INDUSTRIAL NET LEASE
between
FIRST INDUSTRIAL, L.P.,
a Delaware limited partnership
(Landlord)
and
VARTECH SYSTEMS, INC.
(Tenant)
TABLE OF CONTENTS
INDUSTRIAL LEASE
Article Title Page
1 Definition 1
2 Premises 2
3 Term 2
4 Rental; Adjustments 2
5 Security Deposit 4
6 Use of Premises 4
7 Utilities and Services 5
8 Maintenance and Repairs 6
9 Alterations, Additions and Improvements 7
10 Indemnification and Insurance 7
11 Damage or Destruction 9
12 Condemnation 9
13 Relocation 9
14 Assignment and Subletting 10
15 Default and Remedies 11
16 Attorneys' Fees; Costs of Suit 12
17 Subordination and Attornment 12
18 Quiet Enjoyment 13
19 Parking 13
20 Rules and Regulations 13
21 Estoppel Certificates 13
22 Entry by Landlord 13
23 Landlord's Lease Undertakings-Exculpation
from Personal Liability; Transfer of Landlord's
Interest 14
24 Holdover Tenancy 14
25 Notices 14
26 Brokers 14
27 Miscellaneous 14
28 Floor Load Limits 16
29 Uniform Commercial Code 16
30 Counterparts; Facsimile Signatures 16
EXHIBITS
Exhibit A Floor Plan of the Premises A-1
Exhibit B Work Letter Agreement B-1
Exhibit C Suite Acceptance Letter C-1
Exhibit D Tenant Operations Inquiry D-1
Schedule 1 List of Permissible Hazardous Materials and
to Exhibit D Quantities for Tenant D-5
Exhibit E List of Additional Insureds E-1
Exhibit F Rules and Regulations F-1
Exhibit G Guaranty G-1
INDUSTRIAL LEASE
[FORM NET LEASE/MULTI-TENANT]
THIS LEASE ("Lease"), dated October 7, 1999, is made and entered into by and
between First Industrial, L.P., a Delaware limited partnership ("Landlord")
and Vartech Systems, Inc. ("Tenant") upon the following terms and conditions:
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the following terms shall
have the meanings specified herein:
1.01 Building. The term "Building" shall mean that certain office/warehouse
building located at 11301 Industriplex Boulevard, Baton Rouge, Louisiana 70809
together with all related site land, improvements, parking facilities, common
areas, driveways, sidewalks and landscaping.
1.02 Premises. The term "Premises" shall mean Space No. 4 in the Building,
as more particularly outlined on the drawing attached hereto as Exhibit A and
incorporated herein by reference.
1.03 Rentable Area of the Premises. The term " Rentable Area of the Premises"
shall mean 15,746 square feet, which Landlord and Tenant have stipulated as the
Rentable Area of the Premises.
1.04 Lease Term. The terms "Lease Term" or "Term" shall mean the period
between the Commencement Date and the Expiration Date (as such terms are
hereinafter defined), unless sooner terminated or renewed as otherwise provided
in this Lease.
1.05 Commencement Date. Subject to adjustment as provided in Article 3, the
term "Commencement Date" shall mean December 1, 1999.
1.06 Expiration Date. Subject to adjustment as provided in Article 3, the
term "Expiration Date" shall mean November 30, 2004.
1.07 Base Rent. Subject to adjustment as provided in Article 4, the term
"Base Rent" shall mean Ten Thousand One Hundred Sixty-nine and 29/100 Dollars
($10,169.29) per month for the period beginning December 1, 1999 through
April 30, 2001, Ten Thousand Four Hundred Ninety-seven and 33/100 Dollars
($10,497.33) per month for the period beginning May 1, 2001 through August 30,
2002 and Ten Thousand Six Hundred Ninety-four and 16/100 Dollars ($10,694.16)
per month thereafter.
1.08 Tenant's Percentage Share. The term "Tenant's Percentage Share" shall
mean forty one and 01/100 percent (41.01%) with respect to Operating Expenses
(as hereinafter defined), mean forty one and 01/100 percent (41.01%) with
respect to Property Taxes (as hereinafter defined), mean forty one and 01/100
percent (41.01%) with respect to Insurance Expenses (as hereinafter defined)
and mean forty one and 01/100 percent (41.01%) with respect to Tenant's law
compliance obligations under Section 6.02(C) of this Lease and for all other
purposes under this Lease.
1.10 Tenant's Permitted Use. The term "Tenant's Permitted Use" shall mean
general office and warehouse for storage, distribution and service of computer
and electronics equipment and no other use.
1.11 Landlord's Address For Notices. The term "Landlord's Address for
Notices" shall mean First Industrial Development Services, a Delaware limited
partnership, 311 South Wacker Drive, Suite 4000, Chicago, Illinois 60606, Attn:
Vice President - Portfolio Management, with a copy to: Barack, Ferrazzano,
Kirschbaum & Perlman, 333 West Wacker Drive, Suite 2700, Chicago, Illinois
60606, Attn: Howard Nagelberg and Suzanne Bessette-Smith, with a copy to: 150
James Drive East, Suite 140, St. Rose, Louisiana 70087, Attn: Property Manager.
1.12 Tenant's Address For Notices. The term "Tenant's Address for Notices"
shall mean 11031 Industriplex Boulevard, Suite 4, Baton Rouge, Louisiana 70809.
1.13 Address for Rental Payments. First Industrial, L.P., P.O. Box 730640,
Dallas, Texas 75373-0640. For courier address (overnight deliveries) First
Chicago National Processing Corp., 1801 Royal Lane, Suite 600, Dallas, Texas
75229, Attn: First Industrial, L.P., Box 730640.
1.14 Brokers. The term "Brokers" shall mean Sealy & Falgoust Real Estate,
L.L.C..
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ARTICLE II- PREMISES
2.01 Lease of Premises. Landlord hereby leases the Premises to Tenant, and
Tenant hereby leases the Premises from Landlord, upon all of the terms,
covenants and conditions contained in this Lease. On the Commencement Date
described herein, Landlord shall deliver the Premises to Tenant in substantial
conformance with the Work Letter Agreement attached hereto as Exhibit B.
2.02 Acceptance of Premises. Tenant acknowledges that Landlord has not made any
representation or warranty with respect to the condition of the Premises or the
Building or with respect to the suitability or fitness of either for the
conduct of Tenant's Permitted Use or for any other purpose. Prior to Tenant's
taking possession of the Premises, Landlord or its designee and Tenant will
walk the Premises for the purpose of reviewing the condition of the Premises
(and the condition of completion and workmanship of any tenant improvements
which Landlord is required to construct in the Premises pursuant to this
Lease); after such review, Tenant shall execute a Suite Acceptance Letter in
the form and content of Exhibit C, accepting the Premises.
ARTICLE III - TERM
3.01 Except as otherwise provided in this Lease, the Lease Term shall be for
the period described in Section 1.04 of this Lease, commencing on the
Commencement Date described in Section 1.05 of this Lease and ending on the
Expiration Date described in Section 1.06 of this Lease; provided, however,
that, if, for any reason, Landlord is unable to deliver possession of the
Premises on the date described in Section 1.05 of this Lease, Landlord shall
not be liable for any damage caused thereby, nor shall the Lease be void or
voidable, but, rather, the Lease Term shall commence upon, and the
Commencement Date shall be, the date that possession of the Premises is so
tendered to Tenant (except for Tenant-caused delays which shall not be deemed
to delay commencement of the Lease Term), and the Expiration Date described in
Section 1.06 of this Lease shall be extended by an equal number of days,
provided, however, that if the foregoing extension of the Expiration Date
would cause the Expiration Date to occur on a date that is not the last day of
the month, the Expiration Date shall be further extended to the last day of
said month.
ARTICLE IV - RENTAL; ADJUSTMENTS
4.01 Definitions. As used herein,
(A)"Property Taxes" shall mean the aggregate amount of all real estate taxes,
assessments (whether they be general or special), sewer rents and charges,
transit taxes, taxes based upon the receipt of rent and any other federal,
state or local governmental charge, general, special, ordinary or extraordinary
(but not including income or franchise taxes, capital stock, inheritance,
estate, gift, or any other taxes imposed upon or measured by Landlord's gross
income or profits, unless the same shall be imposed in lieu of real estate
taxes or other ad valorem taxes), which Landlord shall pay or become obligated
to pay or would have otherwise been obligated to pay but for any temporary tax
abatement or reduction in connection with the Building, or any part thereof.
Taxes shall include all fees and costs, including attorneys' fees, appraisals
and consultants' fees, incurred by Landlord in seeking to obtain a reduction
of, or a limit on the increase in, any Taxes, regardless of whether any
reduction or limitation is obtained. Taxes for any calendar year shall be Taxes
which are due for payment or are paid during such year. If at any time during
the Lease Term the method of taxation then prevailing shall be altered so that
any new tax, assessment, levy, imposition or charge shall be imposed upon
Landlord in place or partly in place of any such Taxes, or contemplated
increase in any such Taxes, and shall be measured by or be based in whole or in
part upon the Building or the rents or other income from the Building, then all
such new taxes, assessments, levies, impositions or charges (including the
amount that would have been paid or incurred by Landlord but for any temporary
tax abatement or reduction), to the extent that they are so measured or based,
shall be included in Taxes to the extent that such items would be payable if
the Building was the only property of Landlord subject to same and the income
received by Landlord from the Building was the only income of Landlord. Taxes
shall also include any personal property taxes imposed upon the furniture,
fixtures, machinery, equipment, apparatus, systems and appurtenances of
Landlord used in connection with the Building.
(B)"Operating Expenses" shall mean all costs, fees, disbursements and expenses
paid or incurred by or on behalf of Landlord in the operation, ownership,
maintenance, insurance, management, replacement and repair of the Building
(excluding Property Taxes). Operating Expenses shall include an annual reserve
to be used for capital improvements, structural repairs and replacements which
for major items will be calculated each year by dividing the estimated cost of
such items by the estimated useful life of such items.
Operating Expenses shall not include costs of alteration of the premises of
tenants of the Building, depreciation charges, interest and principal payments
on mortgages, ground rental payments, real estate brokerage and leasing
commissions, expenses incurred in enforcing obligations of tenants of the
Building, salaries and other compensation of executive officers of the managing
agent of the Building senior to the Building manager, costs of any special
service provided to any one tenant of the Building but not to tenants of the
Building generally, and costs of marketing or advertising the Building.
(C)"Insurance Expenses" shall mean all costs, fees, disbursements and expenses
paid or incurred by or on behalf of Landlord for premiums for hazard, "all
risk", casualty, rent interruption and liability insurance and all other
insurance, obtained by Landlord in connection with or relating to the Building.
If the Building does not have one hundred percent (100%) occupancy during an
entire calendar year, then the variable cost components of Property Taxes,
Operating Expenses and Insurance Expenses shall be adjusted so that the total
amount of Property Taxes, Operating Expenses and Insurance Expenses equals the
total amount which would have been paid or incurred by Landlord had the
Building been one hundred percent (100%) occupied for the entire calendar year.
4.02 Base Rent. During the Lease Term, Tenant shall pay to Landlord as rental
for the Premises the Base Rent described in Section 1.07 above, subject to the
following adjustments (herein collectively called the "Rent Adjustments"):
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(B)During each calendar year during the Lease Term, the Base Rent payable by
Tenant to Landlord shall be increased by Tenant's Percentage Share of the
Property Taxes for such year (the "Tax Adjustment").
(C)During each calendar year during the Lease Term, the Base Rent payable by
Tenant to Landlord also shall be increased by Tenant's Percentage Share of the
total dollar increase, if any, in Operating Expenses paid or incurred by
Landlord during such year (the "Operating Expense Adjustment").
(D)During each calendar year during the Lease Term, the Base Rent payable by
Tenant to Landlord also shall be increased by Tenant's Percentage Share of the
Insurance Expenses for such year (the "Insurance Adjustment").
(E)The Tax Adjustment, the Operating Expense Adjustment and the Insurance
Adjustment are hereinafter referred to collectively as the "Tax, Operating
Expense and Insurance Adjustments".)
4.03 Adjustment Procedure; Estimates. The Tax, Operating Expense and Insurance
Adjustments specified in Sections 4.02(B), 4.02(C) and 4.02(D) shall be
determined and paid as follows:
(A)During each calendar year during the Lease Term, Landlord shall give Tenant
written notice of Landlord's estimate of amounts payable under Sections
4.02(B), 4.02(C) and 4.02(D) for that calendar year. On or before the first day
of each calendar month during the calendar year, Tenant shall pay to Landlord
one-twelfth (1/12th) of such estimated amounts; provided, however, that, not
more often than quarterly, Landlord may, by written notice to Tenant, revise
its estimate for such year, and subsequent payments by Tenant for such year
shall be based upon such revised estimate.
(B)Within ninety (90) days after the close of each calendar year in which any
Rent Adjustment is made or as soon thereafter as is practicable, Landlord shall
deliver to Tenant a statement of that year's Property Taxes, Operating Expenses
and Insurance Expenses, and the actual Tax, Operating Expense and Insurance
Expense Adjustments to be made pursuant to Sections 4.02(B), 4.02(C) and
4.02(D) for such calendar year, as determined and certified by Landlord (the
"Landlord's Statement") and such Landlord's Statement shall be binding upon
Landlord and Tenant, except as provided in Section 4.04 below. If the amount of
the actual Tax Adjustment, Insurance Adjustment or Operating Expense Adjustment
is more than the estimated payments for the Tax Adjustment, Insurance
Adjustment or Operating Expense Adjustment for such calendar year made by
Tenant, Tenant shall pay the deficiency to Landlord upon receipt of Landlord's
Statement. If the amount of the actual Tax Adjustment, Insurance Adjustment or
Operating Expense Adjustment is less than the estimated payments for such
calendar year made by Tenant, any excess shall be credited against Rent (as
hereinafter defined) next payable by Tenant under this Lease or, if the Lease
Term has expired, any excess thereof shall be paid to Tenant. No delay in
providing the statements described in this Section 4.03(B) shall act as a
waiver of Landlord's right to payment under Sections 4.02(B), 4.02(C) or
4.02(D) above. Notwithstanding the foregoing, Tenant's right to receive any
credit or payment pursuant to the preceding sentences of this Section 4.03(B)
is conditioned on this Lease being in full force and effect and Tenant not
being in default under this Lease on the date such credit or payment is due.
(C)If this Lease shall terminate on a day other than the end of a calendar
year, the amount of the Tax, Operating Expense and Insurance Adjustments to be
paid pursuant to Sections 4.02(B), 4.02(C) and 4.02(D) that is applicable to
the calendar year in which such termination occurs shall be prorated on the
basis of the number of days from January 1 of the calendar year to the
termination date bears to 365. The termination of this Lease shall not affect
the obligations of Landlord and Tenant pursuant to Sections 4.03(B) and 4.03(C)
to be performed after such termination.
4.04 Review of Landlord's Statement. Provided this Lease is in full force and
effect and that Tenant is not then in default under this Lease and provided
further that Tenant strictly complies with the provisions of this Section 4.04,
Tenant shall have the right, once each calendar year, to reasonably review
supporting data for any portion of a Landlord's Statement that Tenant claims is
incorrect, in accordance with the following procedure:
(A)Tenant shall, within ten (10) business days after any such Landlord's
Statement is delivered, deliver a written notice to Landlord specifying the
portions of the Landlord's Statement that are claimed to be incorrect, and
Tenant shall simultaneously pay to Landlord all amounts due from Tenant to
Landlord as specified in the Landlord's Statement. Except as expressly set
forth in subsection (C) below in no event shall Tenant be entitled to withhold,
deduct, or offset any monetary obligation of Tenant to Landlord under the Lease
(including without limitation, Tenant's obligation to make all payments of Base
Rent including the CPI Adjustment and all payments of Tenant's Tax, Operating
Expense and Insurance Adjustments) pending the completion of and regardless of
the results of any review of records under this Section 4.04. The right of
Tenant under this Section 4.04 may only be exercised once for any Landlord's
Statement, and if Tenant fails to meet any of the above conditions as a
prerequisite to the exercise of such right, the right of Tenant under this
Section 4.04 for a particular Landlord's Statement shall be deemed waived.
(B)Tenant acknowledges that Landlord maintains its records for the Building at
Landlord's manager's corporate offices and Tenant agrees that any review of
records under this Section 4.04 shall be at the sole expense of Tenant and
shall be conducted by an independent firm of certified public accountants of
national standing. Tenant acknowledges and agrees that any records reviewed
under this Section 4.04 constitute confidential information of Landlord, which
shall not be disclosed to anyone other than the accountants performing the
review and the principals of Tenant who receive the results of the review. The
disclosure of such information to any other person, whether or not caused by
the conduct of Tenant, shall constitute a material breach of this Lease.
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(C)Any errors disclosed by the review shall be promptly corrected by Landlord,
provided, however, that if Landlord disagrees with any such claimed errors,
Landlord shall have the right to cause another review to be made by an
independent firm of certified public accountants of national standing. In the
event of a disagreement between the two accounting firms, the review that
discloses the least amount of deviation from the Landlord's Statement shall be
deemed to be correct. In the event that the results of the review of records
(taking into account, if applicable, the results of any additional review
caused by Landlord) reveal that Tenant has overpaid obligations for a preceding
period, the amount of such overpayment shall be credited against Tenant's
subsequent installment obligations to pay the estimated Tax, Operating Expense
and Insurance Adjustments. In the event that such results show that Tenant has
underpaid its obligations for a preceding period, Tenant shall be liable for
Landlord's actual accounting fees, and the amount of such underpayment shall be
paid by Tenant to Landlord with the next succeeding installment obligation of
estimated Tax, Operating Expense and Insurance Adjustments.
4.05 Payment. Concurrently with the execution hereof, Tenant shall pay Landlord
Base Rent for the first calendar month of the Lease Term. Thereafter the Base
Rent described in Section 1.07, as adjusted in accordance with Section 4.02,
shall be payable in advance on the first day of each calendar month. If the
Commencement Date is other than the first day of a calendar month, the prepaid
Base Rent for such partial month shall be prorated in the proportion that the
number of days this Lease is in effect during such partial month bears to the
total number of days in the calendar month. All Rent, and all other amounts
payable to Landlord by Tenant pursuant to the provisions of this Lease, shall
be paid to Landlord, without notice, demand, abatement, deduction or offset, in
lawful money of the United States at the address set forth in Section 1.13
above or to such other person or at such other place as Landlord may designate
from time to time by written notice given to Tenant. No payment by Tenant or
receipt by Landlord of a lesser amount than the correct Rent due hereunder
shall be deemed to be other than a payment on account; nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law or in
equity provided.
4.06 Late Charge; Interest. Tenant acknowledges that the late payment of Base
Rent or any other amounts payable by Tenant to Landlord hereunder (all of which
shall constitute additional rent to the same extent as Base Rent) will cause
Landlord to incur administrative costs and other damages, the exact amount of
which would be impracticable or extremely difficult to ascertain. Landlord and
Tenant agree that if Landlord does not receive any such payment on or before
five (5) business days after the date the payment is due, Tenant shall pay to
Landlord, as additional rental, a late charge equal to ten percent (10%) of the
overdue amount to cover such additional administrative costs.
4.07 Additional Rental. For purposes of this Lease, all amounts payable by
Tenant to Landlord pursuant to this Lease, whether or not denominated as such,
shall constitute additional rental hereunder. Such additional rental, together
with the Base Rent and Rent Adjustments, shall sometimes be referred to in this
Lease as "Rent".
4.08 Additional Taxes. In addition to the Rent and other charges to be paid by
Tenant hereunder, Tenant shall reimburse Landlord upon demand for all taxes
payable by or imposed upon Landlord upon or with respect to: any fixtures or
personal property located in the Premises; any leasehold improvements made in
or to the Premises by or for Tenant; the Rent payable hereunder, including,
without limitation, any gross receipts tax, license fee or excise tax levied by
any governmental authority; the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of any portion of the
Premises (including, without limitation, any applicable possession interest
taxes); or this transaction or any document to which Tenant is a party creating
or transferring an interest or an estate in the Premises.
ARTICLE V - SECURITY DEPOSIT
5.01 Upon the execution of this Lease, Tenant shall deposit with Landlord the
Security Deposit described in Section 1.09 above. The Security Deposit is
made by Tenant to secure the faithful performance of all the terms, covenants
and conditions of this Lease to be performed by Tenant. If Tenant shall default
with respect to any covenant or provision hereof, Landlord may use, apply or
retain all or any portion of the Security Deposit to cure such default or to
compensate Landlord for any loss or damage which Landlord may suffer thereby.
If Landlord so uses or applies all or any portion of the Security Deposit,
Tenant shall immediately upon written demand deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to the full amount
hereinabove stated. Landlord shall not be required to keep the Security Deposit
separate from its general accounts and Tenant shall not be entitled to interest
on the Security Deposit. Within thirty (30) days after the expiration of the
Lease Term and the vacation of the Premises by Tenant, the Security Deposit, or
such part as has not been applied to cure the default, shall be returned to
Tenant. In the event of any bankruptcy or other proceeding initiated by or
against Tenant, it is agreed that all such Security Deposit held hereunder
shall be deemed to be applied by Landlord to rent, sales tax and all other
charges due from Tenant to Landlord for the last month of the Term and each
preceding month until such Security Deposit is fully applied.
ARTICLE VI - USE OF PREMISES
6.01 Tenant's Permitted Use. Tenant shall use the Premises only for Tenant's
Permitted Use as set forth in Section 1 .10 above and shall not use or permit
the Premises to be used for any other purpose without the prior written consent
of Landlord. Tenant shall, at its sole cost and expense, obtain all
governmental licenses and permits required to allow Tenant to conduct Tenant's
Permitted Use. Landlord disclaims any warranty that the Premises are suitable
for Tenant's use and Tenant acknowledges that it has had a full opportunity to
make its own determination in this regard.
6.02 Compliance With Laws and Other Requirements.
(A)Tenant shall cause the Premises to comply in all material respects with all
laws, ordinances, regulations and directives of any governmental authority
having jurisdiction including without limitation any certificate of occupancy
and any law, ordinance, regulation, covenant, condition or restriction
affecting the Building or the Premises which in the future may become
applicable to the Premises (collectively "Applicable Laws").
(B)Tenant shall not use the Premises, or permit the Premises to be used, in any
manner which: (a) violates any Applicable Law; (b) causes or is reasonably
likely to cause damage to the Building or the Premises; (c) violates a
requirement or condition of any fire and extended insurance policy covering the
Building and/or the Premises, or increases the cost of such policy; (d)
constitutes or is reasonably likely to constitute a nuisance, annoyance or
inconvenience to other tenants or occupants of the Building or its equipment,
facilities or systems; (e) interferes with, or is reasonably likely to
interfere with, the transmission or reception of microwave, television, radio,
telephone or other communication signals by antennae or other facilities
located in the Building; or (f) violates the Rules and Regulations described in
Article XX.
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(C)In addition to any other amounts payable by Tenant to Landlord hereunder,
Tenant shall pay to Landlord, as and when billed to Tenant and as additional
rental, Tenant's Percentage Share of the cost of any improvements, capital
expenditures, repairs or replacements to the Building, or any equipment or
machinery used in connection with the Building, if any such item is required
under any Applicable Law which was not applicable to the Building at the time
the Building was constructed; provided, however, that any such costs which are
properly charged to a capital account shall not be payable in a single year but
shall instead be amortized over their useful lives, as determined by the
Landlord in accordance with generally acceptable accounting principles, and
only the annual amortization amount (prorated based on the number of days of
the Lease term in the calendar year) shall be payable by the Tenant with
respect to any calendar year.
6.03 Hazardous Materials.
(A)No Hazardous Materials (as defined herein) shall be Handled (as defined
herein) upon, about, above or beneath the Premises or any portion of the
Building by or on behalf of a Responsible Party (as defined herein), unless the
Hazardous Materials are listed in Exhibit D hereto and then only in the
quantities listed in the exhibit. Any such Hazardous Materials so Handled, or
the presence of which is a result of the act or omission of a Responsible
Party, shall be known as Tenant's Hazardous Materials. Notwithstanding the
foregoing, normal quantities of those Hazardous Materials customarily used in
the conduct of general administrative and executive office activities (e.g.,
copier fluids and cleaning supplies) may be Handled at the Premises without
Landlord's prior written consent. Tenant's Hazardous Materials shall be Handled
at all times in compliance with all applicable Environmental Laws (as defined
herein).
(B)Notwithstanding the obligation of Tenant to indemnify Landlord pursuant to
this Lease, Tenant shall, at its sole cost and expense, promptly take all
actions required by any federal, state or local governmental agency or
political subdivision, or necessary for Landlord to make full economic use of
the Premises or any portion of the Building, which requirements or necessity
arises from the Handling of Tenant's Hazardous Materials upon, about, above or
beneath the Premises or any portion of the Building. Such actions shall
include, but not be limited to, the investigation of the environmental
condition of the Premises or any portion of the Building, the preparation of
any feasibility studies or reports and the performance of any cleanup,
remedial, removal or restoration work. Tenant shall take all actions necessary
to restore the Premises or any portion of the Building to the condition
existing prior to the introduction of Tenant's Hazardous Materials,
notwithstanding any less stringent standards or remediation allowable under
applicable Environmental Laws. Tenant shall nevertheless obtain Landlord's
written approval prior to undertaking any actions required by this Section,
which approval shall not be unreasonably withheld so long as such actions would
not potentially have a material adverse long-term or short-term effect on the
Premises or any portion of the Building.
(C)"Environmental Laws" means and includes all now and hereafter existing
statutes, laws, ordinances, codes, regulations, rules, rulings, orders,
decrees, directives, policies and requirements by any federal, state or local
governmental authority regulating, relating to, or imposing liability or
standards of conduct concerning public health and safety or the environment.
(D)"Hazardous Materials" means: (a) any material or substance: (i) which is
defined or becomes defined as a "hazardous substance", Hazardous waste,"
Infectious waste," "chemical mixture or substance," or "air pollutant" under
Environmental Laws; (ii) containing petroleum, crude oil or any fraction
thereof; (iii) containing polychlorinated biphenyls (PCB's); (iv) containing
asbestos; (v) which is radioactive; (b) any other material or substance
displaying toxic, reactive, ignitable or corrosive characteristics, as all such
terms are used in their broadest sense, and are defined or become defined by
Environmental Laws, or (c) materials which cause a nuisance upon or waste to
the Premises or any portion of the Building.
(E)"Handle," "handle," "Handled," "handled," "Handling" or "handling" shall
mean any installation, handling, generation, storage, treatment, use, disposal,
discharge, release, manufacture, refinement, presence, migration, emission,
abatement, removal, transportation or any other activity of any type in
connection with or involving Hazardous Materials.
(F)"Responsible Party" shall mean Tenant, its subtenants and its assignees, and
their respective contractors, clients, officers, directors, employees, agents,
and invitees, or any of them, as the case may be.
(G)Tenant agrees to maintain only the Hazardous Materials listed in Schedule 1
to Exhibit D in the Premises and in or at the Building and only in the
quantities listed in Schedule 1 to Exhibit D. Tenant also agrees that changes
to the type and quantities of such Tenant's Hazardous Materials may be done
only with the prior written consent of the Landlord, which consent shall not be
unreasonably withheld. Tenant further agrees that Landlord shall have the right
to inspect the Premises to verify the types and quantities of the materials
stored therein.
(H)Tenant agrees to execute affidavits, representations and the like from time
to time at Landlord's request conveying Tenant's best knowledge and belief
regarding the presence of Hazardous Materials in the Premises or in or at the
Building.
ARTICLE VII - UTILITIES AND SERVICES
7.01 Services Landlord shall provide the normal utility service connection
into the Premises and Tenant, at its sole expense, shall arrange with the
appropriate utility company to install all necessary connections and without
fail to maintain in continuous operation during the entire term of the Lease,
all such utility service, whether or not Tenant is in actual possession of the
Premises. Electricity to the Premises shall not be furnished by Landlord, but
shall be furnished by the approved electric utility company serving the
Building. Landlord shall permit Tenant to receive such service directly from
such utility company at Tenant's cost and shall permit Landlord's wire and
conduits, to the extent available, suitable and safely capable, to be used for
such purposes. Tenant shall pay for all water, gas, heat, light, power,
sweeping and other janitorial services, rubbish and trash disposal, sewer and
any other utilities and services supplied in, about or related to the Premises,
together with any taxes thereon, connection charges and deposits. If any such
utilities and services are not separately metered to Tenant, Tenant shall pay a
reasonable portion to be determined by Landlord of all charges jointly metered
with other premises. Landlord reserves the right during the Term of this Lease
to grant easements or public utility purposes on, over, or below the Premises
without any abatement in rent, provided
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that said easements do not unreasonably interfere with the normal operation of
the business conducted by Tenant in the Premises. Landlord shall not be
required to pay for any service, supplies or upkeep in connection with the
Premises. Tenant shall arrange for and pay for all telephone service and
equipment, including any additions or alterations to the existing telephone
service boards and conduit, which shall be completed without interference to
the service and/or equipment of other tenants in the Building and which shall
be appropriately labeled upon the termination of this Lease.
Any amounts which Tenant is required to pay to Landlord pursuant to this
Section 7.01 shall be payable upon demand by Landlord and shall constitute
additional rent or Rent under this Lease.
7.02 Interruption of Services. Landlord shall not be liable for any failure to
furnish, stoppage of, or interruption in furnishing any of the services or
utilities described in Section 7.01, when such failure is caused by accident,
breakage, repairs, strikes, lockouts, labor disputes, labor disturbances,
governmental regulation, civil disturbances, acts of war, moratorium or other
governmental action, or any other cause beyond Landlord's reasonable control,
and, in such event, Tenant shall not be entitled to any damages nor shall any
failure or interruption abate or suspend Tenant's obligation to pay Base Rent
and additional rental required under this Lease or constitute or be construed
as a constructive or other eviction of Tenant. Further, in the event any
governmental authority or public utility promulgates or revises any law,
ordinance, rule or regulation, or issues mandatory controls or voluntary
controls relating to the use or conservation of energy, water, gas, light or
electricity, the reduction of automobile or other emissions, or the provision
of any other utility or service, Landlord may take any reasonably appropriate
action to comply with such law, ordinance, rule, regulation, mandatory control
or voluntary guideline without affecting Tenant's obligations hereunder. Tenant
recognizes that any security services provided by Landlord at the Building are
for the protection of Landlord's property and under no circumstances shall
Landlord be responsible for, and Tenant waives any rights with respect to,
providing security or other protection for Tenant or its employees, invitees or
property in or about the Premises or the Building.
ARTICLE VIII - MAINTENANCE AND REPAIRS
8.01 Landlord's Obligations.
(A)During the Lease Term, Landlord shall, at its expense, maintain (including
all necessary replacements) only the foundation and the structural soundness of
the exterior walls (excluding all windows, plate glass, doors and pest control
and extermination) of the portion of the Building containing the Premises in
good repair and condition except for reasonable wear and tear. Landlord also
shall, subject to reimbursement as part of Operating Expenses: (i) maintain
(including all necessary replacements) the downspouts and fire safety sprinkler
system of the Building; (ii) perform regular mowing of any grass, trimming,
landscaping, weed removal and removal of debris in and about the common areas;
(iii) repaint the exterior doors or other exposed parts of the Building which
reasonably require periodic painting to prevent deterioration; (iv) maintain
(including all necessary replacements) the roof of the Building, except that if
the complete replacement of the roof is required, the cost of said replacement
shall not be subject to reimbursement as part of Operating Expenses; and (v) if
applicable, maintain any spur railroad track serving the Premises. If Tenant
determines that any such repair or maintenance by Landlord is required, Tenant
shall promptly give written notice to Landlord of the need for such repair or
maintenance and unless Landlord in good faith disagrees with such determination
by Tenant, Landlord shall proceed with reasonable promptness to perform such
maintenance. Except as otherwise expressly provided in this Lease, there shall
be no abatement or reduction of Rent, nor shall there be any liability of
Landlord, by reason of any damage, injury or inconvenience to, or interference
with, Tenant or Tenant's business or operations arising from the making of, or
failure to make, any maintenance, repairs, alteration or additions in or to any
portion of the Building.
(B)Tenant shall, at its sole cost, pay for any damage to the roof, foundation
and/or external walls caused by any act, omission, negligence or fault of
Tenant or any employee, agent or contractor of Tenant.
8.02 Tenant's Obligations.
(A)During the Lease Term, Tenant shall, at its risk and at its sole cost and
expense maintain all other parts of the Building and other improvements in or
on the Premises in good repair and condition (including all necessary
replacements), including but not limited to, heating, ventilation and air
conditioning systems, plumbing, all glass elements (including rubber seals and
aluminum frames), doors (including dock doors), dock bumpers, and all
electrical light bulbs, ballasts, lamps and tubes. In connection with Tenant's
maintenance and repair of the heating, ventilation and air conditioning
systems, Tenant shall provide Landlord during the term of this Lease and any
renewal hereof with a duplicate original of a maintenance contract, in form and
substance acceptable to Landlord, with an HVAC maintenance firm acceptable to
Landlord. Tenant shall engage a certified pest control firm to perform regular
(not less frequent than monthly but more frequent if Landlord determines the
need therefore) extermination for pests including, but not limited to roaches,
rodents and termites.
(B)Tenant shall take good care of all property and its fixtures, including all
landscaping, and suffer no waste. If applicable, Tenant agrees to sign a joint
maintenance agreement with the railroad company servicing the Premises, if
requested by such railroad company.
(C)Should Tenant neglect to keep and maintain the Premises as required herein,
the Landlord shall have the right but not the obligation, to have the work done
and any reasonable costs plus a ten percent (10%) overhead charge therefor,
shall be charged to Tenant as additional rental and shall become payable by
Tenant with the payment of the rental next due under this Lease. Further,
Tenant shall be responsible for, and upon demand by Landlord shall promptly
reimburse Landlord for, any damage to any portion of the Building or the
Premises caused by: (a) Tenant's activities in the Building or the Premises;
(b) the performance or existence of any alterations, additions or improvements
made by Tenant in or to the Premises; (c) the installation, use, operation or
movement of Tenant's property in or about the Building or the Premises; or (d)
any act or omission by Tenant, or its officers, partners, employees, agents,
contractors or invitees.
8.03 Tenant shall, at its own cost and expense, repair or replace any damage or
injury to all or any part of the Premises and Building, caused by Tenant or
Tenant's agents, employees, invitees, licensees or visitors; provided, however,
if Tenant fails to make such repairs or replacements promptly, Landlord may, at
its option, make sure repairs or replacements and Tenant shall reimburse the
cost, plus a ten percent (10%) overhead charge therefor, to Landlord on demand.
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8.04 Tenant shall not commit or allow any waste or damage to be committed on
any portion of the Premises, and at the termination of this Lease, by lapse of
time or otherwise, Tenant shall deliver the Premises to Landlord, broom clean
with all debris removed, in as good condition as at the date of first
possession of Tenant, ordinary wear and tear excepted. Tenant understands the
"ordinary wear and tear" does not mean Tenant shall be relieved of performing
its obligations under this Lease relating to maintenance, repairs and
replacements as provided for in the Lease. The cost and expense or any repairs
necessary to restore the condition of the Premises shall be borne by Tenant,
and if Landlord undertakes to restore the Premises, it shall have a right of
reimbursement against Tenant.
8.05 Landlord's Rights. Landlord and its contractors shall have the right, at
all reasonable times, to enter upon the Premises to make any repairs to the
Premises or the building reasonably required or deemed reasonably necessary by
Landlord and to erect such equipment, including scaffolding, as is reasonably
necessary to effect such repairs. During the pendency of such repairs,
Landlord shall use reasonable efforts to minimize any material interruption of
Tenant's business; provided, that if such repairs by Landlord are required to
remedy an emergency situation or to cure a breach or default by Tenant under
this Lease, Landlord shall not be obligated to minimize such interruption.
ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
9.01 Landlord's Consent; Conditions. Tenant shall not make or permit to be
made any alterations, additions, or improvements in or to the Premises
("Alterations") without the prior written consent of Landlord. Landlord may
impose as a condition to such consent such requirements as Landlord in its sole
discretion deems necessary or desirable including without limitation: Tenant's
submission to Landlord, for Landlord's prior written approval, of all plans and
specifications relating to the Alterations; Landlord's prior written approval
of the time or times when the Alterations are to be performed; Landlord's prior
written approval of the contractors and subcontractors performing work in
connection with the Alterations; Tenant's receipt of all necessary permits and
approvals from all governmental authorities having jurisdiction over the
Premises prior to the construction of the Alterations; Tenant's written notice
of whether the Alterations include the Handling of any Hazardous Materials,
pursuant to Section 6.03; Tenant's delivery to Landlord of such bonds and
insurance as Landlord shall reasonably require; and Tenant's payment to
Landlord of all costs and expenses incurred by Landlord because of Tenant's
Alterations, including but not limited to costs incurred in reviewing the plans
and specifications for , and the progress of, the Alterations.
9.02 Performance of Alterations Work. All work relating to the Alterations
shall be performed in compliance with the plans and specifications approved by
Landlord, all applicable laws, ordinances, rules, regulations and directives of
all governmental authorities having jurisdiction and the requirements of all
carriers of insurance on the Premises and the Building, the Board of
Underwriters, Fire Rating Bureau, or similar organization. All work shall be
performed in a diligent, first class manner and so as not to unreasonably
interfere with any other tenants or occupants of the Building. All costs
incurred by Landlord relating to the Alterations shall be payable to Landlord
by Tenant as additional rent upon demand.
9.03 Liens. Tenant shall pay when due all costs for work performed and
materials supplied to the Premises. Tenant shall keep Landlord, the Premises
and the Building free from all liens, stop notices and violation notices
relating to the Alterations or any other work performed for, materials
furnished to or obligations incurred by Tenant and Tenant shall protect,
indemnify, hold harmless and defend Landlord, the Premises and the Building of
and from any and all loss, cost, damage, liability and expense, including
attorneys' fees, arising out of or related to any such liens or notices.
Further, Tenant shall give Landlord not less than seven (7) business days prior
written notice before commencing any Alterations in or about the Premises to
permit Landlord to post appropriate notices of non-responsibility. Tenant shall
also secure, prior to commencing any Alterations, at Tenant's sole expense, a
completion and lien indemnity bond satisfactory to Landlord for such work.
During the progress of such work, Tenant shall, upon Landlord's request,
furnish Landlord with sworn contractor's statements and lien waivers covering
all work theretofore performed. Tenant shall satisfy or otherwise discharge all
liens, stop notices or other claims or encumbrances within ten (10) days after
Landlord notifies Tenant in writing that any such lien, stop notice, claim or
encumbrance has been filed. If Tenant fails to pay and remove such lien, claim
or encumbrance within such ten (10) days, Landlord, at its election, may pay
and satisfy the same and in such event the sums so paid by Landlord, with
interest from the date of payment at the rate set forth in Section 4.06 hereof
for amounts owed Landlord by Tenant shall be deemed to be additional rent due
and payable by Tenant at once without notice or demand.
9.04 Lease Termination. Except as provided in this Section 9.04, upon
expiration or earlier termination of this Lease Tenant shall surrender the
Premises to Landlord in the same condition as when received, subject to
reasonable wear and tear. All Alterations shall become a part of the Premises
and shall become the property of Landlord upon the expiration or earlier
termination of this Lease, unless Landlord shall, by written notice given to
Tenant, require Tenant to remove some or all of Tenant's Alterations, in which
event Tenant shall promptly remove the designated Alterations and shall
promptly repair any resulting damage, all at Tenant's sole expense. All
business and trade fixtures, machinery and equipment, furniture, movable
partitions and items of personal property owned by Tenant or installed by
Tenant at its expense in the Premises shall be and remain the property of
Tenant; upon the expiration or earlier termination of this Lease, Tenant shall,
at its sole expense, remove all such items and repair any damage to the
Premises or the Building caused by such removal. If Tenant fails to remove any
such items or repair such damage promptly after the expiration or earlier
termination of the Lease, Landlord may, but need not, do so with no liability
to Tenant, and Tenant shall pay Landlord the cost thereof upon demand.
ARTICLE X - INDEMNIFICATION AND INSURANCE
10.01 Indemnification. Tenant agrees to protect, indemnify, hold harmless and
defend Landlord from and against:
(A)any and all loss, cost, damage, liability or expense as incurred (including
but not limited to actual attorneys' fees and legal costs) arising out of or
related to any claim, suit or judgment brought by or in favor of any person or
persons for damage, loss or expense due to, but not limited to, bodily injury,
including death, or property damage sustained by such person or persons which
arises out of, is occasioned by or is in any way attributable to the use or
occupancy of the Premises or any portion of the Building by Tenant or the acts
or omissions of Tenant or its agents, employees, contractors, clients, invitees
or subtenants except that caused by the sole active negligence of Landlord or
its agents or employees. Such loss or damage shall include, but not be limited
to, any injury or damage to, or death of, Landlord's employees or agents or
damage to the Premises or any portion of the Building.
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(B)any and all environmental damages which arise from: (i) the Handling of any
Tenant's Hazardous Materials, as defined in Section 6.03 or (ii) the breach of
any of the provisions of this Lease. For the purpose of this Lease,
"environmental damages" shall mean (a) all claims, judgments, damages,
penalties, fines, costs, liabilities, and losses (including without limitation,
diminution in the value of the Premises or any portion of the Building, damages
for the loss of or restriction on the use of rentable or usable space or of any
amenity of the Premises or any portion of the Building, and from any adverse
impact of Landlord's marketing of space); (b) all reasonable sums paid for
settlement of claims, attorneys' fees, consultants' fees and experts' fees; and
(c) all costs incurred by Landlord in connection with investigation or
remediation relating to the Handling of Tenant's Hazardous Materials, whether
or not required by Environmental Laws, necessary for Landlord to make full
economic use of the Premises or any portion of the Building, or otherwise
required under this Lease. To the extent that Landlord is strictly liable under
any Environmental Laws, Tenant's obligation to Landlord and the other
indemnities under the foregoing indemnification shall likewise be without
regard to fault on Tenant's part with respect to the violation of any
Environmental Law which results in liability to the indemnitee. Tenant's
obligations and liabilities pursuant to this Section 10.01 shall survive the
expiration or earlier termination of this Lease.
(C)any and all testing or investigation as may be requested by any governmental
agency or lender for the purpose of investigating the presence of Tenant's
Hazardous Materials that may not be in compliance with Environmental Laws.
(D)Notwithstanding anything to the contrary contained herein, nothing shall be
interpreted or used to in any way affect, limit, reduce or abrogate any
insurance coverage provided by any insurers to either Tenant or Landlord.
Notwithstanding anything to the contrary contained in this Lease, nothing herein
shall be construed to infer or imply that Tenant is a partner, joint venturer,
agent, employee, or otherwise acting by or at the direction of Landlord.
10.02 Property Insurance.
(A)At all times during the Lease Term, Tenant shall procure and maintain, at
its sole expense, "all-risk" property insurance, in an amount not less than one
hundred percent (100%) of the replacement cost covering (a) all leasehold
improvements in and to the Premises which are made at the expense of Tenant;
and (b) Tenant's trade fixtures, equipment and other personal property from
time to time situated in the Premises, including, without limitation, all floor
and wall coverings. The proceeds of such insurance shall be used for the repair
or replacement of the property so insured, except that if not so applied or if
this Lease is terminated following a casualty, the proceeds applicable to the
leasehold improvements shall be paid to Landlord and the proceeds applicable to
Tenant's personal property shall be paid to Tenant.
(B)At all times during the Lease Term, Tenant shall procure and maintain
business interruption insurance in such amount as will reimburse Tenant for
direct or indirect loss of earnings attributable to all perils insured against
in Section 10.02(A).
(C)Landlord shall, at all times during the Lease Term, procure and maintain
"all-risk" property insurance in the amount not less than one hundred percent
(100%) of the replacement cost covering the Premises, but not the contents
thereof, and the Building in which the Premises are located.
10.03 Liability Insurance.
(A)At all times during the Lease Term, Tenant shall procure and maintain, at
its sole expense, general liability insurance applying to the use and occupancy
of the Premises and the business operated by Tenant. Such insurance shall have
a minimum combined single limit of liability of at least $2,000,000 per
occurrence and a general aggregate limit of at least $3,000,000. All such
policies shall be written to apply to all bodily injury, property damage,
personal injury losses and shall be endorsed to include Landlord and its
agents, beneficiaries, partners, employees, and any deed of trust holder or
mortgagee of Landlord or any ground lessor as additional insureds. (A list of
the current persons and entities to be named as additional insureds is attached
hereto as Exhibit E.) Such liability insurance shall be written as primary
policies, not excess or contributing with or secondary to any other insurance
as may be available to the Landlord or additional insureds.
(B)Prior to the sale, storage, use or giving away of alcoholic beverages on or
from the Premises by Tenant or another person, Tenant, at its own expense,
shall obtain a policy or policies of insurance issued by a responsible
insurance company and in a form acceptable to Landlord saving harmless and
protecting Landlord and the Premises against any and all damages, claims,
liens, judgments, expenses and costs, including actual attorney's fees, arising
under any present or future law, statute, or ordinance of the State of
Louisiana or other governmental authority having jurisdiction of the Premises,
by reason of any storage, sale, use or giving away of alcoholic beverages on or
from the Premises. Such policy or policies of insurance shall have a minimum
combined single limit of $1,000,000 per occurrence and shall apply to bodily
injury, fatal or nonfatal; injury to means of supports and injury to property
of any person. Such policy or policies of insurance shall name the Landlord and
its agents, beneficiaries, partners, employees and any mortgagee of Landlord or
any ground lessor of Landlord as additional insureds. (A list of the current
persons and entities to be named as additional insureds is attached hereto as
Exhibit E.)
(C)Landlord shall, at all times during the Lease Term, procure and maintain
general liability insurance for the Building in which the Premises are located.
Such insurance shall have minimum combined single limit of liability of at
least Two Million Dollars ($2,000,000.00) per occurrence, and a general
aggregate limit of at least Three Million Dollars ($3,000,000.00). Such policy
shall be written to apply to all bodily injury, property damage, personal
injury losses and shall be endorsed to include Landlord, its agents,
beneficiaries, partners, employees and any deed of trust holder or mortgagee of
Landlord as insured parties as their interest may appear.
10.04 Workers' Compensation Insurance. At all times during the Lease Term,
Tenant shall procure and maintain Workers' Compensation Insurance in accordance
with the laws of the State of Louisiana, and Employers' Liability insurance
with a limit not less than $1,000,000 Bodily Injury Each Accident; $1,000,000
Bodily Injury By Disease - Each Person; and $1,000,000 Bodily Injury by Disease
- Policy Limit.
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10.05 Automobile Liability Insurance. At all times during the Lease Term, Tenant
shall provide and maintain, at its sole expense, commercial automobile
liability insurance including owned, non-owned and hired vehicles, applying to
the use of any vehicles arising out of the operations of Tenant. Such insurance
shall apply to bodily injury and property damage in a combined single limit of
not less than $1,000,000 per accident.
10.06 Policy Requirements. All insurance required to be maintained by Tenant
shall be issued by insurance companies authorized to do insurance business in
the State of Louisiana and rated not less than A-VII in Best's Insurance Guide
and a Standard and Poor's claims paying ability rating of not less than AA. A
certificate of insurance (or, at Landlord's option, copies of the applicable
policies) evidencing the insurance required under this Article X shall be
delivered to Landlord not less than thirty (30) days prior to the Commencement
Date. No such policy shall be subject to cancellation or modification without
thirty (30) days prior written notice to Landlord and to any deed of trust
holder, mortgagee or ground lessor designated by Landlord to Tenant. Tenant
shall furnish Landlord with a replacement certificate with respect to any
insurance not less than thirty (30) days prior to the expiration of the current
policy. Tenant shall have the right to provide the insurance required by this
Article X pursuant to blanket policies, but only if such blanket policies
expressly provide coverage to the Premises and the Landlord as required by this
Lease.
10.07 Waiver of Subrogation. Each party hereby waives any right of recovery
against the other for injury or loss covered by insurance maintained or
required to be maintained hereunder, to the extent of the injury or loss
covered thereby. Any policy of insurance to be provided by Tenant pursuant to
this Article X shall contain a clause denying the insurer any right of
subrogation against Landlord.
10.08 Failure to Insure. If Tenant fails to maintain any insurance which Tenant
is required to maintain pursuant to this Article X, Tenant shall be liable to
Landlord for any loss or cost resulting from such failure to maintain. Tenant
may not self-insure against any risks required to be covered by insurance
without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
11.01 Total Destruction. Except as provided in Section 11.03 below, this Lease
shall automatically terminate if the Premises are totally destroyed.
11.02 Partial Destruction of Premises. If the Premises are damaged by any
casualty and, in Landlord's opinion, the Premises (exclusive of any Alterations
made to the Premises by Tenant) can be restored to its preexisting condition
within two hundred forty (240) days after the date of the damage or
destruction, Landlord shall, upon written notice from Tenant to Landlord of
such damage, except as provided in Section 11.03, promptly and with due
diligence repair the damage to the Premises (exclusive of any Alterations to
the Premises made by Tenant, which shall be promptly repaired by Tenant at its
sole expense) and, until such repairs are completed, the Rent shall be abated
from the date of damage or destruction in the same proportion that the rentable
area of the portion of the Premises which is unusable by Tenant in the conduct
of its business bears to the total rentable area of the Premises. If such
repairs cannot, in Landlord's opinion, be made within said two hundred forty
(240) day period, then Landlord may, at its option, exercisable by written
notice given to Tenant within thirty (30) days after the date of the damage or
destruction, elect to make the repairs within a reasonable time after the
damage or destruction, in which event this Lease shall remain in full force and
effect but the Rent shall be abated as provided in the preceding sentence; if
Landlord does not so elect to make the repairs, then either Landlord or Tenant
shall have the right, by written notice given to the other within sixty (60)
days after the date of the damage or destruction, to terminate this Lease as of
the date of the damage or destruction.
11.03 Exceptions to Landlord's Obligations. Notwithstanding anything to the
contrary contained in this Article XI, Landlord shall have no obligation to
repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Termination
Date, exclusive of option periods. Further, Tenant's Rent shall not be abated
if either (i) the damage or destruction is repaired within five (5) business
days after Landlord receives written notice from Tenant of the casualty, or
(ii) tenant, or any officers, partners, employees, agents or invitees of
Tenant, or any assignee or subtenant of Tenant, is, in whole or in part,
responsible for the damage or destruction.
11.04 Waiver. The provisions contained in this Lease shall supersede any
contrary laws now or hereafter in effect relating to damage or destruction.
ARTICLE XII - CONDEMNATION
12.01 Taking. If the entire Premises or so much of the Premises as to render
the balance unusable by Tenant shall be taken by condemnation, sale in lieu of
condemnation or in any other manner for any public or quasi-public purpose
(collectively "Condemnation"), this Lease shall terminate on the date that
title or possession to the Premises is taken by the condemning authority,
whichever is earlier.
12.02 Award. In the event of any Condemnation, the entire award for such
taking shall belong to Landlord. Tenant shall have no claim against Landlord
or the award for the value of any unexpired term of this Lease or otherwise.
Tenant shall be entitled to independently pursue a separate award in a
separate proceeding for Tenant's relocation costs directly associated with the
taking, provided such separate award does not diminish Landlord's award.
12.03 Temporary Taking. No temporary taking of the Premises shall terminate
this Lease or entitle Tenant to any abatement of the Rent payable to Landlord
under this Lease; provided, further, that any award for such temporary taking
shall belong to Tenant to the extent that the award applies to any time period
during the Lease Term and to Landlord to the extent that the award applies to
any time period outside the Lease Term.
ARTICLE XIII - RELOCATION
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ARTICLE XIV - ASSIGNMENT AND SUBLETTING
14.01 Restriction. Without the prior written consent of Landlord, Tenant shall
not, either voluntarily or by operation of law, assign, encumber, or otherwise
transfer this Lease or any interest herein, or sublet the Premises or any part
thereof, or permit the Premises to be occupied by anyone other than Tenant or
Tenant's employees. An assignment, subletting or other action in violation of
the foregoing shall be void and, at Landlord's option, shall constitute a
material breach of this Lease. For purposes of this Section 14.01, an
assignment shall include any transfer of any interest in this Lease or the
Premises by Tenant pursuant to a merger, division, consolidation or
liquidation, or pursuant to a change in ownership of Tenant involving a
transfer of voting control in Tenant (whether by transfer of partnership
interests, corporate stock or otherwise). Notwithstanding anything contained
in this Article XIV to the contrary, Tenant expressly covenants and agrees not
to enter into any lease, sublease, license, concession or other agreement for
use, occupancy or utilization of the Premises which provides for rental or
other payment for such use, occupancy or utilization based in whole or in part
on the net income or profits derived by any person from the property leased,
used, occupied or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and that any such purported lease, sublease,
license, concession or other agreement for use, occupancy or utilization of the
Premises which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any such purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of the
Premises. It shall not be considered unreasonable in declining to consider a
subtenant or sublessee whose use of the facilities is not in keeping with other
tenants of this development or whose financial position is materially below
that of Tenant or other tenants renting comparable space in the development.
14.02 Notice to Landlord. If Tenant desires to assign this Lease or any
interest herein, or to sublet all or any part of the Premises, then at least
twenty (20) business days prior to the effective date of the proposed
assignment or subletting, Tenant shall submit to Landlord in connection with
Tenant's request for Landlord's consent:
(A)A statement containing (i) the name and address of the proposed assignee or
subtenant; (ii) such financial information with respect to the proposed
assignee or subtenant as Landlord shall reasonably require; (iii) the type of
use proposed for the Premises; and (iv) all of the principal terms of the
proposed assignment or subletting; and
(B)Four (4) originals of the assignment or sublease on a form approved by
Landlord and four (4) originals of the Landlord's Consent to Sublease or
Assignment and Assumption of Lease and Consent.
14.03 Landlord's Recapture Rights. At any time within twenty (20) business
days after Landlord's receipt of all (but not less than all) of the information
and documents described in Section 14.02 above, Landlord may, at its option by
written notice to Tenant, elect to: (a) sublease the Premises or the portion
thereof proposed to be sublet by Tenant upon the same terms as those offered to
the proposed subtenant; (b) take an assignment of the Lease upon the same terms
as those offered to the proposed assignee; or (c) terminate the Lease in its
entirety or as to the portion of the Premises proposed to be assigned or
sublet, with a proportionate adjustment in the Rent payable hereunder if the
Lease is terminated as to less than all of the Premises. If Landlord does not
exercise any of the options described in the preceding sentence, then, during
the above-described twenty (20) business day period, Landlord shall either
consent or deny its consent to the proposed assignment or subletting.
14.04 Landlord's Consent; Standards. Landlord's consent shall not be
unreasonably withheld; but, in addition to any other grounds for denial,
Landlord's consent shall be deemed reasonably withheld if, in Landlord's good
faith judgment: (i) the proposed assignee or subtenant does not have the
financial strength to perform its obligations under this Lease or any proposed
sublease or its financial strength is materially below that of Tenant or other
tenants renting comparable space in the Building or nearby buildings; (ii) the
business and operations of the proposed assignee or subtenant are not of
comparable quality to, are in competition with or would in any way interfere
with or disrupt (including, without limitation, any disruption of existing
parking arrangements) the business and operations being conducted by other
tenants in the Building; (iii) the proposed assignee or subtenant intends to
use any part of the Premises for a purpose not permitted under this Lease or
for a purpose not in accordance with the uses of other tenants in the building;
(iv) either the proposed assignee or subtenant, or any person which directly or
indirectly controls, is controlled by, or is under common control with the
proposed assignee or subtenant occupies space in the Building or any of
Landlord's other buildings in the area, or is negotiating with Landlord to
lease space in the Building or any of Landlord's other buildings in the area;
(v) the proposed assignee or subtenant is disreputable; or (vi) the use of the
Premises or the Building by the proposed assignee or subtenant would, in
Landlord's reasonable judgment, significantly increase the pedestrian traffic
in and out of the Building, the number of parking spaces required to serve the
Premises or the Building, or vehicular traffic in or to the Building or would
require any alterations to the Building to comply with applicable laws.
14.05 Additional Rent. If Landlord consents to any such assignment or
subletting, all sums or other economic consideration received by Tenant in
connection with such assignment or subletting, whether denominated as rental or
otherwise, which exceeds, in the aggregate, the total sum which Tenant is
obligated to pay Landlord under this Lease (prorated to reflect obligations
allocable to less than all of the Premises under a sublease) shall be paid to
Landlord as additional rent under the Lease without affecting or reducing any
other obligation of Tenant hereunder.
14.06 Landlord's Costs. If Tenant shall assign this Lease or shall sublet all
or any part of the Premises or shall request the consent of Landlord to any
assignment, subletting or other act, Tenant shall pay to Landlord as additional
rent Landlord's costs related thereto, including Landlord's reasonable
attorneys' fees and a minimum fee to Landlord of Five Hundred Dollars
($500.00).
14.07 Continuing Liability of Tenant. Notwithstanding any assignment or
sublease, Tenant shall remain as fully and primarily liable for the payment of
Rent and for the performance of all other obligations of Tenant contained in
this Lease to the same extent as if the assignment or sublease had not
occurred; provided, however, that any act or omission of any assignee or
subtenant, other than Landlord, that violates the terms of this Lease shall be
deemed a violation of this Lease by Tenant.
14.08 Non-Waiver. The consent by Landlord to any assignment or subletting shall
not relieve Tenant, or any person claiming through or by Tenant, of the
obligation to obtain the consent of Landlord, pursuant to this Article XIV, to
any further assignment or subletting. In the event of an assignment or
subletting, Landlord may collect rent from the assignee or the subtenant
without waiving any rights hereunder and collection of the rent from a person
other than Tenant shall not be deemed a waiver of any of Landlord's rights
under this Article XIV, an acceptance of assignee or subtenant as Tenant, or a
release of Tenant from the performance of Tenant's obligations under this
Lease.
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ARTICLE XV - DEFAULT AND REMEDIES
15.01 Events of Default By Tenant. The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant:
(A)The failure by Tenant to pay Base Rent or make any other payment required to
be made by Tenant hereunder as and when due and the continuation of such
failure for five (5) days.
(B)The abandonment of the Premises by Tenant or the vacation of the Premises by
Tenant for fourteen (14) consecutive days (with or without the payment of
Rent).
(C)The making by Tenant of any assignment of this Lease or any sublease of all
or part of the Premises, except as expressly permitted under Article XIV of
this Lease.
(D)The failure by Tenant to observe or perform any other provision of this
Lease to be observed or performed by Tenant, other than those described in
Sections 15.01(A), 15.01(B) or 15.01(C) above, if such failure continues for
thirty (30) days after written notice thereof by Landlord to Tenant provided,
however, that if the nature of the default is such that it cannot be cured
within the thirty (30) day period, no default shall be deemed to exist if
Tenant commences the curing of the default promptly within such thirty (30) day
period and thereafter diligently prosecutes the same to completion and achieves
the same within sixty (60) days after the occurrence of such default. The
thirty (30) day notice described herein shall be in lieu of, and not in
addition to, any notice required under law now or hereafter in effect requiring
that notice of default be given prior to the commencement of an unlawful
detainer or other legal proceeding.
(E)The making by Tenant of any general assignment for the benefit of creditors,
the filing by or against Tenant of a petition under any federal or state
bankruptcy or insolvency laws (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty (30) days after filing); the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets at the Premises or Tenant's interest in this Lease or the
Premises, when possession is not restored to Tenant within thirty (30) days; or
the attachment, execution or other seizure of substantially all of Tenant's
assets located at the Premises or Tenant's interest in this Lease or the
Premises, if such seizure is not discharged within thirty (30) days.
15.02 Landlord's Right To Terminate Upon Tenant Default. In the event of any
default by Tenant as provided in Section 15.01 above, Landlord shall have the
right without notice or demand to Tenant (Tenant hereby irrevocably waiving all
notices and demands, statutory or otherwise, including without limitation, any
notice otherwise required in connection with any forcible entry and detainer
action), to terminate this Lease or Tenant's right to possession of the
Premises without terminating this Lease, in which event Landlord shall be
entitled to receive from Tenant:
(A)The worth at the time of award of any unpaid Rent which had been earned at
the time of such termination; plus
(B)The worth at the time of award of the amount by which the unpaid Rent which
would have been earned after termination until the time of award exceeds the
amount of such rental loss Tenant proves could have been reasonably avoided;
plus
(C)The worth at the time of award of the amount by which the unpaid Rent for
the balance of the term after the time of award exceeds the amount of such
rental loss that Tenant proves could be reasonably avoided; plus
(D)Any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom; and
(E)At Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law.
As used in subparagraphs (A) and (B) above, "worth at the time of award" shall
be computed by discounting such amounts at the then highest lawful rate of
interest, but in no event to exceed one percent (1%) per annum plus the rate
established by the Federal Reserve Bank of Chicago on advances made to member
banks under Sections 13 and 13a of the Federal Reserve Act ("discount rate")
prevailing on the date of execution of this Lease by Landlord. As used in
paragraph (C) above, "worth at the time of award" shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of
Chicago at the time of award plus one percent (1%).
15.03 Landlord's Right To Continue Lease Upon Tenant Default. In the event of a
default of this Lease and abandonment of the Premises by Tenant, if Landlord
does not elect to terminate this Lease as provided in Section 15.02 above,
Landlord may from time to time, without terminating this Lease, enforce all of
its rights and remedies under this Lease. Without limiting the foregoing,
Landlord may continue this Lease in effect after Tenant's breach and
abandonment and recover Rent as it becomes due. Landlord may, but shall have no
obligation to re-let all or any part of the Premises. In the event Landlord at
its sole discretion elects to re-let the Premises to the fullest extent
permitted by law, the proceeds of any reletting shall be applied first to pay
to Landlord all costs and expenses of such reletting (including without
limitation, costs and expenses of retaking or repossessing the Premises,
removing persons and property therefrom, securing new tenants, including
expenses for redecoration, alterations and other costs in connection with
preparing the Premises for the new tenant, and if Landlord shall maintain and
operate the Premises, the costs thereof) and receivers' fees incurred in
connection with the appointment of and performance by a receiver to protect the
Premises and Landlord's interest under this Lease and any necessary or
reasonable alterations; second, to the payment of any indebtedness of Tenant to
Landlord other than Rent due and unpaid hereunder; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of other or future obligations of Tenant to
Landlord as the same may become due and payable, and Tenant shall not be
entitled to receive any portion of such revenue.
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15.04 Right of Landlord to Perform. All covenants and agreements to be
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other
act on its part to be performed hereunder, Landlord may, but shall not be
obligated to, make any payment or perform any such other act on Tenant's part
to be made or performed, without waiving or releasing Tenant of its obligations
under this Lease. Any sums so paid by Landlord and all necessary incidental
costs, together with interest thereon at the lesser of the maximum rate
permitted by law if any or twelve percent (12%) per annum from the date of such
payment shall be payable to Landlord as additional rent on demand and Landlord
shall have the same rights and remedies in the event of nonpayment as in the
case of default by Tenant in the payment of Rent.
15.05 Default Under Other Leases. If the term of any lease, other than this
Lease, heretofore or hereafter made by Tenant for any space in the Building
shall be terminated or terminable after the making of this Lease because of any
default by Tenant under such other lease, such fact shall empower Landlord at
Landlord's sole option, to terminate this Lease by notice to Tenant or to
exercise any of the rights or remedies set forth in Section 15.02.
15.06 Non-Waiver. Nothing in this Article shall be deemed to affect Landlord's
rights to indemnification for liability or liabilities arising prior to
termination of this Lease for personal injury or property damages under the
indemnification clause or clauses contained in this Lease. No acceptance by
Landlord of a lesser sum than the Rent then due shall be deemed to be other
than on account of the earliest installment of such Rent due, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such instatement or pursue any other remedy in the Lease provided.
The delivery of keys to any employee of Landlord or to Landlord's agent or any
employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
15.07 Cumulative Remedies. The specific remedies to which Landlord may resort
under the terms of the Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of the Lease. In addition to the other remedies provided in the Lease,
including the right to terminate Tenant's right of possession of the Premises
and reenter and repossess the Premises and remove all persons and property from
the Premises without terminating this Lease as provided in Section 15.02,
Landlord shall be entitled to a restraint by injunction of the violation or
attempted or threatened violation of any of the covenants, conditions or
provisions of the Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
15.08 Default by Landlord. Landlord's failure to perform or observe any of its
obligations under this Lease shall constitute a default by Landlord under this
Lease only if such failure shall continue for a period of thirty (30) days (or
the additional time, if any, that is reasonably necessary to promptly and
diligently to cure the failure) after Landlord receives written notice from
Tenant specifying the default. The notice shall give in reasonable detail the
nature and extent of the failure and shall identify the Lease provision(s)
containing the obligation(s). If Landlord shall default in the performance of
any of its obligations under this Lease (after notice and opportunity to cure
as provided herein), Tenant may not make any deductions from or offsets against
any Rent due hereunder, but Tenant may pursue any remedies otherwise available
to it under the law and this Lease.
ARTICLE XVI - ATTORNEYS FEES: COSTS OF SUIT
16.01 Attorneys' Fees. If either Landlord or Tenant shall commence any action
or other proceeding against the other arising out of, or relating to, this
Lease or the Premises, the prevailing party shall be entitled to recover from
the losing party, in addition to any other relief, its actual attorneys fees
irrespective of whether or not the action or other proceeding is prosecuted to
judgment and irrespective of any court schedule of reasonable attorneys' fees.
16.02 Indemnification. Should Landlord be made a party to any litigation
instituted by Tenant against a party other than Landlord, or by a third party
against Tenant, Tenant shall indemnify, hold harmless and defend Landlord from
any and all loss, cost, liability, damage or expense incurred by Landlord,
including attorneys' fees, in connection with the litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.01 Subordination. This Lease, and the rights of Tenant hereunder, are and
shall be subordinate to the interests of (i) all present and future ground
leases and master leases of all or any part of the Building; (ii) present and
future mortgages and deeds of trust encumbering all or any part of the Building
or the underlying real estate; (iii) all past and future advances made under
any such mortgages or deeds of trust; and (iv) all renewals, modifications,
replacements and extensions of any such ground leases, master leases, mortgages
and deeds of trust; provided, however, that any lessor under any such ground
lease or master lease or any mortgagee or beneficiary under any such mortgage
or deed of trust shall have the right to elect, by written notice given to
Tenant, to have this Lease made superior in whole or in part to any such ground
lease, master lease, mortgage or deed of trust. Upon demand, Tenant shall
execute, acknowledge and deliver any instruments reasonably requested by
Landlord or any such lessor, mortgagee or beneficiary to effect the purposes of
this Section 17.01. Such instruments may contain, among other things,
provisions to the effect that such lessor, mortgagee or beneficiary (hereafter,
for the purposes of this Section 17.01, a "Successor Landlord") shall (i) not
be liable for any act or omission of Landlord or its predecessors, if any,
prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (ii) not be subject to any offsets or defenses which
Tenant might have been able to assert against Landlord or its predecessors, if
any, prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (iii) not be liable for the return of any security
deposit under the Lease unless the same shall have actually been deposited with
such Successor Landlord; and (iv) be entitled to receive notice of any Landlord
default under this Lease plus a reasonable opportunity to cure such default
prior to Tenant having any right or ability to terminate this Lease as a result
of such Landlord default.
17.02 Attornment. If requested to do so, Tenant shall attorn to and recognize
as Tenant's landlord under this Lease any superior lessor, superior mortgagee
or other purchaser or person taking title to the Building by reason of the
termination of any superior lease or the foreclosure of any superior mortgage
or deed of trust, and Tenant shall, upon demand, execute any documents
reasonably requested by any such person to evidence the attornment described in
this Section 17.02.
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17.03 Mortgage and Ground Lessor Protection. Tenant agrees to give any holder
of any mortgage and any ground lessor, by registered or certified mail, a copy
of any notice of default served upon the Landlord by Tenant, provided that
prior to such notice Tenant has been notified in writing (by way of service on
Tenant of a copy of Assignment of Rents and Leases, or otherwise) of the
address of such mortgage holder or ground lessor (hereafter the "Notified
Party"). Tenant further agrees that if Landlord shall have failed to cure such
default within twenty (20) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional
time as may be necessary if Landlord has commenced within such twenty (20)
days and is diligently pursuing the remedies or steps necessary to cure or
correct such default), then the Notified Party shall have an additional thirty
(30) days within which to cure or correct such default (or if such default
cannot be cured or corrected within that time, then such additional time as may
be necessary if the Notified Party has commenced within such thirty (30) days
and is diligently pursuing the remedies or steps necessary to cure or correct
such default). Until the time allowed, as aforesaid, for the Notified Party to
cure such default has expired without cure, Tenant shall have no right to, and
shall not, avail itself of any remedies available to it on account of
Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
18.01 Provided that Tenant performs all of its obligations hereunder, Tenant
shall have and peaceably enjoy the Premises during the Lease Term, subject to
all of the terms and conditions contained in this Lease.
ARTICLE XIX - PARKING
19.01 Tenant, its employees and invitees, are hereby granted the non-exclusive
privilege to use parking spaces at the Building. Tenant shall abide by all
rules and regulations regarding the use of the parking area as may now exist or
as may hereinafter be promulgated by Landlord. Landlord reserves the right to
modify, restripe and otherwise change the location of drives, parking spaces
and parking area at the Building. Landlord may, but shall have no obligation
to, designate certain parking spaces for trucks, handicapped persons or
designated tenants as Landlord, in its sole discretion, may deem necessary for
the professional and efficient operation of the parking area and the Building.
Landlord shall have the right to reasonably restrict the number and location of
truck/tractor trailers for the overall benefit of all tenants, it being
agreed by Tenant that it is not the intent of this Lease to provide
unrestricted parking for truck/tractor trailers. Tenant agrees not to
overburden the parking facilities and agrees to cooperate with Landlord and
other tenants in the use of parking facilities. Tenant will reimburse Landlord
upon demand for any damage caused to the parking surfaces or facilities caused
by Tenant's or any of its employees', agents' or invitees' trucks/tractor
trailers or any other vehicles. Landlord reserves the right in its absolute
discretion to determine whether parking facilities are becoming crowded and, in
such event, to allocate parking spaces among Tenant and other tenants. At no
time shall the parking of any vehicle be permitted in the fire lanes or
handicapped parking areas servicing the Building.
ARTICLE XX - RULES AND REGULATIONS
20.01 The Rules and Regulations attached hereto as Exhibit F are hereby
incorporated by reference herein and made a part hereof. Tenant shall abide by,
and faithfully observe and comply with the Rules and Regulations and any
reasonable and non-discriminatory amendments, modifications and/or additions
thereto as may hereafter be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order and/or cleanliness of
the Premises and/or the Building. Landlord shall not be liable to Tenant for
any violation of such rules and regulations by any other tenant or occupant of
the Building.
ARTICLE XXI - ESTOPPEL CERTIFICATES
21.01 Tenant agrees at any time and from time to time upon not less than ten
(10) days prior written notice from Landlord to execute, acknowledge and
deliver to Landlord a statement in writing addressed and certifying to
Landlord, or to the holder or assignee of any existing or prospective mortgage
encumbering the Building or any part thereof (hereafter a "Mortgagee"), or to
the lessor, or existing or prospective assignee of the lessor's position, under
any existing or prospective ground lease of the land underlying the Building
(hereafter a "Ground Lessor"), or to any prospective purchaser of the land,
improvements or both comprising the Building, that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications); that
Tenant has accepted possession of the Premises, which are acceptable in all
respects, and that any improvements required by the terms of this Lease to be
made by Landlord have been completed to the satisfaction of Tenant; that Tenant
is in full occupancy of the Premises; that no rent has been paid more than
thirty (30) days in advance; that the first month's Base Rent has been paid;
that Tenant is entitled to no free Rent or other concessions except as stated
in this Lease; that Tenant has not been notified of any previous assignment of
Landlord's or any predecessor landlord's interest under this Lease; the dates
to which Base Rent, additional rental and other charges have been paid; that
Tenant, as of the date of such certificate, has no charge, lien or claim of
setoff under this Lease or otherwise against Base Rent, additional rental or
other charges due or to become due under this Lease; and that Landlord is not
in default in performance of any covenant, agreement or condition contained in
this Lease or any other matter relating to this Lease or the Premises or, if
so, specifying each such default. In addition, in the event that such
certificate is being given to any Mortgagee or Ground Lessor, such statement
may contain any other provisions customarily required by such Mortgagee or
Ground Lessor including, without limitation, an agreement on the part of Tenant
to furnish to such Mortgagee or Ground Lessor, as applicable, written notice of
any Landlord default and a reasonable opportunity for such Mortgagee or Ground
Lessor to cure such default prior to Tenant being able to terminate this Lease.
Any such statement delivered pursuant to this Section may be relied upon by
Landlord or any Mortgagee, Ground Lessor or prospective purchaser to whom it is
addressed and such statement, if required by its addressee, may so specifically
state. If Tenant does not execute, acknowledge and deliver to Landlord the
statement as and when required herein, Landlord is hereby granted an
irrevocable power-of-attorney, coupled with an interest, to execute such
statement on Tenant's behalf which statement shall be binding on Tenant to the
same extent as if executed by Tenant.
ARTICLE XXII -ENTRY BY LANDLORD
22.01 Landlord may enter the Premises at all reasonable times to: inspect the
same; exhibit the same to prospective purchasers, lenders or tenants; determine
whether Tenant is complying with all of its obligations under this Lease;
supply janitorial and other services to be provided by Landlord to Tenant under
this Lease; post notices of non-responsibility; and make repairs or
improvements in or to the Building or the Premises; provided, however that all
such work shall be done as promptly as reasonably possible and so as to cause
as little interference to Tenant as reasonably possible. Tenant hereby waives
any claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry . As provided for in clause (xiii) of
Section 27.19 of this Lease, Landlord shall at all times have the right, but
not the obligation, to obtain from Tenant and retain a key with which to unlock
all of the doors in, on or about
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the Premises (excluding Tenant's vaults, safes and similar areas designated by
Tenant in writing in advance), and Landlord shall have the right to use any and
all means by which Landlord may deem proper to open such doors to obtain entry
to the Premises, and any entry to the Premises obtained by Landlord by any such
means, or otherwise, shall not under any circumstances be deemed or construed
to be a forcible or unlawful entry into or a detainer of the Premises or an
eviction, actual or constructive, of Tenant from any part of the Premises.
Such entry by Landlord shall not act as a termination of this Lease. If
Landlord shall be required to obtain entry by means other than a key provided
by Tenant, the cost of such entry shall be payable by Tenant to Landlord as
additional rent.
ARTICLE XXIII
LANDLORD'S LEASE UNDERTAKINGS - EXCULPATION
FROM PERSONAL LIABILITY;
TRANSFER OF LANDLORD'S INTEREST
23.01 Landlord's Lease Undertakings. Notwithstanding anything to the contrary
contained in this Lease or in any exhibits, Riders or addenda hereto attached
(collectively the "Lease Documents"), it is expressly understood and agreed by
and between the parties hereto that: (a) the recourse of Tenant or its
successors or assigns against Landlord with respect to the alleged breach by or
on the part of Landlord of any representation, warranty, covenant, undertaking
or agreement contained in any of the Lease Documents (collectively, "Landlord's
Lease Undertakings") shall extend only to Landlord's interest in the real
estate of which the Premises demised under the Lease Documents are a part
("Landlord's Real Estate") and not to any other assets of Landlord or its
beneficiaries; and (b) except to the extent of Landlord's interest in
Landlord's Real Estate, no personal liability or personal responsibility of any
sort with respect to any of Landlord's Lease Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, its beneficiaries, First Industrial Development Services, or against
any of their respective directors, officers, employees, agents, constituent
partners, beneficiaries, trustees or representative.
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings and agreements herein made
on the part of Landlord while in form purporting to be the representations,
warranties, covenants, undertakings and agreements of Landlord are nevertheless
each and every one of them made and intended, not as personal representations,
warranties, covenants, undertakings and agreements by Landlord or for the
purpose or with the intention of binding Landlord personally, but are made and
intended for the purpose only of subjecting Landlord's interest in Landlord's
Real Estate to the terms of this Lease and for no other purpose whatsoever, and
in case of default hereunder by Landlord (or default through, under or by any
of its beneficiaries, or agents or representatives of said beneficiaries), the
Tenant shall look solely to the Landlord's interest in Landlord's Real Estate.
23.02 Transfer of Landlord's Interest. Landlord and each successor to Landlord
shall be fully released from the performance of Landlord's obligations
subsequent to their transfer of Landlord's interest in the Building. Landlord
shall not be liable for any obligation hereunder after a transfer of its
interest in the Building.
ARTICLE XXIV - HOLDOVER TENANCY
24.01 If Tenant holds possession of the Premises after the expiration or
termination of the Lease Term, by lapse of time or otherwise, Tenant shall
become a tenant at sufferance upon all of the terms contained herein, except as
to Lease Term and Rent. During such holdover period, Tenant shall pay to
Landlord a monthly rental equivalent to three hundred percent (300%) of the
Rent payable by Tenant to Landlord with respect to the last month of the Lease
Term. The monthly rent payable for such holdover period shall in no event be
construed as a penalty or as liquidated damages for such retention of
possession. Without limiting the foregoing, Tenant hereby agrees to indemnify,
defend and hold harmless Landlord, its beneficiary, and their respective
agents, contractors and employees, from and against any and all claims,
liabilities, actions, losses, damages (including without limitation, direct,
indirect, incidental and consequential) and expenses (including, without
limitation, court costs and reasonable attorneys' fees) asserted against or
sustained by any such party and arising from or by reason of such retention of
possession, which obligations shall survive the expiration or termination of
the Lease Term.
ARTICLE XXV - NOTICES
25.01 All notices which Landlord or Tenant may be required, or may desire, to
serve on the other may be served, as an alternative to personal service, by
mailing the same by registered or certified mail, postage prepaid, or may be
sent by overnight courier, addressed to the Landlord at the address for
Landlord set forth in Section 1.11 above and to Tenant at the address for
Tenant set forth in Section 1.12 above, or, from and after the Commencement
Date, to the Tenant at the Premises whether or not Tenant has departed from,
abandoned or vacated the Premises, or addressed to such other address or
addresses as either Landlord or Tenant may from time to time designate to the
other in writing. Any notice shall be deemed to have been given by overnight
courier shall be deemed given on the first business day following the date such
notice is delivered by such courier provided such courier verifies delivery
thereof.
ARTICLE XXVI - BROKERS
26.01 Tenant warrants that it has had no dealings with any broker or agent in
connection with this Lease other than Sealy & Falgoust Realt Estate, L.L.C.
(Broker) and covenants to pay, hold harmless and indemnify Landlord from and
against any and all costs, expenses or liability for any compensation,
commissions, and charges claimed by any other broker or agent (other than the
broker(s) named above) with respect to the Lease or the negotiation thereof
with whom Tenant had dealings, and further agrees to pay, hold harmless and
indemnify Landlord from and against any and all costs, expenses or liability
(including but not limited to actual attorney's fees and legal costs) arising
out of or related to any claim, suite or judgement brought by Broker against
Landlord arising out of or in any way attributable to this Lease, except to the
extent that any such cost, expense or liability is attributable to the
negligence or wrongful act of Landlord or its agents or employees. Landlord
will pay to Broker in accordance with a separate commission agreement a real
estate leasing commission of $21,501.17 upon the execution of a Suite
Acceptance Agreement by Tenant for the premises leased under this Lease.
ARTICLE XXVII - MISCELLANEOUS
27.01 Entire Agreement. This Lease contains all of the agreements and
understandings relating to the leasing of the Premises and the obligations of
Landlord and Tenant in Connection with such leasing. Landlord has not made, and
Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
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27.02 Amendments. This Lease shall not be amended, changed or modified in any
way unless in writing executed by Landlord and Tenant. Landlord shall not have
waived or released any of its rights hereunder unless in writing and executed
by the Landlord.
27.03 Successors. Except as expressly provided herein, this Lease and the
obligations of Landlord and Tenant contained herein shall bind and benefit the
successors and assigns of the parties hereto.
27.04 Force Majeure. Landlord shall incur no liability to Tenant with respect
to, and shall not be responsible for any failure to perform, any of Landlord's
obligations hereunder if such failure is caused by any reason beyond the
control of Landlord including, but not limited to strike, labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, fire,
earthquake, civil commotion, or failure or disruption of utility services. The
amount of time for Landlord to perform any of Landlord's obligations shall be
extended by the amount of time Landlord is delayed in performing such
obligation by reason of any force majeure occurrence whether similar to or
different from the foregoing types of occurrences.
27.05 Survival of Obligations. Any obligations of Tenant accruing prior to the
expiration of the Lease shall survive the termination of the Lease, and Tenant
shall promptly perform all such obligations whether or not this Lease has
expired.
27.06 Light and Air. No diminution or shutting off of any light, air or view
by any structure now or hereafter erected shall in any manner affect this Lease
or the obligations of Tenant hereunder, or increase any of the obligations of
Landlord hereunder.
27.07 Governing Law. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Louisiana.
27.08 Severability. In the event any provision of this Lease is found to be
unenforceable, the remainder of this Lease shall not be affected, and any
provision found to be invalid shall be enforceable to the extent permitted by
law. The parties agree that in the event two different interpretations may be
given to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be adopted.
27.09 Captions. All captions, headings, titles, numerical references and
computer highlighting are for convenience only and shall have no effect on the
interpretation of this Lease.
27.10 Interpretation. Tenant acknowledges that it has read and reviewed this
Lease and that it has had the opportunity to confer with counsel in the
negotiation of this Lease. Accordingly, this Lease shall be construed neither
for nor against Landlord or Tenant, but shall be given a fair and reasonable
interpretation in accordance with the meaning of its terms and the intent of
the parties.
27.11 Independent Covenants. Each covenant, agreement, obligation or other
provision of this Lease to be performed by Tenant are separate and independent
covenants of Tenant, and not dependent on any other provision of the Lease.
27.12 Number and Gender. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include the
appropriate number and gender, as the context may require.
27.13 Time is of the Essence. Time is of the essence of this Lease and the
performance of all obligations hereunder.
27.14 Joint and Several Liability. If Tenant comprises more than one person or
entity, or if this Lease is guaranteed by any party, all such persons shall be
jointly and severally liable for payment of rents and the performance of
Tenant's obligations hereunder.
27.15 Exhibits and Schedules. Exhibits A (Outline of Premises), B (Work Letter
Agreement), C (Suite Acceptance Letter), D (Tenant Operations Inquiry), E (List
of Additional Insureds), F (Rules and Regulations) and G (Guaranty), and
Schedule 1 to Exhibit D (List of Permissible Hazardous Materials and
Quantities) are incorporated into this Lease by reference and made a part
hereof.
27.16 Offer to Lease. The submission of this Lease to Tenant or its broker or
other agent, does not constitute an offer to Tenant to lease the Premises. This
Lease shall have no force and effect until (a) it is executed and delivered by
Tenant to Landlord and (b) it is executed and delivered by
Landlord to Tenant. This Lease shall be contingent on the Landlord's
acceptance prior to December 1, 1999 of a fully executed lease termination
agreement by Wireless One, Inc. for the subject suite known as space #4 located
at 11301 Industriplex Boulevard, Baton Rouge, Louisiana 70809 and Landlord's
written notification to Tenant prior to such date that the Lease Termination
Agreement has been executed and this contingency has been waived by Landlord.
27.17 Waiver; No Counterclaim; Choice of Laws. To the extent permitted by
applicable law, Tenant hereby waives the right to a jury trial in any action or
proceeding regarding this Lease and the tenancy created by this Lease. It is
mutually agreed that in the event Landlord commences any summary proceeding for
non-payment of Rent, Tenant will not interpose any counterclaim of whatever
nature or description in any such proceeding. In addition, Tenant hereby
submits to local jurisdiction in the State of Louisiana and agrees that any
action by Tenant against Landlord shall be instituted in the State of Louisiana
and that Landlord shall have personal jurisdiction over Tenant for any action
brought by Landlord against Tenant in the State of Louisiana. To the extent
permitted by applicable law, Tenant hereby waives any and all rights of
redemption granted by any present or future laws.
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27.18 Rights Reserved by Landlord. Landlord reserves the following rights
exercisable without notice (except as otherwise expressly provided to the
contrary in this Lease) and without being deemed an eviction or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for
set-off or abatement of Rent: (i) to change the name or street address of the
Building; (ii) to install, affix and maintain all signs on the exterior and/or
interior of the Building; (iii) to designate and/or approve prior to
installation, all types of signs, window shades, blinds, drapes, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises; (iv) to display the Premises and/or the Building to
mortgagees, prospective mortgagees, prospective purchasers and ground lessors
at reasonable hours upon reasonable advance notice to Tenant; (v) to change the
arrangement of entrances, doors, corridors, elevators and/or stairs in the
Building, provided no such change shall materially adversely affect access to
the Premises; (vi) to grant any party the exclusive right to conduct any
business or render any service in the Building, provided such exclusive right
shall not operate to prohibit Tenant from using the Premises for the purposes
permitted under this Lease; (vii) to prohibit the placement of vending or
dispensing machines of any kind in or about the Premises other than for use by
Tenant's employees; (viii) to prohibit the placement of video or other
electronic games in the Premises; (ix) to have access for Landlord and other
tenants of the Building to any mail chutes and boxes located in or on the
Premises according to the rules of the United States Post Office; (x) to close
the Building after normal business hours, except that Tenant and its employees
and invitees shall be entitled to admission at all times under such rules and
regulations as Landlord prescribes for security purposes; (xi) to install,
operate and maintain security systems which monitor, by close circuit
television or otherwise, all persons entering or leaving the Building; (xii) to
install and maintain pipes, ducts, conduits, wires and structural elements
located in the Premises which serve other parts or other tenants of the
Building; (xiii) to retain at all times master keys or pass keys to the
Premises; and (xiv) to have or grant access to the Premises during the last two
(2) months of the Term to prepare the Premises for any future tenant if Tenant
shall have removed all or substantially all of Tenant's property from the
Premises.
27.19 Tenant Operations Inquiry. As a material inducement to Landlord to enter
into this Lease (i) Tenant has completed Exhibit D hereto, and (ii) Tenant
represents and warrants to Landlord that Exhibit D is true and correct in all
material respects and is not misleading.
ARTICLE XXVIII - FLOOR LOAD LIMITS
28.01 Floor Load Limits. Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment in
the Building. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Landlord's judgment, to absorb and
prevent vibration, noise and annoyance to occupants of the complex of adjacent
property.
ARTICLE XXX - COUNTERPARTS; FACSIMILE SIGNATURES
30.01 Counterparts; Facsimile Signatures. This Agreement may be executed in
multiple counterparts, which together shall have the full force and effect of
an original. Signature pages transmitted by facsimile machine shall have equal
force as signature pages bearing original signatures.
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IN WITNESS WHEREOF, the parties hereto have executed this lease as of the date
first above written.
TENANT: LANDLORD:
VARTECH SYSTEMS, INC. FIRST INDUSTRIAL, L.P.,
a Delaware limited partnership
By: FIRST INDUSTRIAL REALTY TRUST,INC.
a Maryland corporation, its general partner
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EXHIBITS A THROUGH D
These exhibits are included with the signed original copy of the lease held at
the corporate offices of VarTech Systems Inc.
EXHIBIT E
Additional Insureds
Additional insureds pursuant to the requirements outlined in Article X of the
Lease:
First Industrial, L.P. a Delaware limited partnership, all successors thereof
and beneficiaries thereunder: First Industrial Realty Trust, Inc.; and their
respective agents and employees
The Insurance Certificate should be sent to:
First Industrial Realty Trust, Inc.
150 James Drive East
Suite 140
St. Rose, Louisiana 70087
Attention: Property Manager
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EXHIBIT F
Rules and Regulations
1.Tenant, its officers, agents, servants and employees shall not block or
obstruct any of the entries, passages, doors, hallways or stairways of the
Building or garage, or place, empty or throw any rubbish, litter, trash or
material of any nature into such areas, or permit such areas to be used at any
time except for ingress or egress of Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees.
2.The movement of furniture, equipment, machines, merchandise or materials
within, into or out of the Premises or the Building not in the ordinary course
of Tenant's business as permitted herein, shall be restricted to time, method
and routing of movement as determined by Landlord upon request from Tenant and
Tenant shall assume all liability and risk to property, the Premises and the
Building in such movement. The movement of furniture, equipment, machines,
merchandise or materials within, into or out of the Premises in the ordinary
course of Tenant's permitted business shall also be at Tenant's sole risk and
responsibility and shall be conducted in such a fashion as not to cause damage
or injury to the Premises or the Building or to disturb other occupants
thereof. Tenant shall not move furniture, machines, equipment, merchandise or
materials within, into or out of the Premises or the Building not in the
ordinary course of Tenant's permitted business without having first obtained a
written permit from Landlord twenty-four (24) hours in advance. Safes and other
heavy fixtures, equipment or machines intended to be kept permanently in the
Premises shall be moved into the Premises or the Building only with Landlord's
written consent and placed where directed by Landlord.
3.Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from Premises, regardless of how
or when loss occurs.
4.Tenant, its officers, agents, servants and employees shall not install or
operate any refrigerating, heating or air conditioning apparatus or carry on
any mechanical operation or bring into the Premises any inflammable fluids or
explosives without written permission of Landlord.
5.Tenant, its officers, agents, servants or employees shall not use the Premises
for housing, lodging or sleeping purposes or for the cooking or preparation of
food without written permission of Landlord (the preparation of coffee, tea,
or the like is specifically excluded from this limitation).
6.Tenant, its officers, agents, servants, employees, patrons, licensees,
customers, visitors or invitees shall not bring into the Premises or keep on
Premises any fish, fowl, reptile, insect or animal without the prior written
consent of the Landlord.
7.No additional locks shall be placed on any door in the Building without the
prior written consent of Landlord. Landlord will furnish two keys to each lock
on doors in the Premises and Landlord, upon request of Tenant, shall provide
additional duplicate keys at Tenant's expense. Landlord may at all times keep a
pass key to the Premises. All keys shall be returned to Landlord promptly upon
termination of this Lease.
8.Tenant, its officers, agents, servants or employees shall do no painting or
decorating in the Premises; or mark, paint or cut into, drive nails or screw
into nor in any way deface any part of the Premises or the Building without the
prior written consent of Landlord. If Tenant desires signal, communication,
alarm or other utility or service connection installed or changed, such work
shall be done at expense of Tenant, with the approval and under the direction
of Landlord.
9.Tenant, its officers, agents, servants and employees shall not permit the
operation of any musical or sound-producing instruments or device which may be
heard outside the Premises, or which may emanate electrical waves or x-rays or
other emissions which will impair radio or television broadcasting or reception
from or in the Building, or be hazardous to health, well-being or condition of
persons or property.
10.Tenant, its officers, agents, servants and employees shall, before leaving
the Premises unattended, close and lock all doors and shut off all lights,
business equipment and machinery. Damage resulting from failure to do so shall
be paid by Tenant. Each Tenant, before closing for the day and leaving the
Premises, shall see that all doors are locked.
11.All plate and other glass now in the Premises or Building which is broken
through cause attributable to Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees shall be
replaced by and at expense of Tenant under the direction of Landlord.
12.Tenant shall give Landlord prompt notice of all accidents to or defects in
air conditioning equipment, plumbing, electric facilities or any part of
appurtenance of the Premises.
13.The plumbing facilities shall not be used for any other purpose than that for
which they are constructed, and no foreign substance of any kind shall be
thrown therein, and the expense of any breakage, stoppage or damage resulting
from a violation of this provision shall be borne by Tenant, who shall, or
whose officers, employees, agents, servants, patrons, customers, licensees,
visitors or invitees shall, have caused it. Landlord shall not be responsible
for any damage due to stoppage, backup or overflow of the drains or other
plumbing fixtures.
14.All contractors and/or technicians performing work for Tenant within the
Premises, Building or garage facilities shall be referred to Landlord for
approval before performing such work. This shall apply to all work including,
but not limited to, installation of telephones, telegraph equipment, electrical
devices and attachments, and all installations affecting floors, walls,
windows, doors, ceilings, equipment or any other physical feature of the
Building, the Premises or garage facilities. None of this work shall be done by
Tenant without Landlord's prior written approval.
15.No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, without the prior written consent of
Landlord.
16.Neither Tenant nor any officer, agent employee, servant, patron, customer,
visitor, licensee or invitee of any Tenant shall go upon the roof of the
Building, without the written consent of the Landlord.
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17.In the event Tenant must dispose of crates, boxes, etc. which will not fit
into wastepaper baskets, it will be the responsibility of Tenant to dispose of
same properly.
18.If the Premises shall become infested with vermin, roaches, or other
undesirable creatures, Tenant at its sole cost and expense, shall cause the
Premises to be professionally treated from time to time to the satisfaction of
Landlord and shall employ such exterminators for this purpose as shall be
approved by Landlord.
19.Tenant shall not install any antenna or aerial wires, radio or television
equipment of any other type of equipment inside or outside of the Building
without Landlord's prior approval in writing and upon such terms and conditions
as may be specified by Landlord in each and every instance.
20.Tenant shall not make or permit any use of the Premises, the Building or
garage facilities which, directly or indirectly, is forbidden by law, ordinance
or governmental or municipal regulation, code or order or which may be
disreputable or dangerous to life, limb or property.
21.Tenant shall not advertise the business, profession or activities of Tenant
in any manner which violates the letter or spirit of any code of ethics adopted
by any recognized association or organization pertaining thereto, use the name
of the Building for any purpose other than that of the business address of
Tenant or use any picture or likeness of the Building or the complex name in
any letterheads, envelopes, circulars, notices, advertisements, containers or
wrapping material without Landlord's express consent in writing.
22.Tenant shall not conduct its business and/or control its officers, agents,
employees, servants, patrons, customers, licensees and visitors in such a
manner as to create any nuisance or interfere with, annoy or disturb any other
tenant or Landlord in its operation of the Building or commit waste or suffer
or permit waste to be committed in Premises.
23.The Tenant shall not install in the Premises any equipment which uses a
substantial amount of electricity without the advance written consent of the
Landlord. The Tenant shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into
account the capacity of the electric wiring in the Building and the Premises
and the needs of other tenants in the Building and the complex and shall not
use more than such safe capacity. The Landlord's consent to the installation
of electric equipment shall not relieve the Tenant from the obligation not to
use more electricity than such safe capacity.
24.The Tenant, without the prior written consent of Landlord, shall not lay
linoleum or other similar floor covering within the Premises.
25.No outside storage of any material, pallets, disabled vehicles, etc., will be
permitted including but not limited to trash, except in approved containers.
26.Tenant shall not allow a fire or bankruptcy sale or any auction to be held on
the Premises, or allow the Premises to be used for the storage of merchandise
held for sale to the general public.
27.Canvasing, soliciting, distribution of hand-bills or any other written
material peddling in the Building and the complex are prohibited, and each
Tenant shall cooperate to prevent the same.
28.Tenant agrees to park in only those parking stalls designated as tenant
parking. Tenant shall hold Landlord harmless for the removal and charges
related thereto when Tenant, or its employees, park in space designated as
visitor, handicapped parking, red or yellow curb areas. Tenant shall not park
or allow to be kept any vehicle on the Premises, either company or personnel,
which is not being used on a daily basis.
29.Tenant shall not maintain armed security in or about the Premises nor possess
any weapons, explosives, combustibles or other hazardous devises in or about
the Building and/or Premises.
30.Landlord may waive any one more of these Rules and Regulations for the
benefit of any particular tenant or landlords, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations if favor of any
other tenant or landlords, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the complex.
31.These Rules and Regulations are in addition to, and shall not be construed to
in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any Lease on premises in the complex.
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