EXHIBIT 10.16
BUILDING LEASE
This is a legally binding contract, if not understood, consult an attorney.
THIS LEASE IS MADE AND ENTERED INTO BETWEEN The City of Fort Xxxxx, Kansas
("Landlord") and Intek, Inc. ("Tenant") on the 8th day of March, 1999 which is
the Effective Date of this Agreement.
WITNESSETH:
In consideration of the obligation of Tenant to pay rent and in consideration of
the other terms, covenants and conditions hereof, Landlord hereby demises and
leases to Intek, Inc. the Premises to have and to hold for the lease term
specified herein, all upon the terms and conditions set forth in this Lease.
BASIC PROVISIONS
1. The following basic provisions shall be construed in conjunction with, and
limited by, reference thereto in other provisions of this Lease:
a. "Landlord" - The City of Fort Xxxxx, Kansas
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Address of Landlord: P. X. Xxx 000, Xxxx Xxxxx, Xxxxxx 00000
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b. "Tenant" - Intek, Inc.
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c. "Premises": A building located on Xxxx 0 & 0, Xxxx Xxxxx Xxxxxxxxxx Xxxx.
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d. "Lease Term": A period of 10 years commencing on June 15, 1999, (the
"Commencement Date") and ending on June 14, 2009, (the "Expiration Date"),
unless sooner terminated in accordance with the provisions of this agreement.
e. "Base Rent": $2,625,000, payable in monthly installments in advance,
during the Lease Term according to the following schedule:
Months 1 to 120: $21,875
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Rent shall be paid to the Landlord at Fort Xxxxx City Xxxx, P. O. Box 151, 3rd
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and National, Xxxx Xxxxx, Xxxxxx 00000, or at such other place as Landlord
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shall designate.
f. "Additional Rent" shall be Tenant's Percentage of the increase in operating
and maintenance expenses as defined in Section 11.
g. "Pre-Paid Rental": $21,875 representing payment of the first monthly
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installment of rent.
h. "Security Deposit": $10,000
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PAYMENT OF RENT
2. Tenant agrees to pay Base Rent in monthly installments in advance on the
first day of each and every month during the term, with proration for any
partial month's occupancy, without demand, setoff, or deduction except Tenant
shall pay the first monthly installment along with the security deposit no later
than the first date of occupancy. Any rent payment not received by Landlord
within ten (10) days after its due date shall be subject to a delinquency charge
of five percent (5%) of the amount due each full or partial calendar month the
rent remains unpaid. Failure by Tenant to pay the late charge within thirty
(30) days after receipt of notice from Landlord that it is due shall, in
addition to any other default, constitute a default of this Lease by Tenant.
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POSSESSION
3. Landlord shall use due diligence to deliver possession of the Premises to
Tenant as nearly as possible at the beginning of the term of this Lease. In the
event Landlord cannot deliver possession to Tenant at the Commencement Date, or
if Landlord's work is not completed by the Commencement Date, this Lease shall
not be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting from such failure, but, except as provided in Section 4, Tenant
shall not be liable for any rent except for the prepaid rental until such time
as Landlord can and does deliver possession. The Expiration Date shall be
extended for a period equal to the delay in delivery of possession, plus the
number of days necessary to end the term on the last day of a month. Landlord
and Tenant shall execute an amendment to this Lease setting forth revised
Commencement and Expiration Dates. In the event Landlord is unable to deliver
possession by July 1, 1999, the Lease shall be null and void and Tenant's pre-
paid rental and the Security Deposit shall be promptly returned to Tenant. If
permission is given to Tenant to enter into possession of the Premises prior to
the Commencement Date, Tenant agrees at date of occupancy to be responsible for
payment of Base Rent in advance at the rate of 1/30th of the Base Monthly Rent
for each day of occupancy prior to the Commencement Date.
QUIET ENJOYMENT
4. Landlord hereby covenants that Tenant, upon paying rent as provided, and
performing all covenants and agreements contained in this Lease to be performed
by Tenant, shall and may peacefully and quietly have, hold and enjoy the
Premises. Nothing in this section shall prevent Landlord from performing
alterations or repairs on other portions of the building, nor shall performance
of such alterations or repairs be construed as a breach of this covenant by
Landlord. Said alterations and/or repairs shall be in such a way and at such a
time as to not unreasonably disrupt Tenant's normal business.
ASSIGNMENT-SUBLETTING
5. Except as herein set forth, Tenant shall not sublet, assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease or any interest herein or
any portion hereof, or permit or suffer any other person (the employees, agents,
servants and invitees of Tenant excepted) to occupy or use the Premises, or any
portion thereof, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld. In lieu of granting its consent to a
subletting or assignment, Landlord may, at its sole option, terminate this Lease
by notice to Tenant given within five (5) business days from the receipt of
request for permission to sublet or assign. Such termination shall be effective
on the same date as the commencement date of the proposed subletting or
assignment. Tenant shall have the right to negate any such termination by
withdrawing its request within ten (10) days after receipt of Landlord's notice
of termination, in which event the Lease shall remain in full force and effect.
Permission is, however, granted Tenant to assign this Lease and also to sublet
to any subsidiary corporation of Tenant, or parent corporation of Tenant, upon
giving Landlord written notice. In the event of any assignment or subletting,
Tenant shall remain the principal obligor under all covenants of this Lease, and
by accepting any assignment or subletting, as assignee or subtenant shall
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become bound by and shall perform and shall become entitled to the benefit of
all of the terms, conditions and covenants by which the Tenant is bound. A
consent to any such assignment, subletting, occupation or use by any other
person shall not be deemed to be a consent to any subsequent assignment,
subletting, occupation or use by another person. Any such assignment or
subletting without such consent shall be void, and shall, at the option of the
Landlord, constitute a default under the Lease.
With prior approval by the Landlord of the proposed sub-tenant, Tenant may
sublet a portion of the premises, any subletting or assignment consented to by
Landlord shall be evidenced only in writing and in form acceptable to Landlord.
It is contemplated that the tenant may sublet a portion of the facility for
daycare services for its employees. In the event this is done the parties agree
to sign the appropriate documents and lease modifications to allow the same and
include all necessary insurance requirements for the protection of the parties.
USE
6. Tenant shall use and occupy the Premises for general office purposes
which will include a call center and for no other purpose without the Landlord's
prior written consent. Tenant agrees to maintain the Premises in a clean,
orderly, healthful condition and to comply with all laws, ordinances, rules and
regulations of all governmental agencies. Tenant will not use the Premises for
any unlawful, disreputable, or extra-hazardous purpose; or any public or private
nuisance; or disturb the quiet enjoyment of any other tenant; or permit any
operation which might emit offensive odors into other portions; or use any
apparatus which might make undue noise or set off vibrations; or permit anything
which would increase the fire insurance rate or other insurance rates on the
building or contents. Tenant will not permit the Premises to be used for any
purpose which, in Landlord's opinion, impairs the reputation or character of the
building. Tenant shall not permit the installation of any signs in or upon the
Premises which are visible from the exterior hereof without the written consent
of Landlord. Tenant shall not obstruct or use the sidewalks, entries, passages,
vestibules, halls, elevators, or stairways of the building for any purpose other
than ingress or egress to and from the Premises, or throw, or sweep, or put
anything out of the windows or doors, or in the passages or corridors of the
building.
REPAIRS AND IMPROVEMENTS
7. Tenant has improved the plans for the building and understands the nature
and extent of the construction to be accomplished by the Landlord. Tenant
acknowledges that there have been no representations, agreements or promises to
decorate, alter, repair or improve the premises either before or after the
execution of this Lease. Upon termination or expiration of this Lease Tenant
will surrender the Premises to Landlord, ordinary wear and tear excepted. Any
damage to the Premises or building, not covered by the proceeds from Landlord's
fire and extended coverage insurance, resulting from acts or neglect of Tenant,
his employees, agents, servants, invitees or guests, shall be repaired or
replaced at Tenant's sole expense. Landlord shall be responsible for outside
walls, roof, grounds and parking lot.
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ALTERATIONS
8. Tenant shall not alter or change the Premises without prior written consent
of Landlord, and, unless otherwise provided in writing, all work shall be done
by or under the direction of Landlord at Tenant's reasonable expense by a
contractor employed by Tenant. Any alteration shall be of a quality equal to or
exceeding the building standard. Landlord reserves the right to require any
contractor to provide lien waivers or payment or performance bonds and liability
insurance and such other instruments as may be necessary to protect Landlord
against any loss, as shall be determined by Landlord in its sole discretion. Any
alterations, physical additions or improvements, except movable office
furniture, shall at once become property of Landlord and shall be surrendered to
Landlord upon termination of this Lease. Landlord, at Landlord's option, may
require Tenant to restore the Premises to its original condition at the
termination of this Lease, normal wear and tear excepted. Notwithstanding
anything herein to the contrary, any increase in ad valorem taxes or insurance
premiums resulting from such improvements shall be the sole responsibility of
Tenant.
SERVICES
9. Landlord agrees to furnish to the building hot and cold water at points of
supply provided for general use, heated and refrigerated air conditioning in
season at reasonable temperatures, and in reasonable amounts, seven days a week
24 hours per day. Janitor services shall be provided by Tenant.
All utility service will be in the name of the Tenant and all costs
associated therewith will be paid by the Tenant.
Landlord shall not be liable for damage to Tenant for failure to perform
any of the covenants in this paragraph, nor shall temporary stoppages, temporary
failures, or interruptions of any of the services to be supplied by Landlord
under this paragraph be construed as an eviction of Tenant or an abatement of
rent or relieve Tenant from any covenant or agreement. Landlord agrees to
diligently restore any services obligated to be provided by Landlord hereunder
when temporary failures, stoppages or interruptions. In the event of Landlord's
failure to deliver any of the above causes Tenant to temporarily cease
operations, Tenant shall have no obligation to pay rent for any days operations
are interrupted until said condition is rectified. Tenant shall promptly notify
Landlord of the need of any repairs or maintenance for which the Landlord is
obligated in this Lease and Landlord shall have reasonable time after receipt of
such notice to complete such repairs.
ENTRY
10. Landlord, its officers, agents and representatives shall have the right to
enter into and upon the Premises, at reasonable times during office hours to
inspect same or clean or make repairs or alterations or additions as Landlord
may deem necessary, or for any purpose whatsoever relating to the safety,
protection or preservation of the building, and Landlord may and shall at all
time, have master keys or pass keys to the Premises. Tenant shall not change any
locks or install locks in the doors of the Premises, or install other devices or
systems which would restrict access to the Premises, without Landlord's prior
written consent. If Tenant shall not be present to open and permit entry into
the Premises at any time, Landlord may enter the same by master key or pass key
or may forcibly enter the same. Should such force be used in entering the
building, any damage
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resulting therefrom shall be repaired to Tenant's satisfaction so long as
Tenant's negligence did not lead to the need for forcible entry, provided that
during such entry Landlord shall take reasonable care of Tenant's property.
Landlord shall have the right at any time for the purposes of inspection,
maintenance, adjustment and balancing the controls of the HVAC systems, repair
environmental audits or abatement to erect, use, maintain, repair, replace or
relocate pipes, ducts, wiring conduits and similar devices in and through the
Premises and to enter upon the Premises for the purpose of the performance of
any such work whether same are used in the supply of services to the Tenant or
the other occupants of the building. Nothing contained above shall be deemed to
impose upon the Landlord, any obligation, responsibility or liability whatsoever
for the care, supervision or repair of the building or the Premises or any part
thereof, and Tenant shall be entitled to no abatement of rent or reduction of
rent by reason thereof. Landlord shall further have the right to enter the
Premises at reasonable hours to exhibit same to prospective purchasers, lenders
or tenants and to inspect the Premises to see that Tenant is complying with all
of its obligations hereunder, or to make repairs or modifications to any
adjoining space or to the building.
ADDITIONAL RENT
11. During the term of this Lease and any extension or renewal thereof, Tenant
shall pay, as Additional Rent, any increase in real estate property taxes in the
event they exceed the $56,000 budget figure which is used for the taxes once the
project is completed.
Such adjustment, if any, shall be determined by Landlord as soon as
reasonably possible after the end of each calendar year and the amount of such
adjustment shall be due and payable by Tenant within thirty (30) days following
receipt of the notice of the amount. The adjustment for the calendar year
during which occupancy commenced or could have commenced shall be prorated based
on the number of calendar months of occupancy, or when occupancy could have
commenced as compared to the full calendar year. Any adjustment for the
calendar year in which the Lease expired, or was renewed or extended, shall be
prorated based on the number of calendar months of occupancy during the calendar
year and shall be paid by Tenant on or before the date of expiration, renewal or
extension.
OPERATING AND MAINTENANCE COSTS
12. The term "operating and maintenance costs" shall be defined as the sum of
any and all costs, expenses, and disbursements of every kind and character which
Landlord shall incur, pay or become obligated to pay in any calendar year in
connection with the ownership, operation, maintenance, repair, replacement, and
security of the building and land upon which the building is located, and or all
related improvements and appurtenances thereto. The expenses shall include but
not be limited to the following: real estate taxes and assessments; rent taxes,
gross receipts taxes, water and sewer charges; insurance premiums; license,
permit and inspection charges; utilities; service contracts; labor; building
management; air conditioning and heating; supplies; maintenance to all other
parts of the building; security; garbage service; maintenance and upkeep costs
of all parking areas, drives, lawns, trees, shrubbery and common areas; and the
cost of contesting by appropriate proceedings increases in real estate taxes and
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assessments and the applicability to, or the validity of, any statute,
ordinance, rule or regulation affecting the building or land which might
increase operating expenses.
The term "real estate taxes" shall mean all general and special,
levied or assessed on the land and the building improvements of which the
Premises is a part, and on any land and/or improvements now or hereafter owned
by Landlord that provide the building on the Premises with parking or other
services.
Operating and maintenance costs shall not include the cost of capital
improvement, except capital improvements for energy conservation, the cost of
which may, in Landlord's sole reasonable judgment, be recovered from savings in
utility charges; expenses for repairs, replacements, and general maintenance
paid by proceeds of insurance or by Tenant or other third parties; alterations
attributable solely to tenants of the building other than Tenant; principal and
interest payments made by Landlord on mortgages on the building; depreciation;
and leasing commissions and other non-operating debts of Landlord.
Tenant, at its expense, shall have the right once per calendar year
following prior written notice to Landlord, to audit Landlord's books and
records relating to operating and maintenance costs during the year preceding
such audit. In the event such an audit demonstrates Additional Rent collected
for such preceding year to be higher or lower than the amount of Additional Rent
actually due pursuant to this paragraph, then within ten (10) days of such
determination Landlord shall refund any over-payment, or Tenant shall pay any
under-payment.
CONDEMNATION
13. Should the Premises or the building be taken or condemned in whole or in
part under the power of eminent domain, or sold or disposed of under threat of
condemnation, then Landlord shall receive the entire award for such taking or
shall receive the entire payment made in lieu of condemnation, and Tenant shall
have no claim thereto; provided, however, Landlord shall not be entitled to any
award made directly to Tenant for loss of Tenant's business, depreciation to and
cost of removal of stock and office furniture. In the event of total
condemnation or conveyance in lieu thereof, the Lease term shall terminate on
the date the condemning authority takes possession of the building, and in the
event of a partial taking or conveyance in lieu thereof the Landlord may, at its
option, terminate the Lease Term as of the date of the taking of possession or
the partial taking by the condemning authority.
CASUALTY
14. If the building or the Premises are made partially or substantially
untenantable by fire or other casualty, Landlord may elect either to (a)
terminate this Lease as of the date of such fire or other casualty by delivery
of notice of termination to Tenant within sixty (60) days after said date, or
(b) without termination of this Lease, proceed with due diligence to repair,
restore or rehabilitate the building or the Premises, other than leasehold
improvements installed by Tenant or paid for by Tenant. In the event such fire
or other casualty is due to an act of negligence by Tenant, its employees,
agents, servants, invitees or guests, such repair, restoration or rehabilitation
of the building or the Premises or both shall be paid for by Tenant to the
extent that Landlord's receipt of proceeds from its fire and extended coverage
insurance policies are insufficient to complete such repair,
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restoration or rehabilitation. If Landlord elects not to repair, and the
building or the Premises, or both, have been damaged by casualty due to the act
or neglect of Tenant, his employees, agents, servants, invitees or guests, the
Tenant shall pay to the Landlord upon demand the difference between the proceeds
received by Landlord from its fire and extended coverage insurance, if any, and
the fair market value of the building or the Premises, or both. If all or any
part of the Premises are rendered substantially untenantable, by fire or other
casualty not due to an act of negligence of Tenant, its employees, agents,
servants, invitees or guests, and this Lease is not terminated, rent shall xxxxx
for all or the part of the Premises which are untenantable on a per diem basis
from and after the date of the fire or other casualty, and until the Premises
are repaired and restored. Tenant's rent abatement, in the event of partial
untenantability of the Premises, shall be calculated based upon that portion of
the total rent which the amount of square foot area in the Premises that cannot
be occupied to the total square foot area of all the Premises.
LIABLITY
15. Landlord shall not be liable to Tenant for any loss or damage to any person
or property, including the person and property of Tenant, its employees, agents,
servants, invitees or guests, occasioned by theft, the acts of any other tenant
or the acts of any employee or agent of any other tenant, leaks, casualty,
rain, water, condensation, fire, acts of God, public enemy, injunction, riot,
strike, insurrection, picketing, mob action, bombing, explosion, war, court
order, laten defects of the building, requisition or order of government
authority, the construction, repair, maintenance or alteration of any part,
improvement of the building as a whole, or any other cause not due to Landlord's
willful act or gross negligence. Tenant shall indemnify Landlord and save it
harmless from all suits, actions, damages, liability and expense in connection
with loss of life, bodily or personal injury or property damage arising from, or
out of, any occurrence in, upon, at, or from the Premises or the occupancy or
use by Tenant of the Premises or any part thereof, or occasioned wholly or in
part by any action or omission of Tenant, its employees, agents, servants,
invitees or guests. If Landlord shall be made a party to any action commenced
against Tenant, the Tenant shall protect and hold Landlord harmless and shall
pay all costs, expenses and attorneys' fees incurred by Landlord.
Landlord shall, throughout the term of this Lease, maintain fire and
extended coverage insurance on the Premises in an amount equal to the full
insurable value thereof, subject to any allowances for coinsurance rating
provisions utilized by Landlord. Landlord shall also carry owner's public
liability and property damage insurance coverage on the Premises with limits not
less than $1,000,000 combined single limits. Subject to the provisions hereof,
all such insurance shall be the sole benefit of the Landlord and under its sole
control.
Tenant, at Tenant's cost and expense, shall maintain comprehensive general
liability insurance with contractual and cross liability coverage protecting and
indemnifying Landlord and Tenant against any and all claims of liability for
injury or damage to person or property or for the loss of life or of property
occurring upon, in, or about the Premises, and the public portions of the
building caused by, or resulting from, any act or omission (in whole or in part)
of Tenant, its employees, agents, servants, invitees or guests; such insurance
to afford minimum protection during the term of this
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lease, of not less than $1,000,000 for personal injury to any one person,
including death, and $1,000,000 for personal injury including death to more than
one person arising out of any one occurrence and not less than $500,000 with
respect to property damage. All such insurance shall be effected under valid and
enforceable policies; shall be issued by insurers of recognized responsibility
and authorized to do business in the state; shall name the Landlord as an
additional insured and shall contain a provision whereby the insurer agrees not
to cancel without thirty (30) days prior written notice to Landlord. On or
before the Commencement Date, Tenant shall furnish Landlord with certificates
evidencing the aforesaid insurance coverage, together with evidence of payment
of the premium, and renewal policies or certificates therefore shall be
furnished to Landlord at least thirty (30) days prior to the expiration date of
each policy for which a certificate was therefore furnished.
Notwithstanding the fact that any liability of Tenant to Landlord may be
covered by Tenant's insurance, Tenant's liability shall in no way be limited by
the amount of its insurance recovery.
Landlord hereby waives all claims for recovery from Tenant for any loss or
damage to Landlord or its property insured under valid and collectible insurance
policies to the extent of the proceeds collected under such insurance policies;
provided, however, that his waiver shall be effective only as allowed by the
applicable insurance policy of Landlord. All merchandise and property in or
about the Premises shall be at Tenant's risk and Tenant does hereby now and
forever release Landlord from any claims for damages thereto or any of same
however caused.
HOLDING OVER
16. If Tenant retains possession of the Premises after the expiration of the
Lease Term or any extension thereof by lapse of time or otherwise, Tenant shall
pay Landlord rent at a rate equal to 125% of the rate payable for the month
immediately preceding the expiration or termination of the Lease Term, including
any Additional Rent, computed on a per-month basis for each month or part
thereof without reduction for any such partial month that Tenant remains in
possession. In addition thereto, Tenant shall pay Landlord all damages,
consequential as well as direct, for all attorneys' fees and expenses incurred
by Landlord in enforcing its rights hereunder, sustained by reason of Tenant's
retention of possession. Such retention of possession shall constitute a month-
to-month lease. The provisions of this section shall not exclude Landlord's
right of re-entry or any other right hereunder. If Landlord has not elected to
renew this Lease, nothing herein contained shall preclude Landlord from
terminating such retention of possession by service of thirty (30) days notice
as provided by laws. The acceptance by Landlord of any payment of rent
subsequent to the commencement of such retention of possession by Tenant shall
not be deemed to constitute a waiver by Landlord of any of the provisions of
this section.
RIGHTS RESERVED AND RETAINED BY THE LANDLORD
17. Landlord retains and reserves unto itself all rights not expressly granted
to tenant in this Lease. In addition, Landlord or Landlord's Agent reserves the
following rights exercised without liability to Tenant for (I) damage or injury
to property, person or business; (ii) causing an actual or constructive
eviction, from the Premises; or (iii) disturbing Tenant's use or possession of
the Premises:
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(a) To name the building and project and to change the name or street
address of the building of project, and to compensate Tenant for the cost of
reprinting letterhead, business cards, Websites, etc. if the change of name or
street address is at the sole arbitration of the Landlord and not at the request
of an administrative office for the purpose of improving emergency vehicle
response time;
(b) To install and maintain all signs on the exterior and interior of
the building and project.
(c) To grant utility easements or other easements in, or re-plat,
subdivide or make other changes in the legal status of the land underlying the
building or the project as Landlord shall deem appropriate in its sole
discretion, provided such changes do not substantially interfere with Tenant's
use of the Premises for the permitted purpose.
SUBORDINATION AND ATTORNMENT
18. Tenant hereby subordinates all of Tenant's rights, title and interest under
this Lease to the lien of any existing and all future mortgages and deeds of
trust on the building. Tenant agrees to execute and deliver promptly such
agreement and other documents as Landlord may request to confirm and acknowledge
the foregoing subordination agreement, and Tenant hereby appoints Landlord as
Tenant's Agent to execute and deliver all such agreements and other documents
for and in behalf of Tenant. In the event the lien of any such mortgage or deed
of trust is foreclosed or title to the building is conveyed in lieu of
foreclosure, Tenant hereby agrees to attorn to the purchaser of the building at
any foreclosure sale and the grantee of any such deed and to confirm this lease
and recognize such purchaser or grantee as the Landlord hereunder. So long as
Tenant is not in default, this Lease shall remain in full force and effect for
the full term hereof.
ESTOPPEL CERTIFICATE
19. Tenant shall within ten (10) days after written request by Landlord,
deliver to Landlord in writing an executed statement certifying that his Lease
is unmodified and in full force and effect, or in the case of lease
modifications, that the Lease as modified is in full force and effect, the dates
to which rent or other charges have been paid, the amount, if any, of prepaid
rent and deposits paid by Tenant to Landlord, the nature and kind of
concessions, rental or otherwise, if any, which Tenant has received or is
entitled to receive, and that Landlord is not in default under any provision of
this Lease, or if in default, a detailed description hereof. Tenant hereby
appoints Landlord as Tenant's attorney-in-fact with full power and authority to
execute and deliver in the name of Tenant any such certificate in the event
Tenant fails to do so on request.
INTEREST
20. All unpaid amounts of Base Rent and Additional Rent due to Landlord under
this Lease shall be subject to a delinquency charge each month at the rate of
five percent (5%) per annum from the due date until paid. All other amounts due
to Landlord under this Lease shall be considered as additional rent, and if
unpaid when due shall be subject to a delinquency charge each month at the rate
of five percent (5%) per annum from the date due until paid.
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DEFAULT AND REMEDIES
21. In the event: (a) Tenant fails to comply with any term, provision,
condition, or covenant of this Lease including the payment of all monies due;
(b) Tenant deserts or vacates the Premises for 30 consecutive days or more
without notice to Landlord and without making the current rental payment; (c)
Any petition is filed by or against Tenant under any Section or Chapter of the
Federal Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any state thereof; (d) Tenant becomes insolvent or makes a
transfer in fraud of creditors; (e) Tenant makes an assignment for benefit of
creditors; or (f) a receiver is appointed for Tenant or any of the assets of
Tenant; then in any of such events, Tenant shall be in default and Landlord
shall have the option to do any one or more of the following: (1) Upon ten (10)
days prior written notice, excepting the payment of rent or additional rent for
which no demand or notice shall be necessary, in addition to, and 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 Tenant or any other persons who might be thereon, together with all
personal property found therein; or (2) Landlord may terminate this Lease, or it
may from time to time, without terminating this Lease, relet said Premises or
any part thereof for such term or terms and at such rent and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable, with
the right to repair, renovate, remodel, redecorate, alter and change said
Premises. At the option of Landlord, rents received by Landlord from such
reletting shall be applied first to the payment of any indebtedness from Tenant
to Landlord other than rent and additional rent due hereunder, second to the
payment of any cost and expenses of such reletting, including, but not limited
to, attorney's fees, advertising fees and real estate brokerage fees, and to the
payment of any repairs, renovations, remodeling, redecorations, alterations and
changes in the Premises; third to the payment of rent and additional rent due
and payable hereunder and interest thereon, and if after applying said monies
there is any deficiency in the rent and additional rent and interest to be paid
by Tenant under this Lease, Tenant shall pay any such deficiency to Landlord and
such deficiency shall be calculated and collected by Landlord monthly. No such
re-entry or taking possession of said Premises shall be construed as an election
on Landlord's part to terminate this Lease unless a written notice be given to
Tenant.
If Tenant vacates or abandons the Premises, any property that Tenant leaves
on the Premises shall be deemed to have been abandoned and may either be
retained by Landlord as the property of Landlord or may be disposed of at public
or private sale in accordance with applicable law as Landlord shall determine in
its sole discretion. The proceeds of any public or private sale of Tenant's
property, or the then current fair market value of any property retained by
Landlord, shall be applied by Landlord against (I) the expenses of Landlord for
removal, storage or sale of the property; (ii) the arrears of rent or future
rents payable under this Lease; and (iii) any other damages to which Landlord
may be entitled hereunder.
Notwithstanding, any such reletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous breach and
default. Should Landlord at any time terminate this Lease by reason of any
default, in addition to any other remedy it may have, it may recover from Tenant
the amount at the time of such termination of the excess of the amount of rent
and additional rent reserved in this Lease
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for the balance of the term hereof over the then reasonable rental value of the
Premises for the same period. Landlord shall have the right and remedy to seek
redress in the courts at any time to correct or remedy any default of Tenant by
injunction or otherwise, without such resulting or being deemed a termination of
this Lease, and Landlord, 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 unpaid additional rent or any other sums due from
Tenant to Landlord under this Lease which were or are unpaid at the date of
termination. In case it should be necessary for Landlord to bring any action
under this Lease, to consult or place said Lease or any amount payable by Tenant
thereunder with an attorney concerning or for the enforcement of any of
Landlord's rights hereunder, then Tenant agrees in each and any such case to
reimburse Landlord for its reasonable attorney's fees. All other remedies herein
provided shall be cumulative to all other rights or remedies herein given to
Landlord by law. A waiver by Landlord of any default by Tenant in the
performance of any of the covenants, terms or conditions hereof shall not be
considered or treated as a waiver of any subsequent or other default as to the
same or any other matter. If Tenant shall default in the performance of any
covenant, agreement, provision or condition herein contained, Landlord, without
thereby waiving such default, may perform the same for the account and at the
expense of Tenant, without notice in the case of emergency. Bills for any
expense incurred by Landlord in connection with any such performance by Landlord
for the account of Tenant, as well as bills for any property, materials, labor
or services provided, furnished or rendered, or caused to be provided, furnished
or rendered, by Landlord to Tenant may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option and shall be due and payable by Tenant upon
notice of the amount or amounts and the amount or amounts thereof shall be
deemed to be Additional Rent under this Lease. Tenant shall promptly give to
Landlord notice as herein provided of any defects in the Premises including the
failure of Landlord to do anything required to be done by law or by the terms of
this Lease or the doing or permitting to be done anything prohibited by law or
by the terms of this Lease. Unless Tenant has given said notice and Landlord has
failed to commence to cause the cure of said defect within ten (10) days after
receipt of said notice, Tenant shall have no right to terminate the said Lease
or to declare a forfeiture and in no event shall rent xxxxx except as in this
Lease specifically provided. Landlord shall not be obligated to notify Tenant of
the due date of rent nor demand payment thereof on its due date, the same being
expressly waived by Tenant. The acceptance of any sums of money from the Tenant
that is less than the actual amount owed is considered a partial payment and
does not relieve Tenant from the full amount that is owed Landlord.
SECURITY DEPOSIT
22. Tenant at the time of execution of this Lease has deposited with Landlord a
Security Deposit to be held by Landlord to guarantee the faithful performance by
Tenant of all of the terms and covenants to be kept and performed by Tenant.
Said deposit may be co-mingled with other funds and any interest earned shall be
the property of the Landlord. Unless and until Tenant is in default with respect
to any provision hereof, the Security Deposit shall be the property of Tenant.
In the event Tenant is in default and after any necessary notice thereof,
Landlord shall apply the whole or any part of such
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Security Deposit toward the payment of any such amount which Landlord may expect
or may be required to expend by reason of default or any damage, expenses or
liability caused by default (including, but not limited to, the payment of any
rent in default). Tenant shall pay to Landlord on demand the amount necessary in
order to restore the Security Deposit to its original amount. Failure of Tenant
to restore the Security Deposit within ten (10) days from demand by Landlord,
shall constitute an act of default under this Lease. In the event that Tenant
shall faithfully and fully comply with all the terms, provisions, covenants and
conditions of this Lease, the Security Deposit shall be promptly returned to
Tenant within thirty (30) days of the end of the term and upon the surrender of
the Premises. In the event of any transfer of the building, Landlord may pay
over the Security Deposit to the transferee to be held under the terms of this
Lease. Under no circumstances shall the Security Deposit be interpreted in any
way or manner as being applied to any rental payment due by Tenant hereunder.
SURVIVAL OF OBLIGATION
23. The obligation of Tenant with respect to the payment of rent accrued and
unpaid during the term of obligation of the Lease shall survive the expiration
or earlier termination of the Lease.
HEADINGS
24. The titles and headings in the Lease are used only to facilitate reference,
and in no way to define or limit the scope or intent of any of the provisions
of this Lease.
ENTIRE AGREEMENT-AMENDMENTS
25. This Lease constitutes the entire agreement between the parties with
respect to the Premises and this Lease covers, merges and includes all
agreements, oral or written, between the parties hereto whether made prior to or
contemporaneous with the execution of this Lease. This Lease cannot be modified
or changed by any verbal statement, promise or agreement and no modification,
change nor amendment shall be binding on the parties unless it shall have been
agreed to in writing. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person or persons may require.
SEVERABILITY
26. In the event any provisions of this Lease by officially found to be
contrary to law, or void as against public policy or otherwise, such provisions
shall be either modified to conform to the law or considered severable with the
remaining provisions hereof continuing in full force and effect.
SUCCESSORS AND ASSIGNS
27. It is agreed that all the covenants, agreements and conditions herein
contained shall extend to, and be binding upon, the respective successors,
heirs, executors, administrators, assigns, receivers or other personal
representatives of the parties to this Lease.
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NOTICES
28. Any and all notices required or permitted to be given hereunder shall be
served either personally or by United States Mail, postage prepaid (and if
permitted by law, by Registered, Certified, or Express Mail) at the following
Addresses:
To Landlord: At the address as set forth on Page 1, or at such other
address as Landlord shall designate by written notice.
To Tenant: At the Premises or at such other address as Tenant shall
designate by written notice to Landlord.
Each such notice shall be deemed given as of the date it is so deposited in
the United States Mail.
TIME OF THE ESSENCE
29. Time is of the essence of this Lease Agreement.
SUPPLEMENTAL PROVISIONS
30. Landlord and Tenant further agree as follows:
a. No payment by Tenant or receipt by Landlord of a lesser amount than the
rent provided for in this Lease shall be deemed to be other than on account of
the earliest due rent. Nor shall any endorsement or statement on any check or
letter accompanying any check or payment as rent be deemed in accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of the rent or pursue any other remedy
provided for in this Lease. In connection with the foregoing, Landlord shall
have the absolute right in its sole discretion to apply any payment received
from Tenant to any amount or other payment of Tenant then not current and due or
delinquent. The receipt and acceptance by Landlord of delinquent rent shall not
constitute a waiver of any other default, but, shall constitute only a waiver of
timely payment for the particular payment involved. Any waiver by Landlord of
any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of the Lease.
b. If any provision contained in an addendum to this Lease is inconsistent
with any other provision herein, the provision contained in the addendum shall
control, unless otherwise provided in the addendum.
c. Attorney's Fees. If any action or proceeding is brought by either party
against the other party to or arising out of this Lease, the finally prevailing
party shall be entitled to recover all costs and expenses, including reasonable
attorney's fee incurred on account of such action or proceeding.
d. Landlord may from time to time seek from one or more financial
institutions some part or all of the funds to finance the improvements on the
property of which the Premises are a part. Neither Landlord nor Tenant shall
unreasonably withhold its consent to changes or amendments to the Lease
requested by the financing institution on Landlord's interest, so long as these
changes do not alter the basic business terms of this Lease or otherwise
materially diminish any rights or any obligations of the party from whom consent
to such change or amendment is requested.
The parties agree to promptly sign all changes or amendments reasonably
requested to give effect to the provisions of this Lease.
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e. This Lease shall be construed and enforced in accordance with the laws
of the State of Kansas.
f. Notwithstanding anything contained in the Lease to the contrary, Tenant
shall have no claim or hereby waives the right to any claims against Landlord
for money damages by reason of any refusal, withholding or delaying by the
Landlord or any consent, approval or statement of satisfaction, and in such
event, Tenant's only remedies shall be an action for specific performance,
injunction or declamatory judgment to enforce any right to such consent, etc.
g. The Tenant is a corporation and each individual signing this Lease on
behalf of the Tenant represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of the corporation and this Lease is
binding on Tenant in accordance with its terms. Tenant shall, at Landlord's
request, deliver a certified copy of a Resolution of its Board of Directors
authorizing such execution.
h. Recording: Recording of this Lease may be done by either party by
---------
recording a Memorandum of Lease, however, the Memorandum shall not include
information pertaining to rental amounts paid.
IN WITNESS WHEREOF, Landlord and Tenant, acting herein by duly authorized
individuals, have caused this instrument to be executed in ______________
originals, on the 8/th/ day of March, 1999.
LANDLORD: City of Fort Xxxxx TENANT: Intek, Inc.
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/s/ Xxxxxxx X. [illegible] /s/ Xxxxxxx X'Xxxx
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DATE: 3-8-99 TIME: 11:25am DATE: 3-8-99 TIME: 4:00pm
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