LEASE
THIS LEASE, made and entered into as of the 20th day of February, 1996,
by and between T & J INVESTMENT CO., a Kansas general partnership, hereinafter
referred to as the ("Lessor"), and ELECTRONIC PROCESSING, INC., a Missouri
corporation, (hereinafter referred to as the "Lessee"),
WITNESSETH:
WHEREAS, the T & J INVESTMENT CO., a Kansas general partnership, owns
certain real estate and buildings and improvements constructed thereon, more
fully described on Exhibit A attached hereto and incorporated herein (the
"Premises");
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth, Lessor and Lessee do hereby covenant and agree as
follows:
1. GRANTING OF LEASEHOLD. The Lessor by these presents hereby,
rents, leases and lets the Premises unto the Lessee, and the
Lessee hereby rents, leases and hires the Premises from the
Lessor for the rentals and upon and subject to the terms and
conditions hereinafter set forth.
2. TERM. The term of this Lease shall commence on February 20,
1996, and shall continue thereafter until February 28, 2001.
3. OPTION TO EXTEND TERM. The Lessee shall have an option to
extend this Lease upon the terms and conditions set forth herein
for an additional period of five (5) years. The option is to be
exercised in writing by the Lessee not later than six (6) months
prior to the expiration of the original term.
4. USE OF PREMISES. The Premises are to be used for the business
operations and offices of the Lessee and warehouse space as
discussed herein.
5. RENTAL. As rental for the Premises (the "Rental"), the Lessee
shall pay to the Lessor monthly rental due in advance on the
first day of each month in the amount of Twelve-Thousand, One-
Hundred ,Twenty-Five and 00/100 Dollars ($12,125.00) for the
period beginning March 1, 1996, and ending February 28, 1997. For
the period beginning March 1, 1997, and ending February 28, 1998,
the Rental shall be Twelve-Thousand, Five-Hundred and 00/100
Dollars ($12,500.00) per month. For the period beginning March 1,
1998, and ending February 28, 1999, the Rental shall be Twelve-
Thousand, Nine-Hundred and 00/100 Dollars ($12,900.00) per month.
For the period beginning March 1, 1999, and ending February 28,
2000, the Rental shall be Thirteen-Thousand, Two-Hundred and
00/100 Dollars ($13,200.00) per month. For the period beginning
March 1, 2000, and ending February 28, 2001, the Rental shall be
Thirteen-Thousand, Six-Hundred and 00/100 Dollars ($13,600.00)
per month.
In the event that the Lessee shall exercise its option to extend the term
of this Lease under paragraph 4, the Rental for the period beginning March 1,
2001, and ending February 28, 2002, shall be Fourteen-Thousand and 00/100
Dollars ($14,000.00) per month. For the period beginning March 1, 2002, and
ending February 28, 2003, the Rental shall be Fourteen-Thousand, Five-Hundred,
Ninety and 00/100 Dollars ($14,500.00) per month. For the period beginning March
1, 2003, and ending February 28, 2004, the Rental shall be Fourteen-Thousand,
Nine-Hundred and 00/100 Dollars ($14,900.00) per month. For the period beginning
March 1, 2004, and ending February 28, 2005, the Rental shall be Fifteen-
Thousand, Three-Hundred, Seventy-Three and 00/100 Dollars per month. For the
period beginning March 1, 2005, and ending February 28, 2006, the Rental shall
be Fifteen-Thousand, Four-Hundred and 00/100 Dollars ($15,400.00) per month.
Lessee shall also pay any additional rental as required hereunder.
6. TRIPLE NET LEASE. The parties hereto recognize and agree that this
Lease is intended as a "triple net Lease", and that the Lessor shall
in all events receive as rental from the Lessee, an amount equal to
the Rental hereunder, and an amount equal to all costs, charges,
expenses, fees and other financial responsibilities of Lessor,
incurred in connection with its obligations hereunder, including
without limitation, all taxes, assessments, utilities, insurance,
costs, maintenance and repair costs, on other associated items. To
this end, the Lessee hereby agrees to pay to the Lessor as additional
rent any sums required to effectuate the purpose and intent of this
Lease as a triple net Lease.
7. CONSTRUCTION. The Lessee agrees to accept the Premises in the
condition existing on the date of the commencement of the Lease, but
the Lessee shall have the benefit of all warranties accruing to the
Lessor by reason of construction of the Premises and the installation
of any machinery and equipment.
8. ALTERATIONS AND ADDITIONS. The Lessee shall make no substantial
alterations or additions to the Premises without the prior written
consent of the Lessor in each instance being first had and obtained.
Any such alterations or additions so approved shall be at the sole
cost and expense of the Lessee, and shall neither reduce the size and
strength of the building nor adversely affect the market value of the
Premises.
9. MECHANIC'S LIENS. It is agreed that neither party shall permit the
filing of a mechanic's, materialmen's or other similar lien against
the Premises or any part thereof for materials furnished or labor
provided for any improvements erected on the Premises or repairs made
to the Premises during the term of this Lease or any extension hereof.
In the event any such lien is filed and the same is not removed by the
contracting party within twenty (20) days thereafter, the other party
may satisfy the same and the Lessor may add to or the Lessee may
subtract from the rental payable thereafter the amounts so paid;
provided, however, no such satisfactions shall be made by such non-
contracting party so long as the contracting party is contesting such
a lien upon reasonable grounds and such contest stays the foreclosure
thereof.
10. INSURANCE. The Lessee shall provide and pay for each and every
policy of casualty and liability insurance required by the Lessor, or,
at the option of the
Lessor, reimburse the Lessor the premiums for any one or more of the
same. Such policies and provisions thereof shall in all respects
comply with the requirements set forth by the Lessor. Current
certificates evidencing the aforesaid policies shall be provided to
the Lessor upon its request. The policies shall be obtained through
Lockton Insurance Company or written by such insurance companies
authorized to do business in the State of Kansas having a Best rating
of not less than BX. Lessee shall be responsible for obtaining its own
general public liability insurance, personal property insurance and
any other insurance it deems necessary.
11. WAIVER OF LIABILITY. It is agreed that each of the parties hereto
does hereby waive and release any and all claims, demands and causes
of action which such party might otherwise have against the other for
damages to or loss of any part of the Premises, or to any of the
contents and leasehold improvements therein belonging to the Lessee,
and arising from perils ordinarily insured against under standard fire
and extended coverage insurance policies issued in the State of
Kansas, whether such damage or loss is occasioned by the negligence of
the parties, their agents, servants and employees, or otherwise; and
that all policies of insurance written to insure the Premises and its
contents shall contain a proper provision, by endorsement or
otherwise, whereby the insurance carriers issuing the same shall
acknowledge that the insured has so waived and released its right of
recovery against the other party hereto and shall waive the right of
subrogation which such carrier might otherwise have had against such
other party, all without impairment or invalidation of such insurance.
12. INDEMNITY. The Lessee agrees, in addition to maintaining the
public liability insurance policy referred to in paragraph 12 hereof,
to protect and save the Lessor whole and harmless from any and all
claims of any third parties for injuries to person or damage to
property arising out of the occupancy or operation of the Premises by
the Lessee, except such claims as arise out of negligent, intentional
or willful acts of the Lessor.
13. UTILITIES. The Lessee shall contract for in its own name and pay
for all utility services, including deposits, used in connection with
the Premises and, at its sole cost and expense, procure any and all
permits, licenses and authorizations necessary in connection
therewith.
14. ASSIGNMENT AND LEASING. The Lessee shall in no event, during the
term of this Lease or any extension hereof, further sublet all or any
portion of the Premises or assign this Lease, either in whole or in
part, whether by operation of law or otherwise, nor permit any other
person or persons to otherwise occupy the Premises or any portion
thereof, without the prior consent in writing of the Lessor. It is
anticipated that the Lessee may sublet a portion of the Premises for
warehouse space to unrelated third parties, and that Lessor will not
unreasonably withhold its consent to such a Lease.
15. CONDEMNATION. If all of the Premises shall be condemned by any
authority having the right of condemnation, or if such a portion of
the Premises is so condemned as will prevent practical use of the
Premises for Lessee's purposes, this Lease, and all obligations
hereunder, shall terminate on the date title vests
pursuant to such proceedings. In the event the proper judicial
authority does not divide the award to compensate the separate loss of
each party, the Lessee shall have no claim against Lessor for the
value of any unexpired term of this Lease. If any condemnation
proceeding shall be instituted in which it is sought to take or damage
any part of the Premises or if the grade of any street or alley
adjacent is changed by any competent authority and such change of
grade makes it necessary or desirable to remodel the improvements to
conform to the changed grade, either party shall have the right to
cancel this Lease after having given written notice of cancellation to
the other party not less than ninety (90) days prior to the date of
cancellation designated in the notice. In the event of any such
termination, Rental at the then current rate shall be apportioned as
of the date of the termination. No money or other consideration shall
be payable to either party for the right of cancellation and the
Lessee shall have no right to share in the condemnation award or in
any judgment for damage caused by the taking or the change of grade.
Nothing herein shall preclude an award being made to Lessee for loss
of business or depreciation to and cost of removal of equipment and
fixtures.
16. MAINTENANCE AND REPAIR. The Lessee shall, at its sole cost and
expense, maintain and make all repairs to the Premises necessary to
preserve it in good order and condition and/or required of the Lessor
in the Lease.
17. DAMAGE OR DESTRUCTION. In the event the Premises are damaged or
destroyed to the extent it is no longer usable by the Lessee, then
either party may terminate the Lease. In the event the Premises are
damaged by any insurable event, but not to such extent as to be no
longer usable, Lessor shall restore the Premises to its former
condition and rent shall xxxxx proportionately until such restoration.
18. LESSEE'S PROPERTY. The Lessor shall not in any manner be
responsible or liable for any damage to the property, fixtures or
chattels of the Lessee on the Premises, except, in the case of damage
arising from a willful act on the part of the Lessor, its employees or
agents.
19. REMOVALS. All repairs, alternations, additions, improvements,
installations and any other fixtures by whomsoever installed or
erected on the Premises (except such business trade fixtures and
equipment belonging to Lessee as can be removed without damage to or
leaving incomplete the Premises) shall belong to Lessor and remain on
and be surrendered with the Premises as a part thereof at the
expiration of this Lease or any extension thereof.
20. HOLDOVER. If the Lessee remains in possession of the Premises
after the expiration of this Lease or, where applicable, any extension
hereof, without the execution of a new Lease, it shall be deemed to be
occupying the Premises as tenant from month-to-month, subject to all
the conditions, provisions and obligations of this Lease insofar as
the same are applicable to a month-to-month tenancy.
21. SUBORDINATION. The Lessee agrees that this Lease shall be
subordinate to any mortgage that may hereafter be placed upon the
Premises and to all renewals and
extensions thereof, and agrees to execute any and all documents
required to evidence or effectuate such subordination.
22. WASTE. Lessee shall not commit waste or permit waste to be
committed in or upon the Premises, and at the termination of this
Lease shall surrender and deliver the Premises to the Lessor in as
good condition as the same was at the commencement of the term hereof,
excepting (1) acts of God and unavoidable casualties; (2) intentional
acts for which the Lessor is responsible hereunder; and (3) ordinary
wear and tear.
23. PUBLIC REQUIREMENTS. Lessee shall comply with all laws, orders,
ordinances and other public requirements now or hereafter affecting
the Premises or the use thereof, and the cost of such compliance shall
be borne by the Lessee.
24. DEFAULT. This Lease is made on condition that if:
a. The Lessee defaults in the due and punctual payment of Rental
and any additional rentals provided for herein; or
b. The Lessee defaults in the keeping or performance of any other
covenant or obligation herein contained on the Lessee's part to
be kept or performed, and the Lessee fails to remedy the same
within twenty (20) days after the Lessor has given the Lessee
written notice specifying such default (or such additional
period, if any, as may be reasonably required to cure such
default if it is of such nature that it cannot be cured within
said twenty (20) day period because of governmental restriction
or other cause beyond the control of the Lessee); or
c. The Lessee shall file a voluntary petition under the
Bankruptcy Code, as amended; or an involuntary petition
under the Bankruptcy Code, as amended, is filed against the
Lessee, and after full hearing, Lessee is adjudged to be
bankrupt, insolvent or unable to pay its debts as they
mature; or the Lessee makes an assignment for the benefit of
creditors or a trustee or receiver, after full hearing, is
appointed or retained to take charge of and manage any
substantial part of the assets of the Lessee; or any
execution or attachment shall issue against the Lessee
whereupon the Premises, or any part thereof, or any interest
therein of the Lessee under this Lease shall be taken or
attempted to be taken and the same is not released prior to
judicial sale thereunder (each of the events described in
this subparagraph being deemed default under the provisions
of this Lease);
then the Lessor shall have the option to do any one or more of the
following: Upon ten (10) days prior written notice, unless default
shall be for failure to pay rent for which no demand or notice shall
be necessary, in addition to or not in limitation of any other remedy
permitted by law, to enter upon the Premises or any part thereof,
either with or without process of law, and to expel, remove and put
out the Lessee or any other persons who might be thereon, together
with all personal property found therein; and, the Lessor may
terminate this Lease or it may from time to
time, without terminating this Lease, rent the Premises or any part
thereof for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as the Lessor in its sole discretion
may deem advisable, with the right to repair, renovate, remodel,
redecorate, alter and change the Premises. At the option of the
Lessor, rents received by the Lessor from such reletting shall be
applied first to the payment of any indebtedness from the Lessee to
the Lessor other than rent due hereunder; second, to payment of any
costs and expenses of such reletting, including, but not limited to,
attorney's fees, advertising fees and brokerage fees, and to the
payment of any repairs, renovation, remodeling, re-decorations,
alterations and changes in the Premises; third, to the payment of rent
due and payable hereunder and interest therein, and, if after applying
said rentals there is any deficiency in the rent and interest to be
paid by the Lessee under this Lease, the Lessee shall pay any such
deficiency to the Lessor and such deficiency shall be calculated and
collected by Lessor monthly. No such re-entry or taking possession of
the Premises shall be construed as an election on the Lessor's part to
terminate this Lease unless a written notice of such intention be
given to the Lessee. Notwithstanding any such reletting without
termination, the Lessor may at any time thereafter elect to terminate
this Lease for such previous breach and default. Should the Lessor at
any time terminate this Lease by reason of any default, in addition to
any other remedy it may have, it may recover from the Lessee the worth
at the time of such termination of the excess of the amount of rent
reserved in this Lease for the balance of the term hereof over the
then reasonable rental value of the Premises for the same period. The
Lessor shall have the right and remedy to seek redress in the courts
at any time to correct or remedy any default of the Lessee by
injunction or otherwise, without such resulting or being deemed a
termination of this Lease, and the Lessor, whether this Lease has been
or is terminated or not, shall have the absolute right by court action
or otherwise to collect any and all amounts of unpaid rent or any
other sums due from the Lessee to the Lessor under this Lease which
were or are unpaid at the date of termination. In case it should be
necessary for the Lessor to bring any action under this Lease, to
consult or place this Lease or any amount payable by Lessee hereunder
with an attorney concerning or for the enforcement of any of the
Lessor's rights hereunder, then the Lessee agrees in each and any such
case to pay to the Lessor, the Lessor's reasonable attorney's fees.
25. SURVIVAL OF OBLIGATIONS. The Lessee covenants and agrees with the
Lessor that its obligations under this Lease shall survive the
cancellation and termination of this Lease for any cause, and that the
Lessee shall continue to pay the Rental and the additional rentals
provided for herein and perform all other obligations set forth in
this Lease, all at the time or times specified herein.
26. PERFORMANCE OF LESSEE'S OBLIGATIONS. If the Lessee shall fail to
keep or perform any of its obligations as provided in this Lease in
respect of (a) maintenance of insurance, (b) prompt payment of taxes
and assessments, (c) repairs and maintenance of the Premises, (d)
compliance with legal or insurance requirements, or (e) keeping the
Premises lien free, or in the making of any other payment or
performance of any other obligation, then the Lessor may (but it shall
not be obligated so to do) upon the continuance of such failure on the
Lessee's part
for twenty (20) days after notice of such failure is given the Lessee
by the Lessor and without waiving or releasing the Lessee from any
obligation hereunder, as an additional but not exclusive remedy, make
any such payment or perform any such obligation, and all sums so paid
by the Lessor and all necessary and incidental costs and expenses
incurred by the Lessor in performing such obligation shall be deemed
additional rent and shall be paid to the party incurring such costs
and expenses on demand, and if not so paid by the Lessee, the Lessor
shall have the same rights and remedies provided for in the case of
default by the Lessee in the payment of Rental.
27. RIGHTS OF ENTRY. At all reasonable times during the existence of
this Lease, Lessor shall have the right to enter the Premises for the
purpose of inspecting the same, or performing such work in or about
the Premises made necessary by the default of Lessee, or for
exhibiting the Premises to prospective purchasers, lessees or
mortgagees.
28. RIGHTS CUMULATIVE. The rights and remedies reserved by the Lessor
and the Lessee hereunder and those provided by law shall be construed
as cumulative and continuing rights. No one of them shall be exhausted
by the exercise thereof on one or more occasions. The Lessor and the
Lessee shall each be entitled to specific performance and injunctive
or other equitable relief for any breach or threatened breach of any
of the provisions of this Lease, notwithstanding the availability of
an adequate remedy at law, and each party hereby waives the right to
raise such defense in any proceeding in equity.
29. QUIET ENJOYMENT. The Lessor agrees that so long as the Lessee
fully complies with all of the terms, covenants and conditions herein
contained on the Lessee's part to be kept and performed, the Lessee
shall and may peaceably and quietly have, hold and enjoy the Premises
for the aforesaid term, it being expressly understood and agreed that
the aforesaid covenant of quiet enjoyment shall be binding upon the
Lessor, its successors or assigns.
30. RIGHT OF FIRST REFUSAL. Subject to any restrictions, conditions or
limitations under the Lease, in the event Lessor shall receive from an
unrelated third party, an acceptable bona fide offer to purchase the
Lessor's interest in the Premises, it shall immediately notify the
Lessee in writing of such offer, stating the terms and conditions of
the offer. The Lessee shall have thirty (30) days after receipt of
said written notice to elect to meet such offer by giving the Lessor
written notice of its election, and settlement shall be held within
thirty (30) days thereafter.
31. OPTION TO PURCHASE. Subject to any restrictions, conditions or
limitations under the Lease, at any time, the Lessee, upon giving
thirty (30) days written notice to the Lessor, shall have the right to
purchase the Lessor's interest in the Premises from the Lessor. If the
Lessor and Lessee are able to agree upon an appraiser, said appraiser
shall determine the purchase price of the Premises. In the event the
Lessor and Lessee are unable to agree upon an appraiser within fifteen
(15) days of the receipt of the aforementioned written notice, then
the Lessor and Lessee will each select an appraiser no later than
twenty (20) days of receipt of the written notice. Upon the selection
of an appraiser or appraisers, as the case may be, the
purchase price will be determined within thirty (30) days. If there
are two appraisers, the purchase price shall be determined by taking
the average of their respective appraisals. The purchase price shall
be paid in cash or on such other terms and conditions as may be agreed
to by the Lessor within thirty (30) days of the determination of the
purchase price.
32. NOTICES. All notices required or desired to be given hereunder
shall be in writing and all such notices and other written documents
required or desired to be given hereunder shall be deemed duly served
and delivered for all purposes (a) upon the Lessor, if a copy thereof
be mailed by certified or registered mail, postage prepaid, addressed
to the Lessor at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx 00000, or at
such other place as the Lessor from time to time may designate in
writing to the party giving such notice, and (b) upon the Lessee, if a
copy thereof be mailed by certified or registered mail, postage
prepaid, addressed to the Lessee at the Premises, or at such other
place as the Lessee may from time to time designate in writing to the
party giving such notice. All notices given by certified or registered
mail as aforesaid shall be deemed duly given as of the date they are
so mailed.
33. WAIVER OF BREACH. No waiver of any breach of any covenant or
agreement herein contained shall operate as a waiver of any subsequent
breach of the same covenant or agreement or as a waiver of any breach
of any other covenant or agreement, and in case of a breach by either
party of any covenant, agreement or undertaking, the non-defaulting
party may nevertheless accept from the other any payment or payments
or performance hereunder without in any way waiving its right to
exercise any of its rights and remedies provided for herein or
otherwise with respect to any such default or defaults which were in
existence at the time such payment or payments or performance were
accepted by it.
34. RELATIONSHIP OF PARTIES. Nothing contained herein shall be deemed
or construed by the parties hereto, or by any third party, as creating
the relation of principal and agent or of partnership or of joint
venture between the Lessor and the Lessee. It is understood and agreed
that neither the method of computation of rent, nor any other
provision contained herein, nor any acts of the parties hereto,
creates a relationship other than the relationship of landlord and
tenant.
35. SECTION HEADINGS. The section headings shall not be treated as a
part of this Lease or as affecting the true meaning of the provisions
hereof.
36. INVALIDITY OF PORTIONS OF THE LEASE. If for any reason any
provision hereof shall be determined to be invalid or unenforceable,
the validity and effect of the other provisions hereof shall not be
affected thereby.
37. CONSTRUCTION AND ENFORCEMENT. This Lease shall be construed and
enforced in accordance with the laws of Kansas. Wherever in this Lease
it is provided that either party shall or will make any payment or
perform or refrain from performing any act or obligation, each such
provision shall, even though not so expressed, be construed as a
express covenant to make such payment or to perform, or not to
perform, as the case may be, such act or obligation.
38. AMENDMENTS. This Lease may not be amended except by written
agreement executed by the Lessor and the Lessee subsequent to the date
hereof.
39. ENTIRE AGREEMENT. This Lease contains the entire agreement between
the parties hereto, there being no oral or collateral understandings
other than the terms and provisions hereof.
40. COVENANTS RUN WITH THE PREMISES. The terms, covenants, agreements
and conditions herein set forth shall run with the Premises and be
fully binding upon and inure to the benefit of the successors and
assigns of the parties hereto, except that no assignment or subletting
by the Lessee without the written consent of the Lessor shall vest any
right in the assignee or sublessee of the Lessee.
IN WITNESS WHEREOF, the parties hereto have hereunto subscribed their names as
of the day and year first above written.
T & J INVESTMENT CO.
By
------------------------------
Xxx X. Xxxxxxx
General Partner
By
------------------------------
Xxxxx X. Xxxxx
General Partner
"LESSOR"
ELECTRONIC PROCESSING, INC.
[Seal]
ATTEST:
By
------------------------- --------------------------------
Assistant Secretary Xxx X. Xxxxxxx
CEO
ELECTRONIC PROCESSING, INC. "Lessee"
EXHIBIT A
(a) All of Lots 1 thru 17, inclusive and all of Lots 40, 41, 42 and 43, all
in Block 28, Armourdale, also including the North 25 feet of the East 156
feet of Block 4, Armourdale Community Redevelopment Area, all now in and a
part of Kansas City, Wyandotte County, Kansas.
Containing approximately 73,321 square feet.
Subject to: (1) easements, restrictions and reservations now of
record, the rights of the public in and to any part of the premises lying
or being in public roads, alleys or highways, and (3) taxes and
assessments, general and special, not now due or payable; and
(b) The buildings and all improvements constructed or located thereon.
