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EXHIBIT 10.66
RYAN PROPERTIES, INC., A MINNESOTA CORPORATION
Landlord
and
RUFFALO, CODY & ASSOCIATES, INC., AN IOWA CORPORATION
Tenant
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LEASE AGREEMENT
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Dated as of September 26, 1994
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TABLE OF CONTENTS
SECTION PAGE
1. Leased Property; Fixed Term.............................................1
2. Basic Rent, etc.........................................................2
2.1. Basic Rent.........................................................2
2.2. Basic Rent; Manner of Payment......................................2
3. Additional Rent.........................................................2
4. Net Lease; No Counterclaim, Abatement, etc..............................2
5. Condition and Use of Property...........................................2
6. Maintenance and Repairs...............................................2-3
7. Alterations and Additions, etc..........................................3
8. Tenant's Equipment......................................................3
9. Utility Services........................................................3
10. No Claims Against Landlord, etc.........................................3
11. Indemnification by Tenant.............................................3-4
12. Inspection, etc.........................................................4
13. Payment of Taxes, etc.................................................4-5
14. Compliance with Legal and Insurance Requirements, Instruments...........5
15. Liens, Easements, etc...................................................5
16. Permitted Contests....................................................5-6
17. Insurance.............................................................6-7
17.1. Risks to be Insured...............................................6
17.2. Policy Provisions.................................................7
17.3. Delivery of Policies, Insurance Certificates......................7
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18. Hazardous Materials...................................................7-8
19. Damage to or Destruction of Property....................................8
19.1. Tenant to Give Notice.............................................8
19.2. Restoration.......................................................8
19.3. Total Destruction.................................................8
19.4. Application of Insurance Proceeds...............................8-9
20. Taking of Property.................................................. 9-10
20.1. Tenant to Give Notice; Assignment of Awards, etc..................9
20.2. Partial Taking....................................................9
20.3. Total Taking...................................................9-10
20.4. Application of Awards, etc.......................................10
21. Certificate as to No Event of Default, etc.; Financial Statements...11-12
21.1. Certification of Tenant as to No Event of Default, etc...........11
21.2. Certificate of Landlord..........................................11
21.3. Financial Statements..........................................11-12
22. Right of Landlord to Perform Tenant's Covenants, etc...................12
23. Assignments, Subleases, Mortgages, etc.................................12
23.1. Assignments, Subleases, etc. by Tenant...........................12
23.2. Assignments, Mortgages, etc. by Landlord......................12-13
24. Events of Default; Termination......................................13-14
25. Repossession, etc......................................................14
26. Survival of Tenant's Obligations; Damages...........................14-15
26.1. Termination of Lease Not to Relieve Tenant of Obligations.....14-15
26.2. Current Damages..................................................15
26.3. Final Damages....................................................15
27. Tenant's Waiver of Statutory Rights....................................15
28. No Waiver by Landlord..................................................16
29. Remedies Cumulative....................................................16
30. Modification, Acceptance of Surrender..................................16
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31. End of Lease Term......................................................16
32. Notices, etc........................................................16-17
33. Short Form or Memorandum...............................................17
34. Quiet Enjoyment........................................................17
35. Miscellaneous..........................................................18
36. Definitions.........................................................18-21
Exhibit A: Description of Property;, Permitted Exceptions
Exhibit B: Plans and Specifications
Exhibit C: Basic Rent Schedule
Exhibit D: Enviromental Survey
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), dated as of September 26th, 1994,
between Ryan Properties, Inc., a Minnesota Corporation, (hereinafter referred
to as "Landlord"), and Ruffalo, Cody and Associates, Inc., an Iowa Corporation
(hereinafter referred to as "Tenant").
WITNESSETH THAT:
In consideration of the mutual agreements contained in this Lease,
Landlord and Tenant agree with each other as follows:
1. Leased Property, Term.
1.1 Leased Property, Fixed Term. Upon and subject to the
conditions and limitations set forth below, Landlord leases to Tenant, and
Tenant leases, and rents from Landlord, the following property ("Property")
described in Exhibit A attached hereto and made a part hereof, together with an
existing 32,565 square foot building to be renovated by Landlord and all
buildings, improvements and structures now or hereafter located on the Property
(the "Improvements") subject, however, to such of the Permitted Exceptions set
forth on Exhibit A hereto.
The Improvements shall be constructed by Landlord in a good and
workmanlike manner and in accordance with the plans and specifications for the
same identified on Exhibit B attached hereto and shall comply with all Legal
Requirements. Landlord and Tenant have each signed a set of such plans and
specifications identified on Exhibit B. The improvments are anticipated to be
completed by April 1st, 1995.
Landlord further agrees to provide during the first five (5) years
of the Fixed Term, parking spaces for the benefit of Tenant's employees,
customers and visitors. Such parking spaces shall be located off the Property
at a location reasonably acceptable to Tenant within four blocks of the
Property The monthly rate shall be TWENTY and no/100 Dollars ($20.00) per
parking space. Tenant's use of such parking spaces shall be subject to such
rules and regulations as may from time to time be put into effect by the
owner/operator of the parking facility.
TO HAVE AND TO HOLD the Property for a fixed term (the "Fixed Term")
commencing on the 1st day of April 1995, and expiring at midnight on the last
day of the calendar month which is 120 full calendar months following the
commencement of the Fixed Term, unless this Lease shall sooner terminate as
provided herein.
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The blank with respect to the commencement of the term shall be
completed as follows: A date thirty (30) days after Landlord or Landlord's
architect issues a Certificate of Substantial Completion of Landlord's work or
the date on which Tenant actually opens for business, whichever is earlier.
Landlord shall have the right to insert the commencement date as so determined
or the said date may be set by amendment hereto if requested by either party.
In the event a dispute occurs as to whether or not the Landlord's work in
construction of the Improvements is substantially completed, the certificate of
Landlord's architect that the Improvements are so completed shall be conclusive
and binding upon the parties hereto.
1.2 Extended Term. Tenant shall have the option to extend the term of
this Lease with respect to the entire Property for two (2) additional terms of
five (5) years each, collectively, the "Extended Terms", and individually, an
"Extended Term"; provided, however, that no Event of Default shall have
occurred and be continuing at the time of any such exercise. The Extended Term
shall be upon the same terms as provided in this Lease for the Fixed Term,
except for the Basic Rent which shall be as set forth on Exhibit C for the
Extended Term. The Tenant shall exercise to Landlord not less than 365 days
prior to the expiration of the Fixed Term or the then current Extended Term, as
the case may be. Should Tenant fail to exercise any option to extend the term
of this Lease within the time provided in this Section 2, all of the Tenant's
rights further to extend the term hereof shall expire.
2. Basic Rent.
2.1 Basic Rent. Net basic rental ("Basic Rent") shall be payable
during the Fixed Term in the amounts and at the times specified on Exhibit C
hereto.
2.2 Basic Rent Net; Manner of Payment. The Basic Rent and all other
sums payable to Landlord hereunder shall be payable in such currency of the
United States of America as at time of payment shall be legal tender for the
payment of public and private debts and shall be paid to Landlord at Landlord's
address set forth above or to such other person or address as Landlord from
time to time may designate. The Basic Rent shall be net to Landlord so that
this Lease shall yield to Landlord the full amount of the installments of
Basic Rent throughout the term of this Lease without deduction or setoff.
3. Additional Rent. Tenant will also pay, from time to time as provided
in this Lease or on demand of Landlord, as additional rent (the "Additional
Rent") (a) all other amounts, liabilities and obligations that Tenant
herein assumes or agrees to pay, and (b) interest at the rate of fifteen per
cent (15%) per annum on such of the foregoing amounts, liabilities and
obligations as are payable by Tenant that are not paid when due and that
Landlord shall have paid on behalf of Tenant, from the date of payment thereof
by Landlord until paid by Tenant and on all overdue installments of Basic Rent
and other sums payable under this Lease, from the due date thereof until
payment.
4. Net Lease; No Counterclaim, Abatement, etc. This Lease is a net
lease, and the Basic Rent, Additional Rent and all other sums payable hereunder
shall be paid without setoff or deduction. Except as otherwise expressly
provided in this Lease, Tenant shall at all times remain bound by this
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Lease and shall at all times remain obligated to pay the stated rentals
required by this Lease. Except as specifically set forth herein to the
contrary, Tenant shall in no event have any right to terminate this Lease.
5. Condition and Use of Property. Tenant upon acceptance of
possession acknowledges that Tenant will be fully familiar with the physical
condition of the Property and has received the same in good and clean order and
condition, and that the Property complies in all respects with all requirements
of this Lease. Tenant may use the Property for any office purpose and will not
do or permit any act or thing that is contrary to any Legal Requirement or
Insurance Requirement, or that may impair the value or utility of the Property
or any part thereof, or that constitutes a public or private nuisance or waste
of the Property or any part thereof.
6. Maintenance and Repairs. Tenant at its expense will keep the
Property and the adjoining sidewalks, curbs, and all means of access to the
Property in good and clean order and condition, subject to ordinary wear and
tear, and will promptly, at its own expense, make all necessary or appropriate
repairs, replacements and renewals thereof, whether interior or exterior,
ordinary or extraordinary, foreseen or unforeseen, provided however, Landlord
shall maintain footings, foundations, exterior walls, and roofing systems. All
repairs, replacements and renewals shall be at least equal in quality, utility
and class to the original condition of the Property. Tenant waives any right
created by any law now or hereafter in force to make repairs to the Property at
Landlord's expense. Landlord shall have no obligation to repair, rebuild or
maintain the Property.
7. Alterations and Additions, etc. Tenant at its expense may make
reasonable alterations of and additions to the Improvements or any part
thereof, provided, however, that any such alteration or addition (a) shall not
change the general character of the Improvements located on the Property, or
reduce the fair market value of any such Improvements immediately before such
alteration or addition (assuming the Property was then being maintained in
accordance with the terms of this Lease), (b) shall be effected with due
diligence, in a good and workmanlike manner and in compliance with all Legal
Requirements, Insurance Requirements and the provisions of Section 14 hereof,
and (c) shall be fully paid for by Tenant upon its construction or installation
on the Property. All alterations of and additions to the Improvements, other
than Tenant's Equipment, shall immediately become the property of Landlord and
shall constitute a part of the Property.
8. Tenants Equipment. All Tenant's Equipment shall be the
property of Tenant. Tenant will immediately repair at its expense all damage
to the Property caused by any removal of Tenant's Equipment therefrom, whether
effected by Tenant or Landlord.
9. Utility Services. Tenant will pay or cause to be paid all
charges of any nature for utilities, communications and other services rendered
at the Property.
10. No Claims Against Landlord, etc. Nothing contained in this
Lease shall constitute any consent or request by Landlord or any Mortgagee,
express or implied, for the performance of any labor or services or the
furnishing of any materials or other property in respect of the Property or any
part
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thereof, nor as giving Tenant any right, power or authority to contract for or
permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Landlord or any Mortgagee in respect thereof.
11. Indemnification by Tenant. Tenant will (to the full extent permitted by
applicable law) protect, indemnify and save harmless Landlord, any beneficiary
of Landlord, any officer, director or shareholder of any of the foregoing and
Mortgagee of the Property (each an "Indemnified Party") from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against any Indemnified Party
or against the Property or any interest of such Indemnified Party therein by
reason of the occurrence or existence of any of the following, during the
term of this Lease, unless caused solely by the willful misconduct or
negligence of such Indemnified Party: (1) any accident, injury to or death of
any person or persons or loss of or damage to property occurring on or about
the Property or any part thereof or the adjoining sidewalks, curbs, streets or
ways, (b) any use, non-use or condition of the Property or any part thereof, or
of the adjoining sidewalks, curbs, streets or ways, including, without
limitation, claims or penalties arising from violation of any Legal Requirement
or Insurance Requirement, any claim as to which the applicable insurance is
inadequate, and any claim in respect of any adverse environmental impact or
effect which is due solely to the Tenant's conduct or operation after the
commencement of the Lease and is not the result of any pre-exisiting condition
which is later discovered, (c) any failure on the part of Tenant to perform or
comply with any of the terms of this Lease, (d) any negligent or tortuous act
on the part of Tenant or any of its agents, contractors, servants, employees,
licensees or invitees, or (e) any negligent or tortious act on the part of any
assignee or sublessee of Tenant, or of any agents, contractors, servants,
employees, licensees or invitees of any assignee or sublessee of Tenant. Any
Indemnified Party seeking indemnification hereunder shall give notice to Tenant
of the existence of any claim giving rise to the need for such indemnification
within thirty (30) Business Days after the date on which such Indemnified Party
shall have obtained actual knowledge of such claim; provided, however, that no
Indemnified Party shall have any such obligation with respect to any claim
whose existence is actually or constructively known to Tenant. In case any
action, suit or proceeding is brought against any Indemnified Party by reason
of any occurrence referred to above, Tenant, upon the request of such
Indemnified Party, will at Tenant's expense resist and defend such action,
suit or proceeding or cause the same to be resisted and defended by counsel
designated by Tenant and reasonably acceptable to such Indemnified Party.
12. Inspection, etc. Landlord and its authorized representatives may enter
the Property at all reasonable times (provided that no such entry shall be made
without reasonable advance notice or shall unreasonably interfere with the
conduct of Tenant's business) for the purpose of (a) inspecting the same, (b)
exhibiting the Property for the purpose of sale or mortgage or other financing,
(c) at any time within six (6) months prior to the expiration of the term of
this Lease, exhibiting the Property for the purpose of leasing same, and (d) at
any time after Tenant shall have abandoned the Property, displaying thereon
advertisements for sale or letting. Landlord shall not have any duty to make any
such inspection and shall not incur any liability or obligation for not making
any such inspection. No such entry shall constitute an eviction of Tenant.
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13. Payment of Taxes, etc. Subject to the provisions of Section 16
hereof, Tenant will pay, promptly as and when the same shall become due and
payable all taxes (including, without limitation, real estate taxes, personal
or other property taxes and all sales, value added, use and similar taxes),
assessments (including, without limitation, all assessments for public
improvements or benefits, whether or not commenced or completed prior to the
date hereof and whether or not to be completed within the term hereof)
installments of which become due during the term hereof, or in any case a
prorate share thereof, water, sewer or other rents, rates and charges, excises,
review, license fees, permit fees, or any future inspection fees and other
authorization fees which may be created or imposed and other charges, in each
case whether general or special, ordinary or extraordinary, or foreseen or
unforeseen, of every character that may be assessed, levied, confirmed or
imposed on or in respect of the Property or any rent therefrom (all of the
foregoing being hereinafter collectively referred to as "Taxes").
Notwithstanding the foregoing or any other provision of this Lease, Tenant
shall not be required to pay any income, profits or revenue tax upon the net
income of Landlord, nor any franchise, excise, corporate, estate, inheritance,
succession, capital levy or transfer tax of Landlord, nor any interest,
additions to tax or penalties in respect thereof, unless such tax is imposed,
levied or assessed in substitution for any Taxes that Tenant is required to pay
pursuant to this Section 13. Tenant will furnish to Landlord, upon request,
official receipts or other proof reasonably satisfactory to Landlord evidencing
payment of any Taxes in accordance with the requirements of this Section 13.
14. Compliance with Legal and Insurance Requirements. Instruments.
Subject to the provisions of Section 16 hereof, Tenant at its expense will
promptly (a) comply with all Legal Requirements and Insurance Requirements, and
(b) procure, maintain and comply with all permits, licenses and other
authorizations required for any use of the Property.
15. Liens, Easements, etc. Tenant will not directly or indirectly
create or permit to be created or to remain, and will discharge, any mortgage,
lien, or encumbrance with respect to the Property or any part thereof or
Tenant's interest therein, or the Basic Rent, Additional Rent or any other sum
payable under this Lease.
16. Permitted Contests. Tenant at its expense may contest by
appropriate legal proceedings conducted in good faith and with due diligence,
the amount or validity or application, in whole or in part, of any Taxes or
lien therefor or any Legal Requirement or Insurance Requirement or the
application of any instrument of record affecting the Property or any part
thereof or any claims of mechanics, materialmen, suppliers or vendors or lien
therefor, and if permitted by law, may withhold payment of the same pending
such contest; provided, however, that (a) such proceedings shall suspend the
collection thereof from Landlord, the Property and any sums payable hereunder,
(b) neither the Property nor any part thereof or interest therein (or any sums
payable hereunder) would be in any danger of being sold, forfeited or lost, nor
would the use or occupancy of the Property (or any part thereof) be adversely
affected, (c) Landlord shall not be in any danger of any civil or criminal
liability by reason thereof and neither the Property nor any part thereof or
interest therein (or any sums payable hereunder) would be subject to the
imposition of any lien as a result of such failure, and (d) Tenant shall have
either (i) paid the disputed amount under protest, or (ii) furnished to
Landlord such security as Landlord may deem reasonably necessary to insure the
ultimate payment of the contested amount
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and to prevent the forfeiture of any sums payable to Landlord or any Mortgagee
hereunder. Tenant shall give prompt written notice to Landlord of the
commencement of any contest referred to in the preceding sentence, providing a
reasonably detailed description thereof, and Landlord shall, at Tenant's
expense, cooperate with Tenant with respect to any such contest. Tenant agrees
that each such contest shall be promptly prosecuted to final conclusion, and
Tenant shall indemnify and save Landlord and any Mortgagee harmless from and
against any and all losses, judgments, decrees and costs (including, without
limitation, reasonable attorneys' fees and expenses) incurred in connection
therewith. Tenant agrees that it will, promptly after final determination of
each such contest, fully pay and discharge the amounts which shall finally be
levied, assessed, charged or imposed or determined to be payable, together with
all penalties, fines, interest, costs and expenses incurred in connection
therewith, and perform all acts the performance of which shall be finally
ordered or decreed as a result thereof.
17. Insurance.
17.1. Risks to be Insured. Tenant, at its expense, will
maintain with insurers authorized to issue insurance in the State of Iowa and
having an A.M. Best rating of "A" or better or otherwise approved by Landlord
and any Mortgagee (a) insurance with respect to the Improvements against loss or
damage by fire, lightning and other risks from time to time included under
"all-risk" policies and against loss or damage by sprinkler leakage, water
damage, collapse, vandalism and malicious mischief, in amounts sufficient to
prevent Landlord and Tenant from becoming co-insurers of any loss under the
applicable policies, and in any event in amounts not less than 100% of the
actual replacement costs of the Improvements (initially determined as of the
date on which such insurance is originally issued, and subsequently
re-determined on the basis on an annual review of the actual replacement cost
of the Improvement), as determined at the request of Landlord (such insurance
shall also include at least nine (9) months rental loss coverage), (b)
comprehensive general liability insurance against claims arising out of or
connected with the possession, use, leasing, operation or condition of the
Property in such amounts as are usually carried by persons operating similar
properties in the same general locality but in any event with a combined single
limit of not less than $5,000,000 for any single injury to a person and
$10,000,000 for all claims with respect to property damage and personal injury
and death with respect to any one occurrence, (c) explosion insurance in
respect of any steam and pressure boilers and similar apparatus located on the
Property in amounts not less than those required by subdivision (b) above, (d)
in the event that the Property shall at any time be used as anything other than
for office purposes such other insurance against such risks and in such amounts
as Landlord shall reasonably request. In addition, during any period of
repair, alteration or addition to the Property, Tenant shall obtain and keep in
effect Builder's Risk insurance in such amounts as Landlord shall reasonably
request. Tenant may effect any insurance not required by this Lease, but any
such insurance effected by Tenant on the Property shall be for the benefit of
Landlord, Tenant and any Mortgagee, as their interests may appear, and shall be
subject to all of the provisions of Section 17.2 hereof. The insurance
required under this Section 17.1 may be subject to a deductible in an amount
not exceeding $2,500.00 and may be effected under a blanket policy or policies
covering the Property and other property and assets not constituting part of
the Property; provided, however, that any such policy shall specify the portion
of the total coverage of such policy or policies that is allocated to the
Property and shall, in all other respects, comply with the requirements of this
Section 17.
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17.2 Policy Provisions. All insurance maintained by Tenant pursuant to
Section 17.1 hereof shall (a) name Landlord (individually and as a fiduciary),
Tenant and any Mortgagee as insured parties, (b) provide that all insurance
proceeds for losses of less than $10,000 shall, except in the case of
comprehensive general liability insurance be adjusted by and be payable to
Tenant to be used by Tenant, to the extent necessary, for Restoration, (c)
provide that all insurance proceeds for losses of $10,000 or more shall (except
in the case of comprehensive general liability insurance and workers'
compensation insurance) be adjusted by Landlord and Tenant jointly and shall be
payable to any Mortgagee by means of a standard mortgage loss payable
endorsement (or to Landlord, if there is not Mortgagee), to be held in trust
pursuant to the terms of this Lease, (d) provide that if all or any part of
such policy is canceled, terminated or expires, the insurer will forthwith give
notice thereof to each named insured party and loss payee and that no
cancellation, reduction in amount or material change in coverage thereof shall
be effective until at least 30 days after delivery to each named insured party
and loss payee of written notice thereof, and (e) be reasonably satisfactory in
all other respects to Landlord and any Mortgagee.
17.3 Delivery of Policies; Insurance Certificates. Tenant will deliver
to Landlord and any Mortgagee the originals of all insurance policies (or, in
the case of blanket policies, certificates thereof) and any amendments or
supplements thereto with respect to the Property that Tenant is required to
maintain pursuant to this Section 17, together with evidence as to the payment
of all premiums then due thereon, and not later than 30 days prior to the
expiration of any policy, a certificate of the insurer evidencing the
replacement or renewal thereof.
18. Hazardous Materials. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Property any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state
or local laws and the regulations adopted under these acts. If any lender or
governmental agency shall ever require testing to ascertain whether or not
there has been any release of hazardous materials, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges if such requirement applies to the Property. In addition, Tenant shall
execute affidavits, representations and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials on the Property. In all events,
Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease
from any release of hazardous materials on the Property occurring while Tenant
is in possession, or elsewhere if caused by Tenant or persons acting under
Tenant. The within covenants shall survive the expiration or
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earlier termination of the Lease Term. Landlord has caused an environmental
survey of the property to be preformed by Shive Hattery and Associates attached
hereto as Exhibit D.
19. Damage to or Destruction of Property.
19.1. Tenant to Give Notice. In case of any damage to or destruction
of the Improvements located on the Property (or any part of such
Improvements), the Restoration of which is reasonably estimated to cost more
than $10,000.00, Tenant will promptly give notice thereof to Landlord,
generally describing the nature and extent of such damage or destruction and
setting forth Tenant's best estimate of the cost of Restoration.
19.2. Restoration. In case of any damage to or destruction of the
Improvements located on the Property (or any part of such Improvement), other
than a Total Destruction, Tenant, whether or not the insurance proceeds, if
any, on account of such damage or destruction shall be sufficient for the
purpose, at its expense will promptly commence and complete (subject to
Unavoidable Delays) Restoration of such Improvements.
19.3. Total Destruction. In case of (a) the destruction during the last
two years of the Fixed Term of all of the Improvements located on the Property,
or (b) the destruction during the last two years of the Fixed Term of such a
substantial part of the Improvements located on the Property that, in the good
faith judgment of the Board of Directors of Tenant, Restoration of such
Improvements is not economically feasible (any such destruction being
hereinafter referred to as a "Total Destruction"), Tenant may, by notice to
Landlord given within 60 days after the date of such destruction, terminate
this Lease.
In the event of such termination of this Lease by the Tenant as a result
of such Total Destruction, the obligation of the Tenant to pay Basic Rent and
all other obligations of the Tenant hereunder shall be prorated as of the date
of termination. The Tenant agrees that all insurance proceeds with respect to
the Property and the Improvements shall be automatically assigned and paid over
solely to the Landlord and the Tenant shall have no right, title or interest in
the same.
19.4. Application of Insurance Proceeds. Tenant hereby irrevocably
assigns to Landlord any compensation or insurance proceeds to which Tenant may
become entitled by reason of Tenant's interest in the Property if the Property
or any part thereof is damaged or destroyed by fire or other casualty. Any
compensation or insurance payment of more than $10,000 shall be paid to and
held in trust and applied in accordance with this Lease by Mortgagee or, if
there is no Mortgagee or if Mortgagee does not require that it hold such
compensation, by Landlord; provided, however, that any such compensation or
insurance payment which is not in excess of $10,000 shall be paid directly to
Tenant (if no Event of Default than exists hereunder) and shall be expended by
Tenant in connection with the Restoration of the Property (with the balance of
such proceeds, if any, being retained by Tenant upon the completion of such
Restoration).
20. Taking of Property.
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20.1. Tenant to Give Notice; Assignment of Awards, etc. In case of a
Taking, or the commencement of any proceedings or negotiations that might
result in a Taking, in respect of which the Restoration of the Property is
reasonably estimated to cost more than $10,000, Tenant will promptly give
notice thereof to Landlord, generally describing the nature and extent of such
Taking or the nature of such proceedings or negotiations and the nature and
extent of the Taking that might result therefrom. Tenant hereby irrevocably
assigns, transfers and sets over to Landlord all rights of Tenant to any award
or payment on account of any Taking of Tenant's Leasehold and irrevocably
authorizes and empowers Landlord, with full power of substitution, in the name
of Tenant or otherwise, to file and prosecute what would otherwise be Tenant's
claim for any such award or payment and to collect, receipt for and retain the
same.
20.2. Partial Taking. In the case of a Taking other than a Total Taking,
(a) this Lease shall remain in effect as to the portion of the Property
remaining immediately after such Taking, without any abatement or reduction of
Basic Rent, Additional Rent or any other sum payable hereunder, and without any
change or reduction in the amount of insurance required pursuant to Section 17
hereof, and (b) Tenant, whether or not the awards or payments, if any, on
account of such Taking shall be sufficient for the purpose, at its expense will
promptly commence and complete (subject to Unavoidable Delays) Restoration of
the Property, except for any reduction in area of the Property caused by such
Taking; provided, however, that in case of Taking for temporary use ("Temporary
use" being defined for all purposes herein as any taking for less than nine
consecutive months) Tenant shall not be required to effect any Restoration
until such Taking is terminated.
20.3. Total Taking. In case of the Taking during the Fixed Term of the
Property in its entirety (or all of the Improvements located thereon) or the
Taking during the Fixed Term (other than for temporary use) of such a
substantial part of the Property (or the Improvements located thereon) that, in
the good faith judgment of the Board of Directors of Tenant, either (a) the
portion of the Property (or the Improvements located thereon) remaining after
such Taking is (and after Restoration would be) unsuitable for use by Tenant in
the operation of its business, or (b) Restoration of the Property (or the
Improvements located thereon) is not economically feasible, this Lease shall
terminate as of the date of such Taking.
In the event of the termination of this Lease as a result of any such
Taking, the Tenant hereby releases all right, title, claim and interest in and
to any award or payments received or payable as a result of any such Taking of
the Improvements and/or the Property, except that the Tenant shall be entitled
to any separate award for the loss of its trade fixtures or equipment or moving
allowances, if any such separate award is made.
20.4. Application of Awards, etc. All awards and payments received by or
payable to Landlord on account of a Taking (less the actual costs, fees and
expenses incurred in connection with the collection thereof, for which the
Person incurring the same shall be reimbursed from such award or payment,
together with any interest or other income earned on such awards from the
investment thereof and any other interest paid on such awards prior to
disbursement hereunder) shall be paid to
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and held in trust and applied in accordance with this Lease by Mortgagee, or,
if there is no Mortgagee or if Mortgagee does not require that it hold
such award, by Landlord, and shall be applied or dealt with as follows:
(a) All such awards and payments actually received on account of a
Taking (other than a Total Taking) shall be applied as follows:
(i) Subject to subparagraph (ii) below, such awards and
payments shall be applied to pay the cost of the Restoration of the
Property, such application to be effected substantially in the same manner and
subject to the same conditions as provided in paragraph (a) of Section 19.4
hereof with respect to insurance proceeds; provided, however, that in case the
total amount of such awards and payments shall not exceed $5,000, such awards
and payments shall be paid over to Tenant, if no Event of Default then exists
hereunder, upon Tenant's request and without compliance with any of such
conditions.
(ii) In case of a Taking for a temporary use, such awards and
payments shall be paid to Tenant and there shall be no abatement in
Tenant's obligation to pay Basic Rent and Additional Rent hereunder during the
period of such temporary use; provided, however, that if any portion of such
awards and payments is made by reason of any damage to or destruction of the
Property (or the Improvements thereon) during such Taking for temporary use,
such portion shall be held and applied as provided in subparagraph (i) above
after such Taking is terminated.
(iii) The balance, if any, of such awards and payments not
required to be held or applied in accordance with subparagraphs (i) and (ii)
above, shall be paid to Landlord following completion of the Restoration.
(b) All such awards and payments received by or payable to Landlord on
account of a Total Taking with respect to the Property (or the Improvements
thereon) during the Fixed Term or any Extended Term shall, as contemplated by
Section 20.3 hereof, be paid over or assigned to Landlord.
21. Certificate as to No Event of Default, etc.; Financial Statements, etc.
21. 1. Certificate of Tenant as to No Event of Default, etc. Tenant
will deliver to Landlord within 10 days following Landlord's request
therefor (but in no event more often than three times in any twelve-month
period), (a) a Certificate of Tenant stating (i) that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that this
Lease is in full force and effect, as modified, and stating the modifications),
(ii) the date to which the Basic Rent has been paid and that all Additional Rent
payable on or before the date of such Certificate has been paid, and (iii) that
no Event of Default exists hereunder, or, if any such Event of Default exists,
specifying the nature and period of existence thereof and what action Tenant is
taking or has taken with respect thereto, and (b) such information with respect
to Tenant and the Property or any part thereof as from time to time may
reasonably be requested.
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21.2. Certificate of Landlord. Within 10 days following Tenant's request
therefor, but in no event more often than three times in any twelve-month
period (which request shall (i) state that it is made pursuant to this Section
21.2 and that Tenant proposes, pursuant to Section 23.1 hereof, to assign its
interest in this Lease or sublet a portion of the Property to a Person
identified in such request, and (ii) be accompanied by a copy of this Lease and
each modification hereof or amendment hereto, if any, to and including the date
of such request, and a Certificate of Tenant stating that such copies are true,
correct and complete copies of this Lease and of all such modifications and
amendments), Landlord will deliver to Tenant a Certificate of Landlord stating
(a) that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that this Lease is in full force and effect, as
modified, and stating the modifications), (b) the date to which Basic Rent has
been paid hereunder and (c) whether or not an Event of Default has been
declared by Landlord hereunder, it being agreed that (and any such Certificate
shall state that) no rights or remedies of Landlord hereunder or otherwise
resulting from any condition, event or circumstance that would entitle
Landlord to declare an Event of Default (and with respect to which condition,
event or circumstance no Event of Default has been declared on or before the
date of such Certificate) shall be waived, impaired or diminished in any
respect by reason of any such Certificate or any statement made therein. No
failure of Landlord to deliver any such Certificate shall release, discharge or
otherwise affect any of Tenant's or Landlord's rights or obligations hereunder.
21.3. Financial Statements. Tenant will deliver to Landlord as soon as
reasonably possible, and in any event within 120 days after the close of each
fiscal year of Tenant, a copy of (i) the consolidated balance sheet of Tenant
as of the end of such fiscal year, (ii) consolidated statements of income and
shareholders' equity for Tenant with respect to such fiscal year, and (iii)
consolidated statements of changes in financial position for Tenant with
respect to such fiscal year, setting forth in each case in comparative form the
corresponding figures for the previous fiscal year, all in reasonable detail,
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except for any changes
required by the Financial Accounting Standards Board and other changes
consistent with generally accepted accounting principles) and accompanied by an
unqualified opinion of independent public accountants of recognized national
standing.
22. Right of Landlord to Perform Tenant's Covenants, etc. If Tenant shall
fail to make any payment or perform any act required to be made or performed by
it hereunder, Landlord, upon notice to Tenant (except in cases of emergency that
threaten bodily injury or material property damage), but without waiving or
releasing any obligation or default, may make such payment or perform such act
for the account and at the expense of Tenant, and may enter upon the Property
and the Improvements or any part thereof for such purpose and take all such
action thereon as, in the opinion of Landlord, may be necessary or appropriate
therefor. No such entry shall constitute an eviction of Tenant. All reasonable
payments so made by Landlord and all reasonable costs and expenses (including,
without limitation, attorneys' fees and expenses) incurred in connection
therewith or in connection with the performance by Landlord of any such act
shall constitute Additional Rent hereunder.
23. Assignments, Subleases, Mortgages, etc.
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23.1. Assignments, Subleases, etc. by Tenant. If no Event of Default
shall have occurred and be continuing Tenant may, after obtaining the written
consent of Landlord, at any time, sublet the Property or any part thereof, and
may assign its interest in this Lease; provided, however, that (a) Tenant shall
deliver to Landlord a fully executed counterpart of each such sublease or
assignment promptly after execution thereof, and (b) no assignment, whether by
operation of law, consolidation, merger, a sale of stock or otherwise,
shall be effective prior to the execution by the assignee and delivery to
Landlord of an instrument, reasonably satisfactory in form and substance to
Landlord, assuming all of the obligations of Tenant under this Lease. No
assignment or sublease made as permitted by this Section 23.1 shall affect or
reduce any obligations of Tenant or any rights of Landlord hereunder, and all
obligations of the Tenant originally named hereunder shall continue in full
force and effect as the obligations of a principal and not of a guarantor or
surety, to the same extent as though no assignment or subletting had been made.
23.2. Assignments, Mortgages, etc. by Landlord. The interest of Landlord
in this Lease and in and to the Property or any part thereof may, at any time
and from time to time, be sold, conveyed, assigned or otherwise transferred,
without the prior written consent of Tenant, and upon any sale or conveyance of
the Property as an entirety or any assignment or other transfer (other than for
the purpose of securing indebtedness) by any party lessor of its interest in
this Lease and in and to the Property, such party lessor shall be completely
relieved of and from any and all obligations not theretofore accrued under this
Lease or otherwise with respect to the Property, and such party lessor shall
have no further obligations whatsoever to any party lessee, except to the
extent that any such obligation accrued prior to the date of such sale,
conveyance, assignment or transfer, and Tenant shall thereupon look only to the
then owner of Landlord's estate in the Property for the performance of any
obligations of Landlord hereunder. Landlord may also from time to time
mortgage or assign, by way of pledge or otherwise, any or all of the rights, in
whole or in part, of Landlord under this Lease to any Person as security for
the indebtedness or other obligations of Landlord. From and after any such
mortgage or assignment and to the extent provided in the instrument effecting
such mortgage or assignment, (a) such Mortgagee may enforce any and all of the
terms of this Lease to the extent so assigned as though such Mortgage had been
a party hereto, (b) no action or failure to act on the part of Landlord shall
adversely affect or limit any rights of such Mortgagee, (c) no such assignment
shall constitute an assumption of any such obligations on the part of such
Mortgagee, and (d) a copy of all notices, demands, consents, approvals and
other instruments given by Tenant hereunder shall also be delivered to such
Mortgagee, if such Mortgagee shall have provided Tenant with written notice of
its address for such purposes.
24. Events of Default; Termination. If any one or more of the following
events ("Events of Default") shall occur (whatever the reason therefor, and
whether voluntary or involuntary or by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court of any rule or
regulation of any administrative or governmental body):
(a) if Tenant shall fail to pay any installment of Basic Rent or
Additional Rent, or other sum required to be paid by Tenant hereunder on
the date the same becomes due and payable and such
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failure continues for more than five (5) Business Days following written notice
by Landlord to Tenant; or
(b) if Tenant shall fail to perform or comply with any term of this Lease
(other than those referred to in clause (a) above) or any term of any instrument
related hereto pursuant to which Tenant undertakes obligations or makes
agreements for the benefit of Landlord or any Mortgagee and, in any such case,
such failure shall continue for more than 30 days after an Officer of Tenant
received notice (from any source) or otherwise obtains knowledge of such
non-performance or noncompliance; provided, however, that in the case of any
such failure that is susceptible of being cured but that cannot with diligence
be cured within such 30-day period, if Tenant shall promptly commence to cure
the same and shall thereafter prosecute the curing thereof with diligence, the
period within which such failure may be cured shall be extended for such further
period as shall be necessary for the curing thereof with diligence, or
(c) if any material representation or warranty made by Tenant herein, in
any document or certificate furnished by Tenant or any Mortgagee in connection
herewith or therewith or pursuant hereto or thereto, or any material
representation or warranty made by Tenant in any assignment or reassignment by
Landlord of this Lease shall be incorrect in any material respect as of the
date when made; or
(d) if the Property or the Improvements shall be left vacant and without
maintenance and security; or
(e) if Tenant shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
(f) if an involuntary case or other proceeding shall be commenced against
Tenant seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding shall remain
undischarged and unstayed for a period of 90 days, or if an order for relief
shall be entered against Tenant under the federal bankruptcy laws as now or
hereafter in effect; or
(g) if a final judgment that, together with other outstanding final
judgments against Tenant, exceeds an aggregate of $30,000 shall be rendered
against Tenant, and if, within 120 days after the entry thereof, such judgment
shall not have been discharged or execution thereof stayed pending
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appeal or if within 120 days after the expiration of such stay, such judgment
shall not have been discharged;
then, and in any such event, Landlord may at any time thereafter, during the
continuance of any such Event of Default, give a written termination notice to
Tenant specifying a date (not less than five days from the date on which such
notice is given) on which this Lease shall terminate, and, on such date,
subject to the provisions of Section 26 hereof relating to the survival of
Tenant's obligations hereunder, the term of this Lease shall terminate by
limitation and all rights of Tenant under this Lease shall cease. All
reasonable costs and expenses incurred by or on behalf of Landlord (including,
without limitation, attorneys' fees and expenses) occasioned by any default by
Tenant under this Lease shall constitute Additional Rent hereunder.
25. Repossession, etc. If an Event of Default shall have occurred
and be continuing, Landlord, whether or not the term of this Lease shall, have
been terminated pursuant to Section 24 hereof, may enter upon and repossess the
Property or any part thereof by legal process, summary proceedings, ejectment
or otherwise, and may remove Tenant and all other persons and any and all
property therefrom. Landlord shall be under no liability for or by reason of
any such entry, repossession or removal.
26. Survival of Tenant's Obligations; Damages.
26.1. Termination of Lease Not to Relieve Tenant of Obligations.
No termination of the term of this Lease pursuant to Section 24 hereof, by
expiration or by operation of law or otherwise, and no repossession of the
Property or any part thereof pursuant to Section 25 hereof or otherwise, and no
reletting of the Property, shall relieve Tenant of its liabilities and
obligations hereunder, all of which shall survive such expiration, termination,
repossession or reletting.
26.2. Current Damages. In the event of any such termination,
repossession or reletting, Tenant will pay to Landlord the Basic Rent and all
Additional Rent and other sums required to be paid by Tenant up to the time of
such termination, repossession or relettng, and thereafter Tenant, until the
end of what would have been the term of this Lease (including the Fixed Term)
in the absence of such termination or repossession, and, whether or not the
Property or any part thereof shall have been relet, shall be liable to Landlord
for and shall pay to Landlord, as liquidated and agreed current damages for
Tenant's default, (a) the Basic Rent and all Additional Rent and other sums
that would be payable under this Lease by Tenant in the absence of such
termination or repossession, plus, (b) all reasonable expenses directly
incurred by Landlord in connection with such termination and repossession and
any reletting effected for the account of Tenant pursuant to Section 25 hereof
(including, without limitation, all, repossession costs, brokerage commissions,
legal expenses, attorney's fees, employees expenses, alteration costs and
expenses of preparing for such reletting), less (c) the proceeds, if any, of
such reletting. Tenant will pay such current damages monthly on the days on
which the Basic Rent would have been payable under this Lease in the absence of
such termination, repossession or reletting, and Landlord shall be entitled to
recover the same from Tenant on each such day.
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26.3. Final Damages. At any time after any such termination or
repossession, whether or not Landlord shall have collected any current damages
as aforesaid, Landlord shall be entitled to recover from Tenant and Tenant will
pay to Landlord on demand, as and for liquidated and agreed final damages
beyond the date of such demand, (a) an amount equal to the excess of (i) all
past due Basic Rent and Additional Rent plus the present value of all Basic
Rent and Additional Rent that would be payable under this Lease from the date
of such demand (or, if it be earlier, the date to which Tenant shall have
satisfied in full its obligations under Section 26.2 hereof to pay current
damages) for what would be the unexpired term of this Lease in the absence of
such termination or repossession, over (ii) the present value of the fair market
rental for the Property at the date of this Lease, which present value shall in
each case be determined by the application of a discount factor of 10% per
annum. Payment of final damages herein is limited to those damages not
accounted for and paid for under 26.2.
27. Tenant's Waiver of Statutory Rights. In the event of any
termination of the term of this Lease pursuant to Section 24 hereof or any
repossession of the Property or any part thereof pursuant to Section 25 hereof,
Tenant, so far as permitted by law, waives any right of redemption, re-entry or
repossession.
28. No Waiver by Landlord. No failure by Landlord to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any
such breach or of any such term. No waiver of any breach shall affect or alter
this Lease, which shall continue in full force and effect, or the rights of
Landlord with respect to any other then existing or subsequent breach. No
foreclosure, sale or other proceedings under any mortgage or other security
arrangement with respect to the Property shall discharge or otherwise affect
the obligations of Tenant hereunder.
29. Remedies Cumulative. Each right, power and remedy of Landlord
provided for in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be
in addition to every other right, power or remedy provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise, and
the exercise or attempted exercise by Landlord of any one or more of the
rights, powers or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Landlord of any or all such other rights,
powers or remedies.
30. Modification, Acceptance of Surrender. No modification,
termination or surrender to Landlord of this Lease and no surrender of the
Property or any part thereof or of any interest therein shall be valid or
effective unless agreed to and accepted in writing by Landlord, and no act by
any representative or agent of Landlord, and no act by Landlord, other than
such a written agreement and acceptance by Landlord, shall constitute an
agreement thereto or acceptance thereof.
31. End of Lease Term. Upon the expiration or earlier termination of
this Lease, Tenant, at its expense, shall quit and surrender to Landlord the
Property in good order and condition, ordinary
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wear and tear excepted, and, if requested by Landlord, shall remove, at
Tenant's expense, all of Tenant's Equipment therefrom and shall repair, at
Tenant's expense, all damage caused by such removal.
32. Notices, etc. All notices, offers, acceptances, rejections,
consents and other communications hereunder shall be in writing and shall be
deemed to have been given when delivered or mailed by first class registered or
certified mail, postage prepaid, or sent by a nationally recognized overnight
courier service, addressed:
If to Landlord:
Ryan Properties, Inc.
700 International Centre
900 Second Avenue South
Minneapolis, Minnesota 55402
or at such other address as Landlord shall have furnished to Tenant in writing;
and
If to Tenant:
Joe Cunningham
Ruffalo Cody & Associates, Inc.
221 Third Avenue SE
Cedar Rapids, IA 52401
with a copy to:
Bill Neppl
White & Johnson, P.C.
1715 lst Avenue SE
Cedar Rapids, IA 52402
or at such other address as Tenant shall have furnished to Landlord in writing.
33. Short Form or Memorandum. Landlord and Tenant shall execute and
deliver a short form or memorandum of this Lease, satisfactory in form and
substance to Landlord and Tenant, for recording in the proper office or offices
in each of the states in which the Property is located.
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34. Quiet Enjoyment. So long as Tenant shall pay the Basic Rent and
Additional Rent and any other sums payable hereunder as the same become due and
shall fully comply with all of the terms of this Lease and fully perform its
obligations hereunder, Tenant (and any subtenant of Lease permitted pursuant to
the terms of this Lease) shall peaceably and quietly have, hold and enjoy the
Property for the term hereof, subject, however, to all the terms of this Lease.
No failure by Landlord to comply with the foregoing covenants during the Fixed
Term shall give Tenant any right to cancel or terminate this Lease or to abate,
reduce or make a deduction from or offset against the Basic Rent or any
Additional Rent or any other sum payable under this Lease, or to fail to
perform any other obligation of Tenant hereunder. Notwithstanding anything
contained in this Lease to the contrary, it is specifically understood and
agreed that neither Landlord nor any beneficiary of Landlord, nor any officer,
director or shareholder of any of the foregoing, or any Mortgagee, shall have
any personal liability in respect of any of the terms, covenants, conditions or
provisions of this Lease. Nothing contained in this Section 34 shall prohibit
Landlord, or any Mortgagee, or their respective authorized representatives,
from entering the Property at reasonable times to inspect the same.
35. Miscellaneous. All rights, powers and remedies provided herein may
be exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and are intended to be limited to the extent
necessary so that they wili not render this Lease invalid, illegal or
unenforceable under the provisions of any applicable law. If any term of this
Lease or any application thereof shall be invalid or unenforceable, the
remainder of this Lease and any other application of such term shall not be
affected thereby. This Lease may be changed, waived, discharged or terminated
only by an instrument in writing, signed by each of the parties hereto. Subject
to Section 23.2 hereof, this Lease shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and permitted
assigns of the parties hereto. This Lease shall be construed and enforced in
accordance with and governed by the laws of the State of Iowa. The headings in
this Lease are for the purposes of reference only and shall not limit or
otherwise affect the meaning hereof. This Lease may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument. It is understood by both parties
that at the time of signing Landlord has not purchased the property. This
lease does not take full effect until the title is transferred to the Landlord
which is anticipated on October 7th, 1994. In any event, if such closing does
not take place by November 1st, 1994, this lease shall become null and void
with written notice from either party.
36. Definitions. As used in this Lease, the following terms shall
have the following respective meanings, applicable both to the singular and
plural forms of the terms so defined:
Additional Rent: the meaning specified in Section 3 hereof.
Basic Rent: the meaning specified in Section 2 hereof.
Business Day: any day other than a day on which banking institutions in
the State of Iowa are authorized by law to close.
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Casualty Termination Date: the meaning specified in Section 19.3
hereof.
Certificate: with respect to any corporation, a certificate of such
corporation signed by the President or a Vice President and by the Treasurer,
Comptroller, Assistant Treasurer or Assistant Comptroller of such corporation.
Estoppel Certificate: the meaning specified in Section 21 hereof.
Event of Default: the meaning specified in Section 24 hereof.
Fixed Term: the meaning specified in Section 1 hereof.
Improvements: the meaning specified in Section 1 hereof.
Indemnified Party: the meaning specified in Section 11 hereof.
Insurance Requirements: all terms of any insurance policy covering
Tenant or covering or applicable to the Property or any part thereof, all
requirements of the issuer of any such policy, and all orders, rules,
regulations and other requirements of the national Board of First Underwriters
(or any other body exercising similar functions) applicable to or affecting the
Property or any part thereof or any use or condition of the Property or any part
thereof.
Legal Requirements: all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all governments, departments,
commissions, boards, courts, authorities (including, without limitations,
environmental protection, planning and zoning authorities), agencies (and other
governmental or quasigovernmental units, whether Federal, state, count,
district, municipal, city or other), and any officials and officers thereof,
which now or at any time hereafter may be applicable to Tenant with respect to
the Property or to the Property or any part thereof (including any which may
apply to the repair, use or maintenance of the Property or any part thereof),
or any of the adjoining sidewalks, curbs, vaults and vault space, if any,
streets or ways, or any use or condition of the Property or any part thereof.
Mortgage: any mortgage or other similar instrument from time to time
providing for the assignment as security of Landlord's interest in the Property
or this Lease by the holder thereof.
Mortgagee: the mortgagee under any Mortgage.
Permitted Exceptions: the exceptions set forth on Exhibit A hereto.
Person: a corporation, an association, a partnership, an organization,
a trust, an individual, a government or political subdivision thereof or a
governmental agency.
Property: the meaning specified in Section 1 hereof.
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Restoration: in case of damage to or destruction of the Property or of
the Improvements located thereon, the restoration, replacement or rebuilding of
the Property or the Improvements as nearly as possible to its value, condition
and character immediately prior to such damage, destruction or Taking, with
such alterations and additions as may be made at Tenant's election pursuant to
and subject to the conditions of Section 7 hereof, together with any temporary
repairs and property protection which may be required pending completion of
such work.
Taking: a temporary or permanent taking by a government or political
subdivision thereof or by a governmental agency during the term hereof of all
or part of the Property, or any interest therein or right accruing thereto, as
the result of or in lieu of or in anticipation of the exercise of the right of
condemnation or eminent domain, or a change of grade affecting the Property or
any part thereof. Such a taking shall be deemed to have occurred on the date on
which Tenant shall be legally required to relinquish possession of the
Property.
Taking Termination Date: the meaning specified in Section 20.3 hereof.
Taxes: the meaning specified in Section 13 hereof.
Tenant: Ruffalo, Cody and Associates, Inc., together with any entity or
entities succeeding to all or substantially all of the assets of it, by merger
or otherwise.
Tenant's Equipment: the trade fixtures and other similar items of
property.
Total Destruction: the meaning specified in Section 19.3 hereof.
Total Taking: the meaning specified in Section 20.3 hereof.
Unavoidable Delays: delays due to acts of God, governmental
restrictions, enemy actions, civil commotion, firs, unavoidable casualty,
strikes, shortages of supplies or other causes beyond the control of Tenant,
but lack of funds shall not be deemed a cause beyond the control of Tenant.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed as of the date first set forth above.
Landlord:
RYAN PROPERTIES, INC.
By /s/ JEFF A. SMITH
----------------------------
Its Vice President
-------------------------
Tenant:
RUFFALO, CODY AND ASSOCIATES, INC.
By /s/ ALBERT P. RUFFALO
-------------------------
Its President/CEO
----------------------
And
By /s/ JOSEPH P. CUNNINGHAM
----------------------------
Its Treasurer
-------------------------
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STATE OF IOWA)
)SS.
COUNTY OF LINN)
The foregoing was acknowledged before me this 26th day of Sept., 1994,
by Albert P. Ruffalo, the President/CEO of RUFFALO CODY & ASSOCIATES, a Iowa
corporation, on behalf of said corporation.
/s/ ANNE FABER SEIDL
-------------------------
STATE OF IOWA)
)SS.
COUNTY OF LINN)
The foregoing was acknowledged before me this 26th day of Sept., 1994,
by Joseph P. Cunningham, the Treasurer of RUFFALO CODY & ASSOCIATES, a Iowa
corporation, on behalf of said corporation.
/s/ ANNE FABER SEIDL
-------------------------
[SEAL] ANNE FABER SEIDL
MY COMMISSSION EXPIRES
11-2-95
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EXHIBIT C
BASIC RENT
Tenant agrees to pay Landlord:
I. for the period from the commencement of this Lease through the
sixtieth (60th) full month of the term a monthly base rent of
$29,851.25;
II. for the period from the sixty-first (61st) month of this Lease
through the one hundred-twentieth (120th) full month of the term a
monthly base rent of $32,429.31;
payable on the first day of each month in advance, without notice.
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