LEASE-BUSINESS PROPERTY
THIS LEASE AGREEMENT, executed in duplicate, made and entered into this
1st day of August, 1994, by and between Double J. Building AKA Xxx Xxxxxx and
Xxxxxx X. Xxxxxx, Husband and Wife ( hereafter called the "Landlord") whose
address for the purpose of this lease is c/o Cycle Country, R. R. 3 - Xxx 000,
Xxxxxxx, Xxxx 00000 and Okoboji Industries Corp. - R. R. 3 - Xxx 000, Xxxxxxx,
XX 00000 (heereafter called the "Tenant") whose address for the purpose of
this lease is R. R. 3, - Xxx 000 Xxxxxxx Xxxx 00000, WITNESSETH THAT:
1. PREMISES AND TERM. The Landlord, in consideration of the rents
herein reserved and the agreements and conditions herein contained, on the
part of the Tenant to be kept and performed, leases unto the Tenant and
Tenant hereby rents and leases from Landlord, according to the terms and
provisions herein, the following described real estate, situated in Xxxxxxxxx
County, Iowa, to wit:
Approximately 4800 square feet within building leased to Cycle Country
Located at junction of Highway 71 and Highway 86.
with the improvements thereon and all rights, easements and appurtenances
thereto belonging, which more particularly , includes the space and premises
as may be shown on "Exhibit A", if and as may be attached hereto, for a term
of eight years, commencing at midnight of the day previous to the first
day of the lease term, which shall be on the 1st day of August 1994, and
ending at midnight on the last day of the lease term, which shall be on the
31st day of July 2002, upon the condition that the Tenant pays rent
therefor, and otherwise performs as in this lease provided.
2. RENTAL. Tenant agrees to pay to Landlord as rental for said term,
as follows: $4000.00 per month, in advance the first rent payment becoming
due upon
Strike ( ) the execution of this lease; or Move in date
one (X) The 1st day of August, 1994.
and the same amount, per month, in advance, on the first day of each month
thereafter, during the term of this lease.
In addition to the above monthly rental Tenant shall also pay:
All sums shall be paid at the address of Landlord, as above designated,
or at such other place in Iowa, or elsewhere, as the Landlord may, from
time to time, previously designate in writing.
Delinquant payments shall draw interest at 9% per annum from due
date, until paid.
3. POSSESSION. Tenant shall be entitled to possession on the first day
of the term of this lease, and shall yield possession to the Landlord at the
time and date of the close of this lease term, except as herein otherwise
expressly provided. Should Landlord be unable to give possession on said date,
Tenant's only damages shall be a rebating of the pro rata rental.
4. USE OF PREMISES. Tenant covenants and agrees during the term of this
lease to use and to occupy the leased premises only for Manufacturing company.
For restrictions on such use, see paragraphs 6(c), 6(d) and 11(b) below.
5. QUIET ENJOYMENT. Landlord covenants that its estate in said premises
is _______________________; and that the Tenant on paying the rent herein
reserved and performing all the agreements by the Tenant to be performed as
provided in this lease, shall and may peaceably have, hold and enjoy the
demised premises for the term of this lease free from molestation, eviction
or disturbance by the Landlord or any other persons or legal entity whatsoever.
(But see paragraph 14, below.)
Landlord, shall have the right to mortgage all of its right, title,
interest in said premises at any time without notice, subject to this lease.
6. CARE AND MAINTENANCE OR PREMISES. (a) Tenant takes said premises
in their present condition except for such repairs and alterations as may be
expressly herein provided.
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(b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Landlord will keep the
roof, structural part of the floor, walls and other structural parts of the
building in good repair.
(c) TENANT'S DUTY OF CARE AND MAINTENANCE. Tenant shall, after taking
possession of said premises and until the termination of this lease and the
actual removal of the premises, at its own expense, care for and maintain said
premises in a reasonably safe and serviceable condition, except for structural
parts of the building. Tenant will furnish its own interior and exterior
decorating. Tenant will not permit or allow said premises to be damaged or
depreciated in value by any act or negligence of the Tenant, its agents or
employees. Witout limiting the generality of the foregoing. Tenant will make
necessary repairs to the sewer, the plumbing, the water pipes and electrical
wiring, except as follows:
and Tenant agrees to keep the faucets closes so as to prevent waste of water
and flooding of premises: to promptly take care of any leakage or stoppage
in any of the water, gas or waste pipes. the Tenant agrees to maintain
adequate heat to prevent freezing of pipes, if and only if the other terms of
this lease fix responsibility for heating upon the Tenant. Tenant at its own
expense may install floor covering and will maintain such floor covering in
good condition. Tenant will be responsible for the plate glass in the windows
of the leased premises and for maintaining the parking area, driveways and
sidewalks on and abutting the leased premises, if the leased premises include
the ground floor, and if the other terms of this lease include premises so
described. Tenant shall make no structural alterations or improvements without
the written approval of the Landlord first and obtained, of the plans and
specifications therefor.
(d) Tenant will make no unlawful use of said premises and agrees to
comply with all valid regulations of the Board of Health, City Ordinances or
applicable municipality, the laws of the State of Iowa and the Federal
government, but this provision shall not be construed as creating any duty by
Tenant to members of the general public. If Tenant, by terms of this lease
is leasing premises on the ground floor, it will not be allowed trash of any
kind to accumulate on said premises in the halls, if any, or the alley or yard
in front, side or rear thereof, and it will remove same from the premises at
its own expense. Tenant also agrees to remove snow and ice and other obstacles
from the sidewalk on or abutting the premises, if the premises include the
ground floor, and if the lease may be fairly construed to impose such liability
on the Tenant.
7. (a) UTILITIES AND SERVICES. Tenant, during the term of this lease,
shall pay, before delinquency, all charges for the use of telephone, water,
sewer, gas, heat, (if heating is Tenant's responsibility), electricity, power,
air conditioning (if air conditioning is the Tenant's responsibility),
garbage disposal, trash disposal and not limited by the foregoing all other
utilities and services of whatever kind and nature which may be used in or
upon the demised premises.
Utilities are included in the rent amount
(b) AIR CONDITIONING equipment shall be furnished at the expense of
the Landlord and maintenance thereof at the expense of the Landlord.
(c) JANITOR SERVICE shall be furnished at the expense of Landlord.
(d) HEATING shall be furnished at the expense of Landlord.
8. (a) SURRENDER OF PREMISES AT END OF TERM--REMOVAL OF FIXTURES.
Tenant agrees that upon the termination of this lease, it will surrender,
yield up and deliver the leased premises in good and clean condition, except
the effects of ordinary wear and tear and depreciation arising from lapse
of time, or damage without the fault or liability of Tenant. [See also 11(a)
and 11 (e) below]
(b) Tenant may, at the expiration of the term of this lease, or
renewal or renewals thereof or at a reasonable time thereafter, if Tenant
is not in default hereunder, remove any fixtures or equipment which said
Tenant has installed in the leased premises, providing said Tenant repairs
any and all damages caused by removal.
(c) HOLDING OVER. Continued possession, beyond the expiratory date
of the term of this lease, by the Tenant, coupled with the receipt of the
specified rental by the Landlord (and absent a written agreement by both
parties for an extension of this lease, or for a new lease) shall constitute
a month to month extension of this lease.
9. ASSIGNMENT AND SUBLETTING. Any assignment of this lease or subletting
of the premises or any part thereof, without the Landlord's written permission
shall, at the option of the Landlord, make the rental for the balance of the
lease term due and payable at once. Such written permission shall not be
unreasonably withheld.
10. (a) ALL REAL ESTATE TAXES, except as may be otherwise expressly
provided in this paragraph 10, levied or assessed by lawful authority
(but reasonably preserving Landlord's rights of appeal) against said real
property shall be timely paid by the parties in the following proportions:
by Landlord 100%; by Tenant -0-%.
(b) Increase in such taxes, except as in the next paragraph provided,
above the amount paid during the base year of _______ (base year if and as may
be defined in this paragraph) shall be paid by Landlord _____%; by Tenant ___%.
(c) Increase in such taxes caused by Improvements of Tenant shall be
paid by Landlord 100%; by Tenant ___%.
(d) PERSONAL PROPERTY TAXES. Tenant agrees to timely pay all taxes,
assessments or other public charges levied or assessed by lawful authority
(but reasonably preserving Tenant's right to appeal) against its personal
property on the premises, during the term of this lease.
(e) SPECIAL ASSESSMENTS. Special assessments shall be timely paid
by the parties in the following proportions: by the Landlord 100%; by the
Tenant -0-%.
11. INSURANCE. (a) Landlord and Tenant will each keep its respective
property interests in the premises and its liability in regard thereto,
and the personal property on the premises, reasonably insured against hazards
and casualties; that is, fire and those items usually covered by extended
coverage; and Tenant will procure and deliver to the Landlord a certification
from the respective insurance companies to that effect. Such insurance shall
be made payable to the parties hereto as their interests may appear, except
that the Tenant's share of such insurance proceeds are hereby assigned and
made payable to the Landlord to secure rent or other obligations then due
and owing Landlord by Tenant. [See also 11 (a) below]
(b) Tenant will not do or omit the doing of any act which would
vitiate any insurance, or increase the insurance rates in force upon the
real estate improvments on the premises or upon any personal property of the
Tenant upon which the Landlord by law or by terms of this lease, has or shall
have a lien.
(c) Subrogation rights are not to be waived unless a special
provision is attached to this lease.
(d) Tenant further agrees to comply with recommendations of Iowa
Insurance Service Bureau and to be liable for and to promptly pay, as if
current rental, any increase in insurance rates on said premises and on the
building of which said premises are a part, due to increased risks or hazards
resulting from Tenant's use of the premises otherwise than as herein
contempleted and agreed.
(e) INSURANCE PROCEEDS. Landlord shall settle and adjust any
claim against any insurance company under its said policies of insurance for
the premises, and said insurance monies shall be paid to and held by the
Landlord to be used for cost of repairs or restoration of damaged building,
if the destruction is only partial. [See also 11(a), above].
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12. INDEMNITY AND LIABILITY INSURANCE. Except as to any negligence of
the Landlord, arising out of roof and structural parts of the building, Tenant
will protect, indemnify and save harmless the Landlord from and against any
and all loss, costs, damage and expenses occasioned by, or arising out of,
any accident or other occurance causing or inflicting injury and/or damage
to any person or property, happening or done in, upon or about the leased
premises, or due directly or indirectly to the tenancy use or occupancy
thereof, or any part thereof by the Tenant or any person claiming through
or under the Tenant. The Tenant further covenants and agrees that it will
at it's own expense procure and maintain casuality and liablity insurance in
a responsible company or companies authorized to do business in the State of
Iowa, in amounts not less tham $100,000 for any one person injured and $500,000
for any one accident, and with limits of $25,000 for property damage,
protecting the Landlord against such claim, damages, costs or expenses on
account of injury to any person or persons, or to any property belonging to
any person or persons by reason of such casuality, accident or other happening
on or about the demised premises during the term thereof. Certificates or
copies or said policies, naming the Landlord and providing for fifteen (15)
fifteen days' notice to the Landlord before cancellation shall be delivered
to the Landlord within twenty (20) twenty days from the date of the beginning
of the term of this lease. As to insurance of the Landlord for roof and
structural faults, see paragraph 11(a) above.
13. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF PREMISES. (a) In the event
of a partial destruction or damage of the leased premises, which is a business
interference, that is, which prevents the conducting of the normal business
operation and which damage is reasonably repairable within sixty (60) sixty
days after its occurrence, this lease shall not terminate but the rent for the
leased premises shall xxxxx during the time of such business interference.
In the event of partial destruction, Landlord shall repair such damages within
60 days of its occurrence unless prevented from so doing by acts of God, the
elements, the public enemy, strikes, riots, insurrection, government
regulations, city ordinances, labor, material, or transportation shortages,
or other causes beyond Landlord's reasonable control.
(b) ZONING. Should the zoning ordinance of the city or municipality in
which this property is located make it impossible for Landlord using diligent
and timely effort to obtain necessary permits and to repair and/or rebuild
so that Tenant is not able to conduct its business on these premises, then
such partial destruction shall be treated as a total destruction as in the
next paragraph provided.
(c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a destruction or
damage of the leased premises including the parking area (if a parking area
is a part of the subject matter of this lease) so that Tenant is not able
to conduct its business on the premises or the then current legal use for
which the premises are being used and which damages cannot be repaired within
sixty (60) sixty days this lease may be terminated at the option of either the
Landlord or Tenant. Such termination in such event shall be effected by
written notice of one party to the other, within twenty (20) twenty days after
such destruction. Tenant shall surrender possession within ten (10) ten days
after such notice issues, and each party shall be released from all future
obligations hereunder, Tenant paying rental pro rata only to the date of such
destruction. In the event of such termination of this lease, Landlord at its
option may rebuild or not, according to its own wishes and needs.
14. CONDEMNATION. (a) DISPOSITION OF AWARDS. Should the whole or any
part of the demised premises be condemned or taken by a competent authority
for any public or quasi-public use or purpose, each party shall be entitled
to retain, as its own property any award payable to it. Or in the event
that a single entire award is made on account of the condemnation, each
party will then be entitled to take such proportion of said award as may
be fair and reasonable.
(b) DATE OF LEASE TERMINATION. If the whole of the demised premises shall
be so condemned or taken, the Landlord shall not be liable to the Tenant
except and as to its rights are preserved as in paragraph 14(e) above.
15. TERMINATION OF LEASE AND DEFAULTS OF TENANT. (a) TERMINATION
UPON EXPIRATION OR UPON NOTICE OF DEFAULTS. This lease shall terminate upon
expiration of the demised term, or if this lease expressly and in writing
provides for any option or options, and if any such option is exercised by the
Tenant, then this lease will terminate at the expiration of the option term
or terms, this lease may at the option of the Landlord be cancelled and
forfeited. PROVIDED, HOWEVER, before any such cancellation and forfeiture
except as provided in 15(b) below, Landlord shall give Tenant a written notice
specifying the default, or defaults and stating that this lease will be
cancelled and forfeited ten (10) ten days after the giving of such notice,
unless such default , or defaults are remedied within such grace period.
(See paragraph 22, below) As an additional optional procedure or as an
alternative to the foregoing (and neither exclusive of the other) Landlord may
proceed as in paragraph 21 below, provided.
(b) BANKRUPTCY OR INSOLVENCY OF TENANT. In the event Tenant is adjudicated
a bankrupt or in the event of a judicial sale or other transfer of Tenant's
leasehold interest by reason by any bankruptcy or insolvency proceedings or
by any other operation of law, but not by death, and such bankruptcy,
judicial sale or transfer has not been vacated or set aside within ten (10)
days from the giving of notice thereof by Landlord to Tenant, then and in any
such events. Landlord may, at its option, immediately terminate this lease,
reenter said premises, upon giving of ten (10) days written notice by Landlord
to Tenant, all to the extent permitted by applicable law.
(c) In (a) and (b) above, waiver as to any default shall not constitute a
waiver of any subsequent default or defaults.
(d) Acceptance of keys, advertising and re-renting by the Landlord upon the
Tenant's default shall be construed only as an effort to mitigate damages by
the Landlord, and not as an agreement to terminate this lease.
16. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF THE OTHER. If
default shall be made by either party in the performance of, or compliance
with, any of the terms, covenants or conditions of this lease, and such
default shall have continued for thirty (30) days after written notice
thereof from one party to the other, the person aggrieved, in addition to
all other remedies now or hereafter provided by law, may, but need not
perform such term, covenant or condition, or make good such default and any
amount advanced shall be repaid forthwith on demand, together with interest
at the rate of 9% per annum from date of advance.
17. SIGNS. (a) Tenant shall have the right and privilege of attaching,
affixing, painting or exhibiting signs on the leased premises, provided, only
(1) that any and all signs shall comply with the ordinances of the city or
municipality in which the property is located and the laws of the State of
Iowa; (2) such signs shall not change the structure of the building; (3) such
signs, if and when taken down shall not damaged the building; and (4) such
signs shall be subject to the written approval of the Landlord, which approval
shall not be unreasonably withheld,
(b) Landord during the last ninety (90) days of this lease, or extension,
shall have the right to maintain in the windows or on the building or on the
premises either or both a "for rent" or "for sale" sign and Tenant will permit,
at such time, perspective tenants or buyers to enter and examine the premises.
18. MECHANICS LIENS. Neither the Tenant nor anyone claiming by, through,
or under the Tenant shall have the right to file or place any mechanics
lien or other lien of any kind or character whatsoever, upon said premises
or upon any building or improvement thereon, or upon the leasehold interest
of the Tenant therein, and notice is hereby given that no contractor,
sub-contractor or anyone else who may furnish any material, service or
labor for any building, improvements, alteration, repairs or any part
thereof, shall at any time be or become entitled to any lien thereon, and
for the further security of the Landlord, the Tenant covenants and agrees
to give actual notice thereof in advance, to any and all contractors or
sub-contractors who may furnish or agree to furnish any such material,
service or labor.
19. LANDLORD'S LIEN AND SECURITY INTEREST. (a) Said Landlord shall have,
in addition to the lien given by law, a security interest as provided by the
Uniform Commercial Code of Iowa, upon all personal property and all
substitutions therefor, kept and used on said premises by Tenant. Landlord
may proceed at law or in equity with any remedy provided by Law or by this
lease for the recovery of rent or for termination of this lease because of
Tenant's default in its performance.
(b) SPOUSE. If spouse is not a Tenant then the execution of this instrument
by the spouse shall be for the sole purpose of creating a security interest on
personal property and waiving rights of homestead, rights of distributive
share, and exemptions.
20. SUBSTITUTION OF EQUIPMENT, MERCHANDISE, ETC. (a) The Tenant shall have
the right, from time to time, during the term of this lease, or renewal
thereof, to sell or otherwise dispose of any personal property of the
Tenant situated on the said demised premises, when in the judgment of the
Tenant it shall become obsolete, outworn or unnecessary in connection with
the operation of the business on said premises provided however, that the
Tenant shall, in such instance (unless no substitued article or item is
necessary) at its own expense, substitute for such items of personal
property so sold or otherwise disposed of, a new or other item in
substitution thereof, in like or greater value and adapted to the affixed
operation of the business upon the demised premises.
(b) Nothing hereing contained shall be construed as denying the Tenant the
right to dispose of inventoried merchandise in the ordinary course of the
Tenant's trade or business.
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[______________________]
as cumulative and no one of them as exclusive of the others, or exclusive of
any rights, remedies or priorities allowed either party by law, and shall in
no way affect or impair the right of either party to pursue any other equitable
or legal remedy to which either party may be entitled as long as any default
remains in any way unremedied, unsatisfied or undischarged.
22. NOTICES AND DEMANDS. Notices as provided for in this lease shall be
given to the respective parties hereto at the respective addresses designated
on page one of this lease unless either party notifies the other, in writing,
of a different address. Without prejudice to any other method of notifying
a party in writing or making a demand or other communication, such message
shall be considered given under the terms of this lease when sent, addressed
as above designated, postage prepaid, by registered or certified mail return
receipt requested, by the United States mail and so deposited in a United
States mail box.
23. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC. Each and
every covenant and agreement herein contained herein shall extend to and be
binding upon the respective successors, heirs, administrators, executors and
assigns of the parties hereto; except that if any part of this lease is held
in joint tenancy, the successor in interest shall be the surviving joint
tenant.
24, CHANGES TO BE IN WRITING. None of the covenants, provisions, terms
or conditions of this lease to be kept or performed by Landlord or Tenant shall
be in any manner modified, waived or abandoned, except by a written instrument
duly signed by the parties and delivered to the Landlord and the Tenant. This
lease contains the whole agreement of the parties.
25. RELEASE OF DOWER. Spouse of Landlord, appears as a party signatory
to this lease solely for the purpose of releasing dower or distributive share,
unless said spouse is also a co-owner in the leased premises.
26. CONSTRUCTION. Words and phrases herein, including acknowledgment
hereof, shall be construed as in the singular or plural number, and as
masculine, feminine or neuter gender according to the context.
IN WITNESS WHEREOF, the parties hereto have duly executed this lease in
duplicate the day and year first above written.
/s/ Xxxxxxx X. Xxxxxx, Partner LANDLORD
/s/ Xxxxx X. Xxxxxx, Partner LANDLORD
