LEASE
4/17/98
This Lease is entered into on this 17th day of April, 1998 between
CENTER TOWERS L. C., hereinafter called LANDLORD, and HIGH PLAINS
CORPORATION hereinafter called TENANT.
WITNESSETH:
In consideration of the mutual covenants and promises hereinafter
contained, the parties hereby mutually agree as follows:
1. LEASED PREMISES: TENANT will use as office space that portion of
the 8th floor of the X.X. Xxxxxx Building, which is so indicated on
Exhibit "A" attached hereto (herein the "Leased Premises") and made part
hereof, hereinafter referred to as the Building, Wichita, Sedgwick County,
Kansas. Tenant leases from Landlord approximately 0000 Xxxxxxxx Xxxxxx Feet
and will pay rent based thereon.
Rentable Square Feet means the square footage of the tenant's office
space reflected in Exhibit "A" plus tenant's pro rata share of the
common area of the total square footage of the second floor of the
building to which all tenants have common access thereto.
2. TERM: The rent paying term of this Lease shall be approximately
Five years, commencing June 1, 1998 and ending May 31, 2003.
3. RENT:
(A) Subject to escalation as provided in paragraph 3 (B) below,
TENANT agrees to pay as Base Rent, the sum of $8.11 multiplied by the
Rentable Square Feet as shown in paragraph 1 herein. The Annual Base
Rent will be $31,158.62 payable at a rate of $2,596.55 per month, with
the rent for the first month payable in advance and payments thereafter
to be made on the first day of each calendar month during the term.
The rent for any fractional calendar month shall be prorated.
(B) Change of Base Rent Due to Cost of Living. Base Rent as
provided herein shall be adjusted by adjusting the Base Rent in the
same proportion as the fluctuation in the Consumer Price Index. The
adjustment provided herein shall be in addition to any scheduled
increase in Base Rent and shall be cumulative from year to year. See
Annual Base Rent.
As used in this Article, the term "Consumer Price Index" shall mean
the Consumer Price Index for All Urban Consumers (1982 to 1984 = 100)
released by the United States Department of Labor, Bureau of Labor
Statistics, relating to Consumer Prices, all urban consumers, United
States city average. The statistical methods used for computing the
Consumer Price Index shall be such as are chosen by the United States
Department of Labor for that purpose irrespective of whether the
methods are changed from time to time. If the base year selected by
the United States Department of Labor shall be changed, then the
resultant Index shall be readjusted so as to reflect the base initially
established under this section. If the said Index shall no longer be
published or cannot be readjusted, then another Index generally
recognized as authoritative shall be substituted by Landlord.
For purposes of this paragraph, the base month will be the month
next preceding the first full month of the term of this Lease, and in
the event of any renewal, the month prior to the first month of such
renewal. Such proportion shall be computed annually for the first
month following the completion of each twelve (12) months of the Lease,
and the new rent derived from such computation shall be in effect for
the next (12) months. In no event, however, will an adjustment be made
which would reduce the Base Rent to an amount less than the immediately
preceding Lease Year. The necessary calculation for the adjustment
required herein will be made as quickly as possible, but in the event a
rent paying date occurs before the adjustment can be calculated, an
amount equal to the current unadjusted Base Rent will be paid by Tenant
to Landlord on the rent payment date, and as soon as the calculation of
the adjustment is made, an additional payment will be immediately paid
by Tenant to Landlord.
(C) In addition to the Base Rent specified in paragraph 3 (A), and
subject to the escalation specified in paragraph 3 (B) above, Tenant
shall pay as additional rent, its proportionate share of any increase
in the real property taxes as provided for in paragraph twenty-three
(23).
4. LATE FEE: In the event any installment of the rent is not paid
within fifteen days after it becomes due, a late fee of ten percent of
the monthly installment will be charged. In addition, TENANT shall be
responsible for any attorney's fees incurred by LANDLORD in connection
with the collection of late fees, which sums shall be deemed additional
rent. The payment of any late fee shall not cure or excuse any default
by TENANT under this Lease.
5. SECURITY FOR PAYMENT OF RENT AND OTHER LEASE OBLIGATIONS: TENANT
shall deposit with LANDLORD the sum of $0000.00 (Security Deposit)
which may be commingled by LANDLORD with its other funds and which
shall be received by LANDLORD, without liability for any interest, as
security for the payment of rent hereunder and the full and faithful
performance of all the terms , covenants and conditions of this Lease.
6. IMPROVEMENT OF THE LEASED PREMISES: TENANT agrees to accept the
Leased Premises in its present condition, subject to improvements,
alterations and decorations to be made by the LANDLORD as set forth in
Exhibit B to this Lease which is attached hereto and made a part
hereof. No alterations, additions or improvements to the Leased
Premises (including signs), except those as specifically set forth in
Exhibit B, shall be made without first having the written consent of
the LANDLORD. Any improvements, additions or alterations made to the
Leased Premises shall become a part of the realty and shall not
thereafter be removed from the premises by the TENANT, with the sole
exception that TENANT shall have the right to install trade fixtures
which may be removed by the TENANT upon payment to LANDLORD of the cost
for repairing any damage caused by the removal of said trade fixtures.
Any mechanics or materialmen's lien filed against the Leased Premises
for work claimed to have been done for, or for materials claimed to
have been furnished to TENANT, shall be discharged by TENANT within ten
days thereafter, at TENANT'S expense, by filing the bond required by
law or otherwise.
7. USE OF PROPERTY: TENANT shall occupy the Leased Premises only as a
business office and shall use it in a careful, safe and proper manner.
TENANT shall not use the Leased Premises for any unlawful purpose or
for any purpose deemed extra hazardous by the fire insurance company
that has coverage on the premises. LANDLORD shall have the right to
enter the Leased Premises at reasonable hours of the day to examine the
same, or to make such repairs and alterations as may be necessary.
8. UTILITIES AND MAINTENANCE: LANDLORD agrees to furnish, during
ordinary business hours, except Sundays and holidays, such heat, water,
electricity, air conditioning, elevator service and cleaning service as
in LANDLORD'S sole judgement is necessary for the comfortable use and
occupancy of said Leased Premises by TENANT; all at LANDLORD'S cost
and expense. TENANT agrees that the LANDLORD shall not be liable for
failure to supply any such heat, water, electricity, air conditioning,
elevator service and cleaning service resulting from causes beyond the
control of LANDLORD. Should any equipment or machinery fail to
function properly, LANDLORD shall use reasonable diligence to repair
same promptly, but TENANT shall have no claim for rebate of rent or
damages on account of any interruption in service occasioned thereby or
resulting therefrom. TENANT shall be responsible for all damage to the
Leased Premises caused by TENANT'S use, other than damage caused by
ordinary wear and tear and for all redecorating, remodeling and
alteration required by it during the term of this Lease.
9. AFTER HOURS H.V.A.C.: For the purpose hereof, the term "ordinary
hours" shall mean 7:00 a.m. until 7:00 p.m. Monday through Saturday.
Sundays and holidays shall not constitute ordinary business hours.
Ordinary business hours may be modified from time to time. The
furnishing of heating, ventilation and air conditioning during other
than normal business hours, holidays and Sundays may be available at a
rate to be established by LANDLORD, but at a rate that will be known
prior to said furnishing by LANDLORD.
10. POSSESSION: If LANDLORD is unable to give TENANT possession at
the beginning of the lease term, then rent shall xxxxx until occupancy
is available to TENANT, which abatement in rent shall be accepted by
TENANT as full settlement of all damages occasioned by such delay. If
the Leased Premises is not ready for occupancy within three months
after the commencement date specified in Section 2, TENANT may cancel
this Lease by giving written notice to LANDLORD. TENANT may have
access to the Leased Premises prior to the commencement date for the
purpose of installing office equipment, services and other necessary
items.
11. UNIFORM RULES AND REGULATIONS: LANDLORD shall have the right to
prescribe, and TENANT agrees to abide by, uniform rules and regulations
for the "Building" as LANDLORD may reasonably deem necessary, advisable
and appropriate.
12. CASUALTY DAMAGE: If the Leased Premises is partially damaged by
fire, the elements or other casualty, then LANDLORD shall promptly
repair all damage and restore the Leased Premises to its prior
condition. If TENANT is deprived of the use of any substantial portion
of the Leased Premises, either by reason of said damage or during
restoration, the rent shall be proportionately reduced according to the
extent to which TENANT is deprived of such use. If the Leased Premises
is damaged by fire, the elements or other casualty to the extent of 50%
or more of the replacement cost thereof, LANDLORD may terminate the
Lease as of the date of the damage by written notice to TENANT within
sixty days after said date of the damage.
13. LIABILITY INSURANCE:
(a) TENANT shall procure a comprehensive general liability insurance
policy, at TENANT'S cost, for the Leased Premises, covering bodily
injury of at least $100,000 to each person and $300,000 for each
accident, and property damage of at least $100,000.
(b) TENANT agrees to bring itself within the elective provisions of
the Xxxxxxx'x Compensation Law and to carry insurance covering its
liability under said law at TENANT'S expense.
(c) Any and all insurance held by TENANT shall be with insurance
companies acceptable to LANDLORD. TENANT shall furnish LANDLORD with
certificates of insurance evidencing said coverage, with each
certificate bearing acknowledgment by the insurance company agreeing to
give LANDLORD ten days notice before cancellation of such policy. Each
of such comprehensive general liability policies shall name Center
Towers L. C. as an insured thereunder.
14. INDEMNITY: LANDLORD shall not be liable for any injury , loss or
damage to persons or property resulting from fire, theft, explosion,
steam, gas, electricity, water, rain or snow or leaks from any part of
the Building or any cause of whatever nature unless caused by or due to
the negligence of LANDLORD or its employees. TENANT will indemnify
and hold harmless LANDLORD from all liability for damages, claims or
expenses which TENANT may be assessed on account of injuries or damage
to the person or property of any other tenant of the Building or to any
other person rightfully in the Building where the injuries or damages
are caused by misconduct or negligence of TENANT, its agents, employees
or guests.
15. CONDEMNATION: In the event that the whole or part of the Leased
Premises should be condemned or seized by any governmental authority,
or any transfer in lieu thereof, the rent specified in this Lease shall
be abated to the extent that the Leased Premises is no longer available
for use by the TENANT. This Lease shall not otherwise be affected by
such condemnation or seizures, and the TENANT agrees that it is to
receive no part of any damages or rentals which may be awarded as a
result of such condemnation or seizure.
16. LIEN ON TENANT'S PROPERTY: At all times, LANDLORD shall have a
first lien, for all rent and other sums of money due hereunder from
TENANT, upon all goods, wares, equipment, fixtures, furniture and other
property of TENANT situated on the Leased Premises. Said property
shall be evidenced by Schedule 1, affixed hereto, which constitutes an
inventory of said property. The LANDLORD'S lien herein shall attach to
all after-acquired property and TENANT shall inform LANDLORD when such
after-acquired property is situated on the Leased Premises. In
addition to the first lien, LANDLORD shall have, and cause to be
perfected, a security interest in all property identified in Schedule
1, and all after-acquired property. TENANT shall execute all documents
required under the terms of the Uniform Commercial Code.
17. TERMINATION: LANDLORD shall have the right to terminate this
Lease in the event of bankruptcy, insolvency or receivership of TENANT
or an assignment by TENANT for the benefit of the creditors of the
TENANT.
18. DEFAULT: The occurrence of any of the following shall constitute
a default under this Lease by the TENANT:
(a) Failure by TENANT to pay any money as rent or taxes due when the
same becomes payable in accordance with this Lease and the continuation
of such failure for a period of ten days after written notice thereof
from LANDLORD to TENANT.
(b) Default by TENANT in the due, prompt and complete performance or
observance of any other covenant , agreement or obligation of TENANT
contained in this Lease and the continuation of such default for a
period of thirty days after written notice thereof from LANDLORD to
TENANT specifying the nature of such default, except that if such
default cannot reasonably be cured within such thirty day period.
TENANT shall not be deemed to be in default if it shall within such
period commence such cure and thereafter diligently prosecute the same
to completion.
(c) TENANT'S abandonment of the Leased Premises.
19. TERMINATION OF LEASE AND REMOVAL OF TENANT: In the event of
TENANT'S breach of and default under this Lease as provided in Section
18 above, LANDLORD may, at LANDLORD'S option , and without limiting
LANDLORD in the exercise of any other right or remedy LANDLORD may have
on account of such breach and default, and without further demand or
notice:
(a) Re-enter the Leased Premises, with or without process of law, and
remove all persons therefrom, and without terminating this Lease at any
time and from time to time, relet the Leased Premises or any part or
parts thereof for the account of TENANT or otherwise; receive and
collect the rents therefore, applying the same first to the payment of
such expenses as LANDLORD may have paid, assumed or incurred in
recovering possession of the Leased Premises, including costs, expenses
and attorneys' fees, and for placing the same in good order and
condition, or repairing or altering the same for reletting and all
other expenses, commissions and charges paid, assumed or incurred by
LANDLORD in or about reletting the Leased Premises, and then to the
fulfillment of the agreements of TENANT hereunder. Any such reletting,
as provided herein, may be 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 LANDLORD, in its
sole discretion, may deem advisable. In any event, and whether or not
the Leased Premises or any part thereof is relet, TENANT shall pay to
LANDLORD all such sums required to be paid by TENANT up to the time of
re-entry by LANDLORD and, thereafter, TENANT shall, if required by
LANDLORD, pay to LANDLORD, until the end of the term of this Lease, the
equivalent of the amount of all rent and other charges required to be
paid by TENANT under the terms hereof, less the avails of such
reletting, if any, after payment of the expenses of LANDLORD as
aforesaid.
(b) Terminate this Lease and re-enter the Leased Premises, with or
without process of law, and remove all persons therefrom, and LANDLORD
shall thereupon be entitled to recover from TENANT all damages it may
incur by reason of such breach, including the cost of recovery of the
Leased Premises.
20. ACCELERATION OF RENT: In any action for rent, or in any case
where the TENANT has abandoned the Leased Premises and fails to pay
rent, the total sums due for the balance of the Lease term shall be due
and payable in their entirety as damages, specifically notwithstanding
any other duty imposed by law upon TENANT.
21. NO ACCEPTANCE OF SURRENDER: Notwithstanding anything to the
contrary set forth herein, LANDLORD'S reentry to perform acts of
maintenance or preservation of, or in connection with efforts to relet,
the Leased Premises or any portion thereof, or the appointment of a
receiver upon LANDLORD'S initiative to protect LANDLORD'S interest
under this Lease shall not terminate TENANT'S right to possession of
the Leased Premises or any portion thereof and, until LANDLORD does
elect to terminate this Lease, this Lease shall continue in full force
and LANDLORD may pursue all of its remedies hereunder including,
without limitation, the right to recover from TENANT as they become due
hereunder all rent, additional rent and other charges required to be
paid by TENANT under the terms hereof.
22. ATTORNEY'S FEES: In the event of any litigation between LANDLORD
and TENANT to enforce any of the provisions of this Lease or any right
of either party hereto, the unsuccessful party to such litigation
agrees to pay to the successful party all costs and expenses, including
reasonable attorney's fees, incurred therein by the successful party,
all of which shall be included in and as a part of the judgment
rendered in such litigation. If LANDLORD engages the services of an
attorney for the purpose of collecting any rent, or other sums due from
TENANT hereunder, having first given the TENANT five days' notice of
its intention of doing so, TENANT shall pay the reasonable fees of such
attorney regardless of the fact that no legal proceeding or action may
have been commenced.
23. REAL PROPERTY TAXES: LANDLORD agrees to pay all real property
taxes on the Building, with possible reimbursement by TENANT of a
portion thereof as hereafter provided. For the purpose of this
paragraph, the tax year 1998 is hereinafter referred to as the Base
Year. If the real property taxes for the Building for any tax year
exceed the real property taxes for the Base Year, then TENANT shall
reimburse LANDLORD for TENANT'S share of such excess, provided LANDLORD
requests such reimbursement not later than sixty days after the
delinquent date for such taxes. TENANT'S share shall be a fraction of
such excess, the numerator of which fraction shall be the total number
of rentable square feet of TENANT, and the denominator of which shall
be the total number of rentable square feet in the Building. TENANT
shall reimburse LANDLORD within thirty days after receipt of
satisfactory evidence of LANDLORD'S payment of such taxes and the
amount due from TENANT.
24. HOLDING OVER: If TENANT remains in possession of the Leased
Premises after the expiration of this Lease, such continued possession
shall create a month-to-month tenancy on the same terms specified
herein and said tenancy may be terminated at any time by either party
providing to the other party a thirty day written notice of
termination.
25. RIGHT TO SHOW PREMISES: LANDLORD may, at any time within sixty
days of the expiration of this Lease, enter the Leased Premises at all
reasonable hours for the purpose of offering and showing the premises
for lease.
26. ASSIGNMENT: TENANT may not assign this Lease or sub-lease the
Leased Premises or any part thereof without the written consent of
LANDLORD. Such consent shall not be unreasonably withheld.
27. RECAPTURE OF ASSIGNMENT OR LEASE PROFIT: If the rental reserved
in any lease or assignment of all or any part of the Leased Premises
exceeds the rental or prorated portion of the rental, as the case may
be, for such space reserved in the Lease, TENANT shall pay LANDLORD
each month, as additional rent, at the same time as the monthly
installments of rent become due hereunder, one-half of the excess of
the rental reserved in the lease or assignment over the rental reserved
in this Lease.
28. CONSTRUCTION OF LEASE: The terms and provisions of this Lease
shall be construed in accordance with laws of the State of Kansas.
29. ENTIRE AGREEMENT AND MODIFICATIONS: This Lease contains the
entire agreement between the parties hereto, and no agent,
representative, salesman or officer of the parties hereto has authority
to make, or has made, any statement, representation or agreement, oral
or written, which modifies, adds to, or changes the terms of this
Lease. No modifications of any of the terms and conditions of this
Lease shall be effective unless reduced to writing and executed by the
parties hereto.
30. FIRST RIGHT OF REFUSAL: TENANT shall have a continuous right of
first offer on all space which becomes, or is vacant on the 8th floor
of the X.X. Xxxxxx Building during the term of this Lease. Upon
presentation of a bona fide third party offer acceptable to LANDLORD
from a prospective tenant to lease space on the 8th floor, TENANT will
be notified in writing of such offer and shall have three (3) business
days after receipt of such notice within to exercise its right to
either accept or refuse to lease the applicable space upon the same
terms of the lease so offered, except that such lease shall be
coterminous with this Lease.
This Lease shall be binding on the heirs, executors, administrators and
successors of the parties hereto.
IN WITNESS HEREOF, the parties hereto have caused this Lease to be
executed the day and year first above written.
CENTER TOWERS L.C.
LANDLORD ATTEST: /s/Xxxxxx Xxxxxxxxxxx
By: /s/Xxxxx X. Xxxxxxxx
Executive Vice President
HIGH PLAINS CORPORATION
TENANT ATTEST: /s/Xxxxxxx X. Friend
By:
Xxxxxxxxxxx X. Xxxxxxxx
Vice President
EXHIBIT A
4/14/98
RE: Center Towers L.C. / High Plains Corporation Lease Xxxxx 000 Xxxxxx Xxxxx
X.X. Xxxxxx Xxxxxxxx, Xxxxxxx, XX 4/14/98
Xxxxx X. Xxxxxx Building
8th Floor Composite Drawing
EXHIBIT B
4/14/98
RE: Center Towers L.C. / High Plains Corporation Lease Suite 820 Eighth Floor
X.X. Xxxxxx Building, Wichita, KS 4/1/4/98
TENANT agrees to take possession of space as it is.
Lease Amendment 1
4/17/98
Ref: Xxxxxx Center, Inc. / High Plains Corporation Storage Lease, 3/28/94
Paragraph 1 LEASED PREMISES is changed to read "is designated Leased Premise
and identified as part of Suite 835 on the Eighth Floor of the X.X. Xxxxxx
Building, TENANT shall use approximately 180 square feet as shown on Exhibit A
dated 4/17/98, which"
Paragraph 3 RENT is changed to read "said Leased Premises, $97.50 per month"
CENTER TOWERS L.C.
LANDLORD ATTEST:/s/Xxxxxx Xxxxxxxxxxx
By: /s/Xxxxx X. Xxxxxxxx
Executive Vice President
HIGH PLAINS CORPORATION
TENANT ATTEST:/s/Xxxxxxx X. Friend
By: /s/Xxxxxxxxxxx X. Xxxxxxxx
Vice President
Lease Amendment 1
Exhibit A
4/17/98
Ref: Xxxxxx Center, Inc. / High Plains Corporation Storage Lease, 3/28/94
Storage Space
Xxxxx X. Xxxxxx Building
8th Floor Composite Drawing
Lease Amendment 1
7/15/98
Ref: Center Towers, Inc. / High Plains Corporation - Eighth Floor X.X. Xxxxxx
Building - 4/17/98
To reflect that High Plains Corporation has on deposit with Center Towers LC
a deposit of $1,904.38 from a preceding lease paragraph five (5) will be
amended as follows:
Paragraph 5 SECURITY FOR PAYMENT OF RENT AND OTHER LEASE OBLIGATIONS: TENANT
has on deposit with LANDLORD the sum of $1,904.38 (Security Deposit) which
may be commingled by LANDLORD with its other funds and which shall be received
by LANDLORD, without liability for any interest, as security for the payment
of rent hereunder and the full and faithful performance of all the terms,
covenants and conditions of this Lease.
CENTER TOWERS L.C. ATTEST
By: /s/Xxxxx Xxxxx /s/Xxxxx Xxxxxx
Vice President & General Manager
HIGH PLAINS CORPORATION ATTEST
By: /s/Xxxxxxxxxxx X. Xxxxxxxx /s/Xxxxxx X. Xxxx
Vice President
