SUBLEASE AGREEMENT
BETWEEN
AMERICAN CAST IRON PIPE COMPANY,
AND
L.B. POSTER COMPANY
Dated as of December 11, 1991
TABLE OF CONTENTS
ARTICLE 1. PREMISES AND TERM . . . . . .2
ARTICLE 2. CONSTRUCTION OF IMPROVEMENTS 2
ARTICLE 3. TENANT'S POSSESSION .. . . . . . .3
(a) Commencement Date. . . . . . 3
(b) Fixed Commencement Date ..............o 3
(c) Tenant Fixtures ....................... 3
(d) Completion Date . . . . . .
ARTICLE 4. TENANT'S SURRENDER OF PREMISES . . . . . . . . . 4
ARTICLE 5. TENANT'S USE. . . . . . . . . . . . . . . . . . .5
ARTICLE 6. RENT . . . . . . . . . . . . . .6
(a) Basic Rent .......................................6
(b) Additional Rent . . . . . . . .. . . . . . . . . ..6
(c) Gross Revenues 7
(d) Method of Payment of Additional Rent 7
(e) Quarterly Statements 8
(f)Disputed Amounts . . . . . . . . . . . . . . . . . . 10
(g) Operation of Business 11
ARTICLE 7. PROPERTY TAXES 11
(a) Real Property Tax ..................................11
(b) Personal Property Taxes 11
ARTICLE 8. INSURANCE. . . . . . . . . . . . . . . . . . 11
(a) Types of Insurance 11 (i) All Risks of Physical Loss or Damage 11
(ii) Liability 12
(iii) Boiler 13
(b) Policies and Carriers 13
(c) Policies and Certificates 13
(d) Prior Notice . . . . . . . . . . . . . . . 14
ARTICLE 9. UTILITIES 14
ARTICLE 10. ASSUMPTION OF RISK 14
ARTICLE 11. HAZARDOUS MATERIAL: INDEMNITY 15
ARTICLE 12. SIGNS 18
ARTICLE 13. MAINTENANCE AND REPAIRS . . . . . .18
ARTICLE 14. FIRE OR OTHER CASUALTY LOSSES 20
ARTICLE 15. EMINENT DOMAIN . .21
(a) Condemnation . . . . . . . . . . 21 21
(b) Sublease Termination ............................................21
(C) Partial Condemnation ...........................................22
(d) Restoration .....................................................23
(e) Substantially All Of Premises ..............................24
(f) Rent During Arbitration .....................................24
ARTICLE 16. DEFAULT ................. ................................25
(a) Events of Default ................................................25
(i) Rent Default .....................................................25
(ii)Abandonment........................................................25
(iii) Insolvency .................... ................................25
(iv) Mechanic's Lien or Other Claims .................................26
(v) Assignment or Subleasing . . . . . . . . . . . . 26
(b) Remedies .........................................................27
(c) Expense Reimbursement ............................................28
(d) No Waiver ....................................................... 29
(e)Cumulative Remedies..............................................30
(f) Tenant's Failure to Take Possession ............................30
ARTICLE 17. NON-DISTURBANCE.........................................30
ARTICLE 18. WAIVER .................................................30
ARTICLE 19. SUBORDINATION AND ATTOENMENT .......................... 31
(a) Subordination ...................................................31
(b) Nondisturbance ..................................................31
(c) No Recording of Sublease by Tenant ..............................31
(d) Attornment ......................................................32
(e) Estoppel Certificate ............................................32
ARTICLE 20. ABANDONMENT .............................................33
ARTICLE 21. ASSIGNMENT AND SUBLEASING ...............................33
ARTICLE 22. AUTOMATIC RENEWAL ...................................... 34
ARTICLE 23. COVENANT OF QUIET ENJOYMENT .............................34
ARTICLE 24. APPLICABLE LAWS AND NECESSARY LICENSES .................35
ARTICLE 25. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS . ............. 36
ARTICLE 26. LEGAL COSTS .........................37
(a) Legal Proceedings ..............................................37
(b) Landlord's Consent................................... . . . . . 38
ARTICLE 27. RIGHT OF ENTRY ...................... 38
ARTICLE 28. RESERVATION OF EASEMENTS 38
ARTICLE 29. ARBITRATION . 39
ARTICLE 30. INDEMNITY 40
ARTICLE 31. NOTICES. 41
ARTICLE 32. NO BROKER 42
ARTICLE 33. GOVERNING LAW 42
ARTICLE 34. BINDING EFFECT 42
ARTICLE 35. RELATIONSHIP OF PARTIES 42
ARTICLE 36. CAPTIONS FOR CONVENIENCE . . . . . . 42
ARTICLE 37. ENTIRE AGREEMENT . . . . 42
ARTICLE 38. COUNTERPARTS 42
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT made and entered into this 11th day of December, 1991,
by and between AMERICAN CAST IRON PIPE COMPANY, a Georgia corporation
(hereinafter referred to as "Landlord"), and X.X. XXXXXX COMPANY, a Delaware
corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of a lease agreement dated
November 25,1991 and recorded in the office of the Judge of Probate of Jefferson
County, Alabama in Real Property Volume 4150 Page 449 et seq. (hereinafter
referred to as the "Prime Lease") between Landlord and the Industrial
Development Board of the City of Birmingham (hereinafter referred to as the
"Prime Landlord"), Landlord leased from the Prime Landlord certain real property
located in Birmingham, Alabama described in Exhibit A hereto (hereinafter
referred to as the "demised premises"); and
WHEREAS, Tenant desires to Sublease from Landlord, and Landlord desires to
sublease unto Tenant, the demised premises, which premises are more particularly
described below; and
WHEREAS, Tenant shall use the demised premises for the purpose of coating pipe
manufactured by Landlord and other purposes directly related thereto, and for no
other purpose without the written consent of the Landlord.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
undertakings, covenants, promises and agreements herein contained, and for other
good and valuable consideration, receipt of which is acknowledged, Landlord and
Tenant agree as follows:
ARTICLE 1 PREMISES AND TERM Landlord hereby subleases to Tenant, and Tenant does
sublease and take from Landlord, the demised premises as described on Exhibit
"A" attached hereto and made a part hereof, together with the building and other
improvements to be erected upon the demised premises.
TO HAVE AND TO HOLD the said demised premises, together with all and singular
the improvements thereunto belonging or in any manner appertaining, unto Tenant
for a term commencing on the Commencement Date set forth in Article 3 hereof,
and continuing thereafter to and including the date three (3) years from the
first day of the first month immediately following such Commencement Date,
subject, however, to extension and renewal as provided in Article 25 hereof.
ARTICLE 2 CONSTRUCTION OF IMPROVEMENTS Landlord agrees to construct or cause to
be constructed a building and other improvements on the demised premises, in
accordance with the preliminary plans and specifications prepared by American
Cast Iron Pipe Company's Engineering Department, and dated 7/8/91, 7/23/91,
7/25/91, and 8/14/91, copies of which are attached hereto and incorporated
herein as Exhibit "B" and initialed by Landlord and Tenant, which plans and
specifications the parties have carefully reviewed and specifically approved.
Tenant shall make no alteration or addition to the demised premises without the
express written consent of Landlord.
ARTICLE 3 TENANT'S POSSESSION
(a) Commencement Date The Commencement Date shall be the earlier of (i) the date
on which the Landlord's representative responsible for supervising construction
shall certify in writing to Landlord or the Prime Landlord that the building is
substantially complete and ready for use (except for the personal property
required to be installed or supplied by Tenant), or (ii) the date of the
issuance by the appropriate governmental authority of a temporary certificate of
occupancy for the entire building, or (iii) the date on which Tenant commences
business in the building.
(b) Fixed Commencement Date After the Commencement Date has been determined, and
upon the demand of either Landlord or Tenant, the parties hereto will execute a
written declaration in recordable form expressing the specific commencement and
termination dates of the term of this Sublease.
(C) Tenant Fixtures Tenant shall have the right prior to the Commencement Date
to enter upon the demised premises at reasonable times for the purpose of
installing the furnishings, fixtures and equipment necessary or desirable for
Tenant to conduct its business operations, provided that Tenant shall assume
full risk of damage to any such property placed in, on or about the demised
premises except to the extent such damage is caused by Landlord's negligence.
(d) Completion Date Landlord shall use its reasonable best efforts to cause the
building to be ready for occupancy by Tenant on or before December 20, 1991.
Landlord shall not be liable to Tenant if Landlord is unable to have the
building ready for occupancy by such date, and Landlord's nondelivery of
possession to Tenant on such date shall not affect this Sublease or the
obligations of Tenant under this Sublease; provided, however, that at Tenant's
option this Sublease shall be deemed null and void if the Commencement Date does
not occur on or before February 3, 1992. In the event the Sublease is declared
null and void, Tenant shall have sixty (60) days to remove its property from the
demised premises.
ARTICLE 4 TENANT'S SURRENDER OF PREMISES Upon the expiration or
earlier termination of this Sublease, Tenant shall surrender to Landlord the
demised premises, including all buildings, replacements, changes, additions, and
improvements thereon, except fixtures, machinery, equipment and other items of
personal property that were furnished or paid for by Tenant, clean and in good
order, condition and repair, reasonable wear and tear excepted. Tenant may
remove any items of personal property that were furnished or paid for by Tenant
on the condition that Tenant repair to Landlord's reasonable satisfaction, at
Tenant's sole cost and expense, any physical damages to the premises caused by
any such removal of Tenant's property. The right granted Tenant in this Article
shall not include the right to remove any plumbing or electrical fixtures, or
heating or air conditioning equipment, floor coverings that have been glued or
fastened to the floors, or any paneling, tile, or other materials that have been
attached to the walls or ceilings all of which shall be deemed to constitute a
part of the freehold, and as a matter of course, shall not include the right to
remove any fixtures or machinery that were furnished or paid for by Landlord.
Any trade fixtures or other personal property belonging to Tenant, if not
removed within sixty (60) days after such termination and if Landlord shall so
elect, shall be deemed abandoned and become the property of Landlord without any
payment or offset therefor. If Landlord shall not so elect, Landlord may remove
such fixtures or property from the demised premises and store them at Tenant's
risk and expense, and Tenant agrees to pay all necessary costs and expenses
thereby incurred. Tenant shall repair and restore, and save Landlord harmless
from, all damage to the demised premises caused by such removal, whether by
Tenant or reasonably by Landlord. Landlord agrees that Tenant shall have access
to the demised premises for sixty (60) days after lease termination for the
purpose of removing Tenant's property.
ARTICLE 5 TENANT'S USE Tenant shall use the demised premises for conducting its
business of applying a coating to pipe manufactured only by Landlord, storing
and distributing such pipe and purposes directly related thereto, and for no
other purpose without written consent of the Landlord. Tenant shall not use the
demised premises for the purpose of storing, distributing or coating pipe
manufactured by others.
ARTICLE 6 RENT
(a) Basic Rent The basic annual rent for the demised premises is $120.00,
payable by Tenant monthly in advance in equal installments of $10.00 each on the
last day of every month during the Sublease term, or as otherwise mutually
agreed (the "Basic Rent"). In addition to the Basic Rent, Tenant shall pay
additional rent, based upon a percentage of Tenant's gross revenue from business
operations conducted on the demised premises, as hereinafter set forth.
(b) Additional Rent
(i) During the first Sublease Year (as hereinafter defined), in addition to the
Basic Rent, Tenant shall pay to Landlord an additional rent for the demised
premises ("Additional Rent") equal to 3.5% of gross revenues (as hereinafter
defined) earned in the coating of 10"-l6" pipe, and equal to 6% of gross
revenues earned in the coating of 18"-24" pipe, by Tenant in the demised
premises, subject to adjustments under 7 (b) (ii) below. As used herein the term
"Sublease Year" means the period of 12 consecutive months commencing on the
Commencement Date, and on each annual anniversary of the Commencement Date
during the term of this Sublease. The parties may, for any particular project,
adjust the percentage of gross revenues used to calculate additional rent
pursuant to a written agreement executed by both parties.
(ii) During each subsequent Sublease Year, in addition to the Basic Rent, Tenant
shall pay to Landlord an Additional Rent for the demised premises equal to a
mutually agreed upon percentage of Tenant's gross revenues earned by Tenant's
pipe coating operations conducted in the demised premises.
If Tenant and Landlord are unable to agree upon a mutually acceptable percentage
of gross revenues to be paid by Tenant as Additional Rent at least ninety (90)
days prior to commencement each succeeding year to which such percentages shall
apply, the following shall apply for the following year. If the Additional Rent
paid by Tenant to Landlord in the previous Sublease year is less than
$300,000.00 then the percentages set forth in subparagraph (i) above shall
increase by one-half of one percent. If Additional Rent paid by Tenant to
Landlord in the previous Sublease year is $300,000.00 or greater, then the
percentages shall be reduced by one-half of one percent.
(C) Gross Revenues The term "gross revenues" shall mean Tenant's revenues from
pipe coating operations conducted in the demised premises, including, but not
limited to, all sales, income from services, service charges, fees charged by
Tenant, including without limitation storage fees and distribution fees, and
loadout charges on shipments by truck, whether such coating is performed for
Landlord or others, and whether paid or unpaid (it being agreed that all risks
of credit shall be borne by Tenant). The term "gross revenues" shall not include
load-out charges on shipments by rail car; freight; taxes; and as a matter of
course, the revenues derived or attributable to the sales price of pipe.
(d) Method of Payment of Additional Rent The Additional Rent shall be
paid to Landlord in the following manner:
(i) If the gross revenues on which the Additional Rent is based are derived from
the coating of pipe for Landlord, Landlord shall deduct the Additional Rent from
Landlord's payment of Tenant's invoices in the month following the month in
which the coating services were performed;
(ii) If the gross revenues on which the Additional Rent is based are derived
from the coating of pipe for one of Landlord's customers other than Tenant,
Tenant shall pay the Additional Rent to Landlord on the last day of the calendar
month following the calendar quarter in which such coating services were
performed, and gross revenues shall be determined by the prices shown on the
customer's purchase order to Tenant; and
(iii) If the gross revenues on which the Additional Rent is based are derived
from the coating of pipe manufactured by Landlord and purchased by Tenant for
resale to others, Tenant shall pay the Additional Rent to Landlord on the last
day of the calendar month following the calendar quarter in which Tenant
invoices its customer for the pipe and/or coating services, and gross revenues
shall be based on coating prices mutually agreed upon at time of pipe order
placement by Tenant to Landlord.
(e) quarterly Statements
(i) Within thirty (30) days after the end of each calendar quarter during the
Sublease term, Tenant shall furnish to Landlord a verified, detailed statement
certified as to its accuracy by an officer of Tenant, setting forth the amount
of gross revenues of Tenant from coating operations during the preceding
quarter, showing the amount of Additional Rent required to be paid by Tenant for
such quarter, and providing a breakdown of the calculations of the Additional
Rent. Simultaneously with the delivery of such statement, Tenant shall pay to
Landlord all such Additional Rent other than the Additional Rent to be deducted
by Landlord from Tenant's invoices. Tenant shall keep a full and accurate set of
records adequately showing the amount of gross revenues arising out of
operations conducted on the demised premises each month during the Sublease
term.
(ii) Landlord and its duly authorized representatives shall have the right to
inspect and to audit Tenant's books, records and other supporting data at all
times during the term of this Sublease during normal business hours for the
purpose of verifying any statement within two (2) years after it is submitted,
and Tenant agrees (absent forces majeure) to keep and to preserve such books and
records for at least two (2) years after the end of each Sublease Year. If an
inspection accurately discloses that further Additional Rent is owed by Tenant,
the Tenant will immediately deliver its payment of the Additional Rent. The
acceptance by Landlord of Additional Rent shall not be deemed a waiver of its
rights to claim further Additional Rent after a review and inspection of
Tenant's books and records.
(iii) If the inspection or audit made by Landlord of Tenant's books and records
accurately discloses an understatement of gross revenue in Tenant's certified
quarterly statement in an amount sufficient to result in an error of 5% or more
in underpayment of Additional Rent, then Tenant shall bear the reasonable cost
of such inspection or audit. If Tenant shall fail to cause to be delivered to
Landlord a certified quarterly statement at the times and in the manner herein
provided, Landlord may give Tenant ten (10) days' written notice of such default
and of its intention to end the term of this Sublease and thereupon, at the
expiration of such notice period, the term of this Sublease shall expire as
fully and completely as if that were the date herein fixed for the expiration of
the term, if Tenant has not cured such default within the ten day period.
(f) Disputed Amounts If Landlord is not satisfied with any monthly statement
submitted to it by Tenant, including, but not limited to, the competitive market
value of the coating services referred to in paragraph (d) (iii) above, Landlord
shall notify Tenant in writing to that effect within 30 days after Tenant's
monthly statement is delivered to Landlord. If notice is not given by Landlord
within the period of 30 days, the statement shall be deemed accepted and
approved by it. If the parties are unable to resolve a dispute over a monthly
statement within ten (10) days of the giving of notice of the dispute by
Landlord, then the senior executive officers of Tenant and Landlord shall
attempt to reach a mutually acceptable resolution within seven (7) days
thereafter. If no resolution is reached within the 7-day period, the dispute
shall be determined by arbitration in accordance with the provisions of this
Sublease.
(g) Operation of Business At all times on and after the commencement of this
Sublease, Tenant shall conduct its business in a reputable manner and with
adequate staff. If the facility is not being operated for reasons other than
lack of business from Landlord, this Sublease may be terminated at the option of
either party.
ARTICLE 7 PROPERTY TAXES
(a) Real Property Tax Landlord agrees to pay all real property taxes and/or
assessments on the demised premises which become due during the term of this
Sublease. Tenant shall pay any license fee, license tax, or business license fee
imposed by any taxing authority against the demised premises and any tax on the
Landlord's right to receive, or the receipt of, rent or income from the demised
premises or against Landlord's business of leasing the demised premises;
provided, however that Tenant shall not be liable to pay any income taxes
imposed on Landlord.
(b) Personal Property Taxes Tenant shall pay all taxes charged against trade
fixtures, furnishings, equipment, and all other personal property belonging to
Tenant and located on the demised premises.
ARTICLE 8 INSURANCE
(a) Types of Insurance
(i) All Risks of Physical Loss or Damage During the term of this Sublease!
Tenant shall reimburse Landlord for the amount of the annual premium paid by
Landlord to maintain insurance on the demised premises against all risks of
physical loss or damage as provided by the insurance. The insurance shall be
maintained in an amount at all times not less than 100% of the full insurable
value thereof, subject to a deductible of $25,000.00 per occurrence. The term
"full insurable value" shall mean actual replacement value of the building. Full
insurable value shall be determined from time to time, but not more frequently
than once in any twelve calendar months, at the request of Landlord by the
insurer or, at the option of Landlord, by an appraiser, engineer, architect, or
contractor who shall be mutually acceptable to Landlord and the Prime Landlord.
The Landlord shall be the named insured and the Prime Landlord shall be an
additional named insured. All payments for loss shall be paid to Landlord for
any damages to the premises. Tenant agrees to pay Landlord the replacement value
of any physical loss or damage to the building that is, by virtue of the
deductible only, not covered by insurance.
(ii) Liability. During the term of this Sublease, Tenant shall, at its sole
expense, provide and keep in force standard commercial general liability
insurance protecting and indemnifying Tenant, Landlord, and the Prime Landlord
against claims of the kind typically covered under such standard commercial
general liability insurance for damages to person or property or for loss of
life or of property occurring upon, in, or about the demised premises, and the
street, gutters, sidewalks, or curbs adjacent thereto. Limits of $5,000,000 in
respect to injuries to any one person, or any one accident or disaster or
incident or occurrence of negligence for any bodily injury and/or property
damage are to be maintained. The Prime Landlord and the Landlord shall be
additional named insureds as owners and lessors of the premises.
(iii) Boiler. Boiler insurance if and when the demised premises contain a boiler
or boilers, in the amounts which may be required under the terms of the Prime
Lease. However, Xxxxxx will not be required to obtain boiler insurance in an
amount in excess of $2,000,000.
(b) Policies and Carriers All insurance provided for in paragraph (a) hereof
shall be effected under standard form policies issued by insurers of recognized
responsibility, which are rated A or A+ by A.M. Best Company with a minimum
financial rating of Class IX.
(c) Policies and Certificates Certificates of insurance shall be delivered to
Landlord. Tenant shall pay all premiums for all policies required pursuant to
paragraph (a) hereof and, at least 30 days prior to the expiration of each such
policy, Tenant shall pay the premium for the renewal of each such policy and
furnish to Landlord for exhibition to the Prime Landlord receipt (s) evidencing
payment of such premium(s). Tenant shall not violate or permit to be violated
any of the conditions or provisions of any policy furnished by Tenant pursuant
to paragraph (a), and Tenant shall so perform and satisfy the requirements of
the companies writing such policies so that at all times companies of good
standing shall be willing to write such insurance.
(d) Prior Notice Each policy required by this Article, a duplicate original, a
certified copy thereof, or a certificate therefor, shall contain an agreement by
the insurer that such policy shall not be cancelled without at least thirty (30)
days prior written notice to Landlord and the Prime Landlord.
ARTICLE 9 UTILITIES Tenant shall pay for all water, heat, gas, electricity, and
other costs of utilities consumed or used by it in connection with its occupancy
of the demised premises. In the event that one or more of such utilities or
related services shall be supplied to the demised premises and to Landlord or
one or more other tenants within the Landlord's adjacent properties without
being individually metered or measured to the demised premises, Tenant's
appropriate proportional share thereof shall be paid as additional rent. Where
reasonably possible, all utility metering to the demised premises shall be
separate and shall meter the usage in the demised premises only. Tenant's
proportional share of water and sewer usage shall be 100% of the xxxx for the
entire building.
ARTICLE 10 ASSUMPTION OF RISK Anything herein to the contrary notwithstanding,
on and as of the Commencement Date as defined in Article 3, Tenant assumes full
risk of damage to its property, fixtures, equipment, tools, improvements, stock,
goods, wares and merchandise, that it may have in or on or about the demised
premises, resulting from fire, lightning, extended coverage perils, flood and
any catastrophe, regardless of cause or origin. Landlord shall not be liable to
Tenant or anyone claiming by, through or under Tenant, including Tenant's
insurance carrier or carriers, for any loss or damage resulting from fire,
lightning or extended coverage perils or from an act of God. Landlord shall not
be liable to the insurance carrier for damages insured against, either directly
or by way of subrogation.
ARTICLE 11 HAZARDOUS MATERIAL INDEMNITY
(a) Tenant shall not cause or permit any Hazardous Material (as hereinafter
defined) to be brought upon, kept, or used in or about the demised premises by
Tenant, its agents, employees, contractors or invitees, unless such Hazardous
Material is necessary or useful to Tenant's business as conducted on the demised
premises and will be used, kept and stored in a manner that complies with all
laws and regulations governing any such Hazardous Material so brought upon or
used or kept in or about the demised premises; however, Landlord has no
obligation, and will not undertake, to insure compliance with any laws
regulating the use, storage or disposal of any Hazardous Material, such
compliance being the sole responsibility of Tenant. If Tenant breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the demised premises caused or permitted by Tenant results in
contamination of the demised premises, or if contamination of the demised
premises by Hazardous Material otherwise occurs for which Tenant is legally
liable to Landlord for damage resulting therefrom, then Tenant shall indemnify,
defend and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (including, without limitation,
diminution in value of the demised premises, damages for the loss or restriction
on use of rentable or usable space or of any amenity of the demised premises,
damages arising from any adverse impact on marketing of space, and sums paid in
settlement of claims, attorneys' fees, consultant fees and expert fees) which
arise during or after the Sublease term as a result of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal, or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the demised premises. Without
limiting the foregoing, if the presence of any Hazardous Material on the demised
premises caused or permitted by Tenant results in any contamination of the
demised premises, Tenant shall promptly take all actions at its sole expense as
are necessary to return the demised premises to the condition existing prior to
the introduction of any such Hazardous Material to the demised premises;
provided that Landlord's approval of such actions shall first be obtained, which
approval shall not be unreasonably withheld so long as such actions would not
potentially have any material adverse long-term or short-term effect on the
demised premises. Notwithstanding any provision above to the contrary, Tenant
shall have no liability whatsoever for preexisting conditions or for hazardous
substances arising from the operations of any other person or entity, unless at
the time of such operations such person or entity was an employee, agent,
affiliate or independent contractor of Tenant.
(b) As used herein, the term "Hazardous Material" means any substance, material
or waste which is or becomes regulated by any local governmental authority, the
State of Alabama or the United States Government. The term "Hazardous Material"
includes, without limitation, any material or substance that is (i) defined as a
"hazardous substance" under Alabama law, (ii) petroleum, including crude oil or
any fraction thereof, (iii) asbestos, (iv) designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
ss. 1321), (v) defined as a "hazardous waste" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq. (42
U.S.C. ss. 6903), (vi) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. ss. 9601 et seq. (42 U.S.C. ss. 9601), (vii) defined as a "regulated
substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of
Underground Storage Tanks), 42 U.S.C. ss. 6991 et seq., (viii) listed pursuant
to Section 302(a) (2) of the Emergency Planning and Community RightTo-Know Act
of 1986, 42 U.S.C. ss. 11001 et seq. (42 U.S.C. ss. 11002(a)(2)), or (ix) for
which rules have been promulgated pursuant to Section 6 of the Toxic Substances
Control Act, 15 U.S.C. ss. 2601 et seq. (15 U.S.C. ss. 2605).
(c) Tenant shall not install or cause to be installed any underground storage
tanks.
(d) If aboveground storage tanks are employed by Tenant, such tanks shall be
properly installed and protected so as to comply with all local, state and
Federal requirements, laws and regulations.
(e) Tenant shall be solely responsible for obtaining any environmental permits
required, including storm water runoff permits.
(f) Tenant shall not deposit or dispose of any waste material upon the surface
or below the surface of the demised premises.
ARTICLE 12 SIGNS Tenant shall not erect, place, or allow to be placed any sign
or advertising matter on the exterior of the building without the prior written
consent of Landlord; provided, however, that Landlord hereby consents to Tenant
placing such signs on the demised premises as Tenant reasonably believes
appropriate to identify Tenant as the operator of the demised premises.
ARTICLE 13 MAINTENANCE AND REPAIRS It is understood and agreed that Landlord
shall, at its sole cost and expense, keep and maintain during the terms of this
Sublease Agreement or any extension or renewal thereof the foundation, roof, and
structural support portion of the exterior of the building in proper condition
and in a good state of repair. Landlord shall be responsible for the initial
painting of the building and Tenant shall be responsible for painting
thereafter. Landlord shall not be responsible for any maintenance or repair
caused by the fault or neglect of Tenant or due to hazards and risks covered or
required to be covered by insurance hereunder except as insurance proceeds are
available therefor. All other maintenance and repair of said structure,
including painting of exterior (other than the initial painting) and interior
walls, and maintenance and repair, and replacement of equipment, shall be the
sole responsibility of Tenant.
It is understood and agreed that should either party to this Agreement fail or
refuse to start and to proceed thereafter with due diligence to make any repairs
or maintenance as may be reasonably necessary for the purpose of fulfilling the
terms and conditions of the agreements herein set forth within a reasonable
length of time (not to exceed fifteen (15) days) after being notified in writing
of the need thereof, that the other party hereto may make such repairs at the
cost and expense of the party so failing or refusing. In the event of an
emergency situation, Tenant may, in its discretion, make emergency repairs
without giving written notification to Landlord, and Landlord shall reimburse
Tenant for the reasonable value of the emergency repairs in the event that such
repairs were the responsibility of Landlord hereunder and were not due to the
fault of Tenant or Tenant's agents. The rights of Tenant hereunder specifically
do not include the right to offset or deduct any amounts claimed hereunder from
rentals due. Landlord reserves the right to enter upon the demised premises
during business hours at any time to inspect the same and to make necessary
repairs to fulfill Landlord's obligation hereunder.
ARTICLE 14 FIRE OR OTHER CASUALTY LOSSES If the demised premises should be
damaged or destroyed during the Sublease term by fire or other insurable
casualty without the fault of Tenant, Landlord shall repair and/or restore the
same to substantially the condition it was in immediately prior to such damage
or destruction, except as in this Article provided. Landlord's obligation under
this Article shall in no event exceed the scope of the work required to be done
by Landlord in the original construction of the building. Landlord shall not be
required to, but Tenant, unless otherwise agreed by Landlord, may with due
dispatch, replace or restore forthwith any trade fixtures, signs or other
installations theretofore installed by Tenant. Basic Rent payable under this
Sublease shall be abated proportionately according to the floor area of the
demised premises which is unusable by the Tenant, but if such damage was caused
by the fault of Tenant there shall be no abatement of rent. Such abatement shall
continue for the period commencing with such damage or destruction and ending
with the completion by Landlord of such work of repair and/or reconstruction as
Landlord is obligated to do. If, however, the building should be damaged or
destroyed by any cause so that the Landlord shall decide to demolish or to
abandon, or completely rebuild the building Landlord may, within sixty (60) days
after such damage or destruction, give Tenant written notice of such decision,
and thereupon this Sublease shall be deemed to have terminated as of the date of
the damage or destruction and Tenant shall immediately quit and surrender the
demised premises to Landlord; provided, however, that Tenant shall have sixty
(60) days thereafter to remove its property from the demised premises.
ARTICLE 15 EMINENT DOMAIN
(a) Condemnation If at any time during the term of this Sublease the whole or
any part of the demised premises shall be taken for any public or quasi-public
purpose by any lawful power or authority by the exercise of the right of
condemnation or eminent domain, Landlord shall be entitled to and shall receive
any and all awards that may be made in any such proceedings; and Tenant hereby
assigns and transfers to the Landlord any and all such awards that may be made
to Tenant, provided, however, that Tenant shall have the right to make a
separate claim with the condemning authority for the value of Tenant's property
and/or moving and relocation expenses, and provided further, that such separate
claims shall not reduce or adversely affect the amount of Landlord's award.
Tenant shall not be entitled to any payment based inter alia upon the value of
the unexpired term of this Sublease, consequential damage to the land not so
taken, fixtures, or alterations to the premises.
(b) Sublease Termination If such proceedings shall result in the taking of the
whole or substantially all of the demised premises, this Sublease and the term
hereof shall terminate and expire on the date of such taking, and the Basic
Rent, Additional Rent, and other sinus or charges provided in this Sublease to
be paid by Tenant shall be apportioned and paid to the date of such taking.
(c) partial Condemnation If less than the whole or less than substantially all
of the demised premises shall be taken in such proceedings, and the part so
taken shall consist only of the property surrounding the building or any part
thereof, but not the building itself, this Sublease shall terminate only as to
the portion of the demised premises so taken, and this Sublease shall continue
for the balance of its term as to the part of the demised premises remaining and
the Basic Rent and Additional Rent to be paid by Tenant after such taking for
the remaining part of the demised premises shall be reduced by an amount agreed
upon by Landlord and Tenant. If Landlord and Tenant are unable to agree on the
amount of such reduction within 30 days after the mailing by Landlord of a
written notice to Tenant that the premises have been so taken, then the
reduction shall be in an amount as shall be determined by arbitration as
provided in this Sublease.
If, however, the part so taken shall consist of the building or a part thereof,
Tenant shall have the right to cancel and terminate this Sublease as of the date
of such taking by giving to Landlord notice in writing of such election within
thirty (30) days after the mailing by Landlord of a written notice to Tenant
that the premises have been so taken; and the Basic Rent, Additional Rent and
all other sums and charges in this Sublease provided to be paid by the Tenant
shall be apportioned and paid to the date of such termination.
If Tenant shall not elect to terminate, this Sublease shall continue for the
balance of its term as to the part of the demised premises remaining, and the
Basic Rent to be paid by Tenant after such taking for the remaining part of the
demised premises shall be reduced pro rata in the portion which the space in the
building so taken bears to the entire space in the building originally demised.
If Landlord and Tenant shall not agree upon the amount of such pro rata
reduction within ten (10) days after the thirty day period within which Tenant
may elect to cancel shall have expired, then the same shall be in an amount as
shall be determined by arbitration as provided in this Sublease.
(d) Restoration If less than the whole or less than substantially all of the
building shall be taken in such proceedings, and Tenant shall not elect to
terminate this Sublease, Landlord shall, with reasonable dispatch, repair the
remaining portion of the building so as to restore such building as a building
complete in itself, but Landlord shall not be obliged to expend thereon more
than the sum allowed to Landlord in such condemnation preceding for damage to
the building, less all expenses incurred by Landlord in such proceeding, nor
shall there be any abatement of rent during such restoration; provided, however,
that if the expense of such restoration would be greater than the sum allowed to
Landlord, less such expenses in the condemnation proceeding, then Landlord shall
have an option, for a period of thirty (30) days after such partial taking,
within which to decide whether to make the restoration or terminate this
Sublease. If, within such thirty-day period, Landlord shall give written notice
to Tenant of termination, this Sublease and the term hereof shall terminate and
expire on the last day of the calendar month following the month in which such
notice shall be given and the Basic Rent, Additional Rent, and other sums or
charges in this Sublease provided to be paid by Tenant shall be paid to the date
of such termination; provided, however, that if Tenant shall agree in writing,
within twenty (20) days after receiving any such notice of termination from
Landlord, to pay the difference by which the cost of such restoration exceeds
the sum allowed to Landlord in such condemnation proceeding, less such expenses,
then Landlord's notice of termination and right to terminate hereunder shall
cease and Landlord shall make such restoration as hereinbefore required.
(e) Substantially All Of Premises For the purposes of this Article,
substantially all of the demised premises shall be deemed to be taken if the
portion of the demised premises not so taken does not constitute, or cannot be
repaired or reconstructed so as to constitute, a complete plot and structure
usable by Tenant as an entity for the proper conduct for its business. In the
event that there shall be a dispute between Landlord and Tenant as to whether
"substantially all" of the demised premises are taken, such dispute shall be
submitted to and determined by arbitration as provided in this Sublease.
(f) Rent During Arbitration The rent hereunder shall not xxxxx during any
arbitration proceeding or pending any arbitration award pursuant to this
Article, but an adjustment in the rent,
including a retroactive adjustment for any period during which Tenant may have
been deprived of the use of the building, or any part thereof, shall be made as
soon as the exact amount thereof payable shall have been determined by the
arbitration award.
ARTICLE 16 DEFAULT
(a) Events of Default The occurrence of any one or more of the following shall
constitute a default of this Sublease:
(i) Rent Default Tenant shall fail to pay any installment of the rent on the
date that the same is due and such failure shall continue for a period of ten
(10) days after the giving of notice by Landlord of written demand for such
payment; provided, however, that three (3) or more successive failures to pay
rent within ten (10) days of the due date thereof shall constitute an event of
default without the necessity of Landlord making any written demand;
(ii) Abandonment The abandonment or vacating of the demised premises by Tenant;
(iii) Insolvency. The making by Tenant of a general assignment for the benefit
of creditors; the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or of a petition for reorganization or arrangement under any
bankruptcy law (unless, in the case of a petition filed against Tenant the same
is dismissed within 60 days); the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets or of Tenant's interest in
this Sublease, where possession is not restored to Tenant within thirty (30)
days; or the attachment or the judicial seizure of substantially all of Tenant's
assets or of Tenant's interest in this Sublease where such seizure is not
discharged within thirty (30) days;
(iv) Mechanic's Lien or Other Claims Tenant does, or permits to be done, any act
which creates a mechanic's lien or claim therefor against the demised premises
provided that Tenant has 30 days to satisfy said lien;
(v) Assignment or Subleasing Assignment or subleasing of all or any portion of
the demised premises without the prior written consent of Landlord; or
(vi) Breach A failure by Tenant to observe and perform any other provision of
this Sublease, where such failure continues to be unremedied for thirty (30)
days after written notice by Landlord to Tenant specifying the same; or if such
failure cannot with due diligence be cured within a period of thirty (30) days
and the continuance of such period will not subject Landlord to the risk of
termination or default of the Prime Lease or foreclosure of any superior
mortgage, if Tenant shall not, (1) within said thirty-day period advise Landlord
of Tenant's intention to duly institute all steps necessary to remedy such
situation, (ii) duly institute within such thirty-day period, and thereafter
diligently prosecute to completion, all steps necessary to remedy the same, and
(iii) complete such remedy within such time after the date of the giving of said
notice to Landlord as shall reasonably be necessary.
(b) Remedies Upon the occurrence of any one or more of the foregoing events of
default, Landlord shall have the option to do any of the following in addition
to and not in limitation of any other remedy permitted by law or by this
Sublease:
(i) Landlord shall have the immediate right to terminate this Sublease, or
re-enter and attempt to relet without terminating this Sublease, and remove all
persons and property from the demised premises and such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account
of Tenant, all without services of notice or resort to legal process and without
being deemed guilty of trespass, or becoming liable for any loss or damage which
may be occasioned thereby;
(ii) If Landlord, without terminating this Sublease, either (1) elects to
re-enter and attempts to relet, or (2) takes possession pursuant to legal
proceedings, or (3) takes possession pursuant to any notice provided by law,
then it may, from time to time, make such alterations and repairs as may be
necessary in order to relet the demised premises or any part thereof for such
term or terms (which may be for a term extending beyond the term of this
Sublease) and at such rental or rentals and upon such other terms and conditions
as Landlord in its sole discretion may deem advisable. Upon each such reletting,
all rentals received by Landlord from such reletting shall be applied, first, to
the payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorney's fees; third, to the payment of rent due
and unpaid hereunder, and the residue, if any, shall be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month be less
than that to be paid during the month by Tenant hereunder, Tenant shall pay any
such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such re-entry or taking possession of the demised premises by
Landlord shall be construed as an election on its part to terminate this
Sublease unless a notice of such intention be given to Tenant. Notwithstanding
any such reletting without termination, Landlord may at any time thereafter
elect to terminate this Sublease for such previous breach;
(iii) Should Landlord at any time terminate this Sublease for any breach, in
addition to any other remedies Landlord may have, it may recover from Tenant all
damages Landlord may incur by reason of such breach, including the cost of
recovering the demised premises and reasonable attorney's fees;
(iv) In addition to other remedies provided for in this Sublease, Landlord shall
be entitled to restraint by injunction of the violation, or attempted or
threatened violation of any condition or provision of this Sublease, or to a
decree specifically compelling performance of any such condition or provision.
(C) Expense Reimbursement In addition to any other remedies Landlord may have at
law or equity and/or under this Sublease, Tenant shall pay upon demand all
Landlord's costs, charges and expenses, including fees of counsel, agents and
others retained by Landlord, incurred in connection with the recovery of sums
due under this Sublease, or because of the breach of any covenant under this
Sublease or for any other relief against Tenant. In the event Tenant shall bring
any action against Landlord for relief hereunder and Landlord shall prevail,
Tenant shall pay Landlord's reasonable attorney fees and all court costs.
(d) No Waiver. No waiver of any covenant or condition or of the breach of any
covenant or condition of this Sublease shall be taken to constitute a waiver of
any subsequent breach of such covenant or condition nor to justify or authorize
the nonobservance on any other occasion of the same or of any other covenant or
condition hereof, nor shall the acceptance of rent by Landlord at any time when
Tenant is in default under any covenant or condition hereof, be construed as a
waiver of such default or of Landlord's right to terminate this Sublease on
account of such default, nor shall any waiver or indulgence granted by Landlord
to Tenant be taken as an estoppel against Landlord, it being expressly
understood that if at any time Tenant shall be in default in any of its
covenants or conditions hereunder, an acceptance by Landlord of rental during
the continuance of such default or the failure on the part of Landlord promptly
to avail itself of such other rights or remedies as Landlord may have, shall not
be construed as a waiver of such default, that Landlord may at any time
thereafter, if such default continues, terminate this Sublease on account of
such default or pursue any other remedy permitted by law or by this Sublease.
(e) Cumulative Remedies The rights and remedies given to Landlord by this
Sublease shall be deemed to be cumulative and no one of such rights and remedies
shall be exclusive at law or in equity of the rights and remedies which Landlord
might otherwise have by virtue of default under this Sublease, and the exercise
of one such right or remedy by Landlord shall not impair Landlord's standing to
exercise any other right or remedy.
(f) Tenant's Failure to Take Possession Tenant shall take possession and be open
for business, fully equipped and staffed, within ninety (90) days of Landlord's
notice to Tenant that the demised premises are ready for occupancy.
ARTICLE 17 NON-DISTURBANCE Tenant understands that other persons and entities,
including Landlord, conduct businesses or reside near the demised premises.
Tenant covenants and agrees to conduct its business in such a manner as to not
unreasonably interfere with the occupants of surrounding properties, including
Landlord. Landlord covenants and agrees to conduct its business in such a manner
as to not unreasonably interfere with Tenant's operations.
ARTICLE 18 WAIVER The failure of Landlord to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Sublease, or of any rule or regulation, shall not prevent a subsequent act,
which would have originally constituted a violation, from having all the force
and effect of an original violation. The receipt by Landlord of rent with
knowledge of the breach of any covenant of this Sublease shall not be deemed a
waiver of such breach. No provision of this Sublease shall be deemed to have
been waived by Landlord, unless such waiver be in writing signed by Landlord.
ARTICLE 19 SUBORDINATION AND ATTORNMENT
(a) Subordination This Sublease is subject and subordinate at all times to the
lien of future and existing mortgages on the demised premises, and to all
renewals, modifications, consolidations and replacements of said mortgages.
Although no instrument or act on the part of Tenant shall be necessary to
effectuate such subordination, Tenant will, nevertheless, execute and deliver
such further instruments as may be desired by the mortgagee subordinating this
Sublease to the lien of all such mortgages. Tenant hereby appoints Landlord its
attorney-in-fact, irrevocably, to execute and deliver any such instrument for
the Tenant.
(b) Nondisturbance So long as Tenant is not in default in the payment of rent or
additional rent or in the performance of any of the terms of this Sublease, the
Tenant's possession of the demised premises and the Tenant's rights and
privileges under the Sublease or any renewal thereof shall not be diminished or
interfered with by the mortgagee.
(C) No Recording of Sublease by Tenant Tenant shall not place this Sublease on
record without the consent of Landlord. At the request of Landlord, Tenant will
execute a short-form memorandum of Sublease for recording purposes containing
references to such provisions of this Sublease as Landlord, in its sole
discretion, shall deem necessary.
(d) Attornment In the event any future or existing mortgage on the demised
premises is foreclosed for any reason, and the mortgagee or purchaser at the
foreclosure sale succeeds to the interest of the Landlord under this Sublease,
the Tenant shall be bound to the mortgagee or purchaser, as the case may be,
under all of the terms of this Sublease for the balance of the term thereof
remaining with the same force and effect as if the mortgagee or purchaser were
the Landlord under the Sublease, and Tenant hereby attorns to the mortgagee or
purchaser as its landlord, such attornment to be effective and self-operative
without the execution of any further instrument on the part of either of the
parties hereto, immediately upon the mortgagee or purchaser succeeding to the
interest of the Landlord under the Sublease. Notwithstanding anything herein to
the contrary, Tenant shall be under no obligation to pay rent to the mortgagee
or purchaser until Tenant receives written notice from the mortgagee or
purchaser that it has succeeded to the interest of the Landlord under the
Sublease. The respective rights and obligations of the Tenant and the mortgagee
or purchaser upon such attornment shall to the extent of the then remaining
balance of the term of this Sublease be the same as now set forth herein.
(e) Estoppel Certificate Tenant shall, from time to time and upon written
request by Landlord, furnish Landlord a written statement, signed by Tenant and
addressed to the person designated in such request, on the status of any matter
pertaining to the Sublease, including that at the date of such statement (1) the
provisions and conditions of the Sublease have been complied with, (ii) there
are no defaults by Landlord, and (iii) the Sublease is still in full force and
effect. If any or all of (i), (ii) or (iii) are not stated in the affirmative in
the statement, the statement shall describe the facts and matters which Tenant
alleges prevents such affirmative statement.
ARTICLE 20 ABANDONMENT Tenant shall not vacate or abandon the demised premises
at any time during the term of this Sublease, nor permit the premises to remain
unoccupied, for a period longer than 14 consecutive days during the term of this
Sublease; and if Tenant shall abandon, vacate or surrender the demised premises,
or be dispossessed by process of law or otherwise, any personal property
belonging to Tenant left on the demised premises longer than sixty (60) days
after lease termination, shall, at the option of the Landlord, be deemed
abandoned.
ARTICLE 21 ASSIGNMENT AND SUBLEASING Tenant shall not assign this Sublease
(whether by operation of law or otherwise) or sublet all or any portion of the
demised premises without the prior written consent of Landlord. Any purported
assignment or sublease without Landlord's prior written approval shall be null
and void and of no force and effect whatsoever. If any single entity or group of
affiliated entities other than the present owners should ever own or control
more than fifty percent (50%) of the voting capital stock of Xxxxxx, American
shall have the option of canceling this Sublease. Any breach of this assignment
clause by Tenant will constitute a default under the terms of this Sublease and
Landlord shall have all rights and remedies available to it as set forth herein.
ARTICLE 22 AUTOMATIC RENEWAL This Sublease shall automatically renew for an
additional two (2) year term ("Renewal Term") up to a maximum aggregate lease
term of five (5) years from the Commencement Date (as defined in Article 3)
unless terminated by either party on written notice to the other given at least
ninety (90) days prior to the expiration of the initial or any such Renewal Term
hereof; provided, however, that this Sublease shall not automatically renew for
any Renewal Term if any default by Tenant shall exist as of the commencement
date of such Renewal Term.
Any Renewal Term shall be upon the same conditions applicable during the initial
term.
Notwithstanding anything in this Sublease to the contrary, this Sublease shall
terminate if and when that certain Service Agreement of even date herewith
between Landlord and Tenant shall terminate, such termination of the Sublease to
be effective on the date on which termination of the Service Agreement is
effective.
ARTICLE 23 COVENANT OF QUIET ENJOYMENT Tenant, upon paying the Basic Rent and
all Additional Rent and other charges and performing all the other terms of this
Sublease, shall quietly have and enjoy the demised premises during the term of
this Sublease without hindrance or interference by anyone claiming by or through
the Landlord, subject, however, to the reservations and conditions of this
Sublease, the Prime Lease, and any fee mortgage to which this Sublease is
subordinate.
ARTICLE 24 APPLICABLE LAWS AND NECESSARY LICENSES Tenant at its sole expense
shall comply with all laws, orders, and regulations of federal, state, and
municipal authorities, and with any lawful direction of any public officer,
which shall impose any duty upon Landlord or Tenant with respect to the demised
premises. Tenant, at its sole expense, shall obtain all required licenses or
permits for the conduct of its business within the terms of this Sublease, and
for the making of repairs, alterations, improvements, or additions, and
Landlord, where necessary, will join with Tenant in applying for all such
permits or licenses. Tenant is solely responsible for obtaining all air, solid
waste, and water pollution control permits as required for its operation.
Further, it is Tenant's responsibility to meet all environmental compliance
requirements now and in the future. With respect to Tenant's operation of
facility, Tenant will respond promptly to provide any corrective actions
required to maintain proper compliance with any present or future environmental
control regulation or permit affecting its operation; provided, however, that
Tenant shall have no liability whatsoever for preexisting conditions or for the
activities of any other person or entity, unless at the time of such activities
such person or entity was an employee, agent, affiliate or independent
contractor of Tenant.
ARTICLE 25 ALTERATIONS ADDITIONS AND IMPROVEMENTS
(a) Tenant shall not make any alterations, additions, or improvements to the
demised premises without Landlord's prior written consent, except for the
initial installation of equipment and fixtures and for nonstructural alterations
which do not exceed Five Thousand Dollars ($5,000) in cost cumulatively over the
Sublease term and which are not visible from the outside of the building.
Landlord may require Tenant to provide demolition and/or lien and completion
bonds in form and amount satisfactory to Landlord. Tenant shall promptly remove
any alterations, additions, or improvements constructed in violation of this
Article upon Landlord's written request. All alterations, additions, and
improvements will be accomplished in good and workmanlike manner, in conformity
with all applicable laws and regulations, and by a contractor approved by
Landlord. Upon completion of any such work, Tenant shall provide Landlord with
"as built" plans, copies of all construction contracts, and proof of payment for
all labor and materials.
(b) Tenant shall pay when due all claims for labor and material furnished to the
demised premises. Tenant shall give Landlord at least ten (10) days prior
written notice of the commencement of any work on the demised premises. Landlord
may elect to record and post notices of nonresponsibility on the demised
premises.
ARTICLE 26 LEGAL COSTS
(a) Legal Proceedings Tenant shall reimburse Landlord, upon demand, for any
costs or expenses incurred by Landlord in connection with any breach or default
of Tenant under this Sublease, whether or not suit is commenced or judgment
entered. Such costs shall include legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. Furthermore, if
any action for breach of or to enforce the provisions of this Sublease is
commenced, the court in such action shall award to the party in whose favor a
judgment is entered, a reasonable sum as attorney's fees and costs. Such
attorney's fees and costs shall be paid by the losing party in such action.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands, and liability incurred by Landlord if Landlord becomes
or is made a party to any claim or action (i) instituted by Tenant against any
person or entity other than Landlord, or by any third-party against Tenant, or
by or against any person holding any interest under or using the demised
premises by license of or agreement with Tenant; (ii) for foreclosure of any
lien for labor or material furnished to or for Tenant or such other persons;
(iii) otherwise arising out of or resulting from any act or transaction of
Tenant or such other persons; (iv) necessary to protect Landlord's interest
under this Sublease in any bankruptcy of or against Tenant, or other proceeding
under Title 11 of the United States Code, as amended. Tenant shall defend
Landlord against any such claim or action at Tenant's expense with counsel
reasonably acceptable to Landlord or, at Landlord's election, Tenant shall
reimburse Landlord for any legal fees or costs incurred by Landlord in any such
claim or action.
(b) Landlord's Consent Tenant shall pay Landlord's reasonable attorney's fees
incurred in connection with Tenant's request for Landlord's consent for the
assignment or subletting of this Sublease, or in connection with any other act
Tenant proposes to do and which requires Landlord's consent.
ARTICLE 27 RIGHT OF ENTRY Landlord, the Prime Landlord, and any agents of
Landlord or the Prime Landlord, may enter the demised premises at all reasonable
times to examine or inspect the same, to exhibit the demised premises to
potential buyers, investors, tenants or other parties, or for any other purposes
Landlord or Prime Landlord deems necessary.
ARTICLE 28 RESERVATION OF EASEMENTS
(a) Landlord shall have the right to grant easements in areas of the demised
premises for the installation of utilities, provided that the use of such
easement areas for such purposes does not interfere substantially with the
operations of Tenant's business. Tenant shall not be entitled to any
compensation or abatement of rent if the use of such easement areas does not
interfere substantially with Tenant's business.
(b) Landlord reserves the right to use the railroads, roads and other paths
existing across the demised premises as a means of ingress and egress to and
from other premises of the Landlord, by trucks, motor and other vehicles, and by
persons on foot, and Landlord shall have the right for itself, its agents,
servants and employees, invites, and licenses, to use such easement at any time
and for any purpose on condition that such use does not substantially interfere
with Tenant's operations.
ARTICLE 29 ARBITRATION Any disagreement between the parties with respect to the
interpretation or application of this Sublease or the obligations of the parties
hereunder shall be determined by arbitration. Such arbitration shall be
conducted, upon request of either Landlord or Tenant, before three arbitrators
(unless Landlord and Tenant agree to one arbitrator) designated by the American
Arbitration Association and in accordance with the rules of such association.
The arbitrators designated and acting under this Sublease shall make their award
in strict conformity with such rules and shall have no power to depart from or
change any of the provisions thereof. All arbitration proceedings hereunder
shall be conducted in the county in which the demised premises are located. The
award of the arbitrator shall be binding, final, and conclusive on the parties.
The fees of the arbitrators and the expenses incident to the proceedings shall
be borne equally between Landlord and Tenant. The fees of respective counsel
engaged by the parties, and the fees of expert witnesses and other witnesses
called for by the parties, shall be paid by the respective party engaging such
counsel or calling and engaging such witnesses.
ARTICLE 30 INDEMNITY
(a) Landlord shall not be liable for any injury or damage to persons or property
occurring within the demised premises, including, but not limited to, personal
injury or property damage to Tenant, or to its officers, agents, employees,
licensees, or invitees, unless such liability is attributable to the negligent
or willful conduct of Landlord, its agents, servants, contractors, employees or
licensees.
(b) Tenant shall indemnify and save harmless Landlord against and from any and
all claims by or on behalf of any person, firm, or corporation, arising from any
work or thing whatsoever done by or on behalf of Tenant, in or about the demised
premises, and will further indemnify and save harmless Landlord against and from
any and all claims arising from any breach or default on the part of Tenant in
the performance of any covenant or agreement to be performed by Tenant pursuant
to the terms of this Sublease, or arising from any act or negligence of Tenant,
or any of its agents, contractors, servants, employees or licensees, and from
and against all costs, reasonable attorney's fees, expenses and liabilities
incurred in or about any such claim or action or proceeding brought thereon; and
in case any action or proceeding be brought against Landlord by reason of any
such claim, Tenant upon notice of Landlord, covenants to defend, at Tenant's
expense, such action or proceeding by counsel reasonably satisfactory to
Landlord. Landlord shall have the right, if it sees fit, to participate in such
defense at its own expense; provided, however, that this indemnification shall
not extend to claims, demands, actions, losses or liabilities that are
attributable to the negligent or willful misconduct or intentional breach of
Landlord, its agents, servants, contractors, employees or licensees.
ARTICLE 31 NOTICES Any notice to be given hereunder by either party to the other
shall be given in writing, delivered personally, or mailed by certified mail,
postage paid, or by a nationally known air courier, to the following addresses
or to such other addresses as the parties hereto may designate from time to time
in the manner provided in this paragraph:
TO LANDLORD AT: American Cast Iron Pipe Company
0000 00xx Xxxxxx Xxxxx
P. 0. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
With a Copy To: Xxxxxx X. Xxxxxx, Xx., Esq.
Xxxx & Xxxxxx
3000 South Trust Tower
000 X. 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
TO TENANT AT: X.X. Xxxxxx Company
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: President
With a Copy To: X. X. Xxxxxx Company
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: V.P. - Tubular Products
All notices shall be deemed to be given when deposited in the United States mail
or delivered to such courier as aforesaid or when personally delivered.
ARTICLE 32 NO BROKER Tenant represents that it has not negotiated with or dealt
with any broker in connection with the negotiating and execution of this
Sublease.
ARTICLE 33 GOVERNING LAW This Sublease shall be governed by, construed, and
enforced in accordance with the laws of the State of Alabama.
ARTICLE 34 BINDING EFFECT The provisions of this Sublease shall be binding on
and inure to the benefit of the parties, their legal representatives,
successors, and permitted assigns.
ARTICLE 35 RELATIONSHIP OF PARTIES The parties have not created and do not
intend to create by this Sublease a joint venture or partnership relation
between them, it being understood and agreed that the provisions of this
Sublease with regard to the payment by Tenant and the acceptance by Landlord of
a sum equal to a percentage of gross revenues is a reservation of rent.
ARTICLE 36 CAPTIONS FOR CONVENIENCE The captions of this Sublease are for
convenience only, are not a part of the Sublease, and do not in any way limit or
amplify the terms and provisions thereof.
ARTICLE 37 ENTIRE AGREEMENT This Sublease contains all of the agreements and
representations between the parties. None of the terms of this Sublease shall be
waived or modified to any extent, except by written instrument signed and
delivered by both parties.
ARTICLE 38 COUNTERPARTS This Sublease may be executed in one or more
counterparts, each of which shall be an original, and all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed and affixed their
respective seals to this Sublease Agreement on the day and year first above
written.
