Exhibit
10.9


 


THIS
AGREEMENT, entered into this 16th day of August,
2003, is made by and between Youngstown Properties, LLC, P.O. Box 128, Floyds
Knobs, Indiana 47119, hereinafter referred to as “Lessor”, and Heartland
Payment Systems, a Delaware corporation, having its offices located at 25115
Country Club Boulevard, North Olmsted, OH 44070, hereinafter referred to as
“Lessee”.


 


PREMISES,
TERMS OF LEASE AND RENT


 


WITNESSETH: that
in consideration of the rents and covenants specified herein, the Lessor agrees
to lease the following described premises:


 


	
  Address

  	
   

  	
  Square
  Footage

  	
   

  	
  Use

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1431 Youngstown
  Shopping Center,

  Jeffersonville, IN 47130

  	
   

  	
  3,825

  	
   

  	
  office

  



 


Hereinafter referred to
as the “Premises” for a term of five (5) years and seven (7) months beginning
the sixteenth day of August, 2003 and ending the 30th day of April,
2009, and in consideration thereof Lessee agrees to pay Lessor the sum of
$2,709.00 per month (hereinafter referred to as the “Base Rent”) plus $319.00
per month for Lessee’s pro-rata share of real estate taxes, common area
maintenance, and insurance paid by Lessor (hereinafter referred to as the
“Expense Payments”), the first payment being due on the sixteenth day of
August, 2003.


 


USE OF
PREMISES


 


The premises shall
be used as professional offices, warehousing, and other uses directly relating
to Lessee’s normal business and for no other purpose except with the written
consent of the Lessor.


 


Lessee shall, at
Lessee’s expense, comply promptly with all applicable statutes, ordinances, rules,
regulations, orders, and requirements in effect during the term or any part of
the term hereof regulating the use by Lessee of the premises. Lessee shall not
use or permit the use of the Premises in any manner that will tend to create
waste or a nuisance or, if there shall be more than one tenant of the building
containing the premises, which shall tend to disturb such other tenants.


 


Lessee hereby
accepts the Premises on their condition existing as of the date of the
execution hereof and accepts this lease subject thereto and to all matters
disclosed thereby and by any exhibits attached hereto. Lessee acknowledges that
neither Lessor nor Lessor’s agents have made any representation or warranty as
to the suitability of the Premises for the conduct of Lessee’s business.


 


ASSIGNMENT
AND SUBLETTING RIGHTS


 


Lessee may not
assign this lease or sublet any part of the premises without the written
consent of the Lessor. The Lessor shall not unreasonably withhold such consent.


 


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LESSEE’S
REPAIR AND MAINTENANCE RESPONSIBILITIES


 


Lessee, at
Lessee’s expense, shall keep in good order, condition, and repair the demised
premises and every part thereof, including but not limited to, all plumbing,
electrical, heating and cooling equipment, ventilation equipment, interiors
walls, ceilings, windows, doors, plate glass, and signs that are located within
or adjacent to the demised premises during the term of this lease.


 


If Lessee fails to
perform Lessee’s obligations for maintenance, repairs, and general upkeep,
Lessor may at Lessee’s expense put the same in good order, condition, and
repair, and the costs thereof together with interest thereon at the rate of 18%
per annum shall be due and payable as additional rent to Lessor together with
Lessee’s next rental installment. Lessor shall be obligated to give ten (10)
days notice in writing prior to engaging in the above-mentioned repairs.


 


Lessee shall not,
without the written consent of Lessor, make any alterations, improvements, or
additions to or about the premises. It is hereby acknowledged that as a
condition for such future consent all alterations, improvements, and additions
shall become the property of the Lessor.


 


INSURANCE
PROVISIONS


 


Lessee shall, at
Lessee’s expense, obtain and keep in force during the term of this lease a
policy of comprehensive public liability insurance insuring Lessor and Lessee
against any liability arising out of the ownership, use, or occupancy or
maintenance of the premises and all areas appurtenant thereof. Such insurance
shall be in an amount not less than one million dollars ($1,000,000.00) for
injury or death of one person in any one accident or occurrence and in an
amount of not less than one million dollars ($1,000,000.00) for injury to or
death of more than one person in any one accident or occurrence. Such insurance
shall further insure Lessor and Lessee against liability for property damage of
at least five hundred thousand dollars ($500,000.00). The Limits of said
insurance shall not, however, limit the liability of Lessee hereunder. In the
event that the premises constitute a part of a larger property said insurance
shall have a Lessor’s Protective Liability endorsement attached thereto. If
Lessee shall fail to procure and maintain said insurance, Lessor may, but shall
not be required to, procure and maintain the same but at Lessee’s expense.


 


Insurance required
herein shall be in companies rated AAA or better in Best’s Insurance Guide.
Both Lessor and Lessee shall be required to deliver copies of all said
policies, within a reasonable time period, to the other parties of this lease.


 


UTILITIES


 


Lessee shall pay
for all water, sewage, gas heat, light, power, telephone, and other utilities
and services supplied to the premises, together with any taxes thereon. If any
such services are not metered separately to Lessee, Lessee shall pay a
reasonable proportion to be determined by Lessor of all charges jointly metered
with other premises.


 


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DAMAGE
AND DESTRUCTION


 


In the event of
total destruction of premises this lease shall automatically terminate.


 


If the premises
are partially destroyed during the term of this lease, the rents payable
hereunder are to be abated in proportion to which Lessee’s use of premises is
impaired. Lessor shall assure such damages will be corrected in a timely and
reasonable manner.


 


DEFAULTS
AND REMEDIES


 


DEFAULTS: The
occurrence of any one or more of the following events shall constitute a
material default and breach of this lease by Lessee:


 


(a) The vacating
or abandonment of the premises by Lessee, where such abandonment continues for
fifteen (15) days.


 


(b) The failure by
Lessee to make any payment of rent or other payment required to be made by
Lessee hereunder, within ten (10) days of due date; Lessee hereby waives
statutory notice of default for non-payment of rent.


 


(c) The failure by
Lessee to observe or perform any of the covenants, conditions, or provisions of
this lease to be observed or performed by Lessee, other than described in the
paragraph (b) above, where such failure shall continue for a period of thirty
(30) days after written notice hereof from Lessor to Lessee; provided, however,
that if the nature of the Lessee’s default is such that more than thirty (30)
days are reasonably required for its cure, then Lessee has commenced such cure
within said thirty (30) days period and thereafter diligently prosecutes such
cure to completion.


 


(d) (1) The making
by Lessee of any general assignment, or general arrangement for the benefit of
creditors; (2) the filing by or against Lessee of a petition to have Lessee
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (3) the appointment of a
trustee or receiver to take possession of substantially all of Lessee’s assets
located at the premises or of Lessee’s interest in this lease, where possession
is not restored to Lessee within thirty (30) days; or (4) the attachment,
execution, or other judicial seizure of substantially all of Lessees assets
located at the premises or of Lessee’s interest in his lease, where such
seizure is to be discharged within thirty (30) days.


 


REMEDIES: In the
event of any such material default or breach by Lessee, Lessor may at any time
thereafter, with proper notice and demand and without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such default
or breach:


 


(a) Terminate
Lessee’s right to possession of the premises by any lawful means, in which case
this lease shall terminate and Lessee shall immediately surrender possession of
the premises to Lessor. In such event Lessor shall by reason of Lessee’s
default be entitled to recover from Lessee all damages incurred by Lessor
including, but not limited to the cost of recovering possession of the
premises, expenses of reletting, including necessary repairs, reasonable
attorney’s fee, and rents lost during the interim time period between default
and reletting. Unpaid


 


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installments of rent or
other sums due Lessor shall bear interest from the date due at the rate of 18%
per annum.


 


(b) Pursue any other
remedy now or hereafter available to Lessor under the laws or judicial
decisions of the State of Indiana.


 


GENERAL
PROVISIONS


 


Expense Payments.
Lessee shall pay to Lessor, along with Base Rent installments, $319.00 per
month which shall represent the Lessee’s share of real estate taxes, common
area maintenance, and insurance expenses, as contained in “Premises, Terms of
Lease and Rent” section of this Lease.


 


Lessor’s
Liability: The term Lessor as used herein shall mean only the owner or owners
at the time in question of the Lessee’s interest in this Lease. Lessor herein
named (and in case of any subsequent transfers the then grantor) upon transfer
of title of said premises, shall be relieved from all obligations as Lessor
thereafter.


 


Severability: The
invalidity of any provision of this lease as determined by a court of competent
jurisdiction shall in no way affect the validity of any other provision hereof.


 


Interest on Past
Due Obligations: Interest on any amount due Lessor which is in arrears shall
bear interest at the rate of 18% per annum. Payment of such interest shall not
excuse or cure any default by Lessee under this lease.


 


Binding Effect:
Subject to any restrictions of assignments or subletting by Lessee, this lease
shall bind the parties, their personal representatives, successors, and
assigns. This lease shall be governed by the laws of the State of Indiana.


 


Attorney’s Fees:
If Lessor or Lessee brings action to enforce the terms herein or declare rights
hereunder, and prevails, he shall be entitled to recover his reasonable
attorney’s fees to be paid by the losing party as fixed by the court.


 


Lessor’s Access:
Lessor and Lessor’s agents shall have the right to enter the premises under
supervision of Lessee and Lessee’s agents during normal business hours, or
mutually agreeable times, for the purpose of inspection.


 


Signs: Subject to
Lessor’s requirements Tenant shall, at its own cost and expense, install an
identification sign that has first been approved by Landlord in writing at a
place or places designated by Landlord. Tenant shall continuously maintain any
such sign in good condition and repair. Other than such permitted signs, Tenant
shall not place or install or suffer to be placed or installed any advertising
medium, flag, banner, or the like upon or outside the Premises or the Shopping
Center. No sign, advertising matter, shade or other item of any kind may be
installed in or upon the Premises without written permission from Landlord
where the intent or result is that such installation be clearly visible from
the Common Areas of the Shopping Center. Landlord reserves the right to deny
any such permission when, in its sole and final judgment, such item is not in
keeping with the overall quality image of the Shopping Center. Landlord shall
have the right, without liability and with or without notice to Tenant, to
remove any items installed by


 


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Tenant in violation of
this Paragraph and to charge Tenant for the reasonable cost of such removal
and/or any repairs necessitated thereby.


 


Late Payments:
Rental payments not received by Lessor within ten (10) days of the due date
shall be subject to a late payment penalty of five (5) percent of the payment
due.


 


ADDITIONAL
PREMISES


 


Right of First
Refusal: Lessee shall have the right of first refusal to lease additional
premises located at 1429 Youngstown Shopping Center (formerly leased to Pizza
Hut) containing approximately 2,375 square feet. Lessor shall, prior to signing
any lease, rental agreement, or other arrangement encumbering these premises,
offer them to Lessee under the same conditions offered to any other party.
Lessor shall make such offer to Lessee in writing, and Lessee shall have thirty
(30) days in which to enter into a lease agreement equal to those offered to
third parties.


 


EMINENT
DOMAIN


 


In the event of
reductions in building dimensions so imposed by governing bodies having
jurisdiction over zoning and building laws, rules, and regulations, demised
premises may be reduced in any amount not to exceed ten (10) percent. In such
event, rents shall be reduced in the same proportion as size reductions imposed
thereby. In the event that such reduction is greater than ten (10) percent,
Lessee may, at its option, void this agreement.


 


EMPLOYEE
PARKING AREAS


 


Lessor shall
reasonably designate areas in which all tenants’ employees (including those of
Lessee) shall be required to park. Lessee’s failure to enforce this policy upon
its employees shall create a material default under which Lessee shall be
evicted with all rental payments called for during the terms of this lease
becoming due and payable.


 


LESSOR/LESSEE
INDEMNIFICATION


 


Lessee shall
indemnify and hold harmless Lessor from and against any and all claims arising
from Lessee’s use of the premises, or from the conduct of Lessee’s business or
from any activity, work, or things done, permitted, or suffered by Lessee in or
about the premises or elsewhere and shall further hold harmless and indemnify
Lessor from and against any and all claims arising from breach, default, or
negligence of the Lessee. In the case of any action brought against Lessor by
reason of such claim, Lessee upon notice from Lessor shall defend the same at
Lessee’s expense. Lessee hereby agrees that Lessor shall not be liable for
injury to Lessee’s business or any loss of income therefrom or for damage to
the goods, wares, or any other person in or about the premises. Lessor, during
the term hereof, shall indemnify and save harmless Lessee from and against all
claims and demands, whether from injury to persons or loss of life, or damage
to property arising out of acts or omissions of Lessor as defined in his lease.


 


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LESSEE’S
RIGHT TO QUIET ENJOYMENT


 


As long as the Lessee
performs all of the covenants and conditions of this lease and abides by the
rules and regulations thereof, he shall have peaceful and quiet enjoyment of
the premises for the term of this lease.


 


LAWS,
WASTE AND NUISANCE


 


Laws and
Regulations: Tenant agrees, at Tenant’s own cost and expense: (a) to comply
with all present and future governmental laws, ordinances, orders and
regulations concerning Tenant’s use of the Premises (including Tenant’s
alterations and additions thereto); (b) to comply with all present and future
rules, regulations and recommendations of the Board of Fire Underwriters,
Landlord’s insurance carriers and organizations establishing insurance rates
concerning Tenant’s use of the Premises (including Tenant’s alterations and
additions thereto); and (c) to comply with all restrictive covenants of record
which affect or are applicable to all Shopping Center and/or the Premises
and/or the Common Areas, provided, however, the same do not prohibit the
Permitted Use of the Premises.


 


Waste or Nuisance:
Tenant further agrees not to suffer, permit or commit any waste, nor to allow,
suffer or permit any odors, vapors, water, vibrations, noises or undesirable
effects to emanate from the Premises into other portions of the building of
which the Premises forms a part or into the Common Areas, or otherwise to
allow, suffer or permit the Premises or any use thereof to constitute a
nuisance or unreasonably to interfere with the safety, comfort, or enjoyment of
the Shopping Center by Landlord or by any other occupants of the Shopping
Center or their customers, invitees or any others lawfully in or upon the
Shopping Center.


 


TIME OF
THE ESSENCE


 


Time shall be of
the essence in this lease.


 


SURRENDER
OF PREMISES UPON TERMINATION


 


The Lessee agrees
to quit and deliver up the premises at the end of the term of this lease. The
premises shall be in good repair and condition, as they are upon occupancy,
ordinary wear and tear accepted.


 


OPTION
TO RENEW LEASE


 


Lessee shall have
the option to renew this Lease for one (1) additional term of seven (7) years
by notifying Lessor, in accordance with notice provisions contained herein,
ninety (90) days in advance of the scheduled expiration of this Lease. All
other terms and conditions of this Lease not specifically addressed herein
shall remain unchanged.


 


In the event
Lessee elects to exercise this option, the rental rates, including Expense
Payments, shall increase by an amount equal to the increase in the Consumer
Price Index, All Items, with May 2002 being used as the base year.


 


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NOTICE
PROVISIONS


 


Notices shall be
deemed properly delivered if sent by United States Mail, Certified with return
receipt requested. Such notices shall be sent to Lessor at P.O. Box 128, Floyds
Knobs, Indiana 47119 and to Lessee at 25115 County Club Boulevard, North
Olmsted, OH 44070, or to other such addresses as required by parties hereto
having given proper notice.


 


IN
WITNESS WHEREOF, the Lessor and Lessee have executed this
lease on this
            day of
August, 2003.


 


 


	
  LESSOR:

  	
  LESSEE:

  
	
  YOUNGSTOWN PROPERTIES,
  LLC

  	
  HEARTLAND PAYMENT
  SYSTEMS, INC

  
	
   

  	
   

  
	
   

  	
   

  
	
  BY:

  	
  /s/ Jeffrey K. Agan

  	
   

  	
  BY:

  	
  /s/ Martin Uhle

  	
   

  
	
   

  	
  Jeffrey K. Agan,
  Managing Member

  	
   

  	
   

  	
  Martin Uhle, Its
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS

  	
  WITNESS

  
							



 


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