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EXHIBIT
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LEASE AGREEMENT
MEDICAL FORUM
BIRMINGHAM-JEFFERSON CIVIC CENTER
BIRMINGHAM, ALABAMA
STATE OF ALABAMA
JEFFERSON COUNTY
THIS LEASE, made this 7th day of June 1994, by and between
Birmingham-Jefferson Civic Center Authority (the "Lessor") and MASADA SECURITY,
INC. (the "Lessee").
WITNESSETH:
1. PREMISES. Lessor hereby demises to Lessee and Lessee leases from
Lessor on the terms, covenants and conditions set forth herein those premises
shown on Exhibit "A" attached hereto, (the "Leased Premises"), located in the
building, the location of which is indicated on said Exhibit "A" (the
"Building") in the City of Birmingham, Alabama. The Leased Premises,
approximately 14,623 square feet is located at
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2. TERM. The term of this Lease shall be for 120 months, commencing
on September 1, 1994 and ending August 31, 2004.
3. RENT. (a) Lessee shall pay to Lessor without notice or demand at
Lessor's office or at such other place as Lessor may from time to time
designate in writing as rental for the Premises: a base rental in the sum of
See Paragraph 32 Special Provisions Rent Schedule DOLLARS U.S. per annum,
($____) payable in twelve (12) equal monthly installments of $_____ in advance
on the first day of each calendar month during the Lease term hereof beginning
on the commencement date.
(b) Lessee has deposited with Lessor upon the execution of
the Lease, the sum of $6,348.00 as security for the full performance by Lessee
of all provisions of this Lease. If at any time during the term hereof, or any
extension hereof, Lessee shall be in default in payment of rent or any other
payment obligation of Lessee, all or a part of the security deposit may be made
for such payment. Lessor may also apply all or part of the deposit to repair
damages to the Leased Premises during or upon termination of the tenancy
created by this Lease., In the event Lessee is not in default or any of its
obligations hereunder at the termination of this Lease, Lessor shall return the
deposit to Lessee. Lessor shall not be required to keep this security deposit
separate from its general funds, and Lessee shall not be entitled to interest
on such deposit.
(c) All rental payments hereunder shall be due on the first
day of each month. Lessee acknowledges that late payment by lessee to Lessor of
rent or other sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which would be extremely
difficult and impractical to ascertain. Such costs include, but are not
limited to, processing and accounting charges. Therefore, in the event Lessee
shall fail to pay any installments of rent or any sums due hereunder promptly
at the time such amount is due, Lessee shall pay to Lessor as additional rent a
late charge equal to five (5%) of all such sums. Such late charges shall be
due for all payments of rent received on or after the tenth (10th) day of each
month.
(d) The rental provided herein in paragraph 3 "Rent" includes
the construction of tenant improvements on the basis set forth in the Lessee
improvement schedule attached hereto as Exhibit "B". In the event Lessee
requests that Lessor construct additional Lessee improvements other than those
shown in Exhibit "B", such requirements shall not be included as part of this
Lease Agreement, but shall be covered by a separate Agreement.
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4. POSSESSION AND ACCEPTANCE. (a) Promptly following the tendering of
possession of premises to Lessee by Lessor following completion of the
improvements reflected on Exhibit "B", Lessee agrees to proceed with all due
diligence on the installation of its fixtures and equipment as soon thereafter
as is reasonably possible. Anything to the contrary herein contained
notwithstanding, Lessee's tenancy hereunder shall commence on the date of
tendering of possession by lessor to Lessee after the improvements reflected
on Exhibit "B" has been made. Upon completion of the Leased Premises and other
improvements in accordance with the plans and specifications, Lessee agrees to
accept delivery of the premises and to execute and deliver to Lessor a letter
of acceptance accepting delivery of the Leased Premises. If Lessee shall not
have commenced to occupy the Premises for the Permitted Uses immediately after
they have been deemed ready for occupancy, a certificate of completion by a
licensed architect shall be conclusive evidence that Lessor has performed all
such obligationsu under this Agreement.
(b) If Lessor, for any reason or cause beyond its reasonable
control, cannot deliver possession of the Leased Premises to Lessee within
thirty (30) days after September 1, 1994, the Lessor shall pay Lessee a
penalty equal to one days rent for each day Lessee cannot take possession to a
maximum or ninety (90) days. At the end of the ninety (90) day period Lessee
may void this Lease. The term of this Lease shall be extended by such delay.
Lessee and Lessor shall execute a Lease modification to alter the effective
date of the Lease. Lessor will permit Lessee access for installing equipment
and furnishings in the premises prior to the Term when it can be done without
material interference with remaining work and provided Lessee cooperates with
Lessor and its contractors.
(c) By execution hereunder and occupancy, should the Leased
Premises be already complete and improved, Lessor acknowledges that it has
examined the Leased Premises and accepts them "as is" and as being in the
condition and improved as called for by this Lease.
5. USE OF PREMISES. The Leased Premises may be used and occupied only
for Corporate Office And Operations Center ("Permitted Uses") and for no other
purpose or purposes without Lessor's prior written consent. Lessee shall
promptly comply with all laws, ordinances, orders, and regulations affecting
the Leased Premises and the cleanliness, safety, occupation, and use of the
Leased Premises. Lessee shall not do or permit anything to be done in or about
the Leased Premises, or bring or keep anything in the Leased Premises that will
in any way increase the fire insurance upon the building. Lessee will not
perform any act or carry on any practices that may injure the Building or be a
nuisance or menace to other Lessees or any nearby premises. Lessor shall not
cause, maintain or permit any outside storage on or about the Leased Premises,
including pallets or other refuse. Lessee shall not conduct any business in,
or on or from the premises that would be considered lewd or immoral in nature
or that would not be in keeping with the professional image and standards of
said Medical Forum.
6. UTILITIES. (a) Lessor shall provide electrical, central heating and
cooling, water/sewer, janitorial and trash pickup service subject to such
limitations set out herein, the cost of said basic services being included in
Lessee's base rent calculated at $3.76 per square feet. These services shall
be subject to annual adjustments based on increased cost incurred by Lessor to
provide said services. Annual adjustments shall be the actual increase
incurred or six percent (6%) of the previous years cost, whichever is lower.
(b) HVAC shall be available 24 hours per day seven days per week in the
operations area. HVAC shall be available in the Corporate area weekdays 7AM -
7PM and Saturdays 7AM - 5PM.
(c) Should Lessee's water/sewer usage be deemed by Lessor in its sole
discretion, to be excessive, Lessee shall pay, as additional rent, a surcharge
to be set by Lessor for the excessive usage.
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(d) Should Lessee's janitorial requirements, trash volume or frequency be
of such size as to create additional costs for cleaning, pickup, additional
container size, more frequency of pickup or special handling, Lessor at his
option, may impose a janitorial or trash charge on the Lessee or increase said
charge if previously applicable. Said amount may be levied one or more months
depending on the circumstances as determined by Lessor. Should Lessor levy
Lessee for additional electrical, water/sewer or trash services, Lessee shall
remit the amount to the Lessor within 10 days after receipt of invoice or pay
as additional rental installments thereafter, whichever is elected by Lessor.
(e) Should Lessee require tile installation and use of natural
gas, Lessee shall pay as additional rent all costs incurred for both
installation and usage.
7. PARKING. Lessor reserves the right to promulgate rules amid
regulations to the use of the Medical Forum Parking Deck. Subject to such
rules and regulations, and the terms of this paragraph, Lessee shall have the
use of seventy (70) parking spaces per shift in said parking deck at no
additional charge. Additional parking spaces may be reserved at the then
current monthly rate, if such spaces are available.
8. ALTERATIONS. (a) Alterations may not be made to the Leased Premises
without the prior written consent of Lessor and any alterations of the Leased
Premises excepting movable furniture, equipment and trade fixtures shall, at
Lessor's option, become part of the realty and belong to Lessor. This
provision, among other things, applies to all draperies, special wall coverings
or floor coverings as well as additional electrical fixtures or circuits.
(b) Should Lessee desire to alter the Leased Premises and
Lessor approves and consents in writing to such alterations Lessee shall permit
Lessor to make said alterations, if Lessor agrees to make said alterations, and
amortize the total cost of same as additional rental for the balance of the
Lease term or any extension thereof if applicable and mutually agreeable.
Should Lessor elect to not provide said alterations, Lessee shall only contract
with a contractor approved by Lessor and all said alterations shall be subject
to Lessor's approval and written consent relative to design, location,
materials and workmanship.
(c) Notwithstanding anything in paragraph 8(b) above, Lessee
may, upon written consent of Lessor, install trade fixtures, machinery or other
trade equipment in conformance with the ordinances of the applicable city and
county, and the same may be removed upon the conditions of the Lease and if
the Leased Premises are not damaged by such removal. Lessee shall return the
Leased premises on the termination of this Lease in the same condition as when
rented to Lessee, reasonable wear and tear excepted. Lessee shall keep the
Leased Premises, the Building, and property in which the Leased Premises are
situated free from any liens arising out of any work performed for, materials
furnished to, or obligations incurred by Lessee. All such work, provided for
above, shall be done at such times and in such manner as Lessor may from
time to time designate.
(d) All fixtures, improvements, alterations, and additions which may be
installed by either Lessor or Lessee in or about the Leased Premises which are
in any manner attached to the floors, walls or ceilings, except trade mixtures,
shall belong to and be the property of Lessor and shall remain on the Leased
Premises during the term of this lease and at the expiration or termination
hereof, except for such property, if any, which the Lessor may designate that
Lessee either shall or may remove, by notice in writing to Lessee prior to
such expiration or termination. To avoid confusion as to trade versus
permanent fixtures Lessee may request Lessor to identify the status of any
fixtures prior to installation. Lessee agrees to repair all damage to the
Leased Premises caused by any such removal (including removal of trade
fixtures) and to restore the Leased Premises to the condition in which they
were prior to the removal of said articles. Any such property so designated
by Lessor to be removed, which shall be left in or upon the Leased Premises,
shall be deemed to have been abandoned by Lessee and may be retained or
disposed of by Lessor, as Lessor shall desire.
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9. FIRE INSURANCE HAZARDS. No use shall be made or permitted to be
made of the Leased Premises, nor acts done, which will increase the existing
rate of insurance on the Building or cause the cancellation of any insurance
policy covering the Building, or any part thereof, nor shall Lessee sell, or
permit to be kept, used or sold, in or about the Leased Premises, any article
which may be prohibited by the standard form of fire insurance policies.
Lessee shall, at its sole cost and expense, comply with any and all
requirements, pertaining to the Leased Premises, of any insurance organization
or company, necessary for the maintenance of reasonable fire and public
liability insurance, covering the Leased Premises, Building and appurtenances.
Lessee agrees to pay to Lessor as additional rent, any increase in premiums on
policies which may be carried by Lessor on the Leased Premises covering
damages to the Building and loss of rent caused by fire and the perils normally
included in extended coverage above the rates for the least hazardous type of
occupancy.
10. LIABILITY INSURANCE. Lessee, at its own expense, shall provide
and keep in force with companies acceptable to Lessor, in its sole discretion,
public liability insurance for the benefit of Lessor and Lessee jointly against
liability for bodily injury and property damage in the amount of not less than
One Million Dollars ($1,000,000) in respect to injuries to or death of more
than one person in any one occurrence, and in the amount of not less than
Two hundred Fifty Thousand Dollars ($250,000) per occurrence in respect to
damage to property, such limits to be for any greater amounts as may be
reasonably indicated by circumstances from time to time existing or combined
single limit of One Million Five Hundred Thousand Dollars ($1,500,000),
insuring Lessee, Lessor, and Lessor's Agents, Servants, and employees (as an
additional assured) against any liability that may accrue against them or any
of them on account of any occurrences 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 damages. Lessee shall furnish Lessor with
a certificate of such policy within thirty (30) days after the occupancy date
of this Lease and whenever required shall satisfy Lessor that such policy is in
full force and effect. Such policy shall name Lessor as additional insured.
Such policy shall further provide that it shall not be cancelled or altered
without thirty (30) days prior written notice to Lessor. Lessor shall not be
liable for any injury or damage caused 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 causes.
11. INDEMNIFICATION BY LESSEE. Lessee shall indemnify and hold harmless
Lessor against and from any and all claims arising from Lessee's use of the
Leased Premises or the conduct of its business or from any activity, work, or
things done, permitted or suffered by the Lessee in or about the Leased
Premises, and shall further indemnify and hold harmless Lessor against and from
any and all claims arising from any act, neglect, fault or emission of the
Lessee, or of its agents or employees, and from and against all costs,
attorney's fees, expenses and liabilities incurred in or about such claim or
any action or proceeding brought thereof and in case any action or proceeding
be brought against Lessor by reason of any such claim, Lessee upon notice from
Lessor still defend the same at Lessee's expense by counsel reasonably
satisfactory to Lessor. Lessee, as a material part of the consideration to
Lessor, hereby assumes all risk of damage to property or injury to persons in,
or about the Leased Premises from any cause whatsoever except that which is
caused by the failure of Lessor to observe any of the terms and conditions of
this Lease and such failure has persisted for all unreasonable period of time
after written notice of such failure, and Lessee hereby waives all claims in
respect thereof against Lessor unless such claims arise out of the negligence
or intentional misconduct of Lessor or its agents. The obligations of Lessee
under this paragraph arising by reason of any occurrences taking place during
the term of this Lease shall survive any termination of this Lease.
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12. WASTE AND QUIET CONDUCT. (a) Lessee shall not commit, or suffer
any waste upon the Leased Premises, or any nuisance, or other act or thing
which may disturb the quiet enjoyment of any other Lessee in the Building
containing the premises or any building in the project in which the premises
are located, including the parking, service and landscape areas. If Lessee
complies with all terms and conditions of this Agreement and any rules and
regulations promulgated by Lessor, Lessor warrants that Lessee shall be granted
peaceful and quiet possession and enjoyment of the Leased Premises.
(b) Lessee, its employees and agents, shall maintain order in the
building and shall not make or permit any improper noise in the building or
interfere in any way with other Lessees or those having business with them. No
room shall be occupied or used as sleeping or living quarters at any time.
(c) The Lessee shall not (without the Lessor's consent) put up or
operate any electric hearing device, steam engine, machinery or stove upon the
premises, or carry on any mechanical business thereon, or do any cooking
therein, except the use of a microwave oven, or use or allow to be used upon
the demised premises oil, burning fluids, camphene, gasoline, or kerosene for
heating, warning, or lighting. No article deemed hazardous on account of fire
and no explosives shall be brought into said premises. No offensive gases or
liquids will be permitted. Lessee shall keep the premises equipped with all
safety appliances required by law or ordinance or any other regulations
hereafter made by Lessor of which Lessee has been given notice.
13. SIGNS. Lessor shall approve the placing of signs and the size and
quality of the same. Lessee shall place no signs on the exterior of the Leased
Premises. Any signs not in conformity with this Lease or disapproved by Lessor
in its sole discretion may be immediately removed by Lessor.
14. REPAIRS. (a) Lessor is responsible, at its expense, to keep and
maintain the interior of Leased Premises in a clean, sanitary and good
condition, repair and maintenance including replacement of bulbs and lamps.
The exterior structure including walls, roof, common areas, glass and doors
unless said doors and glass are damaged by burglary or attempt thereof or
malicious vandalism or strike directed at the Lessee's place of business
within the Leased Premises shall be the responsibility of the Lessor.
(b) Lessees shall not injure, overload or deface the Building,
including the interior walls, and including the erection of any signs or
identification. The water closets and other water apparatus shall not be used
for any other purposes than those for which they were constructed and no
sweepings, rubbish, sanitary napkins, or other obstructing substances shall
be thrown therein. Any said repair resulting therefrom shall be the expense
obligation of the Lessee.
(c) Not more than two keys for each unit will be furnished without
charge; the charge for additional keys shall be Five Dollars ($5.00) each. No
additional locks or latches shall be put upon any door without written consent
of Lessor. Lessee, at termination of their Lease of the Premises, shall return
to Lessor all keys to doors in the building. Tenant shall install in areas
desired security locks required for UL approval.
(d) Lessor shall be responsible for the preventive and routine
maintenance (except that covered under any warranty) to the heating,
ventilating and air conditioning system. Maintenance made under this paragraph
shall be made at the Lessor's expense.
15. ABANDONMENT. Lessee shall not vacate nor abandon the Leased
Premises at any time during the term of this lease, nor permit the Leased
Premises to remain unoccupied for a period longer than forty-five (45)
consecutive days during the term of this Lease; and if Lessee shall abandon,
vacate or surrender the Leased Premises, or be dispossessed by process of law,
or otherwise, any personal property belonging to Lessee and
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left on the Leased Premises shall at the option of the Lessor, be deemed
abandoned, and available to Lessor to use or sell to offset rental amount due
and payable, provided that, in the event Lessee desires to maintain it's
demised space by paying rent but not opening its business to the general
public, Lessee may request such permission from Lessor, which permission may or
may not be granted by Lessor, in its sole discretion. Should the premises be
presumed to be vacated or abandoned, Lessor has the right, without being held
as trespassing, to enter the Leased Premises.
16. ENTRY BY LESSOR. Lessee shall permit Lessor and Lessor's agent
to enter the Leased Premises at all reasonable times for the purposes of
inspecting the same or for the purpose of maintaining the Building, or for the
purpose of making repairs, alterations, or additions to any portion of the
Building, including the erection and maintenance of such scaffolding and props
as may be required, or for the purpose of showing the premises to prospective
Lessees during the last 6 months of this Lease without any liability to Lessee
for any loss of occupation or quiet enjoyment of the Leased Premises thereby
occasioned. Lessor shall at all times save and retain a key with which to
unlock all of the doors in, upon and about the Leased Premises, excluding
Lessee's vaults and safes. Due to the nature of Lessee business, Lessor must
provide advance notice for entry to secured areas of Lessee's space.
17. DESTRUCTION. In the event of a partial destruction of the
Leased Premises or the Building during the Lease term which requires repairs to
either the Leased Premises or the Building being declared unsafe or unfit for
occupancy by any authorized public authorities, this Lease shall not
automatically terminate provided Lessee is able to continue operations in the
area unaffected or Lessor is able to provide Lessee alternate temporary space.
Lessee shall be entitled to a proportionate reduction of rent while such
repairs are being made. The proportionate reduction is to be based upon the
extent to which the making of repairs shall interfere with the business carried
on by Lessee in the Leased Premises. If, in the opinion or Lessor, repairs can
be made within forty-five (45) days, Lessor may, at its option, make the same
within reasonable time, with this Lease continuing in full force and effect and
the rent being proportionately abated, as in this paragraph provided. In the
event that Lessor does not so elect to make repairs, or if in Lessor's opinion,
repairs cannot be made within forty-five (45) days, or repairs cannot be made
under current laws and regulations, this Lease may be terminated at the option
of either party. A total destruction (including any destruction required by any
authorized public authority) of either the Leased Premises or the Building
shall terminate this Lease. Lessor shall not be required to repair any
property installed in the Leased Premises by Lessee under any circumstances.
Lessee waives any right under applicable laws inconsistent with the terms of
this paragraph and in the event of a destruction agrees to accept any offer by
Lessor on the same terms as this Lease to provide Lessee with comparable space
within project in which the Premises are located.
18. ASSIGNMENT AND SUBLETTING. Without Lessor's written consent,
which will not be unreasonably withheld, Lessee shall not assign, mortgage, or
hypothecate this Lease, or any interest in this Lease, or permit the use of the
Leased Premises by any person or person's other than Lessee, or sublet the
Leased Premises, or any part of Leased Premises. Any transfer of this Lease
from Lessee by merger, consolidation, or liquidation, or any sale of a majority
ownership in Lessee, shall constitute an assignment for purposes of this
Lease. Any attempted assignment or subletting without Lessor's consent shall
not release Lessee from its primary liability under the Lease, and Lessor's
consent to one assignment, subletting or occupation or use by other parties
shall not be deemed a consent to other subleases or assignment or occupation
or use by other parties.
Notwithstanding the foregoing, Lessee may collaterally assign the leasehold
interest and all other rights granted to Lessee as evidenced by this Lease to
one or more of its lenders ("Lenders") as additional security for loans made by
such Lenders to Lessee. In any such event, Lessor agrees: (a) to provide
Lenders, if requested in writing by Lenders, copies of all notices of default
under the Lease that Lessor may give to Lessee at the time given to Lessee;
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(b) to permit Lenders to cure any Lessee defaults under the Lease within ten
(10) days (or such longer period if a longer period applies to Lessee) after
Lenders receive notice of such default, and Lessor shall accept performance by
Lenders the same as if the cure had been made by Lessee; (c) as to Lenders
only, to waive any and all rights, liens and interests Lessor may have or
acquire, of any nature whatsoever, in the personal property of Lessee,
regardless of when such right, liens and interests may be deemed to have
arisen; (d) to permit Lenders to succeed to the right, title and interest of
Lessee in this Lease by foreclosure upon Lessee's interest herein or by
voluntary assignment in lieu of foreclosure; provided, however, that in such
event, Lenders shall pay to Lessor any past due rentals, late charges and
additional rentals due under this Lease for period beginning on the date of
execution of this Lease until the effective date Lenders succeed to the rights
of Lessee, and provided further that Lender performs the obligations of Lessee
as evidenced by this lease at all times thereafter; (e) in event of the
termination of this Lease prior to the expiration of its term, except by cause
of condemnation, to give Lenders written notice that this Lease has been
terminated, together with a statement of any and all sums which would at the
time be due under this Lease but for such termination, and all other defaults,
if any, under this Lease known to Lessor, and shall afford Lender the right to
enter into a new Lease for the Premises that shall be effective as of the date
of termination of this Lease for a term coinciding with term of this Lease
which new lease shall have all terms, covenant, and conditions as are contained
in this Lease; provided, however, that Lenders pay to Lessor any past due
rentals, late charges and additional rents due under this Lease through the
date of such termination (other than accelerated rents); (f) if Lenders acquire
Lessee's interest in this Lease in any manner, including, but not limited to,
execution of a new lease, Lenders shall be released from all liability for the
performance or observance of covenant and conditions in this Lease or the new
lease from and after the date of such assignment; (g) to issue to Lenders, or
their written request, certification as to the status of this Lease at any
particular time referencing those matters addressed in paragraph 30 hereof;
and (h) to enter into a written agreement with Lenders at Lessee's written
request affirming Lessor's agreement to each of the matters addressed in (a) -
(g) above.
19. INSOLVENCY OF LESSEE. Either (a) the appointment of a receiver to
take possession of all or substantially all of the assets of Lessee, or (b) a
general assignment by Lessee for the benefit of creditors, or (c) any action
taken or suffered by Lessee under any insolvency or bankruptcy act shall, if
any such appointments, assignments or action continues for a period of thirty
(30) days, constitute a breach of this Lease by Lessee. In such event, Lessor
may at its election without notice, terminate this Lease and in that event be
entitled to immediate possession of the Leased Premises and damages as provided
herein.
20. BREACH BY LESSEE. (a) In the event of a default, Lessor, besides
other rights or remedies that it may have, shall have the right to either
terminate this Lease or from time to time, without terminating this Lease,
relet the Leased Premises or any part thereof for the account and in the name
of Lessee or otherwise, for any such term or terms and conditions as Lessor in
its sole discretion may deem advisable with the right to make alterations and
repairs to the Leased Premises. Lessee shall pay to Lessor, as soon as
ascertained, the costs and expenses incurred by Lessor in such reletting or in
making such alterations and repairs. Rentals received by Lessor from such
reletting shall be applied: First, to the payment of any indebtedness, other
than rent, due hereunder from Lessee to Lessor; second, to the payment of the
cost of any alterations and repairs to the Leased Premises necessary to return
the Leased Premises at the time to good condition, normal wear and tear
excepted, for uses permitted by this lease and cost of storing any of Lessee's
property left on the Leased Premises at the time of reletting; third, to the
payment of rent due and unpaid hereunder and the residue, if any, shall be
held by Lessor and applied in payment of future rent or damages in the event
of termination as the same may become due and payable hereunder and the
balance, if any, at the end of the term of this Lease shall be paid to Lessee.
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Should such rentals received from time to time from such reletting during any
month be less than that agreed to be paid during that month by Lessee
hereunder, the Lessee shall pay such deficiency to Lessor. Such deficiency
shall be calculated and paid monthly.
(b) No such relenting of the Leased Premises by Lessor shall be
construed as an election on its part to terminate this Lease unless a notice of
such intention be given to Lessee or unless the termination thereof be decreed
by a court of competent jurisdiction. Notwithstanding any such reletting
without termination, Lessor may at any time thereafter elect to terminate this
Lease for such previous breach provided it has not been cured. Should Lessor
at any time terminate this Lease for any breach, in addition to any other
remedy it may have, it may recover from Lessee all damages it may incur by
reason of such breach, including the cost of recovering the Leased Premises and
including (1) all amounts that would have fallen due as rent between the time
of termination of this Lease and the time of the interest on the balance at the
rate of twelve percent (12%) per year; (2) Lessor may, at its option, declare
the entire amount of the rent which would be due and payable during remainder
of the Lease to be due and payable immediately, in which event, Lessee agrees
to pay the same upon demand, together with all rents theretofore due to Lessor
provided, however, that such payments shall not constitute a penalty or
forfeiture or liquidated damages unless elected as same by Lessor. Upon making
such payment, Lessee shall receive the rent payments from other Lessees on
account of said Premises during the remaining term of this Lease, provided,
however, that the monies to which the Lessee shall become so entitled shall in
no event exceed the entire amount payable by Lessee to Lessor as above.
(c) Should Lessee fail to comply with any term, provision or covenant
of this Lease and shall not cure such failure within twenty (20) days after
written notice (notice by registered mail deemed to be constructive notice)
thereof to Lessee, said event shall be deemed to be events of default by Lessee
under this Lease.
21. SURRENDER OF LEASE NOT MERGER. The voluntary or other surrender of
this Lease by Lessee, or a mutual cancellation thereof, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subleases, and/or subtenancies, or may, at the option of Lessor, operate as an
assignment to it of any or all of such subleases or subtenancies.
22. ATTORNEY'S FEES/COLLECTION CHARGES. In the event of any legal action or
proceeding between the parties hereto, reasonable attorney's fees and expenses
of the prevailing party in any such action or proceeding may be added to the
judgment therein. Should Lessor be named as defendant in any suit in
connection with or arising out of Lessee's occupancy, hereunder, Lessee shall
pay to Lessor its cost and expenses incurred in such suit, including a
reasonable attorney's fee.
23. CONDEMNATION. If any part of the Leased Premises shall be taken or
condemned for public or quasi-public use, and a part thereof remains which is
susceptible of occupation hereunder, this Lease shall as to the part so taken,
terminate as of the date title shall vest in the condemnor, and the rent payable
hereunder shall be adjusted so that the Lessee shall be required to pay for the
remainder of the term only such portion of such rent as the number of square
feet in the entire Leased Premises at the date of condemnation; but in such
event Lessor shall have the option to terminate this Lease as of the date
when title to the part so condemned vests in the condemnor. If all the Leased
Premises, or such part thereof be taken or condemned so that there does not
remain a portion suitable for occupation hereunder, this Lease shall thereupon
terminate.
24. Waiver. The waiver by Lessor of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition or any subsequent breach of the same or any other term,
covenant, or condition herein contained.
8
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The subsequent acceptance of rent hereunder by Lessor shall not be deemed to be
a waiver of any preceding breach by Lessee of any term, covenant, or condition
of this Lease, other than the failure of Lessee to pay the particular rental so
accepted, regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
25. EFFECT OF HOLDING OVER. If Lessee should remain in possession of
the Leased Premises after the expiration of the Lease term and without
executing a new Lease, then such holding over shall be construed as a tenancy
from month to month, subject to all the conditions, provisions, and obligations
of this Lease insofar as the same are applicable to a month-to-month tenancy.
26. PREVENTION OF PERFORMANCE. In the event that the peformance by
Lessor of any of Lessor's obligations or undertakings hereunder shall be
interrupted or delayed by any occurrence not occasioned by the conduct of
either party hereto, whether such occurrence be an act of God or the common
enemy or the result of war, riot, civil disturbance, sovereign conduct,
governmental act or regulation, judicial decree or order, climactic conditions,
fire, explosion, accident, theft, shortage of materials, energy shortages,
delay or failure of carriers, subcontractor's supplies, strike or other labor
difficulty, lockout or trade dispute or any other event or circumstances beyond
the Lessor's reasonable control then the Lessor shall be excused from such
performance for such period of time as is reasonably necessary after such
occurrence to remedy the effects thereof. Notwithstanding the foregoing, the
provisions of this Paragraph 26 shall not apply to those events or
circumstances which are governed by the provisions of Paragraphs 4(b), 17 or 23
of this Lease.
27. TRADEMARK INDEMNITY. The Lessee shall indemnify and hold harmless
Lessor and Lessor's agents and employees from any and all claims, demands,
losses, liabilities, expenses, liens, damages or costs, including, but not
limited to, reasonable attorney's fees, which they may incur by reason of any
claim, action or suit brought by Lessee or by any third party or parties
arising from Lessee's alleged infringement or use of any trade name, trademark,
service ▇▇▇▇, trade secret, label, design, and/or similar intangibles. In the
event of any such claim, action or suit, Lessee shall, at its expense, give
Lessor prompt notice of the same and Lessee shall defend the claim, action, or
suit at Lessee's expense by counsel reasonably satisfactory to Lessor. The
obligation of Lessee under this paragraph arising by reason of any occurrences
taking place during the term of this Lease shall survive any termination of
this Lease.
28. MISCELLANEOUS PROVISIONS. (a) This instrument contains all of the
agreements and conditions made between the parties of this Lease and may not be
modified orally or in any other manner than by agreement in writing signed by
all parties to the Lease.
(b) Except as otherwise expressly stated, each payment required
to be made by Lessee shall be in addition to and not in substitution for other
payments to be made by Lessee.
(c) Subject to Paragraph 18, the terms and provisions of this
Lease shall be binding upon and inure to the benefits of the heirs,
executors, administrators, successors and assigns of Lessor and Lessee.
(d) All covenants and agreements to be performed by Lessee under
any of the terms of this Lease shall be performed by Lessee at Lessee's sole
cost and expense and without any abatement of rent.
(e) Where the consent of the Lessee is required, such consent
will not be unreasonably withheld.
(f) This Lease shall create the relationship of Lessor and
Lessee; no estate shall pass out of Lessor.
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(g) This agreement, its application, enforcement and jurisdiction
shall be construed under the laws applicable in the State of Alabama including
any Lessee whose principal place of business is outside of the U.S.A.
29. DEPOSIT AGREEMENT. Lessor and Lessee hereby agree that Lessor shall
be entitled to immediately endorse and cash Lessee's good faith rent and
security deposit check(s) accompanying this Lease. It is further agreed and
understood that such action shall not guarantee acceptance of this Lease by
Lessor but in the event Lessor does not accept this Lease the deposit shall be
refunded in full to Lessee. This Lease shall be effective only after Lessor
has fully executed this Lease Agreement and it has been ratified by the Board
of Directors of Lessor.
30. ACKNOWLEDGMENTS. Lessee shall upon request and upon being provided a
written instrument and within twenty (20) days of the request by Lessor,
deliver to Lessor or any other person, firm or corporation specified by Lessor,
a letter duly executed and acknowledged, certifying:
(a) That the Lease is unmodified and is in full force and effect
or if there has been any modification that the same is in full force and effect
as so modified and with modifications identified.
(b) Whether or not within the knowledge of Lessee there are then
existing any setoffs or defenses in favor or Lessee against the enforcement of
any of the terms, covenants and conditions of this Lease by Lessor and, if so,
specifying the same, and also whether or not within the knowledge of Lessee,
Lessor has observed and performed all of the terms, covenants, and conditions
on the part of Lessor or to be observed and performed and, if not, specifying
the same; and
(c) The dates to which annual rental, and all other charges
hereunder have been paid.
31. NOTICES. Wherever in this Lease it shall be required or permitted
that notice or demand be given or served by either party to this Lease to or on
the other, such notice or demand shall not be deemed to have been duly given or
served unless in writing, and either personally delivered or forwarded by
registered mail, postage prepaid, addressed as follows:
TO THE LESSOR AT: Birmingham-Jefferson Civic Center Authority
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
TO THE LESSEE AT: Chief Financial Officer
Masada Security, Inc.
Medical Forum Building
Suite 800
950 22nd Street North
Birmingham, Alabama 35203
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32. SPECIAL PROVISIONS:
(a) Rent Schedule
Graduated Schedule Non Graduated Difference
Monthly Monthly Monthly
$1.00 Credit $11,673.07 ($4,106.49)
------------
Year I First Four Months $6,348.00 7,566.58 11,673.07 (662.51)
Last Eight Months $9,791.98 11,010.56
Year 2 - $ 10,264.86 11,673.07 (1,408.21)
Year 3 - 10,667.15 11,673.07 (1,005.92)
Year 4 - 11,069.45 11,673.07 (603.62)
Year 5 - 11,471.74 11,673.07 (201.33)
Year 6 - 11,874.63 11,673.07 200.96
Year 7- 12,276.33 11,673.07 603.26
Year 8- 12,678.33 11,673.07 1,005.55
Year 9- 13,082.36 11,673.07 1,409.29
Year 10- 13,483.57 11,673.07 1,810.50
*See Addendum Number One - Rent Calculations
(b) Cancellation Right - Lessee shall have the right to cancel the
lease after five years by providing Lessor a 120 day notification. If Lessee
cancels this lease any reductions provided during the front portion of the
graduated rent schedule or any unamortized cost of special items, equipment or
features shall be paid in a lump sum upon cancellation.
(c) Lessor shall use telephone and fiber provider of choice. The said
service to be provided direct to Lessee's space only.
(d) Lessor shall provide Lessee a minimum of 145 AMP load and 30 KVA on
Lessors backup generator.
(e) Lessor to provide Lessee a location on the ground level of the
building for installation of Lessee's backup generator which shall become the
backup to the building backup generator.
(f) Lessor shall make available a "workout" room for the use of Lessee
and other building tenants. Lessee to provide equipment for Lessee's
privileges.
(g) Lessee shall be allowed to connect with existing CCTV system to
monitor the parking deck.
(h) Lessee shall be allowed to install a camera directed to the
entrance door of the operations center.
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IN WITNESS WHEREOF, the parties hereto affixed their hands and seals,
or when appropriate have caused this instrument to be executed by duly
authorized officers with the appropriate seal of the organization, the day and
year first above written.
As to Lessor, signed,
sealed and delivered in
the presence of:
/s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇
---------------------------- ---------------------------------------
WITNESS SEAL
BIRMINGHAM-JEFFERSON CIVIC CENTER AUTHORITY
-------------------------------------------
DATE 6-8-94
---------------------------------------
As to Lessee, signed,
sealed and delivered in
the presence of:
/s/ ▇▇▇▇ ▇. ▇▇▇▇ BY: MASADA SECURITY, INC.
---------------------------- ------------------------------------------
WITNESS SEAL
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CFO
------------------------------------------
LESSEE
DATE June 7, 1994
---------------------------------------
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LEASE ADDENDUM
This ADDENDUM made to the Lease dated June 7th, 1994 between
BIRMINGHAM-JEFFERSON CIVIC CENTER AUTHORITY, LESSOR and MASADA SECURITY, INC.,
LESSEE shall provide for the following changes:
WHEREAS: Paragraph 2. Term of the Lease Agreement shall be changed to
reflect the following.
The term of the Lease shall be for 120 months commencing on October 1,
1994 and ending on September 30, 2004.
LESSEE shall occupy the Leased Premises September 12, 1994 and pay
LESSOR $28.00 per day for providing HVAC services until October 1, 1994.
All other terms and conditions of the Lease shall remain the same.
/s/ ▇.▇. ▇▇▇▇▇▇
-------------------------- -----------------------------
WITNESS BIRMINGHAM-JEFFERSON
CIVIC CENTER AUTHORITY
DATE
-------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -----------------------------
WITNESS MASADA SECURITY
DATE 9-16-94
-------------------------
14
LEASE ADDENDUM NUMBER TWO
This ADDENDUM made to the Lease dated June 7th, 1994 between
BIRMINGHAM-JEFFERSON CIVIC CENTER AUTHORITY, LESSOR and MASADA SECURITY, INC.,
LESSEE shall provide for the following changes:
WHEREAS: LESSEE, in consideration of LESSOR providing $32,565.84 of
above standard improvements in LESSEE's space agrees to reimburse LESSOR over
the remaining Lease Term with monthly payments based on a 10% interest rate.
Beginning with the third month of the Lease Term, December 1, 1994 and
extending to the end of the Lease Term (118 total months), the monthly rent
calculated for each time period as shown on ADDENDUM NUMBER ONE shall be
increased by an additional amount of $434.62 per month.
/s/ /s/ ▇.▇. ▇▇▇▇▇▇
-------------------------- -------------------------
WITNESS LESSOR
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -------------------------
WITNESS LESSEE
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ADDENDUM NUMBER ONE
RENT CALCULATIONS
MASADA SECURITY
Rent Schedule:
Total Square Feet 14,623
Improved Square Feet 10,863
Unimproved Square Feet 3,760
Year One
Improved Space
8.87 S.F. - 1.00 = 7.87 X 10,863 = $ 85,491.81
Unimproved Space
5.85 S.F. - 1.00 = 4.85 X 3,760 = 18,236.00
-----------
Total Annual Rent $103,727.81
Less, First Four Months Rent
@$6,348 per month 25,392.00
-----------
Rent For Last Eight Months $ 78,335.81
Per Month Rent Eight Months $ 9,791.98
Unimproved rent of $5.85 to remain stable years 2-10
$5.85 S.F. X 3,760 = $21,996.00 annual rent being at the
rate of $1,833.00 per month
IMPROVED SPACE RENT MONTHLY MONTHLY TOTAL
GRADUATED UNIMPROVED
Year 2 9.3144 S.F. X 10,863 S.F. = $101,182.33/12 = $ 8,431.86 + $1,833.00 $10,264.86
Year 3 9.7588 S.F. X 10,863 S.F. = $106,009.84/12 = $ 8,834.15 + $1,833.00 $10,667.15
Year 4 10.2032 S.F. X 10,863 S.F. = $110,837.37/12 = $ 9,236.45 + $1,833.00 $11,069.45
Year 5 10.6476 S.F. X 10,863 S.F. = $115,664.88/12 = $ 9,638.74 + $1,883.00 $11,471.74
Year 6 11.0920 S.F. X 10,863 S.F. = $120,492.40/12 = $10,041.03 + $1,883.00 $11,874.03
Year 7 11.5364 S.F. X lO,863 S.F. = $125,319.91/12 = $10,443.33 + $1,883.00 $12,276.33
Year 8 11.9808 S.F. X 10,863 S.F. = $130,147.43/12 = $10,845.62 + $1,883.00 $12,678.62
Year 9 12.4268 S.F. X 10,863 S.F. = $134,992.33/12 = $11,249.36 + $1,883.00 $13,082.36
Year 10 12.87 S.F. X 10,863 S.F. = $139,806.81/12 = $11,650.57 + $1,833.00 $13,483.57
16
LEASE ADDENDUM NUMBER THREE
This ADDENDUM made to the Lease dated June 7th, 1994 between
BIRMINGHAM-JEFFERSON CIVIC CENTER AUTHORITY, LESSOR and MASADA SECURITY, INC.,
LESSEE shall provide for the following changes:
WHEREAS: LESSEE, in consideration of LESSOR installing LESSEE's gas
fueled auxiliary generator at a cost of $6,684.00 agrees to reimburse LESSOR
over the remaining Lease Term with monthly payments based on a 10% interest
rate.
Beginning with the seventh month of the Lease Term, April 1, 1995 and
extending to the end of the Lease Term (114 total months), the monthly rent
calculated for each time period as shown on ADDENDUM's NUMBER ONE and TWO shall
be increased by an additional amount of $91.05 per month.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------- -------------------------
WITNESS LESSOR
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -------------------------
WITNESS LESSEE
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ADDENDUM NUMBER FIVE
This ADDENDUM made to the Lease dated June 7th, 1994, between BIRMINGHAM-
JEFFERSON CIVIC CENTER AUTHORITY, LESSOR and MASADA SECURITY, INC., LESSEE.
WHEREAS: LESSEE desires 1,031 s.f. of unimproved leased space be improved
and the rental rate for said amount of unimproved space be adjusted to the
present rate for improved space. This adjustment to be made upon completion of
improvements during year two of the Lease period.
The following rent schedule is an adjustment to the rent schedule in Addendum
Number One. This schedule becomes effective the month improvements are
complete during year two.
Rent Schedule:
Total Square Feet 14,623
Improved Square Feet 10,863 + 1,031 = 11,893
Unimproved Square Feet 3,760 - 1,031 = 2,729
Unimproved rent of $5.85 to remain stable years 2-10
$5.85 S.F. X 2,729 = $15,964.65 annual rent being at the
rate of $1,330.39 per month.
IMPROVED SPACE RENT MONTHLY MONTHLY TOTAL
GRADUATED UNIMPROVED
Year 2 9.3144 S.F. X 11,893 S.F. = $110,776.16 / 12 = $ 9,231.35 + $1,330.39 $10,561.74
Year 3 9.7588 S.F. X 11,893 S.F. = $116,061.41 / 12 = $ 9,671.78 + $1,330.39 $11,002.17
Year 4 10.2032 S.F. X 11,893 S.F. = $121,346.66 / 12 = $10,112.22 + $1,330.39 $11,112.61
Year 5 10.4476 S.F. X 11,893 S.F. = $126,631.91 / 12 = $10,552.66 + $1,330.39 $11,883.05
Year 6 11.0920 S.F. X 11,893 S.F. = $131,917.16 / 12 = $10,993.10 + $1,330.39 $12,323.47
Year 7 11.5364 S.F. X 11,893 S.F. = $137,202.41 / 12 = $10,433.53 + $1,330.39 $12,763.92
Year 8 11.9808 S.F. X 11,893 S.F. = $142,487.65 / 12 = $11,873.97 + $1,330.39 $13,204.36
Year 9 12.4268 S.F. X 11,893 S.F. = $147,791.00 / 12 = $12,316.00 + $1,330.39 $13,646.38
Year 10 12.87 S.F. X 11,893 S.F. = $153,062.91 / 12 = $12,755.24 + $1,330.39 $14,085.63
Total monthly rent for each year shall be the amount shown on the above schedule
plus $434.66 as provided for in Addendum Number Two and $91.05 as provided for
in Addendum Number Three.
/s/ ??? /s/ ??? 10/25/95
--------------------------- -------------------------------------------
Witness Birmingham-Jefferson Civic Center Authority
LESSOR
/s/ ??? /s/ ???
--------------------------- -------------------------------------------
Witness Masada Security, Inc.
LESSEE