before the Premises
Delivery Date,
the Term Commencement Date shall be extended one day for each day
of such delay
and the Expiration Date shall be extended to end on the last day of
the eighth
consecutive full lease year as said term "Lease Year" is
hereinafter defined. In
the event Landlord is unable to deliver possession of the Premises
due to delays
caused by the acts or omissions of Tenant said Term Commencement
Date and Rent
Commencement Date shall not be extended as set forth herein. In the
event
Landlord is unable to deliver possession of the Initial Premises
within sixty
(60) days after the Premises Delivery Date for the Initial
Premises, then Tenant
may terminate this Lease. Except as set forth above, no failure to
tender
possession of the Initial Premises to Tenant on or before the
Premises Delivery
Date for the Initial Premises shall in any way affect any other
obligations of
Tenant hereunder. Tenant's acceptance of possession of the Premises
upon
Landlord's tender thereof shall constitute Tenant's acknowledgment
that the
Premises are in good order and satisfactory condition; provided, if
there are
any improvements to be constructed by Landlord within the Premises
pursuant to
Section 10.01, Tenant may provide to Landlord at the time of tender
of
possession, and Tenant's possession shall be subject to, a written
punch-list
for any such incomplete or unfinished improvements.
Section
3.02. Lease Year Defined. The term "Lease Year" as used herein
shall mean a period of twelve (12) consecutive full calendar
months. The first
Lease Year shall begin on the Term Commencement Date if the Term
Commencement
Date shall occur on the first day of a calendar month; if not, then
the first
Lease Year shall commence upon the first day of the calendar month
next
following the Term Commencement Date. Each succeeding Lease Year
shall commence
upon the anniversary date of the first Lease Year.
<PAGE>
Section
3.03. Option Term.
(a)
Subject to the conditions set forth in subparagraph (b) below,
Tenant
is granted two (2) options to renew this Lease for additional
renewal periods of
four (4) years each. The "First Renewal Term" shall commence on the
date
following the Expiration Date of the Initial Term and shall extend
for a period
of four (4) years. The "Second Renewal Term" shall commence on the
date
following the Expiration Date of the First Renewal Term and shall
extend for a
period of four (4) years. Said options to renew this Lease shall be
on the same
terms, conditions, provisions and covenants as are set forth
herein, except as
specifically set forth hereinafter:
(i) Annual Base Rent during the First Renewal Term shall be
$463,790.00 ($19.00 per rentable square foot). The Monthly Base
Rent
during the
First Renewal Term shall be $38,649.17. The Base Year shall
remain the
same for the First Renewal Term.
(ii)Annual Base Rent during the Second Renewal Term shall be
$488,200.00 ($20.00 per rentable square foot). The Monthly Base
Rent
during the
Second Renewal Term shall be $40,683.33. The Base Year shall
remain the
same for the Second Renewal Term.
(b) The
renewal terms set forth herein shall be conditioned upon and
subject to each of the following: (i) Tenant shall notify Landlord
in writing of
Tenant's exercise of the First Renewal Term no earlier than twelve
(12) months
and no later than six (6) months prior to the expiration of the
Initial Term and
shall notify Landlord in writing of Tenant's exercise of the Second
Renewal Term
no earlier than twelve (12) months and no later than six (6) months
prior to the
expiration of the First Renewal Term; (ii) at the time Landlord
receives
Tenant's notice as provided in subparagraph (b)(i) above and at the
scheduled
commencement of the renewal term no Event of Default shall exist
under this
Lease.
(c) This
options to renew shall be deemed personal to Tenant named
herein
and may not be exercised by any permitted assignee or subtenant
hereunder,
except an Affiliate of Tenant as set forth in Section 12.01.
(d)
Landlord shall have no obligation to improve or perform any work on
or
to the Premises or otherwise provide or contribute any tenant
improvement
allowance as a result of the exercise of Tenant's options to
renew.
Section
3.04. Termination Option.
(a) Tenant
shall have an option (the "Termination Option") to terminate
the Lease effective as of the last day of the fifth year of the
Term of this
Lease (the "Termination Date"). The Termination Option is granted
subject to the
following terms and conditions: (i) Tenant shall give Landlord
written notice of
Tenant's election to exercise the Termination Option and of the
applicable
Termination Date, which notice is given not later than nine (9)
months prior to
such Termination Date; (ii) no Event of Default has occurred under
the Lease
either on the date that Tenant exercises the Termination Option or
on the
Termination Date; and (iii) Tenant shall pay to Landlord,
concurrently with
Tenant's exercise of the Termination Option, a lease termination
fee of an
amount equal to (1) the unamortized brokerage fees paid in
connection with the
execution of this Lease, plus (2) the unamortized cost of the
Initial
Improvements as set forth in Section 10.01 of this Lease, plus (3)
nine (9)
months Base Monthly Rent (the "Fee").
(b) If
Tenant timely and properly exercises the Termination Option,
then:
(i) the Lease shall terminate effective as of the Termination Date
and Rent
shall be paid through the Termination Date (in addition to payment
by Tenant of
the Fee); and (ii) Tenant shall surrender and vacate the Premises
and deliver
possession thereof to Landlord on or before the Termination Date in
the
condition required pursuant to the Lease.
(c) The
Termination Option shall automatically terminate and become
null
and void upon the earlier to occur of (i) the termination of
Tenant's right to
possession of all or any part of the Premises pursuant to the terms
of the
Lease; (ii) the assignment of the Lease by Tenant, in whole or in
part, except
to an Affiliate as defined in Section 12.01; (iii) the sublease by
Tenant of all
or any part of the Premises, except to an Affiliate as defined in
Section 12.01;
or (iv) the failure of Tenant to timely or properly exercise the
Termination
Option.
ARTICLE IV - BASE RENT
Section
4.01. Base Rent. Tenant shall pay to Landlord for the use of
the
Premises (in addition to the Adjustment Rent as described in
Article VI below)
an Annual Base Rent in an amount specified in Article I, payable
without notice
or demand in equal monthly installments in advance, beginning on
the Term
Commencement Date and on the first day of each calendar month
thereafter during
the Term in the amount of the Monthly Base Rent specified in
Article I;
provided, however, that so long as no Event of Default occurs,
Tenant shall not
be obligated to make any payments of Monthly Base Rent until the
later of: a)
Rent Commencement Date specified in Article I; or b) the date
Landlord delivers
possession of the Initial Premises, at which time Tenant's
obligation to pay
Monthly Base Rent shall commence.
<PAGE>
Section
4.02. Payment. All payments required to be made by Tenant under
this Lease shall be in lawful money of the United States of America
and shall be
made without any set off, deduction or counterclaim whatsoever and
shall be made
payable to and delivered to Landlord at the office of Landlord or
such other
place as Landlord may designate. Notwithstanding the foregoing,
Landlord, in its
sole discretion, may require all payments made by Tenant under this
Lease to be
made through a debit payment entry or other electronic transfer
directly to a
demand deposit account designated by Landlord.
Section
4.03. Partial Months. If the Rent Commencement Date is a day
other
than the first day of a calendar month or if the Term expires or is
terminated
on a day other than the last day of a calendar month, then the
Monthly Base Rent
for such fractional months shall be prorated on the basis of the
number of days
elapsed in the subject month.
ARTICLE V - DIRECT EXPENSES AND TAXES
Section
5.01. Definition of Direct Expenses. "Direct Expenses" as used
herein shall include all costs, charges, expenses and disbursements
of every
kind, nature and character incurred in the course of ownership,
management,
administration, operation, repair, replacement, security and
maintenance of the
Building, the Premises, the Common Areas, the areas adjacent
thereto, and all
related improvements and appurtenances thereto, including, without
limitation:
(a) Wages,
salaries and other compensation, expenses, benefits, and other
sums payable, as well as any adjustment thereto, for employees,
independent
contractors and agents of Landlord.
(b) Costs
and payments of service, maintenance, repair, replacement and
inspection for the following: landscaping, lawns, trees, shrubbery,
janitorial,
windows, window cleaning, rubbish removal, exterminating, Parking
Areas and
drives, elevator, escalator, life and safety, security,
plumbing,
telecommunication, electrical and mechanical equipment (including,
but not
limited to HVAC) or installations and the costs of purchasing or
renting all
such additional mechanical installations and equipment, service
contacts,
painting, exterior waterproofing and caulking, wall covering,
carpeting,
bathroom repairs and modernization, building identification signs
(except those
relating to a specific tenant), roof maintenance, repair and
replacement,
equipment, supplies, tools, materials and uniforms.
(c)
Premiums and other charges for insurance, including without
limitation, all risk, earthquake, public liability, property damage
and workers'
compensation insurance, cost of insurance deductibles and charges,
and such
other insurance coverage in such amounts as Landlord, in its sole
discretion,
shall elect to maintain.
(d) Costs
of electricity, water, gas, steam, sewer and other utility
services.
(e) Sales,
use and excise taxes on goods and services purchased or
furnished by Landlord.
(f)
License, permit, testing and inspection costs and fees.
(g)
Attorneys', accountants' and consultants' fees.
(h) Fees
for local civic organizations and dues for professional and
trade
associations, including without limitation, any amount paid to
local civic
groups for the betterment of the neighborhood in which the Complex
is located.
(i) Fees
for management and accounting services and costs incidental
thereto, whether provided by an independent management company,
Landlord, or an
affiliate of Landlord. Said management fee shall not exceed an
amount equal to
the management fees customarily charged in the Des Moines, Iowa
suburban market.
(j) The
costs of any improvements, equipment or devices installed or
paid
for by Landlord in order to conform with any laws, rules,
regulations or
requirements of any governmental or quasi-governmental authority
having
jurisdiction or of the Board of Fire Underwriters or similar
insurance body.
(k) The
costs of any improvements (including improvements required by
law), equipment or devices installed or paid for by Landlord and
reasonably
intended to effect a labor saving, energy saving measure or to
effect other
economies in the operation or maintenance of the Complex. Such
costs shall be
amortized over the shorter of the useful life of the improvements,
or the period
over which the labor or energy saving costs equal the improvement
cost. In
addition such costs shall not exceed the savings achieved from
such
improvements.
<PAGE>
(l)
"Direct Expenses" shall not include: expenses for repairs,
replacements, and general maintenance paid by proceeds from
insurance or by
Tenant or other third parties; alterations attributable solely to
Tenants of the
Building other than Tenant; principal and interest payments made by
Landlord on
mortgages on the Building; depreciation; and leasing
commissions.
Direct
Expenses shall specifically exclude the following:
1.
Advertising or real estate broker's commissions;
2.
Leasing
commissions, attorney's fees, costs and disbursements and
other expenses incurred in connection with negotiations or
disputes
with tenants, or prospective tenants;
3.
Expenses
incurred in renovating or otherwise improving or
decorating, painting or redecorating space for tenants;
4.
Except as
set forth in Section 5.01 subparagraphs (j) and (k) of
this Lease, any expenses that are considered to be capital
expenses
shall be excluded from Direct Expenses. Capital expenses are
more
specifically defined as (a) costs incurred in connection with
the
original construction of the Building or with any major changes
to
same, including but not limited to, additions or deletions of
corridor extensions,
renovations and improvements of the common
areas beyond the costs caused by normal wear and tear and
upgrades
or replacements of major Building systems; (b) costs of
correcting
defects (including latent defects), including any allowances
for
same, in the construction of the Building or its related
facilities;
(c) costs incurred in renovating or otherwise improving,
designing,
redesigning, decorating or redecorating space for tenants or
other
occupants in the Building or other space leased or held for lease
in
the Building.
5.
Overhead
and profit increment paid to subsidiaries or affiliates of
Landlord for services on or to the real property, to the extent
only
that the costs of such services exceed competitive costs of
such
services were they not so rendered by a subsidiary or
affiliate;
6.
Interests
on debt or amortization payments on any mortgage or
mortgages, and rental under any ground or underlying leases or
lease;
7.
Cost of
refinancing any present or future mortgage
8.
Costs and
expenses incurred by Landlord to remove, enclose or
encapsulate any asbestos or hazardous materials or wastes which
were
not brought onto the Premises by Tenant;
9.
Attorneys'
fees and disbursements and other costs in connection with
any judgment, settlement or arbitration resulting from any tort
liability on the part of Landlord and the amount of such
settlement
or judgment;
10.
Charitable and
political contributions made by Landlord;
11.
Salaries of
employees above the level of building superintendent or
an equivalent position;
12.
Any costs, fines
or penalties incurred due to violations by Landlord
of any governmental rule or authority.
(m) "Prime
Rate" shall mean the base rate (or its equivalent) of interest
announced publicly in New York, New York from time to time by
Citibank, N.A. (or
if Citibank, N.A. ceases to exist, the largest bank headquartered
in the State
of New York), but in no event in excess of the maximum rate of
interest
permitted by law.
Section
5.02. Taxes. "Taxes" as used herein shall include all taxes,
assessments and charges (including costs and expenses (including
without
limitation, legal fees and disbursements) of contesting the amount
or validity
thereof by appropriate administrative or legal proceedings) levied
upon or with
respect to the Building or any personal property of Landlord, or
Landlord's
interest in the Building or such personal property, including
without
limitation, all real property taxes and general and special
assessments;
charges, fees, levies or assessments for transit, housing, police,
fire or other
governmental services or purported benefits to the Building;
service payments in
lieu of taxes; and any tax, fee or excise on the act of entering
into this Lease
or any other lease of space in the Building, on the use or
occupancy of the
Building or any part thereof, or on the rent payable under any
lease or in
connection with the business of renting space in the Building,
which may now or
hereafter be levied or assessed against Landlord by the United
States of
America, the State of Iowa, or any political subdivision, public
corporation,
district or other political or public entity, and any other tax,
fee or other
excise, however described, that may be levied or assessed as a
substitute for,
or as an addition to (in whole or in part) any other property
taxes, whether or
not now customary or in the contemplation of the parties on the
date of this
Lease. If the Building is taxed to the Landlord as a larger parcel,
Landlord may
allocate such tax among all the Buildings.
Section
5.03. Additional Taxes. In addition to the Monthly Base Rent,
Adjustment Rent and other charges to be paid by Tenant hereunder,
Tenant shall
reimburse Landlord upon demand for any and all taxes, surcharges,
levies,
assessments, fees and charges payable by Landlord, whether or not
now customary
or within the contemplation of the parties hereto: (a) upon,
measured by or
reasonably attributable to the cost or value of Tenant's equipment,
furniture,
fixtures and other personal property located in the Premises, or
the cost or
value of any leasehold improvements, regardless of whether title to
such
improvements shall be in Tenant or Landlord; (b) upon, or measured
by, any rent
or other amounts payable hereunder, including, without limitation,
any gross
income tax, gross receipts tax or excise tax levied by the City of
West Des
Moines, State of Iowa, the federal government of the United States
or any other
governmental body with respect to the receipt of such rent or other
amounts; (c)
upon, or with respect to, the possession, leasing, operation,
management,
maintenance, alteration, repair, restoration, use or occupancy by
Tenant of the
Premises or any portion thereof; or (d) upon this transaction or
any document to
which Tenant is a party creating or transferring an interest or an
estate in the
Premises.
<PAGE>
Notwithstanding anything contained in this Article to the contrary,
Taxes shall
not include any federal and state taxes on income, capital stock,
succession,
transfer, franchise, gift, estate or inheritance taxes; provided,
however, if at
any time during the Term, a tax or excise on income is levied or
assessed by any
governmental entity, in lieu of or as a substitute for, in whole or
in part,
real estate taxes or other ad valorem taxes, such tax shall
constitute and be
included in Taxes.
ARTICLE VI - ADJUSTMENT RENT
Section
6.01. Adjustment Rent. Tenant shall pay to Landlord (in
addition
to the Annual Base Rent, as described in Article IV above) an
amount equal to
Tenant's Proportionate Share of (a) the increase in Direct Expenses
for any
calendar year over the Direct Expenses for the Base Year, and (b)
the increase
in Taxes for any calendar year over the Taxes for the Base Year
(collectively
the "Adjustment Rent"). Prior to each calendar year, Landlord shall
estimate the
amount of Adjustment Rent due for such year, and Tenant shall pay
Landlord
one-twelfth (1/12th) of such estimate on the first day of each
month during such
year with Tenant's payment of the Monthly Base Rent. Such estimate
may be
revised by Landlord not more than once per calendar year. After the
end of each
calendar year, Landlord shall deliver to Tenant a report setting
forth the
actual Direct Expenses and Taxes for such calendar year and a
statement in the
amount of Adjustment Rent that Tenant has paid and is payable for
such year.
Within thirty (30) days after receipt of such report, Tenant shall
pay to
Landlord the amount of Adjustment Rent due for such calendar year
minus any
payments of estimated Adjustment Rent made by Tenant for such year.
If Tenant's
estimated payments of Adjustment Rent exceed the amount due
Landlord for such
calendar year, Landlord shall, provided Tenant is not then in
default hereunder
beyond any applicable grace and notice periods, apply such excess
as a credit
against Tenant's other payment obligations under this Lease or
promptly refund
such excess to Tenant if the Term has already expired, in either
case without
interest to Tenant. In the event Landlord shall fail to give Tenant
an estimate
of Adjustment Rent prior to the beginning of any calendar year,
Tenant shall
continue to pay Adjustment Rent at the rate for the previous
calendar year until
Landlord delivers such estimate. Notwithstanding the foregoing,
Landlord's
obligation to credit Tenant's account pursuant to this Section 6.01
shall be
conditional upon Tenant having first paid all of its monthly
installments toward
Tenant's Share of the estimated Direct Expenses and Taxes pursuant
to this
Section.
Section
6.02. Occupancy. If during all or any portion of any year
(including the Base Year) the Building is not at least ninety-five
percent (95%)
rented and occupied, Landlord shall make an appropriate adjustment
of Direct
Expenses and Taxes for such year to determine the Direct Expenses
and Taxes that
would have been paid or incurred by Landlord had the Building been
at least
ninety-five percent (95%) rented and occupied for the entire year
and the amount
so determined shall be deemed to be the Direct Expenses and Taxes
for such year.
Notwithstanding the foregoing, (a) only those components of Direct
Expenses that
are affected by variations in occupancy levels in the Building
shall be adjusted
pursuant to this clause, and (b) the Direct Expenses collected from
tenants
shall never exceed the actual costs incurred by Landlord for the
Direct Expenses
Section
6.03. Review. Tenant shall have the right, at its cost, upon
reasonable prior written notice to Landlord, to inspect Landlord's
accounting
records relative to Direct Expenses and Taxes during normal
business hours at
Landlord's offices in Omaha, Nebraska, at any time within ninety
(90) days
following the furnishing to Tenant of the annual statement of
Adjustment Rent;
and, unless Tenant shall take written exception to any item in any
such
statement within such ninety (90) day period, such statement shall
be considered
as final and accepted by Tenant.
Section
6.04. Survival. In the event of the termination of this Lease
prior to any determination of Adjustment Rent, Tenant's agreement
to pay any
such sums and Landlord's obligation to refund any such sums shall
survive the
termination of this Lease.
ARTICLE VII - SECURITY DEPOSIT
This
Article has been intentionally omitted.
ARTICLE VIII - USE
Section
8.01. General. The Premises shall be used only for the Use
specified in Article I and for no other use or purpose.
Section
8.02. No Nuisance or Waste. Tenant shall not do or permit
anything
to be done in, or about the Premises which will in any way obstruct
or interfere
with the rights of Landlord and other tenants or occupants or
invitees of the
Building or injure or annoy them or use or allow the Premises to be
used for any
improper, immoral or objectionable purpose, nor shall Tenant cause,
maintain or
permit any nuisance in, on, or about the Building or the Premises.
Tenant shall
not commit or suffer the commission of any waste in, on, or about
the Building
or the Premises.
<PAGE>
Section
8.03. No Illegal Use. Tenant shall not use the Premises or
permit
anything to be done in or about the Premises which will in any way
conflict with
any law, statute, ordinance, or governmental rule or regulation now
in force or
which may hereafter be enacted or promulgated or which conflicts
with any
certificate of occupancy for the Building or is prohibited by the
Rules and
Regulations attached hereto as Exhibit "B" (the "Rules and
Regulations"). Tenant
shall not do or permit anything to be done in or about the Premises
or bring or
keep anything therein which will in any way increase the rate of
applicable
insurance upon the Building or any of its contents, and Tenant
shall, at its
sole cost and expense, promptly comply with all laws, statutes,
ordinances and
governmental rules, regulations, and requirements now in force or
which may
hereafter be in force, and with the requirements of any Board of
Fire
Underwriters or other similar body now or hereafter constituted
relating to or
affecting Tenant's use or occupancy of the Premises.
Section
8.04. Alterations to Common Areas. If changes or alterations
are
made by Landlord to any portion of the Building, including, without
limitation,
the Common Areas, Landlord shall not thereby be subject to any
liability nor
shall Tenant be entitled to any compensation or any reduction or
abatement of
rent and such changes or alterations shall not be deemed to be a
constructive or
actual eviction or a breach of Landlord's covenant of quiet
enjoyment. In the
event of any such changes or alterations, Landlord agrees to use
reasonable good
faith efforts to avoid unreasonable interference with Tenant's use
of the
Premises.
Section
8.05. Hazardous Substances. In the event Tenant knows, or has
reasonable cause to believe, that any release by Tenant of a
hazardous substance
has come to be located on, within or beneath the Premises or the
Building,
Tenant shall give written notice of such condition to Landlord and
Tenant shall
comply with all statutes, laws, ordinances, rules, regulations and
orders of
governmental authorities with respect to any such hazardous
substances.
ARTICLE IX - SERVICES AND UTILITIES
Section 9.01. General.
During the Term Landlord shall:
(a)
Operate or cause the operation of the heating, ventilating and
air
conditioning ("HVAC") system serving the Premises from 8:00 a.m. to
7:30 p.m.,
Monday through Friday (Saturday from 8:00 a.m. to 1:00 p.m.),
except for state
and national holidays which are customarily observed in the West
Des Moines,
Iowa metropolitan area ("Ordinary Business Hours") at temperatures
reasonably
determined by Landlord to be consistent with other comparable
office buildings
in the West Des Moines, Iowa metropolitan area, subject to any
governmental,
municipal or public utility rules or regulations. Any HVAC provided
by Landlord
to Tenant during other than Ordinary Business Hours shall be
furnished only upon
the prior request of Tenant delivered before 5:00 p.m. on the
preceding business
day and Tenant shall pay Landlord's then customary charges for such
services.
Tenant shall also be responsible for and shall pay Landlord any
additional costs
(including, without limitation, the costs of installation of
additional HVAC
equipment, if required by Landlord) incurred because of the failure
of the HVAC
system to perform its function due to (i) arrangement of
partitioning in the
Premises or changes or alterations thereto, or (ii) from occupancy
of the
Premises exceeding one person per two hundred (200) square feet of
Rentable
Area, or (iii) from failure of Tenant after notice from Landlord to
keep all
HVAC vents within the Premises free of obstruction. Tenant at all
times agrees
to cooperate fully with Landlord and to abide by the reasonable
regulations and
requirements which Landlord may prescribe for the proper
functioning and
protection of the HVAC system. Landlord, its contractors and agents
throughout
the Term, shall have free access to any and all mechanical
installations of
Landlord or Tenant, including, but not limited to, air-cooling,
fan, ventilating
and machine rooms and electrical and telephone closets; and Tenant
agrees there
shall be no construction of partitions or other obstructions which
may interfere
with Landlord's free access thereto, or interfere with the moving
of Landlord's
equipment to and from the enclosures containing such installations.
Tenant
further agrees that neither Tenant, nor its agents, employees or
contractors
shall at any time enter the said enclosures or tamper with, adjust
or touch or
otherwise in any manner affect such mechanical installations.
(b)
Subject to any governmental, municipal or public utility rules
or
regulations and to the Rules and Regulations, furnish electricity
for normal
lighting and fractional horsepower office machines, the cost of
which shall be
included in Direct Expenses. Tenant shall not, without the prior
written consent
of Landlord, use any apparatus or device in the Premises which will
in any way
increase the amount of electricity used above that usually
furnished or supplied
for the use of the Premises as general office space; nor connect
any apparatus
or device with electric current lines except through existing
electrical outlets
in the Premises. If Tenant desires to use electric current in
excess of that
usually furnished or supplied for the use of the Premises as
general office
space, Tenant shall request the same from Landlord in writing. If
such request
is granted, Landlord may cause an electrical current meter to be
installed in
the Premises to measure the amount of electric current consumed.
Tenant agrees
to pay promptly upon demand therefor from Landlord, the cost of any
such meter
and of the installation, maintenance and repair thereof, and the
charges for all
electric current consumed as shown by said meters in excess of the
amount
consumed in connection with the use of the Premises as general
office space, at
the rates charged for such services by the utility furnishing the
same, plus any
additional expense incurred in keeping account of the electric
current so
consumed. If a separate meter is not installed, Tenant agrees to
pay the cost
for such excess electric current as established by an estimate of
the amount of
such excess use made by a utility company or electrical engineer
selected by
Landlord.
<PAGE>
(c)
Provide access to water in the lavatories in the Building and
operate,
maintain, clean, light, heat, ventilate and/or air condition as
applicable those
portions of the Common Areas available for tenant usage. Tenant
waives all
claims against Landlord for losses due to theft or burglary, or for
damages done
by unauthorized persons in the Building.
(d)
Provide such janitorial service as Landlord deems appropriate,
subject
to access being granted to the person or persons employed or
retained by
Landlord to perform such work. A description of the services
currently provided
by Landlord is attached to this Lease as Exhibit "D." Landlord
maintains the
right to change or amend such services at any time during the term
of this
Lease, provided that Landlord does not materially change the scope
of work.
Section
9.02. Supplementary Services. Tenant shall pay Landlord, at the
charges established by Landlord from time to time, for all
supplementary
services requested by Tenant and provided by Landlord or its
agents, which
charges shall be payable by Tenant within ten (10) days after
receipt of
Landlord's invoice. Such supplementary services may include,
without limitation,
maintenance, repair, janitorial, cleaning, HVAC and other services
in addition
to those described in section 9.01 above or otherwise provided
during hours
other than Ordinary Business Hours.
Section
9.03. Interruption of Access, Use or Services. Landlord shall
not
be liable for any failure to provide access to the Premises, to
assure the
beneficial use of the Premises or to furnish any services or
utilities when such
failure is caused by natural occurrences, riots, civil
disturbances,
insurrection, war, court order, public enemy, accidents, breakage,
repairs,
strikes, lockouts, other labor disputes, the making of repairs,
alterations or
improvements to the Premises or the Building, the inability to
obtain an
adequate supply of fuel, gas, steam, water, electricity, labor or
other supplies
or by any other condition beyond Landlord's reasonable control, and
Tenant shall
not be entitled to any damages resulting from such failure, nor
shall such
failure relieve Tenant of the obligation to pay all sums due
hereunder or
constitute or be construed as a constructive or other eviction of
Tenant. If any
governmental entity promulgates or revises any statute, ordinance
or building,
fire or other code, or imposes mandatory or voluntary controls or
guidelines on
Landlord or the Building or any part thereof, relating to the use
or
conservation of energy, water, gas, steam, light or electricity or
the provision
of any other utility or service provided with respect to this
Lease, or if
Landlord is required or elects to make alterations to the Building
in order to
comply with such mandatory or voluntary controls or guidelines,
Landlord may, in
its sole discretion, comply with such mandatory or voluntary
controls or
guidelines, or make such alterations to the Building. Neither such
compliance
nor the making of such alterations shall in any event entitle
Tenant to any
damages, relieve Tenant of the obligation to pay any of the sums
due hereunder,
or constitute or be construed as a constructive or other eviction
of Tenant.
ARTICLE X - ALTERATIONS
Section
10.01 Initial Improvements Landlord or its agents shall
construct
the initial improvements to configure the Pre
