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EXHIBIT 10.19
LEASE
THIS LEASE (the "Lease") is made and entered into this 1st day of
December, 1999, by and between AmerUs Properties, Inc., (hereinafter called
"Landlord"), and AmerUs Life Insurance Company (hereinafter called "Tenant").
For and in consideration of the rental and of the covenants and agreements
hereinafter set forth to be kept and performed by Tenant, Landlord hereby leases
to Tenant and Tenant hereby leases from Landlord, the Building or Buildings and
the Premises as defined below, for the term and at the rental amount, and
subject to and upon all of the terms, covenants, and agreements hereinafter set
forth. This Lease supercedes and replaces all previous leases between the
parties for the property leased hereunder.
1.0 DEFINITIONS
1.1 Building and Buildings. The word "Building" as used in this
Lease shall mean the 4-story building located at 000 - 0xx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000.
1.2 Personal Property. Intentionally Deleted.
1.3 Premises. The word "Premises" as used in this Lease shall mean
the fee or leasehold interest in the underlying ground and
driveways and parking areas outside of the Building of real
property defined on Exhibit "A" attached hereto.
1.4 Leased Property. The words "Leased Property" as used in this
Lease shall mean, collectively, the Building and the Premises.
1.5 Equipment. The word "Equipment" as used in this Lease shall
mean, collectively, the furniture, fixtures and equipment
owned by Tenant and located in any Building or on any Premises
1.6 Operations. The Equipment, inventory, contract rights,
leasehold improvements, and other items of personal property,
whether tangible or intangible, used by the Tenant in the
operation of such insurance company.
1.7 Taxes. The real property taxes and personal property taxes
applicable to any Leased Property and Tenant's Operations
pursuant to Sections 4.2 and 4.3.
2.0 TERM
2.1 The Term of this Lease shall be for a period of five (5) years
and one (1) month, commencing on the 1st day of December, 1999
(the "Rent Commencement Day") and ending on the 31st day of
December, 2004. A "Lease Year" shall commence on the Rent
Commencement Day and end 12 months thereafter.
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2.2 Options to Renew Lease. Tenant shall have the option upon nine
(9) months' prior written notice in each instance to renew the
Lease for two (2) additional terms of five (5) years each on
the same terms and conditions as herein set forth except that
the base rent for the first option shall be $570,000.00 and
the base rent for the second option shall be at "market
price". Should the parties be unable to agree on the "market
price", the Landlord shall select an appraiser, the Tenant
shall select a second appraiser and the two appraisers shall
appoint a third appraiser to determine "market price".
3.0 RENT.
Tenant shall pay to Landlord as rent for the Lease Property the sum of
$520,000.00 per annum payable $43,333.33 per month in advance, without
deduction, offset, abatement for casualty, condemnation or other
reason, prior notice or demand, in lawful monies of the United States
of America.
4.0 TAXES.
4.1 Payment of Taxes. Tenant shall pay, as additional rent
hereunder, all real property taxes applicable to the Leased
Property during the term of the Lease and shall assume all
obligations for real property taxes accrued or existing for
calendar year 1999 prior to the Rent Commencement Date.
Payment of taxes shall be made to Landlord on or before ten
(10) days prior to the due date of such taxes, and Landlord
shall promptly remit the payment to the appropriate taxing
authorities. Landlord shall be responsible for any interest or
penalties associated with taxes paid subsequent to the due
date therefore only in the event Landlord receives payment
from Tenant on or before ten (10) days prior to such due date.
In the event such real property taxes required to be paid by
Tenant cover any period of time after expiration of the term
of this Lease, Tenant's share of such taxes shall be equitably
prorated to cover only the period of time within the fiscal
tax year during which this Lease is in effect. Landlord shall
forward copies of all tax bills within fifteen (15) days after
Landlord's receipt thereof.
4.2 Definition of "Real Property Taxes". As used herein, the term
"real property tax" shall include any form of assessment,
license fee, rent tax, sales tax on rental receipts, levy, or
tax imposed by any authority having the direct or indirect
power to tax, including any city, county, state, or federal
government, or any school, agricultural, lighting, drainage,
or other improvement district thereof, as against any legal or
equitable interest of Landlord in any Leased Property or in
the real property of which any Premises is a part, as against
Landlord's right to rent or other income therefrom.
4.3 Personal Property Tax. Tenant shall pay prior to delinquency
all taxes assessed against and levied upon leasehold
improvements, fixtures, furnishings and Equipment.
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4.4 If Tenant should fail to pay any taxes, assessments or
governmental charges required to be paid by it hereunder, in
addition to any other remedies provided herein, Landlord may,
in its sole discretion, pay such taxes, assessments and
governmental charges. Any sums so paid by Landlord shall be
deemed to be additional rental owing by Tenant to Landlord and
due and payable upon demand as additional rent with interest
at the rate of twelve percent (12.00%) from the date of the
payment by Landlord.
4.5 If at any time during the term of the 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
from Tenant and/or any assessment, levy or charge measured by
or based in whole or in part, upon such rents, then all such
taxes, assessments, levies or charges, or the part thereof so
measured or based, shall be deemed to be included with the
term taxes for the purposes hereof and shall be paid by
Tenant.
4.6 Tenant may contest by appropriate proceedings, the amount,
validity or application of any taxes by appropriate
proceedings diligently conducted in good faith provided that
(a) such proceedings shall suspend the collection thereof, (b)
no part of the Leased Property or of any rent would be subject
to loss, sale or forfeiture before determination of any
contest, (c) Landlord would not be subject to any criminal
liability for failure to pay, (d) such proceedings shall not
affect the payment of rent hereunder or prevent Tenant from
using any Leased Property for its intended purposes, and (e)
Tenant shall notify Landlord of any such proceedings at which
the amount of contest exceeds $10,000.00 within 20 days after
the commencement thereof, and shall describe such proceedings
in reasonable detail. Tenant will conduct all such contests in
good faith and with due diligence and will, promptly after the
determination of such contest, pay and discharge all amounts
which shall be determined to be payable therein. In the event
Tenant elects to dispute and contest any taxes, it shall
provide Landlord with a surety bond in the amount of taxes in
dispute.
4.7 Landlord covenants and agrees that if there shall be any
refunds or rebates of the Taxes paid by Tenant, such refunds
or rebates shall belong to Tenant. Any refunds received by
Landlord shall be deemed trust funds and as such are to be
received by Landlord in trust and paid to Tenant forthwith.
Tenant will, upon the request of the Landlord, sign any
receipts which may be necessary to secure the payment of any
such refunds or rebates.
5.0 USE.
5.1 Use. The Leased Property shall be used and occupied by Tenant
only as general office use. Tenant shall not change the use of
any Leased Property as set forth above without Landlord's
prior written consent, which consent shall not be
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unreasonably withheld. Tenant will not do or permit any act or
thing that is contrary to any legal requirement or insurance
requirement, or that impairs the value of any Leased Property
or any part thereof or that materially increases the dangers,
or poses unreasonable risk of harm, to third parties (in, on
or off any Leased Property) arising from activities thereon,
or that constitutes a public or private nuisance or waste to
any Leased Property or any part thereof. Tenant shall not
conduct any activity on any Premises or use any Leased
Property in any manner (i) which would cause any Leased
Property to become a hazardous waste treatment, storage or
disposal facility within the meaning of, or otherwise bring
any Leased Property within the ambit of, the Resource
Conservation and Recovery Act of 1976 as amended, 42
U.S.C.ss.6901 et seq., or any similar state law or local
ordinance; (ii) so as to cause a release or threat of release
of hazardous waste from any Leased Property within the meaning
of, or otherwise bring any Leased Property within the ambit
of, the Comprehensive Environmental Response Compensation and
Liability Act of 1980 as amended, the Toxic Substance Control
Act 15 X.X.X.xx. 2601, et seq. and the Federal Hazardous
Materials Transportation Act 49 U.S.C.ss.1801 et seq., or any
similar state law or local ordinance or any other
environmental law; or (iii) so as to cause a discharge of
pollutants or effluents into any water source or system, or
the discharge into the air of any emissions, which would
require a permit under the Federal Water Pollution Control
Act, 33 U.S.C.ss.1251, et seq., or the Clean Air Act, 42
U.S.C.ss.1857, et seq., or any similar state or local
ordinance.
5.2 Compliance with the Law. Tenant shall, at Tenant's expense,
comply promptly with all applicable statutes, ordinances,
rules, regulations, orders and requirements in effect during
the term hereof, regarding the use by Tenant of any Leased
Property. Tenant shall not use or permit the use of any Leased
Property in any manner that will tend to create waste or a
nuisance, or, otherwise expose Landlord or any Leased Property
to any liability.
5.3 Condition of Leased Property. Tenant hereby accepts all of the
Leased Property in their condition as of the date of the
possession hereunder, subject to all applicable zoning,
municipal, county and state laws, ordinances, and regulations
governing and regulating the use of any Leased Property, and
accepts this Lease subject thereto and to all matters
disclosed thereby, and by any exhibits attached hereto. Tenant
acknowledges that neither the Landlord nor Landlord's agent
has made any representation or warranty as to the suitability
of any Leased Property for the conduct of the Tenant's
business.
5.4 Tenant's Covenants and Indemnity. Tenant shall not dispose of
or otherwise allow the release of any hazardous waste or
materials in, on, or under the Premises, or any adjacent
property or in any improvements placed on the Premises. Tenant
represents and warrants to Landlord that Tenant's intended use
of any Leased Property does not involve the use, production,
disposal or bringing onto any Premises of any hazardous waste
or materials. Tenant shall promptly comply with all statutes,
regulations and ordinances, and with all orders, decrees
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or judgements of governmental authorities or courts having
jurisdiction, relating to the use, collection, treatment,
disposal, storage, control, removal or clean up of hazardous
waste or materials, in, on, or under any Leased Property or
any adjacent property, or incorporated in any improvements, at
Tenant's expense.
Whether or not Tenant has actual knowledge of the release of
hazardous waste or materials in, on, or under any Leased
Property or any adjacent property as the result of Tenant's
use of any Leased Property, Tenant shall reimburse Landlord
for the full amount of all costs and expenses incurred by
Landlord in connection with such compliance activities, and
such obligation shall continue even after the termination of
this Lease. Tenant shall notify Landlord immediately of any
release of any hazardous waste or materials in, on or under
any Leased Property.
Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all claims, damages, demands, losses,
liens, liabilities, obligations, fines, penalties, charges,
judgements, clean up costs, remedial actions and other
proceedings and costs and expenses (including, without
limitation, attorneys' fees and disbursements) which may be
imposed on, incurred or paid by, or asserted against Landlord
or any Leased Property by reason of, or in connection with (i)
any misrepresentation or breach of warranty, or (ii) the acts
or omissions of Tenant, or any sublessee or other person for
whom Tenant would otherwise be liable, resulting in the
release of any hazardous waste or materials, or (iii) arising
directly or indirectly from or out of or in any way connected
to Tenant's use, storage, ownership, possession, or control of
hazardous substances in, on or under any Leased Property which
directly or indirectly result in the Leased Property or any
other property becoming contaminated with hazardous
substances. Tenant hereby agrees upon notification to clean up
from any Leased Property or any other property any
contamination caused by its activity, including, without
limitation, use, storage, ownership, possession or control of
hazardous substances in, on or under any Leased Property,
including, without limitations, any remedial action required
by applicable governmental authorities. Tenant further
acknowledges that it will be solely responsible for all costs
and expenses relating to the clean up of hazardous substances
from any Leased Property or any other properties which become
contaminated with hazardous substances as a result of Tenant's
activities in, on or under any Leased Property.
The terms "hazardous substances" and "hazardous waste or
materials" shall mean: Any substance or material defined or
designated as a hazardous or toxic waste, hazardous or toxic
material, a dangerous, hazardous, toxic, or radioactive
substance, or other similar term, by any federal, state or
local environmental statute, regulation, or ordinance
presently in effect or that may be promulgated in the future,
as such statutes, regulations, and ordinances may be amended
from time to time including, but not limited to, the statutes
listed below:
Resource Conservation and Recovery Act of 1976, as amended, 42
U.S.C. ss. 6901 et seq.
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Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 as amended, 49 U.S.C. ss. 1801 et. seq.
Clean Air Act, 42 U.S.C. ss. 1857
Water Pollution Control Act, Federal Clean Water Act, 33
U.S.C.ss.1251, et seq.
Insecticide, Fungicide, and Rodenticide Act, Federal Pesticide
Act, 7 U.S.C., Paragraph 13, et seq.
Toxic Substances Control Act, 15 U.S.C. ss.2601, et seq.
Safe Drinking Water Act, 42 U.S.C. ss.300(f), et seq.
5.5 Air Quality. Tenant shall pay the cost of a contract with Xxxx
X. Xxxx Associates, Ltd. or another qualified professional
providing for the performance of a five (5) year quarterly air
monitoring program which cost is estimated at $37,000.00 over
the five (5) year term and a five (5) year annual employee
notification/training program which cost is estimated at
$2,500.00 over the five (5) year period and shall pay the cost
of the installation of OSHA required signs and labels at the
leased property.
5.6 Insurance Cancellation. Notwithstanding the provisions of
Section 5.1 above, no use shall be made or permitted to be
made of any Leased Property nor acts done which will cause the
cancellation of any insurance policy covering any Leased
Property or any other property of which any Premises may be a
part.
5.7 After notice to Tenant and reasonable opportunity for Tenant
to effect such compliance, Landlord may, but is not obligated
to, enter upon any Leased Property and take such actions and
incur such costs and expenses to effect such compliance as it
deems advisable to protect its interest in any Leased
Property; provided, however, that Landlord shall not be
obligated to give Tenant notice and an opportunity to effect
such compliance if (i) such delay might result in material
adverse harm to Landlord or any Leased Property, (ii) Tenant
has already had actual knowledge of the situation and a
reasonable opportunity to effect such compliance, or (iii) an
emergency exists.
6.0 UTILITIES.
Tenant shall pay prior to delinquency for all water, gas, heat, light,
power, telephone, sewage and city assessments, air conditioning,
ventilation, janitorial, landscaping, fire protection monitoring
service, solid waste removal, snow removal, elevator maintenance,
security, pest control, window washing, and all other materials and
utilities supplied to any Leased Property. Landlord has no
responsibility to maintain or pay for any utilities on any Leased
Property.
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7.0 MAINTENANCE AND REPAIRS: ALTERATIONS AND ADDITIONS.
7.1 Management. Tenant acknowledges that Landlord or its successor
may enter into a property management contract with a third
party or entity related to Landlord for the management of the
subject property. The consideration for said services shall
not exceed $50,000.00 annually. Tenant shall be responsible to
Landlord for such cost. Tenant shall also reimburse Landlord
for actual cost of on-site maintenance personnel who are not
employees of Tenant.
7.2 Maintenance and Repairs. Tenant shall at its sole cost and
expense keep and maintain all Leased Property, including
sidewalks, landscaping and driveways located on the Premises,
in good working order and condition and repair, and shall
suffer no waste with respect thereto. Tenant shall at its sole
cost and expense make all needed repairs to and replacements
of the Leased Property, interior and exterior, structural and
nonstructural, ordinary and extraordinary, including but not
limited to any roof, air conditioning and heating systems,
replacements or cracked or broken glass, repair of parking
areas and driveways, and shall keep the plumbing units, pipes
and connections free from obstruction and protected against
ice and freezing. Landlord has no responsibility to maintain
or pay for any part of the maintenance or replacement of the
Leased Property.
7.3 Surrender. On the last day of the term hereof, or on any
sooner termination, Tenant shall surrender the Leased Property
to Landlord in good condition, broom clean, ordinary wear and
tear excepted. Tenant shall repair any damage to the Leased
Property caused by the removal of Tenant's Equipment pursuant
to Section 7.4 below, which repairs shall include the patching
and filling of holes thereof, the repair of structural damage
of any kind or type, the repair or replacement (but only to
the extent required) of all damaged mechanical equipment and
all heating, air conditioning, and ventilating equipment.
7.4 Landlord's Rights. If Tenant fails to perform Tenant's
obligations under any of the provisions of this Section 7,
Landlord shall give Tenant written notice to do such acts as
are reasonably required to maintain any Leased Property in
good order and condition. If, within thirty (30) days of such
notice, Tenant fails to commence to do the work and diligently
prosecute it to completion, then Landlord shall have the
right, (but not the obligation) at Tenant's expense to take
such action or expend such funds necessary (i) to prevent
immediate physical deterioration to the Premises or (ii) to
comply with any actions by governmental bodies or neighboring
landowners. Any amount so expended by Landlord shall be paid
by Tenant within ten (10) days after billing for same, with
interest at twelve percent (12.00%) per annum from the date of
such work. Landlord shall have no liability to Tenant for any
damage, inconvenience, or interference with the use of any
Leased Property by Tenant as a result of performing any such
work.
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7.5 Alterations and Additions.
(a) Tenant shall not make any alterations to any structural
component of any Building (including, but not limited to
exterior walls, foundations and roof), or utility
installations on or about any Premises without the express
written consent of the Landlord; provided, however, that the
Landlord will not unreasonably delay or withhold consent. As
used in this section, the term "utility installations" shall
include ducting, power plants, space heaters, conduit, and
wiring.
(b) Landlord shall have the right to approve any contractors or
sub-contractors for work on any Leased Property which is
reasonably expected to exceed $50,000.00, which approval shall
not be unreasonably withheld.
(c) All alterations, changes, additions, improvements, and utility
installations (whether or not such utility installations
constitute fixtures of Tenant) which may be made to any Leased
Property, shall at the expiration or earlier termination of
this Lease, become the property of the Landlord and remain
upon and be surrendered with the Leased Property. The
Equipment, inventory and any other personal property, to the
extent owned by the Tenant, other than that which is affixed
to any Building or Premises so that it cannot be removed
without material damage to such Building or Premises, shall
remain the property of the Tenant, and may be removed by the
Tenant subject to the provisions in Section 7.2, at any time
during the term of this Lease when Tenant is not in default of
any of the provisions of this Lease.
(d) Landlord shall be deemed to have given its consent to a
request pursuant to this Section 7.4 if it fails to respond to
Tenant's written request within fifteen (15) days after
receipt thereof and if the request states on its face that
failure to respond in a fifteen (15) day period will be deemed
to be a consent.
8.0 ENTRY BY LANDLORD.
Landlord and Landlord's agents, shall have the right on reasonable
prior notice to enter any Building or Premises to inspect the same or
to maintain or repair the Leased Property or any portion thereof
(subject to Section 7.3 hereof), or to show any Leased Property to
prospective purchasers or lenders, or during the last nine (9) months
of the term of the Lease to any prospective Tenant. Landlord shall have
the right to use any and all means which Landlord may deem proper to
open the door to any Building in an emergency of any type.
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9.0 LIENS.
Tenant shall keep all Leased Property free from any and all liens
arising out of work performed, materials furnished, or obligations
incurred by Tenant and shall indemnify and hold harmless and defend the
Landlord from an and all liens and/or encumbrances arising out of any
work performed or material furnished by or at the direction to the
Tenant. In the event that any such lien is imposed, Tenant shall have
thirty (30) days from the date of imposition to cause the lien to be
released or record or bonded around. Failure to do so by Tenant shall
allow Landlord, in addition to all other remedies provided herein by
law, the right, but by no means the obligation, to cause the lien to be
released by such means as it shall deem proper, including payment of
the claim giving rise to the lien. All such sums paid by Landlord and
all expenses incurred by it in connection therewith, including
attorney's fees and costs, shall be payable to Landlord by Tenant on
demand with interest at twelve percent (12.00%) per annum. Landlord
shall have the right at all times to post and keep posted on any Leased
Property any notices permitted or required by law, or which the
Landlord shall deem proper, for the protection of the Landlord and any
Leased Property, and/or any other party having an interest therein,
from mechanic's and materialman's liens. The Tenant shall give to
Landlord at least ten (10) days written notice of the expected date of
commencement of any work relating to alterations and/or additions to
the Leased Property where approval is required.
10.0 INDEMNITY.
10.1 Indemnity. Tenant shall defend, indemnify, and hold harmless
Landlord from and against any and all claims arising from
Tenant's use of any Leased Property or the conduct of its
business or from any activity, work, or thing done, permitted,
or suffered by Tenant in or about any Leased Property and
shall further defend, indemnify, and hold harmless Landlord
from and against any and all claims arising from any breach,
or default in the performance of any obligation on Tenant's
part to be performed under the terms of this Lease, or arising
from any act or negligence of Tenant, or any of its agents,
contractors, or employees, and from and against any and all
costs, attorneys fees, expenses, and liabilities incurred in
connection with such claim or any action or proceeding brought
thereon. In case any action or proceeding be brought against
Landlord by reason of any such claim whatsoever, Tenant, upon
notice from Landlord, shall defend same at Tenant's expense by
counsel reasonably satisfactory to Landlord. However, Tenant
shall not be liable for any damage or injury occasioned by the
negligence or intentional acts of Landlord or its designated
agents, or employees.
10.2 Exemption of Landlord from Liability. Except for intentional
acts or gross negligence of the Landlord, its agents and
employees, Landlord shall not be held liable for injury or
damage which may be sustained by the person, goods, wares,
merchandise, or property of the Tenant, or by any agent or
other person claiming by or under Tenant which might be caused
by or resulting from fire, steam, electricity, gas, water, or
rain, which may leak or flow from or into any part of
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any Leased Property or from breakage, leakage, obstruction, or
other defects of the pipes, sprinklers, wires, appliances,
plumbing, heating, air conditioning, ventilating, or lighting
fixtures of the same, whether the said damage or injury
results from conditions arising in, on or under any Building
or Premises or from other sources. Landlord shall not be
liable for any damages arising from any act or neglect of any
other tenant (if any) of any Building or Premises. Tenant
shall defend, indemnify and hold harmless Landlord from and
against any and all claims by any person which may arise from
the matters mentioned in this Section 10.2 except for
intentional acts or negligence of the Landlord, its agents and
employees.
11.0 INSURANCE.
11.1 Liability Insurance. Tenant shall, at Tenant's expense,
procure and maintain at all times during the term of this
Lease, a policy of comprehensive public liability insurance
insuring Landlord and Tenant against any liability arising out
of the ownership, use, occupancy, or maintenance of any Leased
Property. Such insurance shall at all times be in an amount of
not less than $2,000,000.00. The limits of such insurance
shall not limit the liability of the Tenant. All insurance
required under this Section 11 shall be with companies rated A
or better in Best's Insurance Guide. Tenant shall deliver to
Landlord certificates of insurance evidencing the existence
and amounts of such insurance with loss payable clauses
satisfactory to Landlord, provided that in the event Tenant
fails to procure and maintain such insurance, Landlord may
(but shall not be required to), procure same at Tenant's
expense after ten (10) days prior written notice. 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. All such policies
shall be written as primary policies, not contributing with
and not in excess of coverages which the Landlord may carry.
Tenant shall, within twenty (20) 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 the
Tenant, which amounts shall be payable by Tenant on demand.
Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies which the Tenant may have in
force, provided such blanket policies expressly afford
coverage of any Leased Property and to Landlord as is required
by this Lease.
11.2 Property Insurance. Landlord shall, at Tenant's expense,
procure and maintain at all times during the term of this
Lease, the policy or policies of insurance covering loss or
damage to any Leased Property in the amount of the full
replacement value thereof, and providing protection against
all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, sprinkler
leakage (if applicable), flood (to the extent that the
Property is in a flood plain), and special extended peril (all
risk). All such policies shall be written as primary policies,
not contributing with and not in excess of coverages which the
Landlord may carry. Landlord shall order such insurance and
charge the cost to the Tenant, which amounts shall be payable
by Tenant on demand. If
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Tenant determines that the premium cost is too high, Tenant
may deliver quotes from three other insurer of similar or
better Best rating for similar coverage and provided the
quotes show more than a 10% reduction in premium rate,
Landlord will select one of the three insurers to provide the
insurance for the Leased Premises. Such insurance shall
provide for payment of losses thereunder to Landlord or the
holder of a first mortgage or deed of trust on any of the
Leased Property. Any loss proceeds shall be made available for
the purposes of replacing or rebuilding the pertinent Leased
Property if required under Section 12 and in which event, such
funds shall be segregated from the general funds of Landlord.
11.3 Waiver of Subrogation. Landlord and Tenant 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.
Landlord and/or Tenant shall give notice to the insurance
carrier or carriers involved that the foregoing mutual Waiver
of Subrogation option is contained in this Lease. The waivers
provided for in this Section 11.3 shall be applicable and
effective only in the event such waivers are obtainable from
the insurance carriers concerned.
12.0 DAMAGE TO PREMISES.
12.1 Partial or Total Damage -Insurance Available. In the event of
damage causing a partial or total destruction of the Building
during the term of this Lease and there is made available to
the Landlord, pursuant to Section 11.0 above, insurance
proceeds for such damage, Landlord shall utilize all such
insurance proceeds and cause the Building to be promptly
repaired to the condition existing immediately prior to such
damage, with this Lease to continue in full force and effect.
Tenant shall deposit with Landlord or make available to
Landlord only that amount equal to the deductible provided
under said insurance contract within ten (10) days after
notice to Tenant by Landlord. Provided, however, if Landlord
has not begun reconstruction or repairs within thirty (30)
days after the later of (i) receipt of available insurance
proceeds or (ii) receipt of the deductible payment, or it is
not reasonably anticipated that such repair or reconstruction
can be completed within a 180-day period after commencement or
reconstruction, Tenant may terminate this Lease by written
notice to Landlord along with the insurance deductible.
If after commencement of construction the Building is not
completed and ready for occupancy within 180 days after the
commencement of construction, subject to Force Majeure causes,
Tenant may terminate this Lease by written notice to the
Landlord. For purposes hereof, a Force Majeure cause shall be
an act of God, weather, earthquake, strike, insurrection, war
or other event outside the control of Landlord, during which
period the 180-day period referenced above shall be abated.
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12.2 Repair Not Permitted. In the event that the Building may not
be repaired herein under applicable laws and regulations
notwithstanding the availability of insurance proceeds, this
Lease shall be terminated as to such Leased Property effective
with the date of the damage occurrence, and Landlord shall be
entitled to retain the insurance proceeds pertaining to the
Leased Property and receive from Tenant the amount of the
insurance deductible.
12.3 Damage to Building or Personal Property During Last Two Years
of Term. In the event of any total or partial destruction to
the Building occurring during the last two (2) year period of
the term of this Lease (or any extension thereof), and
notwithstanding the provisions of Sections 12.1 above,
Landlord or Tenant shall have the right for the longer of (i)
a period of sixty (60) days following the event giving rise to
the casualty or damage, or (ii) the period of fifteen (15)
days following the receipt of insurance proceeds to terminate
this Lease as to such Leased Property. In the event of such
termination, Landlord shall be entitled to retain the
insurance proceeds and receive from Tenant the amount of the
insurance deductible. This Section shall not apply to a
casualty during any period in which the remaining Lease Term
(including any properly exercised renewal options) is greater
than two (2) years.
13.0 CONDEMNATION.
If all, or a substantial portion of any Leased Property shall be taken
or appropriated for public or quasi-public use by the right of eminent
domain, (with or without litigation), or transferred by agreement in
connection with such public or quasi-public use, either Landlord or
Tenant shall have the right at is option (exercisable within thirty
(30) days of the receipt of notice of such taking) to terminate this
Lease as to such Leased Property as of the date possession is taken by
the condemning authority. A substantial portion of the Leased Property
shall be deemed to be taken or appropriated if more than twenty percent
(20.0%) of the Building is subject to such taking. If all or a
substantial portion of the parking shall be taken, Landlord shall
immediately procure equivalent substitute parking acceptable to Tenant,
which acceptance shall not be unreasonably withheld. Absent acceptance,
Tenant shall have the right to terminate this Lease. No award for any
partial or entire taking shall be apportioned, and except as provided
in the next sentence, Tenant hereby assigns to Landlord any award which
may be made in such taking appropriation, or condemnation, together
with any and all rights of Tenant now or hereafter arising in such
award. Landlord has no interest, however, in any award made to Tenant
for the taking of Equipment belonging to Tenant; or for the
interruption of or damage to Tenant's business, or to Tenant's
unamortized cost of leasehold improvements. Any award to the Landlord
by reason of such partial taking shall be made available for
reconstruction, should the Tenant so elect, and shall be segregated
from the Landlord's general funds. No temporary taking of any Leased
Property and/or of the Tenant's rights therein, or under this Lease,
shall terminate this Lease as to such Leased Property or give Tenant
any right to any abatement of rent. Provided, however, if it is
reasonably anticipated that such temporary taking will extend for any
greater than 180 days, or if such temporary taking actually extends
beyond such 180 period, subject to Force Majeure
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causes, Tenant may, by written notice to Landlord, terminate this
Lease. Any award made for such temporary taking shall belong entirely
to Tenant unless Tenant terminates this Lease, in which event the award
shall belong entirely to Landlord.
14.0 ASSIGNMENT AND SUBLETTING.
14.1 Landlord's Consent Required. Tenant shall not assign,
transfer, mortgage, pledge, hypothecate, or encumber this
Lease or any interest therein, nor permit such assignment by
operation of law, and shall not sublet any Leased Property or
any part thereof, without the prior express written consent of
the Landlord, which consent shall not be unreasonably
withheld. Any attempt to do so without such consent being in
hand, shall be wholly void and shall constitute a breach of
this Lease.
14.2 No Release of Tenant. No consent by Landlord to any assignment
or subletting by Tenant shall relieve Tenant of any
obligations to be performed by Tenant under this Lease,
whether occurring before or after such assignment or
subletting. The consent by Landlord to any assignment or
subletting shall not relieve Tenant from the obligation to
obtain Landlord's express written consent to any other
assignment or subletting. The acceptance of any rent by
Landlord from any person shall not be deemed to be a waiver by
Landlord of any provision of this Lease, or to be deemed a
consent to any assignment, subletting, or other transfer.
14.3 By Landlord. This Lease shall be fully assignable by Landlord
or its assigns.
14.4 Permitted Assignments. Notwithstanding anything to the
contrary in this Lease, Tenant may assign the Lease without
Landlord's consent to:
(a) a parent or subsidiary corporation of Tenant, or
(b) the surviving entity in the event of the merger,
consolidation or acquisition of Tenant, or
(c) an entity which purchases all or substantially all of
Tenant's assets, or
(d) to any person or entity which purchases all or
substantially all of the stock of Tenants
provided that in (a) through (d) above, the proposed assignee
meets each of the following criteria:
(i) The proposed assignee has a net worth (at
the time of assignment) of at least
$150,000,000.00.
(ii) The proposed assignee's use of the Premises
conforms to the permitted use under this
Lease.
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(iii) Landlord (or any of its affiliates) has not
had problems (including, but not limited to,
material defaults, late payments,
bankruptcies, court cases, maintenance
concerns, or other property management
problems) with the proposed assignee.
15.0 SUBORDINATION
15.1 Subordination. At Landlord's option, this Lease shall be
subject and subordinate to all ground or underlying leases
hereinafter executed affecting any Leased Property, and to the
lien of any mortgages or deeds of trust in any amount or
amounts whatsoever now or hereafter placed on or against the
land or improvements or either thereof, of which the Premises
are a part, without the necessity of the execution and
delivery of any further instruments, on the part of the
Tenant, to effectuate such subordination. If any mortgagee,
trustee, or ground lessor shall elect to have this Lease prior
to the lien of its mortgage deed of trust or ground lease, and
shall give written notice thereof to Tenant, this Lease shall
be deemed prior to such mortgage, deed of trust or ground
lease, on the date of the recording thereof.
15.2 Subordination Agreements. Tenant covenants and agrees to
execute and deliver upon demand, without charge, such further
instruments evidencing such subordination of this Lease to
such ground or underlying leases and to the lien of any such
mortgages or deeds of trust as may be required by Landlord.
15.3 Quiet Enjoyment. Landlord covenants and agrees with Tenant
that upon Tenant paying rent and other monetary sums due under
this Lease, performing its covenants and conditions of the
Lease and upon recognizing any subsequent lessor under a
ground or underlying lease or any purchaser as Landlord,
Tenant shall and may peaceably and quietly have, hold, and
enjoy the Leased Property for the term of the Lease as against
any adverse claim of Landlord or any party claiming under
Landlord subject, however, to the terms of the Lease.
15.4 Attornment. In the event any proceedings are brought for
default under any ground or underlying lease, or in the event
of foreclosure or the exercise of a power of sale under any
mortgage or deed or trust made by Landlord covering any Leased
Property, the Tenant shall attorn to the lessor under the
ground or underlying lease or the purchaser upon any such
foreclosure, or sale, and recognize such lessor or purchaser
as the Landlord under this Lease, provided said lessor or
purchaser expressly agrees in writing to be bound by the terms
of this Lease.
15.5 Non-Disturbance. Tenant's agreement to subordinate or attorn
pursuant to Section 15.1 and 15.4 is expressly contingent upon
Tenant receiving a commercially reasonable and acceptable
non-disturbance agreement at no cost to Tenant.
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16.0 DEFAULT, REMEDIES
16.1 Event of Default. The occurrence of any of the following shall
constitute a material default and breach of this lease by
Tenant:
(a) Any failure by Tenant to pay the rent or any other
monetary sums required to be paid hereunder (where
such failure continues for five (5) days after
written notice by Landlord to Tenant);
(b) The abandonment or vacation of any Leased Property by
the Tenant;
(c) A failure by Tenant to observe and perform any other
provision of this Lease to be observed or performed
by Tenant, where such failure continues for thirty
(30) days after written notice thereof by the
Landlord to the Tenant. However, if the nature of the
default is such that the default cannot be reasonably
cured within the thirty (30) day period, Tenant shall
not be deemed to be in default if Tenant shall within
such period of time commence such cure and thereafter
diligently prosecute the same to completion;
(d) The making by Tenant of any general assignment or
general arrangement for the benefit of creditors; the
filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt, or of a petition for
reorganization or arrangement under any law relating
to bankruptcy; the appointment of a trustee or
receiver to take possession of substantially all of
the Tenant's assets located at any Premises or of
Tenant's interest in this Lease where possession is
not restored to Tenant within thirty (30) days; or
the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at
any Premises or of Tenant's interest in this Lease,
where such seizure is not discharged within thirty
(30) days; and
16.2 Remedies. Upon the occurrence of any Event of Default
described in Paragraph 16.1 and at any time thereafter so long
as the same shall be continuing, Landlord may, at its option,
by notice to Tenant do one or more of the following, as
Landlord in its sole discretion shall determine:
(a) Landlord may, by notice to Tenant, terminate this
Lease as of the date specified in such notice;
however, (A) no reletting, reentry or taking of
possession of any or all of the Property by Landlord
will be construed as an election on Landlord's part
to terminate this Lease unless a written notice of
such intention is given to Tenant, (B)
notwithstanding any reletting, reentry or taking of
possession, Landlord may at any time thereafter elect
to terminate this Lease with respect to any or all of
the Leased Property, and (C) no act or thing done by
Landlord or any of its agents, representatives or
employees and no agreement accepting a
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surrender of any or all of the Leased Property shall
be valid unless the same be made in writing and
executed by Landlord;
(b) Landlord may (i) demand that Tenat, and Tenant shall
upon the written demand of Landlord, return the
Leased Property promptly to Landlord in the manner
and condition as if the Leased Property were being
returned at the end of the Term, and Landlord shall
not be liable for the reimbursement of Tenant for any
costs and expenses incurred by Tenant in connection
therewith, and (ii) without prejudice to any other
remedy which Landlord may have for possession of the
Leased Property, enter upon the Leased Property and
take immediate possession of (to the exclusion of
Xxxxx) the Leased Property and expel or remove Tenant
and any other person who may be occupying the same,
by summary proceedings or otherwise, all without
liability to Landlord for or by reason of such entry
or taking of possession, whether for the restoration
of damage to property caused by such taking or
otherwise and, in addition to Landlord's other
damages, Tenant shall be responsible for the
reasonably necessary costs and expenses of reletting,
including without limitation, brokers fees, tenant
improvements and inducements for new tenants,
security costs, expenses of the lender, prepayment or
other penalties under any note or mortgage and the
costs of any repairs made by Landlord.
(c) Except as Landlord may otherwise be required by law,
Landlord may hold, keep idle or lease to others the
property as Landlord in its sole discretion may
determine, free and clear of any rights of Tenant and
without any duty to account to Tenant with respect to
such action or inaction or for any proceeds with
respect to such action or inaction, except that
Tenant's obligation to pay base rent from and after
the occurrence of an Event of Default shall be
reduced by the net proceeds, if any, received by
Landlord from leasing the Leased Property to any
person, or allowing any person to use the Leased
Property, other than Tenant for the same periods or
any portion thereof;
(d) Landlord may retain and apply against Landlord's
damages all sums which Landlord would, absent such
Event of Default, be required to pay to, or turn over
to, Tenant pursuant to the terms of this Lease; or
(e) Landlord may exercise any other right or remedy that
may be available to it by law or in equity, or
proceed by appropriate court action (legal or
equitable) to enforce the terms hereof or to recover
damages for the breach hereof including without
limitation, the right to xxx for and collect the
present value of all future base rent from date of
termination for the balance of the Term (if the Lease
had not been terminated) discounted monthly at the
annual rate then in effect as the Discount Rate of
the Federal Reserve Bank of New York. Separate suits
may be brought to collect any such damages for any
period or periods with respect to which
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rent shall have accrued, and such suits shall not in
any manner prejudice Landlord's right to collect any
such damages for any subsequent periods, or Landlord
may defer any such suit until after the expiration of
the base Term or the then current renewal Term, in
which event such suit shall be deemed not to have
accrued until the expiration of the base Term, or the
then current renewal Term.
16.3 Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will
cause Landlord to incur costs not contemplated by this Lease,
the exact amount of which will be difficult to ascertain. Such
costs include, but are not limited to, processing and
accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or deed of trust
covering any Leased Property. Accordingly, if any installment
of rent or any other sum due from Tenant shall not be received
by Landlord or Landlord's designee within five (5) days after
such amount shall be due, Tenant shall pay to Landlord a late
charge equal to five percent (5.00%) of such overdue amount.
The parties hereby agree that such late charge represents a
fair and reasonable estimate of the cost Landlord will incur
by reason of late payment by Tenant.
16.4 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord
within a reasonable time, but in no event later than thirty
(30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the
Premises, whose name and address shall have been furnished to
Tenant in writing, specifying wherein Landlord has failed to
perform such obligation, provided, however that if the nature
of Landlord's obligation is such that more than thirty (30)
days are required for performance, then Landlord shall not be
in default if Landlord commences performance within such
thirty (30) day period and thereafter diligently prosecutes
same to completion. Tenant agrees that any such mortgagee or
deed of trust holder shall have the right to cure such default
on behalf of Landlord within thirty (30) calendar days after
receipt of such notice.
17.0 MISCELLANEOUS
17.1 Estoppel Certificate.
(a) Tenant shall at any time upon not less than twenty
(20) days prior written notice from Landlord,
execute, and deliver to Landlord a statement in
writing (i) certifying that this Lease is unmodified
and in full force and effect (or, if modified,
stating the nature of such modification and
certifying that this Lease, as so modified, is in
full force and effect), and the date to which the
rent and other charges are paid in advance, if any,
and (ii) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part
of Landlord hereunder, or specifying such defaults if
any are claimed. Any such statement may be
conclusively
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relied upon by any prospective purchaser or
encumbrancer of any Leased Property.
(b) Tenant's failure to deliver such statement within
such time shall be conclusive upon Tenant (i) that
this Lease is in full force and effect, without
modification except as may be represented by
Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than
one month's rent has been paid in advance.
(c) Landlord shall execute such estoppel certificates,
upon twenty (20) days written notice from Tenant, as
Tenant may request from time to time. Landlord's
failure to deliver such statement within such time
shall be conclusive upon Landlord (i) that this Lease
is in full force and effect, without modification
except as may be represented by Tenant, (ii) that
there are no uncured defaults in Tenant's performance
and (iii) that not more than one month's rent has
been paid in advance.
17.2 Transfer of Landlord's Interest.
(a) In the event of a bona fide sale or conveyance by
Landlord of Landlord's interest in any Leased
Property or in any other property in which any
Premises may be a part, other than a transfer for
security purposes only, if Landlord is not in default
under any provisions of this Lease, Landlord shall be
relieved from and after the date specified in any
such notice of transfer of all obligations and
liabilities accruing thereafter on the part of the
Landlord with respect to the transferred Leased
Property, provided that any funds in the hands of
Landlord at the time of transfer in which Tenant has
an interest, shall be delivered to the successor of
the Landlord and provided Landlord's assignee assumes
all such obligations. This Lease shall not be
affected by any such sale and Tenant agrees to attorn
to the purchaser or assignee provided all Landlord's
obligations hereunder are assumed in writing by the
transferee.
(b) Tenant acknowledges notice from Landlord of its
intent to enter into a Purchase Agreement for the
sale of the subject property to Xxxxxxx X. Xxxxx as
Trustee of the Xxxxxxx X. Xxxxx Revocable Trust or
its assigns. Should said sale be completed, Landlord
acknowledges herein its agreement to pay to said
Purchaser the sum of $1,984,162.00 payable in the
event that Tenant does not exercise its first option
to renew this Lease for the first additional five (5)
year term for any reason other than default of
Landlord or Landlord's election to terminate the
Lease under the provisions of Paragraph 12.0.
However, should this Lease be terminated by Tenant
under the provisions relating to condemnation found
in Paragraph 13.0 herein, Tenant's payment required
herein shall be reduced by an amount equal to the
difference between $5,200,000.00 purchase price paid
by Landlord and the amount received from the
condemning
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authority. No reduction shall be made in the event of
a casualty loss if Tenant elects to terminate this
Lease pursuant to the provisions of Paragraph 12.0 or
if repairs are not permitted pursuant to the
application of Paragraph 12.2. This payment has been
calculated and attributed to asbestos abatement
costs. Payment is due on date of termination.
17.3 Captions; Attachment; Defined Terms.
(a) Captions of the paragraphs of this Lease are for
convenience only and shall not be deemed to be
relevant in resolving any question of interpretation
or construction of any section of this Lease.
(b) Exhibits attached hereto, and addendums and schedules
initialed by the parties, are deemed by attachment to
constitute part of this Lease and are incorporated
herein.
17.4 Entire Agreement. This instrument along with any exhibits and
attachments hereto constitutes the entire agreement between
Landlord and Tenant relative to the Leased Property. This
agreement and the exhibits and attachments may be altered,
amended, or revoked only by an instrument in writing signed by
both Landlord and Tenant. Landlord and Tenant hereby agree
that all prior or contemporaneous oral agreements between and
among themselves and their agents or representatives relating
to the leasing of any Leased Property are merged into or
revoked by this agreement.
17.5 Severability. The invalidity of any provision of this Lease,
as determined by a court of competent jurisdiction, shall in
no way affect the validity of any other provision hereof.
17.6 Time; Joint and Several Liability. Time is of the essence of
this Lease in each and every provision hereof. All the terms,
covenants, and conditions contained in this Lease to be
performed by either party, if such party shall consist of more
than one person or organization, shall be deemed to be joint
and several, and all rights and remedies of the parties shall
be cumulative and non-exclusive of any other remedy at law or
in equity.
17.7 Waiver. No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any
subsequent breach by Tenant of the same or any other
provision. Landlord's consent to or approval of any act shall
not be deemed to render unnecessary the obtaining of
Landlord's express written consent to or approval of any
subsequent act by the Tenant. The acceptance of rent hereunder
by Landlord shall not be a waiver of any succeeding breach by
Tenant of any provision hereof, other than the failure of
Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such succeeding breach at the time of
acceptance of such rent.
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17.8 Surrender of Premises. The voluntary or other surrender of
this Lease by the Tenant, or mutual cancellation thereof,
shall not work a merger, and shall, at the option of Landlord,
terminate all or any existing subleases or subtenancies, or
may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
17.9 Holding Over. If Tenant remains in possession of all or any
part of any Leased Property after the expiration of the term
of this Lease, with or without the express or implied consent
of the Landlord, such tenancy shall be from month to month
only, and not a renewal of this Lease or an extension for any
further term. In such case, rent and other monetary sums due
hereunder shall be payable in the amount and at the time
specified in this Lease and such month-to-month tenancy shall
be subject to every other term, covenant, and agreement
contained herein. Base rent shall increase to 125% of the most
recent base rent of the preceding term.
17.10 Signs.
(a) Tenant shall have the right to erect such signs as it
shall elect, all in accordance with legal
requirements.
(b) Any such signs described above shall be removed at
the expiration or earlier termination of the Lease at
Tenant's expense and Tenant shall repair any damage
to any Leased Property resulting from such removal.
If Tenant fails to do so, Landlord may cause such
removal and repair on Tenant's behalf at Tenant's
expense.
17.11 Reasonable Consent. Except as limited elsewhere in this Lease,
wherever in this Lease Landlord and/or Tenant is required to
give its consent or approval to any action on the part of the
other, such consent or approval shall not be unreasonably
withheld or delayed. In the event of failure to give any such
consent, the other party shall be entitled to specific
performance of law and shall have such other remedies as are
reserved to it under this Lease.
17.12 Interest on Past-Due Obligations. Except as expressly herein
provided, any amount due to Landlord not paid when due shall
bear interest at twelve percent (12.00%) per annum from the
due date. Payment of such interest shall not excuse or cure
any default by Tenant under this Lease. Payment of such
interest is in addition to the late charge specified in
Section 16.3 of this Lease.
17.13 Recording. Tenant shall not record this Lease without
Landlord's prior express written consent. Landlord and Tenant
shall, at the request of either and at Tenant's expense,
execute and record a short form or memorandum of Lease.
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17.14 Costs of Suit.
(a) If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise,
arising out of this Lease, including any suit by
Landlord for the recovery of rent or possession of
any Leased Property, the prevailing party shall be
entitled to an award of its reasonable attorneys'
fees and costs. Such fees and costs shall include
those fees and costs incurred at trial, on appeal, or
in any bankruptcy proceeding.
(b) Should Landlord, without fault on Landlord's part, be
made a party to any litigation instituted by Tenant
or any third party against Tenant, or by or against
any person holding under or using any Leased Property
by license of Tenant, or for the foreclosure of any
lien for labor, material furnished to or for Tenant
or any such other person or otherwise arising out of
or resulting from any act or transaction of Tenant,
or of any such person, Tenant covenants to defend,
indemnify, and hold Landlord harmless from any
judgment rendered against Landlord or any Leased
Property, or any part thereof, and all costs and
expenses, including reasonable attorney fees,
incurred by Landlord in or in connection with such
litigation.
17.15 Binding Effect; Choice of Law. The parties hereto agree that
all provisions hereof are to be construed as both covenants,
and conditions as though the words importing such covenants
and conditions were used in each separate paragraph hereof.
Subject to any provisions hereof restricting assignment or
subletting by the Tenant, all of the provisions hereof shall
bind and inure to the benefit of the parties hereto, their
respective heirs, legal representative, assigns, and
successors. This Lease shall be governed by the laws of the
State of Iowa.
17.16 Waiver of Jury Trial. EACH OF THE PARTIES HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS LEASE OR ANY EXHIBIT HERETO,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENTS
(WHETHER VERBAL OR WRITTEN) MADE BY THE PARTIES HEREIN.
17.17 Corporate Authority. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation
represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of said corporation in
accordance with a duly adopted resolution of the Board of
Directors of said corporation, and that this Lease is binding
upon said corporation in accordance with its terms.
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17.18 Representation of Landlord. Landlord represents and warrants
that (i) it holds fee or leasehold title to the Leased
Property subject to the Lease and has full power and authority
to enter into this Lease; and (ii) each individual executing
this Lease on behalf of Landlord represents and warrants that
he is duly authorized to execute and deliver this Lease on
behalf of the Landlord, and that this Lease is binding upon
Landlord in accordance with its terms.
17.19 Triple Net Lease. It is the intent of Landlord and Tenant that
this Lease shall be an absolute triple-net lease, and that all
costs, expenses or charges with respect to the Leased Property
are the responsibility of Tenant.
17.20 Notices. Any notice provided or permitted to be given under
this Lease must be in writing and may be served by depositing
same in the United States mail, addressed to the party to be
notified, postage prepaid and certified, with return receipt
requested, by delivering the same in person to such party, or
by delivering the same by confirmed facsimile. Notice given in
accordance herewith shall be effective upon the earlier of
receipt at the address of the addressee or on the second (2nd)
day following deposit of same in the United States mail as
provided for herein, regardless of whether same is actually
received. For purposes of notice, the addresses of the parties
shall be as follows:
If to Tenant: AmerUs Life Insurance Company
ATTN: Xxxxxx X. Xxxxxxxx
000 - 0xx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
If to Landlord: AmerUs Properties, Inc.
ATTN: Xxxxx X. XxXxxxxxx
000 Xxxxxx Xx., Xxxxx 0000
Xxx Xxxxxx, Xxxx 00000
Either party may change its address for notice by giving ten
(10) days prior written notice thereof to the other party.
LANDLORD: AMERUS PROPERTIES, INC.
By: /s/ Xxxxx X. XxXxxxxxx
--------------------------------
Name/Title: Xxxxx X. XxXxxxxxx,
Vice President
TENANT: AMERUS LIFE INSURANCE
COMPANY
By: /s/ Xxxx Xxxxxx
--------------------------------
Name/Title: Xxxx Xxxxxx,
Vice President
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STATE OF IOWA )
) ss:
COUNTY OF POLK )
BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared Xxxxx X. XxXxxxxxx, Vice President of
AmerUs Properties, Inc., known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said AmerUs Properties, Inc.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 15th day of December 1999.
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
[SEAL] Notary Public, State of Iowa
STATE OF IOWA )
) ss:
COUNTY OF POLK )
BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared Xxxx Xxxxxx, Vice President of AmerUs
Life Insurance Company, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said AmerUs Life Insurance Company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 15th day of December 1999.
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
[SEAL] Notary Public, State of Iowa
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