Xxxxx X. Xxxxx, Xx., Xxxxx Law Office, L.L.P., 000 Xxxxxxx Xx., X.X.
Xxx 000, Xxxxxxx, XX 00000, Phone: (000) 000-0000
LEASE - BUSINESS PROPERTY
THIS AGREEMENT, made and entered into this November ________,
2007, by and between Danbom Properties, LLC, or their assigns
("Landlord"), whose address, for the purpose of this lease, is 0000
Xxxxxxxx Xxxx, Xxxxxxx XX 00000-0000, and Cycle Country Accessories
Corporation ("Tenant"), whose address for the purpose of this lease is
X.X. Xxx 000, Xxxxxxx, Xxxx 00000.
The parties agree as follows:
1. PREMISES AND TERM. The Landlord, in consideration of the
rents, agreements and conditions herein contained, leases to the
Tenant and Tenant leases from Landlord, according to the terms of this
lease, the following described "premises", situated in Xxxxxxxxx
County, Iowa: approximately 92,552 square feet of the building located
on the following real estate:
A tract of land in the Northeast Quarter of the Northeast
Quarter (NE1/4NE1/4) of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00
Xxxx of the 5th P.M., in the City of Milford, Xxxxxxxxx
County, Iowa, described as follows: - Commencing at the
Northwest corner of the Northeast Quarter of the Northeast
Quarter (NE1/4NE1/4) of said Section 1; thence South 0 10' West
along the Westerly line of said NE1/4NE1/4 of Section 1 a
distance of 50.00 feet to the point of beginning; thence
North 90 00' East parallel to the North line of said NE1/4NE1/4
of Section 1, a distance of 935.92 feet; thence
Southeasterly along a 332.00 foot radius curve, concave
Southwesterly and tangent to the proceeding course, a
distance of 391.61 feet to the Westerly right-of-way line
of U.S. Xxxxxxx Xx. 00; thence South 0 02'30" East along
the Westerly right-of-way line of said X.X. Xxxxxxx Xx. 00,
a distance of 370.03 feet to the Northerly right-of-way
line of Primary Road No. 32; thence North 67 19' West along
the Northerly right-of-way line of said Primary Road No.
32, a distance of 669.57 feet; thence North 89 07' West
along the Northerly line of said Primary Road No. 32, a
distance of 215.41 feet; thence North 67 19' West along the
Northerly right-of-way line of said Primary Road No. 32, a
distance of 444.75 feet to the Westerly line of said NE1/4NE1/4
of Section 1; thence North 0 10' East along the Westerly
line of said NE1/4NE1/4 of Section 1, a distance of 142.41 feet
to the point of beginning; EXCEPT a part of the Northeast
Quarter of the Northeast Quarter (NE1/4NE1/4) of said Xxxxxxx
0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx of the 5th P.M.,
described as follows:- Commencing at the Northeast Corner
of said Section 1; thence North 89 53.1' West, 75.0 feet
along the north line of the Northeast Quarter of the
Northeast Quarter of said Section 1 to the Point of
Beginning; thence continuing North 89 53.1' West, 35.0 feet
along the north line of the Northeast Quarter of the
Northeast Quarter of said Section 1; thence South 0 03.9'
West, 610.0 feet; thence South 67 12.6' East, 37.9 feet;
thence North 0 03.9' East, 625.4 feet to the Point of
Beginning, containing 0.50 acre, including 0.18 acre of the
present established roadway; AND A parcel of land located
in a part of the NE1/4NE1/4 of Section 1, Township 98 North,
Range 37 West of the 5th P.M., more particularly described
as follows: Commencing at the NE 1/4 of said Section 1;
thence North 88 47'27" West, 110.00 feet along the north
line of said NE 1/4 to a point on the existing west right-of-
way line of Primary Road US No. 71; thence South 1 09'52"
West, 35.01 feet along said west right-of-way line to the
Point of Beginning; thence continuing South 1 09'52" West,
156.42 feet along said existing right-of-way line; thence
northwesterly 318.51 feet along the arc of a 332.00 foot
radius curve, concave southwesterly and having a cord
bearing, North 61 18'25", 306.43 feet; thence North
88 47'27" West, 935.52 feet to a point on the west line of
the NE 1/4 of the NE 1/4 of said Section 1; thence North
0 56'22" E, 15.00 feet along said west line; thence South
88 47'27" East, 1207.31 to the Point of Beginning,
containing 29,578 square feet;
together with the improvements thereon, and all rights, easements
and appurtenances, which, more particularly, includes the space and
premises as may be approximately shown on "Exhibit A," if attached,
for an initial term of 3 years, commencing immediately following the
closing on Landlord's purchase of the aforementioned building and
property and ending at midnight on the last day of the lease term,
which shall be 3 years from the date of the commencement of this
Lease, unless extended as provided herein, upon the condition that the
Tenant pays rent therefor, and otherwise performs as provided in this
lease. Total building square footage is approximately 103,056 square
feet of which Tenant is leasing approximately 92,552 square feet.
Tenant is only leasing from Landlord a portion of the building
(approximately 92,552 square feet) with access thereto. Tenant is not
leasing from Landlord the remaining portion of the building
(approximately 10,504 square feet) or land surrounding the building.
Cycle Country will have normal access, necessary parking rights,
and necessary use of the land for loading and unloading purposes and
other reasonable use of the real estate surrounding the building.
2. RENT. Tenant agrees to pay Landlord as rent $2.00 per square
foot for a total of $185,104.00 payable in monthly installments of
$15,425.34 per month, in advance commencing on the first day of the
beginning of this Lease, and on the 1st day of each month thereafter,
during the term of this lease. Rent for any partial month shall be
prorated as additional rent. This Lease is a triple net lease. In
addition to the above monthly rental Tenant shall also pay: for all
maintenance of the leased premises; and a prorata share of the
insurance, taxes, and other common charges of the building and
premises based upon the total square footage of the building. 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, designate in writing. Delinquent payments shall draw
interest at 10% per annum from the due date, until paid.
Tenant may not reduce the square footage Tenant is leasing from
Landlord during the initial 3-year term of this Lease. If, and only
if, Tenant gives Landlord written notice, at least 90 days prior to
the expiration of the initial 3-year term, Tenant may reduce the
square footage Tenant is leasing from Landlord during the first
renewal, if Tenant properly exercises a renewal.
Tenant may not reduce the square footage Tenant is leasing from
Landlord during the second renewal term of this Lease unless Tenant
gives Landlord written notice, at least 90 days prior to the
expiration of the first renewal term of this Lease, that Tenant
intends to reduce the square footage Tenant is leasing from Landlord
during the second renewal term, if Tenant properly exercises a
renewal.
2 (1). MULTIPLE TENANTS. If any other Tenants in adjoining
premises share responsibility with Landlord and Tenant in any
expenses, the percentages allocated to Landlord and Tenant in this
lease shall represent only their respective portions of the total
shared expenses. Therefore, their percentages may total less than
100%. Nothing shall prevent the Landlord from paying a Tenant's share
of an expense, and billing the Tenant for the amount so paid.
2 (2). "TRIPLE NET"PROVISION. Tenant agrees that all
duties and obligations to repair, maintain and provide utilities and
services (paragraphs 6 and 7), to pay taxes and special assessments
(paragraph 10) and to pay for casualty and liability insurance
(paragraph 11) shall be borne solely by Tenant during the term of this
lease. (If the parties select this provision, all duties and
obligations set forth in paragraphs 6, 7, and 10 shall be performed by
the Tenant).
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 end of the 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
purposes approved by Landlord. Tenant may utilize its rented portion
of the building in the same manner as it now does as well as for any
other general manufacturing not involving any hazardous wastes, except
for chemicals provided for below, such as paints, etc. For
restrictions on such use, see paragraphs 6(c), 6(d) and 11(b) below.
Other business activities are subject to Landlord's approval. Tenant
may, at its expense, alter or modify the leased premises to suit its
needs, with prior approval of the Landlord.
5. QUIET ENJOYMENT. Landlord covenants that its estate in said
premises is in fee simple and that the Tenant, if not in default,
shall peaceably have, hold and enjoy the premises for the term of this
lease. 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. EQUIPMENT, DECORATING, REPLACEMENT, REPAIR AND MAINTENANCE.
DEFINITIONS
"Maintain" means to clean and keep in good condition.
"Repair" means to fix and restore to good condition after damage,
deterioration or partial destruction.
CONDITIONS OF PREMISES
A. Tenant takes the premises in its present condition, except for
such repairs and alterations as may be expressly otherwise
provided in this lease.
REPAIRS AND MAINTENANCE
B. Unless damaged by Tenant, Landlord shall replace and repair
the structural parts of the building. For purposes of this
lease, the structural parts of the building shall mean the
foundation, exterior walls, load bearing components of interior
floors and walls, the roof and all sewers, pipes, wiring and
electrical fixtures outside of the structure.
C. Repair shall be performed and paid for by the parties as
follows:
PERFORMANCE
PAYMENT
L=LANDLORD
T=TENANT
%
Landlord
% Tenant
Interior walls, floors and
ceilings
T
0
100
Sewer, plumbing fixtures, pipes,
wiring, electrical fixtures
within the structure
T
0
100
Heating equipment
T
0
100
Air conditioning
T
0
100
Plate glass (replacement)
T
0
100
Sidewalks
L
100
0
Parking areas
L
100
0
Other common areas (strike if
inapplicable)
X
000
0
X. Xxxxxxxx xxxxx xx responsible for maintenance of all common
area entirely under Landlord's control. Tenant shall be
responsible for all other maintenance. If Landlord has shared
maintenance responsibilities with other Tenants, this Tenant's
share of maintenance is a percentage based upon the square
footage leased to Tenant as it relates to the total square
footage of the building.
E. Any repair or maintenance not specifically provided for above
shall be performed and paid for by Tenant (subject to LIMITATION,
if any, regarding repairs in Paragraph C, above).
F. Each party shall perform their responsibilities of repair and
maintenance to the end that the premises will be kept in a safe
and serviceable condition. Neither party will permit nor allow
the premises to be damaged or depreciated in value by any act,
omission to act, or negligence of itself, its agents or
employees.
EQUIPMENT, DECORATING AND ALTERATIONS
G. The following items of equipment, furnishings and fixtures
shall be supplied and replaced by the parties as follows:
SUPPLIED
L=Landlord
T=Tenant
REPLACED
L=Landlord
T=Tenant
Carpeting/floor covering
T
T
Drapes, shades, blinds
T
T
Heating and air conditioning equipment shall be serviced by
Tenant, at Tenant's expense and replacement, if necessary, will
be Landlord's responsibility and expense.
Any similar equipment, furnishings, and fixtures for the leased
premises not specifically provided for above shall be provided
and paid for by Tenant. Any equipment, furnishings or fixtures
to be supplied by Tenant shall be subject to the Landlord's prior
written approval as to quality and method of installation.
Tenant shall provide all trade equipment, furnishings and
fixtures used in connection with the operation of its business,
such as telephones, computers, desks, chairs, shelving and
similar items.
H. Tenant shall be responsible for all interior decorating.
Tenant shall make no structural alterations or improvements
without the prior written consent of the Landlord.
AMERICANS WITH DISABILITIES ACT
I. 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, provided, however, responsibility for compliance
with the Americans with Disabilities Act shall be performed and
paid for by the parties as follows: Landlord and Tenant shall
each be responsible for compliance with the American with
Disabilities Act as to their respective areas.
7. UTILITIES AND SERVICES. Utilities and services shall be
furnished and paid for by the parties as follows: Tenant shall pay a
prorata share of the cost of all utilities and services to the
building based upon the square footage leased to Tenant, with the only
exception being the electricity for the building, which is to be paid
by Tenant. Tenant will pay the cost of electricity for the entire
building, however, Landlord shall give Tenant credit of $300.00 per
month, which credit is to be applied towards Tenant's rent. Tenant
will have one of their workers do the snow removal for the building
and will send a xxxx therefor to Landlord. Landlord will pay Tenant
for this snow removal xxxx.
8. TERMINATION, SURRENDER OF PREMISES AT END OF TERM -- REMOVAL
OF FIXTURES.
(a) TERMINATION. This lease shall terminate upon
expiration of the original term; or if this lease expressly
provides for any option to renew, and if any such option is
exercised by the Tenant, then this lease will terminate at the
expiration of the option term or terms.
(b) OPTION TO RENEW. Tenant may renew this lease, on the
same terms and conditions as set forth in paragraph 2, including
rent at $2.00 per square foot, for two (2) additional terms of
one (1) year each by giving Landlord a written notice of intent
to renew at least 90 days prior to the expiration of the term
that precedes each such renewal term.
(c) SURRENDER. Tenant agrees that upon termination of this
lease it will surrender and deliver the premises in good and
clean condition, except the effects of ordinary wear and tear and
depreciation arising from lapse of time, or damage without fault
or liability of Tenant.
(d) HOLDING OVER. Continued possession by Tenant, beyond
the expiration of its tenancy, 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 the lease,
which Landlord, at its option, may take such legal remedies it
determines appropriate.
(e) REMOVAL OF FIXTURES. Tenant may, at the expiration of
its tenancy, if Tenant is not in default, remove any fixtures or
equipment which Tenant has installed in the premises, providing
Tenant repairs any and all damages caused by removal.
9. ASSIGNMENT AND SUBLETTING. Tenant shall not assign or sublet
the premises or any part thereof without prior written approval of the
Landlord. Landlord's approval of Tenant's assignment of the lease or
subletting all or a portion of the building will not be unreasonably
withheld by Landlord. Any assignment of this lease or subletting of
the premises or any part thereof by Tenant, 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.
Landlord, at its/their option, may assign this Lease.
10. REAL ESTATE TAXES.
A. Tenant shall pay a prorata share (based upon the square
footage leased by Tenant) all installments of real estate
taxes that would become delinquent if not paid during the
term of this lease; any increase in such installments that
exceeds the amount of the installment that would be
delinquent if not paid; and all special assessments that
would be delinquent if not paid during the term of this
lease. If Tenant is leasing all of the square footage,
then Tenant shall pay all real estate taxes and any
increase thereof, and all special assessments.
B. PERSONAL PROPERTY TAXES. Tenant agrees to timely pay
all taxes, assessments or other public charges levied or
assessed by lawful authority against its personal property
on the premises during the term of this lease.
C. Each party reserves its right of protest of any
assessment of taxes.
11. INSURANCE.
A. PROPERTY INSURANCE. Landlord and Tenant agree to insure
their respective real and personal property for the full
insurable value. Such insurance shall cover losses
included in the Insurance Services Official Broad Form
Causes of Loss (formerly fire and extended coverage).
B. LIABILITY INSURANCE. Tenant shall obtain commercial
general liability insurance in the amounts of $1,000,000.00
each occurrence and $2,000,000.00 annual aggregate per
location. Tenant has already, or will also obtain, an
umbrella policy which results in total underlying and
umbrella coverages of $2,000,000.00 per incident and
$4,000,000.00 annual aggregate. Such policy shall include
liability arising from premises operations, independent
contractors, personal injury, products and completed
operations and liability assumed under an insured contract.
This policy shall be endorsed to include the Landlord as an
additional named insured.
C. CERTIFICATES OF INSURANCE. Prior to the time the lease
takes effect the Tenant will provide the Landlord with a
certificate of insurance with these property and liability
insurance requirements, such certificate shall include 30
days advance notice of cancellation to the Landlord. A
renewal certificate shall be provided prior to expiration
of the current policies.
D. ACTS BY TENANT. Tenant and Landlord will not do or omit
doing of any act which would invalidate any insurance, or
increase the insurance rates in force on the premises.
E. RECOMMENDATIONS - IOWA INSURANCE SERVICES OFFICE.
Tenant further agreed to comply with recommendations of
Iowa Insurance Services Office 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 contemplated and agreed.
F. Landlord and Tenant shall each provide a copy of this
lease to their respective insurers.
12. LIABILITY FOR DAMAGE. Each party shall be liable to the
other for all damage to the property of the other negligently,
recklessly or intentionally caused by that party (or their agents,
employees or invitees), except to the extent the loss is insured and
subrogation is waived under the owner's policy.
13. INDEMNITY. I) Except for the negligence of Landlord, Tenant
will protect, defend and indemnify Landlord from and against all loss,
costs, damage and expenses occasioned by, or arising out of, any
accident or other occurrence, causing or inflicting injury or damage
to any person or property, happening or done in, upon or about the
premises , or due directly or indirectly to the tenancy, use or
occupancy thereof, or any part thereof by Tenant or any person
claiming through or under Tenant. In addition to the other indemnities
provided for herein, Tenant shall defend, indemnify, and hold Landlord
harmless from:
A. Any and all liabilities and obligations of Tenant.
B. Any and all liabilities, losses, damages, deficiencies,
judgments, claims or expenses, including reasonable attorneys'
fees, relating to, arising out of, or resulting from, any
inaccuracy in any representation or warranty, or non-
fulfillment of any covenant, agreement or other obligation of
Tenant under this lease or any agreement or instrument
delivered pursuant to this lease.
C. Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including
reasonable attorneys' fees, incident to any of the foregoing.
II) Except for the negligence of Tenant, Landlord will protect,
defend and indemnify Tenant from and against:
A. Any and all liabilities and obligations of Landlord.
B. Any and all liabilities, losses, damages, deficiencies,
judgments, claims or expenses, including reasonable attorneys'
fees, relating to, arising out of, or resulting from, any
inaccuracy in any representation or warranty, or non-
fulfillment of any covenant, agreement or other obligation of
Landlord under this lease or any agreement or instrument
delivered pursuant to this lease.
14. FIRE AND CASUALTY. (a) PARTIAL DESTRUCTION OF PREMISES. In
the event of a partial destruction or damage of the premises, which is
a business interference which prevents the conducting of a normal
business operation and which damage is reasonable repairable within
sixty (60) days after its occurrences, this lease shall not terminate
but the rent and triple net obligations for the premises shall xxxxx
during the time of such business interference. In the event of a
partial destruction reasonably repairable within sixty (60) days after
its occurrence, Landlord shall repair such damages within sixty (60)
days of its occurrence unless prevented from doing so by acts of God,
government regulations, or other causes beyond Landlord's reasonable
control.
(b) ZONING. Should the zoning ordinance of the
municipality in which this property is located make it impossible
for Landlord to repair 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 provided
in the next paragraph.
(c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a
destruction or damage of the leased premises including the
parking area (if parking area is a part 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) 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 thirty (30) days
after such destruction. Tenant shall surrender possession within
thirty (30) days after such notice issues and each party shall be
released from all future obligations, and Tenant shall pay rent
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, at its sole discretion.
15. CONDEMNATION.
(a) DISPOSITION OF AWARDS. Should the whole or any part
of the premises be condemned or taken for any public or quasi-public
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 condemned or taken, the Landlord shall not
be liable to the Tenant.
16. DEFAULT, NOTICE OF DEFAULT AND REMEDIES.
EVENTS OF DEFAULT
A. Each of the following shall constitute an event of
default by Tenant:
1. Failure to pay rent when due.
2. Failure to observe or perform any duties, obligations,
agreements or conditions imposed on Tenant pursuant to
terms of the lease.
3. Abandonment of the premises, "Abandonment" means the
Tenant has failed to engage in its usual and customary
business activities on the premises for more than fifteen
(15) consecutive business days.
4. Institution of voluntary bankruptcy proceedings in
which the Court orders relief against the Tenant as a
debtor; assignment for the benefit of creditors of the
interest of Tenant under this lease agreement; appointment
of a receiver for the property or affairs of Tenant, where
the receivership is not vacated within ten (10) days after
the appointment of the receiver.
B. Each of the following shall constitute an event of
default by Landlord:
1. Failure to observe or perform any duties, obligations,
agreements or conditions imposed on Landlord pursuant to
terms of the lease.
NOTICE OF DEFAULT
B.(1) Landlord shall give Tenant a written notice
specifying the default and giving the Tenant ten (10) days
in which to correct the default. If there is a default
(other than for nonpayment of a monetary obligation of
Tenant, including rent) that cannot be remedied in ten
(10) days by diligent efforts of the Tenant, Tenant shall
propose an additional period of time in which to remedy
the default. Consent to additional time shall not be
unreasonably withheld by the Landlord. Landlord shall not
be required to give Tenant any more than two notices for
the same default within any 365 day period. In addition to
Landlord's other remedies provided by law, and without
prejudice thereto, if rent is unpaid when due, and Tenant
fails to pay the rent within three (3) days after notice
by Landlord of nonpayment and the Landlord's intention to
terminate this Lease if the rent is not paid within that
period of time, then Landlord may terminate this Lease and
may exercise all of its legal and equitable remedies,
including but not limited to, a forcible entry and
detainer action in small claims and/or district court.
B.(2) Tenant shall give Landlord a written notice
specifying the default and giving the Landlord ten (10)
days in which to correct the default. If there is a
default that cannot be remedied in ten (10) days by
diligent efforts of the Landlord, Landlord shall propose
an additional period of time in which to remedy the
default. Consent to additional time shall not be
unreasonably withheld by the Tenant. Tenant shall not be
required to give Landlord any more than two notices for
the same default within any 365 day period.
REMEDIES
C. In the event Tenant has not remedied a default in a
timely manner following a Notice of Default, Landlord may
proceed with all available remedies at law or in equity,
including but not limited to the following:
1. Termination. Landlord may declare this lease to be
terminated and shall give Tenant a written notice of such
termination. In the event of termination of this lease,
Landlord shall be entitled to prove claim for and obtain
judgment against Tenant for the balance of the rent agreed
to be paid for the term herein provided, plus all expenses
of Landlord in regaining possession of the premises and
the reletting thereof, including attorney's fees and court
costs, crediting against such claim, however, any amount
obtained by reason of such reletting.
2. Forfeiture. If a default is not remedied in a timely
manner, Landlord may then declare this lease to be
forfeited and shall give the Tenant a written notice of
such forfeiture, and may, at the time, give Tenant the
notice to quit provided for in Chapter 648 of the Code of
Iowa.
17. 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 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 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.
18. SIGNS. (a) Tenant shall have the right and privilege of
attaching, painting or exhibiting signs on the leased premises,
provided only (1) that any sign shall comply with the ordinances of
municipality in which the property is located and the laws of the
State of Iowa; (2) such sign shall not change the structure of the
building; (3) such sign, if and when removed, shall not damage the
building; and (4) such sign shall be subject to the written approval
of the Landlord, which approval shall not be unreasonably withheld.
(b) Landlord 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, prospective
tenants or buyers to enter and examine the premises.
19. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by,
through, or under the Tenant, shall have the right to file or place
any mechanic's liens 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, 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 on the premises, 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 and
sub-contractors who may furnish or agree to furnish any such material,
service or labor.
TENANT'S DUTY TO KEEP PREMISES FREE OF LIENS: Tenant shall keep
all and every part of the premises and all buildings and other
improvements at any time located on the premises free and clear of any
and all mechanics', material suppliers', and other liens for or
arising out of or in connection with work or labor done, services
performed, or materials or appliances used or furnished for or in
connection with any operations of Tenant, any alteration, improvement,
or repairs or additions that Tenant may make or permit or cause to be
made, or any work or construction, by, for, or permitted by Tenant on
or about the premises, or any obligations of any kind incurred by
Tenant, and at all times promptly and fully to pay and discharge any
and all claims on which any such lien may or could be based, and to
indemnify Landlord and all of the premises and all buildings and
improvements on the premises from and against any and all such liens
and claims of liens and suits or other proceedings pertaining to the
premises.
20. LANDLORD'S LIEN AND SECURITY INTEREST. (a) Said Landlord
shall have, in addition to any lien given by law, a security interest
as provided by the Uniform Commercial Code of Iowa, upon all personal
property and all substitutions thereof, 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.
21. ENVIRONMENTAL.
A. Tenant expressly represents and warrants and agrees:
1. Tenant is not subject to any investigation concerning
Tenant's previous ownership/use of the premises, and
Tenant's current use of the premises, by any governmental
authority under any applicable federal, state, or local
codes, rules and regulations pertaining to air and water
quality, the handling, transportation, storage, treatment,
usage, or disposal of toxic or hazardous substances, air
emissions, other environmental matters, and all zoning and
other land use matters.
2. During the lease term, Tenant's use of the property
will not include the use of any hazardous substance
without Tenant first obtaining the written consent of
Landlord. Tenant understands and agrees that Landlord's
consent is at Landlord's sole option and complete
discretion and that such consent may be withheld or may be
granted with any conditions or requirements that Landlord
deems appropriate. However, Landlord agrees that Tenant
may continue to use substances such as clear-coats,
paints, and plastics that are normally used in its
business and which it has been using in the building prior
to the building's sale to Landlord.
3. During the lease term, Tenant shall be fully liable for
all costs and expenses related to the use, storage,
removal and disposal of hazardous substances used or kept
on the property by Tenant, and Tenant shall give immediate
notice to Landlord of any violation or any potential
violation of any environmental regulation, rule, statute
or ordinance relating to the use, storage or disposal of
any hazardous substance.
4. Tenant, at its sole cost and expense, agrees to
remediate, correct or remove from the premises any
contamination of the property caused by any hazardous
substances which have been used or permitted by Tenant on
the premises during any term of this lease. Remediation,
correction or removal shall be in a safe and reasonable
manner, and in conformance with all applicable laws, rules
and regulations. Tenant reserves all rights allowed by
law to seek indemnity or contribution from any person,
other than Landlord, who is or may be liable for any such
cost and expense.
5. Tenant agrees to indemnify and hold Landlord harmless
from and against all claims, causes of action, damages,
loss, costs, expense, penalties, fines, lawsuits,
liabilities, attorney fees, engineering and consulting
fees, arising out of or in any manner connected with
hazardous substances, which are caused or created by
Tenant, or caused by or related in any way to Tenant's
previous ownership/use of the premises and Tenant's
current use of the premises, on or after the date of this
lease and during any term of this lease, including, but
not limited to, injury or death to persons or damage to
property, and including any diminution of the value of any
leased premises which may result from the foregoing. This
indemnity shall survive the cessation, termination,
abandonment or expiration of this lease.
6. Notwithstanding anything to the contrary herein,
Tenant is not responsible for any pollution liability
occurring before it purchased the real estate and building
in 2001. Tenant shall be responsible for any pollution
liability occurring after its original purchase of the
real estate and building, in 2001, up through the time
this lease is terminated.
22. RIGHTS CUMULATIVE. The various rights, powers, options,
elections and remedies of either party, provided in this lease, shall
be construed 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.
23. 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 certified mail deposited in a
United States mail box.
24. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC.
Each and every covenant and agreement herein contained shall extend to
and be binding upon the respective successors, heirs, administrators,
executors and assigns of the parties; except that if any part of this
lease is held in joint tenancy, the successor in interest shall be the
surviving joint tenant.
25. CHANGES TO BE IN WRITING. None of the covenants, provisions,
terms or conditions of this lease shall be modified, waived or
abandoned, except by a written instrument duly signed by the parties.
This lease contains the whole agreement of the parties.
26. RELEASE OF DOWER. Spouse of Landlord appears as a signatory
to this lease solely for the purpose of releasing dower, or
distributive share, unless said spouse is also a co-owner of an
interest in the leased premises.
27. 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.
28. ADDITIONAL PROVISIONS.
A) This Lease is subject to Landlord's purchase of the building and
property as described herein.
B) Upon termination or non-renewal of the lease provided herein or
earlier, at the option and direction of the Landlord, Tenant
shall transfer to Landlord or Landlord's assigns title to the
foregoing items: Tractor for snow removal, ATV and mower (ATV is
to tow mower), title to 2005 Cadillac Escalade, white, by xxxx of
sale without additional consideration and shall convey good, and
clear record marketable title, free and clear of any and all
encumbrances or restrictions, including without thereby limiting,
Tenant shall ensure the release and/or payment of all liens
against the foregoing items, including, without limitation, all
mortgages, UCC-financing statements, and/or modification thereof
in order to convey merchantable title of the foregoing items to
the Landlord, or Landlord's assigns, upon termination or non-
renewal of the lease provided herein. While Tenant has ownership
of the foregoing items, Tenant shall insure, repair, and
otherwise assume all obligations relating to these items and
maintain them in good and serviceable condition. This provision
shall specifically survive the termination or non-renewal of this
Lease.
C) WASTE AND NUISANCE PROHIBITED. During the term of this lease,
Tenant shall comply with all applicable laws affecting the
demised premises, the breach of which might result in any penalty
on Landlord, or forfeiture of Landlord's title to the demised
premises. Tenant shall not commit, or suffer to be committed, any
waste on the demised premises, or any nuisance.
D) ABANDONMENT OF PREMISES. Except for seasonal closings and acts
of God, Tenant shall not vacate or abandon the premises at any
time during the term of this lease agreement. If Tenant
abandons, vacates, or surrenders the demised premises, or is
dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the premises shall be
deemed to be abandoned, at the option of Landlord, except such
property as may be encumbered to Landlord.
E) LANDLORD'S RIGHT OF ENTRY. Tenant shall permit Landlord and the
agents and employees of Landlord to enter into and upon the
demised premises at all reasonable times for the purpose of
inspecting the premises, or for the purpose of posting notices of
non-responsibility for alterations, additions, or repairs,
without any rebate of rent and without any liability to Tenant
for any loss of occupation or quiet enjoyment of the premises
occasioned by the entry.
F) ATTORNEY FEES. If any action at law or in equity shall be
brought to recover any rent under this lease agreement, or for or
on account of any breach of, or to enforce or interpret any of
the covenants, terms, or conditions of this lease agreement, or
for the recovery of the possession of the demised premises, the
prevailing party shall be entitled to recover from the other
party as part of the prevailing party's court costs, reasonable
expert witness fees, and reasonable attorney fees, the amount of
which shall be fixed by the court and shall be made a part of any
judgment or decree rendered.
G) PROHIBITION OF INVOLUNTARY ASSIGNMENT; EFFECT OF BANKRUPTCY OR
INSOLVENCY.
i. PROHIBITION OF INVOLUNTARY ASSIGNMENT. Neither this
lease agreement nor the leasehold estate of Tenant nor any
interest of Tenant under this lease agreement in the demised
premises or in the building or improvements on the demised
premises shall be subject to involuntary assignment, transfer, or
sale, or to assignment, transfer, or sale by operation of law in
any manner whatsoever (except through statutory merger or
consolidation, or devise, or intestate succession); any attempt
at involuntary assignment, transfer, or sale shall be void and of
no effect.
ii. EFFECT OF BANKRUPTCY. Without limiting the generality
of the provisions of the preceding Paragraph A of this section,
Tenant agrees that in the event any proceedings under the
Bankruptcy Act or any amendment to the act be commenced by or
against Tenant, and, if against Tenant, the proceedings shall not
be dismissed before either an adjudication in bankruptcy or the
confirmation of a composition, arrangement, or plan or
reorganization, or in the event Tenant is adjudged insolvent or
makes an assignment for the benefit of its creditors, or if a
receiver is appointed in any proceeding or action to which Tenant
is a party, with authority to take possession or control of the
demised premises or the business conducted on the premises by
Tenant, and such receiver is not discharged within a period of
forty-five (45) days after his or her appointment, any such event
or any involuntary assignment prohibited by the provisions of the
preceding Paragraph A of this section shall be deemed to
constitute a breach of this lease agreement by Tenant and shall,
at the election of Landlord, but not otherwise, without notice or
entry or other action of Landlord terminate this lease agreement
and also all rights of Tenant under this lease agreement and in
and to the demised premises and also all rights of any and all
persons claiming under Tenant.
H) WAIVER. The waiver by Landlord of, or the failure of Landlord to
take action with respect to any breach of any term, covenant, or
condition contained in this lease agreement shall not be deemed
to be a waiver of such term, covenant, or condition, or
subsequent breach of the same, or any other term, covenant, or
condition contained in this lease agreement. The subsequent
acceptance of rent under this lease agreement by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant, or condition of this lease agreement, other
than the failure to Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of a preceding
breach at the time of acceptance of rent.
I) VENUE AND APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Iowa
and shall be deemed to have been entered into and performed in
Xxxxxxxxx County, Iowa.
J) SEVERABILITY. In the event any provision of this Agreement is
held invalid, illegal or unenforceable, in whole or in part, the
remaining provisions of this Agreement shall not be affected
thereby and shall continue to be valid and enforceable, and, if,
for any reason, a court finds that any provision of this
Agreement is invalid, illegal or unenforceable as written, but
that by limiting such provision it would become valid, legal and
enforceable, then such provision shall be deemed to be written
and shall be construed and enforced as so limited.
Cycle Country Accessories Corporation
/s/ Xxxxx Xxxxx November 14, 2007
Signature of President Date
/s/ Xxxxx Xxxxx November 14, 2007
Signature of Treasurer Date
STATE OF IOWA, COUNTY OF Clay, ss:
On this 14th day of November, 2007, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx Xxxxx
and Xxxxx Xxxxx to me personally known, who, being by me duly sworn,
did say that he/she/they is/are the President and Treasurer of said
corporation and that said instrument was signed on behalf of said
corporation by authority of its Board of Directors and he/she/they
acknowledged the execution of said instrument to be the voluntary act
and deed of the corporation by it and by him/her/them voluntarily
executed.
/s/ Notary
Notary Public in and for said State
LANDLORD, Xxxxxx Properties, LLC, or assigns:
/s/ Xxxxx X. Xxxxxx November 9, 2007
Xxxxx X. Xxxxxx, Co-Manager Date
/s/ Xxxxxx X. Xxxxxx November 9, 2007
Xxxxxx X. Xxxxxx, Co-Manager Date
STATE OF IOWA, COUNTY OF Xxxxxxxxx, xx:
Subscribed and sworn before me on this 9th day of November, 2007, by
Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, as Co-Manager of Xxxxxx
Properties, LLC.
/s/ Xxx X. Xxxxxxxx
Notary Public in and for said State
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