EXHIBIT 10.36
Office Lease
Between
US Unwired Inc.
And
Xspedius Corp.
Building:
US Unwired Tower
Lake Charles, Louisiana
Table of Contents
Article 1 - Defined Terms 1
Article 2 - Leased Premises and Term 5
2.1 Location 5
2.2 Term and Commencement Date 5
2.3 Holding Over 5
Article 3 - Rental 6
3.1 Base Rental 6
3.2 Operating Expenses - Tenant's Share 6
3.3 Operating Expense Statements 6
3.4 Fractional Calendar Years 7
3.5 No Set-Off 7
3.6 Late Payment 7
Article 4 - Utilities and Other Services 7
4.1 Services 7
4.2 Electricity 8
4.3 Keys and Locks 9
4.4 Signs 9
4.5 Parking 10
4.6 Telephones 10
Article 5 - Use of Premises: Conduct of Business 10
5.1 Use and Occupancy 10
5.2 Compliance with Insurance Policies 10
5.3 Compliance With Laws 10
5.4 Rules of Building 11
5.5 Entry for Repairs and Inspection 11
5.6 Nuisance, Waste, Defacing 11
5.7 Dangerous Substances, Heavy Objects 12
5.8 Hazardous Material 12
Article 6 - Tenant's Property and Tenant's Changes 13
6.1 Part of Lease Premises 13
6.2 Tenant's Property 13
6.3 Removal by Tenant 13
6.4 Alterations 14
6.5 Mechanics and Other Liens 14
Article 7 - Maintenance and Repairs 15
7.1 Repairs to Building 15
7.2 Repairs to the Leased Premises 15
7.3 Condition of Leased Premises 15
Article 8 - Casualty Damage, Eminent Domain and Restoration 16
8.1 Fire or Other Casualty 16
8.2 Eminent Domain 16
Article 9 - Indemnity, Liability and Insurance 17
9.1 Indemnity 17
9.2 Tenant's Liability Insurance 17
9.3 Tenant's Property Insurance 17
9.4 General Requirements of Tenant's Insurance 17
9.5 Mutual Waiver of Subrogation Right 18
9.6 Landlord's Property Insurance 18
Article 10 - Landlord's Covenant of Quiet Enjoyment 18
10.1 Peaceful Enjoyment 18
Article 11 - Assignment 19
11.1 Prohibition of Assignment 19
11.2 Corporation, Partnership or Limited Liability Company 20
Article 12 - Default by Tenant 20
12.1 Events of Default 20
12.2 Landlord's Remedies 21
12.3 Landlord's Right to Cure 23
12.4 No Waiver 23
12.5 No Accord and Satisfaction 23
12.6 Costs and Expenses 24
12.7 Notice to Vacate 24
Article 13 - Assignments of Lease and Mortgages by Landlord 24
13.1 Landlord's Right to Mortgage 24
13.2 Subordination 24
13.3 Attornment 25
13.4 Conveyance and Transfer of Landlord's Interest 25
13.5 Termination upon Transfer 25
Article 14 - Miscellaneous Provisions 26
14.1 Limitation of Liability 26
14.2 Tenant Certificates 26
14.3 No Termination 27
14.4 Reimbursement for Legal Expenses 27
14.5 Force Majeure 27
14.6 Broker's Commissions 27
14.7 Governing Law 27
14.8 Representation by Corporate Tenant 27
14.9 Headings and Index 28
14.10 Partial Invalidity 28
14.11 Successors and Assigns 28
14.12 When Lease Becomes Binding 28
14.13 Other Leases and Tenants 28
14.14 No Partnership 28
14.15 Manner of Giving Notice 28
14.16 Rights of Tenant's Lender 29
List of Exhibits
Exhibit Title
A Floor Plans
B Existing Rules of Building
LEASE
This lease is effective on the 1st day of October, 2000, between US Unwired
Inc. ("Landlord") and Xspedius Corp. ("Tenant").
Article 1 - Defined Terms
When used herein, the following words and phrases shall have the indicated
meanings:
Base Rental shall have the meaning ascribed thereto in Article 3.1.
Building shall mean the eleven-story office and commercial building
designated as US Unwired Tower located at 000 Xxxxxxxxx Xxxxx, Xxxx Xxxxxxx,
Calcasieu Parish, Louisiana.
Building Common Area shall mean those areas within the Building's
corridors, elevator foyers, lobbies, restrooms, mechanical rooms, janitorial
closets, security areas, vending rooms, postal facilities, telephone rooms and
electrical rooms, elevator mechanical rooms located above the elevator shafts
and other areas which are provided for the common use or benefit of all Building
tenants generally or the public generally but excluding any area occupied
exclusively by the Landlord for a purpose other than the operation of the
Building.
Commencement Date shall mean October 1, 2000.
Common Area Factor is stipulated to mean the percentage defined as such in
the definition of Leased Premises found in this Article 1, regardless of the
actual amount of Building Common Area or the actual relation of the Building
Common Area to the total Usable Area of the Building.
Default shall mean any act, event, circumstance or occurrence which, with
the giving of notice or the passage of time, or both, would constitute an Event
of Default.
Default Rate shall mean the rate of 1 1/2% per month, or the highest rate
allowed by law, whichever is less.
Environmental Laws shall mean all Legal Requirements relating to injury to
or the protection of human health or the environment, including without
limitation all Legal Requirements pertaining to reporting, licensing,
permitting, investigation, remediation and removal of emissions, discharges,
releases or threatened release of hazardous materials, chemical substances,
petroleum or petroleum products, pollutants, contaminants or hazardous or toxic
substances, materials or wastes, whether solid, liquid or gaseous in nature,
into the environment or relating to the manufacture, processing, distribution,
use, treatment, disposal, storage, transportation or handling of hazardous
materials, chemical substances petroleum or petroleum products, pollutants,
contaminants or hazardous or toxic substances, materials or wastes, whether
solid, liquid or gaseous in nature.
Event of Default shall mean any of the several events or occurrences
described in Article 12.1
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Hazardous Materials shall mean any chemical, material, gas, vapor, energy,
radiation or substance (i) the presence of which requires or may hereafter
require modification, investigation or remediation under any applicable
Environmental laws; (ii) which is or becomes defined as a "hazardous waste"
"hazardous material" "hazardous substance" "controlled industrial waste"
"pollutant" or "contaminant" under any present or future Environmental Law
including without limitation the Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. ((S) 9661 et seq.) and any other
applicable local statues and the regulations promulgated thereunder; or (iii)
which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is or becomes regulated under
any Environmental Law; (iv) the presence of which on the Lease Premises or in
the Building causes or threatens to cause a nuisance pursuant to applicable law
or poses or threatens to pose a hazard to the Leased Premises or the Building or
to the health or safety of persons or property on or about the Leased Premises
or the Building; (v) without limitation, which contains gasoline, diesel fuel or
other petroleum hydrocarbons or volatile organic compounds; (vi) without
limitation, which contains polychlorinated biphenyls or asbestos or urea
formaldehyde foam insulation; or (vii) without limitation which contains or
emits radioactive particles, waves or material, including radon gas.
Lease shall mean this lease, as hereafter amended, modified, renewed,
extended, or reconducted from time to time.
Lease Term shall mean the period of five (5) months following the
Commencement Date, and continuing thereafter on a month to month basis until
terminated by either party upon at least fifteen (15) days advance written
notice, or as otherwise provided herein.
Leased Premises shall mean those premises located on the seventh (7th) and
eighth (8th) floors of the Building, depicted on the floor plan or plans that
have been signed by Landlord and Tenant and are attached hereto as Exhibit A.
The leased portion of the 8th floor comprises approximately 8,106 square feet of
Usable Area and to which has been allotted a common area factor of 15% (the
"Common Area Factor") for an aggregate area of 9,322 square feet. The 7th floor
comprises approximately 10,816 square feet, which includes the common areas of
the 7th floor (the Common Area Factor is not applicable to the 7th floor as
Tenant leases the entire floor). Thus, the total area of the Leased Premises is
20,138 square feet of rentable space (the "Rentable Area").
Legal Requirements shall mean all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions, restrictions and requirements of and agreements with
all courts and governmental authorities now or hereafter in effect and
applicable to the Leased Premises, the Building and land thereunder or any part
thereof, or any of the adjoining sidewalks, streets or ways.
Normal Business Hours shall mean 7:00 a.m. to 6:00 p.m. Monday through
Friday, and 7:00 a.m. to 12 noon on Xxxxxxxxx, xxx following holidays being
excepted: New Year's Day, July 4th, Labor Day, Thanksgiving Day, Christmas Eve,
Christmas Day and any local holiday generally celebrated by the closing of
businesses in the city in which the Building is located.
Operating Expense Base shall mean the actual amount of Operating Expenses
incurred for calendar year 2000. In the event that the Building is less than 95%
occupied during calendar
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year 2000, as determined under generally accepted accounting principles
consistently applied, then the Operating Expense Base shall be "grossed up" to
that amount of Operating Expenses that, using reasonable extrapolations, would
have been incurred during calendar year 2000 had the Building been 95% occupied
during that calendar year. Landlord shall provide Tenant upon request with a
statement showing whether and how the Operating Expense Base is to "grossed UP.
Operating Expense Excess shall mean, during any calendar year beginning
after December 31, 2000, an amount determined by subtracting the Operating
Expense Base from the sum of (i) Operating Expenses for that calendar year
consisting of taxes, utilities and any insurance premiums, and (ii) all other
Operating Expenses for that calendar year, provided, however, that the amount of
Operating Expenses other than taxes, utilities and insurance premiums included
under this clause (ii) shall in no event exceed 110% of the amount of such
Operating Expenses included in determining the operating Expense Excess for the
preceding calendar year.
Operating Expense Rental shall mean Tenant's Pro Rata Share (adjusted as
provided in Article 3.4) of Operating Expense Excess.
Operating Expenses shall mean all expenses, costs and disbursements of
every kind and nature, but excluding advertising rental commissions and capital
investment items except as hereinafter set forth, relating to, incurred, or paid
in connection with the ownership and operation of the Building, including but
not limited to:
(a) Wages and salaries of all persons directly engaged in the operation,
maintenance, or access control for the Building, including taxes,
insurance, and benefits relating their employment;
(b) Supplies, tools, equipment and materials used in the operation and
maintenance of the Building;
(c) Maintenance and service agreements for the Building and the equipment
therein, including but not limited to security service, window
cleaning, elevator maintenance and janitorial service;
(d) Repairs and general maintenance excluding capital investment items
(and also excluding repairs and general maintenance paid by proceeds
of insurance, by Tenant, or by other third parties, and alterations
attributable solely to specific tenants of the Building);
(e) Amortization of the cost of capital investment items which are
installed for the purpose of reducing Operating Expenses or which may
be required by applicable Legal Requirements. In the case of
installations for the purpose of reducing Operating Expenses, Landlord
at Tenant's request shall provide a cost justification showing that
the anticipated reduction in Operating Expenses is greater than the
annual amortization of the capital investment for such item. All such
costs which related to the installation of capital investment items
required by legal Requirements shall be amortized over the useful life
of the capital
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investment item, with the reasonable life and amortization schedule
being determined in accordance with generally accepted accounting
principles and in no event to extend beyond the reasonable life of the
Building;
(f) Cost of all insurance relating to ownership and operation of the
Building, and Landlord's personal property used therewith including,
but not limited to, casualty, rental abatement and liability
insurance; and
(g) All taxes, assessments and governmental charges, whether or not
directly paid by Landlord, whether federal, state, parish or municipal
and whether by taxing districts or authorities presently existing or
subsequently created or otherwise, and any other taxes and state taxes
on income, death taxes, or franchise taxes and taxes arising from
Landlord's operation of its banking facilities. If at any time during
the Lease Term, the present method of taxation or assessment shall be
changed so that the whole or any part of the taxes assessments,
governmental or charges now levied, assessed or imposed on real estate
and the improvements thereof shall be discontinued as a substitute
therefor, or as an addition thereto, one or more taxes, assessments,
or governmental charges shall be levied, assessed or imposed wholly or
partially as a capital levy or otherwise on the rents received from
the Building or on the rents reserved herein, or any part thereof,
then all such substitute and additional taxes, assessments, and
governmental charges, to the extent so levied, assessed or imposed,
shall be included within Operating Expenses. (Tenant shall be
responsible for ad valorem taxes on Tenant's Property and its other
personal property and on the value of the leasehold improvements in
the Leased Premises to the extend that the same exceed Building
standard allowances. If the applicable taxing authorities do not
separately assess Tenant's leasehold improvements, Landlord may make a
reasonable allocation of the ad valorem taxes assessed on the Building
to give effect to the preceding sentence).
Pro Rata Share, with respect to Tenant and at any time, shall mean a
fraction, the numerator of which shall be the Rentable Area of the Leased
Premises and the denominator of which shall be the then existing Rentable Area
of the building, as such fraction changes from time to time, whether or not such
Rentable Area is in fact rented.
Rentable Area: (a) with respect to the Leased Premises, shall mean the
number of square feet defined as Rentable Area in the definition of Leased
Premises found in this Article 1: (b) with respect to another tenant's premises,
shall mean the number of square feet of rentable area stipulated in such other
tenant's lease, or, if no such stipulation is found in such other tenant's
lease, the amount of rentable area of such other tenant's space computed by
applying to the Usable Area of such other Tenant's space the common area factor
therein specified, or if none be so specified, the Common Area Factor specified
in this Lease; and (c) with respect to the Building, shall mean, at any time,
the then existing Usable Area of the building increased by a percentage equal to
the Common Area Factor.
Tenant's Changes shall have the meaning ascribed thereto in Article 6.4.
Tenant's Property shall have the meaning ascribed thereto in Article 6.2.
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Tenant-Related Parties shall mean (a) Tenant, its assignees, sublessees and
other successors in interest under this Lease; (b) their respective shareholders
and directors (if a corporation) and their constituent partners or members (if a
partnership or limited liability company); (c) their invitees, patrons,
customers, contractors, subcontractors, vendors and suppliers; (d) any employee,
servant, agent or licensee, concessionaire or representative of any person
described in clauses (a) through (c) above; or (e) any other person entering the
Building or the Leased Premises with the permission of or at the invitation of
Tenant or another Tenant Related Party or otherwise having business with Tenant
or with any other Tenant Related Party. In the even that a person enters the
Building for the purpose of calling upon more than one occupant, he shall be
deemed a Tenant-Related Party from the moment he enters the Leased Premises (or,
if he calls first upon Tenant, from the moment he enters the Building) until he
enters the premises occupied by another tenant or departs the Building,
whichever first occurs. A door-to-door solicitor, panhandler or other person who
enters the Leased Premises on an isolated basis without invitation and without a
good faith intention of purchasing goods or services from or otherwise
conducting business with a Tenant-Related Party shall not be considered a
Tenant-Related Party.
Usable Area shall mean, (a) with respect to any leasable space within the
Building, the area determined by measuring (i) to the finished surface of the
office side of corridor walls and other permanent walls, to (ii) the center of
partitions that separate the space from adjoining leasable space; and (iii) to
the inside finished surface of the dominant portion of the permanent outer
building walls, with no deduction shall be made for columns and projections
necessary to the Building; and (b) with respect to the entire Building, and at a
particular time, the sum of the Usable Area of all then existing leasable space
within the Building, as then configured.
Article 2 - Leased Premises and Term
2.1 Location. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Leased Premises for the Lease Term and upon the rental and
the other terms and conditions hereinafter set forth. Tenant, its
employees, agents and invitees shall have access to the Leased Premises 24
hours per day, seven days per week. Outside Normal Business Hours, Landlord
may restrict access by requiring persons to show proper identification and
permission for access to the Leased Premises.
2.2 Term and Commencement Date. The term of this Lease shall be for the Lease
Term commencing on the Commencement Date, unless sooner terminated as
herein provided or by law. If Landlord shall be unable to give Tenant
possession of the leased Premises on the anticipated Commencement Date, and
provided Tenant is not responsible for such delay, the Commencement Date
shall be deferred for a period of time equal to the period of such delay
caused by Landlord, but not by Tenant. The validity of this Lease shall not
be affected by such delay, and landlord shall incur no liability to Tenant
because of Landlord's failure to deliver possession of the Leased Premises
on the originally anticipated Commencement Date. When Landlord has
determined the actual Commencement Date, Landlord and Tenant shall execute
a supplement to this Lease setting forth the Commencement Date and
expiration date hereof.
2.3 Holding Over. If Tenant shall fail to vacate the entirety of the Leased
Premises on or before the date of expiration or earlier termination hereof,
and Tenant's possession is
5
without the consent of Landlord given in writing prior to such expiration
or earlier termination, Tenant hereby agrees to pay, for each day during
which Tenant's occupancy continues, an amount equal to 150% of all rental,
prorated on a daily basis, which Tenant was obligated to pay during the
last full calendar month preceding such expiration or termination. Such
sums shall be considered as liquidated damages in payment of damages
suffered by Landlord by reason of such holding over. In such event Tenant
shall be considered as a tenant from month to month and no other tenancy
shall be created by law or otherwise, and during such holdover period
Tenant shall remain bound to each of Tenant's obligations hereunder (and,
toward that end, the term "Lease Term", as used herein shall include such
holdover period for purposes of determining Tenant's obligations under this
Lease). The acceptance of rent by Landlord shall not extend the Lease Term
or otherwise rebut the provisions of this Article.
Article 3 - Rental
3.1 Base Rental. Tenant hereby agrees to pay a base rental ("Base Rental") in
the amount of $22,034.33 per month, subject to adjustment as herein
provided, commencing on the Commencement Date and continuing thereafter
throughout the Lease Term. Base Rental shall be due and payable on the
first day of each calendar month in advance without notice, demand, set-off
or counterclaim. If the Lease Term commences on other than the first day of
a calendar month or terminates on other than the last day of a calendar
month, then the installments of Base Rental for such fractional months
shall be prorated on a daily basis and the installment or installments so
prorated shall be paid in advance.
3.2 Operating Expenses - Tenant's Share. Beginning with calendar year 2001 and
continuing thereafter for each subsequent calendar year during the Lease
Term, Tenant agrees to pay, as Operating Expense Rental, in equal monthly
installments along with payments of Base Rental, its Pro Rata Share
(adjusted as provided in Article 3.4) of Operating Expense Excess. At any
time during the Lease Term, but no later than thirty (30) days prior to the
date a Base Rental payment is due, Landlord may deliver to Tenant a written
estimate of the Operating Expense Rental, which may be reasonably
anticipated hereunder, and Tenant agrees to pay same in equal monthly
installments for the remainder of the then current calendar year, and
thereafter until Landlord shall have submitted another written estimate to
Tenant. Tenant's liability for Operating Expense Rental shall commence on
the first day of the month following that in which Operating Expense Excess
is first incurred.
3.3 Operating Expense Statements. A statement showing actual Operating Expenses
and Tenant's Pro Rata Share of Operating Expense Excess shall be prepared
by Landlord and delivered to Tenant within ninety (90) days after the end
of any calendar year in which estimated Operating Expense Rental was paid
or became due by Tenant under the provisions hereof. Within thirty (30)
days after delivery of the statement, Tenant shall pay to Landlord the
amount of any additional Operating Expense Rental shown thereon as due and
unpaid. If Tenant's payments of estimated Operating Expense Rental shall
have exceeded Tenant's actual liability for Operating Expense Rental,
Landlord shall credit the amount of the excess to the installment(s) of
estimated Operating Expense Rental next becoming due, provided that no
Default is in existence. Tenant shall have 60 days from the date that
Landlord delivers to Tenant the Operating Expense statement
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within which to perform, at Tenant's expense and during Landlord's normal
business hours, an audit of Landlord's books and records with respect to
the computation of Operating Expense for the year with respect to which the
statement was issued.
3.4 Fractional Calendar Years. If the Commencement Date shall occur on a date
other than January 1 or if this Lease should expire or terminate on a date
other than December 31, then, for purposes of computing Tenant's liability
for Operating Expense Rental during the fractional calendar year in which
the Commencement Date occurs and that in which this Lease expires or
terminates, Tenant's Pro Rata Share shall be adjusted by multiplying it by
a fraction the numerator of which is the number of days during which this
Lease was in effect during such fractional calendar year and the
denominator of which is 365.
3.5 No Set-Off. All rent shall be payable by Tenant to Landlord without
deduction, set-off, abatement or diminution except as otherwise
specifically set forth in this Lease, and Tenant hereby expressly waives
the benefits of any and all laws permitting Tenant to claim a set-off
against rent for any cause whatsoever.
3.6 Late Payment. In the event any Base Rental, Operating Expense Rental or
other sums becoming due hereunder by Tenant to Landlord are not paid in
full when due (whether by acceleration or otherwise), such sums shall bear
interest from the date due until paid at the Default Rate.
Article 4 - Utilities and Other Services
4.1 Services. Landlord shall furnish the following services to Tenant while
occupying the leased Premised provided no Default is in existence:
A. Tempered domestic water at those points of supply provided for general
use of other tenants in the Building;
B. Subject to curtailment by legal Requirements, central heat and air
conditioning in season in such temperatures and in such amounts as are
considered by landlord to be standard in a first class office building
in the city wherein the Building is located.
C. Electric lighting service for all service areas and Building Common
Areas in the manner and to the extent deemed by landlord to be
consistent with the standards of a first class office building;
D. Janitorial service on a five day week basis in a manner consistent
with the standards of a first class office building; provided,
however, if Tenant's floor coverings or other improvements are other
than Building standard, Tenant shall pay actual additional cleaning
costs attributable thereto, if any, plus 15% overhead;
E. Equipment and personnel to limit access to the Building outside Normal
Business Hours, provided, however, that Landlord shall have no
responsibility or liability
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to Tenant, any Tenant-Related Party or to anyone who may claim by or
through Tenant or any Tenant-Related Party for any loss, claim or
damage arising out of theft, burglary, assault or other injury to
persons or property caused by persons gaining access to the Building
or the Leased Premises, and Tenant hereby releases Landlord from any
and all liability relating thereto and further covenants not to xxx or
bring any action against landlord arising therefrom.
F. All Building standard fluorescent bulb replacement and incandescent
bulb replacement in service areas, Building Common Areas and the
Leased Premises,
G. Non-exclusive passenger elevator service in common with others during
Normal Business Hours subject to such rules and regulations as may be
established from time to time by Landlord;
H. Extermination and pest control, where necessary.
To the extent that services described above require electricity, gas and water
supplied by a public utility company, Landlord's obligation shall be to use
reasonable efforts to cause the applicable public utility company to furnish the
same. Failure by Landlord to furnish the services described in this Article 4 to
any extent, or any cessation thereof, shall not render Landlord liable in any
respect for damages to either person or property and such failure shall not be
construed as an eviction of Tenant, or permit an abatement of rent, or relieve
Tenant from fulfillment of any convenant or agreement hereof. Should any
equipment or machinery, for any cause, cease to function properly Tenant shall
have no claim for abatement of rent or damages on account of interruption of
services resulting therefrom, provided, however landlord shall use diligent
efforts to properly repair or replace such equipment or machinery and to restore
the services.
4.2 Electricity
A. Landlord shall, subject to interruptions beyond its control, permit
Tenant to have access to and use of the utility services (including
electricity and water) serving the office section of the Building,
provided that Tenant does not overload the capacity of any of said
utilities. All costs and expense of any such utility service consumed
in or by the Leased Premises shall be included in Operating Expenses.
Electrical service over and above normal electrical service necessary
to operate Tenant's electrodata processing machines, computers and
similar machines requiring separate and/or dedicated circuits and for
water and/or chilled water required to operate HVAC systems necessary
to heat and cool the area housing. said machines shall be conclusively
presumed beyond normal electrical service, and shall be installed,
maintained and provided at the cost of Tenant.
B. Landlord shall have the right to require that the utilities provided
to any one or more floors of the Building be separately metered,
sub-metered, or test metered on a tenant-by-tenant or floor-by-floor
basis and to install meters for that purpose. Such installation will
be at Landlord's costs.
C. Upon the installation of any such meters on any of the full floors
forming part of the Leased Premises, Tenant shall pay to landlord, or
directly to the applicable
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utility company if required by Landlord, monthly as billed, all
charges for utilities separately metered or sub-metered with respect
to such full floor.
D. Upon the installation of any such separate meters, or sub-meters on
any of the partial floors forming part of the Leased Premises, Tenant
will pay to Landlord or directly to the applicable utility company if
required by Landlord, monthly as billed, its proportionate share of
all charges, determined by survey or other apportionment among tenants
on the floor for which such utilities are separately metered or
sub-metered as aforesaid (apportioned on the basis of their respective
Rentable Areas of space).
E. Appropriate adjustments will be made in Tenant's Base Rental and the
Operating Expense Base to reflect direct payment by Tenant of utility
charges. The amount of the reduction shall be calculated by using the
cost of utilities included in the Operating Expense Base. The
reduction shall be based upon the utility charge actually paid
directly by Tenant to the utility company.
F. If the utilities of another tenant in the Building shall become
separately metered and thereafter the other tenant should make direct
payment to the applicable utility company, then the Operating Expense
Base shall be reduced by the amount separately metered.
G. If any of the utilities or services supplied to the leased Premises
are substantially interrupted for a reason other than the negligence
or willful misconduct of Tenant or any other Tenant-Related Party,
Tenant shall be entitled to an abatement of Base Rental during the
period commencing on the fourth consecutive business day of the
interruption and ending when the utilities and/or services are
substantially restored.
4.3 Keys and Locks. Landlord shall furnish Tenant with keys to the Building
standard corridor doors entering the Leased Premises, but to the extent
only of the quantities which shall have been delivered to Tenant on the
Commencement Date. Additional keys will be furnished by landlord on an
order signed by Tenant and at Tenant's expense. All such keys shall remain
the property of Landlord. No additional locks shall be allowed on any door
of the leased Premises without Landlord's permission, not to be
unreasonably withheld, and Tenant shall not make or permit to be made any
duplicate keys. In the event that Tenant places any additional lock upon
any door of the Leased Premises, it shall supply a key to landlord and
shall, upon Landlord's request, key all such additional locks to be
compatible with master keys then in use by Landlord. Upon termination of
this Lease, Tenant shall surrender to Landlord all keys to any locks on
doors entering or within the leased Premises and give to Landlord the
explanation of the combination of any locks for safes, safe cabinets and
vault doors in the leased Premises.
4.4 Signs. Landlord shall provide and install all letters and numerals on or
about the entrance to the Leased Premises. All such letters and numerals
shall be in the Building's standard graphics. No signs, numerals, letters
or other graphics shall be used or permitted on the exterior of the leased
Premises or which otherwise may be visible from outside the Leased
Premises, unless approved in writing by landlord. Landlord shall maintain
in a
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segment of the Building Common Area a building directory containing
Tenant's name and location within the Building.
4.5 Parking. Landlord shall provide Tenant one (1) free space per 1,000
rentable square feet leased with a maximum ten (10) being covered assigned
parking spaces. Additional non-covered spaces will be at a charge of $25.00
per space per month, subject to availability.
4.6 Telephone. Telephone service, telephone lines and other telephone equipment
needed as a result of Tenant's occupancy of the leased Premises including
without limitation such service, lines, and equipment needed for the use of
Tenant's electrodata processing machines, computers and similar machines,
shall be provided, installed and maintained at Tenant's expense.
Article 5 - Use of Premises; Conduct of Business
5.1 Use and Occupancy. Tenant shall use and continuously occupy the leased
Premises during the Lease Term solely for general office purposes and for
no other use without the prior written consent of Landlord. Tenant shall
not use or occupy or permit the use of occupancy of the leased Premises or
any part thereof for any use or in any manner that, in Landlord's
reasonable judgment, would adversely affect or interfere with any services
required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Building or with the use or enjoyment of any part of the
Building by any other tenant or occupant thereof or that would conflict
with or violate any Legal Requirement or any permit, special restriction or
certificate of occupancy required or issued for the leased Premises or any
part of the Building.
5.2 Compliance with Insurance Policies. Tenant shall not do anything or permit
anything to be done or to exist in or about the leased Premises which would
or might (a) invalidate or conflict with the provisions of any fire or
other insurance policy covering any part of the Building or any property
located therein or thereon, or (b) result in a refusal by any insurance
company to insure any part of the Building or any such property in amounts
reasonably satisfactory to Landlord, or 9c) subject landlord to any
liability or responsibility for injury to any person or property by reason
of any business, operation or other the activity being conducted in the
Leased Premises or any condition of or in the Leased Premises, or (d) cause
any increase in the insurance rates applicable to any part of the Building
or property located therein, over those rates applicable at the beginning
of the lease Term or at any time thereafter. Tenant, at Tenant's expense,
shall comply with all rules, orders, regulations and requirements of the
American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body that shall hereafter perform the
function of such association.
5.3 Compliance with Laws.
A. Tenant shall not use or occupy, pr permit the use or occupancy of, the
Leased Premises in a manner that would violate any Legal Requirements.
Tenant, at Tenant's cost and expense, shall comply with all Legal
Requirements that shall impose any duty upon Landlord or Tenant with
respect to the leased Premises or the use or occupancy thereof
(including without limitation zoning or building
10
codes, ordinances, laws or other regulations whether now in effect or
hereafter enacted), provided, however that Tenant shall not be
required to make any alterations to the Building shell or the base
Building systems in order to comply therewith unless (i) Tenant is
required to make such alterations under Section B of this Article 5.3,
or (ii) such alterations shall be necessitated or occasioned, in whole
or in part, by non-building standard work or Tenant's Changes or by
the acts, omissions or negligence of Tenant or any other
Tenant-Related Party or by the use or occupancy or manner of use or
occupancy of the leased Premises by Tenant or any other Tenant
Related-Party.
B. Tenant, at Tenant's own cost and expense, shall be responsible for
making, and shall promptly make from time to time as necessary, any
alterations, repairs or improvements within the Leased Premises which
may be required to comply with the Americans With Disabilities Act of
1990, as heretofore and hereafter amended, and any regulations how or
hereafter promulgated thereunder and with any other Legal Requirements
enacted or promulgated for the benefit of disabled persons. Landlord
shall be responsible for making any such alterations, repairs or
improvements within the Building Common Areas which may be required to
comply with such act, regulations or other Legal Requirements.
Landlord's expense in doing so (or, in the event of capital
improvements, an appropriate amortization of its expense of doing so
based on the useful life of the capital improvements) shall be
included within Operating Expenses.
5.4 Rules of Building. Tenant shall comply with, and Tenant shall cause all
Tenant Related-Parties to comply with, the written rules and regulations of
the Building promulgated and amended by Landlord from time to time for the
safety, care and cleanliness of the leased Premises and Building and for
preservation of good order therein. The presently existing rules of the
Building are attached hereto as Exhibit "B". In the event of a conflict
between rules promulgated by Landlord and the provisions of this Lease, the
provisions of this Lease shall control. Notwithstanding any conflicting
provision of the rules and regulations, Tenant may use and operate a coffee
machine, refrigerator, microwave oven, cold drink dispenser and snack
vending machine (but no xxxx top) in the kitchen area of the Leased
Premises.
5.5 Entry for Repairs and Inspection. Tenant shall permit Landlord and its
contractors, agents or representatives to enter into and upon any part of
the Leased Premises at reasonable hours to inspect and clean the same, make
repairs, alterations, or additions thereto, and with 24 hours' notice
(except in the case of emergency), show the same to prospective tenants
(but only during the last two months of the Lease Term), purchasers or
mortgagees and for any other reasonable purpose which Landlord may deem
necessary or desirable, and Tenant shall not be entitled to any abatement
or reduction of rent by reason thereof.
5.6 Nuisance, Waste, Defacing. The Tenant shall not carry on any business or do
or suffer any act or thing which may constitute a nuisance or result in a
nuisance or which shall be offensive or an annoyance to landlord or to the
other tenants occupying the Building, nor do or suffer any waste or damage,
disfiguration or injury to the Leased Premises or any other part of the
Building. Tenant shall not drill into or in any way deface the walls,
11
ceilings, partitions, floors, wood, stone or ironwork within the Building
without the prior written consent of Landlord. Boring, cutting or stringing
of wires or pipes shall not be done except with the prior written consent
of Landlord, and as Landlord may direct. In the event of any violation of
the provisions hereof, Landlord may, in addition to any other remedies it
may have hereunder, repair any such damage, and Tenant shall reimburse
Landlord therefor in accordance with Article 12.3.
5.7 Dangerous Substances, Heavy Objects. Neither Tenant nor any Tenant
Related-Party shall bring into the Leased Premises or any other part of the
Building any flammable, dangerous or explosive oils, chemicals or
materials, nor shall Tenant or any Tenant-Related Party bring into the
Building any article or fixture which by reason of its size and weight
shall load any floor beyond its reasonable weight-carrying capacity. No
safe, heavy article or anything that might damage any part of the Building
shall be taken into or out of the Building without the prior consent of
landlord, and landlord shall in all cases retain the power to prescribe the
maximum permitted weight, and indicate the place where any such safe or
heavy article is to stand. If any damage is caused to the Building by any
article brought into the Building or into the Leased Premises by or on
behalf of Tenant or any Tenant-Related Party, Tenant shall reimburse
landlord on account of such repairs in accordance with Article 12.3.
5.8 Hazardous Material.
A. Tenant shall not cause or permit any Hazardous Material to be brought
upon, kept, or used in or about the Leased Premises by Tenant or any
other Tenant-Related Party. Tenant shall not discharge, leak, or emit,
or permit to be discharged, leaded, or emitted, any material into any
portion of the Building or into the atmosphere, ground, sewer system,
or any body of water, if that material (as is reasonably determined by
landlord or any governmental authority) does or may pollute or
contaminate the same, or may adversely affect (1) the health, welfare
or safety of persons, whether located on the Leased Premises, the
Building or elsewhere, or (2) the condition, use or enjoyment of the
Building or any other real or personal property.
B. Tenant hereby agrees that it shall be fully liable for all costs and
expenses related to the use, storage, disposal of Hazardous Material
in or about the Leased Premises or any other portion of the Building
on account of any action of Tenant or any other Tenant-Related Party,
and Tenant shall give immediate notice to Landlord of any violation or
potential violation of the provisions of Article 5.8. Tenant shall
defend, indemnify, and hold harmless Landlord and its agents and
employees, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses (including,
without limitation, litigation expenses) of whatever kind or nature,
known or unknown, contingent or otherwise, arising out of or in any
way related to (1) the presence, disposal, release, or threatened
release of any such hazardous material that through the action of
Tenant or any other Tenant-Related Party is on, from, or affecting the
soil, water, vegetation, buildings, personal property, persons,
animals, or otherwise; (2) any personal injury (including wrongful
death) or property damage (real or personal) arising out of or related
to that Hazardous Material; (3) any
12
lawsuit brought or threatened, settlement reached, or government order
relating to that Hazardous Material; or (4) any violation of any laws
applicable thereto. The provisions of this Article 5.8 shall be in
addition to any other obligations and liabilities Tenant may have to
Landlord at law or in equity and shall survive the expiration or other
termination of this Lease.
C. Tenant and the Tenant-Related parties will be solely responsible for
and will defend, indemnify and hold Landlord, its agents, and
employees harmless from and against all claims, costs, and
liabilities, including attorneys' fees and costs arising out of or in
connection with any environmental damages due to Tenant's breach of
its obligations in this Article 5.8. Tenant will be solely responsible
for and will defend, indemnify, and hold Landlord, its agents, and
employees harmless from and against any and all environmental damages,
including attorneys' fees and costs, necessary to return the Leased
Premises and any other property of whatever nature to their condition
existing prior to the appearance of Tenant's Hazardous materials on
the Leased Premises or any other portion of the Building. Tenant's
obligations under this Article 5.8 will survive the expiration or
other termination of this Lease.
Article 6 - Tenant's Property and Tenant's Changes
6.1 Part of Leased Premises. Except as provided in Article 6.2, all fixtures,
equipment, improvements, appurtenances and other property attached to or
build into the Leased Premises at the commencement of or during the Lease
Term, whether or not pursuant to a work letter and whether or not at the
expense of Tenant, and any replacements thereof whether or not at the
expense of Tenant, shall be and remain a part of the Leased Premises, shall
be deemed the property of Landlord and shall not be removed by Tenant,
except as hereinafter provided.
6.2 Tenant's Property. All furniture, furnishings and other articles of movable
personal property which Tenant, without expense to Landlord, places in the
Leased Premises and which can be removed without structural or other
substantial damage to the Building or the Leased Premises (all of which are
herein called "Tenant's Property") shall be and remain the property of
Tenant and may be removed by it at any time during the Lease Term provided
that no Default is then in existence and further provided that, if the
removal of any of Tenant's Property causes damage to any portion of the
Leased Premises or other parts of the Building or to any other property,
Tenant shall repair or pay the cost of repairing any such damage resulting
from such removal, which obligation to perform or pay for such repairs
shall survive the expiration or termination of this Lease. Any equipment or
other property for which Landlord shall have granted any allowance or
credit to Tenant or which is a replacement for such items originally
provided by Landlord shall not be deemed to have been installed by or for
the account of Tenant without expense to Landlord and shall not be
considered Tenant's Property.
6.3 Removal by Tenant. At or before the expiration or termination of this
Lease, and unless Landlord objects on account of the existence of a Default
or Event of Default, Tenant shall remove from the Leased Premises all of
Tenant's Property and, if Landlord so requests, Tenant shall also remove
any non-Building standard work and any additional
13
work or alterations installed by Tenant pursuant to Article 6.4 or
otherwise. In each instance, Tenant at its sole cost and expense shall
repair any damage to the Leased Premises or the Building resulting from
such removal. Tenant's obligation under this Article 6.3 shall survive the
expiration or termination of this Lease. Any items of Tenant's Property
which shall remain in the Leased Premises after the expiration or
termination of this Lease may, at the option of Landlord, be deemed
abandoned and in such case may either be retained by Landlord as its
property (without the need to compensate Tenant therefor) or be disposed
of, without accountability, at Tenant's expense in such a manner as
Landlord may see fit.
6.4 Alterations.
A. Tenant shall make no alterations, installations, additions, or
improvements (collectively "Tenant's Changes") in or to the Leased
Premises without Landlord's prior written consent, which Landlord may
give or withhold in its sole and absolute discretion. No Tenant's
Changes shall require Landlord to do any work or expend any sums,
whether pursuant to any applicable law, code or regulation, or
otherwise, for or with respect to the Leased Premises or any other
part of the Building, or result in the loss of any Usable Area or any
amenities of the Building or otherwise adversely affect any economics
in the operation of the Building. All Tenant's Changes shall be done
at Tenant's expense, at such times and in such manner as Landlord may
designate, in accordance with plans and specifications approved by
Landlord, only by such contractors or mechanics as are approved by
Landlord, and subject to all other conditions which Landlord may in
its sole and absolute discretion impose. Any proposed Tenant's Changes
to or affecting any of the Building systems must be either designed or
approved by Landlord's engineer. Tenant shall reimburse Landlord for
Landlord's reasonable costs and expenses incurred in connection with
any proposed Tenant's Changes, including without limitation any fees
charged by Landlord's architect or engineer in connection with the
preparation or review of any plans and specifications for any proposed
Tenant's Changes, within five (5) days after submission of invoice
therefor by Landlord.
B. Prior to commencing any of Tenant Changes, Tenant shall, at its own
expense, cause to be recorded in the Mortgage Records of the parish
wherein the Building is situated, a proper notice of contract, with
attached payment bond in the amount required by law, and shall take
all such other action as may be required to relieve Tenant, Landlord,
the leased Premises, the Building and Tenant's rights under this Lease
from any claims or privileges arising under La. R.S. 9:4802.
6.5 Mechanics and Other Liens. Tenant covenants not to permit any laborer's,
materialman's, supplier's, or contractor's or other lien to attach to its
rights hereunder, the Leased Premises or to the Building and Tenant shall
promptly pay all its contractors and suppliers and shall do all things
necessary to prevent the same from attaching. Within ten (10) days after
Tenant receives notice of any such lien or encumbrance, Tenant shall
procure the discharge thereof by payment or by posting security or by any
other manner that may be required or permitted by law. If Tenant fails to
discharge such lien or encumbrance within said period, then landlord shall
have the right (but not the
14
obligation) to discharge the same, and Tenant shall reimburse Landlord
therefor, in accordance with Article 12.3. Notwithstanding the foregoing,
Tenant may contest the validity of any such claim if Tenant shall first
obtain an order discharging the lien or encumbrance (as the case may be) or
if Tenant shall first furnish to Landlord security acceptable to landlord
in nature and amount against all loss or damage which Landlord might suffer
or incur thereby.
Article 7 - Maintenance and Repairs
7.1 Repairs to Building. Landlord shall maintain the Building as a first class
office building and shall perform such maintenance as necessary to keep the
Building and Building Common Areas (other than the maintenance or
alterations Tenant is obligated to perform under Article 5.3 or Article
7.2) in good repair. Costs incurred by Landlord in doing so shall be
included in Operating Expenses and Tenant shall reimburse Landlord for
Tenant's Pro-Rata Share thereof pursuant to the provisions of Article 3.2.
If damage or injury to the Building is caused by or attributable to Tenant
or any other Tenant-Related Party, Landlord shall repair such damage or
injury, and Tenant shall reimburse Landlord therefor under Article 12.3.
7.2 Repairs to the Leased Premises. Tenant convenants to correct and repair, at
Tenant's sole cost and expense, any damage to the Leased Premises, normal
wear and tear excepted, caused by Tenant or any Tenant-Related Party.
Tenant shall take all preventative measures and obey all operating
instructions of Landlord relative thereto, and shall not permit waste.
Tenant will commence repair such items as Landlord deems necessary, upon
five (5) days' notice in writing, and will prosecute such repairs
diligently to completion, but failure by landlord to give such notice shall
not relieve Tenant from its obligation to repair. All repairs made by or on
behalf of Tenant shall be made in conformity with Article 6 and shall be
at least equal in quality and class to the original work or the then
applicable standards for the Building established by Landlord. In the event
that Tenant fails to make any repair required of Tenant under this Lease,
Landlord may enter the Leased Premises and make such repairs, in which
event Tenant shall reimburse landlord therefor in accordance with Article
12.3. The provisions of this Article complement, and shall neither enlarge
nor reduce, the obligations of Tenant under Article 9 of this Lease.
7.3 Condition of Leased Premises. Tenant assumes responsibility for the
condition of the Leased Premised throughout the Lease Term and does hereby
agree to indemnify, defend and hold harmless landlord, its mortgagees,
agents, employees, successors and assigns, from and against any and all
liability for any injury to, or death of, any person or persons or damage
to property in any way arising out of, or connected with, the condition,
use or occupancy of the Leased Premises and from all costs, expenses and
liabilities, including, but not limited to, reasonable attorneys fees,
incurred by Landlord in connection therewith, excepting, however, liability
caused by any defect in the Leased Premises which Landlord is obliged to
repair under the terms of this Lease and which Landlord has neglected or
refused to repair within a reasonable time after receipt of notice thereof
from Tenant. The indemnity herein provided is in addition to, and
complements but does not restrict, the indemnities provided under Article
9.1 or any other provision of this Lease.
15
Article 8 - Casualty Damage, Eminent Domain and Restoration
8.1 Fire or Other Casualty. If the Leased Premises or the Building is damaged
by fire or any other insured casualty to an extent which is less than 25^
of the costs of replacement, the damage shall be repaired by Landlord
within a reasonable time period thereafter, but in no event shall Landlord
be required to commence such repairs until Landlord has received the
proceeds of all applicable insurance therefor, and further provided that in
no event shall Landlord be obligated to expend for such repairs an amount
in excess of net insurance proceeds received as a result of such damage. In
no event shall landlord be required to repair or replace Tenant's fixtures,
furniture, furnishings, floor coverings or any equipment or other items of
Tenant's Property irrespective of whether Tenant previously received an
allowance or credit therefor from Landlord. In the event of any damage and
(a) Landlord is not required to repair, or (b) the Leased Premises shall be
damaged to the extent of 25% or more of the costs of the replacement, or
(c) the Building is damaged to the extent of 25% or more of the costs of
replacement, then, notwithstanding the extent of damage, if any, to the
Leased Premises, Landlord may elect either to repair or rebuild the Leased
Premises or the Building or to terminate this Lease upon written notice of
such election in writing to Tenant within 120 days after the occurrence of
the event causing the damage. If the casualty, repair, or rebuilding shall
render the leased Premises untenantable in whole or in part or if a
casualty, repair or if a casualty, repair or rebuilding of portions of the
Building outside the Leased Premises shall substantially deprive Tenant of
the use of the leased Premises, and the damage shall not have been due to
the fault, willful act, omission or neglect of Tenant or any other
Tenant-Related Party, then a proportionate abatement of Base Rental shall
be allowed from the date on which the damage occurred until the date the
Leased Premises are ready for re-occupancy (or, in the case of a casualty,
repair or rebuilding of portions of the Building outside the Leased
Premises substantially depriving Tenant of the use of the Leased Premises,
at the time the deprivation ceases). Abatement shall be computed upon the
basis of the relation which the usable Area of the Leased Premises rendered
untenantable bears to the total Usable Area of the Leased Premises.
Landlord shall not be liable for any inconvenience or annoyance to Tenant
or any injury to the person or business of Tenant resulting in any way from
any such damage, or from the repair, rebuilding or restoration thereof.
8.2 Eminent Domain. If the whole of the Leased Premises shall be taken by any
authority acting under the power of eminent domain or similar proceeding or
conveyance in lieu thereof, this Lease shall terminate as of the date of
such taking or conveyance, and Tenant shall pay Base Rental and all
additional rental up to that date with an appropriate refund by Landlord of
such rent as may have been paid in advance of any period subsequent to the
date on which this Lease shall have been terminated. If only part of the
Leased Premises is taken or if part of the Building shall be taken or
conveyed even though the Leased Premises are not affected, Landlord, at
this option, may terminate this Lease by written notice to Tenant given
within 120 days after landlord shall have received notice of such taking.
Otherwise the Lease shall cease only as to the portion so taken and the
Base Rent shall be reduced in proportion to the taking. If Landlord does
not terminate this Lease as herein provided, Landlord shall make all
necessary repairs and alterations to the Building so as to constitute the
Building and Leased Premises as a complete architectural unit. All
compensation awarded for any taking under the power of
16
eminent domain, whether for the whole or part of the Leased Premises, shall
be the property of Landlord, whether such damages shall be awarded as
compensation for diminution in the value of the leasehold or to the fee of
the Leased Premises or otherwise and Tenant hereby assigns to Landlord all
of Tenant's right, title and interest in and to any and all such
compensation, provided, however, Landlord shall not be entitled to any
award made to Tenant for the taking of Tenant's Property.
Article 9 - Indemnity, Liability and Insurance
9.1 Indemnity. Tenant hereby agrees to hold harmless, indemnify, protect and,
at landlord's option to defend Landlord, its mortgagees, agents, employees,
successors and assigns from all injury, loss, claim, or damage to any
person or property while such person or property is in, on or about the
Leased Premises or in, on or about any other part of the Building and such
injury, loss, claim or damage is occasioned by any act or omission of
Tenant or of any other Tenant-Related Party.
Except as expressly provided to the contrary in this Section, the
indemnities provided in this Section shall include all costs and attorney
fees incurred in any such claim, proceeding or litigation in the defense
thereof. Such indemnities shall be fully applicable regardless of whether
the injury, loss, claim or damage is caused in part, or is alleged to have
been caused in whole or in part, by the negligence of a person to be
indemnified hereunder.
The provisions of this Article complement, and shall neither enlarge nor
reduce, the obligations of Tenant under Article 7.2 of this Lease.
9.2 Tenant's Liability Insurance. Tenant shall maintain public liability
insurance naming Landlord as an additional insured and, if so requested,
Landlord's mortgagees, as their interest may appear against all claims,
demands, and actions for injury to, or death, of any person and all claims,
demands and actions for damage to property, in an amount of not less than
$3,000,000 by or on behalf of any person arising, relating to, or connected
with this Lease, the Leased Premises, or the Building, and in addition, in
like amount, Tenant shall obtain coverage for Tenant's contractual
liability under the indemnity provisions of this Lease.
9.3 Tenant's Property Insurance. Tenant shall maintain throughout the Lease
Term insurance on Tenant's Property and all leasehold improvements made or
installed by or on behalf of Tenant or Landlord covering those risks
covered by an "All Risk Policy" of property insurance, including sprinkler
leakage coverage and such other risks as Landlord may reasonably require,
in minimum limits equal to the full replacement costs thereof. The proceeds
of such insurance shall be payable jointly to Landlord and Tenant and, in
the event of a casualty, shall be disbursed in such a manner as Landlord
may reasonably require to insure restoration of Tenant's leasehold
improvements, as required by this Lease.
9.4 General Requirements of Tenant's Insurance. All insurance required of
Tenant shall be in a form and written by a responsible company authorized
to do business in the State of Louisiana and otherwise satisfactory to
Landlord and shall provide that any such
17
policy will not be subject to cancellation or change without at least 30
days' prior written notice to Landlord and, if so requested, to Landlord's
mortgagees. The policies or duly executed certificates for the same (which
certificates shall evidence the waiver of subrogation required by this
Lease) together with satisfactory evidence of the payment of the premium
thereon shall be deposited with Landlord before Tenant commences occupancy
and, upon renewals of such policies, not less than 30 days prior to the
expiration of the term of such policies. If Tenant fails to comply with
such requirements, Landlord may obtain Tenant's insurance and keep the same
in effect, in which event Tenant shall reimburse Landlord under Article
12.3. In addition to any and all other rights and remedies available to
Landlord under this Lease or by law, Landlord shall also be entitled to
recover, as damages for such breach, the uninsured amounts of any loss, to
the extent of any deficiencies in insurance required by or of this Lease.
Except with respect to liability insurance policies, neither Landlord nor
Tenant shall take out separate insurance concurrent in form or contributing
in the event of loss with any other insurance required under this Lease,
unless both Landlord and Tenant are included therein as insureds with loss
payable as provided in this Lease. Each party shall immediately notify the
other of the placing of any separate insurance.
9.5 Mutual Waiver of Subrogation Rights. Whenever any loss, cost, damage, or
expense resulting from fire, explosion or any other insured casualty or
occurrence is incurred by either Landlord or Tenant and such party is then
required to be or is covered in whole or in part by insurance with respect
to such loss, cost, damage, or expense, then the party so insured, or
required to be insured, hereby releases the other party from any and all
liability it may have on account of such loss, costs, damage, or expense,
to the extent of any amount recovered, or which would have been recovered
if so insured, by reason of such insurance, and waives any right of
recovery which might otherwise exist in, or accrue to, any person on
account thereof, to the full extent of such losses, cost, damages, or
expenses, notwithstanding any deductible in such policy, provided however,
that such release of liability and waiver of the right of subrogation shall
not be operative in any case where the effect thereof is to invalidate such
insurance coverage.
9.6 Landlord's Property Insurance. Landlord agrees that it will insure the
Building and the machinery, boilers, and equipment contained therein and
owned by landlord in such reasonable amounts as would be carried by a
prudent owner, provided, Landlord shall not be required to insure any
property which Tenant is obligated to insure hereunder. Landlord shall also
carry public liability and property damage insurance with respect to the
operation of the Building in reasonable amounts as would be carried by a
prudent owner. Landlord reserves the right to take out and carry any other
form of insurance as landlord or its mortgagee may determine prudent or
advisable.
Article 10 - Landlord's Covenant of Quiet Enjoyment
10.1 Peaceful Enjoyment. Tenant, on payment of all rent and observance of
performance of all terms and covenants of this Lease on its part to be
observed and performed, shall lawfully, peaceably and quietly have, hold,
occupy, and enjoy the Leased Premises during the Lease Term without
hindrance or ejection by any persons lawfully claiming under Landlord, but
this covenant shall be binding upon Landlord and its successors only
18
with respect to breaches occurring during their respective periods of
ownership of the Leased Premises hereunder.
Article 11 - Assignment
11.1 Prohibition of Assignment. Tenant shall not voluntarily, involuntarily, or
by operation of law, assign, transfer, mortgage or otherwise alienate or
encumber this Lease or any interest of Tenant herein, in whole or in part,
or sublet the whole or any part of the Leased Premises, or permit the
Leased Premised or any part thereof to be used or occupied by others,
without the prior written consent of Landlord. The collection of rent by
Landlord from any assignee, sublessee or other occupant, shall not be a
waiver of this covenant or the acceptance of any assignee, sublessee, or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of the covenants in this Lease on the part of Tenant to be
performed. Any subletting or assignment, if consented to, shall be subject
to and conditioned upon each of the following:
A. At the time of any proposed subletting or assignment, no Default or
Event of Default shall then be in existence.
B. The sublessee or assignee shall continuously occupy the Leased
Premises and conduct its business therein in accordance with the
permitted use and all other provisions of this Lease.
C. If the total rent required to e paid by such sublessee or assignee
shall exceed the total rent required hereunder from Tenant, then
Tenant shall pay to Landlord monthly the entire amount of such excess,
which shall be deemed additional rent.
D. Prior to occupancy by any assignee or sublessee, Tenant and its
assignee or sublessee shall execute, acknowledge and deliver to
Landlord a fully executed counterpart of a written assignment of lease
or sublease, as the case may be, consented to by all guarantors, if
any, the terms of which shall be subject to Landlord's approval and
shall include the following: (i) in the event of an assignment, Tenant
shall assign to such assignee the entire interest of Tenant in and to
this Lease, together with all prepaid rents hereunder and the assignee
shall accept the assignment and agree to perform directly for the
benefit of landlord and those claiming by, through or under landlord;
or (ii) in the event of subletting, the sublease in all respects shall
be subject and subordinate to all of the terms, covenants and
conditions of this Lease on the part of Tenant to be performed, except
the payment of rent reserved hereunder, which Tenant shall continue to
be obligated to pay to landlord unless Landlord shall otherwise agree
to accept same from the subtenant as agent for Tenant.
E. Tenant and each guarantor, if any, shall acknowledge that,
notwithstanding such assignment or sublease, and the consent of
Landlord thereto, neither Tenant nor guarantor, if any, will be
released or discharged from any liability whatsoever under this Lease;
and both Tenant and each guarantor will continue to be primarily
liable hereunder with the same force and effect as though no
assignment or sublease had been made.
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F. Tenant shall pay to Landlord a reasonable fee which shall not be less
than the sum of $500 for administrative costs and attorneys fees
incurred by Landlord in connection with such assignment or subletting.
11.2 Corporation, Partnership, or Limited Liability Company. If Tenant or any
guarantor of this Lease, if any, is a corporation, partnership or limited
liability company, and if at anytime during the lease Term the person or
persons who, on the date of this Lease, own or owns a majority of the
voting stock of such corporation or a majority of the partnership or
membership interest of such partnership or limited liability company, as
the case may be, cease or ceases to own (whether on account of a single
event or on account of the effect of several events), a majority of such
voting stock or of such interest, as the case may be (except as the result
of transfer by gift or inheritance) or if the guarantor, if any, of this
Lease is dissolved, dies, becomes incompetent or insolvent, Tenant shall so
notify Landlord and landlord shall have the right, at its option, to
terminate this Lease by written notice to Tenant given thirty (30) days
after Landlord shall have received such notice. Notwithstanding anything
contained herein to the contrary, the provisions of this Article 11.2,
shall not be applicable if Tenant is a corporation, all outstanding voting
stock of which is listed on a national securities exchange (as defined in
the Securities Exchange Act of 1934, as amended). For the purposes of this
Article 11.2 stock ownership shall be determined in accordance with the
principle set forth in Section 544 of the Internal Revenue Code of 1986, as
the same existed on January 1 of the year in which this Lease was executed,
and the term "voting stock" shall refer to shares of stock regularly
entitled to vote for the election of directors of the corporation.
Article 12 - Default by Tenant
12.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an Event of Default hereunder:
A. If Tenant shall fail to pay any rent or any other sum required to be
paid under this Lease by Tenant when due; or
B. If Tenant shall fail to perform or observe any other agreement or
covenant or provision of this Lease or otherwise violate any provision
of this Lease and such failure or violation shall continue for fifteen
(15) days after notice from Landlord; or in the case of any such
failure or violation which in Landlord's opinion cannot with diligence
be cured within fifteen (15) days, if Tenant shall fail to commence
such cure within said period and thereafter to pursue the cure
diligently to completion; or
C. If Tenant or any guarantor of this Lease shall file a petition in
bankruptcy or commence any proceeding under any bankruptcy,
insolvency, reorganization, arrangement, composition, readjustment,
dissolution, liquidation or similar law or statue of any jurisdiction,
whether now or hereafter in effect; or if Tenant or any guarantor
shall by act or omission approve, consent to or acquiesce in the
filing of any such petition; or
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D. If there shall be filed or commenced against Tenant or any guarantor
of this Lease any proceeding under any bankruptcy, insolvency,
reorganization, arrangement, composition, readjustment, dissolution,
liquidation or a similar law or statute of any jurisdiction, whether
now or hereafter in effect, and if such proceedings shall remain
undismissed 30 days or more after its institution; or
E. If Tenant or any guarantor of this Lease shall apply to or petition
any tribunal for the appointment of a custodian, receiver, intervenor,
keeper, trustee or similar official (howsoever names) for Tenant or
any guarantor or for all or a substantial part of the property of any
of them; or if Tenant or any guarantor shall by act or omission
approve, consent to or acquiesce in any such appointment made at the
request of any other person; or if Tenant or any guarantor shall
suffer the appointment of any such official at the request of any
other person to continue undischarged for thirty (30) days or more; or
F. If Tenant or any guarantor shall make an assignment for the benefit of
creditors, or shall become insolvent or unable to pay their respective
debts as the same become due, or shall admit in writing such
insolvency or liability, or shall file any proceedings to declare such
insolvency or inability, or if any such proceedings shall be filed
against any of them and remain undismissed for thirty (30) days or
more; or
G. If the leasehold interest of Tenant hereunder is encumbered, seized,
levied upon or attached by process of law and Tenant shall fail to
obtain the dismissal, dissolution or release thereof within thirty
(30) days thereafter; or
H. If Tenant shall vacate, desert or abandon the Leased Premises for a
period of ten (10) consecutive days, or if Tenant shall fail to occupy
the Leased Premises within ten (10) days after the Commencement Date;
or
I. If any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby demised would, by operation of law or
otherwise, devolve upon or pass to any person other than Tenant.
12.2 Landlord's Remedies. Upon the occurrence of an Event of Default, Landlord,
at its option, may exercise any one or more of the following remedies in
addition to all other rights and remedies granted by law:
A. Landlord may terminate this Lease, whereupon Tenant shall immediately
surrender the Leased Premises to landlord, in default of which
Landlord, without further notice, may re-enter the leased Premises and
obtain the possession thereof, and Tenant shall remain liable for
damages resulting from Tenant's default. Termination of this Lease by
Landlord's notice, summary proceedings, or otherwise shall not relieve
Tenant of any accrued liability hereunder, and Tenant shall remain
obligated to pay Landlord all rent and other sums required to be paid
up to the time of the termination of the Lease, including interest at
the Default Rate. Tenant shall also be liable to Landlord, as
liquidated damages for such breach, in an amount equal to (i) the
entire amount of rent (including Base Rental,
21
Operating Expense Rental and all additional rental) which would have
been payable under this Lease by Tenant from the date of termination
to the expiration date of the Lease Term had this Lease not been
sooner terminated because of Tenant's default, less the then fair
market rental value of the Leased Premises for the same period of
time; provided, however, that in the event the Leased Premises have
been relet at the time such liquidated damages are sought, the rental
payable on account of such reletting shall be presumed to be the fair
market rental value of the Leased Premises for the period covered by
such reletting. Such liquidated damages shall become immediately due
and payable upon Tenant's default.
B. Landlord may declare the entire Base Rental, Operating Expense Rental
and all additional rent which might become due hereunder, for the full
unexpired Lease Term, to be immediately due and payable, reserving
unto Landlord the right to collect all additional rent accruing under
this Lease from time to time. Following the occurrence of any Event of
Default, and without causing the termination of the Lease or abridging
any declaration under the terms of this Section, Landlord may (but
shall not be obligated to) relet the Leased Premises or any part
thereof, together with any additional space in the building, for such
term, rental and other conditions as landlord may determine in his
sole discretion and may collect and receive the rents therefore.
Landlord shall in no way be responsible or liable for any failure to
relet the Leased Premises or any part thereof or to collect any such
rent upon reletting. Upon any such reletting, the net proceeds
received therefrom (after reimbursement of Landlord's expenses
incurred in connection with such reletting, including without
limitation, all costs to recover possession of the Leased Premises,
brokerage and management commissions, reasonable attorneys fees, other
legal expenses, alteration costs and expenses of otherwise preparing
the Leased Premises for reletting) shall be applied (i) until time as
Landlord has exercised its right to declare the rentals due under this
Lease to be due and payable in full, monthly on the first day of each
month to the payment of each current installment of Base Rental and
other rentals which have become due hereunder; and (ii) following any
such declaration, in reduction of the amount which is declared to be
immediately due and payable but only if, as and when received.
C. If the leased Premises are abandoned or otherwise vacated or if this
Lease is terminated according to law, whether or not the Leased
Premises are relet, Landlord shall be entitled to recover from Tenant
in addition to all other damages, an amount equal to all other
expenses including reasonable attorney fees incurred by Landlord in
recovering possession o the Leased Premises and all costs and legal
expenses thereof, together with all expenses incurred for the care and
protection of the Leased Premises while vacant. All such damages to
become immediately due and payable by Tenant upon presentation of an
invoice therefor.
D. Landlord shall have the right of injunction with respect to any breach
or threatened breach of this Lease without the necessity of showing
irreparable injury.
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E. In addition to the lessor's privilege provided by applicable law,
Landlord shall have a security interest in all of Tenant's Property
and in the security deposit posted under the terms of Article 3.5
(which security interest Tenant hereby grants to Landlord as security
for the prompt and full compliance of all obligations imposed under
this Lease upon Tenant) and may enforce such lessor's privilege and
security interest in the manner provided by law. For purposes of
executory process, Tenant hereby confesses judgment upon all
obligations, present and future, imposed upon it or otherwise arising
under this Lease, waives the benefit of appraisement and waives the
three day demand for payment prescribed by Article 2639 of the
Louisiana Code of Civil Procedure. Pursuant to the provisions of
La. R.S. 9:5136, Tenant and Landlord hereby appoint Landlord, or such
other person landlord may designate at the time of any seizure, as
keeper of the property in which Landlord is hereby granted a security
interest. In the event that Tenant desires to grant a security
interest in Tenant's Property granted in favor of a bank, savings and
loan association, insurance company or other institutional lender as
security for the repayment of money lent to Tenant, then Landlord
agrees, upon Tenant's request, to subordinate its security interest in
favor of the security interest taken by such other lender.
12.3 Landlord's Right to Cure. In the event that any failure by Tenant to
perform any of its obligations hereunder or any other violation of this
Lease continues beyond any applicable cure period specified in Article
12.1, Landlord may, but shall not be obligated to, perform such obligation
on Tenant's behalf; provided, however, that Landlord may take such action
regardless of whether any such cure period shall have expired in the event
of an imminent threat of injury or damage to person or property or other
emergency. In the event that Landlord does so, or in the event that
Landlord otherwise expends funds or incurs damage which Tenant is obligated
under the terms of this Lease to reimburse to landlord, then (i) the costs
and expenses Landlord incurs in connection therewith, together with an
administrative charge of 15% of the total amount of such costs and expenses
and together with all attorneys fees incurred by Landlord in connection
therewith, shall constitute a demand obligation of Tenant; (ii) such amount
shall bear interest at the Default Rate from the date such costs and
expenses are incurred by Landlord until reimbursed by Tenant; and (iii)
such amounts shall constitute rent under this Lease.
12.4 No Waiver. No failure by Landlord to insist upon strict performance of any
agreement, covenant, or term of this Lease or to exercise any right or
remedy granted to landlord upon a breach hereof and no acceptance of any
rent during the continuance of any such breach shall constitute a waiver of
any such breach. No obligation of Tenant shall be deemed waived or modified
except by written instrument executed by landlord. If Landlord shall waive
any particular breach, condition or covenant of this Lease, such waiver
shall be limited to such breach, covenant or condition and shall not be
construed as a waiver in the future of the same or different breach,
covenant or condition.
12.5 No Accord and Satisfaction. No payment by Tenant, or acceptance by Landlord
of an amount which is less than the amount due from Tenant to Landlord,
shall be treated otherwise than as a payment on account. The acceptance by
landlord of a check for a lesser amount, with an endorsement or statement
thereon or upon any letter
23
accompanying such check, that such lesser amount is payment in full shall
be given no effect, and Landlord may accept such check without prejudice to
any other rights or remedies which Landlord may have against Tenant.
12.6 Cost and Expenses. Tenant covenants and agrees to pay all costs and
expenses incurred by Landlord (including without limitation attorney's
fees) in connection with any action taken by landlord to enforce or
interpret the provisions of this Lease or any guaranty hereof, whether or
involving ordinary, summary, executory, appellate, bankruptcy or other
judicial proceedings.
12.7 Notice to Vacate. Tenant hereby waives the notice to vacate prescribed by
Article 4701 of the Louisiana Code of Civil Procedure.
Article 13 - Assignments of Lease and Mortgages by Landlord
13.1 Landlord's Right to Mortgage. Landlord reserves the right to mortgage the
Leased Premises or the Building or both, in whole or in part, and to
convey, transfer and assign Landlord's interest in this Lease as security
for any financing made to Landlord, its successors and assigns. Upon
written request by Landlord or any assignee or mortgagee of Landlord,
Tenant agrees to acknowledge in writing Tenant's receipt of notice of
assignment of the lease or mortgage made by Landlord. Any notice by Tenant
of Landlord's default shall also be sent by Tenant to any such assignee and
mortgagee, provided Tenant shall have received written notice of the
assignee or mortgagee and the address of such persons. No notice by Tenant
of Landlord's default shall be effective unless and until received by each
such assignee and mortgagee, who shall have the right, but not the
obligation, to cure any such default on behalf of Landlord for a period of
thirty days following the expiration of the time allowed to Landlord to
cure such default. However, if the default is of such a nature which cannot
be cured within the additional 30-day period, the assignee or mortgagee
shall have such additional time to cure the default as may be reasonable
under the circumstances provided that Landlord shall have timely commenced
to cure within the period of time allowed to Landlord or such assignee or
mortgagee shall have commenced to cure within the additional 30-day period
allowed for such assignee or mortgagee, and thereafter Landlord, the
assignee or mortgagee shall diligently pursue the curing of the default to
completion.
13.2 Subordination. This Lease and all rights of Tenant hereunder are
unconditionally subject and subordinate to any mortgage (including any
related instruments of financing, refinancing or collateral financing)
which may now or hereafter encumber the Leased Premises or the Building,
and to all renewals, modifications, consolidations, substitutions,
replacements and extensions thereof. The provisions of this Article shall
be self-operative and not further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall promptly
execute and deliver, at Tenant's own expense, any certificate or instrument
(in recordable form, if requested) that Landlord or such mortgagee may
request to evidence such subordination. If Tenant shall fail to execute or
deliver any such certificate or instrument within ten (10) days after
request therefor, Tenant hereby irrevocable appoints and constitutes
Landlord as Tenant's agent and attorney-in-fact for the purpose of
executing any such certificates and instruments for and on behalf of
Tenant. Notwithstanding the foregoing subordination
24
provisions, any such mortgagee of the Leased Premises or the Building may
elect from time to time (whether or not in connection with any foreclosure
of such mortgage) that this Lease shall have priority over such mortgage
and, effective immediately upon notification to Tenant of such election,
this Lease shall be deemed to have priority over said mortgage and shall
survive any foreclosure thereof.
13.3 Attornment. If this Lease should be transferred pursuant to the enforcement
of any mortgage, collateral assignment, or other security interest created
by Landlord in and to this Lease or the Building or both or if a person
other the Landlord shall otherwise succeed to the rights of Landlord
hereunder, then at the election and upon the declaration of the successor
to Landlord's interest in this Lease, Tenant agrees to fully attorn to and
recognize any such successor as Tenant's landlord under this Lease upon the
then existing terms of this Lease, provided that, at any time before
Tenant's possession of the Leased Premises is actually disturbed, such
successor shall have agreed in writing to accept Tenant's attornment and
not to disturb Tenant's possession so long as Tenant shall observe the
provisions and all covenants of this Lease. This attornment provision shall
inure to the benefit of any such successor, and no further instrument shall
be required to give effect to the provisions hereof. Tenant agrees,
however, to evidence and confirm the foregoing attornment provisions by the
execution and delivery of instruments in recordable form satisfactory to
such successor.
13.4 Conveyance and Transfer of Landlord's Interest. If the Leased Premises or
the Building or both, or any part of either, shall be sold or otherwise
transferred by operation of law or otherwise, Landlord shall be and is
hereby automatically and entirely released and discharged to the extent of
the interest or the portion of the Building or Leased Premises sold or
transferred from and after the date of such sale or transfer of all
liability for the performance of any of the covenants of this Lease on the
part of Landlord thereafter to be performed. The purchaser or other
transferee of the Building or Leased Premises shall be deemed to have
agreed to perform such covenants of Landlord from and after the date of
such assignment or sale during such transferee's period of ownership of
Landlord's interest under this Lease all without further agreement between
Landlord, its successor and Tenant. Landlord's transferee shall not be held
responsible for the performance of any of the covenants of this Lease on
the part of Landlord required to be performed prior to such sale and
transfer. Tenant reserving it rights against Landlord for any unperformed
covenants prior to such sale or transfer. In the event that Landlord
transfers to such purchaser or transferee the security deposit posted by
Tenant under Article 3.5, then Landlord shall be fully exonerated from any
further responsibility therefor, and Tenant shall look solely to such
purchaser or transferee for an accounting for and for return of such
security deposit.
13.5 Termination upon Transfer. In the event that Landlord's ownership interest
in the Leased Premises or the Building, or both, shall be sold or otherwise
transferred in accordance with Article 14.3 or 14.4 above, and in further
event that the successor to Landlord's interest thereafter fails to
maintain the Building in substantially the same manner and in substantially
the same condition and repair as it was maintained while owned by Landlord,
then, upon giving Landlord's successor 90 days' written notice, Tenant
shall have the right to terminate this Lease in its entirely and to vacate
the Leased
25
Premises upon payment by Tenant to Landlord's successor of a termination
penalty equal to the then existing Unamortized Amount.
Article 14 - Miscellaneous Provisions
14.1 Limitation of Liability. Anything in this Lease or in law to the contrary
notwithstanding, Tenant agrees that it shall look solely to the estate and
property of Landlord in the Building and the land upon which the Building
is constructed for the collection of any judgment (or other judicial
process) requiring the payment of money by Landlord in the event of any
default by Landlord with respect to any of the terms, covenants, and
conditions of this Lease to be observed or performed by Landlord. No other
assets of Landlord shall be subject to levy, execution or other procedure
for the satisfaction of Tenant's remedies. No claim for any deficiency
remaining shall ever be asserted against Landlord individually, or its
successors or assigns.
14.2 Tenant Certificates. Recognizing that Landlord may find it necessary to
establish to third parties, such as accountants, banks, and mortgagees, and
prospective purchasers, the then current status of performance hereunder,
Tenant, on the written request of Landlord made from time to tome, shall
promptly furnish a written declaration on the status of this Lease,
consisting of statements:
(i) that this Lease is in full force and effect and has not been
assigned, modified, supplemented or amended (except as may be stated);
(ii) of the date through which rentals have been paid and amount
thereof and, if requested by Landlord, that rent will not thenceforth
be paid more than a given number of days in advance of the date due;
(iii) of the dates of commencement and termination of this Lease;
(iv) that no default, or state of facts, which with the passage of
time or notice would constitute a default, exists on the part of
either party hereto (except as may be stated);
(v) that there are no defenses or offsets against the enforcement of
this Lease by Landlord (or stating those claimed by Tenant);
(vi) the amount of any security deposit which may have been posted by
Tenant with Landlord; and
(vii) such other information as may be reasonably requested.
Each such statement shall be certified to Landlord and to any mortgagee,
assignee, purchaser or any other person specified by Landlord.
If Tenant shall fail to execute and deliver any such certificate or
instrument within ten days after a request therefor, Tenant hereby
irrevocably appoints and constitutes Landlord
26
as Tenant's agent and attorney-in-fact for the purpose of executing and
delivering any such certificates and instruments for and on behalf of
Tenant.
14.3 No Termination. Except as otherwise provided in this Lease, Tenant shall
have no right to surrender or terminate this Lease and Tenant shall not be
relieved of its liability and obligation to pay rent and all other charges
payable under this Lease or any of its obligations under this Lease, and
Tenant waives any rights not or hereafter conferred upon it by statute or
otherwise to terminate or surrender this Lease or the Leased Premises or
any part thereof, or to any offset, retention, suspension, diminution,
abatement or reduction of rent or other charges payable under this lease.
14.4 Reimbursement for Legal Expenses. If Tenant shall request anything of
Landlord which shall require preparation or review of documents by
Landlord's counsel, and if Landlord accedes to such request, Tenant shall
reimburse Landlord, upon request the reasonable legal fees and expenses
incurred by Landlord incident thereto in accordance with .Article 12.3.
14.5 Force Majeure. Except as herein provided with regard to abatement of rent,
if Landlord shall be delayed or prevented from ding or performing any act
or thing required hereunder by reason of strikes, lock-outs, weather
conditions, breakdown, accident, casualties, acts of God, labor troubles,
inability to procure materials, failure of supply, inability by the
exercise of reasonable diligence to obtain supplies, parts, employees, or
necessary services, failure of power, governmental laws, orders or
regulations, actions of governmental authorities, riots, insurrection, war
or 6other causes beyond the reasonable control of Landlord, or for any
cause due to any act or neglect of Tenant or any Tenant-Related Party or
any person claiming by, through or under Tenant or any Tenant-Related
Party, then Landlord shall not be liable or responsible for any such delays
and the doing or performing of such act or thing shall be excused for the
period of delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
14.6 Broker's Commissions. Tenant represents and warrants that there are no
claims for brokerage commissions or finder's fees arising on account of the
action or inaction of any Tenant-Related Party in connection with the
execution of this Lease, and Tenant agrees to indemnify Landlord against
all liabilities arising from any such claim, including cost of counsel
fees.
14.7 Governing Law. This Lease shall be governed by and construed in accordance
with the laws of the State of Louisiana, exclusive of its choice of law
rules.
14.8 Representation by Corporate Tenant. In the event Tenant hereunder is a
corporation, the parties executing this Lease on behalf of Tenant hereby
covenant and warrant that Tenant is a duly qualified corporation authorized
to do business in the State of Louisiana, that all franchise and corporate
taxes have been paid to date and all future forms, reports, fees and other
documents necessary to comply with applicable laws will be filed when due,
and the person signing this Lease on behalf of the corporation is duly
authorized to do so.
27
14.9 Headings and Index. The paragraph headings and the index to this Lease are
for convenience and reference only, and the words contained therein shall
in no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
14.10 Partial Invalidity. If any provision of this Lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term
or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
14.11 Successors and Assigns. Except as herein otherwise expressly provided, the
terms hereof shall be binding upon and shall inure to the benefit of the
heirs, executors, administrators, successors and assigns, respectively, of
Landlord and Tenant. Each term and provision of this Lease to be performed
by Tenant shall be construed to be both a covenant and a condition. The
above reference to successors and assigns of Tenant is not intended to
constitute a consent to assignment by Tenant.
14.12 When Lease Becomes Binding. Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection therewith. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Leased Premises, and this document shall
become binding only upon the execution and delivery hereof by both Landlord
and Tenant and shall be considered effective as of the date set forth on
page one hereof.
14.13 Other Leases and Tenants. Landlord reserves the absolute right to effect
such other tenancies in the Building as Landlord, in the exercise of its
sole business judgment, shall determine to best promote the interest of the
Building. Notwithstanding anything in this Lease to the contrary, Tenant
does not rely on the fact, and Landlord does not represent, that any
specific tenant or number of tenants shall during the Lease Term occupy any
space or any particular space in the Building. This Lease is and shall be
considered to be the only agreement between the parties hereto and their
representatives and agents. Tenant shall have no right whatsoever, either
express or implied, under any such agreements between Landlord and such
other tenants or under any of the terms or provisions on behalf of itself
or any other party including Landlord.
14.14 No Partnership. Landlord shall in no event be construed, held or become in
any way or for any purpose a partner, associate or joint venturer of Tenant
or any Tenant-Related Party in the conduct of its business or otherwise.
14.15 Manner of Giving Notice. Any notice, communication, request, reply or
advice in this Lease provided or permitted to be given or made by either
party to the other shall effectively given only if in writing and (a)
deposited in the United States Postal Service, certified or registered
mail, postage prepaid, with return receipt requested; (b) sent by a
national commercial courier service (e.g. Purolator, Airborne, Federal
Express or Xxxxx) delivery of which must be confirmed in writing by such
courier; or (c) delivered in
28
person to such party, or, if the party or parties to be notified be
incorporated, to an officer of such party. Notices shall be effective only
if and when delivered to the proper address. All notices shall be delivered
at the following address:
To Landlord: US Unwired Inc.
Xxx Xxxxxxxxx Xxxxx, Xxx. 0000
Xxxx Xxxxxxx, XX 00000
To Tenant: Xspedius Corp.
Xxx Xxxxxxxxx Xxxxx, Xxx. 0000
Xxxx Xxxxxxx, XX 00000
To Lender: State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Global Investor Services Group Corporate Trust
However, Landlord and Tenant, their respective successors, legal
representatives and assigns shall have the right by at least fifteen (15)
days' written notice to the other party given in the manner prescribed by
this Article from time to time and at any time to change their respective
addresses and each shall have the right to specify as its address any
address within the continental Unites States. If the intended recipient
deliberately avoids or refuses to accept any notice, then notice shall
nonetheless be deemed given.
14.16 Rights of Tenant's Lender. Landlord acknowledges that Tenant may obtain
financing from third party lenders (the "Lenders"). In connection with any
such financing, and notwithstanding anything contained in this Lease to the
contrary, the Landlord agrees as follows:
1. In accordance with the terms of this Lease, the Tenant has the
right to place certain personal property, inventory or equipment
(collectively, the "Equipment") on some or all of the Premises from time to
time. The Landlord waives and relinquishes any landlord's lien, rights of
levy or distraint, claim, security interest or other interest the Landlord
may now or hereafter have in or with respect to any of the Equipment,
whether for rent or otherwise. The Landlord represents and warrants that it
has received no notice from any person or entity other than the Lenders of
any claim of right, title or interest in or to any of the Equipment.
2. The Equipment may be installed in or located on the Premises and is
not and shall not be deemed a fixture or part of the real property but
shall at all times be considered personal property.
The Lenders, at their option but at reasonable times and upon notice
to the Landlord, may enter and use the Premises for the purpose of
inspecting, repossessing, removing, selling or otherwise dealing with any
of the Equipment, without thereby assuming the Lease or any other
obligations of the Tenant; provided, however, that any
29
damage to the Premises caused by the Lenders or their representatives shall
be repaired by the Lenders at the Lenders' expense.
3. The Landlord agrees to send notice in writing to the Lenders of
each of the following events:
(a) The Landlord gives the Tenant any notice regarding any
termination of any of the Tenant's rights to use, lease or remain in
possession of the Premises;
(b) Any legal action is commenced by the Landlord to evict
the Tenant from the Premises or to terminate or limit any of the
Tenant's rights to use, lease or remain in possession of the Premises;
or
(c) There is any change in ownership of the Premises (in
such event, the Landlord will provide the name and address of each new
owner of the Premises).
Upon receipt of any notice of any breach of the Lease or any other contract
relating to the Premises, the Lenders shall have the right, but not the
obligation, to cure any default within thirty (30) days thereafter. Any
payment made or act done by Lenders to cure any such default shall not
constitute an assumption of the Lease or any obligations of the Tenant.
4. The agreements contained herein may not be changed or terminated
orally or by course of conduct and are binding upon the Landlord and the
heirs, personal representatives, successors and assigns of the Landlord and
inures to the benefit of the Lenders and the successors and assigns of the
Lenders.
5. This Article shall inure to the benefit of, and be binding upon,
the successors, heirs and assigns of the Lenders and the Landlord. LANDLORD
WAIVES ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING
OUT OF THIS ARTICLE OR THE LEASE.
30
Landlord and Tenant have executed this Lease in the presence of the
undersigned respective witnesses effective as of the date first mentioned above.
WITNESSES AS TO LANDLORD: LANDLORD:
US UNWIRED INC.
/s/ Illegible By: /s/Xxxxxx XxXxxxxx
--------------------------------- ----------------------------------
Name: Xxxxxx XxXxxxxx
Title: VP of Administration
/s/ Illegible
---------------------------------
WITNESSES AS TO TENANT: TENANT:
XSPEDIUS CORP.
/s/Illegible
--------------------------------- By: /s/Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
/s/Illegible Title: President
---------------------------------
00
XXXXX XX XXXXXXXXX
XXXXXX XX XXXXXXXXX
Xx this 5th day of February, 2001, before the undersigned Notary Public,
personally appeared:
Xxxxxx X. XxXxxxxx
who after being duly sworn, declared that he/she is the VP Administration of US
Unwired Inc. and that he/she executed the foregoing Lease on behalf of US
Unwired, and acknowledges it to be the free act and deed of US Unwired Inc..
/s/Xxxxxx X. XxXxxxxx
----------------------------------
/s/ Xxxxxx Xxxx
-----------------
Notary Public
My Commission Expires: at death
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 5th day of February, 2001, before the undersigned Notary Public,
personally appeared:
Xxxxxx Xxxxxx
who after being duly sworn, declared that he/she is the President of XSPEDIUS
CORP. and that he/she executed the foregoing Lease on behalf of Xspedius Corp.,
and acknowledges it to be the free act and deed of Xspedius Corp.
/s/Xxxxxx Xxxxxx
----------------------------------
/s/ Sandran Guidiy Xxxxxx
--------------------------
Notary Public
My Commission Expires: Upon death
32
Exhibit "B"
Rules and Regulations
1. Tenant shall not operate, or permit to be operated, any mechanical
machinery, steam engine, boiler, or stove without Landlord's written
consent; Tenant will not allow the use of oil, burning fluids, kerosene,
gasoline or other fuels to be used on the Leased Premises.
2. No articles deemed as extra hazardous on account of fire or explosion shall
be brought into the Leased Premises.
3. Tenant shall not permit the preparation of food for consumption in the
Leased Premises, nor the facilities for the preparation of food without
written consent. Tenant shall not use the Leased Premises for housing,
lodging, sleeping, nor any immoral or illegal purposes.
4. Tenant shall not operate, or permit to be operated, any musical or sound
producing instrument or device inside or outside the Leased Premises which
may be heard outside the Leased Premises.
5. Tenant shall not permit odors to emanate from the Leased Premises nor allow
any objectionable noise to emanate from the Leased Premises.
6. Tenant shall not allow any visitor or guest to disturb, solicit, or canvass
any occupant of the Building and shall cooperate to prevent same.
7. Landlord reserves the right to exclude from the Building, between the hours
of 6:30 P.M. and 7:30 A.M., and in all hours on Sunday and legal holidays,
all persons who do not present a pass to the Building, signed by Tenant.
Each Tenant shall be responsible for all persons for whom he issued such
pass and shall be liable to Landlord for all acts of such person.
8. Tenant shall not bring or permit to be brought into the Building any
bicycle, or any vehicle, or dog (except in the company of a blind person)
or other animal or bird.
9. Tenant shall not install any radio, microwave dish, television antenna or
satellite dish on the roof, or on, or in any part of the inside or the
outside of the Building, other than inside the Leased Premises without
Landlord approval
10. Tenant shall not use any illumination or power for the operation of any
equipment or device other than electricity which shall be provided by
Landlord.
11. No wires or cables, nor lines shall be brought into the Leased Premises,
nor shall there be permitted to operate, any electrical device from which
may emanate electrical waves which may interfere with or impair radio or
television broadcasting or reception from or in the Building.
12. Two keys to the locks on the corridor doors entering the Leased Premises
shall be furnished by Landlord free of charge, with any additional keys to
be furnished by Landlord to each Tenant, at Tenant's cost. Landlord may
retain a pass-key to the premises and be allowed admittance thereto at all
times to enable its representatives to examine or exhibit the Leased
Premises from time to time. No additional locks or bolts of any kind shall
be placed upon any of the doors, nor shall any change be made in existing
locks. Each Tenant must upon his termination of tenancy restore to Landlord
all keys to offices, restrooms and other areas.
13. Tenant shall not paint, display, inscribe, maintain, or affix any sign,
picture, advertisement, notice, lettering or direction on any part of the
outside, except on hallway doors of the Leased Premises, and then only such
name or names or matter and in such color, size, style, character and
material as may be first approved by Landlord in writing. Landlord reserves
the right to remove, at Tenant's expense, all matter other than that above
provided for without notice to Tenant.
14. Sidewalks, doorways, vestibules, balls, stairways and other similar areas
shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from the premises and for going from
one to another part of the Building.
15. Plumbing, fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or any other Tenant-Related
Party shall be paid by Tenant and Landlord shall not in any case be
responsible therefor.
16. With respect to work being performed by Tenant in the Leased premises with
the approval of Landlord, Tenants will refer all contractors, contractors'
representatives and installation of technicians rendering any service to it
to Landlord for Landlord's supervision, approval and control before the
performance of any contractual services. This provision shall apply to all
work performed in the Building including, but not limited to, installations
of telephones, telegraph equipment, electrical devices and attachments,
doors, entrance ways, and any and all installations of every nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment and
any other physical portion of the Building.
17. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or
materials which requires use of elevators or stairways, or movement through
the Building entrances or lobby shall be restricted to such hours as
Landlord shall designate. All such movements shall be under the supervision
of Landlord and in the manner agreed between the tenants and Landlord by
prearrangement before performance. Such prearrangement initiated by a
tenant will include determination by Landlord, and subject to its decision
and control, as to the time, method, and routing of movement and as to
limitations for safety or other concern which may prohibit any article,
equipment or any other item from being brought into the Building. The
tenants are to assume all risks as to the damage to articles moved and
injury to persons or public engaged or not to engaged in such movement,
including equipment, property and personnel of Landlord if damaged or
injured as a result of acts in
connection with carrying out this service for a tenant from time of
entering the property to completion of work; and Landlord shall not be
liable for acts of any person engaged in, or any damage or loss to any of
said property or persons resulting from, any act in connection with such
service performed for a tenant.
18. Landlord shall have the right to prescribe the weight and position of safes
and other heavy equipment or items, which shall in all cases, to distribute
weight, stand on supporting devices approved by Landlord. All damages done
to the Building by the installation or removal of any property of a tenant,
or done by a tenant's property while in the Building, shall be repaired at
the expense of such tenant. Tenant shall bear all costs incurred by
Landlord or Tenant in determining the feasibility or actual installation of
any such heavy equipment.
19. Corridor doors, when not in use, shall be kept closed.
20. Each tenant shall cooperate with Landlord's employees in keeping its Leased
Premises neat and clean.
21. Landlord shall be in no way responsible to the tenants, their agents,
employees or invitees for any loss of property from the Leased Premises or
public areas or for any damages to any property thereon from any cause
whatsoever.
22. No machinery of any kind shall be operated by Tenant on its Leased Area
without the prior written consent of Landlord, nor shall any tenant use or
keep in the Building any inflammable or explosive fluid or substance.
23. Landlord will not be responsible for lost or stolen personal property,
money, or jewelry from Tenant's Leased Premises or public or common areas
regardless of whether such loss occurs when the area is locked against
entry or not.
24. No curtains or other window treatments shall be placed between the glass
and the Building standard window treatments without Landlord's written
consent
25. Tenant shall at no time carry open containers of coffee, beverage or other
fluids in elevators, corridors, or other open areas of the Building. All
such fluids shall be carried in approved, sealed containers.
26. Landlord reserves the right to make such other and further rules and
regulations as in its judgment may be for the safety, care and cleanliness
of the Building and for the preservation of good order therein. Tenant
agrees to abide by all such rules and regulations herein above stated and
additional rules and regulations which are adopted.
Description of Graphics to come
(ELEVENTH FLOOR PLAN)
Description of Graphics to come
(SEVENTH FLOOR PLAN)
Description of Graphics to come
(FIFTH FLOOR PLAN)
Description of Graphics to come
(THIRD FLOOR PLAN)
Description of Graphics to come
(SECOND FLOOR PLAN)
Description of Graphics to, come
(FIRST FLOOR PLAN)
