Exhibit 10.5
LEASE
This Lease is made as of September 21, 1998, by and between Potter Production
Corporation, a Minnesota corporation ("Landlord") and Spectrum Control, Inc. a
Pennsylvania corporation ("Tenant") (the "Lease").
ARTICLE I
Lease of Property, Term of Lease
1.01 Property. Landlord hereby leases to Tenant, subject to the covenants,
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agreements, terms, provisions, conditions and limitations set forth herein,
all of which Tenant covenants and agrees to perform, and Tenant hereby
leases, (i) that certain real property located in the Town of Wesson,
County of Copiah, State of Mississippi, and commonly described as 0000
Xxxxxxx 00 Xxxxx, and the building located therein, including any leasehold
improvements within, containing approximately _________ square feet (the
"Building") and the land on which the Building is located (the "Land"), all
as more particularly described in Exhibit A and made a part hereof (the
"Property").
1.02 Initial Term. The Lease term shall commence as of the date above written
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(the "Commencement Date") and continue for a period of six months until
March 21, 1999 (the "Expiration Date"), unless sooner terminated as
hereinafter provided (the "Initial Term").
1.03 Landlord's Reserved Right to Market Property. Landlord shall retain the
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right to market the Property for sale or lease during the Initial Term at
any time after January 31, 1999. In the event Landlord enters an agreement
with a third party for the sale or lease of the Property on terms providing
for occupancy prior to September 21, 1999, Landlord shall have the right to
provide Tenant with sixty days written notice to vacate the Property. In
such case, the Lease shall terminate effective as of the date specified in
the notice to vacate and Tenant shall be obligated only to pay all Base
Rent and any other sums due with respect to the period of Tenant's
occupancy.
1.04 Renewal Term. Provided that Landlord has not entered an agreement for the
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sale or lease of the Property as of the Expiration Date and further
provided that Tenant shall not be in default under any of the terms or
conditions of the Lease, Tenant may renew and extend the term of this Lease
on a month to month basis on the terms and conditions contained herein.
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ARTICLE II
Rent
2.01 Base Rent. Tenant covenants and agrees to pay a monthly Base Rent, payable
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in advance, commencing on the Commencement Date and continuing on the first
day of each and every month thereafter for the next succeeding months
during the balance of the Initial Term in the amount of Twenty-two thousand
five hundred dollars ($22,500). Base Rent shall be payable in advance,
without notice or demand. In the event the first or last month of the
Initial Term is not a full calendar month, the Base Rent installment for
that month shall be prorated and adjusted accordingly.
2.02 Operating Expenses. During the Initial Term and any Renewal Term of this
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Lease, Tenant shall be solely and directly responsible for payment of all
operating expenses incurred with respect to Tenants use, maintenance,
repair, and care of the Property, including , without limitation, cleaning,
trash removal, striping and restriping, and sealing or resurfacing the
parking areas, policing/protection, lawn and landscaping costs, insurance
premiums, wages and fringe benefits of the personnel employed for such
work, costs of equipment purchased and used for such purposes, water and
sewage charges, cost to operate and maintain heating and air conditions
systems, cost of electricity and other utilities.
2.03 Insurance. Tenant shall be named as an additional insured on the insurance
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required to be obtained by Landlord hereunder and shall reimburse Landlord
on a monthly prorata basis for any premium applicable to the Term of this
Lease.
2.04 Taxes. Tenant shall be solely responsible for payment of any and all taxes,
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including without limitation, real property taxes payable in any year
during the term of this Lease, levied or imposed with respect to the
Property (excluding any income taxes payable by Landlord with respect to
the Property) during the Initial Term or any Renewal Term. Such payment by
Tenant shall be in equal monthly installments representing 1/12 of the
taxes and installments of special assessments due and payable in any such
year; provided that, upon Landlord's receipt of the tax statement for any
tax year, Landlord shall send to Tenant a statement for, and Tenant shall
pay, within thirty (30) days of receipt thereof, any amount due for any
monthly periods occurring within such tax year prior to the date the
Landlord receives such tax statement, if such amount exceeds the payments
made by Tenant for such monthly periods.
2.05 Payments Constitute Rent. All Base Rent and other payments provided for in
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this Lease shall constitute rent payable hereunder with the same effect as
if the same were the Base Rent reserved and provided for herein and, in the
event of non-payment by Tenant
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of any such amounts when due according to the terms of this Lease, Landlord
shall have the same rights and remedies in respect thereof as Landlord
shall or may have in respect of the Base Rent herein reserved.
2.06 Payment of Rent. All payments of Base Rent and other payments, required to
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be made to Landlord shall be in lawful money of the United States of
America and shall be paid to Landlord at the address indicated in
Section______________or to such other person or persons and/or at such
other place or places as Landlord may designate from time to time in
writing. Landlord may assign to others revocably or irrevocably, the right
to receive all or part of said Base Rent and other payments, but such
assignee shall not by virtue of such an assignment be or become Landlord
hereunder
2.07 No Offset. Base Rent and other payments required to be made to Landlord
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hereunder shall be paid without setoff or deduction whatsoever. Any claims
not released hereunder which Tenant may have against Landlord may be
pursued only in an independent action against the Landlord.
ARTICLE III
Use
3.01 Use. Absent the Landlord's prior written consent to an alternative use, the
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Property shall be used and occupied by Tenant solely for the purpose of
conducting and operating a general manufacturing business, and uses
reasonably incident thereto. Regardless of the nature of Tenant's specific
use of the Property, the Property shall at all times be used and occupied
in compliance with all laws, ordinances and governmental regulations
applicable to Tenant's use and occupancy. The Property shall not be used in
such manner that, in accordance with any requirement of law or of any
public authority, Landlord shall be obliged on account of the purpose or
manner of said use to make any addition or alteration to or in the
Building. Tenant shall occupy the Property, conduct its business and
control its agents, employees, invitees and visitors in such a way as is
lawful.
ARTICLE IV
Environmental Matters
4.01 Definitions. As used in this Lease the following terms shall have the
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following meanings:
(a) "Claims" shall mean:
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(1) any and all suits, demands, actions, fines, penalties, claims,
enforcement, clean-up, removal, closure plans, contribution or
other actions or proceedings, liens, or other claims by any
Governmental Entity now or at any time from and after the
Commencement Date threatened, instituted or claimed;
(2) any and all claims, liabilities, costs, expenses, damages,
attorneys' fees, experts' fees, costs or expenses arising in
connection with any death or injury to any person or damage to
any property;
(3) any and all personal injury, property damage, nuisance, tort, or
other claims, actions, or demands arising on or after the
Commencement Date brought at any time by any third parties; and
(4) any and all other judgments, claims, losses, damages,
liabilities, deficiencies, injunctions, attorneys fees, experts'
fees, costs or expenses imposed, threatened, paid or incurred at
any time from and after the Commencement Date arising out of
Tenant's use of the Property, whether foreseeable or
unforeseeable, suspected or unsuspected, conditional or
unconditional.
(b) "Environmental Laws" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 U. S. C. Section
9601,et. seq.; the Resource Conservation and Recovery Act, 42 U. S. C.
Section 6901, et. seq.; the Hazardous Materials Transportation Act, 49
U.S. C. 1802, et. seq.; the Toxic Substances Control Act, 15 U. S. C.
Section 2601, et. seq.; the Federal Water Pollution Control Act, 33 U.
S.C. 1251, et. seq.; the Clean Water Act, 33 U. S. C. Section 1321,
et. seq.;the Clean Air Act, 42 U. S. C. Section 7401, et. seq.; the
Minnesota Environmental Response and Liability Act, Minn. Stat.
115B.01, et. seq.; the Minnesota Petroleum Tank Release Cleanup Act,
Minn. Stat.115C. 01, et. seq.; and any other federal, state, county,
municipal, local or other statute, law, ordinance, rule, or regulation
which may relate to or deal with human health or the environment, all
as may be from time to time amended or subsequently enacted.
(c) "Governmental Entity" shall mean any local, state, federal, foreign,
or international governmental authority, agency, or entity, including,
but not limited to, any court, tribunal, or panel.
(d) "Hazardous Substance Activity" shall mean the generation, possession,
transportation, transfer, recycling, storage, use, treatment,
manufacture,
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investigation, removal, remediation, release, exposure of others to,
sale, distribution, or disposal (including, but not limited to,
landfilling, incineration, abandonment, evaporation, or dilution) of
any Hazardous Substance or any product containing a Hazardous
Substance.
(e) "Hazardous Substances" shall mean any material or substance which is
defined or included in the definition of a hazardous or toxic
material, substance or waste, or a pollutant or contaminant, pursuant
to any Environmental Law.
(f) "Remedial Action" shall mean and include the soil and groundwater
contamination clean-up activities currently in progress on the
Property as approved and ordered by the Mississippi Department of
Environmental Quality ("MDEQ"), any modifications or amendments
thereto subsequently approved or ordered by the MDEQ, the United
States Environmental Protection Agency ("EPA"), or any other
governmental authority.
4.02 Compliance With Environmental Laws. Tenant agrees that from and after the
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Commencement Date, Tenant shall conduct all Hazardous Substance Activity in
material compliance with Environmental Laws and shall provide sufficient
personnel and resources to assure that the conduct of its business complies
with all Environmental Laws.
4.03 Reports. At Tenants expense, Tenant will comply with any periodic reporting
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requirements arising after the Commencement Date concerning Hazardous
Substance Activity of the Tenant. If required, Tenant shall file reports on
any such Activities with the appropriate Governmental Entity. If, at any
time during the Term of this Lease, any Governmental Entity should request
a report on any Hazardous Substances Tenant has used, stored or disposed of
on or from the Property, Tenant will either cause said report to be made as
soon as possible at its own cost and expense, or, if not made within thirty
(30) days of Landlord's request for the same, will reimburse Landlord, as
Additional Rent, for Landlord's cost of obtaining said report.
4.04 Permits. Tenant shall obtain, at Tenant's expense, all approvals, whether
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in the form of a license, permit, certification, or other authorization,
required by any Governmental Entity with respect to Hazardous Substance
Activity, maintain all such required approvals for the duration of the
Lease Term, and provide such evidence of such continuing compliance as
required of Tenant and as Landlord may from time to time request. Landlord
shall cooperate with any reasonable request for assistance by Tenant with
respect to any documentation necessary in connection with such permits.
4.05 Removal of Storage Tanks. Upon the request of Landlord, at the expiration
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of this Lease, Tenant shall remove, at Tenant's expense, any tanks for
storage of Hazardous Substances installed by Tenant in compliance with all
Environmental Laws.
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4.06 Entry By Landlord. In the event that, at any time during the Initial Term
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or any Renewal Tenn of this Lease, landlord has reason to believe that a
release of a Hazardous Substance has occurred or is threatened, Landlord
may enter the Property immediately and take whatever action it reasonably
believes is necessary to prevent the threatened release or otherwise comply
with applicable Environmental Laws; provided that, such action/intervention
by Landlord shall not constitute a waiver of Tenant's obligation to use the
Property in compliance with Environmental Laws, indemnify Landlord with
respect to any breach of said obligations, and bear any and all costs and
expenses incurred in connection with such compliance.
4.07 Landlord Right of Access. Tenant agrees to permit Landlord, its employees
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and authorized representatives of the Landlord to enter the Property at
such times and upon reasonable notice as may be reasonably necessary in
connection with the conduct of the Remedial Action.
4.08 Indemnification by Tenant
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(a) Tenant will assume all responsibility for any and all of the following
which occur during the period of Tenant's use, occupancy, or Lease of
the Property (regardless of when discovered): (i) all Hazardous
Substances introduced on the Property by Tenant; and (ii) all
Hazardous Substance Activities conducted by Tenant or occurring on the
Property in connection with Tenant's operation of its business.
(b) Tenant agrees to absolutely indemnify, defend and hold Landlord and
its officers, directors, employees and agents from and against any
actual or threatened Claims which arise from, in connection with, or
as a result of (i) any Hazardous Substance Activity conducted by
Tenant in connection with its operation of its business after the
Commencement Date or (ii) any Hazardous Substance used, stored, or
otherwise introduced on, in or under the Property in connection with
the conduct of its business after the Commencement Date.
4.09 Indemnification by Landlord.
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(a) Landlord will assume all responsibility for (i) all Hazardous
Substances existing on the Property prior to the Commencement Date and
(ii) all Hazardous Substance Activities conducted or occurring on the
Property or in connection with conduct of business by Landlord prior
to the Commencement Date, whether discovered before or after the
Commencement Date.
(b) Landlord will indemnify and hold harmless Tenant from and against any
actual or threatened Claims which arise from, in connection with or as
a result of (i) any Hazardous Substance Activity conducted on the
Property or in connection with its
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conduct of business prior to the Commencement Date or (ii) any
Hazardous Substance used, stored, or otherwise introduced on, in or
under the Property or in connection with the conduct of its business
prior to the Commencement Date. This indemnification obligation shall
not be effective to the extent any Claims are caused by or arise from
any action or failure to act by Tenant after the Commencement Date.
(c) Landlord's liability for indemnity to Tenant under this Lease is
subject to the limitation that any and all Claims for which Tenant
seeks indemnity from Landlord must have been made against Tenant or
Landlord before11:59 p.m. Central Daylight Time on the fifth
anniversary of the Commencement Date or recovery against Landlord for
such Claims shall be forever barred; provided that, this termination
of Landlord's indemnification obligation shall not apply to the extent
Tenant is able to prove that both (i) the Claim arises from
contamination which occurred prior to the Commencement Date by a
Hazardous Substance, and (ii) Tenant has not used the same Hazardous
Substance in its conduct of business after the Commencement Date.
4.10 Operating Costs of Remedial Action. Landlord shall be solely responsible
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for any operating costs, including without limitation, utility costs,
incurred in connection with the conduct of the Remedial Action.
ARTICLE V
Maintenance/Repair/Alterations
5.01 Care of Property.
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(a) General Maintenance. Tenant shall, at all times throughout the Lease
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Term, and at its sole expense, keep and maintain the Property in a
clean, safe and sanitary condition and in compliance with all
Environmental Laws and other laws, codes, ordinances, rules, and
regulations applicable to Tenant's use and occupancy. Tenant shall
make all non-structural repairs to the Building, interior and
exterior, including, but not limited to, repair of all lighting and
plumbing fixtures and equipment, fixtures, motors and machinery,
heating, and air conditioning fixtures, equipment and systems,
parking, sidewalks, and landscaped areas, all interior walls,
partitions thereof, all exterior entrances, windows, doors and docks
and the replacement of all broken glass, signs, all outside
maintenance of the Property, including grounds and parking areas, and
repair and maintenance of the exterior of the Building. All such
repairs by Tenant shall be equal in quality and class to the original
work. Tenant shall keep and maintain all portions of the Property in a
clean and orderly condition.
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(b) Repairs by Landlord. Upon reasonable notice from the Tenant, Landlord
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shall repair, at its expense, the structural portions of the Building;
provided, however, where structural repairs are required to be made by
reason of the acts of Tenant, the costs thereof shall be borne by
Tenant and payable by Tenant to Landlord within thirty days of request
by Landlord.
5.02 Capital Improvements. Landlord shall make all capital improvements and
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replacements to the Building as required by applicable laws, rules,
regulations and statutes on this Lease to maintain the Building suitable
for general occupancy.
5.03 Alterations.
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(a) Tenant shall not make any alteration, additions, or improvements in or
to the Property or add, disturb or in any way change any plumbing or
wiring therein without the prior written consent of the Landlord,
which consent shall not be unreasonably withheld.
(b) As required pursuant to Article V, Tenant shall make any alterations
required in order to obtain or maintain compliance with any
Environmental Laws and in addition shall make any alterations required
by other laws, rules, regulations or statutes arising out of Tenant's
use and occupancy of the Property. Prior to commencement of any such
alterations, Tenant shall obtain Landlord's approval of plans and
specifications therefore and furnish such indemnification as Landlord
may reasonably require against liens, costs, damages and expenses
arising out of such alterations.
(c) Alterations or additions by Tenant must be built in material
compliance with all Environmental Laws and other laws, ordinances and
governmental regulations affecting the Property and Tenant shall
warrant to Landlord that all such afterations, additions, or
improvements shall be in strict compliance with all relevant
Environmental Laws, other laws, ordinances, governmental regulations,
and insurance requirements.
(d) Construction of alterations or additions shall commence only upon
Tenant obtaining and exhibiting to Landlord the requisite approvals,
licenses and permits and indemnification against liens.
(e) All alterations, installations, physical additions or improvements to
the Property made by Tenant shall at once become the property of
Landlord and shall be surrendered to Landlord upon the termination of
this Lease. All movable equipment or furniture owned by Tenant shall
remain the property of Tenant and shall be removed by Tenant at the
end of the term provided that Tenant repairs all
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damage, including without limitation, any structural damage caused by
the removal. Notwithstanding the foregoing, Tenant shall be entitled
to all tax benefits and attributes of any alteration, installation,
physical condition or improvement installed on or about the Property
at Tenants expense, including all depreciation and investment tax
credits applicable thereto. Upon demand, Landlord shall execute any
document reasonably required by Tenant to evidence its ownership of
the same and/or its rights to tax benefits with respect thereto. In
the event that any item of equipment which was located in the Building
as of the commencement date of this Lease is difficult to remove
without causing some damage to the Building, Landlord and Tenant shall
mutually agree on the method of removal and allocation of any cost
incurred in connection with the removal and/or repair of any damage so
caused.
(f) All alterations by Tenant hereunder shall be at Tenants expense.
5.04 Signs. Any sign, lettering, picture or notice of advertisement installed on
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or in any part of the Property and visible from the exterior of the
Property, shall be approved by Landlord and installed by Tenant at Tenant's
expense. In the event of a violation of the foregoing by Tenant, Landlord
may remove the same without any liability and may charge the expense
incurred by such removal to Tenant.
ARTICLE VI
Possession/Quiet Enjoyment
6.01 Possession/Condition of Property. Except as hereinafter provided, Landlord
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shall deliver possession of the Property in the condition required by this
Lease on or before the Commencement Date. As of the Commencement Date the
Building, including any improvements thereto, and all heating and air
conditioning equipment and all plumbing, electrical and other mechanical
facilities which are part of or service the Property are, to the knowledge
of Landlord, in good operating condition and repair and do not require any
material repairs other than routine maintenance. Landlord shall have no
responsibility or liability for loss or damage to fixtures, facilities or
equipment owned by Tenant and abandoned thereon at the expiration of the
Lease.
6.02 Access to Property.
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(a) The Tenant agrees to permit the Landlord, its employees and authorized
representatives of the Landlord, to enter the Property at all times
during usual business hours for the purpose of inspecting and making
any necessary repairs to the Property and performing any work therein
that may be necessary to comply
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with any laws, ordinances, rules, regulations or requirements of any
public authority or of the Board of Fire Underwriters or any similar
body or that the Landlord may deem necessary to prevent waste or
deterioration in connection with the Property.
(b) Nothing herein shall imply any duty upon the part of the Landlord to
do any such work which, under any provision of this Lease, the Tenant
may be required to perform and the performance thereof by the Landlord
shall not constitute a waiver of the Tenant's default in failing to
perform the same. All such repairs shall be conducted with a minimum
of interference to Tenant and its business.
(c) Provided Landlord diligently prosecutes the work, the Landlord may,
during the progress of any work in the Property, keep and store upon
the Property all necessary materials, tools and equipment. Except for
damage caused by the negligence of Landlord or its employees or
agents, Landlord shall not be liable for inconvenience, annoyance,
disturbance, loss of business, or other damage of the Tenant by reason
of making repairs or the performance of any work in the Property, or
on account of bringing materials, supplies and equipment into or
through the Property during the course thereof and the obligations of
the Tenant under this Lease shall not thereby be affected in any
manner whatsoever. Landlord shall at all times comply with all
reasonable security regulations of Tenant and shall not unreasonably
interfere with Tenant's use of the Property. In no event shall
Landlord undertake any work in such a manner as would interrupt the
production of product by Tenant without the prior approval of Tenant.
(d) Landlord's right of access hereunder shall be in addition to
Landlord's right of entry under Section ______.
6.02 Quiet Enjoyment. Landlord warrants that it has full right to execute and to
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perform this Lease and to grant the demised estate, and that Tenant, upon
payment of the rents and other amounts due and the performance of all the
terms, conditions, covenants and agreements on Tenant's part to be observed
and performed under this Lease, may peaceably and quietly enjoy the
Property for the business uses permitted hereunder, subject, nevertheless,
to the terms and conditions of this Lease.
ARTICLE VII
Condemnation
7.01 Condemnation. In the event of any eminent domain or condemnation proceeding
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or private sale in lieu thereof in respect to the Property during the
Initial Term or any Renewal Term, the following provisions shall apply:
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(a) Condemnation of Entire Property. If the whole of the Property shall be
acquired or condemned by eminent domain for any public or quasi-public
use or purpose ("Condemnation"), then the Lease Term shall cease and
terminate as of the date possession shall be taken and all rent
reserved under the Lease shall be apportioned to the date of such
taking and shall be paid up to that date.
(b) Condemnation of Portion of Building.
(1) If any part constituting less than the whole of the Building
shall be Condemned, Tenant shall reasonably determine, within
sixty (60) days after the date of such Condemnation, whether the
Condemnation materially affects the Property so as to render the
Property unsuitable for the business of the Tenant;
(2) If Tenant shall determine that the Property has been rendered
unsuitable for the operation of its business and Landlord does
not agree with such determination, written notice of dispute
shall be given within fifteen (15) days and the dispute shall be
determined by arbitration under Article XIV;
(3) If it is determined either by Tenant (and uncontested by
Landlord) or by arbitration that the Property can no longer
feasibly be used by Tenant, Tenant may terminate this Lease on at
least ten (10) days notice but not more than sixty (60) days
notice from the date of such determination. Tenant shall remove
all of Tenant's property from the Property prior to the effective
date of any such termination of the Lease and rent shall be
apportioned and paid to the effective date of such termination.
(4) In the event of a partial Condemnation of the Building, which
shall not materially affect the Property so as to render the
Property unsuitable for the business of the Tenant. the Lease
shall continue in full force and effect.
7.02 Condemnation Award
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(a) Condemnation Award. In the event of any Condemnation, whether whole or
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partial, the Tenant shall not be entitled to any part of the award
paid for such Condemnation and Landlord is to receive the full amount
of such award, the Tenant hereby expressly waiving any right or claim
to any part thereof.
(b) Tenant's Damages. Although all damages in the event of any
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Condemnation shall belong to the Landlord whether such damages are
awarded as compensation for diminution in value of the leasehold or to
the fee of the Property, Tenant shall
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have the right to claim and recover from the condemnation authority,
but not from Landlord, such compensation as may be separately awarded
or recoverable by Tenant in Tenant's own right on account of any and
all damage to Tenant's business by reason of the Condemnation and for
or on account of any cost or loss to which Tenant might be put in
removing Tenant's merchandise, furniture, fixtures, leasehold
improvements and equipment.
7.03 Temporary Condemnation. In the event of a Condemnation, in whole or part,
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of the Property for a temporary use or occupancy for a period of less than
six months, the Term of the Lease shall not be reduced or affected in any
way, provided that, Tenant shall not be obligated to pay gross rent for
that portion of the Property which Tenant is unable to use, and, except
only to the extent that the Tenant is prevented from doing so by the order
of the condemning authority, Tenant shall continue to perform and observe
all of the other covenants, agreements, terms and provisions of this Lease
as though such temporary taking had not occurred. Any temporary taking of
at least fifty percent of the Property lasting in excess of six months
shall give Tenant the right to terminate the Lease upon thirty days written
notice. In such event, Tenant shall pay rent through the effective date of
such termination of the Lease unless Tenant is required to vacate prior to
such effective date in which case rent shall be apportioned and paid
through the date of vacation.
ARTICLE VIII
Damage or Destruction
8.01 Damage or Destruction. In the event of any damage or destruction to the
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Property by fire or other cause during the term hereof, the following
provisions shall apply:
(a) If the Building is damaged by fire or any other cause which is not to
be insured against by Landlord pursuant to Section 10.01, to such
extent that the cost of restoration, as reasonably estimated by
Landlord, will equal or exceed thirty percent (30%) of the replacement
value of the Building (exclusive of foundations) just prior to the
occurrence of the damage, then Landlord may, no later than the
sixtieth (60th) day following the damage, give Tenant written notice
of Landlord's election to terminate this Lease.
(b) If the cost of restoration as reasonably estimated by Landlord will
equal or exceed fifty percent (50%) of said replacement value of the
Building and if the Property are not suitable as a result of said
damage for the purposes for which they are used hereunder, in the
reasonable opinion of Tenant, then Tenant may, no later than the
sixtieth (60th) day following the damage, give Landlord a written
notice of election to terminate this Lease.
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(c) If the cost of restoration as estimated by Landlord shall amount to
less than thirty percent (30%) of said replacement value of the
Building, or if, despite the cost, Landlord does not elect to
terminate this Lease, Landlord shall restore the Building and the
Property with reasonable promptness, subject to delays beyond
Landlord's control and reasonable delays in the making of insurance
adjustments by Landlord; and Tenant shall have no right to terminate
this Lease except as otherwise provided in this Section 9.01. Landlord
shall not be responsible for restoring or repairing leasehold
improvements of the Tenant.
(d) Notwithstanding any other provision of this Section 9.01, in the event
that, as a result of any damage or destruction to the Property, Tenant
is unable to conduct its business from the Property for a period of
more than ninety days, Tenant may elect to terminate this Lease.
Tenant shall be required to provide Landlord with thirty days written
notice of exercise of such election hereunder.
(e) In the event of any election to terminate, this Lease shall be deemed
to terminate on the date of the damage and all rentals shall be paid
up to that date, provided that, in the event of an election by Tenant
under Section 9.01(d), if the destruction was wholly or partially
caused by the negligence or breach of the terms of this Lease by
Tenant, its employees, contractors or licensees, then rent shall be
paid through the effective date of the notice of election by Tenant.
Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
(f) any case where damage to the Building shall materially affect the
Property so as to render them unsuitable in whole or in part for the
purposes for which they are demised hereunder, then, unless such
destruction was wholly or partially caused by the negligence or breach
of the terms of this Lease by Tenant, its employees, contractors or
licensees, a portion of the rent in an amount based upon the extent to
which the Property are rendered unsuitable shall be abated until
repaired or restored. If the destruction or damage was wholly or
partially caused by the negligence or breach of the terms of this
Lease by Tenant as aforesaid and if Landlord shall elect to rebuild,
the rent shall not xxxxx and the Tenant shall remain liable for the
same. However, should Landlord receive rent through insurance, then,
notwithstanding the foregoing, Tenant's rent shall xxxxx or be
refunded, to the extent of insurance proceeds received by Landlord.
ARTICLE IX
Insurance
9.01 Landlord's Insurance. Landlord shall at all times during the term of this
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Lease, at its
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expense, maintain a policy or policies of insurance with premiums paid in
advance, issued by an insuring company licensed to do business in the State
of Mississippi, insuring the Building against loss or damage by fire,
explosion or other insurable hazards and contingencies for the full
replacement value and insuring Landlord against loss of rents on account of
such perils for a period of six (6) months, provided that Landlord shall
not be obligated to insure any furniture, equipment, machinery, goods or
supplies not covered by this Lease which Tenant may bring upon the Property
or any additional improvements which Tenant may construct or install on the
Property. Such policy or policies shall provide that thirty (30) days
written notice must be given to Tenant prior to the cancellation thereof.
Landlord shall furnish evidence satisfactory to Tenant upon the
Commencement Date that such coverage is in full force and effect.
9.02 Tenant's Insurance. Tenant agrees to purchase, in advance, and to carry in
------------------
full force and effect for the duration of the Lease Term, the following
insurance:
(1) "All risk" property insurance covering the full replacement value of
all of Tenant's leasehold improvements, trade fixtures, inventory and
personal property within the Property.
(2) Comprehensive general public liability insurance covering all acts of
Tenant, its employees, agents, representatives and guests on or about
the Property, containing a contractual liability endorsement, in a
combined single limit amount of not less than One Million Dollars
($1,000,000) and written on an "occurrence" basis.
(3) a policy or policies of public liability insurance with respect to the
Property and the business of Tenant, on terms and with companies
approved in writing by Landlord in which both Tenant and Landlord
shall be covered by being named as insured parties under reasonable
limits of liability not less than: One Million Dollars ($1,000,000)
for injury or death to any one person; Three Million Dollars
($3,000,000) for injury or death to more than one person; and Five
Hundred Thousand Dollars ($500,000) with respect to damage to
property. Such policy or policies shall provide that thirty (30) days
written notice must be given to Landlord prior to cancellation
thereof. Tenant shall furnish evidence satisfactory to Landlord at the
time this Lease is executed that such coverage is in full force and
effect.
(4) a policy of "business interruption" insurance in an amount reasonably
sufficient determined on the basis of Tenant's business activities.
9.03 Tenant Changes Affecting Insurance. In the event that the use of the
----------------------------------
Property by Tenant increases the premium rate for insurance carried by
Landlord or on the improvements of which the Property are a part, Tenant
shall pay Landlord, upon demand,
-15-
the amount of such premium increase. If Tenant installs any electrical
equipment that overloads the power lines to the Building or its wiring,
Tenant shall, at its own expense, make whatever changes are necessary to
comply with the requirements of the insurance underwriter, insurance
rating bureau and governmental authorities having jurisdiction.
9.04 Waiver of Claims and Subrogation. Notwithstanding any other provision in
--------------------------------
this Lease to the contrary, Landlord and Tenant hereby release one another
from any and all liability or responsibility (to the other or anyone
claiming through or under them by way of subrogation or otherwise) for any
loss or damage covered by casualty insurance or coverable by the insurance
required by this Article X, even if such loss or damage shall have been
caused by the fault or negligence of the other party, or anyone for whom
such party may be responsible.
ARTICLE X
Exculpation and Indemnity
10.01 Non-Liability. Landlord shall not be liable for any damage to property of
-------------
Tenant or of others located on the Property, nor for the loss of or damage
to any property of Tenant or of others by theft or otherwise, unless
caused by negligence of Landlord, its employees or agents. Landlord shall
not be liable for any injury or damage to persons or property resulting
from fire, explosion, failing plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of the Property or from the pipes,
appliances, or plumbing works or from the roof, street or subsurface or
from any other place or by dampness or by any other cause of whatsoever
nature, other than the negligence of Landlord, or its agents or employees,
or the breach by Landlord of its obligations hereunder, or the intentional
acts or misconduct of Landlord. Landlord shall not be liable for any
damage caused by the public, other tenants or persons in the Building, or
occupants of adjacent property or the Building or caused by operations in
construction of any private, public or quasi-public work. Landlord shall
not be liable for any latent defect in the Property. All property of
Tenant kept or stored on the Property shall be so kept or stored at the
risk of Tenant only and Tenant shall hold Landlord harmless from any
claims arising out of damage to the same, including subrogation claims by
Tenant's insurance carrier.
10.02 Indemnity by Tenant. Except as otherwise provided in Section 4.09, unless
-------------------
the liability is caused by the negligence of Landlord, its agents or
employees, or a breach by Landlord of its obligations hereunder, Tenant
shall indemnify, defiend and hold harmless Landlord, its officers,
directors, contractors, agents and employees from any and all liability,
claims, suits, demands, damages, judgments, costs, fines, penalties,
interest and expenses (including, but not limited to, attorneys fees and
disbursements incurred in any proceeding) which may be imposed upon or
incurred or paid by or asserted against the Landlord, the Property, or any
interest therein by reason of or in connection with any of
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the following occurring during the Term of this Lease:
(a) any accident, injury, death or damage to any person or property in or
upon the Property and the Property, including the person and property
of Tenant and its employees and all persons in the Building at its or
their invitation or sufferance; or
(b) any negligent or tortious act on the part of Tenant or any of its
agents, contractors, servants, employees, licensees or invitees; or
(c) the use, non-use, possession, occupation, condition, operation,
maintenance or management of the Property; or
(d) any failure on the part of Tenant to perform or comply with any of the
covenants, agreement, terms, provisions, conditions or limitation
contained in this Lease on its part to be performed or complied with.
Tenant's obligation of indemnity hereunder shall be in addition to Tenant's
indemnification obligation with respect to environmental matters as set forth in
Article IV of this Lease.
ARTICLE XI
Default of Tenant
11.01 Events of Default. Each of the following events shall constitute a
-----------------
default:
(a) failure of Tenant to pay any rental due hereunder within ten (10) days
after the same shall be due; or
(b) any failure to perform any other of the terms, conditions or covenants
of this Lease to be observed or performed by Tenant for more than
thirty (30) days after written notice of such failure has been given
to Tenant or such longer time after written notice as is reasonably
required to cure the default with due diligence; or
(c) Tenant or any agent of Tenant shall become bankrupt or insolvent, or
file any debtor proceedings or any person shall take or have against
Tenant in any court pursuant to any statute either of the United
States or of any state a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all
or a portion of Tenants property and the proceedings are not released
within sixty (60) days; or
(d) if Tenant makes an assignment for the benefit of creditors.
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11.02 Remedies. Upon the occurrence of a default as defined in Section 11.01,
--------
Landlord, may, in addition to other rights or remedies it may have, elect
either:
(a) to cancel and terminate this Lease, and this Lease shall not be
treated as an asset of Tenant's bankruptcy estate, and such
termination will not release Tenant from liability for all amounts
as provided in Section 12.04; or
(b) to terminate Tenant's right to possession only without canceling,
terminating or releasing Tenants continued liability as set forth in
Section 11.03.
Notwithstanding the fact that initially Landlord elects under Section 11.02(b)
to terminate Tenant's right to possession only, Landlord shall have the
continuing right to cancel and terminate this Lease by giving three (3) days
written notice to Tenant of such further election, and shall have the right to
pursue any remedy at law or in equity that may be available to Landlord.
11.03 Landlord Rights on Termination of Possession. Upon the occurrence of an
--------------------------------------------
Event of Default and in the event of an election to terminate Tenant's
right to possession only:
(a) Landlord shall have the immediate right of re-entry and may, at its
option, remove all persons and property from the Property and such
property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of the Tenant, all
without service of notice to resort to legal process and without
being guilty of trespass, or becoming liable for any loss or damage
which may be occasioned thereby.
(b) Should Landlord elect to re-enter the Property, as herein provided,
or should it take possession of the Property pursuant to legal
proceedings or pursuant to any notice provided for by law, it may
from time to time, without terminating this Lease:
(1) make such alterations and repairs as may be necessary in order
to relet the Property: and
(2) relet the Property or any part thereof for such term or terms
(which may be for a term extending beyond the Lease term) and
at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem
advisable; provided that, in no event and under no
circumstances shall Landlord be obligated or required to relet
the Property.
(c) Upon each subletting all rentals received by the Landlord from such
reletting shall be applied first to the payment of any indebtedness
other than rent due hereunder
-18-
from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including brokerage fees and attomey's
fees and of costs of such alterations and repairs; third, to the
payment of residue and unpaid rent hereunder and the rent due, if
any, shall be held by Landlord and applied in payment of future rent
as the same may become due and payable hereunder until termination
of the Lease term, at which time any residue shall be paid to
Tenant. If such rentals received from such reletting during any
month are less than that to be paid during any month by Tenant
hereunder, Tenant, upon demand, shall pay any such deficiency to
Landlord.
(d) No such re-entry or taking possession of the Property by Landlord
shall be construed as an election on its part to terminate this
Lease unless a written notice of such intention be given to Tenant
or unless the termination thereof be decreed by a court of competent
jurisdiction.
(e) Whether or not Landlord re-enters the Property, upon the election by
Landlord to terminate Tenant's right to possession, Tenant shall be
liable to Landlord as follows:
(1) for all attorneys fees incurred by Landlord by reason of
Tenant's default or in connection with exercising any remedy
hereunder;
(2) for the unpaid installments of Base Rent or other unpaid sums
which were due prior to such termination of right to
possession, including interest, which sums shall be payable
immediately;
(3) for the installments of Base Rent or other sums failing due
pursuant to the provisions of this Lease for the periods after
termination of Tenant's right to possession during which the
Property remain vacant, including interest, which sums shall be
payable as they become due hereunder.
11.04 Termination of Lease. Upon the occurrence of an Event of Default and
--------------------
notwithstanding Landlord's initial election to terminate Tenant's right
to possession only, and notwithstanding any reletting without
termination, Landlord, at any time thereafter, may elect to terminate
this Lease, and to recover from Tenant, and Tenant agrees to pay, in lieu
of the amounts which would thereafter be payable pursuant to Section
11.03, but not in lieu of any amounts accruing prior thereto, as damages
for loss of the bargain and not as a penalty, the following amounts:
(a) the worth at the time of such termination, of the excess, if any, of
the amount of rent and charges equivalent to rent reserved in this
Lease for the remainder of the stated term over the then reasonable
rental value of the Property for the remainder
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of the stated term, all of which amounts shall be immediately due
and payable from Tenant to Landlord;
(b) all expenses incurred by Landlord as a result of Tenant's default,
including, without limitation, leasing commissions, attorneys fees,
all expenses of alteration, repairs and redecorating;
(c) all other incidental and consequential damages incurred or suffered
by Landlord directly or indirectly as a result of Tenant's default.
11.05 Landlord's Option to Cure. Landlord may, at its option, instead of
-------------------------
exercising any of the rights or remedies available to it in this Lease or
otherwise by law, statute or equity, upon ten (10) days prior written
notice to Tenant, unless such delay may result in injury to person or
property, and in such case, upon such notice as is practicable, spend
such money as is reasonably necessary to cure any default of Tenant
herein and the amount so spent, and costs incurred, including attorney's
fees in curing such default, shall be paid by Tenant, as additional rent,
upon demand.
11.06 Waiver of Demand for Possession. Tenant also waives any demand for
-------------------------------
possession of the Property and any demand for payment of rent and notice
of intent to re-enter the Property, or of intent to terminate this Lease,
other than the notices above provided in this Article, and waives any and
every other notice or demand prescribed by any applicable statutes or
laws.
11.07 Remedies Cumulative. No remedy herein or elsewhere in this Lease or
-------------------
otherwise by law, statute, or equity conferred upon or reserved to
Landlord or Tenant shall be exclusive of any other remedy, but shall be
cumulative, and may be exercised from time to time and as often as the
occasion may arise.
ARTICLE XII
Assignment/Subletting
12.01 Assignment or Subletting. Tenant agrees not to transfer or assign this
------------------------
Lease or sublet said Property, or any part thereof, whether by voluntary
act, operation of law, or otherwise, without obtaining the prior consent
of Landlord in each instance. Notwithstanding the foregoing, Tenant may,
without the consent of Landlord, assign its rights and obligations
hereunder to any corporation or entity with which or into which Tenant
may merge or consolidate. Tenant shall seek any required consent of
Landlord by a written request therefore, setting forth such information
as Landlord may reasonably
-20-
deem necessary. Consent by Landlord to any assignment of this Lease or to
any subletting of the Property shall not be a waiver of Landlord's right
under this paragraph as to any subsequent assignment or subletting.
Landlord's rights to assign this Lease are and shall remain unqualified.
No such assignment or subleasing shall relieve the Tenant from any of
Tenant's obligations contained in this Lease, nor shall any assignment of
this Lease be effective unless the assignee, subtenant or transferee
shall at the time of such assignment, sublease or transfer, assume in
writing for the benefit of Landlord, its successors or assigns, all of
the terms, covenants and conditions of this Lease thereafter to be
performed by Tenant and shall agree in writing to be bound thereby.
12.02 Attornment. In the event of a sale or assignment of Landlord's interest
----------
in the Property, the Building or this Lease, or if the Property come into
custody or possession of a mortgagee or any other party whether because
of a mortgage foreclosure, or otherwise, Tenant shall attorn to such
assignee or other party and recognize such party as Landlord hereunder;
provided, however, Tenant's peaceable possession will not be disturbed so
long as Tenant faithfully performs its obligations under this Lease.
Tenant shall execute, on demand, any attornment agreement required by any
such party to be executed, containing such provisions and such other
provisions as such party may reasonably require.
12.03 Subordination. At the request of any mortgagee or ground Landlord, this
-------------
Lease will be subject to any mortgage or ground lease which may now or
hereafter encumber the Property, and Tenant will execute, acknowledge and
deliver to the Landlord any document requested by Landlord to evidence
the subordination. Tenants obligation of subordination hereunder shall be
conditioned on acknowledgment by any applicable party of Tenant's right
of possession and quiet enjoyment of the Property so long as Tenant is
not in default under any of the provisions of this Lease.
ARTICLE XIII
Surrender of Property, Ownership of Improvement
13.01 Surrender. Upon the expiration or within thirty (30) days following any
---------
other termination of this Lease, Tenant shall peaceably quit and
surrender the Property broom-clean in good order, condition and repair,
reasonable wear and tear and casualty damage excepted. On or before the
expiration or within thirty (30) days following any other termination of
this Lease, Tenant shall, at its expense, remove all trade fixtures, all
alterations, additions and improvements belonging to Tenant, all personal
property, all equipment and all signs from the Property and any property
not so removed shall be deemed to have been abandoned. Any damage caused
in the removal of such items shall be repaired by Tenant at its expense.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the Lease Term.
-21-
Notwithstanding the foregoing, in the event that any item of equipment
which was located in the Building as of the commencement date of this
Lease is difficult to remove without causing some damage to the Building,
Landlord and Tenant shall mutually agree on the method of removal and
allocation of any cost incurred in connection with the removal and/or
repair of any damage so caused.
13.02 Title to Property.
-----------------
(a) Landlord. Title to the Building and all alterations, additions,
--------
improvements and fixtures installed by Landlord at its expense or
which cannot be removed without structural injury to the Property
and all floor covering shall remain upon and be surrendered with the
Property as a part thereof, without disturbance, molestation or
injury (other than reasonable wear and tear and casualty damage),
and without charge, at the expiration or termination of this Lease.
(b) Tenant. Tenant shall retain title to any and all equipment,
------
machinery, fixtures and other personal property installed or used in
the Building.
13.03 Delay in Surrender. If the Property are not surrendered on the Expiration
------------------
Date or within thirty (30) days following termination thereof upon a day
other than the Expiration Date, Tenant shall indemnify Landlord against
loss or liability, claims, without limitation, made by any succeeding
Tenant founded on such delay. Tenant shall promptly surrender all keys
for the Property to Landlord at the place then fixed for payment of rent
and shall inform Landlord of combinations of any locks and safes on the
Property.
13.04 Holding Over. In the event Tenant remains in possession of the Property
------------
after the expiration of this Lease and without the execution of a new
Lease and Landlord accepts payment of rent, it shall be deemed to be
occupying said Property as a Tenant from month-to-month, subject to all
the conditions, provisions and obligations of this Lease insofar as the
same can be applicable to a month-to-month tenancy, provided, however,
that the Base Rent required to be paid by Tenant during any holdover
period shall be in an amount equal to 200% of the then current Base Rent.
ARTICLE XIV
Arbitration
14.01 Dispute Resolution. Whenever in this Lease it is provided that a dispute
------------------
shall be determined in arbitration, the arbitration shall be conducted as
provided in this Article.
-22-
14.02 Procedure.
---------
(a) The party desiring arbitration shall give written notice to that
effect to the other, specifying the dispute to be arbitrated and the
name and address of the person designated to act as the arbitrator
on its behalf. Each party may appoint as its arbitrator its own
attorney, accountant, employee or officer or any individual
permitted or authorized to act as such an arbitrator under the rules
of the American Arbitration Association.
(b) Within ten (10) days after said notice is given, the other party
shall give written notice to the first party, specifying the name
and address of the person designated to act as arbitrator on its
behalf.
(c) If the second party fails to notify the first party of the
appointment of its arbitrator by the time above specified, then a
joint arbitrator shall be appointed in accordance with the
provisions of clause (e) of this Section 14.02.
(d) The respective arbitrators so chosen shall meet within ten (10) days
after the second arbitrator is appointed and within thirty (30) days
thereafter shall decide the dispute. If within said period then
cannot agree upon their decision, they shall appoint a third
arbitrator, and if they cannot agree upon said appointment, the
third arbitrator shall be appointed in accordance with the
provisions of clause (e) of this Section 15.02.
(e) If required, a joint arbitrator or a third arbitrator shall be
appointed upon the application of either party, by the American
Arbitration Association in the City of Minneapolis, Minnesota; In
the event a joint arbitrator is required, the party failing to
select and notify the other party of its designated arbitrator in a
timely manner shall bear the cost of the joint arbitration. In any
other case, the parties shall share the cost of the arbitrating
equally.
(f) The joint arbitrator or the three arbitrators as the case may be,
shall meet and decide the dispute by written decision. In the latter
case, if two of the arbitrators shall be unable to concur, the
parties shall appoint new arbitrators and a new arbitration shall be
conducted;
(g) A decision of the joint arbitrator or in which two of the three
arbitrators concur shall be binding and conclusive upon the parties;
(h) In appointing arbitrators and in deciding the dispute, the
arbitrators shall act in accordance with the rules then in force of
the American Arbitration Association, subject, however, to such
limitations as may be placed upon them by the
-23-
provisions of this Lease.
14.03 Determination Binding. Any determination rendered in accordance with the
---------------------
provisions of this Article shall be controlling and decisive of any
dispute thereafter arising under this Lease if, and to the extent that,
the same issues of fact and law are involved, and judgment upon the
determination may be entered in any court having jurisdiction thereof.
14.04 Rent Pending Arbitration. Pending the determination of the arbitrators,
------------------------
Tenant shall pay the Base Rent and other payments provided for in this
Lease whether or not Tenants obligation to make such payments or the
amount thereof are the subject of the pending arbitration.
14.05 Arbitration Obligation. The obligation of Landlord and Tenant to submit a
----------------------
dispute to arbitration is limited to disputes arising under those
Articles of this Lease which specifically provide for arbitration.
ARTICLE XV
Miscellaneous
15.01 Consents by Landlord. Whenever provision is made under this Lease for
--------------------
Tenant securing the consent or approval by Landlord, such consent or
approval shall only be in writing, and shall not be unreasonably withheld
or delayed.
15.02 Recording. Tenant shall not record this Lease without the written consent
---------
of Landlord. Tenant and Landlord shall join in the execution of a
Memorandum Lease for the purposes of recordation in the form attached
hereto as Exhibit Said Memorandum lease shall not be construed to limit
Landlord's right to file this Lease.
15.03 Overdue Payments. All monies due under this Lease from Tenant to Landlord
----------------
shall be due on demand, unless otherwise specified, and if not paid
within five (5) days following written notice shall bear interest from
the original due date computed at an annual rate equal to the reference
rate or prime rate quoted by the Wall Street Journal, adjusted weekly as
of the first business day of each week with respect to which interest is
being computed, plus one and one-half percent (1 1/2%), until paid.
15.04 Intent of Parties. Except as otherwise provided herein, the parties
-----------------
covenant and agree that if a party, within any grace period allowed
herein, shall at any time fail to pay any cost or expense, or fail to
take out, pay for, maintain or deliver any of the insurance policies
above required, or fail to make any other payment or perform any other
act on its part to be made or performed as in this Lease provided, then
the other party may, after ten (10) days prior written notice, unless
such delay may result in injury to person or
-24-
property, and then upon such notice as is practicable, but shall not be
obligated to, and without waiving or releasing the other party from any
obligations on its part to be performed under this Lease, pay any such
cost or expense, effect any such insurance coverage and pay premiums
therefore and may make such payment or perform such act to be made and
performed as in this Lease provided, in such manner and to such extent as
the curing party may deem desirable, and in exercising any such right, to
also pay all necessary and incidental costs and expenses, employ counsel
and incur and pay reasonable attorney's fees. All sums so paid by the
curing party and all necessary and incidental costs and expenses in
connection with the performance of any such act by the curing party,
together with interest thereon computed at an annual rate equal to the
reference rate or prime rate quoted by the Wall Street Journal, adjusted
weekly as of the first business day of each week with respect to which
interest is being computed until paid plus one and one-half percent (1
1/2%) from the date of making of such expenditure, shall be deemed
Additional Rent hereunder, and shall be payable to the curing party on
demand. The defaulting party covenants to pay any such sum or sums with
interest as aforesaid and, in the event of a cure by Landlord, the
Landlord shall have the same rights and remedies in the event of the non-
payment thereof by Tenant as in the case of default by Tenant in the
payment of the Base Rent payable under this Lease.
15.05 No Implied Waiver. No waiver of any default of a party hereunder shall be
-----------------
implied from any omission by the other party to take any action on
account of such default if such default persists or is repeated, and no
express waiver shall affect any default other than the default specified
in the express waiver and that only for the time and to the extent
therein stated. One or more waivers shall not be construed as a waiver of
a subsequent breach of the same covenant, term or condition. The consent
to or approval of any act requiring consent or approval shall not waive
or render unnecessary the consent to or approval of any subsequent
similar act.
15.06 No Deemed Eviction. No action required or permitted to be taken by or on
------------------
behalf of Landlord under the terms or provisions of this Lease shall be
deemed to constitute an eviction or disturbance of Tenant's possession of
the Property.
15.07 Landlord Right of Entry. Landlord, shall, provided it shall have given
-----------------------
Tenant notice hereof and is accompanied by a representative of Tenant,
have the right to enter upon the Property, or any part thereof, for the
purpose of ascertaining their condition, exhibiting them for the purpose
of sale or lease or determining whether Tenant is observing and
performing the obligations assumed by it under this Lease, all without
hindrance or molestation from Tenant. Landlord's right of entry shall be
exercisable at reasonable times, at reasonable hours, on reasonable
notice, and in a reasonable manner which does not unreasonably interfere
with Tenant's operations or disclose Tenants trade secrets, and always in
compliance with and in accordance with Tenant's security requirements and
clearances and Governmental security requirements and clearances. Nothing
contained
-25-
herein, however, shall impose or imply any duty on the part of Landlord
to make any such repairs or perform any such work. Any confidential
information obtained by Landlord with respect to Tenant's business
operation shall be kept confidential by Landlord.
ARTICLE XVI
General Provisions
16.01 Severability. If any term, covenant or condition of this Lease or the
------------
application thereof to any person or circumstance shall, to any extent,
by invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
16.02 Entire Agreement. This Lease (including the Exhibits hereto) constitutes
----------------
the entire agreement of the parties with respect to the subject matter
hereof and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations between the parties with
respect to the subject matter hereof.
16.03 Governing Law. This Lease is governed by and is to be construed and
-------------
interpreted in accordance with the laws of the State of Mississippi,
without giving effect to the conflict of law principles thereof.
16.04 Modifications or Amendments. No subsequent alteration, amendment, change
---------------------------
or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and executed in the same form and manner in which this
Lease is executed.
16.05 Captions. The captions are inserted only as a matter of convenience and
--------
for reference, and in no way define, limit or describe the scope of this
Lease nor the intent or any provision thereof.
16.06 Notices. All notices given pursuant to this Lease shall be in writing and
-------
be personally delivered or mailed with postage prepaid, by registered or
certified mail, return receipt requested, to the address set forth below
or such other address as party may from time to time specify in writing
to the other party. If so mailed and also sent by telegram or facsimile
machine, the notice will conclusively be deemed to have been received on
the business day next occurring 24 hours after the latest to occur of
such mailing and telegraphic or facsimile communication; otherwise, no
notice shall be deemed given until it actually arrives at the address in
question. The addresses to which notice are initially to be sent are as
follows:
-26-
(a) If to Landlord:
Potter Production Corporation
Xxxxx 0000000 X. 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No: (000) 000-0000(b)
(b) If to Tenant:
Xxxx X. Xxxxxxx
Vice President and Chief Financial Officer
Spectrum Controls Inc.
0000 Xxxx Xxxxx Xxxx
Xxxx, XX 00000
16.07 Successors and Assigns. The terms, covenants and conditions hereof shall
----------------------
be binding upon and inure to the permitted successors and assigns of the
parties hereto.
IN WITNESS WHEREOF, Landlord and Tenant have caused these presents to be
executed in form and manner sufficient to bind them at law, as of the day and
year first above written.
LANDLORD: TENANT:
POTTER PRODUCTION CORPORATION SPECTRUM CONTROL, INC.
/s/ Chief Executive Officer /s/ Xxxx X. Xxxxxxx
By _________________________________ By ________________________________
Its ________________________________ Its _______________________________
