Exhibit 10.1
AGREEMENT OF LEASE
LEASE
THIS LEASE is made as of the 12th day of August, 2011, by and between XXXXX
PROPERTIES, L.L.C, a limited liability company organized under the laws of the
state of Iowa and CLEAR LAKE SPECIALTY PRODUCTS, INC., a corporation organized
under the laws of the state of Iowa (hereinafter collectively referred to as
"Landlord") and THE SOUTH STREET BAKERY, INC., a corporation organized under the
laws of the state of Delaware (hereinafter referred to as "Tenant").
RECITALS
WHEREAS, Landlord is the owner of a 51,950 square foot industrial building
on Lots 9, 10, 11 &12 in the Clear Lake Industrial Park, the improvements being
know as 0000 0xx Xxxxxx, Xxxxx Xxxxx Xxxx, XX 00000; and
WHEREAS, Tenant desires to lease the Premises and certain Equipment
described on Exhibit "A" attached hereto (hereinafter defined) for manufacturing
ready baked, processed and packaged wholesale baked products; and
WHEREAS, the parties desire to enter into this Lease, which defines their
respective rights, duties, and liabilities relating to the Premises.
NOW, THEREFORE, WITNESSETH in consideration of the mutual promises and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
SECTION 1
DEFINITIONS
For purposes of this Lease, Landlord and Tenant hereby agree that the
following terms shall have the indicated meanings:
Additional Rent: all sums of money or charges required to be paid by Tenant
under this Lease other than Annual Rent, whether or not such sums or charges are
designated "Additional Rent", including Percentage Rent.
Annual Rent: shall be the consideration set forth in paragraph 5 hereof.
Assignment: any assignment, transfer, mortgage, or encumbrance, whether
voluntarily, involuntarily, or by operation of law, of Tenant's interest in this
Lease, any sublease by Tenant, any license by Tenant of space in the Premises,
or any concession agreement by Tenant with respect to all or part of the
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Premises, any agreement by Tenant giving any other person the right to use all
or part of the Premises, or such other events determined to be Assignments
pursuant to Section 29.
Bonds: the City of Clear Lake, Iowa Variable Rate Demand Development Revenue
Bonds (Xxx Xxxxx'x Pizza Project) Series 2006 issued in the original aggregate
amount of $3,600,000 in order to provide financing for the acquisition by the
Landlord of the land and the acquisition, construction and equipping by the
Landlord of the Building.
Building: the improvements containing approximately 51,950 square feet located
at 0000 0xx Xxxxxx, Xxxxx Xxxxx Xxxx, XX 00000.
Commencement Date: August 12, 2011.
Common Area Maintenance and Marketing Charge: N/A
Documents: all the documents and agreements entered into by Landlord and others
in connection with the Bonds and the Letter of Credit issued by Manufacturers
and Traders Trust Company to provide payment for, and secure the payment of, the
principal and purchase price of, and interest on, the Bonds
Escrow Payments: any Insurance Escrow Payment, Tax Escrow Payment, or similar
monthly payment into escrow
Equipment: all that equipment described on Exhibit "D" which is located in the
Building to be used by Tenant for manufacturing ready baked, processed and
packaged wholesale baked products and cookie dough.
Extension Term: a period of one (1) year from the last day of the Original Term.
Hazardous Material: any hazardous or toxic substance, material, or waste
including, but not limited to, those substances, materials, and wastes listed in
the United States Department of Transportation Hazardous Materials Table (49 CFR
172.101) or by the Environmental Protection Agency as hazardous substances (40
CFR Part 302) and amendments thereto, or such substances, materials, and wastes
that are or become regulated under any applicable federal, state, or local law,
ordinance, or regulation including, but not limited to, the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"
or "Superfund"), the Clean Air Act, and the Clean Water Act
Insurance Expense: Landlord's annual cost of carrying fire and extended coverage
insurance on the Building and all other insurance required by the Documents to
be carried by Landlord
Landlord: Xxxxx Properties, L.L.C., an Iowa limited liability company, its
successors and assigns and Clear Lake Specialty Products, Inc., an Iowa
corporation its successors and assigns.
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Land: those parcels of land containing in the aggregate approximately 14.36
acres located at 0000 0xx Xxxxxx Xxxxx, Xxxxx Xxxx, Xxxx. . Landlord's Address:
0000 Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxxx 00000
Landlord's Telecopier Number:
Lease Year: in the case of the first Lease Year, that period from the
Commencement Date to the anniversary date of the Commencement Date; thereafter,
"Lease Year" shall mean each successive twelve (12) calendar month period
following the expiration of the first Lease Year. The last Lease Year shall be
the period from the end of the preceding Lease Year to such date of termination.
Monthly Installment of Rent: the sum of the Monthly Installment of Annual Rent,
and Insurance Escrow Payment, Tax Escrow Payment, and any other amount required
to be paid hereunder on a monthly basis.
Mortgage: any mortgage, deed of trust, or security agreement from Landlord
affecting the Premises, or any part thereof, at any time.
Mortgagee: Manufacturers and Traders Trust Company while any of the Bonds are
outstanding and the Letter of Credit Agreement dated as of April __, 2011 by and
between Landlord and Manufacturers and Traders Trust Company is in effect, and
thereafter, any other beneficiary of any Mortgage.
Net Income: Earnings after cost of goods sold, sales, administrative and general
expenses, interest, taxes and other miscellaneous income expenses.
Notices: all notices, requests, demands, or other communications, which may be
or are required or permitted to be served or given under this Lease.
Original Term: a period of one (1) year commencing on the Commencement Date,
plus, unless the Commencement Date is the first day of a calendar month, the
number of days from the Commencement Date to the last day of the month during
which the Commencement Date falls, with the right of an automatic one (1) year
extension if the Tenant has complied with the conditions of the Lease.
Permitted Use: manufacturing of ready baked, processed and packaged wholesale
baking and cookie dough.
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Premises: the Land, the Building and the Equipment.
Rent: all Annual Rent, Monthly Installments of Annual Rent, and Additional Rent
payable by Tenant to Landlord under this Lease.
Security Deposit: the sum set forth in paragraph 7 to assure Tenant's
performance of the Tenant's obligations under this Lease.
Taxes: all taxes, assessments, and governmental charges of any kind and nature
whatsoever levied or assessed against the Premises. Notwithstanding the
foregoing, Taxes shall not include any taxes levied on income of Landlord.
Tax Escrow Payment: the monthly amount equal to one-twelfth (1/12) of Landlord's
estimate of Tenant's proportionate share of the Taxes.
Tenant: The South Street Bakery, Inc., a Delaware corporation, its successors
and assigns.
Tenant's Address: 0000 Xx. Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
Tenant's Mailing Address:
Tenant's Telecopier Number:
Tenant's Trade Name:
Tenant's Equipment and Personal Property: Any equipment or items of personal
property installed or located within the Premises by Tenant in connection with
the operation of the business.
Term: the Original Term and any Extension Term as to which Tenant exercises an
option to renew this Lease
When used herein, the singular shall apply to the plural, the plural to the
singular, and the use of any gender shall apply to all genders.
SECTION 2
DEMISE OF PREMISES
Landlord leases to Tenant and Tenant leases from Landlord the Premises for
the Term, Rent, and upon the terms, covenants, and conditions set forth herein.
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XXXXXXX 0
XXXX
Xxxxxxxx and Tenant hereby agree that the term of this Lease and for the
demise of the Premises shall be for a period of one (1) year from the
Commencement Date. Tenant shall have the exclusive first right to automatically
renew this Lease for an Extension Term of one (1) year. The terms of the Lease
during any Extension Term shall be the same terms during the original term
except that Tenants Option to Purchase shall no longer be available.
SECTION 4
CONSTRUCTION AND ACCEPTANCE OF PREMISES
[INTENTIONALLY OMITTED]
SECTION 5
RENT
(a) Tenant shall pay unto Landlord the Annual Rent of Three Hundred Sixty
Thousand Dollars ($360,000.00). Tenant shall pay the Annual Rent in equal
monthly installments of Thirty Thousand Dollars ($30,000.00). The Monthly
Installments of Annual Rent shall be paid by the 1st day of each and every month
for the Term of this Lease, without deduction, set-off, recoupment,
counterclaim, or demand, at Landlord's Address or at such other place as shall
be designated in writing by Landlord. If the Term shall commence or end on a day
other than the first day of a month, the Monthly Installment of Rent for any
such partial month of the Term shall be prorated on a per diem basis. The
Monthly installments of Annual Rent shall be fully applied towards (i) paying
down the principal and interest expense of the Bonds in substantially the
allocation set forth on Schedule 1, attached hereto, (ii) the payment of the
principal and interest related to that certain mixer equipment note between
Clear Lake Specialty Products, Inc. and M&T Bank and (iii) any fees related to
the operation of the Premises.
This Lease shall be deemed and construed to be a "net lease" and
accordingly, anything in this Lease to the contrary notwithstanding, Landlord
shall receive any payments required to be made by Tenant free from any charges,
assessments, impositions, expenses, set offs, recoupments or deductions of any
and every kind or nature whatsoever. Tenant's obligation to pay Rent under this
Lease shall not be affected by reason of any prohibition, limitation or
prevention of Tenant's use, occupancy or enjoyment of the Property other than
the Landlord's breach of the covenant contained in Section 18.
(b) In addition to the Annual Rent Tenant shall pay unto Landlord as
Additional Rent such costs that Landlord shall incur in connection with the
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ownership or operation of the Premises. Such costs shall include but be limited
to any Taxes, as set forth in Section 10 of this Lease. Tenant agrees to pay
Insurance Expense related to the Premises.
(c) In the event that Tenant shall fail to exercise its Option to purchase
the Premises as identified in paragraph 8 of the Lease, Tenant shall beginning
on August 12, 2012 pay as Additional Rent Percentage Rent. The Percentage Rent
due shall be equal to Ten Percent (10%) of the Net Profits generated by Tenant
from the operation of the Premises in the immediately proceeding month. Tenant
shall deliver to Landlord at the end of each month a statement setting forth its
revenue for the prior month. Tenant shall on the twenty-fifth day of each month
pay the Percentage Rent to Landlord shall credit any payments made under the
this provision towards the Purchase Price if Tenant exercises its Option to
purchase the Premises in accordance with the terms of Section 8 of this Lease.
Said payments are to be applied directly to the principal outstanding on the
Bonds and the portion of the accelerated amortization that results from these
payments will increase the portion of the monthly rental payment that is
attributed to principal on the Bonds. Landlord shall provide Tenant with a
monthly statement indicating the principal balance on the Bonds and the value of
the Net Purchase Price.
SECTION 6
LATE PAYMENTS
In the event that any monthly installment of Annual Rent or Additional Rent
is not paid by the tenth (10th) day after it is due, Tenant shall pay to
Landlord as additional rent a late charge equal to five percent (5%) of such
payment which remains due but unpaid. Notwithstanding the foregoing to the
contrary, no late charge or interest thereon shall be due with respect to the
first late payment in any twelve (12) month period until such time as Landlord
has provided five (5) days advance written notice to Tenant of such failure to
pay and Tenant fails to make such payments within ten (10) days of the date of
such written notice from Landlord. Landlord shall not be required to give more
than one (1) such notice in any twelve (12) month calendar period.
SECTION 7
SECURITY DEPOSIT
Tenant has deposited with Landlord simultaneously with the execution of
this Lease a Security Deposit of Sixty Thousand Dollars ($60,000.00), which sum
shall be held without payment of interest as security for the performance by
Tenant of its obligations under this Lease. Landlord is authorized to deposit
those funds in a non-interest-bearing account. Landlord shall not be responsible
for the solvency of the depository so long as it is insured by the Federal
Deposit Insurance Corporation, or similar insurer. If Tenant shall perform all
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of its obligations under the Lease, the Security Deposit shall be refunded to
Tenant, without interest, within thirty (30) days after termination of this
Lease. If Tenant shall default in any obligation, Landlord shall be entitled to
apply any or all of the Security Deposit toward Landlord's damages, as
substantiated by Landlord, and Tenant shall, within five (5) days after notice
thereof, deposit with Landlord an amount sufficient to restore the Security
Deposit to its original amount, which amount shall constitute Additional Rent
under the Lease.
SECTION 8
OPTION TO PURCHASE
Landlord does hereby grant unto Tenant the Option to purchase the Premises
and Equipment from the Landlord. Tenant shall have until August 11, 2012 to
exercise the Option. Should the Tenant fail to exercise the Option by August 11,
2012 date then in that event this Option shall be null and void and of no
further effect. Tenant shall exercise this Option by delivering to Landlord two
copies of a Contract of Sale attached hereto as Exhibit B. Closing on the
purchase shall occur no later than ninety (90) days after Tenant exercises the
Option. Tenant shall pay all costs associated with the sale and purchase of the
Premises and Equipment including but not limited to any sales tax, recordation
and/or transfer taxes. Landlord agrees to credit towards the Purchase Price an
amount equivalent to any principal payments made on the Bonds, Mortgage and
loans on the Equipment.
SECTION 9
UTILITIES
Tenant shall promptly pay all charges for electricity, water, gas (where
available), telephone service, sewerage service, and other utilities furnished
to the Premises and shall promptly pay any maintenance charges therefor. Tenant
shall place any accounts for such utilities in its own name.
SECTION 10
TAXES
(a) Tenant shall be liable for all taxes levied against personal property,
trade fixtures, and tenant improvements placed by Tenant in the Premises. If any
such taxes based on the personal property or trade fixtures placed by Tenant in
the Premises are levied against Landlord or Landlord's property and if Landlord
elects to pay the same or if the assessed value of Landlord's property is
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increased by inclusion of personal property and trade fixtures placed by Tenant
in the Premises and Landlord elects to pay the taxes based on such increase,
Tenant shall pay to Landlord upon demand that part of such taxes for which
Tenant is primarily liable hereunder. Tenant shall pay any personal property tax
assessed against the Equipment, with such tax payments in year one of the Lease
to be on a pro rata basis for the period of occupancy.
(b) Tenant agrees to pay as Additional Rent all Taxes levied or assessed
against the Premises. Tenant shall pay such Taxes within thirty (30) days of the
delivery of the invoice for such taxes, with such tax payments in year one of
the Lease to be on a pro rata basis for the period of occupancy.
(c) If Tenant should fail to pay any Taxes required to be paid out by
Tenant hereunder, in addition to any other remedies provided herein, Landlord
may, if it so elects, pay such Taxes. Any sum so paid by Landlord shall be
deemed to be due and owing by Tenant to Landlord and due as Additional Rent
within five (5) days after written demand.
(d) If at any time during the Term of this Lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments, levies, or charges levied, assessed, or imposed on real estate and
the improvements thereon, there shall be levied, assessed, or imposed on
Landlord a capital levy, or other tax directly on the rents received therefrom
and/or a franchise tax assessment, levy, or charge measured by or based, in
whole or in part, upon such rents, then such taxes, assessments, levies, or
charges that are in lieu of the present method of taxation shall be deemed to be
included within the term "Taxes" for the purposes hereof.
(e) Any payment to be made pursuant to this Section with respect to the
real estate tax year in which this Lease commences or terminates shall bear the
same ratio to the payment that would be required to be made for the full year as
that part of such tax year covered by the Term of this Lease bears to a full tax
year.
(f) Tenant shall have the right to employ a tax consulting firm to attempt
to assure a fair Tax burden on the Premises. Tenant shall bear the costs
associated with the employment of any such consultant.
(g) In addition to the other payments under this Section, Tenant shall pay
upon written demand any reasonable fees, expenses, and costs incurred by
Landlord in contesting any Tax, or any assessments, levies, or tax rate,
applicable to the Premises or portions thereof. Landlord shall provide Tenant
all notices of any Tax, or any assessments, levies, or tax rate, applicable to
the Premises or portions thereof and in the event Landlord files for bankruptcy,
insolvency or shall no longer be in business, shall in a timely and reasonable
manner provide Tenant, and advise the Tax authorities of Tenant's mailing
address for all future Tax notices.
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SECTION 11
USE AND CARE OF PREMISES
(a) The Premises may be used only for the Permitted Use and for no other
purpose or purposes without the prior written consent of Landlord.
(b) Tenant, at Tenant's expense, shall comply with all laws, ordinances,
and regulations of federal, state, and local authorities pertaining to Tenant's
use of the Premises and with the recorded covenants, conditions, and
restrictions, regardless of when they become effective, including, without
limitation, the Americans with Disabilities Act of 1990 and all applicable
federal, state, and local laws, ordinances, or regulations pertaining to air and
water quality, Hazardous Material, waste disposal, air emissions, and other
environmental matters, all zoning and other land use matters, utility
availability, and with any direction of any public officer or officers, pursuant
to law, which shall impose any duty upon Landlord or Tenant with respect to the
use or occupation of the Premises.
(c) Tenant shall (i) not cause or permit any Hazardous Material to be
brought upon, kept, or used in or about the Premises by Tenant or its
contractors or subcontractors, or its or their agents, or employees, without the
prior written consent of Landlord, which Landlord shall not unreasonably
withhold as long as Tenant demonstrates to Landlord's reasonable satisfaction
that such Hazardous Material is necessary or useful to Tenant's business and
will be used, kept, and stored in a manner that complies with all laws
regulating any such Hazardous Material so brought upon, or used, or kept in or
about the Premises. If Tenant breaches the obligations stated in the preceding
sentence, or if the presence of Hazardous Material on the Premises caused or
permitted by Tenant results in contamination of the Premises, or if
contamination of the Premises by Hazardous Material otherwise occurs for which
Tenant is legally liable to Landlord for damage resulting therefrom, then Tenant
shall indemnity, defend, and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities, or losses (including,
without limitation, diminution in value of the Premises, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of space, sums
paid in settlement of claims, attorneys' fees, consultant fees, and expert fees)
which arise during or after the lease term as a result of such contamination.
This indemnification of Landlord by Tenant includes, without limitation,
costs incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal, or restoration work required by any federal, state,
or local governmental agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the Premises. Without
limiting the foregoing, if the presence of any Hazardous Material on the
Premises caused or permitted by Tenant results in any contamination of the
Premises, Tenant shall promptly take all actions at its sole expense as are
necessary to return the Premises to the condition existing prior to the
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introduction of any such Hazardous Material to the Premises; provided that
Landlord's approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld so long as such actions would not potentially
have any material adverse long-term or short-term effect on the Premises. The
foregoing indemnity shall survive the expiration or earlier termination of this
Lease
Landlord hereby warrants to the best of its knowledge that as of the
Commencement Date of the Lease no contamination of the Premises has occurred as
the result of the use, storage or presence of any Hazardous Material on the
Premises. In the event that contamination is determined to have existed prior to
the Commencement Date of this Lease then in that event Landlord shall, for all
contamination that arose or existed on or prior to the Commencement Date,
indemnify, defend, and hold Tenant harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities, or for the loss or restriction on
use of rentable or usable space or of any amenity of the Premises, as well as
any sums paid in settlement of claims, attorneys' fees, consultant fees, and
expert fees) which arise during the lease term as a result of such
contamination.
(d) At the commencement of this Lease, and on January 1 of each year
thereafter, including January 1 of the year after the termination of this Lease,
Tenant shall disclose to Landlord the names and amounts of all Hazardous
Materials, or any combination thereof, which were stored, used, or disposed of
on the Premises, or which Tenant intends to store, use, or dispose of on the
Premises.
(e) Tenant shall not, without Landlord's prior written consent, keep
anything within the Premises for any purpose which increases the insurance
premium cost or invalidates any insurance policy carried on the Premises. Tenant
shall pay as Additional Rent, upon demand by Landlord, any such increased
premium cost due to Tenant's use or occupation of the Premises. Except to the
extent prohibited by law, all property kept, stored, or maintained within the
Premises by Tenant shall be at Tenant's sole risk.
(f) Tenant shall take good care of the Premises and keep the same free from
waste at all times. Tenant shall keep the Premises and sidewalks, service-ways,
and loading areas adjacent to the Premises neat, clean, and free from dirt,
rubbish, insects, and pests at all times, and shall store all trash and garbage
within appropriate containers, arranging for the regular pickup of such trash
and garbage at Tenant's expense.
(g) Tenant shall procure, at its sole expense, any permits and licenses
required for the transaction of business in the Premises and otherwise comply
with all applicable laws, ordinances, and governmental regulations that affect
the Premises either now or in the future. Notwithstanding the foregoing,
Landlord agrees to provide any consents for any permits and licenses necessary
to operate the business on the Premises, and shall not unreasonably withhold
said consent.
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(h) Tenant shall procure, at its sole expense, any permits and/or licenses
required for the use and operation of the Equipment. Notwithstanding the
foregoing, Landlord agrees to provide any consent for any permits and licenses
necessary to operate the Equipment on the Premises, and shall not unreasonably
withhold said consent.
SECTION 12
REPAIRS AND MAINTENANCE BY TENANT
(a) Tenant shall keep the Premises in good clean condition and shall, at
its sole cost and expense, make all needed repairs and replacements. Tenant
shall keep all plumbing units, pipes, and connections free from obstruction and
protected against ice and freezing. If any repairs required to be made by Tenant
hereunder are not made within ten (10) days after written notice delivered to
Tenant by Landlord (except that in an emergency no notice shall be required), at
Landlord's option, and in addition to Landlord's other remedies under this
Lease, at law or in equity, Landlord may (but shall not be obligated to) make
such repairs without liability to Tenant for any loss or damage that may result
to its stock or business by reason of such repairs. Within sixty (60) days,
Tenant shall pay to Landlord as Additional Rent hereunder the cost of such
completed or ongoing repairs plus ten percent (10%) of the amount thereof, and
failure to do so shall constitute an event of default hereunder for any non
insurance related damages.
(b) Maintenance and replacement of the air conditioning and heating
equipment shall be Tenant's sole responsibility throughout the entire Term of
this Lease. Tenant shall provide Landlord with proof of a service and
maintenance agreement upon occupancy. Landlord represents and warrants that as
of the Commencement Date the air conditioning and heating equipment has been
inspected, maintained and is in proper working order.
(c) Tenant shall, at its sole cost and expense maintain, and repair the
Equipment. Tenant shall keep in place during the Lease, service or maintenance
contract(s) or plan(s) for the Equipment which shall comply with the
specifications or requirements established by the manufacturer(s) of the
Equipment. Tenant shall provide Landlord with evidence of the existence such
plans annually. Landlord represents and warrants that as of the Commencement
Date the Equipment has been inspected, maintained and is in proper working
order.
(d) Tenant will repair promptly at its own expense by or under the
direction of Landlord any damage (whether structural or nonstructural) to the
Premises caused by any construction or alteration performed by Tenant or by
bringing into the Premises any property for Tenant's use, or by the installation
or removal of such property, regardless of fault or by whom such damage shall be
caused, unless solely by the negligence of Landlord or its contractors or
subcontractors or its or their agents or employees.
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(e) Tenant shall have no right to direct or instruct any of Landlord's
contractors or subcontractors or their agents or employees, except with the
prior written agreement of Landlord.
(f) Tenant shall be responsible for maintaining the exterior of the
Premises including and parking areas or loading docks. Tenant shall bear the
cost of any snow removal for such areas.
SECTION 13
REPAIRS BY LANDLORD
Landlord shall have no obligation to make repairs to the Premises.
Notwithstanding the foregoing, for a period of one (1) year from the date of
this Lease, Landlord agrees that it shall, at its sole and absolute expense and
immediately upon notification, make all necessary repairs and/or replacements of
the broken gear in the Sigma mixer with tilting gear as identified by Kofab and
confirmed by Xxxxxx Xxxxxx and Xxxxx Xxxxx with serial number ______________.
SECTION 14
PLACEMENT OF HEAVY EQUIPMENT
Tenant shall not place a load upon any floor of the Premises exceeding the
floor load per square foot area which such floor was designed to carry or which
may be allowed by law. Landlord reserves the right to prescribe the weight and
position of all safes, telephone switchboards, computers, or other heavy
equipment, and to prescribe the reinforcing necessary, if any, which in the
opinion of Landlord may be required under the circumstances, such reinforcing to
be at Tenant's expense. Business machines and mechanical equipment, if approved
by Landlord in a separate written agreement between Landlord and Tenant, shall
be placed and maintained by Tenant, or at Tenant's expense, in settings
sufficient in Landlord's judgment to absorb and prevent vibration, noise, or
annoyance, and Tenant shall, at its expense, take such steps as Landlord may
direct to remedy any such condition.
SECTION 15
FORCE MAJEURE
This Lease and the obligation of Tenant to pay Rent hereunder and perform
all of the other covenants and agreements hereunder on the part of Tenant to be
performed shall not be affected, impaired, or excused because Landlord is unable
to fulfill any of its obligations under this Lease or is unable to supply, or is
delayed in supplying, any service to be supplied by it under the terms of this
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Lease or is unable to make, or is delayed in making, any repairs, additions,
alterations, or decorations or is unable to supply, or is delayed in supplying,
any equipment or fixtures, if Landlord is prevented or delayed or otherwise
hindered from doing so by reason of any outside cause whatsoever, including,
without limitation, acts of God; fire; earthquake; flood; explosion; action of
the elements; declared or undeclared war; riots; civil disturbances; inability
to procure or a general shortage of labor, equipment, energy, materials, or
supplies in the open market; breakage or accident to machinery; partial or
entire failure of utilities; failure of transportation; strikes; lockouts;
action of labor unions; condemnation; injunction; court order or decree;
governmental preemption; any rule, order, or regulation of any department or
subdivision of any government agency; or the conditions of supply and demand
which have been or are affected by war or other emergency. Similarly, Landlord
shall not be liable for any interference with any services supplied to Tenant by
others if such interference is caused by any of the reasons listed in this
Section. Nothing contained in this Section shall be deemed to impose any
obligation on Landlord not expressly imposed by other provisions of this Lease.
SECTION 16
SURRENDER OF PREMISES
(a) At the expiration or earlier termination of the Term of this, Lease,
Tenant shall peaceably surrender the Premises in broom clean condition and good
order and repair and otherwise in substantially the same condition as the
Premises was upon the commencement of this Lease, except for: (i) ordinary wear
and tear, (ii) needed repairs or maintenance to the Premises that are not
required to be repaired and/or maintained by Tenant, and (iii) damage by fire or
other casualty to the extent there is actually paid to Landlord, to repair any
damage to the Premises, sufficient net proceeds from the policies of insurance
which Tenant is obligated to provide and to maintain under the provisions of
this Lease.
(b) If Landlord elects to require that alterations, additions,
improvements, changes, affixations of chattels, or other work made or performed
by Tenant to the Premises be removed at the termination of this Lease, Tenant
hereby agrees to cause the same to be removed at its sole cost and expense. If
Tenant fails to remove the same, Landlord may cause them to be removed at
Tenant's expense, and Tenant hereby agrees to reimburse Landlord for the cost of
such removal together with all and any damages that Landlord may suffer and
sustain by reason of failure of Tenant to remove the same. At Landlord's
election, any or all of the alterations, additions, improvements, changes,
affixations of chattels, or other work made or performed by Tenant upon the
Premises shall remain at the termination of this Lease and not be removed.
Tenant's obligation to observe and perform the covenants set forth in this
Section shall survive the expiration or earlier termination of this Lease.
Tenant shall be permitted to remove any equipment which installs on the Premises
at the expiration of the Lease. Provided, however, that Tenant shall return the
Premises to substantially the same condition as existed prior to the
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installation of such Equipment. Should Tenant cause any damage to the Premises
as the result of the removal of its Equipment Tenant shall be liable for the
cost of any repairs occasioned by such damage. In the event that Tenant fails to
repair such damage prior to the expiration of the Lease and Landlord shall be
forced to make such repairs Tenant shall reimburse Landlord for the actual costs
of such repair plus Ten Percent (10%) of the costs of such repairs.
(c) At the expiration or earlier termination of the Term of this Lease,
Tenant shall promptly remove all property that it owns from the Premises under
the provisions of this Lease, and, failing to do so, Landlord at its option may
either (i) cause that property to be removed at the risk and expense of Tenant
(both as to loss and damage), and Tenant hereby agrees to pay all reasonable
costs and expenses incurred thereby, including sums paid to store the property
elsewhere and the cost of any repairs to the Premises caused by the removal of
the property, or (ii) upon five (5) days' written notice to Tenant, which the
parties agree is commercially reasonable, sell at public or private sale any or
all of such property, whether exempt or not from sale under execution or
attachment (such property being deemed charged with a lien in favor of Landlord
for all sums due hereunder), with the proceeds to be applied as set forth in
this Lease. Landlord is entitled by Tenant to treat the property as abandoned
and title shall pass to Landlord.
SECTION 17
ABANDONING PREMISES OR PERSONAL PROPERTY
Tenant shall not vacate or abandon the Premises at any time during the Term
of this Lease, but if Tenant does vacate or abandon the Premises or is
dispossessed by process of law, any personal property belonging to Tenant and
left on the Premises may, at the option of the Landlord, be deemed to have been
abandoned by Tenant.
SECTION 18
QUIET ENJOYMENT/LANDLORD'S WARRANTIES
Landlord warrants that Tenant shall be granted peaceable and quiet
enjoyment of the Premises free from any eviction or interference by Landlord or
anyone claiming through Landlord or Landlord's successors or assigns, provided
Tenant pays the Annual Rent and Additional Rent provided herein and otherwise
fully performs the terms, covenants, and conditions imposed herein.
(a) Landlord specially warrants that Landlord shall be seized of fee simple
title to the Premises, that Landlord's title thereto shall be good of record and
in fact, and that Landlord's title shall be marketable and free of any liens,
encumbrances, or restrictions of any kind, except for those title exceptions
agreed to by Tenant which are listed on Exhibit C which is attached hereto and
incorporated herewith.
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(b) Landlord warrants that if and so long as Tenant shall not be in default
hereunder, Tenant shall quietly hold, occupy, and enjoy the Premises and all
rights relating thereto during the Term, without hindrance, ejection, or
molestation by Landlord or any party claiming by, through, or under Landlord,
subject to the terms of this Lease.
SECTION 19
INDEMNIFICATION AND WAIVER OF CLAIM
Except when caused by the negligence or willful misconduct of Landlord,
Tenant shall indemnify and save Landlord harmless against and from, and shall
reimburse Landlord for, all liabilities, obligations, damages, fines, penalties,
claims demands, costs, charges, judgments, and expenses, including but not
limited to, reasonable attorney's fees which may be imposed upon or incurred or
paid by or asserted against Landlord or Landlord's fee or reversionary or other
interest in the Premises by reason of or in connection with any one of the
following:
(a) Tenant's use and occupancy of the Premises; (b) the conduct of Tenant's
business or any work or activity or other things allowed or permitted by Tenant
to be done in or on the Premises; (c) any breach or default in the performance
of any of Tenant's obligations under this Lease; (d) any misrepresentation or
breach of warranty by Tenant under this Lease; and/or (e) any other acts or
omissions or Tenant, its agents, employees, invitees or contractors.
In case any action or proceeding is brought against Landlord by reason of
any claims described in this Section, Tenant, if Landlord gives Tenant prompt
written notice thereof, shall, at Tenant's expense, resist or defend such action
or proceeding.
SECTION 20
INSURANCE
20.1 Tenant's Insurance
Liability Insurance. Tenant, at Tenant's sole cost and expense, shall
obtain and maintain in effect throughout the Term a policy of Commercial General
Liability Insurance (ISO form or equivalent) naming Landlord and (at Landlord's
request) the Mortgagee as additional insureds, protecting Tenant against
liability for bodily injury, death and property damage occurring upon or in the
Leased Premises, with such policy to afford protection to the limit of not less
than
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One Million Dollars ($1,000,000) with respect to bodily injury or death or
damage to property arising from any one occurrence and Three Million Dollars
($3,000,000) from the aggregate of all occurrences within each policy year.
(b) [Intentionally omitted.]
(c) Property Damage Insurance. Tenant, at Tenant's sole cost and expense,
shall obtain and maintain throughout the Term a policy of property damage
insurance on the Tenant's Equipment and Personal Property in an amount
sufficient to prevent Tenant from becoming a co insurer.
(d) Workers' Compensation Insurance. Tenant, at Tenant's sole cost and
expense, shall obtain and maintain throughout the Term a policy of workers'
compensation insurance covering all persons (regardless of number) employed on
the Premises, which insurance shall include all coverage required by applicable
State law.
(e) Business Interruption Insurance. Tenant, at Tenant's sole cost and
expense, shall obtain and maintain throughout the Term a policy of business
interruption insurance sufficient to satisfy Tenant's obligations hereunder in
the event the Buildings, fixtures or Equipment on the Premises are damaged or
destroyed by fire or other casualty event.
(f) Policy Requirements. The insurance policies required to be obtained by
Tenant under this Section 20.1 and by Landlord under Section 20.2: (i) shall be
issued by an insurance company of recognized responsibility qualified to do
business in the jurisdiction in which the Building is located which is rated A-
or better (and is in a Financial Size Category of Class VIII or higher) by
Best's Key Rating Guide or which has an equivalent financial rating from a
comparable insurance rating organization, and (ii) shall provide (and each
certificate evidencing the existence of such insurance policy shall certify)
that the insurer shall provide thirty (30) days prior written notice of
cancellation or amendment (other than to increase the amount of coverage). All
such policies shall be written as primary policies, not contributing with, or
relating simply to any excess not covered by, any policy the Landlord or
Landlord may carry. Tenant shall, within thirty (30) days prior to the
expiration of such policies, furnish Landlord with renewals or binders or
Landlord may order such insurance and charge the cost to Tenant, which amounts
shall be payable by Tenant on demand. All limits of liability required by
subsection (a) may be satisfied by maintaining a policy of primary insurance and
a policy or policies of excess liability insurance. Neither the issuance of any
insurance policy required under this Lease nor the minimum limits specified
herein with respect to Tenant's insurance coverage shall be deemed to limit or
restrict in any way Tenant's liability arising under or out of this Lease. It is
understood and agreed that said policies may be blanket and/or umbrella policies
covering other locations operated by Tenant or Landlord, its affiliates or
subsidiaries, provided that such blanket and/or umbrella policies otherwise
comply with the provisions of this subsection.
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(g) Evidence of Insurance. On or before the Commencement Date, and thirty
(30) days before the expiration of the expiring certificate previously
furnished, Tenant shall deliver to Landlord a certificate of insurance
evidencing the issuance of each insurance policy. Tenant shall deliver to
Landlord certificates of insurance evidencing the existence and amounts of such
insurance required to be obtained by Tenant under this section with loss payable
clauses satisfactory to Landlord; provided that in the event that Tenant fails
to procure and maintain such insurance, Landlord may (but shall not be required
to) procure same at Tenant's expense and any sum so paid by Landlord shall be
deemed to be owing by Tenant to Landlord and due and payable as Additional Rent
within five (5) days after Landlord's written notice to Tenant regarding
Landlord's payment of such sum. No such policy shall be cancelable or subject to
reduction of coverage or other modification except after thirty (30) days prior
written notice to Landlord by the insurer.
(h) Indemnification of Landlord. Except for the willful or negligent acts
or omissions (where applicable law imposes a duty to act) of Landlord or its
agents, employees or contractors, Tenant hereby agrees to indemnify and hold
harmless Landlord, the Additional Insureds and the officers, directors, agents
and employees of, and the partners in, Landlord and the Additional Insureds,
from and against any and all claims, losses, actions, damages, liabilities and
expenses (including reasonable attorneys' fees and disbursements) that (i) arise
from or are in connection with Tenant's possession, use, occupancy, repair,
maintenance or control of all or any part of the Premises or the Equipment, the
making or removal of any Tenant Equipment or Personal Property and the
performance of all related construction work, or that relate in any other manner
to the business conducted by Tenant in the Premises, or (ii) arise from or are
in connection with any willful or negligent act or omission of Tenant or its
agents, contractors, subcontractors, invitees and/or licensees, or (iii) result
from any default, breach, violation or nonperformance of this Lease or any
provision therein by Tenant, or (iv) arise from injury or death to individuals
or damage to property sustained on or about the Premises. Tenant shall, at its
own cost and expense, upon notice thereof from Landlord, defend any and all
actions, suits and proceedings which may be brought against Landlord, the
Additional Insureds and the officers, directors, agents and employees of, and
the partners in, Landlord and the Additional Insureds, or any of them, with
respect to the foregoing or in which Landlord, the Additional Insureds and the
officers, directors, agents and employees of, and the partners in, Landlord and
the Additional Insureds, or any of them, may be impleaded. Tenant shall pay,
satisfy and discharge any and all final money judgments which may be recovered
against Landlord, the Additional Insureds and the officers, directors, agents
and employees of, and the partners in, Landlord and the Additional Insureds, or
any of them, in connection with the foregoing. For so long as Tenant is in
compliance with the insurance requirements of this Section 20.1, the indemnity
provided above shall be limited to the policy limits of such insurance,
excluding only such deductibles as Tenant maintains (such deductible amount to
be determined by Tenant in its sole discretion), provided, however, that Tenant
is still liable if the act is not covered by Tenant's insurance or insurance
coverage is not in place.
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(i) (Contractual Liability Insurance. Tenant agrees to keep and maintain
throughout the Term as part of the coverage of its policy(ies) of liability
insurance contractual liability coverage or a contractual liability endorsement
covering Tenant's liability to Landlord for bodily injury or damage to property
of others under subsection (h), in the same limits required by subsection (a).
(j) Prohibition Against Concurrent Insurance. All property damage insurance
shall be written as primary insurance. Tenant shall not take out separate
insurance concurrent in form or contributing in the event of loss with any
property damage insurance carried by Landlord for the Premises, unless Landlord
is included therein as an insured. (k)Revision of Insurance Coverage. As of
January 1, 2012 and January 1 of each year thereafter, the parties shall review
whether the insurance minimums stated in this Section 20.1 and in Section 20.2
provide for sound and prudent coverage in relation to liability risks as of each
such date. As of each date, the parties shall discuss the appropriate liability
insurance minimums. Within thirty (30) days following establishment of any
required adjustment, Tenant or Tenant, as applicable, shall forward to the other
certificates of insurance indicating that insurance is no less than the required
amounts and is in full force and effect.
(l) Waiver. Landlord, on one hand, and Tenant, on the other, shall waive
any and all rights of recovery against the other or against the officers,
employees, agents and representatives of the other, on account of loss or damage
occasioned to such waiving party or its property or the property of others under
its control caused by fire or any of the extended coverage risks described above
to the extent that such loss or damage is insured. Tenant shall give notice to
the insurance carrier or carriers involved that the foregoing mutual waiver of
subrogation option is contained in this Agreement.
20.2 Landlord's Insurance
(a) Property Damage Insurance. Landlord, at its cost and expense, but
subject to Section 5, shall obtain and maintain throughout the Term a policy of
property damage insurance covering the Facility and the Equipment, but not
Tenant's Work, Alterations or Tenant's Personal Property, providing all-risk
coverage in such amount as any first Mortgagee of the Facility may from time to
time require or in such greater amount as Landlord may from time to time
determine, but in no event less than the replacement cost (excluding footings
and foundations) of the Facility and with a deductible of not more than one
percent (1%) of the replacement value of the Facility.
(b) Liability Insurance. Landlord, at Landlord's cost and expense, but
subject to Section 5, shall obtain and maintain in effect throughout the Term a
policy of Commercial General Liability Insurance (ISO form or equivalent)
insuring Landlord and naming Tenant as an additional insured against liability
for bodily injury, death and property damage occurring upon, in or about the
Land and the Facility, with such policy to afford protection to the limit of not
less than Three Million Dollars ($3,000,000) combined single limit annual
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aggregate for bodily injury, death and property damage and provide for a
deductible of not more than one percent (1%) of the replacement value of the
Building.
(c) Blanket Policy. Landlord shall have the right to comply with and to
satisfy its obligations under subsections (a) and (b) by means of any so-called
blanket policy or policies of insurance covering this and other liability and
locations of Landlord, provided that such policy or policies by the terms
thereof shall allocate to the Facility and the liabilities to be insured under
this Section an amount not less than the amount of insurance required to be
carried pursuant to this Section, so that the proceeds from such insurance shall
not be less than the amount of proceeds that would be available if Landlord were
insured under a unitary policy.
(d) Mutual Waiver of Subrogation. Landlord and Tenant shall each include in
each of its property damage insurance policies, including Landlord's policies of
rent insurance and Tenant's policies of business interruption insurance, if any,
a waiver of the insurer's right of subrogation against the other party and the
officers, directors, agents and employees of, and the partners in, the other
party (and, in the case of Tenant's policies, against the Additional Insureds
and their respective officers, directors, agents and employees), or, if such
waiver at any time becomes unobtainable (i) an express agreement that such
policy shall not be invalidated if the insured waives or has waived before the
loss the right of recovery against any party responsible for an insured
casualty, or (ii) any other form of permission for the release of such
responsible party, provided such waiver, agreement or permission is obtainable
under normal commercial insurance practice at the time. If such waiver,
agreement or permission is not, or ceases to be, obtainable at all, the insured
party shall so notify the other party promptly after notice thereof and shall
use its reasonable efforts to name the other as an additional insured. Landlord
and Tenant hereby acknowledge and agree that such waiver is obtainable under
normal commercial insurance practice on the date of this Lease at no additional
charge.
(e) Landlord Released from Liability. As long as Tenant's policies of
property damage insurance include the waiver of subrogation or agreement or
permission to release liability referred to in Section 20.2(d), Tenant hereby
waives (and agrees to cause all other occupants of the Premises to execute and
deliver to Landlord instruments waiving) any right of recovery against Landlord,
the Additional Insureds and any of their respective officers, directors, agents,
employees, partners, contractors or invitees, for any loss or damage to Tenant's
Work, Alterations or Tenant's Personal Property caused by fire or other peril
insurable under the broadest form of "all risk" or "Special Form" policy issued
in Iowa (whether or not Tenant actually maintains such policy and without giving
effect to deductibles or self-insured amounts). If at any time any of Tenant's
policies shall not include a waiver of subrogation or agreement or permission or
similar provisions set forth in (d) above, the waiver set forth in the preceding
sentence shall, upon notice given by Tenant to Landlord, be of no further force
or effect from and after the giving of such notice (or, if the insurer shall not
19
grant a waiver for all of the required parties, the waiver shall be of no force
or effect only with respect to the required parties not included in the waiver).
If Tenant fails to obtain and maintain the policy of property damage insurance
required by Section 20.1, Tenant hereby waives (and agrees to cause all
occupants of the Premises to execute and deliver to Landlord instruments
waiving) any right of recovery against Landlord, the Additional Insureds and any
of their respective officers, directors, agents, employees, partners,
contractors and invitees for any loss or damage to Tenant's Equipment and
Personal Property caused by fire or other perils of the type that would have
been insured against by a policy of property damage insurance if Tenant had
obtained the policy and the policy had been in effect on the date of the fire or
other insured peril.
SECTION 21
EFFECT ON INSURANCE
Tenant will not do, omit to do, or suffer to be done, or keep or suffer to
be kept anything in, upon, or about the Premises which will violate the
provisions of Landlord's policies insuring the Premises against loss or damage
by fire or other hazards (including, but not limited to, public liability),
which will adversely affect Landlord's fire or liability insurance premium
rating or which will prevent Landlord from procuring such policies in companies
acceptable to Landlord. If anything done, omitted to be done, or suffered to be
done by Tenant, or kept or suffered by Tenant to be kept in, upon, or about the
Premises shall cause the premium rate of fire or other insurance on the Premises
in companies acceptable to Landlord to be increased beyond the established rate
from time to time fixed by the appropriate underwriters with regard to the use
of the Premises for the purposes permitted under this Lease. Tenant will pay the
amount of such increase as Additional Rent upon Landlord's demand and will
thereafter pay the amount of such increase, as the same may vary from time to
time, with respect to every premium relating to coverage of the Premises during
a period falling within the Term of this Lease until such increase is
eliminated. If for any reason including, but not limited to, the abandonment of
the Premises, Tenant's failure to pay any insurance premium, or Tenant's failure
to occupy the Premises as herein permitted, Tenant fails to provide and keep in
force any or all of the insurance policies set forth in Section 20.1, then in
such event Tenant shall indemnity and hold Landlord and the Mortgagee harmless
against any loss that would have been covered by such insurance.
SECTION 22
TOTAL OR PARTIAL DESTRUCTION OF PREMISES
(a) If the Premises is damaged by fire or other casualty but is not thereby
rendered untenable in whole or in part, Landlord, at its own expense, subject to
the limitations and restrictions set forth in this Lease and the Documents,
shall cause such damage to be repaired, and the Annual Rent and Additional Rent
shall xxxxx until such damage has been repaired and Tenant can operate the
business in whole or in part on the Premises. If by reason of any damage or
destruction to the Premises the Premises shall be rendered untenable in part,
20
Landlord, at its own expense, subject to the limitations and restrictions set
forth in this Lease and the Documents, shall cause the damage to be repaired,
and the Annual Rent and Additional Rent shall not be abated. If by reason of any
damage or destruction to the Premises, the Premises shall be rendered wholly
untenable Landlord, at its option, at its own expense, subject to the
limitations and restrictions set forth in this Lease and the Documents, may
cause the damage to be repaired, and the Annual Rent and Additional Rent shall
not xxxxx. Should Landlord not elect to repair or rebuild the Premises then in
that event this Lease shall terminate upon Landlord's election not to repair or
rebuild the Premises and Tenant's obligations for the payment of Rent shall
terminate upon the date of Landlord's election. Landlord shall make any such
election within ninety (90) days of the date of the casualty causing the damage
or destruction of the Premises.
(b) In no event shall Landlord be obligated to expend for any repairs or
reconstruction pursuant to this Section an amount in excess of the insurance
proceeds, if any, recovered by it and allocable to the damage to the Premises
after deducting therefrom Landlord's reasonable expenses in obtaining such
proceeds and any amounts required to be paid to the Mortgagee. Tenant agrees
that promptly after completion of any such work by Landlord it will proceed with
reasonable diligence and at its sole cost and expense to rebuild, repair, and
restore its signs, fixtures, equipment, and other items of Tenant's Work.
(c) Notwithstanding anything set forth herein to the contrary, Tenant shall
be responsible for all repairs and replacements of damage and/or destruction of
the Premises resulting from a burglary or attempted burglary, or any other
illegal or forcible entry into the Premises.
(d) Tenant covenants that it will give written notice to Landlord of any
accident or damage, whether such accident or damage is caused by insured or
uninsured casualty, occurring in, on, or about the Premises within a reasonable
time after Tenant has or should have had knowledge of the occurrence of such
accident or damage. If Tenant breaches its covenant set forth hereunder,
Landlord, in addition to all other rights and remedies under this Lease, at law
or in equity shall, at its option, be relieved of any of its obligations under
this Section.
(e) Tenant agrees that during any period of reconstruction or repair of the
Premises it will continue the operation of its business within the Premises to
the extent reasonably practicable.
SECTION 23
ALTERATIONS
Tenant agrees that it will not make any alterations (whether structural or
otherwise), additions, improvements, changes, affixations of chattels, repairs,
or other work to the interior or exterior of the Premises during the Term of
21
this Lease except for the installation of unattached, movable trade fixtures
that may be installed without drilling, cutting, or otherwise defacing the
Premises, without in each instance obtaining Landlord's and the Mortgagee's
prior written consent which will not be unreasonably withheld or delayed.
Together with each request for such consent, Tenant shall present to Landlord
and the Mortgagee reasonably detailed plans and specifications for such proposed
alterations, additions, improvements, changes, affixations of chattels, repairs,
or other work; provided, however, approval of such plans and specifications by
Landlord and the Mortgagee shall not constitute any assumption of any
responsibility by Landlord or the Mortgagee for their accuracy or sufficiency,
and Tenant shall be solely responsible therefor. All construction work done by
Tenant within the Premises shall be performed in a good and workmanlike manner,
in compliance with all governmental requirements, and the requirements of any
contract or mortgage to which the Landlord may be a party. Tenant agrees to
indemnify Landlord and the Mortgagee and hold them harmless against any loss,
liability, or damage resulting from such work, and Tenant shall, if requested by
Landlord or the Mortgagee, furnish bond or other security satisfactory to
Landlord against any such loss, liability, or damage. Notwithstanding the
foregoing, Tenant shall have no obligation to obtain Landlord's written consent
for the installation of additional equipment necessary for operating the
business on the Premises and in the event the Option to purchase the Premises is
not exercised by the Tenant, any additional equipment installed by the Tenant
shall remain the property of the Tenant and shall be reasonably removed at the
expiration of the Lease and Tenant shall ensure that the Premises are in
substantially the same condition as the Premises was upon the commencement of
this Lease.
All alterations, additions, improvements, changes, affixations of chattels,
repairs, or other work made or performed by Tenant shall, unless Landlord gives
written notice to Tenant to remove the same, remain upon the Premises at the
expiration or earlier termination of the Term of this Lease and shall become the
property of Landlord immediately upon installation thereof. The same shall
remain the property of Landlord (without any obligation of Landlord to pay
compensation therefor) unless Landlord gives Tenant written notice to remove any
or all of the aforesaid, in which event Tenant shall remove at Tenant's expense
such of the same as may be specified in Landlord's notice to Tenant, and Tenant
shall promptly restore the Premises to the same good order and condition as it
was at the commencement of the Term of this Lease except (i) to the extent the
Premises is not required to be repaired and/or maintained by Tenant and (ii)
damage by fire or other casualty to the extent there is actually paid to
Landlord, to repair any damage to the Premises, sufficient net proceeds for
policies of insurance which Tenant is obligated to provide and to maintain under
the provisions of this Lease. Should Tenant fail to do so, Landlord may do so,
collecting, at Landlord's option, the cost and expense thereof from Tenant, as
Additional Rent, upon demand. Notwithstanding the foregoing and in the event the
Option to purchase the Premises is not exercised by the Tenant, any additional
equipment installed by the Tenant shall remain the property of the Tenant and
shall be reasonably removed at the expiration of the Lease and Tenant shall
ensure that the Premises are in substantially the same condition as the Premises
was upon the commencement of this Lease.
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SECTION 25
MECHANICS LIENS
Tenant shall not do or suffer to be done any act, matter, or thing whereby
Landlord's or Tenant's interest in the Premises, or any part thereof, may be
encumbered by any mechanics' lien. Tenant shall discharge or stay the
enforcement by bond or otherwise, within ten (10) days after the date of filing,
any mechanics' liens filed against Tenant's interest in the Premises, or any
part thereof, purporting to be for labor or material furnished or to be
furnished to Tenant. Landlord may, at its option, discharge any such mechanics'
lien not discharged by Tenant within such ten (10) day period, and Tenant, upon
demand, shall reimburse Landlord for any such reasonable expense incurred by
Landlord. Any monies expended by Landlord shall be deemed Additional Rent,
collectible as such by Landlord. Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and no mechanics'
or other lien for labor or materials shall attach to or affect the reversionary
or other estate or interest of Landlord in and to the Premises.
SECTION 26
BREACH OR DEFAULT
Tenant shall have breached this Lease and shall be considered in default
hereunder if (a) Tenant files a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy or insolvency law or act, or makes an
assignment for the benefit of creditors; (b) involuntary proceedings are
instituted against Tenant under any bankruptcy or insolvency law or act; (c)
Tenant fails to pay any Monthly Installment of Annual Rent or Additional Rent
when due and after the expiration of any cure period provided herein; (d) Tenant
fails to perform or comply in all material respects with any of the material
terms, covenants or conditions of this Lease or the rules and regulations now or
hereinafter established for the Premises or the Building, provided however
"material terms" shall be limited to Rent, Taxes, Insurance and Repairs and
Maintenance; or (e) the Premises shall be deserted or vacated.
SECTION 27
EFFECT OF BREACH
(a) If Tenant shall fail to pay any installment of rent or other monies due
pursuant to this Lease promptly on the day when they shall become due and
payable and shall continue in default for a period of fifteen (15) days after
written Notice of Default by Landlord (provided Tenant shall not be entitled to
such notice if Tenant has been given notice one (1) time within any twelve (12)
month period), or if Tenant shall fail to promptly keep and perform in all
23
material respects any other material affirmative covenants of this Lease
strictly in accordance with the terms of this Lease and shall continue in
default for a period of thirty (30) days after written Notice of Default by
Landlord of default and demand for performance, then, as often as any such event
shall occur, Landlord may: (i) re-enter the Premises, in a commercially
reasonable manner, to dispossess Tenant and all other occupants from the
Premises and to remove any or all of Tenant's property at the Premises; and (ii)
to store Tenant's property in a public warehouse or elsewhere at the cost, risk,
and expense of Tenant, without Landlord's being deemed guilty of trespass or
becoming liable for any loss or damage that may occur on Tenant's property (iii)
upon thirty (30) days' written notice to Tenant, which the parties agree is
commercially reasonable, to sell at public or private sale any or all of said
property, whether exempt or not from sale under execution or attachment (such
property being deemed charged with a lien in favor of Landlord for all sums due
hereunder), with the proceeds of sale to be applied: first, to the costs and
expenses of retaking, removal, storage, preparing for sale, and sale of the
property (including reasonable attorney's fees); and second, to the payment of
any sum due hereunder to Landlord (including Rent, charges, and damages, both
theretofore and thereafter accruing); and, third, any surplus to Tenant.
(b) Further, upon the occurrence of any such breach and after such
opportunity to cure as set forth above, Landlord, in addition to any other
remedies it may have at law, in equity, by statute, or under any other provision
of this Lease, shall have the right to terminate this Lease, as well as all
right, title, and interest of Tenant hereunder, by giving to Tenant not less
than sixty (60) days' advance written notice of Landlord's election to cancel
and to terminate this Lease. Upon the expiration of the time fixed in the notice
of termination, this Lease and the balance of the Term then remaining, as, well
as all of the right, title, and interest of Tenant under this Lease, shall
expire in the same manner and with the same force and effect (except for the
Tenant's liability as hereinafter set forth) as if the expiration of the time
fixed in the notice of termination was the date upon which the Term would
normally have expired. Tenant shall then immediately quit and surrender the
Premises and each and every part thereof to Landlord, and Landlord may enter
upon the Premises, by force, summary proceedings, or otherwise. In any of such
events, Landlord shall be entitled to the benefit of all provisions of the
ordinances and public local laws of the city or county where the Premises is
located and of the Laws of Iowa dealing with the speedy recovery of lands and
tenements held over by tenants or proceedings in forcible entry and detainer.
Upon any entry or re-entry by Landlord, with or without legal process, Landlord
shall also have the right (but not the obligation) to relet all or any part of
the Premises, from time to time, at the risk and expense of Tenant. No re-entry
by Landlord with or without a declaration of termination shall be deemed to be
an acceptance or a surrender of this Lease or as a release of the Tenant's
liability for damages under the provisions of this Section.
(c) Tenant further agrees (i) notwithstanding re-entry by Landlord with or
without termination pursuant to the provisions of Subsection (a) of this
Section, or (ii) if this Lease is otherwise terminated by reason of Tenant's
default, or (iii) if Landlord retakes possession with or without process of law
and/or re-enters with or without a declaration of termination, or (iv) if
24
Landlord, following any of the foregoing events, elects to let or relet the
Premises (whether once or more than once during the remainder of the Term, and
upon such conditioning as are satisfactory to Landlord) that Tenant shall,
nevertheless, in each instance, remain liable for the performance of any
covenant of this Lease then in default and for all Rent and all other charges
and damages which may be due or sustained before and after the date of default
less mitigated amounts, together with the cost of seizure and repossession of
the Premises and reasonable attorney's fees incurred by Landlord as a result of
the breach of this Lease.
(d) In any of the events described in the preceding subsection, Tenant
agrees that it will remain liable to Landlord for liquidated damages to be
calculated and paid, at Landlord's option, in either of the following ways:
(i) the Rent that, but for the termination of this Lease, would have
become due during the remainder of the Term, less the amount or amounts of Rent,
if any, that Landlord shall receive during such period from others to whom the
Premises may be rented net of all reasonable costs and expenses incurred by
Landlord in connection with Tenant's default, including, but not limited to, the
cost to repair, restore, renovate, or decorate the Premises for a new tenant,
reasonable attorney's fees, real estate commissions, the cost of any legal
actions, in which case liquidated damages shall be computed and payable in
monthly installments, in advance, on the first day of each calendar month
following the termination of this Lease and shall continue until the date on
which the Term would have expired but for such termination; or
(ii) the Rent that, but for the termination of this Lease, would have
become due during the remainder of the Term, less the fair rental value of the
Premises, as determined by an independent real estate appraiser selected by
Landlord, in which case such liquidated damages shall be payable to Landlord in
one lump sum on demand and shall bear interest at the interest rate of ten
percent per annum, until paid. . In no event shall Landlord be required to
account to Tenant for any amounts by which the fair rental value shall have
exceeded the stipulated Rent at the time of such termination.
(e) Suit or suits for the recovery of such deficiency or damages or for a
sum equal to any Monthly Installment or Installments of Annual Rent and
Additional Rent and other charges payable hereunder may be brought by Landlord
from time to time, at Landlord's election. Nothing herein contained shall be
deemed to require Landlord to await the date when this Lease or the Term would
have normally expired had there been no such default by Tenant or no such
termination by Landlord.
(f) In connection with any reletting(s) of the Premises, Landlord shall
have the absolute right, without such action's being or being deemed to be a
surrender of its rights or as a termination of this Lease or as a release of the
Tenant's liability hereunder for the balance of the Term or Extension Term, to
let or relet the Premises for a longer or shorter term than that remaining after
Tenant's default, to lease more or less area than that contained in the
Premises, to lease the Premises together with other premises or property owned
or controlled by Landlord, and to change the character or use of the Premises.
25
(g) No entry or re-entry by Landlord, whether had or taken under summary
proceedings or otherwise, nor any letting or reletting shall absolve or
discharge Tenant from liability hereunder. Tenant's liability hereunder, even if
there be no letting or reletting, shall survive the issuance of any dispossess
warrant, order of court terminating this Lease, or any other termination based
upon Tenant's default. The words "enter," "re-enter," and "re-entry" as used in
this Section and elsewhere in this Lease are not restricted to their technical
legal meanings.
(h) No payment received by Landlord from Tenant after re-entry or the
termination of this Lease in any lawful manner shall reinstate, continue, or
extend the Term of this Lease or affect any notice theretofore given to Tenant
by Landlord or operate as a waiver of the right of Landlord to recover
possession of the Premises by proper suit, action, proceedings, or other remedy.
(i) In the event Tenant fails to vacate the Premises at any time after
termination of this Lease as provided above, Tenant shall pay double Rent as
Additional Rent for such holdover period.
(j) Nothing in this Section shall limit or prejudice the right of Landlord
to prove and to obtain, as liquidated damages by reason of a termination arising
out of the provisions of this Section, an amount equal to the maximum allowed by
any statute or rule of law in effect as of the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of liquidated damages computed
under this Section.
SECTION 28
ACCESS BY LANDLORD
(a) Landlord, the Mortgagee, and their respective contractors and
subcontractors and its and their agents and employees may at all reasonable
times during the Term of this Lease enter to inspect the Premises to determine
whether Tenant is complying with the provisions of this Lease upon 48 hours
notice and so long as said access does not interfere with production or other
business activities of the Tenant, and whether Landlord is complying with
provisions of the Documents, and/or may show the Premises to others, provided
that such entrance is with the prior notice (provided an emergency is present)
to Tenant and consistent with Tenant's security obligations. In the event of
notice of termination of this Lease or during the last six (6) months of the
Term, Landlord shall have the right from the date of such notice to display (but
not so as to unreasonably obstruct the view thereof or access thereto) the
customary "For Rent" sign, and Landlord may show the Premises and all parts
thereof to prospective tenants when the Premises is open for business.
26
(b) Landlord and the Mortgagee also reserve the right, after notice of
intention to so enter (except that in the event of an emergency, no notice shall
be required), to enter the Premises at any time and from time to time to make
such repairs, additions, or alterations or remedy any contamination as it may
deem necessary for the safety, improvements, preservation, or condition thereof,
but neither Landlord or the Mortgagee assumes any obligation to do so, and the
performance thereof by Landlord or the Mortgagee shall not constitute a waiver
of Tenant's default in failing to perform the same. . Landlord and the Mortgagee
shall in no event be liable for any inconvenience, disturbance, loss of
business, or other damage to Tenant by reason of the performance by Landlord or
the Mortgagee of any work in, upon, above, under, or outside the Premises If
Tenant shall have vacated or abandoned the Premises, or in the event of an
emergency, or if in any other instance after Landlord or the Mortgagee has given
written notice of Landlord's or the Mortgagee's intention to enter, Tenant or
Tenant's agents and employees shall not be personally present to permit an entry
into the Premises, then in any such event, Landlord and the Mortgagee and their
contractors and subcontractors and its or their agents and employees may enter
the same by the use of force or otherwise without rendering Landlord or the
Mortgagee liable therefor, and without in any manner affecting Tenant's
obligations under this Lease.
(c) If during the last month of the Term Tenant has vacated the Premises
and removed all or substantially all of its personal property, Landlord may
immediately enter and alter, renovate, and redecorate the Premises. The exercise
of any such reserved right by Landlord or the Mortgagee shall not be deemed an
eviction or disturbance of Tenant's use and possession of the Premises and shall
not render Landlord or the Mortgagee liable in any manner to Tenant or to any
other person, nor shall the same constitute any grounds for an abatement of Rent
hereunder.
SECTION 29
ASSIGNMENT AND SUBLETTING
(a) Tenant shall not make or permit an Assignment of this Lease or any
interest of Tenant herein, in whole or in part, by operation of law or
otherwise, without first obtaining in each and every instance the prior written
consent of Landlord and the Mortgagee, which consent. may be withheld in the
sole and absolute subjective discretion of Landlord and the Mortgagee.
Notwithstanding the foregoing, Tenant may assign this Lease to any subsidiary,
parent, or affiliated entity of Tenant, with the written consent of Landlord and
Mortgagee. Landlord agrees that such consent will not be unreasonably withheld.
(b) Any consent by Landlord and the Mortgagee to an Assignment shall be
held to apply only to the specific transaction thereby authorized and shall not
constitute a waiver of the necessity for such consent to any subsequent
Assignment, including, but not limited to a subsequent Assignment by any
trustee, receiver, liquidator, or personal representative of Tenant. In the
event Tenant executes an agreement to effect an Assignment, such agreement shall
27
provide (i) that the subtenant or other occupier of space shall take subject to
this Lease, (ii) the occupier shall also fulfill all obligations of Tenant under
this Lease as they pertain to the portion of the Premises set forth in the
Assignment, and (iii) that with respect to such portion of the Premises the
occupier shall be deemed to be Tenant under this Lease.
(c) If this Lease or any interest herein is assigned or if the Premises or
any part thereof is sublet, used, or occupied by anyone other than Tenant
without Landlord's or the Mortgagee's prior written consent having been obtained
thereto, Landlord may nevertheless collect Rent (including Additional Rent) from
the assignee, sublessee, user, or occupant and apply the net amount collected to
the Rents herein reserved. Furthermore, in any such event Tenant shall pay to
Landlord monthly, as Additional Rent, the excess of the consideration received
or to be received during such month for such Assignment (whether or not denoted
as rent) over the Annual Rent reserved for such month in this Lease applicable
to such portion of the Premises so assigned, sublet, used, or occupied. No such
Assignment or correction shall be deemed a waiver of the covenant herein against
Assignment by others or the acceptance of the assignee, subtenant, user, or
occupant as Tenant hereunder, or constitute a release of Tenant from the further
performance by Tenant of the terms and provisions of this Lease. If this Lease
or any interest of Tenant herein is assigned or if the whole or any part of the
Premises is sublet or used or occupied by others, after having obtained
Landlord's and the Mortgagee's prior written consent thereto, Tenant shall
nevertheless remain fully liable for the full performance of all obligations
under this Lease to be performed by Tenant, and Tenant shall not be released
therefrom in any manner.
(d) If Tenant is a partnership and if at any time during the Term of this
Lease any person or entity which at the time of the execution of this Lease owns
a general partner's interest ceases to own such general partner's interest, such
cessation of ownership shall constitute an Assignment of this Lease for an
purposes of this Section, and Tenant shall promptly notify Landlord in writing
of such change.
SECTION 30
CONDEMNATION
(a) If the whole of the Premises shall be taken by any public or
quasi-public authority under the power of eminent domain, condemnation, or
expropriation or in the event of a conveyance in lieu thereof, then this Lease
shall terminate as of the date on which possession of the Premises is required
to be surrendered to the condemning authority, and Tenant shall have no claim
against Landlord or the condemning authority for the value of the unexpired Term
of this Lease.
(b) If any part of the Premises shall be so taken or conveyed, and if such
partial taking or conveyance shall render the Premises unsuitable for the
business of Tenant in the reasonable opinion of Landlord, then the Term of this
Lease shall cease and terminate as of the date on which possession of the part
28
of the Premises so taken or conveyed is required to be surrendered to the
condemning authority, and Tenant shall have no claim against Landlord or the
condemning authority for the value of any unexpired Term of this Lease. In the
event such partial taking or conveyance is not extensive enough to render the
Premises unsuitable for the business of Tenant, this Lease shall continue in
full force and effect except that the Annual Rent shall be reduced in the same
proportion that the floor area of the Premises so taken or conveyed bears to
such floor area immediately prior to such taking or conveyance, such reduction
commencing as of the date Tenant is required to surrender possession of such
part of the Premises so taken or conveyed. Subject to the terms and provisions
of the Documents, Landlord shall promptly restore the Premises, to the extent of
condemnation proceeds available for such purpose, as nearly as practicable to a
condition comparable to its condition at the time of such condemnation less the
part lost in the taking or conveyance, and thereafter Tenant shall promptly make
all necessary repairs, restoration, and alterations of Tenant's fixtures,
equipment, and furnishings and shall promptly re-enter the Premises. For
purposes of determining the amount of funds available for restoration of the
Premises from the condemnation award, said amount will be deemed to be that part
of the award which remains after payment of Landlord's reasonable expenses
incurred in recovering the condemnation award and of any amounts due to the
Mortgagee and which represents a portion of the total sum so available that is
equitably allocatable to the Premises.
(c) In the event of any condemnation or taking as herein before provided,
whether whole or partial, Tenant shall not be entitled to any part of the award
as damages or otherwise for such condemnation, and Landlord and the Mortgagee
are to receive the full amount of such award as their respective interests may
appear. Tenant hereby expressly waives any right or claim to any part thereof
and assigns to Landlord any such right or claim to which Tenant might become
entitled.
(d) Although all damages in the event of any condemnation are to belong to
the Landlord and the Mortgagee as aforesaid, whether such damages are awarded as
full compensation for diminution in value of the leasehold or to the fee of the
Premises, Tenant shall have the right, to the extent that same shall not
diminish the Landlord's or the Mortgagee's award, to claim and recover from the
condemning authority, but not from Landlord or the Mortgagee, such compensation
as may be separately awarded or recoverable by Tenant under law in Tenant's own
right for or on account of, and limited solely to moving expenses, loss of good
will, profit, any cost to which Tenant might be put in removing Tenant's
furniture, fixtures, leasehold improvements, and equipment.
SECTION 31
EXECUTION OF ESTOPPEL CERTIFICATE
At any time, and from time to time, upon the written request of Landlord or
the Mortgagee, so long as Landlord has complied with all material terms of this
29
Lease, Tenant, within ten (10) days of the date of such written request, agrees
to execute and deliver to Landlord and/or the Mortgagee, without charge and in a
form satisfactory to Landlord and/or the Mortgagee, a written statement: (a)
ratifying this Lease; (b) confirming the commencement and expiration dates of
the Term of this Lease; (c) certifying that Tenant is in occupancy of the
Premises and that the Lease is in full force and effect and has not been
modified, assigned, subleased, supplemented, or amended except by such writings
as shall be stated; (d) certifying that an conditions and agreements under this
Lease to be satisfied or performed by Landlord have been satisfied and performed
except as shall be stated; (e) certifying that Tenant is not in default under
the Lease and there are no defenses, set-offs, recoupments, or counter claims
against the enforcement of this Lease by Landlord, or stating the defaults,
defenses, set-offs, recoupments and/or counter claims claimed by Tenant; (f)
certifying that Landlord is not in default under the Lease and there are no
defenses, set-offs, recoupments, or counter claims against the enforcement of
this Lease by Landlord, or stating the defaults, defenses, set-offs, recoupments
and/or counter claims claimed by Tenant; (g) reciting the amount of Advance
Rent, if any, paid by Tenant and the date to which such Rent has been paid; (h)
reciting the amount of the Security Deposit held by Landlord, if any; and (i)
containing any other information which Landlord or the Mortgagee shall require.
SECTION 32
SUBORDINATION AND ATTORNMENT
(a) Tenant agrees: (i) that, except as hereinafter provided, this Lease is,
and any of Tenant's rights hereunder are and shall always be, subject and
subordinate to the Mortgage dated as of April 1, 2006 from Landlord to
Manufacturers and Traders Trust Company and any other Mortgage hereafter given
by Landlord and to any advances made or to be made thereunder and to the
interest thereon, and all renewals, replacements, modifications, consolidations,
or extensions thereof; (ii) that if the Mortgagee or if the purchaser at any
foreclosure sale or at any sale under a power of sale or assent to decree
contained in any such Mortgage shall at its sole option so request, Tenant will
attorn to, and recognize the Mortgagee or purchaser, as the case may be, as
landlord under this Lease for the balance then remaining of the Term of this
Lease, subject to all terms of this Lease provided the Mortgagee or purchaser
recognizes Tenant's rights as and (iii) that the aforesaid provisions shall be
self-operative, and no further instrument or document shall be necessary unless
required by the Mortgagee or purchaser. In the event of any foreclosure sale or
at any sale under a power of sale or assent to decree contained in any such
Mortgage, Landlord shall provide Tenant with reasonable notice of any such sale
and Tenant shall have the right, but not the obligation, to enter into
agreements directly with the Mortgagee.
(b) Notwithstanding anything to the contrary set forth above, the Mortgagee
may at any time subordinate its Mortgage to this Lease, without Tenant's
consent, by execution of a written document subordinating such Mortgage to this
Lease to the extent set forth therein, and thereupon this Lease shall be deemed
30
prior to such Mortgage to the extent set forth in such written document without
regard to their respective dates of execution, delivery and/or recording. In
that event, to the extent set forth in such written document, the Mortgagee
shall have the same rights with respect to this Lease as though this Lease had
been executed and this Lease or memorandum thereof recorded prior to the
execution, delivery, and recording of the Mortgage. Should Landlord or the
Mortgagee or purchaser desire confirmation of either such subordination or such
attornment, as the case may be, Tenant upon written request, and from time to
time, will execute and deliver without charge and in form satisfactory to
Landlord, the Mortgagee, or the purchaser all instruments and/or documents that
may be requested to acknowledge such subordination and/or agreement to attorn,
in recordable form, within fifteen (15) days of such request.
(c) Tenant agrees that neither the Mortgagee, nor any
Mortgagee-in-possession or purchaser shall be bound by any payment of Rent made
more than thirty (30) days prior to its due date, and any such sum shall be due
and payable on the due date. Tenant further agrees that neither Mortgagee, nor
Mortgagee in-possession or purchaser shall be responsible for the Security
Deposit, Escrow Payments, Option Payment or other similar funds in respect of
this Lease not actually paid to it; liable for any action or omission of any
prior landlord under the Lease; or subject to any offsets or defenses that
Tenant might have against Landlord.
SECTION 33
SIGNS
Tenant shall not without Landlord's prior approval erect any signage for the
Premises, which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, Tenant shall have the right to resign the Premises upon the execution
of the Lease, so long as Tenant complies with local zoning laws.
SECTION 34
Landlord does not, in any way or for any purpose, become a partner of
Tenant in the conduct of its business, or otherwise or joint venturer or a
member of a joint enterprise with Tenant, and nothing herein contained shall
create a principal and agent relationship between Landlord and Tenant. This
Lease establishes a relationship solely of landlord and tenant.
31
SECTION 35
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
payment of Annual Rent or Additional Rent herein stipulated shall be deemed to
be other than on account of the earliest stipulated Annual Rent or Additional
Rent due and payable, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as, Rent be deemed an accord and
satisfaction. Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided in this Lease, at law or in equity.
SECTION 36
HOLDING OVER
Should Tenant hold over in possession of the Premises after the expiration of
this Lease, Tenant shall be deemed to be occupying the Premises from month to
month, subject to such occupancy's being terminated by either party upon at
least thirty (30) days' written notice, at double the Annual Rent in effect at
the expiration of this Lease, all calculated from time to time as though this
Lease had continued, and otherwise subject to all of the other terms, covenants,
and conditions of this Lease insofar as the same may be applicable to a
month-to-month tenancy. Nothing in this Section excludes Landlord's rights of
re-entry or any other right hereunder.
SECTION 37
RECORDATION
This Lease shall be recorded in the Land Records of Cerro Gordo County,
Iowa. The parties may execute a short form of this Lease if permitted by law for
recording purposes containing such terms as Landlord believes appropriate or
desirable. Upon the termination of this Lease Tenant shall execute, acknowledge,
and deliver to Landlord an instrument in writing releasing and quite claiming to
Landlord an right, title, and interest of Tenant in and to the Premises arising
from this Lease or otherwise, all without cost or expense to Landlord.
SECTION 38
WAIVERS
The failure of Landlord to insist on strict performance of any one or more
of the terms, covenants, or conditions hereof shall not be deemed a waiver of
the rights or remedies that Landlord may have, and shall not be deemed a waiver
32
of any subsequent breach or default of any term, covenant, or condition hereof.
No waiver by Landlord of any provision hereof shall be deemed to have been made
unless expressed in writing and signed by Landlord.
SECTION 39
REMEDIES FOR LANDLORD
Any and all remedies available to Landlord for the enforcement of the
provisions of this Lease are cumulative and not exclusive, and Landlord shall be
entitled to pursue either the rights enumerated in this Lease or remedies
authorized by law, or both. Tenant shall be liable for any costs or expenses
incurred by Landlord in enforcing any terms of this Lease, or in pursuing and
legal action for the enforcement of Landlord's rights, including court costs and
reasonable attorney's fees.
SECTION 40
TABLE OF CONTENTS; CAPTIONS
The Table of Contents and the captions appearing in this Lease are inserted
only as a matter of convenience and do not define, limit, construe, or describe
the scope or intent of the Sections of this Lease or in any way affect this
Lease.
SECTION 41
NOTICES
Any and all Notices permitted or required to be given hereunder shall be in
writing and shall be deemed duly given the business day following the day such
Notice shall be deposited into the United States mail, if delivery is by postage
prepaid, registered or certified mail, return receipted mail or the day when
sent by telecopier.
Any Notice in any other manner shall be deemed given when actually
received. Such Notice shall be sent to the respective party at the address or
telecopier number given in this Lease or to any other address or telecopier
number that the respective party may designate by Notice delivered pursuant
hereto. All Notices sent by telecopier shall be sent promptly by first class
mail as well. Nothing herein contained shall be construed to preclude personal
service of any Notice in the manner prescribed for personal service of a summons
or other legal process.
33
SECTION 42
APPLICABLE LAW
This Lease shall be governed by and construed in accordance with the laws
of the State of Iowa, without regards to conflicts of laws principles thereof.
SECTION 43
SUCCESSORS AND INCLUDED PERSONS
All rights, obligations, and liabilities herein given to, or imposed upon,
the respective parties hereto shall extend to and bind the several respective
personal representatives, successors, and assigns of the parties; and if Tenant
shall consist of more than one person or entity, they shall all be bound jointly
and severally by the terms, covenants, and conditions herein. No rights,
however, shall inure to the benefit of any personal representative, successor,
or assign of Tenant unless the Assignment to such party has been approved by
Landlord and the Mortgagee in writing as provided in Section 29.
In any provision of this Lease involving Landlord's or the Mortgagee's
being defended, released from liability, indemnified, held harmless, or not
being deemed to be liable for any action, omission, or circumstance, the term
"Landlord" shall include Landlord and Landlord's contractors and subcontractors
and its or their present and future controlling persons, directors, officers,
employees, and agents, and the term "Mortgagee" shall include Mortgagee's
contractors and subcontractors, and its present and future controlling persons,
directors, officers, employees, and agents.
SECTION 44
WAIVER OF TRIAL BY JURY
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING
OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER PARTY ON ANY
AND EVERY MATTER, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR WITH RESPECT TO THIS
LEASE.
SECTION 45
RIGHTS OF AND CLAIMS AGAINST LANDLORD
(a) Tenant waives all rights to bring a counterclaim in any action brought
by Landlord for the non-payment of Rent or any other summary proceeding thereon.
(b) All obligations of Landlord hereunder shall be construed as covenants,
not conditions.
34
(c) Upon ninety (90) days written notice, Landlord may transfer its
interest in the Premises and this Lease, at any time and from time to time,
provided however, in the event of such transfer of interest, Tenant shall be
entitled to receive the $275,000 Option Payment, provided that the Tenant's
Option has not expired and any assignee of the Landlord has not acknowledged and
confirmed Tenant's rights under Section 8 of the Lease. If Landlord transfers
its estate in the Premises, or if Landlord further leases the Premises subject
to this Lease, then Landlord shall be relieved of all obligations of Landlord
thereafter arising expressed in this Lease or implied by law. Landlord and its
successors shall be relieved of their obligation to refund the Security Deposit,
Escrow Payments, and other similar funds to Tenant which they have received from
Tenant or a predecessor Landlord to the extent they transfer such amounts to
their respective transferees, and such transferees acknowledge their obligation
under this Lease to return said deposit to Tenant.
(d) In the absence of evidence satisfactory to Landlord of an Assignment of
this Lease to which Landlord and the Mortgagee consented and which included an
assignment of the right to receive any deposit made by Tenant or any balance
thereof, Landlord may return the Security Deposit, Escrow Payments, or any
balance thereof to Tenant originally named herein, regardless of one or more
Assignments of this Lease.
(e) If Tenant obtains a money judgment against Landlord or its successors
or assigns under any provisions of, or with respect to this Lease or on account
of any matter, condition, or circumstance arising out of the relationship of the
parties under this Lease, Tenant's occupancy of the Premises, or Landlord's
ownership of the Premises, Tenant shall be entitled to have execution upon such
judgment on any assets of Landlord. provided, however, that this sentence shall
be inapplicable to the extent that the judgment against Landlord is covered by
insurance.
(f) At any time when there is an outstanding Mortgage covering Landlord's
interest in the Premises, Tenant may not exercise any remedies for default by
Landlord hereunder unless and until the Mortgagee shall have received written
notice of such default and a reasonable time for curing such default after
Landlord's period to cure shall have elapsed.
SECTION 46
CALCULATION OF TIME
In computing any period of time prescribed or allowed by any provision of
this Lease, the day of the act, event, or default from which the designated
period of time begins to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday, Sunday, or a legal
holiday, in which event the period runs until the end of the next day which is
not a Saturday, Sunday, or legal holiday. Unless otherwise provided herein, a
notice and other periods expire as of 5:00 p.m. (local time in Iowa) on the last
day of the notice or other period.
35
SECTION 47
SEVERABILITY; REDUCTION OF CHARGES
If the application of any term or provision of this Lease, whether in whole
or in part, be held invalid or unenforceable in general or in any instance, the
remainder of this Lease shall not be affected by such holding and shall be fully
valid and enforceable.
In the event that any late charge, interest rate, or other payment provided
herein exceeds the maximum applicable charge legally allowed, such late charge,
interest rate, or other payment shall be reduced to the maximum legal charge,
rate, or amount.
SECTION 48
C0UNTERPARTS
This Lease may be executed in multiple counterparts or in duplicate
including by facsimile or PDF signature, and when so executed by all parties
shall constitute one agreement and shall not affect the validity, enforceability
or binding effect of this Lease.
SECTION 49
TOTAL AGREEMENT
This Lease contains the entire agreement between the parties and cannot be
changed or modified except by a written instrument subsequently executed by the
parties hereto.
SECTION 50
NO MERGER
There shall be no merger of this Lease or of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof by reason of the
fact that the same person, firm, corporation, or other legal entity may acquire
or hold, directly or indirectly, this Lease or the leasehold estate and the fee
estate in the Premises or any interest in such fee estate, without the prior
written consent of the Mortgagee.
SECTION 51
TIME OF THE ESSENCE
Time is of the essence in all provisions of this Lease to be performed by
or on behalf of Tenant.
36
SECTION 52
COMMERCIAL PURPOSE
The parties stipulate that the Premises is being leased exclusively for
business, commercial, manufacturing, mercantile, or industrial purposes.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed, under seal, as of the date and year first above written.
ATTEST/WITNESS: XXXXX PROPERTIES, L.L.C., LANDLORD
/s/ Xxxxx Xxxxx
--------------------------------- -----------------------------------
BY: Xxxxx Xxxxx, Managing Member
CLEAR LAKE SPECIALTY PRODUCTS, INC.,
LANDLORD
By: /s/ Xxxxx Xxxxx
--------------------------------- -----------------------------------
Xxxxx Xxxxx, President
THE SOUTH STREET BAKERY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxxxx, President
37
EXHIBIT A
DESCRIPTION OF THE PREMISES
DESCRIPTION OF THE EQUIPMENT
38
Schedule 1
Monthly Allocation of Annual Rent towards payments
39
EXHIBIT B
See attached Copy of Option Agreement
40
