EXHIBIT 10.11
LEASE
THIS LEASE (this "Lease") is made as of the 6th day of November, 2001,
by and between C-Gate Construction Inc., a Texas corporation ("Landlord")
and PC Dynamics of Texas Inc., a Texas corporation ("Tenant"), Performance
Interconnect Corp., a Texas corporation ("Tenant") and Integrated
Performance Systems Inc., a New York Corporation, ("Tenant ").
WITNESSETH:
The parties hereto, for themselves, their heirs, distributors,
executors, administrators, legal representatives, successors and assign,
hereby covenant as follows:
Section 1.01 Definitions. The following terms shall have the meanings
hereinafter set forth throughout this Lease.
(A) "Base Rent" shall be the sum of $420,000.00 per year, payable in equal
monthly installments of $35,000.00 per month in advance on the first
day of each calendar month during the Term of this Lease.
(B) "Commencement Date" shall mean November 6, 2001.
(C) "Expiration Date" shall mean the 20th anniversary of the Commencement
Date, unless sooner terminated or extended provided in this Lease.
(D) "Landlord's Notice Address" shall mean 00000 X. Xxxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx, 00000.
(E) "Lease Year" shall mean a one year period beginning on the Commencement
Date and ending on year after the Commencement Date.
(F) "Parking Spaces" shall mean those parking spaces located on the
Property.
(G) "Permitted Uses" shall mean use of the premises of the assembly of
printed circuit boards and related activities.
(H) "Premises" shall mean the property legally described on Exhibit A
attached hereto (the "Property"), the Parking Spaces and any other
improvements located on the Property.
(I) "Security Deposit" shall mean $35,000.00.
(J) "Tenant's Notice Address" shall mean 00000 XX 000 Xxxx, Xxxxxx, Xxxxx
00000.
(K) "Term" shall mean the period commencing on the Commencement Date and
ending on the Expiration Date, being 240 months.
Section 1.02 Demise: Condition of the Premises.
(A) Subject to an upon the terms and conditions set forth herein, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises for the Term, commencing on the Commencement Date and ending
on the Expiration Date.
(B) Tenant has inspected the Premises and is satisfied with the physical
condition thereof, including all equipment and appurtenances and agrees
to accept the Premises in their present "AS IS" condition.
Section 1.03 Base Rent. Tenant shall pay Landlord, monthly, in advance,
on the first day of each calendar month during the term, monthly
installments of Base Rent, without notice or demand and without any setoff,
offset, abatement or deduction whatsoever, to Landlord's Notice Address.
Section 1.04 Additional Rent. All sums other than Base Rent payable by
Tenant under this Lease shall be deemed additional rent ("Additional Rent")
payable on demand (at the same place Base Rent is paid), and in currency
which, at the time of payment, is legal tender for public and private debts
in the United States of America unless other payment dates are set forth
herein. Landlord shall have the same rights and remedies with respect to
the failure by Tenant to pay Additional Rent as Landlord has with respect to
he failure by Tenant to pay Base Rent.
Section 1.05 Use. The Premises shall be used and occupied by Tenant
solely for the Permitted Uses, and for no other purpose without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld.
ARTICLE 2.
Alterations and Additions.
Section 2.01 Alterations. Tenant shall not make or suffer to be made any
alterations, additions or improvements (collectively "Alterations") in, on
or to the Premises or any part thereof without the prior written consent
of Landlord which consent shall not be unreasonably withheld if the
proposed Alterations are nonstructural. Tenant shall furnish plans and
specifications to Landlord at the time it requests Landlord's consent to any
Alterations if the desired Alterations will require the filing of plans and
specifications with any governmental or quasi-governmental agency or
authority. Subsequent to obtaining Landlord's consent and prior to
commencement of the Alterations, Tenant shall deliver to Landlord any
building permit required by applicable law and a copy of the executed
construction contract(s). If Landlord consents to the making of any
Alteration, such Alteration shall be made by Tenant at Tenant's sole cost
and expense by such contractor approved in writing by Landlord. Tenant
shall provide, at its expense, such completion, performance and/or payment
bonds as Landlord considers necessary with respect to such construction
work. Tenant shall also require its contractor to maintain insurance in
such amounts and in such form as Landlord may require and evidence of such
insurance shall be delivered to Landlord. Any construction, alteration,
maintenance, repair, replacement, installation, removal or decoration
undertaken by Tenant in connection with the Premises shall be completed in
accordance with the plans and specifications therefor, shall be carried out
in good, workmanlike and prompt manner and shall comply with all applicable
statutes, laws, ordinances, regulations, rules, orders and requirements of
the authorities having jurisdiction thereof.
ARTICLE 3.
Management of the Premises
Section 3.01 Absolute Net Lease. This Lease shall be an absolute net
lease. Tenant shall pay for and be responsible for all of the maintenance,
management, upkeep and care of the Premises, as specified herein, and Tenant
shall pay all Operating Expenses (as hereinafter defined) related to the
Premises. The term "Operating Expenses" shall mean the aggregate of those
costs and expenses paid or incurred relating to the ownership, maintenance
and operation of the Premises, including, but not limited to, all of those
costs specified in Articles 3.
Section 3.02 Taxes. Tenant shall pay all Taxes (as hereinafter defined)
related to the Premises before delinquency. The term "Taxes" shall mean all
taxes, fees and assessments and governmental charges levied, whether by
federal, state, county, municipal or other taxing districts or authorities
presently or hereafter created, taxing the Premises and any other general or
special taxes, fees, charges or assessments attributable to the Premises or
their operation. "Taxes" shall also include any and all taxes levied or
assessed and payable during the Term upon all of Tenant's leasehold
improvements, equipment, furniture, fixtures, and other personal property
located on the Premises. In addition, "Taxes" shall mean all real estate
taxes and assessment or substitutes therefor or supplements thereto upon all
or any portion of the Premises or any improvements thereon, for any whole or
partial tax year or period occurring during the Term hereof. If and to the
extent that, due to a change in the method of taxation or assessment, any
franchise, capital stock capital, rent, income, profit or other tax or
charge shall be a substitute for or supplement to any of the foregoing, then
all such items shall be included within the term Taxes for the purposes of
this Lease. If Tenant should choose to dispute and contest Taxes, tenant
shall pay for all costs associated with such dispute or contest and such
costs also shall be considered Taxes for purposes of this Lease.
Section 3.03 Insurance. Tenant hereby agrees that it shall bear the risk
of any damage, loss or casualty relating to the Premises, except as
otherwise specified in this Lease. Tenant shall provide and pay for all
insurance ("Insurance") of any type that Landlord, in its reasonable
judgment, shall deem necessary or advisable to carry in relation to the
Premises, including, but not limited to, Commercial General Liability
Insurance, fire and extended coverage insurance, State Worker's Compensation
Insurance, Hazardous Materials Insurance and any other insurance necessary
in order to protect itself, the Premises, its personal property used in
connection therewith, or its interests therein. Tenant shall maintain such
Insurance in commercially reasonable amounts, sufficient to cover any risks
related to the Premises and all of its obligations pursuant to this Lease,
including, but not limited to, those obligations specified in Section 4.03,
Section 6.02, and Section 6.04. All policies for Insurance related to the
Premises shall name the Landlord and Landlord's mortgagee, if any, as
Additional Insureds.
Section 3.04 Maintenance Costs. Tenant shall pay all Maintenance Costs
(as hereinafter defined). The term "Maintenance Costs" shall mean all costs
paid or incurred in connection with the operation or maintenance of the
Premises including, without limitation, all parking areas (whether temporary
or permanent), access roads, driveways, curbs, truckways, loading areas and
docks, retaining walls, lighting facilities, service corridors, comfort
stations, pedestrian sidewalks, stairways, plazas, foundations, exterior and
demising walls, roofs over any portion of the premises, elevators, courts
and ramps, decorative walls, vacant areas, landscaped and planting areas and
facilities, service lines or conduits for gas, water, electric, sewage,
heating, storm water, ventilating, air conditioning and lighting services,
music and intercom equipment, and fire suppression and warning systems,
conduits and appurtenances for use by Tenant, and other areas and facilities
related to the Premises, whether on or off the Property.
Section 3.05 Maintenance and Repair. Subject to the provisions of
Sections 6.01 and 6.02 hereof, Tenant shall maintain and repair the Premises
during the Term and preserve same in the condition delivered to Tenant on
the Commencement Date, normal wear and tear excepted, and shall make all
repairs and replacements to the interior of the Premises, structural or
otherwise, including, without limitation, concrete floors, supporting
columns, interiors plumbing and electrical lines and facilities, doors and
door frames, and window and window frames, as when necessary in order to
preserve the Premises in good working order and condition in accordance with
the terms and provisions of the Lease, including those governing the
performance of any Alterations to the Premises. Tenant agrees to keep and
maintain in good working order and condition the waste and sewer systems,
sprinkler, plumbing, air-conditioning, electrical and heating and
ventilating systems and equipment in and/or servicing the Premises and keep
in force a standard maintenance agreement with contractors designated by
Landlord on all such equipment and systems, and to furnish a copy thereof to
Landlord. In addition, Tenant shall replace at the expense of Tenant, any
and all plate or other glass and exterior window treatment including,
without limitation, any protective films damaged or broken by any cause
whatsoever in and about the Premises to the building standard conditions
adopted by Landlord from time to time. Tenant shall pay for and keep the
foundation of the Premises in good repair. Tenant shall pay for repair or
maintenance of the exterior walls and roof. Tenant shall keep the parking
spaces well lit, well striped, and clear of snow and debris. Tenant shall
be responsible for proper landscaping, including, but not limited to,
lawnmowing and debris removal, and other exterior maintenance of the
Premises in order to keep the Premises in a sightly and clean condition.
Tenant shall provide security for the Premises, including, but not limited
to, alarm systems and security guards. All damages or injury done to the
Premises by Tenant or by any person who may be in or upon the Premises shall
be paid for by Tenant. If Tenant refuses or neglects to perform any of
Tenant's obligations hereunder, Landlord shall have the right, but not the
obligation, to make such repairs or perform such obligations on behalf of
and for the account of Tenant. In such even, the cost thereof shall be paid
for by Tenant, as Additional Rent, upon demand. Tenant agrees to give
Landlord or its managing agent prior written notice of the necessity for any
repairs in or to the Premises and shall not proceed to perform same until
Landlord or its managing agent has consented thereto.
Section 3.06 Utilities. Tenant shall obtain all water, electricity,
sewage, gas, telephone and other utilities directly from the public utility
company furnishing shame. Any meters required in connection therewith shall
be installed at Tenant's sole cost. Tenant shall pay all utility deposits
and fees, and all monthly service charges for water, electricity, sewage,
gas, telephone and any other utility services furnished to the Premises
during the Term. In the event any such utilities are not separately metered
on the Commencement Date, then until such time as such services are
separately metered, Tenant shall pay to Landlord Tenant's equitable share of
the cost of such services, as reasonable determined by Landlord.
Section 3.07 HVAC. Tenant shall have the right to use the existing
heating, air conditioning and ventilation equipment in the Premises, if any.
All such equipment shall be maintained, repaired and replaced, as necessary,
by Tenant at its sole cost and expense and shall be surrendered by Tenant to
Landlord at the end of the Term together with the Premises. Landlord makes
not representations or warranty as to the condition or capacity of such
equipment. Landlord shall have no obligation whatsoever to provide the
Premises with heat, air conditioning, ventilation or hot water.
Section 3.08 Cleaning. Tenant, at its expense, shall keep the Premises
clean and in good order to the reasonable satisfaction of Landlord and shall
pay for all garbage removal as incurred. Tenant shall store all rubbish and
refuse in locations and in a manner as may be designated by Landlord from
time to time. Tenant shall arrange of the removal of garbage and other
refuse by a cartage company acceptable to Landlord during such hours as may
be designated by Landlord from time to time or, Landlord may elect by
written notice to Tenant, to arrange for the removal of such garbage and
other refuse by Landlord's cartage company, and Tenant shall pay Landlord
all charges therefor as Additional Rent, within ten (10) days after receipt
of xxxx therefor.
Section 3.09 Compliance with Law. Tenant, at its sole expense, shall
comply with all laws, orders and regulations of federal, state, county and
municipal authorities and with any directive of any public officer or
officers pursuant to law which shall impose any violation, order or duty
upon Landlord or Tenant with respect to the Premises or the use or occupancy
thereof. Tenant, at its sole cost and expense, shall obtain and keep in
effect during the term, all permits, licenses, and other authorizations
necessary to permit Tenant to use and occupy the Premises for the Permitted
Uses. Tenant shall not use the Premises, or permit any act to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now for hereafter in force.
Section 3.10 Liens. Tenant shall keep the Premises free form any liens
arising out of any work performed, materials furnished, or obligations
incurred by or on behalf of Tenant. Should any mechanic's or other lien be
filed against the Premises by reason of Tenant's or its agents' or
contractors' acts or omissions or because of a claim against Tenant, Tenant
shall cause the same to be canceled and discharged of record by bond or
otherwise within thirty (30) days after the filing thereof. Should Tenant
fail to discharge such lien within such thirty (30) day period, Landlord may
cure same, in which event Tenant shall reimburse Landlord, on demand, as
Additional Rent, for the amount of the lien or the amount of the bond, if
grater, plus all administrative costs incurred by Landlord in connection
therewith. The remedies provided herein shall be in addition to all other
remedies available to Landlord.
ARTICLE 4.
Tenant's Covenants and Rights
Section 4.01 Assignment and Subletting.
(A) Tenant covenants that it shall not, by operation of law or otherwise,
assign, sublet, encumber or mortgage this lease, or any part thereof, or
permit the Premises to be used by others without the prior written consent
of Landlord in each instance. Any attempt by Tenant to assign, sublet,
encumber or mortgage this Lease shall be null and void. The consent by
Landlord to any assignment, mortgage, encumbrance, subletting or use of the
Premises by others shall not constitute a waiver of Landlord's right to
withhold its consent to any other assignment, subletting, encumbrance,
mortgage or use by others of the Premises. For the purpose of this Section
4.01, (I) a takeover agreement shall be deemed a transfer of this Lease,
(ii) an assignment of the Lease shall be deemed to occur if Tenant shall
fail to be a wholly-owned subsidiary of Performance Interconnect Corp., a
Texas corporation ("PIC"), or if the existing shareholders of PIC shall in
the aggregate fail to own at least 51% of the voting and ownership interests
in PIC, (iii) any person or legal representative of Tenant, to whom Tenant's
interest under this Lease passes by operation of law, or otherwise, shall be
bound by the provisions of this Section 4.01, and (iv) a modification,
amendment or extension of a sublease shall be deemed a sublease.
(B) No consent by Landlord to an assignment of this Lease shall be effective
unless and until Tenant shall deliver to Landlord an agreement in form and
substance satisfactory to Landlord pursuant to which such assignee assumes
and agrees to be bound by all of the terms, covenants, provisions and
agreements of this Lease. In no event shall Tenant be released from its
obligations hereunder as a result of any assignment of this lease.
(C) Notwithstanding anything in this Section 4.01 to the contrary, Tenant
may permit Premises to be used by an affiliate of Tenant upon prior written
notice to Landlord; provided, however, that Tenant an any such affiliate
shall comply with all of the term, covenants, provisions and agreements of
this Lease. For purposes of this Lease, an "affiliate" means an entity that
controls, is controlled by, or is under the common control of another
entity.
Section 4.02 Interruption of Access, Use or Service. Landlord shall not
be liable for any failure (to the extent required of it by this Lease) to
provide access to the Premises, to assure the beneficial use of the Premises
or to furnish any services or utilities when such failure is caused by
natural occurrences, riots, civil disturbances, insurrection, war, court
order, public enemy, accidents, breakage, repairs, strikes, lockouts, other
labor disputes, the making of repairs, alterations or improvements to the
Premises, the inability to obtain fuel, gas, steam water, electricity, labor
or other supplies or by any other condition beyond Landlord's reasonable
control, and Tenant shall not be entitled to any damages resulting from such
failure, nor shall such failure relieve Tenant of the obligation to pay all
sums due hereunder or constitute for be construed as a constructive or other
eviction of Tenant. If any governmental entity promulgates or revises any
statute, ordinance or building code, fire code or other code, or imposes
mandatory or voluntary controls for guidelines on Landlord or the Premises
or any part thereof, relating to the use of the Premises or the conservation
of any utility or service provided with respect to this lease, or if
Landlord is required to make alterations to the Premises in order to comply
with such mandatory or voluntary controls or guidelines, Tenant shall comply
with such mandatory controls or guidelines or make such alterations to the
Premises. Tenant may, in its sole discretion, comply with such voluntary
controls or guidelines, or make such alterations to the Premises, pursuant
to the requirements of Article 2 of this Lease. If Tenant chooses not to
comply with such voluntary controls or guidelines, Landlord may make such
changes or alterations as are necessary to comply with such voluntary
controls or guidelines at Landlord's sole cost and expense. Neither such
compliance nor the making of such alterations shall in any event entitle
Tenant to any damages, relieve Tenant of the obligation to pay any of the
sums due hereunder, or constitute or be construed as a constructive or other
eviction of Tenant.
Section 4.03 Tenant's Indemnification.
(A) Tenant shall indemnify, defend and hold harmless Landlord and its
officers, directors, employees, attorneys and agents (collectively, the
"Indemnitees") from and against any all claims, demands, causes of action,
judgments, costs and expenses, and all losses and damages (including
consequential and punitive damages ) arising from Tenant's use of the
Premises or from the conduct of its business or form any activity, work or
other acts or things done, permitted or suffered by Tenant in or about the
Premises, and shall further indemnify, defend and hold harmless the
Indemnitees from and against any and all claims arising from any breach or
default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease, or arising from any act, omission
or negligence or willful or criminal misconduct of Tenant, or any officer,
agent, employee, independent contractor, guest, or invitee thereof, and from
all costs, attorneys' fees and disbursements, and liabilities incurred in
the defense of any such claim or any action or proceeding which may be
brought against, out of for in any way related to this Lease. Upon notice
from Landlord, Tenant shall defend any such claim, demand, cause of action
or suit at Tenant's expense by counsel satisfactory to Landlord in its sole
discretion. As a material part of the consideration to Landlord for this
Lease, Tenant hereby assumes all risk of damage to property or injury to
persons in, upon or about the Premises from any cause, and Tenant hereby
waives all claims with respect thereto against Landlord. Tenant shall give
immediate notice to Landlord in case of casualty or accidents in the
Premises. The provisions of this Section shall survive the expiration or
sooner termination of this Lease.
(B) All personal property of Tenant, including goods, wares, merchandise,
inventory, trade fixtures and other personal property of Tenant, shall be
stored at the sole risk of Tenant. Landlord or its agents shall not be
liable for any loss or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water or rain which may
leak from any part of the Premises or from the pies, appliances or plumbing
works therein or from the roof, street or subsurface or from any other
places resulting from dampness or any other cause whatsoever, except
personal injury or other damages caused by or due to the gross negligence or
willful misconduct of Landlord. Landlord or its agents shall not be liable
for interference with the electrical service, ventilation, or for any latent
defect in the Premises.
(C) The parties hereto acknowledge that all or part of the Premises may be
used for the storage and shipment of goods not owned by Tenant, and Landlord
is not willing to enter into this Lease unless Tenant indemnifies the
Indemnitees to Landlord's satisfaction form any liability on the part of the
Indemnitees to the owner(s) of such goods for damage to the same arising out
of any acts or omissions of the Indemnitees. As a material inducement to
Landlord to enter into this Lease, Tenant agrees to defend, indemnify and
hold the Indemnitees harmless from and against any and all losses, claims,
liabilities, obligations and damages imposed upon or incurred or asserted
against the Indemnitees by reason of damage to goods of persons string such
goods with Tenant, notwithstanding the fact that such losses, claims,
liabilities, obligations or damages may have been caused by the acts or
omissions of Landlord. Tenant agrees that at all times during which it
shall store goods not owned by it in the Premises, it shall insure the
indemnity described under this Section 4.03(C) in a manner reasonably
satisfactory to Landlord. Landlord shall not be deemed a bailee, consignee,
or warehouseman (or responsible for the standard of care incidental thereto)
with respect to any goods stored or shipped to or from the Premises for
consignment or bailment and Tenant shall insert a clause to that effect in
all warehouse receipts or coassignment agreements for the storage or
shipment of goods to or from the Premises.
Section 4.04 Security Deposit. Concurrently with the execution of this
Lease, Tenant has deposited with Landlord the Security Deposit, the receipt
of which, subject to collection, is hereby acknowledged, as security for the
payment by Tenant of all Base Rent and Additional Rent and for the faithful
performance of all the terms, covenants and conditions hereof. Landlord
shall not be required to segregate the Security Deposit from other deposits
or from other funds of Landlord or pay interest thereon, unless required by
applicable law. If, at any time during the Term, Tenant does not fulfill
any of its obligations under this Lease, Landlord shall have the right to
use the Security Deposit, or so much thereof as necessary, to satisfy such
obligations. If any portion of the Security Deposit is used, applied, or
retained by Landlord as herein permitted, then within five (5) days under
written demand therefor, Tenant shall deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount, and
Tenant's failure to do so shall be a breach of this Lease. If Tenant fully
and faithfully performs every term, covenant, condition and obligation of
this Lease during the Term, the Security Deposit (or any balance thereof),
without interest, shall be returned to Tenant after the expiration of the
Term. Landlord may deliver the Security Deposit to any purchaser of
Landlord's interest in the Premises if such interest is sold, in which event
Landlord shall be discharged from any further liability with respect to the
Security Deposit. The Security Deposit shall not be construed as liquidated
damages, and if Landlord's claims hereunder exceed the Security Deposit,
Tenant shall remain liable for the balance of such claims.
Section 4.05 Surrender. Upon the expiration of the term or other
termination of this Lease, and without further notice, Tenant shall
peaceable and quietly quite and surrender to Landlord the Premises, broom
clean, in the same condition as existed on the Commencement Date, excepting
only any Alterations made by Tenant if consented to by Landlord if
Landlord's consent was required, ordinary wear and tear and loss by fire or
other casualty which Tenant is not obligated to repair pursuant to the terms
hereof. Any property of Tenant not removed at or prior to the Expiration
Date or prior termination of this Lease, shall, at Landlord's election, be
deemed abandoned and shall become the property of Landlord.
ARTICLE 5.
Landlord's Covenants and Rights
Section 5.01 Quiet Enjoyment and Subordination.
(A) Landlord covenants and agrees that, upon performance by Tenant of all of
the terms, covenant, obligations, conditions and provisions hereof on
Tenant's part to be kept and performed, Tenant shall have, hold and enjoy
the Premises, subject and subordinate to the terms and conditions of this
Lease.
(B) This Lease is subject and subordinate to, and Tenant will comply with,
any reciprocal easement agreements or any other easements (each, an
"Easement"); any other restrictions on or agreements pertaining to the
Premises, as disclosed in Exhibit B; any mortgage, deed of trust or deed to
secure debt (each, a "Mortgage") and to any renewals, modifications,
increases, extensions, replacements, and substitutions of any thereof now or
hereafter affecting the Premises. This provision shall be self-operative
and no further instrument of subordination shall be required; provided,
however, that Tenant agrees to execute and deliver, upon request, such
further instrument(s) in recordable form confirming this subordination
as may be requested by Landlord, or the holder of any Mortgage or the
lessor under any Superior Lease. Notwithstanding anything to the contrary
contained herein, at the option of the holder of any Mortgage, this Lease
shall be made superior to such Mortgage by the insertion therein of a
declaration that this Lease is superior.
Section 5.02 Entry by Landlord.
(A) Landlord and Landlord's agents and representatives shall have the right
to enter the Premises at any time in case of an emergency, and at all
reasonable times upon advance notice to Tenant.
(B) Tenant shall give Landlord a key for all of the doors for the Premises,
excluding Tenant's vaults, safes and files. Landlord shall have the right
to use any and all means to open the doors to the Premises in an emergency
in order to obtain entry thereto without liability to Tenant therefor. Any
entry to the Premises by Landlord by any of the foregoing means, or
otherwise, shall not be construed or deemed to be a forcible or unlawful
entry into or a detainer of the Premises, or an eviction, partial eviction
or constructive eviction of Tenant from the Premises or any portion thereof,
and shall not relieve Tenant of its obligations hereunder.
Section 5.03 Minimize Interference. In performing its covenants under
this Lease, Landlord shall use reasonable efforts to minimize interference
with the conduct of Tenant's business in connection with the performance by
Landlord of any work or the provision of any services required or permitted
pursuant to the terms of this Lease, but Landlord shall not be required to
use overtime or premium pay labor.
Section 5.04 Landlord's Right to Cure. All agreements and provisions to
be performed by Tenant under any of the terms of this Lease shall be at
Tenant's sole cost and expense and without any abatement of Base Rent and
Additional Rent. If Tenant shall fail to perform any act or to pay any sum
of money (other than Base Rent) required to be performed or paid by it
hereunder, or shall fail to cure any default and such failure shall continue
for ten (10) days after written notice thereof by Landlord to Tenant, then
Landlord may, at its option, and without waiving or releasing Tenant from
any of its obligations hereunder, make such payment or perform such act on
behalf of Tenant. All sums paid and all costs incurred by Landlord in
taking such action shall be deemed Additional Rent and shall be paid to
Landlord on demand.
ARTICLE 6.
Eminent Domain, Casualty, Hazardous Materials
Section 6.01 Eminent Domain.
(A) If, during the Term all of the Premises shall be taken (or temporarily
taken for a period of one (1) year or more) by a public authority under any
statute or by right of eminent domain, or purchased under threat of such
taking, this Lease shall automatically terminate on the date on which the
condemning authority takes possession of the Premises ("Date of Such
Taking").
(B) If, during the Term, part of the Premises is so taken or purchased, and
if, in the reasonable opinion of Landlord, substantial alteration or
reconstruction of the Premises is necessary or desirable as a result
thereof, whether or not the Premises are or may be affected, Landlord shall
have the right to terminate this Lease by giving Tenant at least thirty (30)
days' written notice of such termination, and thereupon this Lease shall
terminate on the date set forth in such notice.
(C) Tenant shall immediately surrender to Landlord the Premises and all
interests therein under this Lease on any such date of termination under
this Section 6.01. Landlord may re-enter and take possession of the
Premises and remove Tenant therefrom if necessary, and, in the event of a
termination under this Section 6.01, the Base Rent and Additional Rent shall
xxxxx on the later of the date of termination or the Date of Such Taking.
After such termination, and on notice from Landlord stating the Base Rent
and Additional Rent then owing, Tenant shall forthwith pay Landlord such
amounts.
(D) If a portion of the Premises is so taken, and no rights of termination
herein conferred are timely exercised, the Term of this Lease shall expire
with respect to the portion so taken on the Date of Such Taking. In such
event, the Base Rent and Additional Rent with respect to such portion so
taken shall xxxxx on such date or on such later date as Tenant shall deliver
possession thereof, and the Base Rent and Additional Rent thereafter payable
with respect to the remainder of the Premises shall be adjusted pro rata by
Landlord in order to account for the reduction in the number of rentable
square feet in the Premises. Landlord shall restore and redemise the
Premises to the extent required to exclude from the Premises that portion so
taken; provided, that Landlord's obligation to restore and redemise the
remainder of the Premises shall be limited to the funds available to
Landlord from the condemnation award or other consideration paid for the
affected portion of the Premises. Landlord shall not be obligated to
replace, repair or restore any improvements or alterations to the Premises
made by or on behalf of Tenant, nor shall Landlord be obligated to replace,
repair or restore Tenant's leasehold improvements, personal property,
furniture, fixtures, equipment or the like.
(E) Upon any such taking or purchase, Landlord shall be entitled to receive
and retain the entire award or consideration for the affected portion of the
Premises, and Tenant shall not have or advance any claim against Landlord
for the value of its property or its leasehold estate or the unexpired Term
of the Lease, or for costs of removal or relocation, or business
interruption expense or any other damages arising out of such taking or
purchase. Nothing herein shall give Landlord any interest in or preclude
Tenant from seeking and recovering for its own account from the condemning
authority any award or compensation attributable to the taking or purchase
of Tenant's improvements, chattels or trade fixtures, or the removal or
relocation of its business and effects, or the interruption of its business;
provided that any such award or compensation shall not reduce the amount of
the award otherwise payable to Landlord. If any such award made or
compensation paid to either party specifically includes an award or amount
for the other, the party first receiving the same shall promptly account
therefor to the other.
(F) If all or any portion of the Premises shall be condemned or taken for
governmental occupancy for a period of less than one year, this Lease shall
continue in full force and effect and Tenant shall continue to pay in full
all Base Rent and Additional Rent and other charges herein reserved, without
reduction or abatement, and Tenant shall be entitled to receive, for itself,
so much of any award or payment made for such use as is equal to the
payments that are actually made by Tenant to Landlord during such temporary
taking, and Landlord shall receive the balance thereof.
Section 6.02 Damage by Fire or Other Casualty.
(A) If the Premises shall be damaged by fire or other casualty, then the
damage shall be repaired, except as otherwise provided in this Section 6.02,
by and at the expense of Tenant with reasonable promptness; provided,
however, that Tenant's obligation to restore shall at all times be subject
to obtaining all necessary approvals from all applicable governmental
entities, the Landlord and the holder of any Mortgage and the willingness of
such holder to make the proceeds of casualty insurance policies available to
Tenant for such purposes. The Base Rent and the other charges due Landlord
hereunder shall be equitably abated in the proportion which the part of the
Premises which is not usable by Tenant bears to the entire Premises until
the repairs required to be made by Tenant hereunder shall be made.
(B) If the Premises are totally damaged or rendered wholly untenantable by
fire or other casualty, or if Tenant's architect certifies that the Premises
cannot be repaired within twelve (12) months after the casualty, or if all
or any portion of the proceeds of any insurance policy are retained by the
holder of any Mortgage, then Tenant may, within one hundred eighty (180)
days after such fire or other casualty, give Landlord notice of Termination
of this Lease, and thereupon the Term shall expire ten (10) days after such
notice is given, and Tenant shall vacate the Premises and surrender same to
Landlord.
(C) If the repair and restoration of the Premises are not substantially
completed within twelve (12) months after the date of the casualty, other
than on account of delays by Tenant, but subject to delays resulting from
causes beyond the reasonable control of Tenant and unless the Lease is
terminated in accordance with this Section 6.02, any abatement in Base Rent
and Additional Rent shall cease and Tenant's obligation to pay the same
shall recommence.
(D) Tenant shall give immediate written notice to Landlord of any damage
caused to the Premises by fire or other casualty.
Section 6.03 Subrogation. Notwithstanding anything to the contrary
contained herein, Landlord and Tenant hereby mutually waive and release
their respective rights of recovery against one another and their officers,
agents and employees for any damage to real or personal property, including
resulting loss of use, interruption of business, and other expenses
occurring as a result of the use or occupancy of the Premises to the extent
of insurance coverage which would be included in a standard "all-risk" or
special form policy of property insurance. Landlord and Tenant agree that
all policies of insurance obtained by them pursuant to the terms of this
Lease shall contain provisions or endorsements thereto waiving the insurer's
rights of subrogation with respect to claims against the other, and, unless
the policies permit waiver of subrogation without notice to the insurer,
each shall notify its insurance companies of the existence of the waiver and
indemnity provisions set forth in this Lease.
Section 6.04 Hazardous Materials.
(A) During the term of this Lease, Tenant shall comply with all
Environmental Laws and Environmental Permits (both as defined in Section
6.04(F) hereof) applicable to the operation or use of the Premises, will
cause all other persons occupying or using the Premises to comply with all
such Environmental Laws (as defined in Section 6.04(F) hereof) and
Environmental Permits, will immediately pay or cause to be paid all costs
and expenses incurred by reason of such compliance, and will obtain and
renew all Environmental Permits required for operation or use of the
Premises.
(B) Tenant shall not generate, use, treat, store, handle, release or
dispose of, or permit the generation, use, treatment, storage, handling,
release or disposal of Hazardous Materials (as defined in Section 6.04(F)
hereof) on the Premises, or transport or permit the transportation of
Hazardous Materials to or from the Premises except in compliance with all
applicable Environmental Laws and Environmental Permits.
(C) Tenant shall bear all risk and all costs related to complying with all
Environmental Laws and Environmental Permits.
(D) Tenant will not change or permit to be changed the present use of the
Premises unless Tenant shall have notified Landlord thereof in writing and
Landlord shall have determined, in its sole and absolute discretion, that
such change will not result in the presence of Hazardous Materials on the
Premises except for those described in Subsection (B) above.
(E) (1) Tenant agrees to defend, indemnify and hold harmless the
Indemnitees from and against all obligations (including removal and remedial
actions), losses, claims, suits, judgments, liabilities, penalties, damages
(including consequential and punitive damages), costs and expenses
(including attorneys' and consultants' fees and expenses) of any kind or
nature whatsoever that may at any time be incurred by, imposed on or
asserted against such Indemnitees directly or indirectly based on, or
arising or resulting from (a) the actual or alleged presence of Hazardous
Materials on the Premises which is caused or permitted by Tenant and (b) any
Environmental Claim relating in any way to Tenant's operation or use of the
Premises (the "Hazardous Materials Indemnified Matters"). The provisions of
this Section 6.04(F) shall survive the expiration or sooner termination of
this Lease.
(2) To the extent that the undertaking in the preceding paragraph may
be unenforceable because it is violative of any law or public policy, Tenant
will contribute the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all Hazardous
Materials Indemnified Matters incurred by the Indemnitees.
(3) All sums paid and costs incurred by Landlord with respect to any
Hazardous Materials Indemnified Matter shall bear interest at the lesser of
(i) ten percent (10%) per annum, or (ii) the maximum legal rate of interest
allowed by the state in which the Premises are located, from the date so
paid or incurred until reimbursed by Tenant, and all such sums and costs
shall be immediately due and payable on demand.
(F) (1) "Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, and radon gas; (b) any
substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," toxic substances," "toxic
pollutants," contaminants" or "pollutants," or words of similar import,
under any applicable Environmental Law; and (c) any other substance exposure
which is regulated by any governmental authority; (2) "Environmental Law"
means any federal, state or local statute, law, rule, regulation, ordinance,
code, policy or rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, health, safety or Hazardous Materials,
including without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. SS 9601 et seq.; the
Resource Conservation and Recovery Act, 42 U.S. C. SS 6901 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. SS 1801 et seq.; the Clean
Water Act, 33 U.S.C. SS 1251 et seq.; the Toxic Substances Control Act, 15
U.S.C. SS 2601 et seq.; the Clean Air Act, 42 U.S.C. SS 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. SS 300f et seq.; the Atomic Energy Act,
42 U.S.C. SS 2011 et seq.; the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. SS 136 et seq.; the Occupational Safety and Health
Act, 29 U.S.C. SS 651 et seq.; (3) "Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of non-compliance or violation,
investigations, proceedings. consent orders or consent agreements relating
in any way to any Environmental Law or any Environmental Permit, including
without limitation (a) any and all Environmental Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law and
(b) any and all Environmental Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief resulting from Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment; (4) "Environmental
Permits" means all permits, approvals, identification numbers, licenses and
other authorizations required under any applicable Environmental Law.
(2) "Release" means disposing, discharging, injecting, spilling, leaking,
leaching, dumping, emitting, escaping, emptying, seeping, placing and the
like, into or upon any land or water or air, or otherwise entering into the
environment.
ARTICLE 7.
Events of Default, Remedies
Section 7.01 Events of Default.
(A) In addition to any other event specified in this Lease as an event of
default, the occurrence of any one or more of the following events during
the Term (each, individually, an "Event of Default" and collectively,
"Events of Default") shall constitute a breach of this Lease by Tenant and
Landlord may exercise the rights set forth in Section 7.02 of this Lease or
as otherwise provided at law or in equity:
(1) Tenant shall fail to pay any Base Rent, Additional Rent or any
other sums payable by Tenant under this Lease (or cure any other default
which is curable by the payment of money) within five (5) days after the
date when the same shall become due and payable; or (2) Tenant shall default
in the performance of or compliance with any of the other covenants,
agreements, terms or conditions of this Lease to be performed by Tenant
(other than any default curable by the payment of money), and such default
shall continue for a period of thirty (30) days after written notice thereof
from Landlord to Tenant, or, in the case of a default which cannot with due
diligence be cured within thirty (30) days, Tenant fails to commence such
cure promptly within such fifteen (15) day period and thereafter diligently
prosecute such cure to completion; or (3) Tenant shall become insolvent
within the meaning of the United States Bankruptcy Code, as amended from
time to time (the "Code"), or shall have ceased to pay its debts in the
ordinary course of business, or shall be unable to pay its debts as they
become due, or Tenant shall notify Landlord that it anticipates any of the
foregoing conditions, Tenant shall file, take any action to file, or notify
Landlord that Tenant intends to file, a petition, case or proceeding under
any section or chapter of the Code, or under any similar law or statute of
the United States or any state thereof relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts; Tenant
shall be adjudicated as a bankrupt or insolvent or consent to, or file an
answer admitting or failing reasonably to contest the material allegations
of, a petition filed against it in any such case or proceeding in the
preceding clause; or seek to or consent to or acquiesce in the appointment
of any receiver, trustee, liquidator or other custodian of Tenant or any
material part of its or their properties, whether or not the same shall
relate to their interests in this Lease; or Tenant shall make a general
assignment for the benefit of creditors; or take any other action for the
purpose of effecting any of the foregoing; or (4) if, within thirty (30)
days after the filing of an involuntary petition in bankruptcy against
Tenant or the commencement of any case or proceeding against Tenant seeking
any reorganization, composition, arrangement, liquidation, dissolution,
readjustment or similar relief under any law, such proceeding shall not have
been dismissed; or if, within thirty (30) days after the appointment,
without consent or acquiescence of Tenant, of any trustee, receiver or
liquidator of Tenant, or of all or any substantial part of the properties of
Tenant, or of all or any part of the Premises, such appointment shall not
have been vacated or stayed on appeal or otherwise, or if, within thirty
(30) days after the expiration of any such stay, such appointment shall not
have been vacated; or if, within thirty (30) days after the taking of
possession without the consent or acquiescence of Tenant, by any
governmental office or agency pursuant to statutory authority for the
dissolution or liquidation of Tenant, such taking shall not have been
vacated or stayed on appeal or otherwise; or (5) the Premises shall be
effectively abandoned by Tenant, as shown by failure to occupy the Premises,
for a period of ten (10) days; or (6) any execution or attachment is issued
against Tenant or any of its property whereupon the Premises shall be taken
or occupied or attached, or attempted to be taken or occupied or attached by
someone other than Tenant; or (7) a tax lien or a mechanic's and/or
materialmen's lien is filed against any property of Tenant, or Tenant does
or permits to be done anything which creates a lien upon the Premises and
such lien is not discharged by Tenant within ten (10) days of the filing
thereof, or (8) Tenant shall default beyond any applicable notice and grace
period under any other lease or sublease with Landlord, with Landlord's
agent or with any entity which controls, is controlled by, or is under
common control with Landlord.
(B) If an Event of Default occurs more than two (2) times within any period
of six (6) months, then, notwithstanding that each such Event of Default
shall have been cured, any further default shall be deemed to be deliberate,
and Landlord may exercise the remedies provided herein or at law or in
equity upon giving such notice as is provided for in this Lease or as is
required by law and without affording Tenant an opportunity to cure such
default.
Section 7.02 Remedies upon Default.
(A) Upon the occurrence of any Event of Default, Landlord shall have the
option to pursue any one or more of the following remedies without notice or
demand whatsoever, in addition to, or in lieu of, any and all remedies
available to Landlord under the laws of the state in which the Premises are
located:
(1) Landlord may give Tenant written notice of its election to
terminate this Lease, effective on the date specified therein, whereupon
Tenant's right to possession of the Premises shall cease and this Lease,
except as to Tenant's liability determined in accordance with subsection
7.02(C) below, shall be terminated.
(2) Landlord and its agents may immediately re-enter and take
possession of the Premises, or any part thereof, either by summary
proceedings, or by any other applicable action or proceeding, or by force or
otherwise (without being liable for indictment, prosecution or damages
therefor) and may repossess same as Landlord's former estate and expel
Tenant and those claiming through or under Tenant, and remove the effects of
both or either, without being deemed guilty in any manner of trespass, and
without prejudice to any remedies for arrears of rent or Tenant's breach of
covenants or conditions.
(3) Should Landlord elect to re-enter as provided hereinabove or
should Landlord take possession pursuant to legal proceedings or pursuant to
any notice provided by law, Landlord shall take reasonable measures to the
extent required by law and without terminating this Lease, to relet the
Premises of any part thereof. Any such reletting shall be in Landlord's or
Tenant's name, but for the account of Tenant (subject to the provisions of
subsection 7.02(B)), for such term or terms (which may be greater or less
than the period which would otherwise have constituted the balance of the
Term) and on such terms and conditions (which may include concessions of
free rent and alteration, repair and improvement of the Premises) as
Landlord reasonably determines to be necessary to maximize the effective
rent on reletting and Landlord may collect and receive the rents therefor
without relieving Tenant of any liability under this Lease or otherwise
affecting any such liability. Landlord shall in no event be liable for
refusal or failure to relet the Premises or any part thereof, or, in the
event of any such reletting, for refusal or failure to collect any rent due
upon such reletting, and no such refusal or failure shall operate to relieve
Tenant of any liability under this Lease or otherwise to affect any such
liability. No such re-entry or taking possession of the Premises by
Landlord shall be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such intention be given to Tenant. No
notice from Landlord hereunder or under a forcible entry and detainer
statute or similar law shall constitute an election by Landlord to terminate
this Lease unless such notice specifically so states. Landlord reserves the
right following any such re-entry and/or reletting to exercise its right to
terminate this Lease by giving Tenant written notice thereof, in which event
this Lease will terminate as specified in said notice.
(B) Tenant hereby waives the service of any notice of intention to re-enter
or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own
behalf and on behalf of all persons claiming through or under Tenant,
including all creditors, does further hereby waive any and all rights which
Tenant and all such persons might otherwise have under any present or future
law to redeem the Premises, or to re-enter or repossess the Premises, or to
restore the operation of this Lease, after (i) Tenant shall have been
dispossessed by a judgment or by warrant of any court or judge, or (ii) any
re-entry by Landlord, or (iii) any expiration or termination of this Lease
and the Term, whether such dispossess, re-entry, expiration, or termination
shall be by operation of law or pursuant to the provisions of this Lease.
The words "re-enter", "re-entry" and "re-entered" as used in this Lease
shall not be deemed to be restricted to their technical legal meanings. In
the event of a breach or threatened breach by Tenant, or any persons
claiming through or under Tenant, of any term, covenant or condition of this
Lease on Tenant's part to be observed or performed, Landlord shall have the
right to enjoin such breach and the right to invoke any other remedy allowed
by law or in equity as if re-entry, summary proceedings and other special
remedies were not provided in this Lease for such breach. The right to
invoke the remedies hereinbefore set forth are cumulative and shall not
preclude Landlord from invoking any other remedy allowed at law or in equity
(C) (1) In the event this Lease is terminated in accordance with the
provisions of Section 7.02(A)(1), Tenant shall remain liable to Landlord for
damages in an amount equal to the Base Rent, Additional Rent and any other
sums due hereunder as of the date of termination of this Lease plus the Base
Rent, Additional Rent, the unamortized cost of any work performed in the
Premises by Landlord in preparing the Premises for occupancy by Tenant (the
"Unamortized Costs") and other sums which would have been owing by Tenant
hereunder for the balance of the Term (collectively, the "Aggregate Gross
Rent") had this Lease not been terminated, less the net proceeds, if any,
received as a result of any Reletting of the Premises by Landlord subsequent
to such termination, after deducting all of Landlord's expenses including.
without limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, expenses of employees, alteration and repair
costs and expenses of preparation for such reletting (collectively, the
"Reletting Costs"). Landlord shall be entitled to collect the Unamortized
Costs immediately upon termination of this Lease, and all other damages from
Tenant monthly on the days on which the rent and other charges would have
been payable hereunder if this Lease had not been terminated. Alternatively,
at the option of Landlord, in the event this Lease is so terminated,
Landlord shall be entitled to recover forthwith against Tenant, as
liquidated damages and not as a penalty, the then value of the Aggregate
Gross Rent and Reletting Costs less the aggregate rental value of the
Premises for what otherwise would have been the unexpired balance of the
Term. In the event Landlord shall relet the Premises for the period which
otherwise would have constituted the unexpired portion of the Term (or any
part thereof), the amount of rent and other sums payable by the Tenant
thereunder shall be deemed prima facie to be the rental value for the
Premises (or the portion thereof so relet) for the term of such reletting.
(2) In the event Landlord does not elect to terminate this Lease, but
takes possession as provided in subsection 7.02(A)(2), Tenant shall pay to
Landlord the Base Rent and Additional Rent as herein provided which would be
payable hereunder if such repossession had not occurred, less the net
proceeds received by Landlord, if any, of any reletting of the Premises by
Landlord after deducting the Reletting Costs to the extent not paid
to Landlord pursuant to the following sentence. Tenant shall pay the
Unamortized Costs, Base Rent and any Additional Rent due to Landlord,
monthly, on the days on which Base Rent would have been payable hereunder if
possession had not been retaken.
(D) (1) This Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession. and Landlord may enforce all its
rights and remedies under this Lease, including the right to recover the
Base Rent and Additional Rent, as the same become due under this Lease.
Acts of maintenance or preservation or efforts to relet the Premises or the
appointment of a receiver upon the initiative of Landlord to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's rights to possession unless Landlord shall have specifically
elected to terminate this Lease as provided in subsection 7.02(A).
(2) No payments of money by Tenant to Landlord after the expiration or
other termination of this Lease after the giving of any notice by Landlord
to Tenant shall reinstate or extend the Term, or make ineffective any notice
given to Tenant prior to the payment of such money. After the service of
notice or the commencement of a suit, or after final judgment granting
Landlord possession of the Premises, Landlord may receive and collect any
sums due under this Lease, and the payment thereof shall not make
ineffective any notice, or in any manner affect any pending suit or any
judgment theretofore obtained.
ARTICLE 8.
Miscellaneous Provisions
Section 8.01 Notices.
(A) Any and all notices herein required or which either party herein may
desire to give to the other (each, a "Notice") pursuant hereto shall be made
in writing and shall be given by certified or registered mail, postage
prepaid, return receipt requested, or by recognized overnight courier, such
as Federal Express, and shall be deemed to be given an the third (3rd)
business day following the date of posting in a United States Post Office or
branch post office or one day after delivery to the overnight courier, and
shall be delivered to Tenant's Notice Address or Landlord's Notice Address,
as appropriate. The parties agree that copies of all Notices to be
delivered to Landlord and Tenant hereunder shall be simultaneously delivered
to the specified addresses for copies as set forth in Section 1.01(D) and
Section 1.01(J), respectively, if any. Either party may, by notice as
aforesaid actually received, designate a different address or addresses for
communications intended for it. Anything contained herein to the contrary
notwithstanding, any bills or invoices for Base Rent, Additional Rent or any
other sums due hereunder, or any Landlord's Operating Statement may be given
by hand or by mail (which need not be registered or certified) and, if so
given, shall be deemed given on the date of delivery or refusal, if by hand,
or on the third (3rd)business day following the date of posting, if mailed.
(B) Notices given hereunder by any party may be given by counsel for such
party. The foregoing notice provisions shall in no way prohibit notice from
being given as provided in the rules of civil procedure of the state in
which the Premises is located, as the same may be amended from time to time
and any notice so given shall constitute notice herein.
Section 8.02 Entire Agreement.
(A) Tenant acknowledges and agrees that it has not relied upon any
statements. representations, agreements or warranties except those expressed
in this Lease, and that this Lease contains the entire agreement of the
parties. No amendment or modification of this Lease shall be binding or
valid unless expressed in writing and executed and delivered by Landlord and
Tenant in the same manner as the execution of this Lease.
(B) The submission of this document for examination and review does not
constitute an option, an offer to lease space, or an agreement to lease
space. This document shall have no binding effect on the parties hereto
unless and until executed and delivered by both Landlord and Tenant and will
be effective only upon Landlord's execution and delivery of same.
Section 8.03 Severability. If any term or provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
illegal, invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and all other terms and provisions of this Lease shall be valid and
enforced to the fullest extent permitted by law.
Section 8.04 No Setoff. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent, and Tenant
shall not be entitled to any setoff, offset, abatement or deduction of rent
or other amounts due Landlord hereunder if Landlord fails to perform its
obligations hereunder; provided, however, the foregoing shall in no way
impair the right of Tenant to commence a separate action against Landlord
for any violation by Landlord of the provisions hereof or to which Tenant
has not waived any claim pursuant to the provisions of this Lease so long as
notice is first given to Landlord and any holder of a Mortgage and/or lessor
under a Superior Lease and reasonable opportunity is granted to Landlord and
such holder and/or lessor to correct such violation. In no event shall
Landlord or any holder of a Mortgage and/or lessor under a Superior Lease be
responsible for any consequential damages incurred by Tenant, including,
without limitation, lost profits or interruption of business, as a result of
any default by Landlord.
Section 8.05 Relationship of Parties. Nothing contained in this Lease
shall create any relationship between the parties hereto other than that of
Landlord and Tenant, and it is acknowledged and agreed that Landlord shall
not be deemed to be a partner of Tenant in the conduct of its business, or a
joint venturer or a member of a joint or common enterprise with Tenant.
Section 8.06 Successors Bound. Except as otherwise specifically provided
herein, the terms, covenants and conditions contained in this Lease shall
bind and inure to the benefit of the respective heirs, successors,
executors, administrators and assigns of each of the parties hereto.
Section 8.07 Interpretation.
(A) Whenever in this Lease any words of obligation or duty are used, such
words or expressions shall have the same force and effect as though made in
the form of a covenant.
(B) Words of any gender used in this Lease shall be deemed to include any
other gender, and words in the singular shall be deemed to include the
plural, when the context requires.
(C) All pronouns and any variances thereof shall be deemed to refer to the
neuter, masculine, feminine, singular or plural when the context requires.
(D) No remedy or election given pursuant to any provision in this Lease
shall be deemed exclusive unless so indicated, but each shall, wherever
possible, be cumulative with all other remedies at law or in equity as
otherwise specifically provided herein.
(E) If and to the extent that, any of the provisions of any amendment,
modification or rider to this Lease conflict or are otherwise inconsistent
with any of the preceding provisions of this Lease, whether or not such
inconsistency is expressly noted in such amendment, modification or rider,
the provisions of such amendment, modification or rider shall prevail.
(F) The parties mutually agree that the headings and captions contained in
this Lease are inserted for convenience of reference only, and are not to be
deemed part of or to be used in construing this Lease.
(G) This Lease shall be construed in accordance with the laws of the State
of Texas.
(H) Except as expressly contained herein, (i) neither Landlord nor
Landlord's agent or attorneys have made any representations, warranties or
promises with respect to the Premises or this Lease; (ii) Tenant has
inspected the Premises and agrees to take same in their "as-is" condition;
and (iii) Landlord shall have no obligation to do any work in and to the
Premises in order to prepare the Premises for occupancy and use by Tenant.
Section 8.08 Limitation Of Landlord Liability. Notwithstanding anything
to the contrary provided in this Lease, neither Landlord, nor any general or
limited partner in or of Landlord, whether direct or indirect, nor any
direct or indirect partners in such partners, nor any disclosed or
undisclosed officers, shareholders, principals, directors, employees,
partners, servants or agents of Landlord, nor any of the foregoing, nor any
investment adviser or other holder of any equity interest in Landlord, their
successors, assigns, agents, or any mortgagee in possession shall have any
personal liability with respect to any provisions of this Lease and, if
Landlord is in breach or default with respect to its obligations or
otherwise, Tenant shall look solely to Landlord's interest in the Premises
for the satisfaction of Tenant's remedies.
Section 8.09 Short Form Lease. Tenant shall not record this Lease or a
memorandum hereof without the prior written consent of Landlord. If
Landlord should consent to recording a memorandum of this Lease, Landlord
and Tenant agree to execute and acknowledge a short form lease in recordable
form, indicating the names and addresses of Landlord and Tenant, a
description of the Premises, the Term, the Commencement and Expiration Date,
options for renewal, if any, and the Option, but omitting rent and other
terms of this Lease. If such a memorandum of this Lease is recorded,
Landlord and Tenant agree to execute and acknowledge a termination of lease
in recordable form before or upon the Expiration Date or sooner termination
of the Term. This termination of lease shall be recorded after the
Expiration Date or sooner termination of the Term.
Section 8.10 Assignment of Rents, Leases.
(A) Tenant agrees that Landlord may assign the rents and its interest in
this Lease to the holder of any Mortgage.
(B) Tenant further agrees that, in the event of such an assignment, Tenant
shall give the holder of such Mortgage a copy of any request for performance
by Landlord or any notice of default by Landlord, and, in the event Landlord
fails to cure any such default, Tenant shall give such holder a reasonable
period, commencing on the last day on which Landlord could cure such
default, in which to cure same.
Section 8.11 Estoppel Certificate.
(A) At any time and from time to time upon written request by Landlord,
Tenant hereby agrees to deliver within ten (10) days after request, a
certificate (Estoppel Certificate") to Landlord or to any present or
proposed (a) mortgagee, (b) lessor under a Superior Lease, or (c) purchaser
designated by Landlord, in the form supplied, certifying: (1) that Tenant
has accepted the Premises (or, if Tenant has not done so, that Tenant has
not accepted the Premises, and specifying the reasons therefor); (2) that
this Lease is in full force and effect and has not been modified (or if
modified, setting forth all modifications), or, if this Lease is not in full
force and effect, the certificate shall so specify the reasons therefor; (3)
the Commencement Date, the Expiration Date and the terms of any extension
options of Tenant; (4) the date to which the Base Rent and Additional Rent
have been paid under this Lease and the amount thereof then payable; (5) the
amount of the Security Deposit and prepaid rent, if any, being held by
landlord; (6) whether there are then any existing defaults by Landlord in
the performance of its obligations under this Lease, and if there are any
such defaults, specifying the nature and extent thereof; (7) that no notice
has been received by Tenant of any default under this Lease which has not
been cured, except as to defaults specified in the certificate; (8) the
capacity of the person executing such certificate, and that such person is
duly authorized to execute the same on behalf of Tenant; and (9) any other
information reasonably requested by Landlord or its present or proposed
purchaser, holder of any Mortgage or lessor under a Superior Lease.
(B) If Tenant shall fail or refuse to sign a certificate in accordance with
the provisions of this Section within ten (10) days following written
request by Landlord, Tenant irrevocably constitutes and appoints Landlord as
its attorney-in-fact to execute and deliver the certificate to any such
third party, it being stipulated that such power of attorney is coupled with
an interest and is irrevocable.
Section 8.12 Mortgagee Requirements. Tenant hereby agrees to cooperate
with Landlord if Landlord should seek financing for the Premises or any
portion thereof, Tenant agrees to comply with any reasonable requirements of
a mortgagee, including, but not limited to, executing a subordination,
attornment and non-disturbance agreement in a form agreeable to mortgagee,
executing an Estoppel Certificate and making changes to this Lease as may be
reasonably necessary to make this lease conform to the mortgage documents.
Section 8.13 Attorney's Fees. In the event of any action or proceeding
between the parties with respect to or in any way related to this Lease, the
losing party shall pay all costs and expenses incurred by the prevailing
party in connection with such action or proceeding, including reasonable
attorneys' fees.
Section 8.14 No Waiver. The failure of Landlord to exercise its rights in
connection with any breach or violation of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant
or condition or any subsequent breach of the same or any other term.
covenant or condition herein contained. The subsequent acceptance of Base
Rent and Additional Rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition
of this Lease other than the failure of Tenant to pay the particular amount
of Base Rent or Additional Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such monies.
Section 8.15 No Merger. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not result in a merger of
Landlord's and Tenant's estates, and shall, at the option of Landlord,
either terminate any or all existing subleases or subtenancies, or operate
as an assignment to Landlord of any or all of such subleases or
subtenancies.
Section 8.16 JURY TRIAL AND COUNTERCLAIM WAIVER. LANDLORD AND TENANT
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR THEIR SUCCESSORS IN
RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR
STATUTORY REMEDY, IN THE EVENT LANDLORD COMMENCES ANY SUMMARY PROCEEDINGS OR
ACTION FOR NONPAYMENT OF BASE RENT OR ADDITIONAL RENT, TENANT SHALL NOT
INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION (UNLESS SUCH
COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING OR ACTION BUT SHALL
BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
LANDLORD: TENANT:
C. GATE CONSTRUCTION, INC. PC DYNAMICS OF TEXAS INC.
______________________ _____________________
Xxxx Xxxxxxx D. Xxxxxx Xxxxx
President President
PERFORMANCE INTERCONNECT CORP.
_____________________
D. Xxxxxx Xxxxx
President
INTEGRATED PERFORMANCE SYSTEMS, INC.
______________________
D. Xxxxxx Xxxxx
President
EXHIBIT A
Legal Description
00000 XX 000 Xxxx
Xxxxxx, Xxxxx 00000
EXHIBIT B
Permitted Exceptions
