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EXHIBIT 10.13
COMMERCIAL LEASE
This is a legally binding contract. If not understood, seek competent advice.
APPROVED BY BIRMINGHAM AREA BOARD OF REALTORS LEASE FORM
AMENDED OCTOBER, 1976 150-ZSSCO
STATE OF ALABAMA )
Jefferson County )
This lease made as of the 31st day of October 1985 by and between
Xxxxxxxx & Xxxxxx Building Restoration Partnership hereinafter
called "Lessor", by N/A as agent for the Lessor and by Computer
Services Corporation hereinafter called "Lessee";
WITNESSETH: That the Lessor does hereby demise and let unto
the Lessee the following described premises in the City of
Birmingham, Alabama, to-wit:
Approximately 22,547 square feet of building space (the
"Premises") located in the Xxxxxxxx & Xxxxxx Building (the
"Building"), 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
said Premises being those outlined in red on the floor plans
attached as Exhibit A.
Use Subject to existing easements, if any, and the regulatory laws
and ordinances of the political subdivision in which the property
is situated, for use and occupation by the Lessee as office and
computer facilities
Term and for no other or different use of purpose, for and during the
term of nineteen (19) years and three (3) months beginning on the
first day of August, 1986 and ending on the thirty-first day of
October, 2005 (the "Term").
Rent In consideration whereof, the Lessee agrees to pay to the
Lessor, at the address set forth in Addendum A hereto, on the
first day of each month of said term, in advance, as rent for
said premises, the sum of (See "Further Terms and Conditions
Made A Part Hereof") DOLLARS ($_________) per month,
being at the rate of DOLLARS ($_________) per annum.
Lessee agrees that a Service and Bookkeeping charge of 5%
of monthly lease rate shall become due and payable each and every
month that the rent has not been received in the office of
Lessor by the 10th of the month.
Should premises by completed and turned over to Lessee
either prior to August 1, 1986 then in that event rent for such
fractional month shall be pro-rated, and this lease term shall
commence on the first day of the next calendar month. (See
"Further Terms and Conditions Made a Part Hereof")
Quiet This lease is made upon the following terms, conditions,
Enjoyment and covenants: The Lessor covenants to keep the Lessee in
possession of said premises during said term, but shall not be
Condition of liable for the loss of use by eminent domain nor the failure or
Premises inability of the Lessee to obtain possession thereof provided
the Lessor shall exercise due diligence and effort to place the
Lessee in possession. Nothing herein contained shall be construed
as a warranty that said premises are in good condition or are fit
or suitable for the use or purpose for which they are let. The
Lessor or Lessor's agent have made no representations or promises
with respect to said building or the demised premises except as
herein expressly set forth. The Lessee has examined the leased
premises and accepts the same subject to plans for renovation as
herein specified in Paragraph 9 of Addendum A.
Roof Should the roof of the building leak at any time during
said term, due to no fault on the part of the Lessee, the Lessor
will repair the same within a reasonable time after being
requested in writing by the Lessee so to do, but in no event
shall the Lessor be liable for damages or injuries arising from
such defect or the failure to make said repairs after being so
notified, except to the extent of the reasonable cost of
repairing said roof; nor shall the Lessor be liable for damages
or injuries arising from defective workmanship or materials, the
Lessee hereby expressly waiving the same. Lessor and its agents,
shall not be liable for any deaths, injury, loss or damage
resulting from any repair or improvement and undertaken,
voluntarily or involuntarily, by or on behalf of, the Lessor,
other than willfully wrongful acts of Lessor.
Air In the event air conditioning equipment or a part of any air
Conditioning conditioning equipment is installed on the roof of any building
and Signs hereby leased, or in the event that the Lessee installs a sign
on the roof, then Lessee shall be responsible for repairing any
roof leaks, attributable to such installation, during the term of
this lease at Lessee's sole cost and expense, but no such air
conditioning equipment or sign may be installed until the consent
in writing of the Lessor is first had and obtained thereto.
Roof and
Drains, etc.,
Debris On
Repairs Lessor shall not be obligated or required to make any other
repairs or do any other work on or about said premises or any
part thereof, or the elevators therein, if any, or on or about
any premises connected therewith, but not hereby leased, unless
and only to the extent herein agree. All other portions of any
building hereby leased shall be kept in good repair by Lessee and
at the end of the term hereof, the Lessee shall deliver the
demised premises to Lessor in good repair and condition,
reasonable, wear and tear excepted.
Inspection However, Lessor reserves the right to enter upon said
and Showing premises and to make such repairs and to do, such work on or
about said premises as Lessor may deem necessary or proper, or
that lessor may be lawfully required to make. Lessor reserves the
right to visit and inspect said premises at all reasonable times
and the right to show said premises to prospective tenants and
purchasers, and the right to display "For Sale" and "For Rent"
signs on said premises.
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FAILURE OF Should the Lessee fail to make repairs agreed to by him
LESSEE TO under this lease, the Lessor may enter the premises and make such
REPAIR repairs and collect the cost thereof from the Lessee as
additional rent. Except as herein specifically provided, the
SIGNS Lessee will not make or permit to be made any alterations,
additions, improvements or changes in the premises, nor will the
Lessee paint the outside of the building or permit the same to be
painted without the written consent of the Lessor before work is
contracted or let. No signs of any character shall be erected on
the roof until the consent thereof in writing is first had and
obtained from the Lessor. The consent to a particular alteration,
addition, improvement or change shall not be deemed a consent to,
nor a waiver of, a restriction against alterations, additions,
improvements or changes for the future.
ALTERATIONS Lessee will replace all plate and other glass, if and when
AND IMPROVE- broken, and failing so to do the Lessor may replace the same and
MENTS BY the Lessee will pay the Lessor the cost and expense thereof upon
LESSEE demand. Lessee will replace all keys lost or broken,
UPKEEP See Addendum A hereto for modifications for this paragraph.
COMPLIANCE
WITH LAW
Lessor shall not be liable for any damages caused by, or
growing out of, any breakage, leakage, getting out of order or
defective conditions of said elevators, air conditioning
equipment, electric wiring, pipes, water closets, drains, and
sewer lines or plumbing, or any of them. Lessee will comply, at
all times and in all respects with all the applicable laws and
ordinances relating to nuisance, insofar as the building and
premises hereby let, and the streets and highways bounding the
same, are concerned, and the Lessee will not by any act, or
omission render the Lessor liable for any violation thereof.
Lessee will not commit any waste of property, or permit the same
to be done, and will take good care of said building and said
premises at all times.
PUBLIC
LIABILITY SEE ADDENDUM A hereto
INSURANCE
AND
INDEMNITY
DEFECTS IN Lessor shall not be liable for any injury or damage caused
PREMISES by, or growing out of, any defect in said building, or its
equipment, drains, plumbing, wiring, electric equipment or
appurtenances, or in said premises, or caused by, or growing
out of fire, rain, wind, leaks, seepage or other cause.
SNOW, ICE, If the leased premises, or any part thereof, consist of
TRASH first floor space, adjacent upon the street, or ground adjacent
to the street, the Lessee will keep the sidewalk, curb and
gutter in front thereof or adjacent thereto clean and free from
snow, ice, debris and obstructions and will hold the Lessor
harmless from all damages or claims arising out of the Lessee's
failure to so do.
EVENTS OF Upon the happening of any one or more of the events as
DEFAULT expressed in this paragraph, the Lessor shall have the right, at
the option of the Lessor, to either annul and terminate this
lease upon two days written notice to Lessee and thereupon
re-enter and take possession of the premises; or the right upon
two days written notice to the Lessee to re-enter and re-let
said premises, from time to time, as agents of the Lessee, and
such re-entry or re-letting or both, shall not discharge the
Lessee from any liability or obligation hereunder, except that
rents (That is, gross rents less the expense of collecting and
handling, and less commission) collected as a result of such
re-letting shall be credited on the Lessee's liability up to the
amount due under the terms of this lease and the balance, if
any, credited to the Lessor. Nothing herein, however, shall be
construed to require the Lessor to re-enter and re-let, nor
shall anything herein be construed to postpone the right of the
Lessor to xxx for rents, whether matured by acceleration or
otherwise, but on the contrary, the Lessor is hereby given the
right to xxx therefor at any time after default. The events or
default referred to herein are: failure of the Lessee to pay any
one or more of the installments of rent, or any other sum,
provided for in this lease as and when the same become due, the
removal, attempt to remove or permitting to be removed from said
premises, except in the usual course of trade, the goods,
furniture, effects or other property of the Lessee or any
assignee, or sub-tenant of the Lessee; the levy of an execution
or other legal process upon the goods, furniture, effects or
other property of the Lessee brought on the leased premises or
upon the interest of the Lessee in this lease; the filing of a
Petition in Bankruptcy, a Petition for an Arraignment or
reorganization by or against the Lessee; the appointment of a
receiver or trustee, or other court officer, for the assets of
the Lessee; the execution of an assignment for the benefit of
creditors of the Lessee; the vacation or abandonment by the
Lessee of the leased premises or the use thereof for any purpose
other than the purpose for which the same are hereby let or (if
the rental herein is based in whole or in part on the percentage
of Lessee's sales) failure of the Lessee to exercise diligent
effort to product the maximum volume of sales; the assignment by
Lessee of this lease or the re-letting or sub-letting by the
Lessee of the leased premises or any part thereof without the
written consent of the Lessor first had and obtained; the
violation by the Lessee of any other of the terms, conditions or
covenants not set out in this paragraph on the part of the
Lessee herein contained and failure of the Lessee to remedy such
violation within ten (10) days after written notice thereof is
given by the Lessor to the Lessee.
REMOVAL The Lessee shall not remove any of the goods, wares or
OF GOODS merchandise of the Lessee from said premises other than in the
regular course of Lessee's trade or business without having
first paid all rent due or to become due under the terms of this
lease.
ACCELERA- Upon termination or breach of this lease or re-entry upon
TION OF said premises for any one or more of the causes set forth above,
RENT or upon termination of this lease or re-entry of said premises,
the rents provided for in this lease for the balance of the
DEFAULT-- original rental term, or any renewal term or other extended
ATTORNEY term, and all other indebtedness to the Lessor owed by the
FEE AND Lessee, shall be and become immediately due and payable at the
COST option of the Lessor and without regard to whether or not
possession of the premises shall have been surrendered to or
WAIVER OF taken by the Lessor. The Lessee agrees to pay Lessor, or on
EXEMPTIONS Lessor's behalf, a reasonable attorney's fee in the event
Lessor employs an attorney to collect any rents due hereunder
by Lessee, or to protect the interest of Lessor in the event the
Lessee is adjudged a bankrupt, or legal process is levied upon
the goods, furniture, effects or personal property of the Lessee
upon the said premises, or upon the interest of the Lessee in
this lease or in said premises, or in the event the Lessee
violates any of the terms, conditions, or convenants on the part
of the Lessee herein contained. In order to further secure the
prompt payments of said rents, as and when the same mature, and
the faithful performance by the Lessee of all and singular the
terms, conditions and covenants on the part of the Lessee herein
contained, and all damages, and costs that the Lessor may
sustain by reason of the violation of said terms, conditions and
covenants, or any of them, the Lessee hereby waives any and all
rights to claim personal property as exempt from levy and sale,
under the laws of any State or the United States.
ABANDON- In the event the Lessee abandons the leased premises before
MENT the expiration of the term, whether voluntarily or
involuntarily, or violates any of the terms, conditions, or
RE-LETTING covenants hereof, the Lessor shall have the privilege at
Lessor's option of re-entering and taking possession of said
premises and leasing all or any portion of said premises for
such term and for such use deemed satisfactory to the Lessor,
applying each month the net proceeds obtained from said leasing
to the credit of the Lessee herein, up to the amount due under
the terms of this lease and the balance to the Lessor and, said
leasing shall not release the Lessee from liability hereunder
for the rents reserved for the residue of the term hereof, but
Lessee shall be responsible each month for the difference, if
any, between the net rents obtained from such leasing and the
monthly rent reserved hereunder, and said difference shall be
payable to the Lessor on the first day of each month for the
residue of the term hereof.
RE-ENTRY, No re-entry hereunder shall bar the recovery of rent or
ETC., NO BAR damages for the breach of any of the terms, conditions, or
covenants on the part of the Lessee herein contained. The
receipt of rent after breach or condition broken, or delay on
the part of Lessor to enforce any right hereunder, shall not be
deemed a waiver of forfeiture, or a waiver of the right of the
Lessor to annul the lease or to re-enter said premises or to
re-let the same, or to accelerate the maturity of the rents
hereunder.
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REINSTATE- If this lease is terminated by the Lessor for any reason,
MENT including non-payment or rent, and the Lessee pays the rent,
attorneys' fees and other charges and thus makes himself
current, and/or remains or continues to be in possession of the
leased premises or any part thereof, with the Lessor's consent,
this lease will be considered reinstated, and will continue in
effect as though it had not been terminated.
IMPROVE- All improvements and additions to the leased premises shall
MENTS AND adhere to the leased premises, and become the property of the
ADDITIONS Lessor, with the exception of such additions as are usually
PROPERTY OF classed as furniture and trade fixtures; said furniture and
LESSOR trade fixtures are to remain the property of the Lessee, and may
be removed by the Lessee two (2) weeks prior to the expiration
of this lease, provided all terms, conditions and covenants of
within contract have been complied with by Lessee and provided
said Lessee restores the building and premises to its original
condition, normal wear and tear excepted, except as may
otherwise be provided in Addendum A hereto.
FIRE & In the event of the total destruction of, or partial damage
OTHER to, the buildings upon the demised premises by fire or other
CASUALTY casualty, Lessor shall proceed with due diligence and dispatch to
repair and restore the buildings to the conditions to which they
existed immediately prior to the occurrence of such casualty, at
Lessor's cost and expense, provided such cost does not exceed the
proceeds of insurance collected on the buildings, by reason of
such casualty, the application of which insurance proceeds are
not prohibited, by reason of any mortgage provision, from being
used toward the cost of restoration and repairing the same;
provided, further, that if the unexpired portion of the term or
any extension thereof shall be two (2) years or less on the date
of such casualty and the cost of such repair or restoration
exceeds twenty percent (20%) of the then replacement value of
said damaged leased premises, as estimated by two or more
reputable contractors, Lessors may by written notice to the
Lessee, within thirty (30) days after the occurrence of such
casualty, terminate this lease. If Lessor exercises the above
right to terminate this lease and Lessee elects to exercise an
option of renewal privilege which Lessee may have under this
lease, which if exercised, would extend the unexpired term beyond
two (2) years. Lessee may void such above notice of Lessor's
right to terminate this lease by exercising such option renewal
privilege within such thirty (30) day period. If the insurance
proceeds are insufficient to effect such restoration or repairs,
Lessor at its option may cancel this lease by written notice to
Lessee within thirty (30) days after the occurrence of such
casualty.
In the event the repairing and restoring of the buildings
can not be completed within four (4) months after the date of
occurrence of such casualty, as estimated by two or more
reputable contractors, the Lessee shall have the right to
terminate this lease upon giving written notice to Lessor within
thirty (30) days from the date of occurrence of said casualty.
From the date of such damage or destruction until said building
has been substantially repaired or restored, an equitable
abatement of rent shall be allowed the Lessee.
TRANSFER OR Each and every transfer or assignment of this lease, or any
ASSIGNMENT, interest therein, and each and every sub-letting of said
CONDITIONS premises, or any part thereof, or any interest therein, shall be
null and void, unless the written consent of the Lessor be first
LEASE obtained thereto. As a condition precedent to the obtaining of
ASSIGNMENT such consent, the assignee or sub-lessee must assume, in
FEE CLAUSE writing, all the obligations of the Lessee hereunder, but such
assumption shall not operate to release the Lessee from any
agreement or understanding on the part of the Lessee expressed
or implied in this lease.
NOTICES AND All notices and demands authorized or required to be given
DEMANDS to the Lessee under any provision hereof must be in writing, and
may be delivered to the Lessee in person or left on or in the
leased premises or shall be conclusively deemed to have been
delivered to the Lessee if the same be deposited in the United
States mail addressed to the Lessee at the leased premises, with
the proper postage affixed thereto. All notices herein
authorized are required to be given to the Lessor may be given
by certified mail, addressed to the Lessor at the address of the
Lessor shown on page 1 of this lease, or in care of the Lessor's
rental agent at that time authorized by the Lessor to service
this lease, and said notices must be in writing.
AGENTS
COMMISSION
AGREEMENT
AGENTS
REPAIR AND
IMPROVE-
MENT
LESSEE WILL Lessee will indemnify and hold Lessor and Lessor's agent
HOLD free and harmless from all demands, claims and suits or expenses
HARMLESS caused by any default committed hereunder on the part of the
Lessee. Lessee will further indemnify and save harmless Lessor
and Lessor's agent from any loss, cost, damage and/or expenses
caused by injuries to persons or property while in, on or about
the demised premises, not attributable to the willfully wrongful
act of the Lessor or Lessor's agent. Any property stored in the
demised premises shall be at the sole risk of Lessee.
WAIVER OF Neither Lessor nor Lessee shall be liable to the other for
SUBROGATION any loss or damage from risks ordinarily insured against under
RIGHTS fire insurance policies with extended-coverage endorsements,
irrespective of whether such loss or damage results from their
negligence or that of any of their agents, servants, employees,
licensees or contractors to the extent that such losses are
covered by valid and collectable insurance on the property at
the time of the loss.
HOLDOVER Should the Lessee continue to occupy the premises after the
expiration of the said term or after a forfeiture incurred,
whether with or against the consent of the Lessor, such tenancy
shall be a tenancy at sufferance and in no event a tenancy from
month to month, or from year to year.
NON- The failure of the Lessor to insist, in any one or more
WAIVER instances, upon a strict performance of any of the covenants of
this lease, or to exercise any option herein contained, shall
not be construed as a waiver, or a relinquishment for the
future, of such covenant or option, but the same shall continue
and remain in full force and effect. The receipt by the Lessor
of rent, with knowledge of the breach of any covenant hereof,
shall not be deemed a waiver of such breach, and no waiver by
the Lessor of any provision hereof shall be deemed to have been
made unless expressed in writing, and signed by the Lessor.
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NON-WAIVER If all or any part of the demised premises is taken by
EMINENT eminent domain ("eminent domain" shall include the exercise of
DOMAIN AND any similar power of taking, and any purchase or acquisition in
CONDEM- lieu of condemnation), or in the event the improvements are
NATION ordered torn down or removed by lawful authority, then the term
of this lease shall cease as of the date possession shall be
taken by the condemning authority, or as of the date improvements
are ordered torn down or removed, whichever may be applicable,
with the rent to be apportioned as of the date of such taking or
of such order, as the case may be; provided, however, if as a
result of a partial taking of the demised premises by eminent
domain, the ground floor area of the building forming a part of
the demised premises is reduced by not more than twenty-five
percent (25%), the Lessor may elect to continue the term of this
lease and to restore, at Lessor's expense, the remaining premises
to a complete architectural unit with storefront, signs and
interior of equal appearance and utility as they had previous to
the taking, but there will be prorata reduction of the rent
payable each month. The Lessor shall be deemed to have exercised
its said option to restore the premises unless, within 30 days
after the date of taking, the Lessor shall notify the Lessee in
writing of its election to terminate this lease. The Lessor shall
be entitled to receive all of the proceeds of any total or
partial taking of the demised premises by eminent domain,
including any part of such award as may be attributable to the
unexpired leasehold interest or other rights of the Lessee in the
premises, and the Lessee hereby assigns, and transfers to the
Lessor all of the Lessee's right to receive any part of such
proceeds.
CLEAN The Lessee hereby agrees that upon the expiration or prior
PREMISES termination of this lease, the Lessee will promptly remove from
UPON the leased premises all signs, trash, debris and property of the
TERMINA- Lessee, and the Lessee will leave the floors, stairs,
TION, ETC. passageways, elevator and shafts as clean as it is possible to
clean them by means of the use of broom and shovel.
TAXES AND
INSURANCE See Addendum A hereto
ADDENDUM This lease consists of 4 pages together with an Addendum of
CLAUSE pages which is attached hereto, and Exhibit A initialed by
the parties and incorporated in this lease by reference. In case
of conflict between the printed portion of this lease and the
Addendum, the terms of the Addendum shall prevail.
It is understood and agreed by the parties hereto that this
lease shall be binding upon the Lessee, its executor,
administrator, heirs, assigns or successor.
FURTHER TERMS AND CONDITIONS MADE A PART HEREOF
SEE ADDENDUM A
IN WITNESS WHEREOF, the Lessor and the Lessee have
respectively executed these presents this 4th day of November
1985
Agent XXXXXXXX & XXXXXX BUILDING RESTORATION
PARTNERSHIP
By: /s/ Xxxxx Xxxxxx Xxxxxxx
-------------------------- (Lessor)
Xxxxx Xxxxxx Xxxxxxx
Its Managing General Partner
Witness for Lessor:
---------------------------------- COMPUTER SERVICES CORPORATION
By: (L.S.)
------------------------------
Its Lessee
---------------------------
Witness for Lessee:
------------------------------
(L.S.)
---------------------------
Lessee
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Addendum A to Sublease
dated as of October 31, 1985, by and between Xxxxxxxx & Xxxxxx
Building Preservation Partnership and Computer Services Corporation
1. PARTIES AND FACTUAL BACKGROUND. It is specifically recognized and
understood that Xxxxxxxx & Xxxxxx Building Preservation Partnership does not
own fee simple title to the demised premises, but, instead, leases such
property by virtue of a Lease Agreement between The Historical Preservation
Authority of the City of Birmingham (the "Authority") and Xxxxxxxx & Xxxxxx
Building Preservation Partnership, dated as of October 31, 1985 (the "Lease
Agreement"). In entering into this Commercial Lease, Xxxxxxxx & Xxxxxx Building
Preservation Partnership is doing so as sublessor and Computer Services
Corporation is doing so as sublessee, even though they are referred to in this
document as the Lessor and Lessee, respectively. It is further recognized and
understood that the demised premises is owned by the Authority and that the
Authority has entered into a Mortgage Indenture dated as of October 31, 1985
(the "Mortgage") with SouthTrust Bank of Alabama, N.A. (the "Mortgagee"). As
set forth hereinafter, certain terms and conditions of the Mortgage and Lease
Agreement are incorporated herein by reference.
2. RENTAL RATE. Lessee agrees to pay to Lessor on the first day of
each month of the Term, in advance, as rent for said premises the following:
(a) for the period beginning on the date of Occupancy but in no
event later than August 1, 1986, the aggregate of the following amounts
("Monthly Base Rent"):
(i) Sixteen Thousand Nine Hundred Five and 57/100 Dollars
($16,905.57); and
(ii) Lessee's Pro Rata Share (as defined below) of any adjustments
to Lessor's rent pursuant to Section 7.03(g) of the Lease Agreement.
(b) Effective on each Adjustment Date (as defined below), Monthly
Base Rent (excluding Operating Expenses, as defined below) shall be increased by
the lesser of (i) four percent (4%) or (ii) the percentage increase in the
latest Consumer Price Index on the Adjustment Date over the Consumer Price Index
twelve months earlier, of the Monthly Base Rent of the preceding twelve months.
3. ADDITIONAL RENT. During any Adjustment Year (as defined below) in
which Operating Expenses exceed $138,200 in the aggregate ("Aggregate Operating
Expenses") for that Adjustment Year, Lessee shall pay, as additional rent,
Lessee's Pro Rata share (amortized on a monthly basis) of the Operating
Expenses for the Adjustment Year which exceed $138,200.
4. DEFINITIONS. The following words and phrases shall have the
following meanings:
(a) "Adjustment Date" shall mean the first day of the thirteenth
calendar month of the Term and each anniversary date of said day during the
term.
(b) "Adjustment Year" shall mean the twelve months consisting of
the calendar month in which an Adjustment Date occurs plus the next eleven
months.
(c) "Operating Expenses" shall mean all costs, expenses and
disbursements of every kind and nature which Lessor shall pay or become
obligated to pay in connection with the management, operation, maintenance,
replacement and repair of the Building, all improvements and
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land on which the Building is situated, all ad valorem taxes and special
assessments, and the personal property, fixtures, machinery, equipment, systems
and apparatus located in or used in connection with the Common Areas (as
defined below). Operating Expenses shall not include the following: costs of
improvement of the premises and the premises of other tenants of the Building;
charges for depreciation of the buildings and improvements; interest and
principal payments on mortgages; ground rental payments; real estate brokerage
and leasing commissions; expenses incurred in enforcing obligations of other
tenants of the Building; any expenditures for which Lessor has been reimbursed
(other than pursuant to rent adjustment and escalation provisions provided in
leases); and capital improvements.
(d) "Lessee's Pro Rata Share" shall mean a ratio equal to
Lessee's percentage share of the total square footage of the building leased
during the Adjustment Year.
(e) "Common Areas" shall mean all areas, improvements, space,
equipment and special services in, at, or contiguous to the Building provided
by Lessor for the common or joint use and benefit of tenants, and invitees,
including without limitation all parking areas, driveways, entrances and exits.
(f) "Consumer Price Index" shall mean the Consumer Price Index
for All Urban Consumers, All Items (1967-100), published by the United States
Department of Labor, Bureau of Labor Statistics. If said Consumer Price Index is
discontinued or is unavailable, Lessor will substitute a comparable index
reflecting changes in the cost of living or purchasing power of the consumer
dollar published by any other governmental agency, bank or other financial
institution, or any recognized authority.
5. Projections. For purposes of calculating Operating Expenses for
any Adjustment Year, Lessor may make reasonable estimates, forecasts or
projections (collectively, the "Projections") of Operating Expenses for such
Adjustment Year. Not less than 10 days prior to each Adjustment Date, Lessor
shall deliver to Lessee a written statement setting forth the Projections of
Operating Expenses for the Adjustment Year in which such Adjustment Date occurs
and providing a calculation of the increase in installments of Additional Rent
to become effective as of said Adjustment Date; provided, however, that the
failure of Lessor to provide any such statement shall not relieve Lessee from
its obligation to continue to pay Additional Rent at the rate then in effect
under this Lease, and if and when Lessee receives such statement from Lessor,
Lessee shall pay any increases in Additional Rent reflected thereby effective
retroactively to the most recently preceding Adjustment Date.
6. Fixtures and Interior Alterations. Lessee, at its own expense and
with the prior written approval of Lessor, may from time to time during the term
of this lease make interior alterations, additions, improvements and
modifications in and to the demised premises which do not adversely affect the
structural integrity thereof; provided, however, that all such alterations,
additions, improvements and modifications shall be made in a good, workmanlike
manner and in accordance with all valid requirements of municipal or other
governmental authorities and no additions, alterations, improvements or
modifications will be made that change the character of the demised premises to
such extent that it no longer constitutes "property" listed in the National
Register of Historic Places within the meaning of the statute codified in Code
of Alabama 1975, Title 41, Chapter 10, Article 5, as amended and supplemented
and at the time in force and effect (the "Act"). All permanent improvements
shall belong to Lessor and become a part of the premises upon termination or
expiration of this lease.
7. Mechanics' Liens. Lessor will not be liable for any labor or
materials furnished to Lessee on credit, and no mechanics' or other liens for
any such labor or materials shall attach to or affect the reversion
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or other estate or interest of Lessor in and to the premises. Lessee shall
indemnify and save Lessor and/or its agents harmless from and against any
liability, damages, claims or costs arising from the imposition of any such
lien.
8. Subordinate. Lessee agrees that this lease shall at all times be
subject and subordinate to the Permitted Encumbrances as that term is defined
in the Mortgage and the Lease Agreement, including, without limitation, the
Mortgage, the Lease Agreement and the Conservation Easement, and Lessee agrees
to execute any instrument as may be required to effectuate such subordination.
9. Preparation for Occupancy. Prior to the commencement of the term,
the Lessor, at its own expense and cost and to the Lessee's reasonable
satisfaction, shall, unless otherwise agreed to, alter and fix up the premises
for occupancy by the Lessee; provided that the cost of said alterations and fix
up shall not exceed $560,000 plus an allowance for extras of $300,000. The
Lessor shall notify the Lessee when the Lessor's alteration and construction
work in the premises has advanced sufficiently to permit Lessee to install its
equipment and furnishings and to commence such other work therein which Lessee
desires. The Lessee's obligation to pay rent shall not commence until the
earlier of (i) substantially all work to be done by Lessor as set forth in the
aforesaid plans is substantially completed, or (ii) August 1, 1986.
10. Delays in Delivery of Possession. If Lessor, for any reason
whatsoever, cannot deliver possession of the Premises to Lessee by August 1,
1986, the Lessor shall not be liable in damages to the Lessee therefor. No such
delay in delivery of possession by Lessor shall change the beginning or ending
dates, or the duration of, the term of this Commercial Lease.
11. Public Liability Insurance and Indemnity. Lessee shall during the
entire term of this Lease, at Lessee's own expense, keep in force by advance
payment of premiums comprehensive general liability insurance against liability
for personal or bodily injury to or death of persons and for damage or loss of
property occurring on or about the demised premises or in any way related to
the use, occupancy or operation of the demised premises in the minimum amount
of One Million Dollars ($1,000,000) for injury to or death of one person or as
the result of one occurrence, and not less than Two Million Five Hundred
Thousand Dollars ($2,500,000) for injury to or death of more than one person as
the result of one occurrence, and for damage to property in the amount of One
Million Dollars ($1,000,000) or single limit of Two Million Five Hundred
Thousand Dollars ($2,500,000) insuring Lessee, Lessor, Lessor's agents,
servants and employees (as an additional assured), and the Authority against
any liability that may accrue against them or any of them on account of any
occurrence in or about the demised premises during the term or in consequence
of Lessee's occupancy thereof and resulting in personal injury or death or
property damage. All policies evidencing the insurance required by the terms of
this paragraph shall be taken out and maintained in generally recognized
responsible insurance companies, qualified under the laws of the State of
Alabama to assume the respective risk undertaken, shall contain an agreement on
the part of the insurer issuing such policy that the same shall not be
cancelled, terminated or permitted to lapse by such insurer unless thirty (30)
days' prior written notice of such cancellation, termination or lapse in
coverage shall have been given to the Lessor and Mortgagee, and may be written
with co-insurance provisions and deductible amounts comparable to those
applicable to similar policies carried by persons engaged in businesses of like
size and type as the Lessee.
12. Condition of Premises. Lessee shall notify Lessor in writing
within 30 days after Lessee takes possession of the Premises of any defects in
the Premises claimed by Lessee. Except for defects stated in such notice and
latent defects, Lessee shall be conclusively presumed to
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have accepted the Premises in the condition existing on the date Lessee first
takes possession, and to have waived all claims relating to the condition of
the Premises. No agreement of Lessor to alter, remodel, decorate, clean or
improve the Premises, the Building, or the Common Areas and no representation
regarding the condition of the Premises, the Building, or the Common Areas has
been made by or on behalf of Lessor to Lessee, except as stated in this
Commercial Lease.
13. Services Provided by Lessor. Lessor shall provide the following
services:
(1) city water from the regular Building fixtures for drinking,
lavatory and toilet purposes only;
(2) customary cleaning, snow removal, and trash removal in the
Common Areas;
(3) window washing of windows in the Premises, inside and outside
at reasonable intervals as determined by Lessor; and
(4) adequate passenger elevator service in common with other
tenants of the Building;
(5) pest control and extermination services;
(6) a security guard seven (7) days a week during non-business
hours;
(7) elevator maintenance and maintenance for the elevator
emergency telephones;
(8) city sewer services; and
(9) electricity for the common areas.
14. Maintenance by Lessor. Lessor, at its expense, shall maintain and
make necessary repairs to the structural and mechanical elements and exterior
windows of the Building and the Common Areas. Lessor shall not be responsible
for the maintenance, repair or replacement of any systems which are located
within the Premises and are supplemental or special to the Building's standard
systems, whether installed by Lessor at Lessee's request or by Lessee with
Lessor's permission. The cost of performing any of said maintenance or repairs
caused by the negligence of Lessee, its employees, agents, servants, licensees,
contractors or invitees, or the failure of Lessee to perform its obligations
under this Commercial Lease, shall be paid by Lessee, except to the extent of
insurance proceeds, if any, actually collected by Lessor with regard to the
damage necessitating such repairs.
15. Maintenance by Lessee. Lessee, at its expense and at all times,
shall provide all cleaning, repairs and preventive maintenance (including
repairs and maintenance of heating, ventilation and air conditioning systems
servicing the Premises) necessary to keep and maintain the Premises in good
order, condition and repair and in accordance with all applicable legal,
governmental and quasi-governmental requirements, ordinances and rules
(including the Board of Fire Underwriters or similar body). All utilities except
water and sewer will be metered separately and will be the responsibility of the
lessee. Lessee shall pay all utility bills promptly.
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16. Maintenance of Common Area. The Common Areas shall at all times
be subject to the exclusive control, management, operation and maintenance of
Lessor. Lessor shall have the right from time to time to establish, modify and
enforce rules and regulations with respect to the Common Areas. Lessee agrees
to comply with such rules and regulations, to cause its agents, contractors and
employees to so comply and to use its best efforts to cause its customers,
invitees, suppliers and licensees to so comply. Lessor shall have the right to
construct, maintain and operate lighting facilities in and on the Common Areas;
to police the same; to close temporarily all or any part of the parking areas
or parking facilities; and to do and perform such other acts in and to the
Common Areas as, in the exercise of good business judgment, Lessor shall
determine to be advisable.
17. Option to Lease Additional Space. Lessor hereby grants to Lessee
an option to lease additional space, not to exceed 3,300 square feet, in the
Xxxxxxxx & Xxxxxx Building, on the following terms:
(a) Said space will be leased to Lessee in an unimproved
condition;
(b) The initial base rent for any such additional space taken
pursuant to this option shall be at an annual rate of $2.50 per square foot
(exclusive of Operating Expense) payable in equal monthly installments. This
initial base rent for any such additional space leased to Lessee pursuant to
this option shall thereafter be adjusted pursuant to Paragraph 2, and said
adjustments shall be made on the same date as that for the base rent set forth
in Paragraph 2 hereof.
(c) This option shall expire October 31, 1990.
18. Allocation of Investment Tax Credit. It is understood and agreed
that $111,515.00 from investment tax credit with respect to the rehabilitation
of the Project and the other improvements made to, and the equipment purchased
for, the Project by the Lessor will be assigned to Lessee. The Lessor agrees to
execute any and all documents which may be necessary to effect the assignment
of such Investment Tax Credit under the applicable provisions of the Internal
Revenue Code of 1954, as amended, and the regulations promulgated thereunder.
19. In the event the class x partners identified as such under Section
7.1 of the General Partnership Agreement of the Lessor as Amended and Restated
executed as of this date though effective as of September 9, 1985 (the
"Partnership Agreement") elect to purchase the partnership interest of the
other classes of partners pursuant to clause (a) of Section 8.8 of the
Partnership Agreement, this Commercial Lease shall terminate thirty (30) days
after such purchase unless the Lessor and Lessee otherwise agree.
20. If Lessor assigns the Lease Agreement or purchases the Project
from the Authority during the Term of this Commercial Lease, and subsequently
sells the Project, Lessee shall have the right and option to terminate this
Commercial Lease sixty days after written notice to Lessor, which notice shall
be provided to Lessor no later than the later of thirty days after the sale or
assignment or receipt of written notice from Lessor of the sale or proposed
sale.
21. Lessee shall be assigned 27.5% of on site parking spaces. It is
presently estimated that there will be 145 total spaces on site.
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