LEASE
Landlord - Investors Equity of Iowa, Inc.
Tenant - West Des Moines State Bank
TABLE OF CONTENTS
Article
I Construction of Office Building
II Grant and Term
III Rent
IV Landlord's Title
V Condition of Premises
VI Use of Premises
VII Certain Rights Reserved to the Landlord
VIII Waiver of Certain Rights
IX Service
X Janitor Service
XI Taxes
XII Repairs
XIII Untenantability Due to Damage By Fire, the Elements
Or Other Casualty
XIV Condemnation
XV Alterations and Removal of Fixtures
XVI Restrictive Covenant and Covenant of Access
XVII Tenant's Default
XVIII Holding Over
XIX Landlord's Default
XX Remedies Cumulative
XXI Assignment and Subletting
XXII Insurance and Indemnity
XVIII Protection from Subrogation
XXIV Exterior Signs
XXV Automatic Extensions
XXVI Option to Purchase
XXVII First-Refusal Option to Purchase
XXVIII First-Refusal Option to Lease
XXIX Parking
XXX Subordination
XXXI Notices
XXXII Miscellaneous
XXXIII Zoning Variance Condition
XXXIV Mutual Agreement and Easement
XXXV Liquidated Damages
LEASE
THIS LEASE made and entered into in quadruplicate this 9th day of September,
1971, by and between Investors Equity of Iowa, Inc., an Iowa corporation
(hereinafter referred to as "Landlord") and West Des Moines State Bank, an Iowa
banking corporation (hereinafter referred to as "Tenant"),
WITNESSETH:
ARTICLE I. CONSTRUCTION OF OFFICE BUILDING
A. Landlord shall, within a reasonable time, which is anticipated to be on or
before October 1, 1971, comment to erect, or cause to be erected, on
approximately two and one-half (2-1/2) acres of certain real estate located
on the East side of 22nd Street in approximately the 0000 Xxxxx, Xxxx Xxx
Xxxxxx, Xxxx Xxxxxx, Xxxx, and legally described on Exhibit "A" attached
hereto and made a part hereof (hereinafter referred to as the "Property),
an office building of not less than four stories (plus a roof parapet)
approximately fifty seven (57) feet in height, containing approximately
38,500 gross square feet with approximately 32,000 net rentable square feet
(hereinafter referred to as the "Office Building"), in which the Leased
Premises (as hereinafter defined) are located, in accordance with PROPROSED
OUTLINE SPECIFICATIONS and ITEMS INCLUDED IN CONSTRUCTION AND UNIT COSTS
set forth on Exhibit "B" and Exhibit "C", respectively, attached hereto and
made a part hereof and in accordance with detailed plans and specifications
to be prepared by Landlord and to be approved by the Landlord and the
Tenant in writing and cause the Leased Premises (as hereinafter defined)
and the parking areas sufficient to allow the Tenant to operate its
business to be completed on or before May 1, 1972. The landlord will
construct and erect the Office Building in compliance with all applicable
federal, state, and municipal laws and the rules and regulations of the
departments and bureaus having jurisdiction thereof. In connection with the
Leased Premises (as hereinafter defined), the Landlord will furnish the
Tenant satisfactory evidence of such compliance in the form of a
certificate of occupancy, or its equivalent; issued by the appropriate
municipal department having jurisdiction over the Office Building, and by a
certificate of compliance issued by the Landlord's architect, in which
instance the concurrence by Xxxxxx's construction consultant, if one has
been appointed, shall be required.
X. Xxxxxx may appoint a construction consultant to assist Xxxxxxxx's architect
in the preparation of said detailed plans and specifications pertaining to
the premises leased by Xxxxxx. During the course of such construction
Xxxxxx's construction consultant may enter upon the Property at all
reasonable times for purpose of inspection. If at any time during
construction the Tenant's construction consultant determines that the
construction is not being carried out in substantial accordance with the
detailed plans and specifications as the same relates to the premises
leased by the Tenant, said construction consultant shall notify the
Landlord's architect of the problem and the Landlord's architect shall
promptly endeavor to resolve the problem. If the problem is not resolved in
this manner, and if Landlord and Tenant cannot resolve the problem, then
Xxxxxxxx's architect and Xxxxxx's construction consultant shall appoint a
third professional to resolve the problem. At the time two of the three
professionals agree, their decision as to the problem shall be binding. The
Landlord and Tenant shall bear equally the expense of the third party
professional.
C. To expedite commencement of Xxxxxx's business in the premises leased by
Xxxxxx, Tenant may enter upon the premises leased by Xxxxxx during the
construction for the purpose of performing Tenant's work of installing bank
equipment, trade fixtures and furnishings, providing Tenant does not
interfere with such construction and providing Tenant shall, if Landlord so
requires, do such work with only union workmen. If the Tenant directs in
writing, Landlord shall provide said bank equipment, trade fixtures and
furnishings, and any replacements thereof, during the term of this lease,
at Landlord's cost plus 10%, which shall be paid by Tenant within ten (10)
days from the date the Landlord renders statements of account therefor.
D. The herein described office building shall be known as the "West Bank
Office Building", so long as the Tenant occupies the same.
ARTICLE II. GRANT AND TERM
A. Leased Premises. For and in consideration of the covenants, agreements and
stipulations of both parties herein contained, Landlord does hereby demise
and lease unto Tenant, and Tenant does hereby lease and take from Landlord
all of the first floor of the Office Building consisting of approximately
8,000 square feet and approximately 2,000 square feet of the second floor
of the Office Building, the exact location of which to be mutually agreed
upon by the parties (hereinafter referred to as "Leased Premises"). The
exact amount of square feet to be leased by Xxxxxx on the first and second
floor of the Office Building shall be determined at such time as detailed
plans and specifications are approved in accordance with Article I-A
hereof.
B. Term. The term of this Lease and Xxxxxx's obligation to pay rent hereunder
shall commence upon the first day of the month following the delivery of
possession of the Leased Premises to the Tenant pursuant to a certificate
of occupancy or its equivalent, issued by the appropriate municipal
authority having jurisdiction over the Leased Premises and a certificate of
completion issued by the Landlord's architect and concurrence of Tenant's
construction consultant, as provided in Article I-A hereof, certifying that
the Leased Premises and surrounding area have been completed in substantial
accordance with the detailed plans and specifications therefor, and with
all laws, ordinances, rules and regulations applicable thereto. The term of
this Lease shall terminate twenty (20) years after the term commencement
date.
C. Supplemental Agreement. In order to place in writing the exact dates of
commencement and termination of the term of this Lease, the parties shall,
within ten (10) days after the commencement of the term of this Lease,
execute a supplemental agreement to become a part hereof, setting forth the
commencement and termination dates of the term of this Lease as determined
under the provisions of this Article II. Such agreement shall also
acknowledge that the Landlord has complied with all construction
requirements imposed upon it under the terms of the Lease as relates to the
Leased Premises, or if within the ten (10) day period all the work has not
been completed, the agreement will list, as exceptions, those items of
which have not been performed or items of material that have not been
furnished.
ARTICLE III. RENT
A. Tenant shall pay the Landlord, at the office of Landlord, or at such other
place designated by Landlord, without any prior demand therefor and without
any deduction or set off whatsoever, rent at the rate of Sixty Five
Thousand and No/100 Dollars ($65,000.00) per year payable in equal monthly
installments, in advance, of Five Thousand Four Hundred Sixteen and 67/100
Dollars ($5,416.67). Unpaid rent shall bear interest at nine percent (9%)
per annum from the date due until paid.
The rent, as herein provided, presumes that upon completion of the Office
Building, the Tenant will occupy a total of approximately 10,000 square
feet, of which approximately 8,000 square feet will be located on the first
floor and approximately 2,000 square feet will be located on the second
floor and all of which leased area of premises shall be considered as
finished space. In the event that the Tenant directs the Landlord to finish
less than 2,000 square feet on the second floor of the Office Building in
the same manner as the Tenant's space is completed on the first floor of
the same, then rent shall be adjusted to reflect the number of unfurnished
square feet occupied by the Tenant on the second floor at the rate of $5.50
per square foot per year, or the Landlord's differential in cost between
finished and unfinished space, whichever is the lesser. When such amounts
of finished and unfinished space to be occupied by the Tenant are finally
determined, the parties hereto will execute an amendment to this Lease to
establish the amount of rent if it should be established to be different
from the amount above provided for in this Article III-A.
B. As promptly as practicable after the end of each five-year period of this
Lease, including renewals, the Landlord shall compute the increase, if any,
in the cost of living for the preceding five-year period based upon the
"Consumer Price Index-Cities (1967 = 100)" (hereinafter called the Index),
published by the Bureau of Labor Statistics of the United States Department
of Labor.
The Index number indicated in the column entitled "all items" for the month
of the beginning of each of said five-year periods shall be the "current
Index number" and the corresponding Index number for the same month five
years earlier shall be the "base Index number".
The current Index number shall be divided by the base Index number. From
the quotient thereof, there shall be subtracted the integer 1, and any
resulting positive number shall be deemed to be the percentage of increase
in the cost of living.
The rent payable under this Article for the succeeding five years shall be
increased by the percentage of increase as so determined, as results from
the application of the percentage increase to the rent payable during the
initial five-year period of this Lease. In no event shall the rent for any
succeeding five-year period be less than the rent for the preceding
five-year period.
The Landlord shall, within a reasonable time after obtaining the
appropriate data necessary for computing such increase, give the Tenant
notice of any increase so determined, and the Landlord's computation
thereof shall be conclusive and binding but shall not preclude any
adjustment which may be required upon which the computation was based
unless the Tenant shall, within 60 days after the giving of such notice,
notify the Landlord of any claimed error therein. Any dispute between the
parties as to any such computation shall be determined by arbitration.
The rent, as so determined shall be due and payable to the Landlord in
equal monthly installments commencing with the first month of such
succeeding five-year period (any retroactive payments then due being
payable within five days after the giving of such notice), and in the event
of any subsequent redetermination of such amount the adjustment thus
indicated shall be made promptly between the Landlord and the Tenant.
If publication of the Consumer Price Index shall be discontinued, the
parties hereto shall thereafter accept comparable statistics on the cost of
living as they shall be computed and published by an agency of the United
States or by a responsible financial periodical of recognized authority
then to be selected by the parties hereto or, if the parties cannot agree
upon a selection, by arbitration. In the event of (1) use of comparable
statistics in place of the Consumer Price Index as above mentioned, or (2)
publication of the Index figure at other than monthly intervals, there
shall be made in the method of computation herein provided by such
revisions as the circumstances may require to carry out the intent of this
Article, and any dispute between the parties as to the making of such
adjustment shall be determined by arbitration.
ARTICLE IV. LANDLORD'S TITLE
Landlord covenants that it has full right and power to execute and perform this
Lease pursuant to the provisions of a certain Ground Lease, dated July 1, 1971,
by and between Xxxxxx X. Xxxx and Xxxx Xxxx, husband and wife, and Xxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxxxx, wife and husband, as Lessor, and the Landlord
herein, as Xxxxxx (hereinafter referred to as "Ground Lease"), a copy of which
Ground Lease has been heretofore delivered to Tenant, and that is will put
Tenant into complete and exclusive possession of the Leased Premises free from
all orders and notices of violations of any public or quasi-public authority.
Landlord further covenants that Tenant, on paying the rents reserved herein and
performing the covenants and agreements hereof, shall peaceably and quietly
have, hold and enjoy the Leased Premises and all rights, easements,
appurtenances and privileges thereunto belonging or in any wise appertaining,
during the term hereof. Xxxxxxxx agrees that no amendment will be made in the
Ground Lease without the prior written approval of Tenant, which approval will
not be unreasonably withheld.
ARTICLE V. CONDITION OF PREMISES
The Tenant's taking possession shall be conclusive evidence as against the
Tenant that the Leased Premises were in good order and satisfactory condition
when the Tenant took possession, subject to the exceptions as to unperformed
work or defects provided for in Article II-C hereof. No promise of the Landlord
to alter, remodel or improve the Leased Premises or the Office Building and no
representation respecting the condition of the Leased Premises or the Office
Building have been made by the Landlord to the Tenant, unless the same is
contained herein, or made a part hereof. At the termination of this Lease by
lapse of time or otherwise, the Tenant shall return the Leased Premises in as
good condition as when the Tenant took possession, ordinary wear, loss by fire
and other casualty and alterations or additions permitted under Article XV
hereof, excepted.
ARTICLE VI. USE OF PREMISES
A. The Tenant shall occupy and use the Leased Premises during the term of
General Banking purposes, General Office Use, and storage.
B. The Tenant shall not sell or offer for sale on the Leased Premises or in
the Office Building any article or thing except those articles and things
essentially connected with the stated use of the Leased Premises without
the advance written consent of the Landlord.
C. The Tenant will not make or permit to be made any use of the Leased
Premises which, directly or indirectly, is forbidden by public law,
ordinance or governmental regulation or which may be dangerous to life,
limb or property, or which may invalidate or increase the premium cost of
any policy of insurance carried on the Office Building or covering its
operations.
D. Subject to the provisions of Article XXIV, the Tenant shall not display,
inscribe, print, paint, maintain or affix any place in or about the Office
Building any sign, notice, legend, direction, figure or advertisement,
except on the doors of the Leased Premises and on any Directory Boards, and
then only such name or names and matters, and in such color, size, style,
place and material, as shall first have been approved by the Landlord in
writing, which approval shall not be unreasonably withheld.
E. The Tenant shall not advertise the business, profession or activities of
the Tenant conducted in the Office Building in any manner which violates
the letter or spirit of any code of ethics adopted by an recognized
association or organization pertaining to such business, profession or
activities, and shall not use the name of the Office Building for any
purpose other than that of business address of the Tenant. Any violation of
this paragraph may be restrained by injunction.
F. The Tenant shall not obstruct, or use for storage, or for any purpose other
than ingress and egress, the sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways of the Office
Building.
G. No bicycle or other vehicle, unless for display or promotional activities,
and no dog or other animal or bird shall be brought or permitted to be in
the Office Building or any part thereof.
H. The Tenant shall not make or permit any noise or odor that is objectionable
to other occupants of the Office Building to emanate from the Leased
Premises, and shall not create or maintain a nuisance thereon, and shall
not disturb, solicit or canvass any occupant of the Office Building, except
for community sanctioned charitable activities, and shall not do any act
tending to injure the reputation of the Office Building.
I. The Tenant shall not install any piano, phonograph, or other musical
instrument, or radio or television set in the Office Building or any
antennae, aerial wires or other equipment inside or outside the Office
Building, except as such of the foregoing described equipment as might be
required as an integral part of a bank security system, without, in each
and every instance, prior approval in writing by the Landlord. The use
thereof, if permitted, shall be subject to control by the Landlord to the
end that others shall not be disturbed or annoyed.
J. The Tenant shall not place or permit to be placed any article of any kind
on the window ledges or the exterior walls, and shall not throw or permit
to be thrown or dropped any article from any window of the Office Building.
K. The Tenant shall not undertake to regulate any thermostat, and shall not
waste water by tying, wedging or otherwise fastening open any faucet, and
shall exercise customary precaution to avoid the clogging or spillage of
any plumbing fixture.
L. No additional locks or similar devices shall be attached to any door or
window, except as subsequently required by bank facility security
precautions. No keys for any doors other than those provided by the
Landlord shall be made. If more than two keys for one lock are desired by
the Tenant, the Landlord may provide the same upon payment by the Tenant.
Upon termination of this Lease or of the Tenant's possession the Tennant
shall surrender all keys of the Leased Premises and shall make known to the
Landlord the explanation of all combination locks on safes, cabinets, and
vaults.
M. The Tenant shall be responsible for the locking of doors and the closing of
transoms and windows in and to the Leased Premises. Any damage resulting
from neglect of this clause shall be paid for by the Tenant.
N. If the Tenant desires sprinkler, telegraphic, telephonic, television,
burglar alarm or signal service, the Landlord will, upon request, direct
where and how connections and all wiring for such service shall be
introduced and run. Without such directions, no boring, cutting or
installation of pipes, wires or cables is permitted. All such work shall be
done at Tenant's sole cost.
O. If the Tenant desires and the Landlord permits blinds, shades, awnings,
drapes, or other form of inside or outside window covering, or windrow
ventilators or similar devices, they shall be furnished, installed and
maintained at the expense of the Tenant and must be of such shape, color,
material and make as approved by the Landlord, and installed per Landlord's
instructions.
P. All persons entering or leaving the building between the hours of 6:00 P.M.
and 8:00 A.M., Monday through Friday, or at any time on Saturdays, Sundays
or holidays, may be required to identify themselves to a watchman by
registration or otherwise and to establish their rights to enter or leave
the Office Building, except banking customers, invitees or licensees of the
Tenant during established banking hours on Saturdays. The Landlord may
exclude or expel any peddler, solicitor or beggar at any time.
Q. The Tenant shall not overload any floor. The Landlord may direct the
routing and location of safes and other heavy articles. Safes, furniture
and all large articles shall be brought through the Office Building and
into the Leased Premises at such times and in such manner as the Landlord
shall direct and at the Tenant's sole risk and responsibility. The Tenant
shall list all furniture, equipment and similar articles to be removed from
the Leased Premises, and the list must be approved at the Office of the
Office Building or by a designated person before building employees will
permit any article to be removed, except when articles removed are replaced
with articles of like kind and value.
R. Unless the Landlord gives advance written consent in each and every
instance, the Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heating device or
air conditioning apparatus in or about the Leased Premises, or carry on any
mechanical business therein, or use the Leased Premises for housing
accommodations or lodging or sleeping purposes, or do any cooking therein,
or any illumination other than electric light, or use or permit to be
brought into the Office Building any inflammable oils or fluids such as
gasoline, kerosene, naphtha and benzine, or any explosives or other
articles deemed extra hazardous to life, limb or property.
S. The Tenant shall not place or allow anything to be against or near the
glass or partitions or doors of the Leased Premises which may diminish the
light in, or be unsightly from, halls or corridors.
T. The Tenant shall not install in the Leased Premises any equipment which
uses a substantial amount of electricity without the advance written
consent of the Landlord, which consent shall not be unreasonably withheld.
The Tenant shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the Leased Premises, taking
into account the capacity of the electric wiring in the Office Building and
the Leased Premises and the needs of other tenants in the Office Building
and shall not use more than such safe capacity. The Landlord's consent to
the installation of electric equipment shall not relieve the Tenant from
the obligation not to use more electricity than such safe capacity. The
Tenant shall be liable to the Landlord for all damages resulting from a
violation of any of the provisions of this Paragraph (T) of Article VI
unless the Landlord's consent is first obtained.
U. No item of any kind shall be secured to the ceiling of the Leased Premises,
nor shall any shelves, pictures, cabinets, fixtures or equipment of any
kind be attached to the floors, walls and partitions of the Leased Premises
without first procuring the express written consent of Landlord and in
strict compliance with the method of attachment specified by Landlord.
V. In addition to all other liabilities for breach of any covenant of this
Article VI, the Tenant shall pay to the Landlord all damages caused by such
breach and shall also pay to the Landlord an amount equal to any increase
in insurance premium or premiums caused by such breach.
ARTICLE VII. CERTAIN RIGHTS RESERVED TO THE LANDLORD
The Landlord reserves the following rights: (a) to have access for the Landlord
and other tenants of the Office Building to any mail chutes located on the
Leased Premises according to the rules of the United States Post Office; (b)
during the last ninety (90) days of the term, or any part thereof, if during or
prior to that time the tenant vacates the Leased Premises, to decorate, remodel,
repair, alter or otherwise prepare the Leased Premises for reoccupancy; (c) to
notify designated officers of the Tenant of the need for access to the Leased
Premises during hours when the Tenant's Bank is closed and to be promptly
provided entrance to the Leased Premises after notification, but in no event
shall the Landlord be entitled to passkeys to the Leased Premises; (d) subject
to the provisions of Article XVI, to grant to anyone the exclusive right to
conduct any particular business or undertaking in the Office Building; (e) to
exhibit the Leased Premises to others; (f) to take any and all measures,
including inspections, repairs, alterations, additions and improvements to the
Leased Premises or to the Office Building, as may be necessary or desirable for
the safety, protection or preservation of the Leased Premises or the Office
Building or the Landlord's interest, or as may be necessary or desirable in the
operation of the Office Building, or for the construction or remodeling of other
space in the Office Building.
The Landlord may enter upon the Leased Premises and may exercise any or all of
the foregoing rights hereby reserved without being deemed guilty or an eviction
or disturbance of the Tenant's use or possession and without being liable in any
manner in the Tenant.
ARTICLE VIII. WAIVER OF CERTAIN CLAIMS
All personal property in the Leased Premises shall be at the risk of the Tenant
only, and Landlord shall not be liable for any damage, either to person or
property, sustained by Tenant or other persons, due to the Office Building, or
any part or appurtenance thereof, or the machinery or appliances used in
connection therewith, becoming out of repair, or in defective condition, or
arising from the bursting or leaking of water, gas, sewer or steam pipes.
ARTICLE IX. SERVICE
The Landlord shall furnish heat, air conditioning, elevator service, water and
electricity; provided, however, that Landlord shall not be liable for any
damages for failure to perform as herein provided or for any stoppage of any
part of the mechanical plant of the building, arising from riot, strikes,
unavoidable accident or casualty or other like or unlike causes beyond the
control of the Landlord or for any stoppage thereof for needful repairs or fro
improvements, provided Landlord uses reasonable diligence to resume such
service.
Heat will be provided by Landlord during reasonable business hours during the
regular heating season between October 1st and May 15th, and at such other times
whenever heat shall, in Landlord's judgment, be required for the comfortable
occupancy of the Leased Premises, and air conditioning will be provided by
Landlord during Tenant's required business hours during the regular air
conditioning season between the dates of May 16th and September 30th, and at
such other times whenever air conditioning shall, in Landlord's judgment, be
required for the comfortable occupancy of the Leased Premises; provided,
however, that in either case, Landlord shall not be liable for any interruption
in said services due to breakage of apparatus, stoppage for needful repairs or
from any other causes beyond the control of Landlord.
ARTICLE X. JANITOR SERVICES
The Tenant shall provide its own janitor service in and about the interior of
the Leased Premises. The Tenant shall not provide any janitor service in and
about the Leased Premises except through a janitor contractor or Tenant's
employees who are, and shall continuously be, in each and every instance,
satisfactory to the Landlord.
ARTICLE XI. TAXES
Tenant shall pay all taxes assessed on its merchandise, trade fixtures and
equipment in or upon the Leased Premises and also general license or franchise
taxes, if any, which may be required for the conduct of Tenant's business.
Landlord will pay for all real estate taxes and special assessments assessed on
the Property during the term, and any renewal periods, except Tenant shall
contribute thereto as follows:
The amount of the real estate taxes for the first full calendar year in which
the Property is assessed at its completed full value shall thereafter constitute
the amount of the real estates taxes which Landlord shall bear for the second
full calendar year thereafter and for each subsequent calendar year of the term
and any renewal periods. An amount equal to the increase, if any, in such real
estate taxes over and above such amount for the first full calendar year shall
be first determined. Tenant shall pay to Landlord for the second full calendar
year and each full calendar year thereafter, including renewal periods,
(prorated for the last year if the term ends other than on the last day of
December) that portion of the excess as shall be computed on the basis of the
proportion which the square foot area of the Leased Premises bears to the total
square foot area of all the rentable floor area of Landlord in the Office
Building, provided, that Tenant shall not be required to pay such amount to
Landlord more than thirty (30) days prior to the due date of the installment of
tax involved.
Payments required under this Article shall be made to Landlord upon receipt by
Tenant of written notice thereof from Landlord which notice shall be sent at
least thirty (30) days before the last day on which Landlord may make payment
thereof, without interest or penalty, except that Xxxxxx's payment for the
period in which the term ends shall be made no later than the end of the term
and shall be based upon the latest official assessment.
Landlord shall make available for inspection by Tenant upon request, all bills
required to be paid, in part, by Tenant under this Article as well as the bill
for the first full tax year herein-before referred to.
Tenant shall have the right in good faith, at its expense, in Landlord's and/or
Tenant name, to contest or review in legal proceedings, or in such other manner
as it deems suitable any such real estate taxes, provided that such contest or
review operates to suspend the collection of such real estate taxes or prevents
the sale of the Property to satisfy the same. Xxxxxxxx will join in any contest
or protest provided for in this paragraph at the request of Tenant, but at the
Tenant's sole cost and expense, and as a condition of such joinder may require
reasonable indemnity against any costs or other damage by reason of such
joinder.
Tenant shall also have the right, if it so desires, to endeavor to obtain a
lowering of the assessed valuation of the Property or in the improvements placed
thereon, and Landlord agrees to cooperate in such endeavor at no expense to it.
ARTICLE XII. REPAIRS
Landlord shall at all times during the term of this Lease, or any extension
thereof, keep the Office Building and the Property, both exterior and interior,
structural and otherwise, including plumbing, heating, electrical, air
conditioning, parking lot (including snow removal), yard area and common areas
in good repair, and shall make all said repairs at Landlord's sole expense,
provided, however, that Landlord shall not be responsible for the repair of any
damage caused by any act or negligence of Tenant, its employees, agents,
licensees, or contractors.
At any time or times, the Landlord, either voluntarily or pursuant to
governmental requirement, may, at the Landlord's own expense, make additions,
repairs, alterations or improvements in or to the Office Building or any part
thereof, including the Leased Premises, and, during operations, after timely
notice to Tenant, may close entrances, doors, corridors, elevators or other
facilities, temporarily, all without any liability to the Tenant by reason of
interference, inconvenience or annoyance. The Tenant shall pay the Landlord for
overtime, having first consented to the same, and for any other expense incurred
in the event such additions, repairs, alterations, or improvements in the Leased
Premises are not make during ordinary business hours at the Tenant's request.
ARTICLE XIII. UNTENANTABILITY DUE TO DAMAGE BY
FIRE, THE ELEMENTS OR OTHER CASUALTY
If, during the term of this Lease, the Leased Premises are destroyed by fire,
the elements or other casualty so as to render the same wholly unfit for
occupancy, then Landlord or Tenant shall have the right to cancel and terminate
this Lease within 30 days from the date of any such damage or destruction by
written notice to the other party, and in the event of such cancellation or
termination, then Tenant shall immediately surrender the Leased Premises and all
interest therein to Landlord, and Tenant shall pay rent only to the time of said
damage. In the event the Landlord and Tenant shall not cancel or terminate the
Lease then and in such event, the Landlord shall repair and restore the same
with all reasonable speed, and the rent shall not run or accrue after the damage
or destruction or while the process or repairs is going on, the rent shall
recommence immediately after such repair or restoration shall be completed; but
if the Leased Premises shall be only partially damaged by fire, the elements or
other casualty and a portion of the Leased Premises remain fit for occupancy,
then said Xxxxxxxx agrees that it will repair the same within a reasonable time,
and in that case, the rent accrued or accruing shall xxxxx only in proportion to
the area deemed to be untenantable to the Tenant.
Xxxxxxxx's obligation to repair and restore hereunder is subject to restriction
or regulation then imposed or enacted by duly constituted public authority.
ARTICLE XIV. CONDEMNATION
In the event that any portion of the Leased Premises shall be taken or condemned
for public use, the Landlord shall rebuild and restore the remaining portion
thereof so as to make an architecturally complete unit, and the rental provided
for under the provisions of Article III shall be reduced in the proportion which
the actual area of the space taken bears to the entire floor area leased
hereunder. Provided, however, that in the event that twenty-five percent (25%)
or more of the total ground floor area of Leased Premises shall be taken, either
Tenant or Landlord may cancel and terminate this Lease by serving upon the other
party a written notice of its intention so to do within thirty (30) days after
the condemnation judgment shall be entered, in which event Landlord shall not be
required to restore or rebuild the Leased Premises. It is agreed, however, that
in the event that less than twenty-five percent (25%) of the total ground floor
area of Leased Premises shall be taken, or if more than twenty-five percent
(25%) is taken and the Lease is not otherwise cancelled or terminated by either
party hereto in accordance with termination rights reserved herein, then the
premises shall be restored as a foresaid. Tenant shall have no right or claim
for any portion of Landlord's condemnation award, and shall have no right or
claim based on the condemnation of the Tenant's space or of Tenant's leasehold
interest therein; except, however, in the event the Lease is terminated and the
Tenant shall not have fully authorized expenditures made for alteration, changes
or improvements to the Leased Premises, the Landlord shall assign to the Tenant
so much of any award payable as the result of such condemnation as shall equal
the unamortized portion of Xxxxxx's said expenditures. Said unamortized portion
of Xxxxxx's said expenditures by a fraction, the numerator of which shall be the
number of remaining years of the lease term at the time of condemnation and the
denominator of which shall be the number of the remaining years of the lease
term at the time such expenditures shall have been made plus the number of years
for which the lease term may have been subsequently extended. In no event shall
Tenant have any right on account of the condemnation of any portion of the yard
area, parking, driving or walking areas referred to in Article XXIX hereof,
provided, however, that in the event of the condemnation of any portion of the
exclusive automobile spaces for Tenant's customer parking and convenience or the
adequate access to and from Tenant's drive-up banking facility, as provided in
Article XXIX hereof, the Landlord shall redesign the parking area of the
Property or parking area upon adjoining property if controlled by Landlord in
such a manner as to provide the Tenant with equivalent exclusive parking spaces
and equivalent adequate access to and from Tenant's drive-up banking facility.
ARTICLE XV. ALTERATIONS AND REMOVAL OF FIXTURES
A. The Tenant shall not make any alterations in or additions to the Leased
Premises without the Landlord's advance written consent in each and every
instance, which consent shall not be unreasonably withheld. If the Landlord
consents to such alterations or additions, before commencement of the work
or delivery of any materials onto the Leased Premises or into the Office
Building, the Tenant shall furnish the Landlord with plans and
specifications, names and addresses of contractors, copies of contracts,
necessary permits and indemnification in form and amount satisfactory to
Landlord and waivers of liens against any and all claims, costs, damages,
liabilities and expenses which may arise in connection with the alterations
or additions. Whether the Tenant furnishes the Landlord the foregoing or
not, the Tenant hereby agrees to hold the Landlord harmless from any and
all liabilities of every kind and description which may arise out of or be
connected in any way with said alterations or additions. Before commencing
any work in connection with alterations or additions, the Tenant shall
furnish the Landlord with certificates of insurance from all contractors
performing labor or furnishing materials insuring the Landlord against any
and all liabilities which may arise out of or be connected in any way with
said additions or alterations. The Tenant shall pay the cost of all such
alterations and additions and also the cost of decorating the Leased
Premises occasioned by such alterations and additions. Upon completing any
alterations or additions, the Tenant shall furnish the Landlord with
contractor's affidavits and full and final waivers of lien and receipted
bills covering all labor and materials expended and used. All alterations
and additions shall comply with all insurance requirements and with all
ordinances and regulations of the City of West Des Moines, County of Polk,
or any department or agency thereof and with the requirements of all
statutes and regulations of the State of Iowa or of any department or
agency thereof. All alterations and additions shall be constructed in a
good and workmanlike manner and only good grades of materials shall be
used. The Tenant shall permit the Landlord to supervise construction
operations in connection with alterations or additions if the Landlord
requests to do so. All alterations or additions, temporary or permanent, in
or upon the Leased Premises, whether placed there by the Tenant or by the
Landlord, shall become the Landlord's property and shall remain upon the
Leased Premises at the termination of this Lease by lapse of time or
otherwise without compensation or allowance or credit to the Tenant.
B. All bank equipment, trade fixtures and furnishings of the Tenant shall
remain Tenant's property at all times and may be removed at the termination
of this Lease, by lapse of time or otherwise, any damage to the Leased
Premises in the course of such removal to be repaired by Tenant at Tenant's
cost and expense. If the Tenant does not remove said bank equipment, trade
fixtures and furnishings from the Leased Premises prior to the end of the
term, however ended, the Tenant shall be conclusively presumed to have
conveyed the same to the Landlord under this Lease as a bill of sale
without further payment or credit by the Landlord to the Tenant.
ARTICLE XVI. RESTRICTIVE COVENANT AND COVENANT OF ACCESS
Attached hereto, marked Exhibit "D" and made a part hereof is a proposed plat of
Westown Park; outlined in red thereon is a portion of said Westown Park
(hereinafter referred to as the "Restrictive Covenant Area"), of which the
Property is a part, and the balance of which Landlord, or its successors or
assigns, may acquire for future development; outlined in blue thereon is
proposed Westown Parkway which Landlord, or its successors or assigns, may
dedicate to the City of West Des Moines, Iowa as a public street.
Landlord, or its successors and assigns, during the term of this Lease, or any
extensions thereof, shall not hereafter lease, rent, occupy or permit to be
occupied or sell any property within the boundaries of the Restrictive Covenant
Area without a covenant prohibiting the use or occupancy of such property as a
Bank or a State or Federal chartered savings and loan association or any other
entity performing the function of checking (which is defined to be that service
normally performed by a Bank), Federal insured savings, or rental to general
public of safe deposit boxes. This restrictive covenant is deemed to run with
the title to the land which is the subject of this Article and will be set forth
in any memorandum of this Lease which is filed of record. This restrictive
covenant shall remain in force and effect so long as the Tenant occupies the
Leased Premises.
Landlord shall provide two accesses, for purposes of ingress and egress, to the
Property as follows:
1. One access to 22nd Street, West Des Moines, Iowa, via proposed Westown
Parkway, and
2. One access as indicated on Exhibit "E" attached hereto and made a part
hereof.
ARTICLE XVII. TENANT'S DEFAULT
a. The following events shall be deemed to be events of default by Tenant
under this Lease:
(1) Tenant shall have failed to pay any installment of rent or any other
charge provided herein, or any portion thereof when the same shall be
due and payable, and the same shall remain unpaid for a period of ten
(10) days after written notice from Landlord; or
(2) Tenant shall have failed to comply with any other provisions of this
Lease and shall not cure such failure within (30) days after Landlord,
by written notice, has informed Tenant of such noncompliance (in the
case of a default which cannot, with due diligence, be cured within a
period of thirty (30) days, Tenant shall have such additional time to
cure same as may reasonably be necessary, provided Xxxxxx proceeds
promptly and with due diligence to cure such default after receipt of
said notice); or
(3) If any voluntary or involuntary petition or similar pleading under any
section or sections of any bankruptcy act shall be filed by or against
Tenant, or any voluntary or involuntary proceeding in any court or
tribunal shall be instituted to declare Tenant insolvent or unable to
pay Xxxxxx's debts; or
(4) Tenant shall make an assignment for the benefit of creditors; or
(5) Tenant shall cease to conduct its normal business operations in the
Leased Premises or shall vacate or abandon the Leased Premises and
leave same vacated or abandoned for a period of ten (10) days; or
(6) Tenant shall do or permit to be done anything which creates a lien
upon the Leased Premises and Xxxxxx fails to remove said lien within
thirty (30) days after written notice from Landlord,
the Landlord upon five (5) days written notice to Tenant may elect either
(a) to cancel and terminate this Lease, or (b) to terminate Tenant's right
to possession only without terminating the Lease.
In the event of election under (b) above to terminate Xxxxxx's right to
possession only, Landlord may, at Landlord's option, enter into the Leased
Premises and take and hold possession thereof, without such entry into
possession terminating this Lease or releasing Tenant in whole or in part
from Xxxxxx's obligation to pay the rent hereunder for the full stated
term. Upon such re-entry, Landlord may remove all persons and property from
the Leased Premises and such property may be removed and stored in a bonded
public warehouse at the cost of and for the account of Tenant, all without
service of notice or resort to legal process and without being deemed
guilty of trespass. Upon and after entry into possession without
termination of the Lease, Landlord shall use its best efforts to relet the
Leased Premises, or any part thereof, for the account of Tenant, to any
person, firm or corporation, other than Tenant, for such rent, for such
time and upon such terms as Landlord, in Landlord's sole discretion, shall
determine, but Landlord shall not be required to accept any tenant offered
by Xxxxxx, unless the prospective successor tenant will pay the same rental
rates as provided for herein, or to observe any instruction given by Tenant
about such reletting. In any such case, Landlord may make repairs and
redecorate the Leased Premises as may be reasonably necessary, and Tenant
shall, upon demand, pay the costs thereof, together with Landlord's expense
of reletting. If the consideration collected by Landlord upon any such
reletting for Xxxxxx's account, and after deduction all expenses incident
thereto, including reasonable brokerage fees and legal expenses, is not
sufficient to pay monthly the full amount of the rent provided in this
Lease, Tenant shall pay to Landlord the amount of each monthly deficiency
upon demand. In the event that Landlord shall have terminated Xxxxxx's
right to possession only, Landlord shall have the right to cancel and
terminate this Lease by serving five (5) days written notice on Tenant of
such further election and to pursue any remedy of law or in equity that may
be available to Landlord.
B. In case Landlord shall, without default on its part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall pay all costs,
expenses and reasonable attorneys' fees incurred or paid by Landlord in
connection with such litigation, the Tenant first having been given an
opportunity to defend against such claims and having failed to do so.
Tenant shall also pay all costs, expenses and reasonable attorneys' fees
that may be incurred or paid by Landlord in enforcing the covenants and
agreements in this Lease provided that Landlord prevails in any litigation
commenced by it to enforce same.
C. Landlord shall have at all times a valid lien for all rentals and other
sums of money becoming due hereunder from Tenant, upon all goods, wares,
equipment, fixtures, furniture and other personal property of Tenant
situated on the Leased Premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as
well as any and all other sums of money then due to Landlord hereunder
shall first have been paid and discharged. Upon the concurrence of an event
of default by Tenant, Landlord may, in addition to any other remedies
provided herein or by law, enter upon the Leased Premises and take
possession of any and all gods, wares, equipment, fixtures, furniture and
other personal property of Tenant situated on the Leases Premises without
liability for trespass or conversion, and sell the same with notice at
public or private sale, with or without having such property at the sale,
at which Landlord or its assigns may purchase, and apply the proceeds
thereof, less and all expenses connected with the taking of possession and
sale of the property, as a credit against any sums due by Tenant to
Landlord. Any surplus shall be paid to Tenant, and Xxxxxx agrees to pay any
deficiency forthwith. Alternatively, the lien hereby granted may be
foreclosed in any form provided by law. The statutory lien for rent is not
hereby waived, the express contractual lien herein granted being in
addition and supplementary thereto.
D. Anything in this Article XVII to the contrary notwithstanding, the maximum
claim of the Landlord for damages of indemnity for injury resulting from
the rejection or abandonment of the unexpired Lease, in the event that the
Tenant Bank is closed or taken over by the Banking Authority of the State
of Iowa or any other bank supervisory authority, shall in no event be in an
amount exceeding the rental reserved by the Lease, without acceleration,
for the year next succeeding the date of the surrender of the Leased
Premises to the Landlord or the date or re-entry of the Landlord, whichever
first occurs, whether before or after the closing of the Tenant Bank, plus
an amount equal to the unpaid rent accrued, without acceleration up to such
date.
ARTICLE XVIII. HOLDING OVER
In the event Tenant, with Xxxxxxxx's consent, remains in possession of the
Leased Premises after the expiration of this Lease and without the execution of
a new lease, it shall be deemed to be occupying the Leased Premises as a tenant
from month to month at a rental equal to the rental herein provided and
otherwise subject to all the conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month to month tenancy.
ARTICLE XIX. LANDLORD'S DEFAULT
Landlord shall in no event be charged with default in the performance of any of
its obligations hereunder unless and until Landlord shall have failed to perform
such obligations within thirty (30) days (or such additional time as is
reasonably required to correct any such default) after written notice by Tenant
to Landlord properly specifying wherein Landlord has failed to perform any such
obligation.
Should Landlord remain in default in the performance of its obligations
hereunder after the lapse of thirty (30) days (or such additional time as is
reasonably required to correct any such default) after said written notice,
Tenant shall be entitled to perform the same for the account of and at the
expense of Landlord. In such event, Landlord shall reimburse Tenant on account
thereof on demand, with interest at the rate of nine percent (9%) per annum.
Tenant agrees that in the event Landlord is in default under this Lease, the
Tenant shall give simultaneous written notice of such default to the holder of
record of the first mortgage covering the Leased Premises provided Tenant shall
have first been notified, in writing, of the name and address of such mortgage.
Xxxxxx further agrees that the said holder of the first mortgage shall be
permitted to correct or remedy such default within the same period of time
allotted to Landlord.
ARTICLE XX. REMEDIES CUMULATIVE
No waiver by Landlord or Tenant of a breach of any covenants, agreements,
obligations or conditions of this Lease shall be construed to be a waiver of any
future breach of the same or other covenant, agreement, obligation or condition
hereof. No receipt of money by Landlord from Tenant after the termination of
this Lease, or after the commencement of any suit or after final judgment of
possession of the Leased Premises, shall reinstate, continue or extent the terms
of this Lease or affect any notice, demand or suit. The rights and remedies
hereby created are cumulative, and the use of one remedy shall not be taken to
exclude or waive the right to the use of another, or exclude any other right or
remedy allowed by law.
ARTICLE XXI. ASSIGNMENT AND SUBLETTING
Tenant shall not (except as hereinafter stipulated) assign this Lease and/or
sublet the Leases Premises, or any part thereof, without in each instance
obtaining the written permission of Landlord; however, Xxxxxxxx's permission
shall not be unreasonably withheld. It shall not be considered unreasonable for
Landlord to withhold its consent for assigning or subletting for any use or to
any tenant which would be in violation of any restrictive or exclusive
agreements theretofore entered into by Landlord with respect to the Office
Building. The consent of Landlord to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. This prohibition against assigning or subletting shall
be construed to include a prohibition against any assignment or subletting by
operation of law. If this Lease be assigned, or if the Leased Premises or any
part thereof be underlet or occupied by anybody other than Tenant, Landlord may
collect rent from the assignee, under-tenant or occupant, and apply the net
amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, under-tenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. Notwithstanding any assignment or sublease,
Tenant shall remain fully liable on this Lease and shall not be released from
performing any of the terms, covenants and conditions of this Lease unless
otherwise consented to by the Landlord in the documents of assignment or
subletting.
ARTICLE XXII. INSURANCE AND IDEMNITY
A. Tenant shall, during the entire term hereof, keep in full force and effect
a policy of public liability and property damage insurance with respect to
the Leased Premises, and the business operated by Tenant and any subtenants
of Tenant in the Leases Premises, in which the limits of public liability
shall be not less than $300,000 per person and $1,000,000 per accident and
in which the property damage liability shall be not less than $50,000. The
policy shall name Landlord and Tenant as insureds, and shall contain a
clause that the insurer will not cancel or change the insurance without
first giving the Landlord ten (10) days prior written notice. The insurance
shall be in the insurance company who is then writing Landlord's general
public liability insurance under paragraph D of this Article XXII, provided
that premiums for said insurance coverage are competitive in amounts for
similar insurance which could be secured by the Tenant from other general
public liability insurance carriers, and a copy of the policy or a
certificate of insurance shall be delivered to Landlord.
B. Tenant shall indemnify Landlord and save it harmless from and against any
and all claims, actions, damages liability and expense in connection with
loss of life, personal injury and/or damage to property arising from or out
of any occurrence in, upon or at the Leased Premises, or the occupancy or
use by Tenant of the Leased Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents, employees,
contractors, sublessees, concessionaires or licenses, except if caused by
the act or neglect of Landlord, its agents or employees. This indemnity
shall apply in connection with claims, causes of actions or judgments
arising out of the use of the common areas of the Property, in the event of
the carelessness and neglect of the Tenant, its agents, employees,
contractors, sublessees, concessionaires or licenses, and shall also apply
to Tenant's occupancy of the Leased Premises during the installation of its
bank equipment, trade fixtures and furnishings even though such occupancy
may be prior to the commencement of the lease term.
C. The Landlord likewise agrees to indemnify the Tenant and save the Tenant
harmless from any and all demands, claims, causes of action or judgments
and all reasonable expenses incurred in investigating or necessitating the
same for the injury to person, loss of life or damage to property occurring
on the common areas of the Property, except if caused by the act or neglect
of Tenant, its agents, employees, contractors, sublessees, concessionaires
or licensees.
D. Landlord shall carry public liability insurance on the common areas of the
Property in the minimum amounts of $300,000 per person and $1,000,000 per
accident and $50,000 for property damage, naming the Tenant as an insured
therein and providing the Tenant with a certificate of such insurance.
E. From and after the date of Tenant takes possession of the Lased Premises,
the Landlord shall insure the Leased Premises against damage or destruction
by fire or other casualties insured under a standard extended coverage
endorsement. Said insurance shall be in an amount equal to not less than
80% of the insurable value of the improvements thereof and the policies
thereof shall bear an endorsement to the effect that Tenant shall not
notified not less than 10 days in advance of modification or cancellation
of such insurance. Copies of such policies or certificates evidencing the
existence thereof shall promptly be delivered to the Tenant upon written
request therefore.
ARTICLE XXIII. PROTECTION FROM SUBROGATION
Neither Landlord not Tenant shall be liable to the other for any business
interruption or any loss or damage to property or injury to or death of persons
occurring on the Leases Premises or in any other areas of the Office Building,
in other areas of the Property, or the adjoining sidewalks, streets or alleys,
or in any manner growing out of or connected with Tenant's use and occupation of
the Leased Premises, or the condition thereof or the condition of other areas of
the Office Building, or other areas of the Property, or of sidewalks, streets or
alleys adjoining, caused by the negligence or other fault of Landlord or Tenant
or of their respective agents, employees, subtenants, licensees or assignees, to
the extent that such business interruption or loss or damage to property or
injury to or death of persons is covered by or indemnified by proceeds received
from insurance carried by the other party (regardless of whether such insurance
is payable to or protects Landlord or Tenant or both) or for which such party is
otherwise reimbursed; and Landlord and Tenant each hereby respectively waives
all right of recovery against the other, its agents, employees, subtenants,
licensees and assignees, for any such loss or damage to property or injury to or
death of persons to the extent the same is covered or indemnified by proceeds
received from any such insurance, or for which reimbursement is otherwise
received. Nothing in this Article contained shall be construed to impose any
other or great liability upon either Landlord or Tenant than would have existed
in the absence of this Article.
ARTICLE XXIV. EXTERIOR SIGNS
The Tenant shall have the right, at its sole expense, to construct, repair and
maintain a sign entitled "West Bank" on the exterior of the Office Building,
provided, however, the size, design and location of said sign shall be subject
to the written approval of Landlord which approval shall not be unreasonably
withheld. Upon the expiration of this Lease, or any renewals thereof, by lapse
of time or otherwise, said sign shall be removed by Tenant and any damage to the
Office Building caused by such removal shall be paid to Landlord. The Landlord
shall have the right, at its sole expense, to construct, repair and maintain on
each exterior entrance to the Office Building signs entitled "West Bank Office
Building". Other than as herein provided, no other exterior signs shall be
permitted on the Office Building without the approval of both Landlord and
Tenant, which approvals shall not be unreasonably withheld. In the determination
of whether a particular approval or lack of approval is reasonable, it is the
intention of both Landlord and Tenant to maintain an attractive extension to the
Office Building and that aestheticism played an important role in the
limitations on exterior signs contained in this Article XXIV.
ARTICLE XXV. AUTOMATIC EXTENSIONS
The Landlord and the Tenant agree that this Lease shall automatically extend for
three (3) periods of five (5) years each on and after the completion of the
original term upon the same terms and conditions and at the same rental as in
the original term of this Lease except as otherwise provided herein; provided,
however, that Tenant shall have the right and privilege of canceling this Lease
at the end of the original term or at the end of any extended period upon Tenant
giving to Landlord at least 180 days' notice of such cancellation prior thereto
and thereupon all succeeding extensions shall be inoperative and of no force and
effect.
ARTICLE XXVI. OPTION TO PURCHASE
A. Landlord hereby grants unto the Tenant during the last three (3) months of
the tenth (10th) year, the last three (3) months of fifteenth (15th) year
and the last three (3) months of the twentieth (20th) year of this Lease,
and, provided the options to renew are exercised, during the last three (3)
months of the twenty-fifth (25th) year, the last three (3) months of the
thirtieth (30th) year and the last three (3) months of the thirty-fifth
(35th) year of this Lease and during a period of thirty (30) days following
the date that the Tenant is advised, in writing, by the Landlord that 51%,
or more, of the common stock of the Landlord (Investors Equity of Iowa,
Inc.) is acquired by any third party, the right, at Tenant's option, to
purchase Landlord's interest in the Ground Lease and the improvements now,
or hereafter, erected on the Property for a purchase price as determined in
Paragraph B hereof subject to the following:
(1) mortgages or record;
(2) zoning and building laws or ordinances,
(3) covenants, restrictions, easements and agreements of record,
(4) other leases on the Office Building.
B. The purchase price shall be an amount determined by multiplying 6.30 times
the annual gross rental, as hereinafter defined, from the Office Building
based upon 100% occupancy. If there is vacant space in the Office Building
at the time of exercise of the option, said vacant space shall be deemed to
be occupied and at the same annual gross rental as was being collected from
the last tenant who occupied said vacant space. The term "annual gross
rental" for purposes of this Article XXVI-B shall include the following:
(1) The annual rent for each tenant of the Office Building. In this Lease
such would be Article III-A.
(2) Any increases as a result of the Consumer Price Index for each tenant
of the Office Building. In this Lease such would be Article III-B.
(3) Any increases in real estate taxes paid by each tenant of the Office
Building since the most recent Consumer Price Index adjustment. In
this Lease such would be Article XI but as modified by this
subparagraph in defining annual gross income.
To illustrate the application of the formula, as herein provided, an
example based upon hypothetical figures is attached thereto, marked Exhibit
"F" and made a part hereof.
In the computation of annual gross rental for the purpose of determining
the purchase price to be paid by the Tenant on any date which the option to
purchase may be exercised, if the Landlord, or any related party to the
Landlord, occupy a combined area of more than 1,000 square feet of rental
space in the Office Building, the square foot annual rental rate of the
Landlord or any related party shall not exceed by more than five percent
(5%) the annual rental rate then being paid by the Tenant on the date of
the exercise of the option. For purposes of this paragraph, a "related
party" shall be defined as any parent, subsidiary or successor corporation
of the Landlord; any partner of a general or limited partnership in which
the Landlord is a partner; or any corporation, partnership or limited
partnership in which the Landlord, Directors and/or Officers of the
Landlord own directly or indirectly more than a 49% percent combined
ownership interest.
C. Upon receipt of Xxxxxx's notice of election to exercise the option granted
herein, Landlord shall immediately cause the abstract of title to be
continued. Upon receipt of such abstract of title, Tenant shall have a
reasonable time in which to examine same, and upon approval of same, shall
tender the purchase price to Landlord less the outstanding balance son any
encumbrances. Landlord shall thereupon deliver to Tenant an assignment of
its interest in the Ground Lease and an instrument conveying its interest
in the improvements on the Property, all subject to the matters indicated
in paragraph A hereof. Purchase by Tenant under the option contained herein
shall terminate this Lease as of the date of assignment and conveyance, and
insurance, interest, rentals and municipal charges shall be adjusted pro
rata as of said date of assignment and conveyance. Real estate taxes for
the year in which the option to purchase is exercised are to be prorated
from January 1 of that year to said date of assignment and conveyance and
the prorating shall be on the basis of the amount of the previous year's
real estate taxes, provided, however, that Landlord shall be entitled to a
proportionate share of Tenant's participation in the payment of real estate
taxes provided for in all leases on the Office Building as of said date of
assignment and conveyance and, provided further, that Landlord shall be
entitled to retain any escrow funds for insurance premiums and real estate
taxes then being held by any mortgage of the Property.
ARTICLE XXVII. FIRST-REFUSAL OPTION TO PURCHASE
Without limiting or modifying the rights granted to Tenant in Article XXVI
hereof, it is agreed that if Landlord, or Landlord's successors or assigns, at
any time during the continuance of this Lease receives a bona fide offer to
purchase its interest in the Ground Lease and the improvements now, or
hereafter, erected thereon, and desires to sell under the terms of said offer,
Landlord shall give Tenant ten (10) days notice, in writing, of such bona fide
offer, setting forth the name and address of the proposed purchaser, the
purchase price, and the terms of payment thereof. Tenant shall have the first
option to purchase within the above mentioned ten (10) day period at the same
price and on the same terms of any such bona fide offer to purchase. In the
event that the Tenant does not exercise its option to purchase within the
aforesaid period, this Lease and all of its terms and conditions, including
Tenant's option to purchase for a fixed sum contained in Article XXVI hereof,
shall nevertheless remain in full force and effect, and the Landlord, or
Xxxxxxxx's successors or assigns, shall be bound thereby. In the event that a
sale is, for any reason, not consummated purchase to the bona fide offer set
forth in the notice, the Tenant shall have, upon the same conditions of
notification, the continuing first option to purchase upon the terms and
conditions of any subsequent bona fide offer of offers to purchase.
Upon receipt of Xxxxxx's notice of election to exercise the option granted
herein, Landlord shall immediately cause the abstract of title to be continued.
Upon receipt of such abstract of title, Tenant shall have a reasonable time in
which to examine same, and upon approval of same, shall tender the purchase
price to Landlord less the outstanding balances on any encumbrances. Landlord
shall thereupon deliver to Tenant an assignment of its interest in the Ground
Lease and an instrument conveying its interest for the improvements on the
Property, all subject to the matters indicated in Article XXVI-A hereof.
Purchase by Tenant under the option contained herein shall terminate this Lease
as of the date of assignment and conveyance, and insurance, interest, rentals
and municipal charges shall be adjusted pro rata as of said date of assignment
and conveyance. Real estate taxes for the year in which the option to purchase
is exercised are to be prorated from January 1 of that year to said date of
assignment and conveyance and the prorating shall be on the basis of the amount
of the previous year's real estate taxes, provided, however, that Landlord shall
be entitled to a proportionate share of Tenant's participation in the payment of
real estate taxes provide for in all leases on the Office Building as of said
date of assignment and conveyance and, provided further, that Landlord shall be
entitled to retain any escrow funds for insurance premiums and real estate taxes
then being held by any mortgagee of the Property.
ARTICLE XXVIII. FIRST-REFUSAL OPTION TO LEASE
Commencing two (2) years after the term commencement date of this Lease and
continuing thereafter during the continuance of this Lease, and any renewals
thereof, as vacant space becomes available in the Office Building, Landlord
shall give Tenant ten (10) days notice, in writing, setting forth the space
available and the general terms and conditions of the proposed lease. Tenant
shall have the option to lease the additional space within the above mentioned
ten (10) day period on the general terms and conditions as set forth in
Landlord's notice, and if said option is exercised, a lease shall be entered
into between Landlord and Tenant incorporating the general terms and conditions
as set forth in Landlord's notice and such other terms and conditions as shall
be agreed upon by the parties. In the event that Tenant does not exercise its
option to lease said vacant space within the aforesaid period, this option shall
nevertheless remain in full force and effect as future vacant space becomes
available. In the event said vacant space is not, for any reason, leased
pursuant to the said notice the Tenant shall have, upon the same conditions of
notification, the continuing first option to lease said vacant space upon the
terms of any subsequent notice from Landlord.
ARTICLE XXIX. PARKING
X. Xxxxxxxx does hereby grant to Tenant during the term of this Lease, and any
renewals, the exclusive use of fifteen (15) automobile spaces for Tenant's
customer parking and convenience and adequate access to and from Tenant's
drive-up banking facility, the exact location of which spaces and access
shall be mutually agreed upon by Landlord and Tenant, from time to time.
The Landlord shall be obligated to protect, insofar as possible, the rights
of Tenant as above described.
B. Landlord does hereby grant to Tenant during the term of this Lease, any
renewals, a non-exclusive easement to the balance of the parking area, yard
area, and all drives and walking areas, not otherwise provided in this
Article XXIX, as from time to time constituted on the Property, with rights
of ingress and egress to and from the Property, and for free parking; said
areas to be used by Tenant, its invitees, customers, and the general
public, together with and subject to the same rights granted from time to
time by Landlord to other tenants and customers of the Office Building.
Landlord does further grant to Tenant during the term of this Lease, any
renewals, the privilege of temporarily parking such delivery equipment as
may be reasonably required in the conduct of Tenant's business or
profession, in areas designated by Landlord from time to time, and the
privilege in common with other tenants of the Office Building to have their
employees park in the areas designated by the Landlord from time to time.
Upon written request from Landlord, the Tenant shall furnish the automobile
license numbers assigned to its employees' automobiles.
ARTICLE XXX. SUBORDINATION
The rights of the Tenant under this Lease shall be and are subject and
subordinate at all times to the lien of any mortgage or mortgages now or
hereafter in force against the Property, if any, and to all advances made or
hereafter to be made upon the security thereof, and the Tenant shall execute
such further instruments subordinating this Lease to the lien or liens of any
such mortgage or mortgages as shall be required by the Landlord; provided,
however, that the rights of the Tenant and its successor and assigns, shall not
be abridged in any manner by foreclosure of such mortgage or mortgages or other
form of security interest so long as the Tenant shall not be in default
according to the terms of this Lease.
ARTICLE XXXI. NOTICES
All notices herein provided to be given shall be in writing and delivered
personally or by certified United States mail, return receipt request. The
address of such party, until further notification in writing, being:
LESSEE LESSOR
West Des Moines State Bank Investors Equity of Iowa, Inc.
000 Xxxxx Xxxxxx 0000 Xxxxxxx Xxxx
Xxxx Xxx Xxxxxx, Xxxx 00000 Xxx Xxxxxx, Xxxx 00000
If notice is given by certified mail, return receipt requested, then the notice
shall be deemed to have been given effective the date received by the party
being notified as evidenced conclusively by the date shown on the return receipt
for the delivery of the certified letter of notice.
ARTICLE XXXII. MISCELLANEOUS
A. No waiver of any default of the Tenant or Landlord hereunder shall be
implied from any omission by the Landlord or Tenant to take any action on
account of such default if such default persists or be repeated, and no
express waiver shall affect any default other than the default specified in
the express waiver and that only for the time and to the extent therein
stated. The invalidity or enforceability of any provision hereof shall not
affect or impair any provision.
B. In the absence of fraud, no person, firm or corporation, or the heirs,
legal representatives, successors and assigns, respectively, thereof,
executing this Lease as agent, trustee, or in any other representative
capacity shall never be deemed or held individually liable hereunder for
any reason or cause whatsoever.
C. The words "Landlord" and "Tenant" wherever used in this Lease shall be
construed to mean Landlords or Tenants in all cases where there is more
than one landlord or tenant, and the necessary grammatical changes required
to make the provisions hereof apply either to corporation or individuals,
men or women, shall in all cases be assumed as though in each case fully
expressed.
D. Provisions inserted herein or affixed hereto shall not be valid unless
appearing the original hereof held by the Landlord. In the event of
variation or discrepancy, the Landlord's original shall control.
E. Each provision hereof shall extend to and shall, as the case may require,
bind and inure to the benefit of the Landlord and the Tenant and their
respective heirs, legal representatives, successors and assigns.
F. Submission of this instrument for examination does not constitute a
reservation of or option for the Leased Premises. The instrument becomes
effective as a Lease upon execution and delivery by both Landlord and
Xxxxxx.
G. All amounts (other than Rent) owned by the Tenant to the Landlord hereunder
shall be paid within ten (10) days from the date the Landlord renders
statements of account therefor and shall bear interest at the rate of nine
percent (9%) per annum thereafter until paid.
H. Provisions typed on the bank of this Lease and signed by the Landlord and
Tenant and all riders attached to this Lease and signed by the Landlord and
the Tenant are hereby made a part of this Lease as though inserted in this
Lease.
I. If the Tenant shall occupy the Leased Premises prior to the beginning of
the term of this Lease with the Landlord's consent, all the provisions of
this Lease shall be in full force and effect as soon as the Tenant occupies
the Leased Premises. Rent for any period prior to the beginning of the term
of this Lease shall be fixed by agreement between the Landlord and Tenant.
J. It is understood by the Landlord and Tenant that this Lease shall not be
recorded but that a short form lease of event date herewith, describing the
property herein leased, giving the term of the Lease and referring to this
Lease may be recorded by either party.
ARTICLE XXXIII. ZONING VARIANCE CONDITION
Under the present ordinances of the City of West Des Moines, Iowa, the maximum
height limit for an office building is thirty-five (35) feet. This Lease is made
upon the express condition that Landlord is able to obtain from the City of West
Des Moines, Iowa the necessary variances in said ordinances to allow the
construction of the Office Building described in Article I hereof, and if the
necessary variances are not obtained this Lease shall become null and void and
no further force and effect.
Exhibit "A"
Get original if possible
Exhibit "G"
Area "A" - Part of the NE Frl 1/4 of the NE Frl 1/4 of Section 4, Township 78
North, Range 25 West of the 5th P.M. described as follows: Commencing at a point
on the East line of 22nd Street that is 490 ft North of the South line of said
NE Frl 1/4, NE Frl 1/4; thence East, parallel to the South line of said NE Frl
1/4 , NE Frl 1/4, 53.4 ft to the P.C. of a curve to the left having a radius of
518.34 ft; thence Easterly, along said curve to the left 184.71 ft to the point
of beginning; thence continuing Easterly along said curve to the left, to the
point of intersection with a curve having a radius of 94.0 ft and whose radius
point is located 275.0 ft East of the East line of 22nd Street and on a line
that is 530 ft. Northerly of and parallel to the South line of said NE Frl 1/4,
NE Frl 1/4; thence Southerly, along the curve having a radius of 94.0 ft to the
point of intersection with a line that is normal to the South line of said NE
Frl 1/4, NE Frl 1/4 and extends North through a point that is 264.0 ft East of
the East line of 22nd Street and 30 ft North of the South line of said NE Frl
1/4 , NE Frl 1/4; thence South, along the line last described above, 158.0 ft
more or less to a point that is 278 ft North of the South line of said NE Frl
1/4, NE Frl 1/4, thence West, parallel to the South line of this tract, 30 ft;
thence North, parallel to the North-South portion of the East line of the tract
herein described, 188.0 ft; thence Northwesterly, along a line radial to the
curve first described above, 56.88 ft to the point of beginning, all now in and
forming a part of the City of West Des Moines, Iowa and containing approximately
0.28 acres.
Exhibit "H"
Area "B" - Part of the NE Frl 1/4 of the NE Frl 1/4 of Section 4, Township 78
North, Range 25 West of the 5th P.M. described as follows: Commencing at a point
on the East line of 22nd Street that is 30 ft North of the South line of said NE
Frl 1/4, NE Frl 1/4; thence East, 30 ft North of and parallel to the South line
of said NE Frl 1/4 , NE Frl 1/4 , 264.0 ft to the point of beginning, thence
North, normal to the last described line, 248.0 ft; thence West, parallel to the
South line of the tract herein described, 30 ft; thence South, parallel to the
East line of this tract 28.0 ft; thence West, parallel to the South line of this
tract, 32.0 ft thence South, parallel to the East line of the tract herein
described, 220.0 ft; thence East 62.0 ft to the point of beginning, all now in
and forming a part of the City of Des Moines, Iowa and containing approximately
0.33 acres.
ARTICLE XXXIV. MUTUAL AGREEMENT AND EASEMENT
Landlord intends to acquire a leasehold interest in and to all, or a portion, of
the land adjacent to the Property and identified in red in Exhibit "D" for
commercial development and Landlord further intends to connect the Office
Building and the building on adjacent land with an enclosed over-pass and
Landlord further intends to provide parking facilities on the adjacent land.
Because of Articles XXVI and XXVII hereof, the leasehold interest in the
Property and the leasehold interest in the adjacent land may not hereafter be
owned by or mortgaged to a common interest. Upon written notice from Landlord to
Tenant, the Tenant agrees to join with the Landlord in the execution and
recordation of a document which provides, among other things, the following:
1. Establishes the non-exclusive right to use, in common, the parking areas of
the Property (other than Article XXIX hereof) and the adjacent land.
2. Establishes the responsibilities of the owners of the leasehold interest in
the Property and the adjacent land for maintenance of the common parking
areas and liability insurance coverage.
3. Reserves unto the Landlord the title to the enclosed over-pass and provides
that said enclosed over-pass shall be maintained by Landlord and provides
access by Landlord and Tenant and their respective tenants, customers,
agents and employees to and from the Office Building and the building
located on adjacent land, and such other terms and conditions as are agreed
to by Landlord and Tenant.
ARTICLE XXV. LIQUIDATED DAMAGES
In the event that the Landlord does not deliver possession of the Leased
Premises to the Tenant on or before May 1, 1972, and does not cause the parking
areas to be completed sufficient to allow the Tenant to operate its business (it
being recognized that because of weather and other conditions the parking areas
may not be completed on a permanent basis but will be completed sufficient to
allow the Tenant to operate its business) on or before May 1, 1972, the Landlord
acknowledges that the Tenant will be damages as the result of such delay. The
damages to be suffered by the Tenant are determined to include, but are not
limited to, losses of income from additional deposits Tenant would otherwise
realized upon occupying the Leased Premises; losses of value anticipated by
promotional advertising relating to the date of occupancy of the Leased
Premises; additional administrative expenses incurred by the enlarged personal
staff of the Tenant hired to occupy the Leased Premises; and, loss of business
to competing Banks who will have located in the vicinity prior to the Tenant.
An exact estimate of monetary damages which the Tenant will sustain is not
readily ascertainable at the time of the execution of the Lease; thus, after
reviewing the bases of the Tenant's damages above described, the Landlord and
Tenant agree that the Tenant will be damaged as follows:
1. The sum of $2,000.00 if not completed on or before May 1, 1972;
2. The additional sum of $4,000.00 if not completed on or before June 1, 1972;
3. The additional sum of $6,000.00 if not completed on or before July 1, 1972;
4. The additional sum of $8,000 if not completed on or before August 1, 1972;
And no further proof of damage is required to be made by the Tenant. Landlord
and Xxxxxx further agree that the above sums are deemed to build a fair and
reasonable relationship in the value of the Tenant in occupying the Leased
Premises on the established date of occupancy are not in any manner deemed to be
a penalty against the Landlord.
In the event the Landlord shall be delayed, hindered in or prevented from the
performance of the acts required hereunder by reason on events beyond its
control including, but not limited to, strikes, lock-outs, work stoppages,
failure of power, restrictive governmental laws or regulations, riots, wars,
insurrection, fire, the elements or other casualty, then performance of such
acts shall be excused for the period of the delay and the period for the
performance of the acts shall be extended for a period equivalent to the period
of such delay; provided, however, that if a strike, lock-out or work stoppage
occurs on or before May 1, 1972 and possession of the Leased Premises has not
been delivered to the Tenant, such strike, lock-out or work stoppage shall not
constitute an excusable delay and the agreed liquidated damages will be paid to
the Tenant as herein provided. If a strike, lock-out or work stoppage occurs
prior to May 1, 1972 and continues on or after May 1, 1972, only the time prior
to May 1, 1972 shall constitute an excusable delay. All damages shall be paid by
the Landlord to the Tenant on the day following the date which the same were
incurred.
IN WITNESS WHEREOF, Landlord and Xxxxxx have caused this instrument to be
executed by their duly authorized officers the day and year first above written.
LANDLORD TENANT
INVESTORS EQUITY OF IOWA, INC. WEST DES MOINES STATE BANK
By: By:
its its
By: By:
its its:
STATE OF IOWA )
) ss:
COUNTY OF POLK )
On this 9th day of September, 1971, before me, the undersigned, a Notary Public
in and for said County, in said State, personally appeared Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxx, to me personally known, who, being by me duly sworn, did say
that they are the Vice President and Secretary respectively, of Investors Equity
of Iowa, Inc., that (no seal has been procured by the said) corporation; that
said instrument was signed on behalf of said corporation by authority of its
Board of Directors; and that the said Vice President and Secretary as such
officers acknowledged the execution of said instrument to be the voluntary act
and deed of said corporation, by it and by them voluntarily executed.
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxxx X. Xxxxxx
Notary Public in and for Polk County, Iowa
