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EXHIBIT 10.12
SUBLEASE AGREEMENT
This Sublease Agreement is made and entered into on this the 1st day of
May 1999, between MedPartners, Inc. (hereinafter called "Sublandlord") whose
address for purposes hereof is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Real Estate Department, and The TriZetto Group
(hereinafter called "Subtenant"). Subtenant's address for notice purposes shall
be ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
WITNESSETH:
1. SUBLEASED PREMISES.
1.1 DESCRIPTION OF SUBLEASED PREMISES. Subject to and upon the terms,
provisions and conditions hereinafter set forth, and each in
consideration of the duties, covenants and obligations of the other
hereunder, Sublandlord does hereby lease, demise and let to Subtenant
and Subtenant does hereby lease from Sublandlord approximately 10,492
rentable square feet of those certain premises located on the 11th
Floor of the Galleria Tower (the "Subleased Premises").
1.2. SUBLEASE. This Sublease is a sublease of, and subject to the terms of,
a Lease Agreement between Riverchase Tower, Ltd. (the "Owner"), as
Landlord, and the Sublandlord, as Tenant, dated June 23, 1997, as
amended by Lease Amendment No. 1 dated October 1, 1997 and by Lease
Amendment Agreement No. 2 dated March 27, 1998 (the "Primary Lease"),
a true and correct copy of which is attached hereto as Exhibit A and
incorporated by this reference. All capitalized terms not otherwise
herein defined shall have the meanings given them in the Primary
Lease.
2. LEASE TERM.
2.1 TERM. Subject to and upon the terms and conditions set forth herein,
this Sublease Agreement shall have an initial term of twelve (12)
months commencing on May 1, 1999 (the "Commencement Date") and
expiring on April 30, 2000 (the "Initial Sublease Term"), which term
shall be automatically renewed thereafter for successive periods of
one (1) month each (the "Sublease Renewal Term") until Sublandlord or
Subtenant provide 90 days prior written notice of non-renewal to the
other party prior to the expiration of the Initial Sublease Term or
any Sublease Renewal Term. In the event the Information Technology
Services Agreement dated May 1, 1999 between the parties (the
"Services Agreement") is terminated by Sublandlord, Subtenant shall
have the right to terminate the Sublease Agreement by providing 10
days prior written notice to Sublandlord of its intent. Likewise, in
the event the Services Agreement is terminated by Subtenant,
Sublandlord shall have the right to terminate the Sublease Agreement
by providing 10 days prior written notice to Subtenant of its intent.
The Initial Sublease Term and the Sublease Renewal Term are
hereinafter together referred to as the "Sublease Term". In no event
shall the Sublease Term extend beyond the expiration or sooner
termination of the Primary Lease.
3. USE.
3.1 PERMITTED USE. The Subleased Premises are to be used and occupied by
Subtenant as general office use only in accordance with Section 3 of
the Primary
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Lease and for no other purpose.
3.2 LEGAL USE AND VIOLATION OF INSURANCE COVERAGE. Subtenant agrees not to
occupy or use, or permit any portion of the Subleased Premises to be
occupied or used for any business or purpose that is unlawful,
disreputable or deemed to be extra-hazardous, or permit anything to be
done that would in any way increase the rate of fire insurance
coverage on the Subleased Premises and/or its contents.
3.3 NUISANCE. Subtenant agrees to conduct its business and to exercise
reasonable efforts to control its agents, employees, invitees and
visitors in such manner as not to create any nuisance, or interfere
with, annoy or disturb any other tenant or the Owner in the operation
of the Building.
4. RENTAL.
4.1 BASE RENTAL. During and for the term hereof, commencing on the
Commencement Date, Subtenant hereby agrees to pay to Sublandlord for
the Subleased Premises, without previous notice or demand therefore,
an Annual Base Rental as follows:
MONTHS BASE RENTAL/RENTABLE SQUARE FOOT/YEAR
------ -------------------------------------
5/1/99 through 4/30/00 $16.50
Sublease Renewal Terms (if applicable)
5/1/00 through 12/31/00 $16.50
1/1/01 through 12/31/02 $17.00
1/1/03 through 12/31/04 $17.50
1/1/05 through 12/31/05 $18.00
l/l/06 through 12/31/07 $19.00
Base Rental shall be payable in equal monthly installments, in
advance, and Subtenant's pro-rata share of Additional Rental as
determined as provided in Section 5 of the Primary Lease plus
applicable sales/use taxes as may be levied from time to time by
competent authority. In addition, Subtenant shall pay any utility
expenses associated with the generator, UPS system, supplemental air
conditioning units, computer equipment, etc. located in or supporting
the Subleased Premises which are separately metered under the terms of
the Primary Lease. All rents shall be due and payable in advance on
the first day of each calendar month during the term hereof, and
Subtenant hereby agrees to pay such rent to Sublandlord without demand
and without any reduction, abatement, or setoff, at such address as
may be designated by Sublandlord. There will be a 5% late charge for
rent received after the 10th day of the month.
5. CARE OF THE SUBLEASED PREMISES BY SUBTENANT.
5.1 CONDITION OF SUBLEASED PREMISES AT COMMENCEMENT; NOTICE TO
SUBLANDLORD. The Subtenant shall take possession of the Subleased
Premises in AS IS condition. No promises of the Sublandlord to alter,
remodel, repair or improve the Subleased Premises and no
representations respecting the condition of the Subleased Premises
have been made by Sublandlord to Subtenant. At all times during the
Lease Term, including any extensions thereof, Subtenant agrees to give
Sublandlord prompt notice of any apparent defective condition in or
about the
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Subleased Premises. Subtenant shall make no alterations, additions,
installations, substitutions, improvements or decorations in or to the
Subleased Premises without the express prior written consent of
Sublandlord, which consent shall not be unreasonably withheld, and the
express prior written consent of Landlord in accordance with Section 9
of the Primary Lease.
5.2 NO WASTE. Subtenant shall not commit or allow any waste to be
committed on any portion of the Subleased Premises, and at the
termination of this Sublease Agreement, Subtenant shall deliver the
Subleased Premises to Sublandlord in as good condition as at the date
of the commencement of the term of this Sublease Agreement, ordinary
wear and use excepted.
6. LAWS, REGULATIONS AND RULES.
6.1 APPLICABLE ORDINANCES. Subtenant shall comply with all applicable
laws, ordinances, rules and regulations of any governmental entity,
agency or authority having jurisdiction over the Subleased Premises or
Subtenant's use of the Subleased Premises.
6.2 BUILDING RULES. Subtenant shall comply with the Building Rules as may
be established from time to time by Owner, and will use its best
efforts to cause all of its agents, employees, invitees and visitors
to do so.
7. ASSIGNMENT AND SUBLETTING.
7.1 NO ASSIGNMENT WITHOUT CONSENT. Subtenant shall not assign, sublease,
transfer, pledge, or encumber this Sublease Agreement or any interest
therein without Landlord's and Sublandlord's prior written consent,
which consent shall not be unreasonably withheld. Any attempted
assignment, sublease or other transfer or encumbrance by Subtenant in
violation of the terms and covenants of this paragraph shall be void.
8. INSURANCE.
8.1 CASUALTY AND LIABILITY INSURANCE. Subtenant shall provide all
insurance required of the Sublandlord as Tenant under the Primary
Lease and shall provide Sublandlord with written evidence of such
coverage. Landlord and Sublandlord shall be shown as an additional
insured under Subtenant's policies. Each insurance policy to be
obtained by Subtenant shall contain waiver of subrogation provisions,
provided however, that this waiver shall not apply if the policy of
such insurance would be invalidated by the operation of such waiver.
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9. INDEMNITY.
9.1 INDEMNIFICATION BY SUBTENANT. Subtenant agrees to indemnify, defend
and hold Sublandlord harmless from all claims (including reasonable
costs and expenses of defending against such claims) resulting from
(a) any breach of the Primary Lease caused by Subtenant's actions
under this Sublease Agreement and (b) damages to property, or from
injury to or death of persons (i) occurring in the Subleased Premises
during the term of this Sublease Agreement; or (ii) occurring in or
about any other portion of the Building during the term of this
Sublease Agreement and any renewal terms, to the extent resulting
wholly or in part from the negligent or willful act or omission of
Subtenant or its officers, agents, employees, contractors,
subcontractors, customers or invitees.
9.2 INDEMNIFICATION BY SUBLANDLORD. Sublandlord agrees to indemnify,
defend and hold Subtenant harmless from all claims (including
reasonable costs and expenses of defending against such claims)
resulting from (a) any breach of the Primary Lease caused by
Sublandlord's actions under this Sublease Agreement and (b) damages to
property, or from injury to or death of persons (i) occurring in the
Subleased Premises prior to or during the term of this Sublease
Agreement; or (ii) occurring in or about any other portion of the
Building during the term of this Sublease Agreement and any renewal
terms, to the extent resulting wholly or in part from the negligent or
willful act or omission of Sublandlord or its officers, agents,
employees, contractors, subcontractors, customers or invitees.
10. EVENTS OF DEFAULT/REMEDIES.
10.1 EVENTS OF DEFAULT BY SUBTENANT. The happening of any one or more of
the following listed events (Events of Default) shall constitute a
breach of this Sublease Agreement by Subtenant:
(a) The failure of Subtenant to pay any rent within a period of ten
(10) days following the due date thereof or any other sums of
money when due hereunder; or
(b) Except for the payment of rent and other sums of money hereunder,
the failure of Subtenant, within thirty (30) days after receipt
of written notice from Sublandlord, to comply with any provision
of this Sublease Agreement or any other agreement between
Sublandlord and Subtenant, including the Building Rules, all of
which terms, provisions and covenants shall be deemed material;
or
(c) The taking of the leasehold interest of Subtenant on execution or
other process of the law in any action against Subtenant; or
(d) The failure of Subtenant to accept the Subleased Premises, to
promptly move into, to take possession of and to operate
continuously its business on the Subleased Premises, or the law
in any action against Subtenant; or
(e) If the Subtenant shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of the Subtenant
or of all or a substantial part of its assets, (ii) admit in
writing its inability to
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pay its debts as they come due, (iii) make a general assignment
for the benefit of creditors, (iv) file a petition or an answer
seeking reorganization or arrangement with creditors or to take
advantage of any insolvency law other than the Federal Bankruptcy
Code, (v) file an answer admitting the material allegations of a
petition filed against the Subtenant in any reorganization or
insolvency proceeding, other than a proceeding commenced pursuant
to the Federal Bankruptcy Code, or if any order, judgment or
decree shall be entered by any court of competent jurisdiction,
except for a bankruptcy court or a federal court sitting as a
bankruptcy court, adjudicating the Subtenant insolvent, or
approving a petition seeking reorganization of the Subtenant, or
appointing a receiver, trustee or liquidator of the Subtenant or
of all or a substantial part of its assets.
10.2 SUBLANDLORD'S REMEDIES FOR SUBTENANT DEFAULT. Upon the occurrence of
any Event or Events of Default by Subtenant, enumerated herein or in
the Prime Lease, if Subtenant fails to cure any such Event of Default
other than a monetary Event of Default within thirty (30) days of
written notice from Sublandlord, or if such default (other than a
default in the payment of the rent or any other sum due to
Sublandlord) is of such a nature that it could not reasonably be cured
within such thirty (30) day period and proceed with reasonable
diligence and in good faith to cure such default providing reasonable
evidence of its efforts to Sublandlord as and when requested,
Sublandlord shall have the option, at Sublandlord's election, to
pursue any one or more of the following remedies.
(a) Sublandlord may cancel and terminate this Sublease Agreement and
terminate Subtenant's right to possession;
(b) Maintain Subtenant's right to possession in which case this
Sublease Agreement shall continue in effect whether or not
Subtenant shall have abandoned the Subleased Premises. In such
event, Sublandlord shall be entitled to enforce all of
Sublandlord's right and remedies under this Sublease Agreement,
including the right to recover the rent as it becomes due
hereunder.
(c) Sublandlord may elect to enter and repossess the Subleased
Premises and relet the Subleased Premises for Subtenant's
account, holding Subtenant liable in damages for all expenses
incurred in any such reletting and for any difference between the
amount of rent received from such reletting and the amount due
and payable under the terms of this Sublease Agreement;
(d) Sublandlord may enter upon the Subleased Premises and do whatever
Subtenant is obligated to do under the terms of this Sublease
Agreement (and Subtenant shall reimburse Sublandlord on demand
for any expenses which Sublandlord may incur in effecting
compliance with Subtenant's obligations under this Sublease
Agreement, and Sublandlord shall not be liable for any damages
resulting to the Subtenant from such action).
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10.3 SUBLANDLORD'S REMEDIES ARE CUMULATIVE. All the remedies of Sublandlord
in the event of Subtenant default shall be cumulative and, in
addition, Sublandlord may pursue any other remedies permitted by law
or in equity. Forbearance by Sublandlord to enforce one or more of the
remedies upon an event of default shall not constitute a waiver of
such default.
11. PEACEFUL ENJOYMENT.
Subtenant shall, and may peacefully enjoy the Subleased Premises against
all persons claiming by, through or under Sublandlord, subject to the other
terms hereof, provided that Subtenant pays the rent and other sums herein
recited to be paid by Subtenant and performs all of Subtenant's covenants
and agreements in this Sublease Agreement.
12. HOLDING OVER.
12.1 RENTAL AMOUNT. If Subtenant holds over without Sublandlord's or
Owner's written consent after expiration or other termination of this
Sublease Agreement, or if Subtenant continues to occupy the Subleased
Premises after termination of Subtenant's right of possession,
Subtenant shall throughout the entire holdover period pay rent at a
rate equal to the greater of (a) one and one-half (1.5) times the
Basic Rent paid by Subtenant during the last preceding Lease Year; or
(b) rent, damages and expenses owed to the Owner by the Sublandlord
arising as a result of Subtenant's holding over.
12.2 NO EXTENSION OF TERM. No possession by Subtenant after the expiration
of the term of this Sublease Agreement shall be construed to extend
the term of this Sublease Agreement unless Sublandlord has consented
to such possession in writing.
13. ATTORNEY'S FEES.
Subtenant will pay, in addition to the rents and other sums agreed to be
paid hereunder, all collection and court costs incurred by Sublandlord, and
Sublandlord's reasonable attorney's fees incurred for the collection of
unpaid rents or the enforcement, defense or interpretation of Sublandlord's
rights under this Sublease Agreement, whether such fees and costs be
incurred out of court, at trial, on appeal or in bankruptcy proceedings.
14. PERSONAL LIABILITY.
The liability of Sublandlord to Subtenant for any default by Sublandlord
under this Sublease Agreement shall be limited to the interest of
Sublandlord in the Subleased Premises, and Subtenant agrees to look solely
to Sublandlord's interest in the Subleased Premises for the recovery of any
judgment from the Sublandlord, it being intended that Sublandlord shall not
be personally liable for any judgement or deficiency.
15. RELATIONSHIP OF PARTIES.
Nothing contained in this Sublease Agreement shall be deemed or construed
by the parties hereto, nor by any third party, as creating the relationship
of principal and agent or of partnership or of joint venture between the
parties hereto, it being understood and agreed that neither the method of
computation of rent, nor any other provisions contained herein, nor any
acts of the parties herein, shall be deemed to create any relationship
between the parties hereto other than the relationship of Sublandlord and
Subtenant.
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16. MISCELLANEOUS.
16.1 SEVERABILITY. If any term or provision of this Sublease Agreement, or
the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Sublease
Agreement or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and.
provision of this Sublease Agreement shall be valid and enforced to
the fullest extent permitted by law.
16.2 RECORDATION. Subtenant agrees not to record this Sublease Agreement or
any amendment, exhibit or schedule hereto, without the prior written
consent of Landlord and Sublandlord.
16.3 GOVERNING LAW. This Sublease Agreement and the rights and obligations
of the parties hereto are governed by the laws of the State of
Alabama.
16.4 TIME OF PERFORMANCE. Except as may be otherwise expressly provided
herein, time is of the essence of this Sublease Agreement with respect
to all required acts of Subtenant.
16.5 TRANSFERS OF SUBLANDLORD. Sublandlord shall have the right to transfer
and assign, in whole or in part, all its rights and obligations
hereunder and in the Subleased Premises referred to herein, and in
such event and upon such transfer, Sublandlord shall be released from
any further obligations hereunder, and Subtenant agrees to look solely
to such successor in interest of Sublandlord for the performance of
such obligations.
16.6 EFFECT OF DELIVERY OF THIS SUBLEASE AGREEMENT. Sublandlord has
delivered a copy of this Sublease Agreement to Subtenant for
Subtenant's review only, and the delivery hereof does not constitute
an offer to Subtenant or an option to lease. This Sublease Agreement
shall not be effective until a copy executed by both Sublandlord and
Subtenant is delivered to and accepted by Owner.
16.7 SECTION HEADINGS. The section or subsection headings are used for
convenience of reference only and do not define, limit or extend the
scope or intent of the sections of this Sublease Agreement.
16.8 NO OTHER REPRESENTATIONS. Neither party has made any representations
or promises, except as contained herein, or in some further writings,
signed by the party making such representation or promise. This
Sublease contains the entire agreement of the parties and no prior
written or oral agreements, promises or inducements not embodied
herein shall be of any force or effect.
16.9 SUCCESSORS AND ASSIGNS. Each provision hereof shall extend to and
shall, as the case may require, bind and inure to the benefit of the
Sublandlord and its successors and assigns, and of the Subtenant, and
its successors and assigns in the event this Sublease Agreement has
been assigned or sublet with the express, written consent of the
Landlord and Sublandlord.
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IN WITNESS WHEREOF, Sublandlord and Subtenant have caused this Sublease
Agreement to be executed in their names and on their behalf in multiple original
counterparts effective as of the day and year first above written.
Sublandlord:
MEDPARTNERS, INC.
BY /s/ illegible
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Its EVP & CO
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Subtenant:
THE TRIZETTO GROUP., INC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its President
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CONSENT OF LANDLORD
The undersigned Owner, as Landlord under the Primary Lease, hereby consents to
the terms and conditions of the Sublease Agreement and accepts the Subtenant as
a subtenant on this 19th day of May , 1999.
RIVERCHASE TOWER, LTD.
BY: ▇▇▇ ▇▇▇▇▇▇ & ASSOCIATES, INC.
ITS: PROPERTY MANAGER
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-------------------------------
Its President
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LEASE
MEDPARTNERS, INC.
TENANT
RIVERCHASE TOWER, LTD.
LANDLORD
MALL: RIVERCHASE OFFICE TOWER
LOCATION: HOOVER, ALABAMA
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TABLE OF CONTENTS
Section Page
1. Demised Premises 1
2. Term 2
3. Use 3
4. Rent 3
5. Additional Rental 4
6. Basic Operating Costs Defined 5
7. Security Deposit 6
8. Possession 6
9. Alterations 6
10. Repairs 8
11. Regulations and Laws 9
12. Tenant's Property 9
13. Insurance 9
14. Destruction 10
15. Condemnation 11
16. Events of Default 11
17. Remedies 13
18. Services 13
19. Landlord's Lien 14
20. Exemptions and Attorney's Fees 14
21. Curing Tenant's Default 14
22. Subordination 14
23. Name of Building 15
24. Rules and Regulations 15
25. Quiet Enjoyment 15
26. No Representations by Landlord 16
27. Entire Agreement 16
28. No Partnership 16
29. Cancellation 16
30. Notices 16
31. Estoppel Certificates 17
32. Binding Effect of Lease 17
33. Holding Over 17
34. Signs and Advertising 17
35. Parking Areas 18
36. Unavoidable Delays 18
37. Assignment and Subletting 18
38. Miscellaneous 19
39. Substitution of Premises 19
40. Changes to Building 19
41. Sale by Landlord 20
42. Entry by Landlord 20
43. Landlord Controlled Areas and Operating Agreements 20
44. Limitation of Liability 21
45. Renewal Option 21
46. Right of First Refusal 22
47. Approval of Mortgagee 23
48. Notice to Mortgagee 23
49. Building Sign 23
50. Check In Station 23
51. Documents 24
Exhibit A: Demised Premises
Exhibit B: Tenant Work Letter
Exhibit C: Rules and Regulations
Exhibit D: Additional Hours Charge
Exhibit E: Sign Specifications
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this 23rd day of June,
1997, by and between Riverchase Tower, Ltd. hereinafter referred to as
"Landlord" and MedPartners, Inc., hereinafter referred to as "Tenant."
WITNESSETH:
WHEREAS, Landlord is the owner and operator of the Galleria Tower, a
Class A Office Building located at Riverchase Galleria, Hoover, Alabama; and
WHEREAS, Tenant is presently occupying approximately 79,807 square feet
of Rentable Area (as hereinafter defined) in the Galleria Tower pursuant to
various leases and/or subleases which Rentable Area is more particularly
described on Exhibit "A" attached hereto and made a part hereof; and
WHEREAS, Tenant has experienced a rapid expansion of its business which
expansion is anticipated to continue thereby resulting in a projected need of
150,000 square feet of total Rentable Area; and
WHEREAS, Tenant desires to lease additional Rentable Area on Floors 11,
12, 14, 15, 16, 17 and 18 (if constructed by Tenant as hereinafter provided) and
to incorporate all of its leasehold interest into one lease, and to surrender
the Rentable Area on the 7th and 9th floors of the Galleria Tower; and
WHEREAS, all the Rentable Area on Floors 9, 11, 12, 14, 16, 17 and part
of 15 is presently leased to other tenants; and
WHEREAS, Landlord desires to accommodate Tenant's expansion and need
for additional Rentable Area; and
NOW THEREFORE, for and in consideration of the premises the parties do
hereby agree as follows:
DEMISED PREMISES
1. Effective upon delivery of Rentable Area to Tenant, Landlord, for and
in consideration of the covenants and agreements herein set forth, and the rent
hereafter specifically reserved, has leased and does hereby lease unto said
Tenant, and Tenant does hereby lease from Landlord, those certain premises
(hereinafter referred to as the "Demised Premises") on floors 7, 9, 10, 11, 12,
14, 15, 16, 17 and 18 (if constructed) of the building, commonly known as the
Galleria Office Tower (hereinafter referred to as the "Building"). The Demised
Premises are hereby specified to contain up to approximately 150,000 square feet
of Rentable Area (hereinafter defined), some of which may be common areas or
areas to be used in common with others. The Demised Premises are cross-hatched
on the floor plan attached hereto as Exhibit "A" and made a part of this Lease.
Upon request of Tenant, Landlord agrees to accept the surrender of any
Rentable Area on floors presently leased by Tenant (other than Floors 10 through
18) and agrees to cancel any lease with respect to such space; provided that
Tenant shall return the same to Landlord in good condition and repair, ordinary
wear and tear excepted. Furthermore, Tenant shall repair any damage to the
Premises caused by the removal of any fixtures, furniture and/or equipment.
The term "Rentable Area" as used in this Lease shall mean: (a) As to
each floor of the Building on which the entire space rentable to tenants is or
will be leased to one tenant (hereinafter referred to as "Single Tenant Floor")
the entire floor area computed by measuring to the inside finished surface of
the Dominant Portion (as hereinafter defined) of the permanent
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outer building walls on such floor, including all areas, hereinafter referred
electrical rooms and telephone closets without deductions for columns or other
structural portions of the Building or vertical penetrations that are included
for the special use of Tenant but excluding the area contained within the
exterior walls of the Building such as stairways, fire stair towers, vertical
ducts, elevator shafts, flues, vents, stacks and pipe shafts; and (b) as to each
floor of the Building on which space is or will be leased to more than one
tenant (hereinafter referred to as "Multi-Tenant Floor") Rentable Area shall be
the total of (i) the entire floor area included within the Demised Premises,
being the floor area bounded by the inside surface of the Dominant Portion (as
hereinafter defined) of the permanent outer building walls or such floor of the
Building bounding such Demised Premises, the finished surface of the exterior of
all interior walls separating such Demised Premises from any public corridors,
other public or common areas, or building core on such floor, and the
center-line of all walls separating such Demised Premises from other areas
leased, or to be leased, to other tenants on such floor; and (ii) a prorata
portion of the Common Area situated on such floor. (For purposes of this Lease,
the "Dominant Portion" shall mean that portion of the inside finished surface of
the permanent outer wall of the Building which is fifty percent or more of the
vertical floor to ceiling dimension.) The floor area computation described
herein complies with A.N.S.I. Z65.1 - 1980 (revision of A.N.S.I. Z65.2 - 1972)
approved July 31, 1980 by the American National Standards Institute, Inc.
The parties acknowledge that Tenant is presently leasing or subleasing
the following Rentable Area, herein referred to as "Occupied Floor Areas":
Floor Square Feet
----- -----------
15th 20,195
14th 20,195
11th 7,110
11th 3,382
10th 20,195
9th 5,137
9th 1,160
7th 2,433
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Total 79,807
Prior to the termination of any such existing agreement. Tenant shall
continue to pay all rents and charges due under such agreements. Upon the
termination of the agreements for each of the above Occupied Floor Areas, such
shall be added to this Lease and shall be subject to the terms, conditions and
rents set forth herein. The parties agree to execute such amendment or
amendments to this Agreement necessary to add the existing Rentable Area to this
Agreement.
The parties anticipate Tenant needing and obtaining additional Rentable
Area, as the same becomes available, on the 11, 12, 16, 17 and 18 (provided the
same is constructed by Tenant as hereinafter provided) floors. If and when such
Rentable Area is released from any present obligation or is otherwise made
available for occupancy by Tenant, the parties agree to execute such amendment
or amendments to this Agreement necessary to add such new Rentable Area to this
Agreement under the same terms, conditions and rents set forth herein.
Landlord shall use its good faith efforts to deliver to Tenant all the
Rentable Area on Floors 10 through 17 and 18 (provided the same is constructed
by Tenant as hereinafter provided) on or before January 1, 1998. The parties
acknowledge that Landlord presently leases Rentable Area on the 11th Floor to
Sprint and to Universal Underwriters which provide those tenants with renewal
options that may take the terms of such leases beyond 1997. Tenant agrees that
the failure of Landlord to deliver such Rentable Area to Tenant shall not affect
this Lease.
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TERM
2. All Rentable Area hereinafter leased pursuant to this Agreement shall
be for a term commencing on the earlier of (a) the date Tenant actually occupies
such Rentable Area for business, (b) ninety (90) days after such Rentable Area
is made available to Tenant or (c) the date all tenant improvements required by
Tenant have been completed, and Tenant has received a certificate of occupancy
for such Rentable Area and continuing through December 31, 2007 (the "Term")
unless sooner terminated as provided herein.
USE
3. The Demised Premises are leased only for general office use and
occupancy by Tenant. Notwithstanding anything to the contrary stated herein,
Tenant acknowledges that the Galleria Tower is, at the time of the execution of
this Lease, a Class A office building and Tenant agrees that Tenant's use of the
Demised Premises shall be consistent with that of Class A office space.
The Tenant shall not use or permit the Demised Premises or any part
thereof to be used for any disorderly, unlawful or hazardous purpose, nor for
any purpose other than hereinbefore specified, and will not manufacture any
commodity therein.
Tenant agrees to maintain an employee density level throughout all
Rentable Area occupied by Tenant at no greater than 8.5 persons per 1000 square
feet of Rentable Area; provided further that to the extent that there are more
than 7.5 persons per 1000 square feet of Rentable Area on any floors occupied by
Tenant, Tenant shall pay to Landlord, as additional monthly rent, a sum equal to
$12.50 per person per month in excess of 7.5 per 1000 square feet of Rentable
Area. Notwithstanding anything herein stated to the contrary, this provision
shall not apply until such time as Tenant is occupying at least 70,000 square
feet of Rentable Area.
Within twenty (20) days of receipt of written request from Landlord,
Tenant shall certify to Landlord in writing the number of persons working on
each floor occupied by Tenant during each month of the previous year and shall
supply Landlord such verification thereof as Landlord may reasonably request,
including but not limited to copies of Tenant's payroll records, which records
may be redacted to excluded salary and other similar data.
RENT
4. Base Rental and Tenant Allowance.
(a) During and for the term hereof, commencing on the Commencement
Date, Tenant covenants and agrees to pay to Landlord for the Demised Premises,
(subject to subparagraph (b) below), without previous notice or demand
therefore, and without deduction, set off or abatement, an Annual Base Rental as
follows:
Year Base Rental/Sq.Foot/Annum
---- -------------------------
Years Prior to 2001 $ 16.50
Years 2001-2002 17.00
Years 2003-2004 17.50
Years 2005 18.00
Years 2006-2007 19.00
First Option Period See Section 45
Second Option Period See Section 45
Third Option Period See Section 45
Base Rental shall be payable in equal monthly installments, in advance, and
Additional Rental determined as hereinafter provided in Section 5, all such
rentals being sometimes herein called "Rent." Rent shall be payable on the first
day of each and every calendar month during the Term hereof with the first such
monthly installment to be paid at the time of execution of this Lease.
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Rent for any partial month shall be prorated at the rate of one-thirtieth
(1/30th) of the monthly rent per day. Tenant shall be required to pay Landlord
interest on any rent due that has not been received by Landlord within ten (10)
days after its due date. Said interest shall be computed at a rate equal to the
Prime Rate of AmSouth Bank of Alabama, N.A., as announced as such on the date
interest is to commence, plus two percent (2%) (herein referred to as the
"Default Rate"). All Rent shall be paid to Landlord in lawful money of the
United States of America, at the office of the Landlord, or Landlord's Agent, or
to such other person or at such other place as Landlord may from time-to-time
designate in writing. In addition to the Base Rental and Additional Rental,
Tenant shall and hereby agrees to pay to Landlord each month a sum equal to any
sales tax, tax on rentals, and any other charges, taxes and/or impositions now
in existence or hereafter imposed based upon the privilege or renting the
Demised Premises or upon the amount of rentals collected therefor. Nothing
herein shall, however, be taken to require Tenant to pay any part of any Federal
and State taxes on income imposed upon Landlord.
(b) Notwithstanding anything herein stated to the contrary, as to any
Rental Area presently occupied by BellSouth subsidiaries, or affiliates (herein
BellSouth) on any floor designated herein for occupancy by Tenant, Tenant shall
work directly with BellSouth to obtain a sub-lease on such terms as are
acceptable to Tenant. The term of such sub-lease will be coterminus with
Landlord's lease with BellSouth for such space. At the termination of such
sub-lease, such space shall be governed completely by the terms of this
Agreement at the rents set forth in sub-paragraph (a) above for the
corresponding year.
(c) Landlord agrees to pay to Tenant, as a contribution toward the
costs of improvements to be made to the Demised Premises by Tenant, an allowance
of $720,000.00. Such Tenant Allowance shall be due and payable on January 5,
1998. Notwithstanding the above, Landlord acknowledges that there is an existing
agreement between Landlord and Tenant for an allowance for the refurbishment of
the 10th Floor to be funded in 2001. The existing agreement shall continue in
force and shall not be superseded by this Paragraph 4(c).
ADDITIONAL RENTAL
5. Tenant shall also pay to the Landlord, as Additional Rental for each
month of each Adjustment Year, ("Adjustment Year" shall mean January 1 through
December 31 of each calendar year commencing with January 1 of the calendar year
following that in which the Lease Term hereof commences) in addition to Base
Rental and all other amounts herein required to be paid by Tenant, an amount
equal to one-twelfth of the percentage (Tenant's Proportionate Share) derived
from a fraction using as the numerator the actual Rentable Area of the Demised
Premises, as adjusted from time to time, and as the denominator, the Rentable
Area of the Building (274,165 square feet) times the amount, if any, by which
the Landlord estimates Basic Operating Costs (as defined in Section 6) for the
forthcoming calendar year exceed the Building's Basic Operating Costs for 1997
(the "Initial Year") in accordance with the following procedure:
(a) (1) Prior to January of each Adjustment Year during the Tenant's
occupancy, Landlord shall provide an estimate of the Basic Operating Costs for
the forthcoming calendar year. Tenant shall pay, as Additional Rental, for such
forthcoming calendar year, Tenant's Proportionate Share of the amount of the
difference between the Basic Operating Costs for the Initial Year, as adjusted
as provided herein, and the estimated Basic Operating Costs for the forthcoming
calendar year, and the same shall be due and payable on the first day of each
calendar month in the manner set forth above.
(2) The monthly Additional Rental Payment shall commence on the first day
of the first month following notice to Tenant of the amount of such monthly
Additional Rental; and, in addition, on that day a lump sum payment shall be
made by Tenant to Landlord for any lapsed period from January 1 of the current
Adjustment Year to the first day of the month for which said monthly Additional
Rental is to be paid.
(3) Within ninety (90) days after the end of each Adjustment Year during
Tenant's occupancy, Landlord shall deliver to Tenant a statement of the
Landlord's actual Basic
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Operating Costs for such preceding Adjustment Year and the monthly installments
paid or payable shall be adjusted between the Landlord and Tenant; and each
party agrees to pay to the other within thirty (30) days of receipt of such
statement such amount as may be necessary to effect adjustment of the agreed
Tenant's Proportionate Share for the preceding Adjustment Year. The effect of
this reconciliation payment is that Tenant will pay during the term of this
Lease Tenant's Proportionate Share of the actual Basic Operating Costs increases
each year over the Basic Operating Costs for the Initial Year, as same may be
adjusted.
(b) Notwithstanding anything to the contrary contained herein in the
event Landlord's actual Basic Operating Costs for any Lease Year after 1997,
adjusted as herein provided, exceed the Basic Operating Expense for 1997, Tenant
agrees to pay, within thirty (30) days after receipt from Landlord of a revised
billing, a lump sum in an amount equal to Tenant's Proportionate Share
(appropriately adjusted for the number of days from the Commencement Date to
December 31 of that same year) of the difference between Landlord's actual Basic
Operating Costs for such year (as set forth and adjusted above) and the Basic
Operating Expense for 1997.
(c) In the event part of the Building is unoccupied during any calendar
year, the Basic Operating Costs shall be adjusted so as to reflect the Basic
Operating Costs of the Building as though it was ninety-five percent (95%)
occupied and the increase in Additional Rental shall be based upon such adjusted
costs. For purposes of this paragraph and all calculations provided for by it,
the occupancy rate shall be the average calendar year occupancy.
Operating Expenses for the Galleria Tower are based upon a normal work day of
7:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. on
Saturdays. In the event Tenant desires for building services (including but not
limited to lighting, HVAC, janitorial and/or security) to be available for any
period other than such hours, Tenant should so advise Landlord in advance in
order that Landlord may be able to accommodate Tenant's needs. If Tenant
requires any building services beyond the above hours, Tenant agrees to pay to
Landlord an Additional Rental as follows:
1) For additional hours used on a non-scheduled, non-routine
basis, Tenant shall pay to Landlord a sum equal to the number
of additional hours of use multiplied by $35.00 per floor (or
$17.50 per half floor) with a minimum of one (1) hour use; or
2) In the event Tenant adds scheduled, routine hours in the way
of additional shifts over and above normal work day hours,
Tenant shall pay to Landlord a sum determined in accordance
with exhibit "D" attached hereto and made a part hereof.
BASIC OPERATING COSTS DEFINED
6. For purposes of this Lease, "Basic Operating Costs" shall be composed
of "Operating Expenses" and "Taxes."
(a) As used herein, the term "Operating Expenses" shall mean all
expenses, costs and disbursements, of every kind and nature which Landlord shall
pay or become obligated to pay because of or in connection with the ownership,
maintenance and/or operation of the Building, computed on the accrual basis, but
shall not include the cost of individual tenant improvements, management costs
associated with leasing activities, or the replacement of capital investment
items and new capital improvements unless such items and/or improvements result
in the operating efficiency of the Building being increased, in which latter
event the cost shall be spread over the period necessary to recover the cost of
such improvements from the increased efficiency. By way of explanation and
clarification, but not by way of limitation, these Operating Expenses will
include the following:
(1) Wages and salaries of all employees engaged in the operation
and
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maintenance of the Building, employer's social security taxes.
unemployment taxes or insurance, and any other taxes which may
be levied on such wages and salaries, the cost of disability
and hospitalization insurance, pension or retirement benefits,
and any other fringe benefits for such employees;
(2) All supplies and materials used in the operation and
maintenance of the Building;
(3) Cost of all utilities, including water, sewer, electricity,
gas and fuel oil used by the Building and not charged directly
to another tenant;
(4) Cost of customary Building management, janitorial services,
clerical, accounting and legal services, trash and garbage
removal, servicing and maintenance of all systems and
equipment including, but not limited to, elevators, plumbing,
heating, air conditioning, ventilating, lighting, electrical,
security and fire alarms, fire pumps, fire extinguishers and
hose cabinets, depreciation, mail chutes, guard service,
painting, window cleaning, landscaping and gardening;
(5) Cost of casualty and liability insurance applicable to the
Building and Landlord's personal property used in connection
therewith. Landlord agrees to maintain accounting books and
records reflecting Operating Expenses of the Building in
accordance with generally accepted accounting principles.
(b) As used herein, the term "Taxes" shall mean all impositions, taxes,
assessments (special or otherwise), water and sewer charges and rents, and other
governmental liens or charges of any and every kind, nature and sort whatsoever,
ordinary and extraordinary, foreseen and unforeseen, and substitutes therefore,
including all taxes whatsoever (except only those taxes of the following
categories: any inheritance, estate, succession, transfer or gift taxes imposed
upon Landlord or any income taxes specifically payable by Landlord as a separate
tax paying entity without regard to Landlord's income source as arising out of
or from the Building and/or the land on which it is located) attributable in any
manner to the Building, the land on which the Building is located or the rents
(however the term may be defined) receivable therefrom or any part thereof, or
any use thereof, or any facility located therein or thereon or used in
conjunction therewith or any charge or other payment required to be paid to any
governmental authority, whether or not any of the foregoing shall be designated
"real estate tax", "sales tax", "rental tax", "excise tax", "business tax" or
designated in any other manner.
SECURITY DEPOSIT
7. INTENTIONALLY OMITTED
POSSESSION
8. (a) Landlord shall use reasonable diligence to deliver possession of
additional Rentable Area as the same becomes available.
ALTERATIONS
9. (a) Tenant shall make no alterations, additions, installations,
substitutions, improvements or decorations in or to the Demised Premises without
the express prior written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed. All fixtures, equipment, improvements and
appurtenances attached to or built into the Demised Premises at the commencement
of or during the term of this Lease, whether or not in whole or
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in part, by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed the property of Landlord and shall not be
removed by Tenant, except as may be expressly otherwise provided in this Lease.
(b) Tenant shall also be permitted to add, at its expense, additional
cooling units (which units shall be separately metered) in the Demised Premises
provided that Tenant shall pay to Landlord the additional operating expenses for
the same.
(c) In the event that the 17th Floor is added to the Demised Premises,
Tenant shall be permitted to build Rentable Area in that space designated for
construction of an 18th Floor. In the event Tenant builds the 18th Floor, Tenant
shall be permitted to occupy the same pursuant to the terms and conditions of
this Agreement and such 18th Floor will be considered part of the Demised
Premises except (i) Tenant shall not be required to pay any Base Rental for the
18th Floor and (ii) the Rentable Area on the 18th Floor shall not be considered
when computing Tenant's Additional Rent pursuant to Paragraph 5; provided
however, Tenant shall reimburse Landlord, on a monthly basis, for the operating
expenses incurred with respect to the 18th floor.
(d) Landlord shall have complete approval of (i) the plans and
specifications for all construction, (ii) the schedule for construction and
(iii) the staging for and manner of construction. In addition, Tenant agrees (i)
to obtain such insurance as may be reasonably required by Landlord (ii) to
perform any construction using a reputable contractor approved by Landlord so
that the same shall not unreasonably interfere with the operation of any tenants
of the Galleria Tower or the Riverchase Galleria and the conduct of business in
the Galleria Tower and the Riverchase Galleria, (iii) that all such construction
work shall be carried on as expeditiously as is consistent with good
construction practices; (iv) to cause all contractors engaged in such
construction work to take such steps as may be reasonably required to prevent
injury to any of the tenants or occupants of the Galleria Tower and the
Riverchase Galleria or their licensees or invitees; (v) to take any and all
safety measures reasonably required to protect the other parties hereto and all
tenants and occupants of the Galleria Tower and the Riverchase Galleria, their
licensees and invitees, from injury or damage caused by, or resulting from, the
performance of any construction by Tenant; (vi) to erect or cause to be erected
adequate and proper barricades, substantially enclosing the area of construction
so as to protect the other parties hereto, and their respective customers,
employees, licensees and invitees from injury or damage caused by such
construction, and maintain such barricades until such construction is completed
to such extent that such protection is no longer needed; (vii) remove from the
Demised Premises and dispose of, on at least a weekly basis or more frequently
as needed, all debris and rubbish caused by or resulting from any such work; and
(viii) repair any and all damage caused to the Riverchase Galleria and/or the
Galleria Tower.
(e) Tenant hereby agrees to indemnify Landlord for any and all
liability including any arising out of statutory or common law for any and all
injuries to or death of any and all persons including Tenant's contractors and
subcontractors and their employees and any liability for any and all damage to
the property caused by, or resulting from, or arising out of any act or omission
on the part of Tenant, its contractors, and its or their subcontractors or
employees in the performance of any work; and Tenant agrees to defend, indemnify
and save harmless Landlord from and against all damages, cost, liabilities,
losses and/or expenses (including legal fees and expenses) which Landlord may
incur, suffer, or pay as a result of claims or lawsuit(s) due to, because of, or
rising out of any and all such injuries, death and/or damage.
(f) If because of any act or omission of Tenant, any mechanics or other
lien, charge or order for the payment of money or other encumbrance shall be
filed against Landlord and/or any portion of the Galleria Tower (whether or not
such lien, charge, order or encumbrance is valid or enforceable as such), Tenant
shall, at its sole cost and expense, cause same to be discharged of record or
bonded within ten (10) days after notice to Tenant; and Tenant shall indemnify
and save harmless Landlord against and from all costs, liabilities, suits,
penalties, claims and demands, including reasonable attorney's fees resulting
therefrom. If Tenant fails to comply with the foregoing provisions, Landlord
shall have the option of discharging or bonding
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any such lien, charge, or order or encumbrance and Tenant agrees to reimburse
Landlord for all cost, expenses (including all legal fees and expenses) and
other sums of money in connection therewith plus interest at the rate of two
percent (2%) over the prime rate as established by AmSouth Bank of Alabama, N.A.
or its successors or assigns. Tenant does hereby agree to give its contractors,
both general and subcontractors, written notice that said contractors must look
solely to Tenant for payment of any and all work performed by said contractors
on behalf of Tenant.
(g) Each of the contractors and/or subcontractors participating in such
construction shall guarantee in writing that the work done by it will be free
from any defects in workmanship and materials for a period of not less than one
year from the date of completion and acceptance thereof. All warranties or
guarantees as to materials and workmanship with respect to such construction
shall be contained in the contract or sub-contract which shall provide that said
guarantees or warranties shall inure to the benefit of both Landlord and Tenant
and may be directly enforced by either of them.
(h) Any approval or consent by Landlord or its agent, shall in no way
obligate Landlord or its agent, in any manner whatsoever in respect to the
finished product design and/or construction by Tenant. Furthermore, the consent
or approval by Landlord or its agent shall mean only that such plans,
specifications or items meets the subjective standards of Landlord and such
consent or approval by Landlord or its agent shall not be deemed to mean that
such plans, specifications or construction is structurally or constructionally
sound and appropriate or that such plans, specifications or construction meet
the applicable building or safety codes and/or standards. Any deficiency in
design or construction, although same had the prior approval of Landlord, shall
be solely the responsibility of Tenant. All materials and equipment furnished by
Tenant shall be new and all work shall be done in a first class workmanlike
manner.
REPAIRS
10. (a) Tenant shall take good care of the Demised Premises and, at
Tenant's expense, shall properly make all repairs, ordinary or extra ordinary,
in or about the Demised Premises required by reason of (i) the performance or
existence of Tenant's Work or other work by Tenant, (ii) the installation, use
or operation of Tenant's property in the Demised Premises, (iii) the moving of
Tenant's property in or out of the Building, (iv) the misuse or neglect or other
act of or sufferance by Tenant or any of its employees, agents, or contractors,
and (v) Tenant's occupancy of the Demised Premises. In the event of any repairs
or alterations by Tenant within the Demised Premises, Tenant agrees to obtain
Landlord's written consent prior to making any such repairs and alterations and
to keep the Demised Premises, the Building and the property upon which the
Building is situated, free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. In the event that Tenant
shall not, within ten (10) days following the imposition of any such lien, cause
the same to be released of record, Landlord shall have, in addition to all other
remedies provided herein and by law, the right, but not the obligation, to cause
the same to be released by such means as it shall deem proper, including payment
of the claim giving rise to such lien. All sums paid by Landlord for such
purpose, and all expenses incurred by it in connection therewith, shall be
payable to Landlord by Tenant on demand with interest at the Default Rate.
(b) Landlord, shall have full and complete control to make changes
and/or repairs to the roof, structural components, outside walls, elevators,
heating, air conditioning, electrical, plumbing and other utility systems of the
Building. Landlord shall not be required to make such repairs as Tenant may be
required to make under the provisions of Section 10(a) above or any other
repairs, changes or improvements to the Demised Premises, except as may be
otherwise provided in Exhibit "B", attached hereto.
(c) There shall be no allowance to Tenant for a diminution of rental
value and Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption or injury to the business of Tenant
arising from Landlord's making any repairs or changes which Landlord is required
or permitted by this Lease or required by law to make in or
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to any portion of the building or the Demised Premises, or in or to the
fixtures, equipment or appurtenances to the Building or the Demised Premises.
REGULATIONS AND LAWS
11. Tenant shall properly execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements of the federal, state, county and
city governments, and of any and all of the departments and bureaus thereof,
applicable to said Demised Premises and shall also promptly comply with and
execute all rules, orders and regulations of the Fire Underwriters Association
for the Prevention of Fires at Tenant's own cost and expense. Tenant agrees to
pay any increase in the amount of insurance premiums over and above the rate now
in force that may be caused by Tenant's use or occupancy of the Demised
Premises, said payment shall be in addition to any amounts due Landlord pursuant
to other provisions contained herein and shall be deemed Additional Rent.
TENANT'S PROPERTY
12. (a) All business and trade fixtures, machinery and equipment, communications
equipment and office equipment installed in the Demised Premises by Tenant
without expense to Landlord, and all furniture, furnishings and other articles
of movable personal property owned by the Tenant and located in the Demised
Premises, shall be and shall remain the property of Tenant and may be removed by
Tenant at any time during the term of this Lease; provided (i) that Tenant shall
repair or pay the cost or repairing any damage to the Demised Premises or to the
Building resulting from such removal and (ii) that Tenant is not in default of
the terms of this Lease.
(b) Any items of Tenant's property (except money, securities and other like
valuables) which shall remain in the Demised Premises after the date fixed for
termination of this Lease or after a period of ten (10) days following an
earlier termination date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its property
or may, at Tenant's expense, be disposed of, without accountability, and in such
manner as Landlord may see fit.
INSURANCE
13. Landlord shall insure the Building against damage by fire, including
extended coverage, in any amount Landlord, in its reasonable discretion, shall
deem adequate, and shall maintain such insurance throughout the term hereby
demised. During the term, Tenant shall insure all of its property, owned or
leased, in the Demised Premises against damage by fire, extended coverage,
vandalism, water damage and sprinkler leakage in an amount selected by Tenant
which shall, in any event, be adequate to satisfy any co-insurance requirements
of the policies providing such insurance. In addition, Tenant shall also
maintain with respect to the Demised Premises, comprehensive general liability
insurance, with minimum limits of One Million Dollars/Three Million Dollars
($1,000,000.00 / $3,000,000.00) for personal injury, and Two Million Dollars
($2,000,000.00) for property damage.
Tenant shall maintain the insurance coverage required herein with a company
or companies with an insurance rating acceptable to Landlord and authorized and
licensed to do business in the State of Alabama. The comprehensive general
liability insurance shall include the Landlord as well as Tenant, against bodily
injury to, or death of, persons and against property damage, as herein provided.
Tenant shall deliver certificates of insurance indicating the above specified
coverage to the Landlord upon the commencement of the term of this Lease, and,
when requested by Landlord, continuing evidence of such coverage annually. If
such insurance is carried under a blanket policy, Tenant agrees to deliver to
Landlord a proper certificate of such insurance, signed by the insurer. Such
insurance policy or policies shall provide that it (they) cannot be canceled
without at least ten (10) days prior written notice to the Landlord.
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Neither Landlord nor Tenant shall be liable (by way of subrogation or
otherwise) to the other party (or to any insurance company insuring the other
party) for any loss or damage to any property of the Landlord or Tenant, as the
case may be, covered by insurance to the extent of such insurance, even though
such loss or damage might have been occasioned by the negligence of the Landlord
or Tenant, or their respective agents, employees, invitees, etc. This release
shall be in effect only so long as the applicable insurance policies shall
contain a clause or endorsement to the effect that the aforementioned waiver
shall not affect the right of the insured to recover under such policies; each
party shall use its best efforts (including payment of additional premiums) to
have its insurance policies contain the standard waiver of subrogation clause.
In the event Landlord's or Tenant's insurance carrier declines to include in
such carrier's policies a standard waiver of subrogation clause, Landlord or
Tenant, as the case may be, shall promptly notify the other party, in which
event, the other party shall not be required to have its insurance policies
contain such waiver of subrogation clause and this section shall be of no force
and effect.
Notwithstanding the foregoing, Tenant shall indemnify and hold Landlord
harmless from and against all claims, actions and demands of any nature
whatsoever arising from personal injury or death to any person or from losses of
or damages to any property which claims, actions and demands allegedly result
from the separate or concurrent negligence of any and all persons, and/or from
separate or concurrent conditions or uses of the Demised Premises, equipment,
materials, supplies or other things of any nature whatsoever related to or in
connection with the use and operation of the Demised Premises, and/or the
performance of this Lease; and Tenant shall reimburse to Landlord all expenses
or costs incurred by it in connection with any investigation, handling,
settlement, defense and/or enforcement of any rights concerning the Demised
Premises and/or the performance of this Lease and/or any and all such claims,
actions and demands, and shall pay any and all judgements, awards and/or
settlements resulting therefrom except only any such claim, action or demand
which was caused solely by the negligence of the Landlord.
Notwithstanding the foregoing, Landlord shall indemnify and hold Tenant
harmless from and against all claims, actions and demands of any nature
whatsoever arising from personal injury or death to any person or from losses of
or damages to any property which claims, actions and demands allegedly result
from the separate or concurrent negligence of any and all persons, and/or from
separate or concurrent conditions or uses of the Landlord Controlled Areas,
related to or in connection with the use and operation of the Landlord
Controlled Areas, and/or the performance of this Lease by Landlord; and Landlord
shall reimburse to Tenant all expenses or costs incurred by it in connection
with any investigation, handling, settlement, defense and/or enforcement of any
rights concerning the Landlord Controlled Areas and/or the performance of this
Lease by Landlord and/or any and all such claims, actions and demands, and shall
pay any and all judgements, awards and/or settlements resulting therefrom except
only any such claim, action or demand which was caused solely by the negligence
of the Tenant.
DESTRUCTION
14. In case of damage by fire or other casualty to the Demised Premises or any
part thereof, Landlord shall have one hundred eighty (180) days within which to
repair and restore the same without terminating this Lease except that if the
fire or other casualty shall damage the entire Demised Premises or a
substantial portion of the Demised Premises, Landlord may elect not to repair
and restore the Demised Premises in which event Landlord shall notify Tenant of
that election within sixty (60) days after the date of the casualty. Should the
Landlord elect to repair and restore the damaged portion of said Demised
Premises, then during the period that Tenant is deprived of the use of the
damaged portion of the Demised Premises, Tenant shall be required to pay rental
covering only that part of the Demised Premises that it is able to occupy; the
rent for said remaining space shall be that portion of the total rent which the
amount of floor area remaining that can be occupied bears to the total floor
area of all of the Demised Premises covered by this Lease. If during the term of
this Lease the entire Demised Premises or any part thereof, including for this
purpose the means of access thereto, shall be so damaged by fire or
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other casualty as to be untenantable, then unless said damage is repaired within
one hundred eighty (180) days thereafter as herein specified, either party
hereto, upon written notice to the other party given at any time following the
expiration of one hundred eighty (180) days after said fire or other casualty,
may terminate this Lease in which case the Rent and Additional Rental shall be
apportioned and paid to the date of said fire or other casualty. The period of
one hundred eighty (180) days hereinbefore referred to shall be extended by such
additional period, not in excess of sixty (60) days, that Landlord is delayed in
substantially completing such repair or restoration by causes such as strikes,
unavailability of materials or any other cause which is beyond the reasonable
control of the Landlord. In case the Building generally is so severely damaged
by fire or other casualty (although the Demised Premises may not be affected)
that the Landlord shall decide within a reasonable time not to rebuild or
reconstruct said Building, then this Lease, and the tenancy hereunder, shall
terminate on the date specified by the Landlord in a notice which shall be given
no later than sixty (60) days after the casualty. No compensation or claim of
diminution of rent will be allowed or paid, by Landlord, by reason of
inconvenience, annoyance, or injury to business, arising from the necessity of
repairing the Demised Premises, or any portion of the Building however, the
necessity may occur, as determined in the sole discretion of the Landlord. For
purposes of this section, a substantial portion shall mean twenty-five percent
(25%) or more of the Demised Premises.
CONDEMNATION
15. If any portion of the Demised Premises less than a substantial part thereof
shall be taken or condemned or sold for public or quasi public use or purpose by
or to any competent authority, then this Lease shall not terminate except as to
the part taken and shall terminate as to the part taken effective as of the date
when title vests in any such authority. Tenant agrees if the Demised Premises,
or a substantial part thereof, shall be taken or condemned or sold for public or
quasi public use or purpose by or to any competent authority, this Lease shall
fully terminate as of the date when title vests in such authority. Tenant shall
have no claim against the Landlord, and shall not have any claim or right to any
portion of the amount that may be awarded as damages or paid as a result of any
such condemnation; and all rights of Tenant to damages therefore, if any, are
hereby assigned by Tenant to Landlord. Upon any such condemnation or taking, the
term of this Lease shall cease and terminate as to the entire Demised Premises
or the applicable portion thereof from the date when title vests in such
governmental authority, and Tenant shall not claim against the Landlord for the
value of any unexpired term of this Lease, leasehold improvements or goodwill.
For purposes of this section, a substantial part shall mean twenty-five percent
(25%) or more of the Demised Premises.
Notwithstanding anything herein stated to the contrary, Tenant shall be
entitled to the amount which may be awarded, if any, for the undepreciated book
value of Tenant's equipment actually taken and any unamortized book value of
leasehold expenses made to the Demised Premises at Tenant's expense, but not the
value of the estate vested in Tenant by this Lease.
EVENTS OF DEFAULT
16. The following events shall be deemed to be events of default by Tenant under
this Lease:
(a) Tenant shall fail to pay when due any sum of money becoming due to be
paid to Landlord hereunder or under any other lease or sublease within the
Galleria Tower, whether such sum be any installment of the Rent herein reserved,
any other amount treated as Additional Rental hereunder, or any other payment or
reimbursement to Landlord required herein whether or not treated as Additional
Rental hereunder, and such failure shall continue for a period of ten (10) days
from the date such payment was due; or
(b) Tenant shall fail to comply with any term, provision or covenant of
this Lease or any other lease or sub-lease in the Galleria Tower other than by
failing to pay when or before due any sum of money becoming due to be paid to
Landlord hereunder, and shall not cure
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such failure within thirty (30) days (forthwith, if the default involves a
hazardous condition) after written notice thereof to Tenant; or
(c) Tenant shall fail to vacate the Demised Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only; or
(d) The leasehold interest of Tenant shall be levied upon under execution
or be attached by process of law or Tenant shall fail to contest diligently the
validity of any lien or claimed lien and give sufficient security to Landlord to
insure payment thereof or shall fail to satisfy any judgment rendered thereon
and have the same released, if such default shall continue for ten (10) days
after written notice thereof to Tenant; or
(e) Tenant shall become insolvent, admit in writing its inability to pay
its debts generally as they become due, file a petition in bankruptcy or a
petition to take advantage of any insolvency statute, make an assignment for the
benefit of the creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver for itself or for the whole or for any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws as now in effect
or hereafter amended, or any other applicable law or statute of the United
States or any State thereof; or
(f) A court of competent jurisdiction shall enter an order, judgment or
decree adjudicating Tenant a bankrupt, or appointing a receiver of Tenant, or
for the whole or any substantial part of its property, without the consent of
Tenant, or approving a petition filed against Tenant seeking reorganization or
arrangement of Tenant under the bankruptcy laws of the United States, as now in
effect or hereafter amended, or any state thereof, and such order, judgment or
decree shall not be vacated or set aside or stayed within thirty (30) days from
the date of entry thereof; or
(g) In any event whereby this Lease or the estate hereby granted or the
unexpired balance of the term hereof would by operation of law or otherwise,
devolve upon or pass to any person, firm or corporation other than Tenant,
except as permitted in this Lease; or
(h) In the event Tenant defaults under any lease or sublease agreement for
Rentable Area in the Galleria Tower.
Failure of Landlord to declare any default immediately upon occurrence
thereof, or delay in taking any action in connection therewith, shall not waive
such default, but Landlord shall have the right to declare any such default at
any time and take such action as might be lawful or authorized hereunder, in law
and/or in equity. No waiver by Landlord of a default by Tenant shall be implied
and no express waiver by Landlord shall affect any default other than the
default specified in such waiver and that only for the time and extension
therein stated.
REMEDIES
17. Upon the occurrence of any of such events of default described in Section 16
hereof or elsewhere in this Lease, Landlord shall have the option to pursue any
one or more of the following remedies, in addition to all remedies, both legal
and equitable under the laws of the State of Alabama, without any notice or
demand whatsoever.
Landlord may, at its election, terminate this Lease or terminate Tenant's
right to possession only, without terminating this Lease. Upon any termination
of this Lease, whether by lapse of time or otherwise, or upon any termination of
Tenant's right to possession without termination of this Lease, Tenant shall
surrender possession and vacate the Demised Premises immediately, and deliver
possession thereof to Landlord, and Tenant hereby grants to Landlord full and
free license to enter into and upon the Demised Premises in such event with or
without process of law and to repossess Landlord of the Demised Premises as of
Landlord's former estate
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and to expel or remove Tenant and any others who may be occupying or within the
Demised Premises and to remove any and all property therefrom, without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
hereby waiving any right to claim damage for such reentry and expulsion, and
without relinquishing Landlord's right to rent or any other right given to
Landlord hereunder or by operation of law. Upon any termination of this Lease,
whether by lapse of time or otherwise, Landlord shall be entitled to recover as
damages, all rent, including any amounts treated as Additional Rental hereunder,
and other sums due and payable by Tenant on the date of termination, plus the
sum of (i) an amount equal to the then present value of the rent, including any
amounts treated as Additional Rental hereunder and other sums provided herein to
be paid by Tenant for the residue of the stated term hereof, less the fair
rental value of the Demised Premises for such residue (taking into account the
time and expense necessary to obtain a replacement tenant or tenants, including
expenses hereinafter described relating to the recovery of the Demised
Premises, and preparation for reletting) and (ii) the cost of performing any
other covenants which would have otherwise been performed by Tenant.
Any and all property which may be removed from the Demised Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled, may be handled, removed and stored as the case may be, by or at
the direction of Landlord at the risk, cost and expense of Tenant, and Landlord
shall in no event be responsible for value, preservation or safe keeping
thereof. Tenant shall pay Landlord, on demand, any and all expenses incurred in
such removal and all storage charges against such property so long as the same
shall be in Landlord's possession or under Landlord's control. Any such property
of Tenant not retaken by Tenant from storage within thirty (30) days after
removal from the Demised Premises shall, at Landlord's option, be deemed
conveyed by Tenant to Landlord under this Lease as by a ▇▇▇▇ of sale without
further payment or credit by Landlord to Tenant.
All remedies set forth in this Section 17 shall be deemed cumulative and
Landlord may pursue any and all remedies, both at law and at equity under the
laws of the state of Alabama.
SERVICES
18. Landlord shall furnish reasonably adequate electricity, water, lavatory
supplies, and automatically operated elevator service, during normal Building
hours as specified below, and normal and customary cleaning service after
business hours daily, Monday through Friday. Landlord shall furnish hot and cold
water at those points of supply provided for the general use of all tenants in
the Building, as well as heat and air conditioning in season, during such time
as Landlord normally furnishes these services to other tenants in the Building,
and at such temperatures and in such amounts as are considered by Landlord to be
standard, Monday through Friday, from 7:00 a.m. to 6:00 p.m. and on Saturdays
from 8:00 a.m. to 1:00 p.m., and such other hours as Landlord may in its
discretion deem appropriate, exclusive of Sundays and holidays, during such
seasons of the year when such services are normally and usually furnished in
modern office buildings in the Birmingham, Alabama area. Proper electrical
facilities will be furnished by Landlord and will supply sufficient power for
standard office machines of low electrical consumption; provided, however, that
Tenant shall bear the utility cost occasioned by special equipment including but
not limited to electro-data processing machines, commercial copying machines,
computers and similar machines of high electrical consumption including air
conditioning cost associated therewith. Landlord reserves the right to specify
those items that are to be considered special equipment. Landlord further
reserves the right to adjust the monthly rent to reflect the additional cost of
any extraordinary, excessive or wasteful consumption of electricity. Special
equipment shall not include desk top computers, copy machines and other
equipment of electrical consumption normally used by Tenant in the conduct of
its business, except to the extent the employee density ratio exceeds 8.5 per
1000 sq. ft. of Rentable Area, whereupon Tenant shall pay for such extra costs.
Landlord also reserves the right to separately meter, at Tenant's expense, any
such special equipment and to require Tenant to pay for same directly. Landlord
shall provide routine maintenance, painting, and electrical lighting service for
all public areas and special service areas of the Building, in the manner and to
the extent deemed
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by the Landlord to be standard. The electrical wiring, risers and other
equipment in the Building are not represented by Landlord to be adequate for any
purpose other than general office use including standard office machines of low
electrical consumption. Tenant agrees that it will not make any use of the
electrical equipment of the Building which exceeds the capacity of such
equipment. Failure by Landlord to any extent to furnish these defined services,
or any cessation thereof, shall not render Landlord liable in any respect for
damages to either person or property, nor shall such events be construed an
eviction of Tenant nor work an abatement of rent, nor relieve Tenant from
fulfillment of any term, condition, covenant or agreement hereof. Should any of
the Building equipment or machinery break down, or for any cause or reason cease
to function properly, Landlord shall use reasonable diligence to repair the same
promptly, but Tenant shall have no claim for rebate of rent or for any damages
on account of any interruption in service occasioned thereby or resulting
therefrom. Any services furnished for the use thereof by Tenant other than
during the normal business hours shall be billed to and paid by Tenant.
LANDLORD'S LIEN
19. INTENTIONALLY OMITTED
EXEMPTIONS AND ATTORNEY'S FEE
20. As to and against the payment of rent and any other monies which shall
accrue to Landlord under the terms of this Lease, Tenant hereby expressly waives
all exemptions as to personal property allowed Tenant under the constitution and
laws of the State of Alabama, or any other state, and agrees to pay all costs of
collecting the same, including a reasonable attorney's fee. In the event of the
breach by either party of one or more of the terms and conditions of this Lease,
the other party shall be and is hereby authorized to do any and all things
deemed by non-defaulting party or such attorneys necessary to protect, conserve
or promote the interest of the non-defaulting party under this Lease, including
the institution of legal proceedings, against the defaulting party, of any
nature, and including suit for damages for any such breach, and the defaulting
party agrees in that event to pay a reasonable attorney's fee to said attorneys
for such services. Notwithstanding anything to the contrary stated in the Lease,
in the event either party resorts to legal action in order to enforce any rights
under this Lease, then the non-prevailing party shall be required to pay all
legal costs and expenses (including court costs and reasonable attorney's fees)
incurred by the prevailing party.
CURING TENANT'S DEFAULT
21. If Tenant shall default in the performance of any of Tenant's obligations
under this Lease, Landlord, without thereby waiving such default, may (but shall
not be obligated to) perform the same for the account and at the expense of
Tenant, without notice in a case of emergency, and in any other case if such
default continues after the expiration of ten (10) days from the date Landlord
gives Tenant notice of intention so to perform. All costs, expenses and
disbursements of every kind and nature, whatsoever, incurred by Landlord in
connection with any such performance by it for the account of Tenant, including
any expenses incurred for any property, material, labor or services provided,
furnished or rendered, by Landlord or at its instance to Tenant, together with
interest thereon at the Default Rate, shall be paid by Tenant to Landlord within
ten (10) days after Landlord's rendition of each ▇▇▇▇ therefor to Tenant.
SUBORDINATION
22. Notwithstanding anything to the contrary contained in this Lease, Landlord
and Tenant understand and agree that the Building is part of an integrated
mixed-use real estate development which, in addition to the Building, includes a
retail shopping center, hotel and other related uses. Tenant acknowledges that
Landlord is only one of several property owners (herein "adjacent land owners"),
all of which comprise the Riverchase Galleria Development, herein
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referred to as the "Complex". Landlord and the adjacent land owners have entered
into, or will enter into, reciprocal agreements, herein referred to as
"Reciprocal Agreements" for the coordinated use and operation of the Complex,
including agreements concerning access, parking, utility easements and
maintenance and operation of the common areas. This Lease shall be subject and
subordinate to the terms and conditions contained in said Reciprocal Agreements,
as same may, from time to time, be amended. The Tenant agrees that this Lease is
and shall remain subject to and subordinate to all present and future first
mortgages affecting the Building, and/or the Complex and likewise subordinate to
any other mortgage affecting the Building and/or the Complex as to which
Landlord may elect and the Tenant shall promptly execute and deliver to the
Landlord such certificate or certificates in writing as the Landlord may
reasonably request, showing the subordination of this Lease to such mortgage or
mortgages and in default of the Tenant's so doing, Landlord shall be and is
hereby authorized and empowered to execute such certificate in the name of and
as the act and deed of the Tenant, this authority being hereby declared to be
coupled with an interest and to be irrevocable; provided as a condition of
Tenant's execution of a subordination document, so long as Tenant shall
faithfully discharge the obligations on its part to be kept and performed
hereunder, and under all its other leases and subleases in the Galleria Tower,
its tenancy shall not be disturbed and such subordination document shall contain
a non-disturbance agreement to such effect.
NAME OF BUILDING
23. The Building shall be known as Galleria Tower. Landlord, however, reserves
the right, to be exercised at Landlord's sole discretion, to change said name
from time to time; provided, however, so long as Tenant is bound by this Lease,
Landlord shall not name the Building after a competitor of Tenant. Tenant agrees
not to refer to the Building by any other name other than as the aforesaid or as
the same may be changed by Landlord or by its street address, which shall be:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
RULES AND REGULATIONS
24. Tenant, its agents, employees, invitees, licensees, customers, clients,
family members and guests shall at all times abide by and observe the rules and
regulations attached hereto as Exhibit "C". Nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce
such rules and regulations, or the terms, conditions, or covenants contained in
any other lease, as against any other tenant, and Landlord shall not be liable
to Tenant for violation of the same by any other Tenant, its employees, agents,
business invitees, licensees, customers, clients, family members or guests.
Landlord reserves the right to change, adopt and promulgate, from time-to-time
on five (5) days prior notice, other reasonable rules and regulations and to
amend and supplement the same, all of which shall be complied with by Tenant. If
there is an inconsistency between this Lease and the rules and regulations as
set forth in Exhibit "C", this Lease shall govern.
QUIET ENJOYMENT
25. Upon payment by Tenant of all items of rent, Additional Rent, and any and
all other sums to be paid by Tenant to Landlord hereunder and the observance and
performance of all the covenants, terms and conditions to be observed and
performed by Tenant, Tenant shall have the peaceful and quiet use of the Demised
Premises, and all rights, servitudes, and privileges belonging, or in any wise
appertaining thereto or granted hereby, for the term of this Lease, without
hindrance or interruption by Landlord, or any other person or persons lawfully
claiming by, through or under Landlord, subject nevertheless to the terms and
conditions of this Lease, and to any mortgage, deed of trust, ground lease or
agreement to which this Lease, and/or Landlord's interest in the Demised
Premises and the Building of which they are a part, is subordinate. Landlord
warrants that it has full right and authority to enter into this Lease for the
full term hereof.
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NO REPRESENTATIONS BY LANDLORD
26. Neither Landlord nor any agent or employee of Landlord has made any
representations or promises, with respect to the Demised Premises or the
Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are acquired by Tenant except as herein set forth. The
Tenant, by taking possession of the Demised Premises, shall accept the same "as
is", and such taking of possession shall be conclusive evidence that the
Demised Premises and the Building are in good and satisfactory condition at the
time of such taking of possession.
ENTIRE AGREEMENT
27. This Lease, together with the Exhibit(s) attached hereto, contains the
entire and only agreement between the parties and no oral statements or
representations or prior written matter not contained or referred to in this
instrument shall have any force or effect. This Lease shall not be modified in
any way except by a writing subscribed by both parties. The failure of the
Landlord or Tenant to insist upon strict performance by the other of any of the
covenants or conditions of this Lease in any one or more instances shall not be
construed as a waiver or relinquishment for the future of any such covenants or
conditions, but the same shall be and remain in full force and effect. No waiver
of any provision of this Lease shall be deemed to have been made, unless it be
in writing and signed by the party to be charged therewith.
NO PARTNERSHIP
28. Nothing contained in this Lease shall be deemed or construed to create a
partnership or joint venture of or between Landlord and Tenant, or create any
other relationship between the parties hereto other than that of Landlord and
Tenant.
CANCELLATION
29. INTENTIONALLY OMITTED
NOTICES
30. All notices required or desired to be given hereunder by either party to the
other shall be given by hand delivery, overnight courier or certified or
registered mail, first class, postage prepaid, return receipt requested. Notice
to the respective parties shall be addressed as follows:
If to Landlord: Riverchase Tower, Ltd.
c/o ▇▇▇ ▇▇▇▇▇▇ & Associates, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Contract and Lease Administration
If to Tenant: MEDPARTNERS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Department
Either party may, by like written notice, designate a new address to which
such notices shall be directed. Notice shall be deemed given five (5) days after
it is mailed.
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ESTOPPEL CERTIFICATES
31. Tenant agrees, at any time and from time to time, upon not less than fifteen
(15) days prior written notice by Landlord, to execute, acknowledge and deliver
to Landlord a statement in writing stating (i) that this Lease is unmodified and
in full force and effect, or if there have been modifications, that this Lease
is in full force and effect as modified, and stating any such modifications;
(ii) that Tenant has accepted possession of the Demised Premises, and that any
improvements required by the terms of this Lease to be made by the Landlord have
been completed to the satisfaction of the Tenant; (iii) that no rent under this
Lease has been paid more than thirty (30) days in advance of its due date; (iv)
the address to which notices to Tenant should be sent; (v) that Tenant, as of
the date of any such certification, has no charge, lien or claim of set off
under this Lease, or otherwise, against rents or other charges due or to become
due hereunder; and (vi) whether or not, to the best of Tenant's knowledge,
Landlord is, or is not, in default of the performance of any covenant, agreement
or condition contained in this Lease, and, if so, specifying each such default
of which Tenant may have knowledge. Any such statement delivered pursuant hereto
may be relied upon by any owner of the Building, any prospective purchaser of
the Building, any mortgagee or prospective mortgagee of the Building or of
Landlord's interest, or any prospective assignee of any such mortgagee.
BINDING EFFECT OF LEASE
32. It is agreed that all rights, remedies and liabilities herein given to or
imposed upon either of the parties hereto, shall extend to their respective
heirs, executors, administrators, and, except as otherwise expressly provided in
this Lease, their successors and assigns. Landlord may freely and fully assign
its interest hereunder. The term "Landlord" shall mean only the owner at the
time in question of the Building or of a lease of the Building, so that in the
event of any transfer or transfers of title to the Building or of Landlord's
interest in a lease of the Building, the transferor shall be and hereby is
relieved of all obligations of Landlord under this Lease accruing after such
transfer, and it shall be deemed, without further agreement, that such
transferee has assumed and agreed to perform and observe all obligations of
Landlord herein during the period it is the holder of Landlord's interest under
this Lease.
HOLDING OVER
33. If the Tenant withholds from the Landlord possession of the Demised
Premises at the termination of this Lease, whether by lapse of time or by
election of the Landlord, the damages for which the Tenant shall be liable for
such detention shall be and are hereby equal to one and one-half times the rate
of rent stipulated herein, the same to be due for the entire period of such
holding over or detention, plus any and all other consequential and actual
damages.
SIGNS AND ADVERTISING
34. No sign, advertising or notice shall be inscribed, fixed or displayed on any
part of the outside or the inside of the Building, except as approved in writing
in advance by Landlord, and then only in such place, number, size, color and
style as approved by Landlord, and if any such sign, advertisement or notice is
improperly exhibited, Landlord shall have the right to remove the same, and
Tenant shall be liable for any and all expenses incurred by Landlord by said
removal and shall pay for same on demand. Any such permitted use, including
directories and nameplates, shall be at the sole cost and expense of the Tenant,
except as otherwise provided. Landlord shall have the right to prohibit any
advertisement of Tenant which in its opinion tends to impair the reputation of
the Building or its desirability as a high-quality office building and, upon
written notice from Landlord, Tenant shall immediately refrain from and
discontinue any such advertisement. Landlord shall have the right to install
signs on the exterior or interior of the Building. Notwithstanding anything
herein to the contrary, during the term of this Lease and any renewal terms,
Landlord shall provide Tenant signage located in the Building lobby on the
tenant directory and Tenant shall be permitted to install door plaques
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located at the entrances to Tenant's office areas on each floor provided that
such plaques, and the manner of affixing the same to the door or wall, shall be
subject to Landlord's reasonable approval.
PARKING AREAS
35. Landlord agrees to provide parking areas for the use of Tenant in common
with others using the Building. Landlord reserves the right to promulgate rules
and regulations relating to the use of such parking area, including such
limitations as may, in the opinion and at the discretion of Landlord, be
necessary and desirable. Tenant and its employees are expressly prohibited from
parking in any portion of the parking area designated or marked for visitor
parking only, if any, or other specially designated parking spaces. In the event
that the Tenant, or any of its employees, shall park their cars in any such
specially designated portion of the parking area, then Landlord shall have the
right, at Landlord's option, to charge Tenant a fee for such improperly parked
car, and/or to have any such improperly parked car towed at Tenant's expense.
Tenant recognizes that Landlord has available 4.0 parking spaces for each 1000
square feet of Rentable Area in the Building. Notwithstanding anything herein
stated to the contrary, Landlord agrees to designate a total of 22 reserved car
spaces (including 7 presently designated car spaces) for use by Tenant; provided
however, nothing herein shall require Landlord to monitor such spaces or enforce
the unauthorized use of such spaces. The 15 additional car spaces shall be
located consecutive to the existing spaces to the west.
UNAVOIDABLE DELAYS
36. The provisions of this section shall be applicable if there shall occur,
during the Lease Term, or prior to the commencement thereof, any strikes,
lockouts or labor disputes, inability to obtain labor or materials or reasonable
substitutes therefor, or acts of God, governmental restrictions, regulations or
controls, enemy or hostile governmental action, civil commotion, fire or other
casualty or other conditions similar or dissimilar to those enumerated in this
section beyond the reasonable control of the party (but not including an
inability to obtain financing) obligated to perform and not due to the fault or
negligence of the party obligated to perform (herein called "Unavoidable
Delays"). If Landlord or Tenant shall, as a result of any Unavoidable Delays,
fail punctually to perform any obligation on its part to be performed under this
Lease, then such failure shall be excused and not be a breach of this Lease, but
only to the extent occasioned by such event and provided this section shall not
apply to Tenant's obligation to pay rent and other charges hereunder.
ASSIGNMENT AND SUBLETTING
37. (a) Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Demised Premises, whether voluntarily or by
operation of law, or permit the use or occupancy of the Demised Premises by
anyone other than Tenant, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, and such restriction shall be
binding upon any assignee or subtenant to which Landlord has consented. In the
event Tenant desires to sublet the Demised Premises, or any portion thereof, or
assign this Lease, Tenant shall give written notice thereof to Landlord within a
reasonable time prior to the proposed commencement date of such subletting or
assignment, which notice shall set forth the name of the proposed subtenant or
assignee, the relevant terms of any sublease and copies of financial reports and
other relevant financial information of the proposed subtenant or assignee. In
the event of a subletting, Landlord's consent may be predicated, among other
things, upon Landlord becoming entitled to collect and retain all rentals
payable under the sublease; provided however, if the Base Rental and Additional
Rental received by Landlord from such assignee or subtenant is greater than that
due from Tenant for such Rentable Area, Landlord shall reimburse Tenant out of
such excess as received such costs and expenses incurred by Tenant in subletting
or assigning, including but not limited to marketing expenses, brokerage
commissions, tenant improvements, moving expenses and reasonable attorney's
fees. Notwithstanding any permitted
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assignment or subletting, Tenant shall at all times remain directly, primarily
and fully responsible and liable for the payment of the rent herein specified
and for the compliance with all of its obligations under the terms, provisions
and covenants of this Lease.
(b) Notwithstanding anything herein stated to the contrary, Tenant may
assign or sublet the whole or any part of the Demised Premises, without
Landlord's consent, to a parent, subsidiary or other affiliate of Tenant or any
successor by merger or to any entity purchasing substantially all of the assets
of Tenant on condition that: (i) Tenant is not in default hereunder; (ii) Tenant
shall give Landlord prior written notice and a true and correct copy of such
assignment; (iii) the assignee shall expressly assume in writing the obligations
of Tenant; and (iv) Tenant shall not be released from its obligations and
liabilities provided for hereunder by virtue of such assignment.
(c) In lieu of consenting or not consenting, Landlord may (except in those
situations addressed in sub-paragraph (b) above), at its option, (i) in the case
of the proposed assignment or subletting of Tenant's entire Demised Premises,
terminate this Lease, or (ii) in the case of the proposed assignment or
subletting of a portion of the Demised Premises, terminate this Lease as to that
portion of the Demised Premises which Tenant has proposed to assign or sublet.
In the event Landlord elects to terminate this Lease pursuant to clause (ii) of
this Section, Tenant's obligations as to Base Rental and Additional Rental shall
be reduced in the same proportion that the Area of the portion of the Demised
Premises taken by the proposed assignee or subtenant bears to the total Rentable
Area of the Demised Premises; provided however, if the Base Rental and
Additional Rental received by Landlord from such assignee or subtenant is
greater than that due from Tenant for such Rentable Area, Landlord shall
reimburse Tenant out of such excess as received such costs and expenses incurred
by Tenant in subletting or assigning, including but not limited to marketing
expenses, brokerage commissions, tenant improvements, moving expenses and
reasonable attorney's fees.
MISCELLANEOUS
38. (a) Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
(b) The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease or any
provision hereof.
(c) If any clause, phrase, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
enforceable under applicable law, such event shall not affect, impair or render
invalid or unenforceable the remainder of this Lease nor any other clause,
phrase, provision or portion thereof.
(d) Each of the parties (i) represents and warrants to the other that it
has not dealt with any broker or finder in connection with this Lease, except as
may be otherwise described herein; and (ii) indemnifies and holds the other
harmless from any and all losses, liability, cost or expenses (including
attorney's fees) incurred as a result of a breach of the foregoing warranty.
SUBSTITUTION OF PREMISES
39. INTENTIONALLY OMITTED
CHANGES TO BUILDING
40. The Landlord reserves the right at any time to make changes or additions
to, and to erect additional stories on, the Building, to erect temporary
scaffolds and other aids to
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construction on the roof and exterior walls of the Building, to install,
maintain, use, repair and replace pipes, ducts, conduits and wires leading
through the Demised Premises, provided, however, any such action shall be done
in such a manner as not to unreasonably interrupt the conduct of Tenant's
business and the Landlord shall at all times provide reasonable customer and
client access to the Demised Premises. This Lease does not grant any right to
light or air over or about the Demised Premises or Building. In this regard,
Landlord shall have the right, in its sole discretion to build such additional
buildings and to change the common areas (as same may be defined from time to
time) and parking facilities, including the right to alter and/or expand
existing structures and buildings.
SALE BY LANDLORD
41. In the event of a sale or conveyance by Landlord of the Building, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, express or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to the responsibility of
the assignee and/or successor in interest of Landlord in and to this Lease.
Tenant agrees to attorn to purchaser or assignee, or to any successor or
assignee of Landlord.
ENTRY BY LANDLORD
42. Landlord reserves and shall at reasonable times have the right to enter
the Demised Premises to inspect the same, to supply janitor service and any
other services to be provided by Landlord to Tenant hereunder, and to submit
said Demised Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, to alter, improve or repair the Demised Premises or any other
portion of the Building, all without abatement of rent, and may for that purpose
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, providing that the business of Tenant
shall be interfered with as little as is reasonably practicable. Tenant agrees
to cooperate with Landlord in providing reasonable access to the Demised
Premises. Tenant hereby waives any claim for damages for injury or inconvenience
to or interference with Tenant's business, any loss of occupancy or quiet
enjoyment of the Demised Premises, and any other loss occasioned thereby. For
each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon and about the Demised
Premises except Tenant's vaults and safes, and Landlord shall have to use any
and all means which Landlord may deem proper to open said doors in an emergency
in order to obtain entry to the Demised Premises, and any entry to the Demised
Premises obtained by Landlord by any of said means, or otherwise, shall not,
under any circumstances, be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Demised Premises, or an eviction of Tenant
from the Demised Premises or any portion thereof.
LANDLORD CONTROLLED AREAS AND OPERATING AGREEMENTS
43. (a) All automobile parking areas, driveways, entrances and exits thereto,
Common Areas, and other facilities furnished by Landlord, including all truck
ways, loading areas, pedestrian walkways and ramps, landscaped areas, stairways,
corridors, and other areas and improvements provided by Landlord for the general
use, in common with others using the Building, of tenants, their officers,
agents, employees, servants, invitees, licensees, visitors, patrons and
customers, shall be at all times subject to the exclusive control and management
of Landlord, and Landlord shall have the right from time-to-time to establish,
modify and enforce rules and regulations with respect to all such facilities and
areas and improvements; to police same; from time-to-time to change the area,
level and location and arrangement of parking areas and other facilities
hereinabove referred to; to restrict parking to tenants, their officers, agents,
invitees, employees, servants, licensees, visitors, patrons and customers; to
close all or any portion of said areas or facilities to such extent as may in
the opinion of Landlord's counsel be legally sufficient to prevent a dedication
thereof or the accrual of any rights to any person or the public
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therein; to close temporarily all or any portion of the public areas, Common
Areas or facilities, to discourage non-tenant parking; and to do and perform
such other acts in and to said areas and improvements as, in the sole judgement
of Landlord, the Landlord shall determine to be advisable with a view to the
improvement of the convenience and use thereof by others using the Building,
tenants, their officers, agents, employees, servants, invitees, visitors,
patrons, licensees and customers. Landlord will operate and maintain the Common
Areas and other such facilities referred to above in such reasonable manner as
Landlord shall determine from time-to-time. Without limiting the scope of such
discretion, Landlord shall have the full right and authority to designate a
manager of the parking facilities and/or Common Areas and other facilities who
shall have full authority to make and enforce rules and regulations regarding
the use of the same or to employ all personnel and to make and enforce all rules
and regulations regarding the use of the same or to employ all personnel and to
make and enforce all rules and regulations pertaining to and necessary for the
proper operation and maintenance of the parking areas and/or Common Areas and
other facilities. Reference in this paragraph to parking areas and/or facilities
shall in no way be construed as giving Tenant hereunder any rights and/or
privileges in connection with such parking areas and/or facilities.
(b) Landlord has entered into operating agreements, easement agreements,
reciprocal easement agreements, construction agreements and/or other similar
agreements, all of which are hereinafter referred to as Operating Agreements,
which set forth the respective rights, duties and obligations of Landlord and
the owners or occupants of adjacent premises, including, but not limited to
department stores and the Wynfrey Hotel, insofar as the overall operation of the
Riverchase Galleria is concerned, including but not limited to, access, parking,
utility easements and other easements, maintenance of the common areas, and
operation of the common areas. The Landlord shall not be liable for any failure
on the part of the owner or the occupant of any of the adjacent premises, its
successors, assigns or subtenants for their failure to abide by or to comply
with the terms and conditions contained in said Operating Agreements as the same
may be from time to time amended. This Lease shall be subject and subordinate to
the terms and conditions contained in said Operating Agreements as the same may
be from time to time amended. It is understood and agreed that the owner or
occupant of said department stores, the Wynfrey Hotel and the other tenants in
the Riverchase Galleria have reciprocal parking privileges for all parking in
the Riverchase Galleria.
LIMITATION OF LIABILITY
44. Tenant shall look only to Landlord's estate and property in the Building
and on the land on which it is located for satisfaction of Tenant's remedies for
the collection of a judgement (or other judicial process) requiring the payment
of money by Landlord or its successors or assigns, in the event of any default
by Landlord hereunder (subject to the prior rights of the holder of the mortgage
or deed to secure debt on any part of the Building) and no other property or
assets of Landlord or its partners or principals, disclosed or undisclosed,
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under and with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Demised Premises.
RENEWAL OPTION
45. (a) Renewals: Provided Tenant is not in default, Tenant shall have the
option to renew this Lease for three (3) additional sixty (60) month renewal
periods by giving Landlord prior written notice at least twenty-four (24) months
prior to the expiration of the Term of this Lease, or if applicable, twenty-four
(24) months prior to the expiration of the each respective Renewal Period. In
the event Tenant elects to exercise a renewal option of this Lease, all terms,
covenants and conditions of this Lease shall remain unchanged except that the
Annual Base Rental shall be adjusted to the respective amount as set forth in
Section 45(b) hereof. In the event Tenant is in default on the date the renewal
term is to commence, the applicable renewal term shall not commence and this
Lease shall be deemed to have expired at midnight on the last day of the Initial
Term or, if applicable, the First Renewal Term.
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(b) RENTAL FOR RENEWAL TERMS; DETERMINATION. The Basic Rental during the
First, Second and Third Renewal Terms shall be an amount equal to the prevailing
fair market rental value of the Demised Premises as determined by reference to
comparable space in the Building, and in comparable buildings, for comparable
tenants, in Hoover and the corridor between I-459, U.S. Highway 280 and the
Riverchase Galleria ("Market Area"), at the time of commencement of the
applicable renewal period, as determined by agreement between Landlord and
Tenant.
In the event Tenant exercises any option contained in Section 45 of this
Lease, Landlord shall, within thirty (30) days after receipt of Tenant's renewal
notice, send Tenant Landlord's written evaluation for the prevailing fair market
rental value of the Demised Premises for comparable space in the Building, and
in comparable buildings, for comparable tenants ("Landlord's Rent") for the five
(5) year period covered by the exercise of said option. Within ten (10) days
thereafter, Tenant shall send to Landlord a notice stating either (i:) Tenant's
agreement with Landlord's Rent, in which event said amount shall be the Basic
rental rate payable by Tenant for the renewal period in issue or (ii) Tenant's
evaluation of said prevailing market rental value ("Tenant's Rent"). If Landlord
and Tenant are unable to agree upon said prevailing fair market rental value
within twenty (20) days from the date of sending the notice described in (ii)
above, the matter shall be determined by arbitration pursuant to provision
below. Landlord and Tenant agree that the arbitrators' determination of the
prevailing fair market value of the Demised Premises for comparable space in the
Building, and in comparable buildings, for comparable tenants in the Market Area
for the renewal period in issue.
(c) ADJUSTMENTS TO RENTAL. If, for any reason, the First, Second or Third
Renewal Term shall commence prior to the determination of the Rental for such
term, Tenant, in the meantime, shall pay the monthly installments of Base Rental
(the "Prior Rent") in effect under this Lease on the last day of the term being
renewed. If the Base Rental for such renewal term thereafter shall be determined
to be greater than the Prior Rent, Tenant, immediately following such
determination, shall pay to Landlord the difference between the Prior Rent and
that which should have been paid on the basis of such determination.
(d) ARBITRATION. Disputes between Landlord and Tenant with respect to the
prevailing fair market rental value of the Demised Premises as set forth in the
Lease only shall be determined by arbitration as provided herein. No other
provision or issue in the Lease shall be subject to or determined by the
provisions of this Section 45. Landlord and Tenant shall each appoint a person
as arbitrator who is a recognized authority on commercial office leasing in the
Market Area. Such appointment shall be signified in writing by each party to the
other, and the arbitrators so appointed, in the event of their failure to agree
in thirty (30) days upon the matter so submitted, shall appoint a third
arbitrator, who shall be a person of recognized authority on commercial office
leasing in the Market Area. If Landlord and Tenant shall fail to so appoint an
arbitrator for a period of ten (10) days after written notice from the other
party to make such appointment, then the arbitrator appointed by the other party
shall appoint a second arbitrator and the two so appointed shall, in the event
of their failure to agree upon any decision within five (5) days thereafter,
appoint a third arbitrator. The arbitrators, after being duly sworn to perform
their duties with impartiality and fidelity, shall proceed to determine the
question submitted. The decision of the arbitrators shall be rendered within ten
(10) days after their appointment, and such decision shall be in writing and in
duplicate, one counterpart thereof to be delivered to each of the parties
hereto. The decision of the arbitrators shall be binding, final and conclusive
upon the parties. The fees of the arbitrators and the expenses incident to the
proceedings shall be born equally between Landlord and Tenant. The fees of
respective counsel engaged by the parties, and the fees of expert witnesses and
other witnesses called by the parties, shall be paid by the respective party
engaging such counsel or calling or engaging such witnesses.
RIGHT OF FIRST REFUSAL
46. Landlord and Tenant understand and agree that during the Term of the
Agreement, provided Tenant is not in default under this Agreement, Tenant shall
have the "Right of First Refusal" to lease additional premises of Rentable Area
in the Galleria Tower (herein referred to
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as the "ROFR Premises"). The terms of said Right of First Refusal are as
follows:
In the event Landlord decides to lease all or a portion of the ROFR
Premises to a third party, Landlord shall not enter into a lease with such third
party without first offering said ROFR Premises or the portion of the ROFR
Premises that Landlord wishes to lease to such third party to Tenant, on the
same terms and conditions as offered by such third party. Said notice shall be
sent by Certified Mail, Return Receipt Requested, hand delivered or national
overnight courier. Tenant shall have a period of three (3) business days from
the date of the receipt of the offer to lease to accept or reject such offer.
Failure to accept such offer with the said three (3) business day period shall
be deemed Tenant's rejection of such offer. If Tenant rejects said offer or does
not reply within the said three (3) business day period, Landlord may then lease
the ROFR Premises or portion thereof that is the subject of said offer to such
third party.
APPROVAL OF MORTGAGEE
47. This Agreement, and Landlord's obligations hereunder, shall be subject to
the prior approval of Landlord's mortgagee. This Agreement shall not be binding
until and unless so approved.
NOTICE TO MORTGAGEE
48. Except as otherwise provided herein, Tenant agrees that it will not
exercise any right herein arising out of Landlord's breach of any agreement
herein contained or institute any judicial or other proceeding as a consequence
thereof, except after giving notice to any Mortgagee or Trustee of the Demised
Premises the name and address of which has been furnished in writing to Tenant
and affording such Mortgagee or Trustee opportunity to cure such breach within
the same time period provided Landlord herein.
Tenant agrees that Tenant will not terminate the Lease, or make any
expenditures hereunder as a result of Landlord's failure to perform obligations
imposed upon it by the Lease Agreement until Tenant has given Landlord's
Mortgagee or Trustee or the assigns or successors in interest of such Mortgagee
or Trustee: (1) notice of Landlord's failure to perform; and (2) the same period
as Landlord, with allowance for events beyond Mortgagee's or Trustee's control,
to undertake performance of such obligations by Mortgagee or Trustee.
BUILDING SIGN
49. Tenant shall be permitted to install two exterior building signs in the
location and to the specifications shown of Exhibit "E" attached hereto. Tenant
shall be solely responsible for the installation and maintenance of such signs.
Such signs shall, at all times, be maintained in good working order, condition
and repair. Further, Tenant shall repair any damage (including discoloration)
caused to the Building and related in any way to such signs and the maintenance
thereof. At the end of the term of this Lease, Tenant shall remove such signs
and shall repair any damage as a result thereof. Tenant does hereby indemnify
and hold Landlord harmless from any and against all expenses (including
reasonable attorneys fees) claims, actions and demands of any nature whatsoever
arising from personal injury or death to any person or from losses of or damages
to any property which in any way relate to such signs, and/or the installation,
maintenance and/or removal of the same.
During the term of the Lease and any renewal terms, Tenant shall, at its
cost, have the right to install monument signage at the Building in a location
mutually acceptable to Landlord and Tenant. The monument signage shall be
subject to Landlord's reasonable sign criteria and in accordance with
requirements of the Architectural Review Committee of the Riverchase Business
Association and City codes.
CHECK IN STATION
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50. Landlord agrees that Tenant may construct a check-in station in the third
floor lobby of the building. The size, location, material and all other plans
and specifications for such station shall be subject to Landlord's approval. At
the end of the term of this Lease, Tenant shall, upon request of Landlord,
remove such station, repair any damage resulting from such removal and restore
the area to the same condition as existed immediately prior to the construction
of the station. Notwithstanding the above, such station shall not be used as a
waiting area for Tenant's invitees but shall be for the sole purpose of having
such invitees check in and obtain information and directions.
DOCUMENTS
51. This Lease consists of this Agreement, along with Exhibits "A" through E,
attached hereto and made a part hereof.
Exhibit A - Leasing/Floor Plans
Exhibit B - None
Exhibit C - Rules & Regulations
Exhibit D - Additional Hours Charge
Exhibit E - Sign Specifications
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first above written.
LANDLORD: RIVERCHASE TOWER, LTD.
BY ITS GENERAL PARTNER
GALLERIA TOWER, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Its President
TENANT: MEDPARTNERS, INC.
By: /s/ [ILLEGIBLE]
-----------------------
Its: EVP and Corp. Sec.
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EXHIBIT "B"
TENANT WORK
ALL WORK TO BE PERFORMED BY TENANT ON THE DEMISED PREMISES MUST BE APPROVED IN
ADVANCE BY LANDLORD, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED.
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EXHIBIT "C"
RULES AND REGULATIONS
1. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by Tenant or used for any purpose other than for ingress to and
egress from the Demised Premises. The halls, passages, entrances,
elevators, stairways, and balconies are not for the use of the general
public, and Landlord shall in all cases retain the right to control and
prevent access thereto of all persons whose presence in the judgement of
Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided, that nothing herein
contained shall be construed to prevent such access to persons with whom
Tenant normally deals in the ordinary course of its business unless such
persons are engaged in illegal activities. Tenant and its employees shall
not go upon the roof of the Building without the written consent of the
Landlord.
2. The sashes, sash doors, windows, glass lights, and any lights or skylights
that reflect or admit light into the halls or other Common Areas of the
Buildings shall not be covered or obstructed. The toilet rooms, water and
wash closets and other water apparatus shall not be used for any purpose
other than that for which they are constructed, and no foreign substance
of any kind whatsoever shall be thrown therein, and the expenses of any
breakage, stoppage or damage, resulting from the violation of this rule
shall be borne by the Tenant who, or whose clerk, agents, employees,
servants, or visitors, shall have caused it.
3. Use of Building standard blinds shall be required on all windows in the
Demised Premises. Any curtains used by Tenant must be placed on the office
side of the blinds. If Landlord, by notice in writing to Tenant, shall
object to any curtain, blind, shade or screen attached to, or hung in, or
used in connection with, any window or door of the Demised Premises, such
use of such curtain, blind, shade or screen shall be discontinued
forthwith by Tenant. No awnings shall be permitted on any part of the
Demised Premises.
4. No safes or other objects heavier than the lift capacity of the freight
elevators of the Building shall be brought into or installed on the
Demised Premises. Tenant shall not place a load upon any floor of the
Demised Premises which exceeds the load per square foot which such floor
was designed to carry and which is allowed by law. The moving of safes
shall occur only between such hours as may be designated by, and only upon
previous notice to, the manager of the Building, and the persons employed
to move safes in or out of the Building must be acceptable to the
Landlord. No freight, furniture or bulky matter of any description shall
be received into the Building or carried into the elevators except during
hours and in a manner approved by Landlord.
5. Tenant shall not use, keep, or permit to be used or kept any foul or
noxious gas or substance in the Demised Premises, or permit or suffer the
Demised Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of
noise, odors, and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any animals or birds
(except Seeing Eye Dogs) be brought into or kept in or about the Building.
Tenant shall not place or install any antennae or aerials or similar
devices outside of the Demised Premises.
6. Tenant shall not use or keep in the Building any inflammable substances or
chemicals such as kerosene, gasoline, naphtha and benzine (except cleaning
fluids in small quantities and when in containers approved by the Board of
Fire Underwriters), or explosives or any other articles of intrinsically
dangerous nature, or use any method of heating other than that supplied by
Landlord.
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7. If Tenant desires telephone or telegraph connections or alarm systems,
Landlord will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made
without specific directions and approvals from Landlord.
8. Tenant, upon the termination of the tenancy, shall deliver to the Landlord
all the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of
loss of any keys so furnished shall pay the Landlord therefor.
9. Tenant shall not put down any floor covering in the Demised Premises
without the Landlord's prior approval of the manner and method of applying
such floor covering.
10. On Sundays and legal holidays, and on other days between the hours of 6
p.m. and 8 a.m., access to the Building, and/or to the halls, corridors,
elevators or stairways in the Building, and/or to the Demised Premises may
be refused unless the person seeking access is known to the watchmen of
the Building in charge and has a pass or is properly identified. Landlord
shall in no case be liable for damages for the admission to or exclusion
from the Building of any person whom the Landlord has the right to exclude
under Rule 1 above. In case of invasion, mob, riot, public excitement, or
other commotion, Landlord reserves the right to prevent access to the
Building during the continuance of the same by closing the doors or
otherwise, for the safety of the tenants or Landlord and protection of
property in the Building.
11. Tenant assumes full responsibility for protecting its Demised Premises
from theft, robbery and pilferage which includes keeping doors locked and
windows and other means of entry to the Demised Premises closed.
12. Tenant shall not alter any lock or install a new or additional lock or any
bolt on any door of the Demised Premises without prior written consent of
Landlord. If Landlord shall give its consent, Tenant shall in each case
furnish Landlord with a key for any such lock.
13. In advertising or other publicity, without Landlord's prior written
consent, Tenant shall not use the name of the Building except as the
address of its business and shall not use pictures of the Building.
14. Canvassing, soliciting and peddling in the Building or parking facilities
is prohibited.
15. Tenant shall not waste electricity, water or air conditioning and agrees
to cooperate fully with Landlord to assure the most effective operation of
the Building's heating and air conditioning, and shall not allow the
adjustment (except by Landlord's authorized building personnel) of any
controls other than room thermostats installed for Tenant's use. Tenant
shall keep corridor doors closed and shall not open any windows except
that if the air circulation shall not be in operation, windows which are
operable may be opened with Landlord's consent.
16. Tenant shall not do any cooking in the Demised Premises.
17. Any wallpaper or vinyl fabric materials which Tenant may install on
painted walls shall be applied with a strippable adhesive. The use of
non-strippable adhesives will cause damage to the walls when materials are
removed, and repairs made necessary thereby shall be made by Landlord at
Tenant's expense.
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18. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service to Tenant, to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in
the Building including installations of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment or
any other physical portion of the Building.
19. Movement in or out of the Building of furniture, office equipment, or
other bulky materials, or movement through the Building entrances or lobby
shall be restricted to hours designated by Landlord. All such movements,
shall be under supervision of Landlord and in the manner agreed between
Tenant and Landlord by prearrangement before performance. Tenant shall
assume all risk as to damage to articles moved and injury to persons or
public engaged or not engaged in such movement, including equipment,
property, and personnel of Landlord if damaged or injured as a result of
acts in connection with carrying out this service for Tenant. Landlord
shall not be liable for acts of any person engaged in, or any damage or
loss to any of said property or persons resulting from any act in
connection with such service performed by Tenant and Tenant hereby agrees
to indemnify and hold harmless Landlord from and against any such damage,
injury, or loss, including attorney's fees.
20. No portion of the Demised Premises or any other part of the Building shall
at any time be used or occupied as sleeping or lodging quarters.
21. Landlord will not be responsible for lost or stolen personal property,
equipment, money, or jewelry from the Demised Premises or any public rooms
regardless of whether such loss when such area is locked against entry or
not.
22. Tenant and its employees, agents, and invitees shall observe and comply
with the driving and parking signs and markers on the property surrounding
the Building. Tenant and Tenant's employees shall comply with any and all
additional rules and regulations concerning the parking areas including
the right of Landlord to require Tenant and its employees to display
parking stickers on all cars.
23. The directories of the Building shall be used exclusively for the display
of the name and location of the tenants only and will be provided at the
expense of Landlord. Any additional names requested by Tenant to be
displayed in the directories must be approved by Landlord and, if
approved, will be provided at the sole expense of Tenant.
24. No vending machines of any description for use by anyone other than
Tenant's employees, agents and invitees shall be installed, maintained or
operated in any part of the Building without the written consent of
Landlord.
TENANT: /s/ [ILLEGIBLE] LANDLORD: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------- -----------------------
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EXHIBIT D
(ATTACHED TO AND MADE A PART OF THE LEASE DATED , 19 )
BY AND BETWEEN
RIVERCHASE TOWER, LTD.
(LANDLORD)
AND
MEDPARTNERS, INC.
----------------------------
(TENANT)
UTILITY SERVICES
I. General
(1) Utility Services. Landlord shall cause the necessary mains, conduits
and other facilities to be provided and maintained to supply
conditioned water/air (where applicable), ----------------------------
------------------------, and electricity to the Demised Premises ----
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
b. Electricity
c. Heating and Cooling. Landlord shall, at its' own cost and expense,
construct, supply and maintain a Central Plant designed to furnish
a cooling medium to the Demised Premises. Tenant shall accept and
use the cooling medium furnished by the Landlord to the Demised
Premises.
(2) Utility and Service Charges. Tenant shall purchase and use such
utility and related services as are tendered by Landlord. The
"Utilities and Services Charge", as hereinafter defined, shall be
deemed additional rent under this Lease. Said Charge (including all
governmental sales taxes) as determined herein, and such adjustments
to said "Utilities and Service Charge" determined in accordance
herewith shall be due and payable without offset. Tenant shall pay
when due and without offset, the "Utilities and Services Charge", as
the same may be adjusted as provided for herein from time to time and
the same is hereby declared to be additional rent hereunder. The
failure, neglect or refusal to pay the same when due shall afford the
Landlord with all of the rights and privileges set forth in this Lease
for the nonpayment of rent and also those rights and privileges
afforded similarly situated entities which supply such services.
II. Method for Determining the "Utilities and Services Charge"
The term "Utility Cost", wherever used in this Section, shall mean the
cost to the Landlord of the utility, including all charges made to Landlord
by the public utility and/or all governmental authorities which furnish or
control said utility service to Landlord.
Tenant shall pay the Landlord in accordance with the provisions hereof,
computed as herein set forth, an amount determined in accordance with the
provisions hereof for such services supplied to the Demised Premises by
Landlord. Such charges to be designated as the "Utilities and Service
Charge." The Utilities and Service Charge shall be the sum of the following
charges:
A: Electricity Charge
B: Current Cooling Charge
1-D
40
A. Electricity Charge. Tenant shall use electricity furnished by Landlord as
Tenant's sole source of electrical energy, and the Electricity Charge, as
hereinafter defined, shall be additional rent under this Lease. Landlord's
designated engineering consultant shall, from time to time, conduct a
survey of the Demised Premises in order to establish an estimate of the
electrical energy which will be used by the electrical installations in the
Demised Premises. This energy estimate shall be based upon data obtained
from Tenant's design plans and specifications and verified by an electrical
energy survey of the Demised Premises following completion of Tenant's
Work. The energy estimate shall consider Tenant's hours of operation and
the total electrical usage based on connected electrical loads consisting
of lighting, air conditioning equipment and other miscellaneous electric
equipment installed and controlled by Tenant. Landlord's engineer
consultant shall use the aforesaid survey estimate to establish Tenant's
Electricity Charge. In connection with each survey, Tenant shall furnish
Landlord, upon request, with the information required by Landlord to
estimate Tenant's electrical loads. Tenant shall pay Landlord, monthly in
advance, a sum equal to Tenant's Monthly Electricity Charge which shall be
based upon the aforesaid survey. The Electricity Charge may be revised by
Landlord from time to time to reflect an increase or decrease in the
following: taxes, rates charged to similar consumers by the electric
utility company, from which Landlord purchases its electricity, Tenant's
connected load, any adjustment required as a result of actual operating
experience, and seasonal requirements. In no event shall payment of the
Electricity Charge ▇▇▇▇▇, nor shall Tenant have any right to offset in any
manner against the payment of such Electricity Charge.
B. Cooling Charges. Tenant shall pay Landlord, as additional rent, for chilled
water and use of same for air conditioning purposes, the Current Cooling
Charge which consists of the "Minimum Cooling Charge" of $1.85 per square
foot of Floor Area per annum, adjusted in the manner hereinafter provided.
The Current Cooling Charge shall be adjusted from time to time, but no less
often than (i) annually, (ii) each time the Landlord's utility costs are
adjusted, and/or (iii) each time an energy survey of the Demised Premises
by Landlord's consultant indicates that Tenant's use of chilled water has
changed in accordance with subsection B.1, as hereinafter set forth. The
annual Current Cooling Charge shall be calculated by multiplying the annual
"Minimum Cooling Charge" by a series of adjusting multipliers as follows:
"Current Cooling Charge" = Minimum Cooling Charge x M1 x M2 x M3 x M4
Tenant shall pay to Landlord monthly, in advance, a sum equal to one
twelfth (1/12) of the annual Current Cooling Charge. In no event shall
payment of the Current Cooling Charge ▇▇▇▇▇, nor shall Tenant have any
right to offset or counterclaim against payment of such Current Cooling
Charge.
B.1 Capacity Multiplier: M1
The Capacity Multiplier, M1, is an adjusting multiplier to the Minimum
Cooling Charge to account for an installed cooling capacity greater than
the Design Criteria of 36 BTU/Hr-Sq Ft of Floor Area in accordance with
Exhibit C. M1 shall be the greater of 1 or the multiplier derived by
applying the following formula:
M1 = 1 + 0.69 x [(BTU/36) - 1]
The factor "BTU" shall mean BTU/Hr-Sq Ft of Floor Area and shall be the
greater of Tenant's actual installed cooling capacity or the design heat
gain (ASHRAE procedures) as estimated by Landlord's consultant based on one
or more of the following: (i) cooling loads obtained from Tenant's design
plans and specifications, and/or, (ii) cooling loads obtained from an
energy survey of the Demised Premises conducted by Landlord's Consultant.
B.2 Hours Multiplier: M2
The Hours Multiplier, M2, is an adjusting multiplier to the Current Cooling
charge to account for Tenant's use of chilled water during "Extra Hours"
as defined herein. M2 shall be the greater of 1 or the multiplier derived
by applying the following formula:
M2 = 1 + {Extra Hours/Regular Hours}
The term "Extra Hours" shall mean Tenant's hours of chilled water use
during times other than the originally established regular business hours
of the Shopping Center. The term "Regular Hours" shall mean originally
established business hours of the Shopping Center.
B.3 Utility Cost Multiplier: M3
The Utility Cost ▇▇▇▇▇▇▇▇▇▇, ▇▇, is an adjusting multiplier to the Current
Cooling Charge to account for increases or decreases in the cost of
utilities which Landlord must pay for operation of the Central Plant. M3
shall be the greater of 1 or the multiplier derived by applying the
following formula:
M3 = 1 + 0.56 x [(Current Cost/Original Cost) - 1]
The term "Original Cost" shall mean "Utility Cost" based on utility rates
in effect on January 1, 1986. The term "Current Cost" shall mean "Utility
Cost" based on rates in effect on the date selected by Landlord.
2-D
41
B.4 Maintenance Cost Multiplier: M4
The Maintenance Cost Multiplier, M4, is an adjusting multiplier to the Current
Cooling Charge to account for increases or decreases in the Central Plant
operating costs related to maintenance and management personnel. M4 shall be
the greater of 1 or the multiplier derived by applying the following formula:
M4 = 1 + 0.17 x [(Current CPI/Original CPI) - 1]
The term "Current CPI" shall mean the "Consumer Price Index" on the date
selected by Landlord. The term "Original CPI" shall mean the "Consumer Price
Index" on January 1, 1986. The term "Consumer Price Index" shall mean "United
States City Average All Items for All Urban Consumers (CPI-U, 1967=100)"
published by the Bureau of Labor Statistics of the U.S. Department of Labor. If
the publication of the Consumer Price Index of the U.S. Bureau of Labor
Statistics is discontinued, comparable statistics on the purchasing power of
the consumer dollar published by a responsible financial periodical selected by
Landlord shall be used for making such computations.
III. Example of Annual Utilities and Services Charge Calculations.
A. Assume the following hypothetical facts for a tenant in Riverchase
Galleria Shopping Center.
1. Store Size: 2,520 sq. ft. of Floor Area
2. Store Type: Dry goods, retail
3. Air Handling -- Cooling Coil Capacity: 102,000 BTU per hour*
*That is to say the rated capacity in BTU per hour of the installed
fan coil unit in the Demised Premises and as approved by Landlord.
4. Plumbing Fixtures as shown on Tenant's final approved plans:
Item Water Supply Fixture Units**
a. Flush Tank Water Closet... 1 ea. 5.0
b. Janitor's sink 3.0
c. Electric drinking fountain 0.25
-----------------------------
TOTAL SUPPLY FIXTURE UNITS 8.25
**Per "American Standard National Plumbing Code", 1955 Edition,
Page 137, Table D.3.5 ("Demand Weight of Fixtures in Fixture
Units) and Chart Number 2, Page 138, of Paragraph D.3.6 ("Gallons
Per Minute Conversion to Fixture Units")
B. Example of Calculation:
(1) Cooling Charge: Minimum Cooling Charge = $1.85 per sq. ft. of Floor
Area per annum
3-D
42
(2) Current Cooling Charge Calculation; and derivation of Multiplier M1:
a.
_ _
| _ _ |
1 + .69 x ||Tenant's Installed Air Handling-Cooling Coil Capacity in BTU/Hour | |
||----------------------------------------------------------------- | |
|| Square Feet of Demised Premises |-1| = ▇▇▇▇▇▇▇▇▇▇, ▇▇
||_ _| |
|_----------------------------------------------------------------- _|
36 BTUs per Hour per Sq. Ft.
_ _
| _ _ |
|| 102,000 BTU/Hour | |
b. 1 + .69 x || ---------------- | -1 |
||_ 2,520 Sq. Ft. _| | = Multiplier, M1
| ---------------- |
| 36 BTUs/Hr/Sq. Ft. |
|_ _|
_ _
| 40.476 BTU/Hr/Sq.Ft. |
c. 1 + .69 x | ---------------- -1 | = Multiplier, M1
| 36 BTU/Hr/Sq. Ft. |
|_ _|
d. 1 + .69 x (1.124 - 1) = ▇▇▇▇▇▇▇▇▇▇, ▇▇
e. 1 + .69 x (0.124) = ▇▇▇▇▇▇▇▇▇▇, ▇▇
f. 1 + 0.086 = Multiplier, M1
g. 1.086 = Multiplier, M1
h. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇ = 1.0
i. Current Cooling Charge = Minimum Cooling Charge x M1 x M2 x M3 x M4
j. Current Cooling Charge = $1.85 x 1.086 x 1.0 x 1.0 x 1.0 = $2.01 per
square foot per year.
k. Annual Cooling Charge = $2.01 x 2,520 Sq. Ft. = $5,065.20 per year
(3) Current Water-Sewage Charge Calculation:
a. Minimum Water-Sewerage Charge = $229.80
b. Water Supply Fixture Units = 8.25 f.u.
c. Additional Fixture Unit Charge:
$6.00 x (8.25 f.u. installed - 7.00 f.u. allowed) =
$6.00 x 1.25 f.u. = $7.50
d. Minimum Water-Sewerage Charge = Minimum Water-Sewerage Charge +
Additional Fixture Unit Charge
e. Minimum Water-Sewerage Charge = $229.80 + $7.50 = $237.50 per year
f. Current Water-Sewerage Charge = Minimum Water-Sewerage Charge x
Multiplier
g. Current Water-Sewerage Charge = $237.30 x 1.0 = $237.30
C. Example Calculation: (Current Cooling Charge for Tenant's Increased Operating
Hours - refer to Exhibit D, Paragraph 11.B.2)
Assume the following hypothetical facts for the same Tenant in Riverchase
Galleria Shopping Center where the Shopping Center Annual Hours of Operations
are 4,056 and the Tenant's Annual Hours of Operation equals 4,368 hours.
(1) Sample Calculation; derivation of Multiplier M2
a. (Tenants annual operating hours) (Shopping Center regular annual
operating hours) = Tenant's annual additional operating hours in excess
of Shopping Center established operating hours.
4,368 hours Total Annual Hours
- 4,056 hours Regular Hours
---------------------------------
312 hours Extra Hours
4-D
43
b. Refer to Exhibit D. Paragraph II.B.2. for following formula:
| Tenant's annual additional |
| operating hours in excess of |
| Shopping Center's originally |
| established regular operating hours |
| (annual basis) |
1 + | ----------------------------------- | = ▇▇▇▇▇▇▇▇▇▇, ▇▇
| Originally established Shopping |
| Center regular operating hours |
| (annual basis) |
312 hours
c. 1 + ------------ = Multiplier, M2
4056 hours
d. 1 + 0.0769 = Multiplier, M2
e. 1.0769 = Multiplier, M2
f. Refer to Exhibit D. Paragraph II.A for the following formula:
Current Cooling Charge = Minimum Cooling Charge x M1 x M2 x
M3 x M4
g. Multiplier M1, 1.086 (from Example III, B)
h. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇ = 1.0
i. $1.85 x 1.086 x 1.077 x 1.0 x 1.0
j. Current Cooling Charge = $2.16 per square foot of Floor Area
per annum
D. Example Calculation: (Current Cooling charge for Increased Electrical Cost
-- refer to Exhibit D, Paragraph II.B.3.)
Assume the following hypothetical facts for the same tenant in Riverchase
Galleria Shopping Center where Alabama Power Company increased the cost of
electricity which it sells to the Landlord by five (5%) percent.
(1) Sample Calculation: derivation of Multiplier M3:
(Refer to Exhibit D, Paragraph II, B.3. for the following formula):
a. Multiplier, M3 = 1 + 0.56 x [(Current Cost/Original Cost) - 1]
b. Multiplier, M3 = 1 + 0.56 x [1.05 - 1]
c. Multiplier, M3 = 1.028
d. Multiplier, M1 = 1.086 (from example III.B.)
e. Multiplier, M2 = 1.077 (from example III.C.)
f. Multiplier, M4 = 1.0
g. Current Cooling Charge = Minimum Cooling Charge x M1 x M2 x M3
x M4
h. Current Cooling Charge = $1.85 x 1.086 x 1.077 x 1.028 x 1.0
i. $2.22 Per Square Foot of Floor Area Per Annum of the Demised
Premises = Current Cooling Charge
E. Example Calculation: Adjusted Cooling Charge for Increased Operating Costs
(other than electricity costs) refer to Exhibit D, Paragraph II.B.4;
derivation of Multiplier M4:
Assume the following hypothetical facts for the same tenant in Riverchase
Galleria Shopping Center where the Consumer Price Index increased by six
(6%) percent over the "Original CPI."
(1) Sample Calculation: derivation of Multiplier, M4:
a. Multiplier, M4 = 1 + 0.17 x [(Current CPI/Original CPI) - 1]
b. Multiplier, M4 = 1 + 0.17 x [1.06 - 1]
c. Multiplier, M4 = 1.0102
d. Multiplier, M1 = 1.086 (from Example III.B.)
e. Multiplier, M2 = 1.077 (from Example III.C.)
f. Multiplier, M3 = 1.028 (from Example III.D.)
5-D
44
g. Current Cooling Charge = Minimum Cooling Charge x M1 x M2 x M3 x M4
h. Current Cooling Charge = $1.85 x 1.086 x 1.077 x 1.028 x 1.01
i. $1.88 per square foot of Floor Area per annum of the Demised
Premises = Current Cooling Charge
j. Annual Cooling Charge = $2.25 x 2.520 sq ft = $5,670.00
This Exhibit, consisting of number (6) pages, labeled 1-D through 6-D,
inclusive, is attached to and forms a part of the Lease dated
, 19 , and has been initialed by the parties hereto as
follows:
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ Illegible
------------------------------ ------------------------------
Landlord Tenant
Notwithstanding anything in this Exhibit "D" or in the Lease to the contrary,
the Utility and Service Charges as described in this Exhibit shall only apply in
the event Tenant adds scheduled, routine hours in the way of additional shifts
over and above normal work day hours, as described in Section 5 of the Lease.
6-D
45
Intentionally Deleted
EXHIBIT A2
46
[ILLUSTRATION ▇▇ ▇▇▇▇▇ ▇▇▇▇]
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ 1"=30'
-----------------
MEDPARTNERS, INC.
7th Floor
2,433 Square Feet
EXHIBIT A3
47
[ILLUSTRATION ▇▇ ▇▇▇▇▇ ▇▇▇▇]
▇▇▇▇▇ ▇▇▇ & ▇▇▇
▇▇▇▇▇ ▇▇▇▇ 1"=30'
----------------
MEDPARTNERS, INC.
9th Floor
6,297 Square Feet
EXHIBIT A4
48
[ILLUSTRATION OF FLOOR PLAN]
FLOOR PLAN 1"=30'
-----------------
MEDPARTNERS, INC.
10th Floor
20,195 Square Feet
EXHIBIT A5
49
[ILLUSTRATION OF FLOOR PLAN]
Suite 1110 Suite 1115
3,382 Sq. Ft. 7,110 Sq. Ft.
FLOOR PLAN 1"=30'
-----------------
MEDPARTNERS, INC.
11th Floor
10,492 Square Feet
EXHIBIT A6
50
[ILLUSTRATION OF FLOOR PLAN]
MEDPARTNERS, INC.
12TH Floor
20,195 Square Feet
EXHIBIT A7
51
[ILLUSTRATION OF FLOOR PLAN]
MEDPARTNERS, INC.
14th Floor
20,195 Square Feet
EXHIBIT A8
52
[ILLUSTRATION OF FLOOR PLAN]
MEDPARTNERS, INC.
15th Floor
20,195 Square Feet
EXHIBIT A9
53
[ILLUSTRATION OF FLOOR PLAN]
MEDPARTNERS, INC.
16TH Floor
20,195 Square Feet
EXHIBIT A10
54
[ILLUSTRATION OF FLOOR PLAN]
MEDPARTNERS, INC.
17TH Floor
20,195 Square Feet
EXHIBIT A11
55
MEDPARTNERS
MANUFACTURE AND INSTALL INTERNALLY ILLUMINATED LETTERS ON BUILDING
TWO (2) SETS REQUIRED (NORTH & SOUTH ELEVATIONS)
BLACK/WHITE ACRYLIC FACES
ALUMINUM RETAINERS AND RETURNS PAINTED DARK BRONZE
WHITE NEON ILLUMINATION
SCALE 1/4"=1'-0"
[ILLUSTRATION OF NEON LIGHT ATTACHMENT AND DESIGN OF TUBING]
[ILLUSTRATION OF NORTH ELEVATION AND SOUTH ELEVATION OF MEDPARTNERS BUILDING]
[ILLUSTRATION OF MEDPARTNERS NEON SIGN DIMENSIONS]
This is an original, unpublished drawing, submitted in connection with a
project we are planning for you. It is not to be copied, reproduced, exhibited
or shown to anyone outside of your organization without written permission of
Federal Sign.
[FEDERAL SIGN LOGO]
CLIENT MEDPARTNERS APPROVED_______________
ADDRESS ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
REVISIONS________________________________________________
DESIGNER ▇.▇▇▇▇▇▇▇▇▇▇/T.Z. DATE 5-21-97
ACCOUNT REP. ▇. ▇▇▇▇▇▇▇▇▇▇
DISTRICT CHICAGO
DESIGN NO. 49920R
SCALE AS NOTED
JOB NO_____________
56
LEASE AMENDMENT NO. 1
This Lease Amendment No. 1, herein referred to as the "Amendment", is made
and entered into this 1st day of October 1997, by and between MedPartners, Inc.,
herein referred to as "Tenant", and Riverchase Tower, Ltd., herein referred to
as "Landlord".
WITNESSETH:
WHEREAS, Landlord and Tenant, entered into that certain lease, herein
referred to as the "Lease", dated the 23rd day of June, 1997, for specific
office space, therein referred to as the Demised Premises, in the Galleria Tower
at Riverchase Galleria, Hoover, Alabama; and
WHEREAS, in Section 50 of that Lease, Landlord and Tenant agreed to
increase the size of the Demised Premises by adding additional floor space on
the third floor, herein referred to as "Third Floor Premises", for the
construction by Tenant of specific office space for use only as a "check-in"
station for Tenant's clients and visitors; and
WHEREAS, Landlord and Tenant have delineated the final location and size
for the Third Floor Premises.
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant understand and agree as
follows:
1. Landlord does hereby Lease to Tenant and Tenant does hereby rent from
Landlord the Third Floor Premises, containing 90 square feet on the ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇) of the Galleria Tower, and more particularly
shown on Exhibit A, "Leasing Plan", attached hereto and made a part hereof,
and these "Third Floor Premises" shall be a part of the Demised Premises,
as defined in the Lease.
2. Tenant does hereby agree to renovate and construct any and all improvements
for the Third Floor Premises in strict accordance with plans and
specifications prepared by Tenant and approved in writing by Landlord.
Specifically, that portion of the Third Floor Premises fronting on the
lobby level shall be in accordance with the approved plans, attached hereto
and made a part hereof as Exhibit B, Plans and Specifications. The
construction and renovation of the Third Floor Premises shall be by Tenant
at Tenant's sole cost and expense. Tenant shall start construction within
thirty (30) days after receipt from Landlord of the approved plans and
specifications.
3. Tenant agrees to maintain and upkeep the Third Floor Premises in a manner
consistent with the overall lobby floor area of the Galleria Tower office
building. In the event Tenant fails to occupy the Third Floor Premises for
a period of time in excess of thirty (30) consecutive business days, then
Landlord shall have the option of cancelling Tenant's tenancy of the Third
Floor Premises by giving Tenant fifteen (15) days notice.
57
4. Except as herein expressly modified, changed and amended the Lease shall
remain unchanged.
5. This Amendment shall be effective on the day and year first above written,
herein referred to as the "Effective Date".
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment on
the day and year first above written.
LANDLORD: RIVERCHASE TOWER, LTD.
BY: GALLERIA TOWER, INC.
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its President
TENANT: MEDPARTNERS, INC.
By: /s/ illegible
-------------------------------
Its: EVP & Corp Sec
--------------------------
58
EXHIBIT "A"
LOBBY LEVEL 90 SF
[LOBBY FLOOR PLAN]
59
LOBBY LEVEL
Medpartners
[LOBBY FLOOR PLAN]
MEDPARTNERS Proposed Information Desk
Location: Lobby Level
Estimated Space: 10' x 10' ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ OF JEFFERSON
LEASE AMENDMENT AGREEMENT No. 2
This Lease Amendment Agreement No. 2, hereinafter sometimes referred to as
"Agreement", is made and entered into this 27 day of March 1998 by and between
MEDPARTNERS, INC., hereinafter referred to as "Tenant", and RIVERCHASE TOWER,
LTD., hereinafter referred to as "Landlord".
WITNESSETH THAT:
WHEREAS, Landlord and Tenant, did enter into a certain lease agreement
dated the 23rd day of June 1997, hereinafter referred to as "Lease", for those
certain premises, hereinafter referred to as the "Demised Premises", in the
Galleria Tower office building, Birmingham, Alabama, which Demised Premises, are
more particularly described and set forth in said Lease; and
WHEREAS, Tenant has made known to Landlord that Tenant no longer requires
all the office space on the 11th floor of the Galleria Tower secured by the
Lease, and
WHEREAS, the parties hereto now desire to delete specific floor area from
the Demised Premises in the manner hereinafter set forth.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant understand and agree as
follows:
1. DEMISED PREMISES. Section 1 of the Lease, Demised Premise, is hereby
amended by adding the following:
"Pursuant to the terms and conditions of this Agreement, Landlord and
Tenant agree that the Floor Area of the Demised Premises shall be
modified by the deletion of approximately 5,796 square feet ("Vacated
Area"), on the 11th floor as shown on Exhibit A, attached hereto and
made a part hereof said Vacated Area currently being occupied by the
Tenant known as Universal Underwriters Insurance Companies, Inc.
2. EFFECTIVE DATE. The effective date of this Agreement shall be April 1,
1998.
3. NO OTHER CHANGES. All of the other terms, provisions, stipulations and
conditions set forth in said Lease shall remain in full force and
effect except as herein expressly changed or amended.
1
61
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on
the day and year first above written.
LANDLORD: RIVERCHASE TOWER, LTD.
WITNESS:
By: ▇▇▇ ▇▇▇▇▇▇ & ASSOCIATES, INC,
as Manager
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Its: President
------------------------------
WITNESS: TENANT: MedPartners, Inc.
By: /s/ illegible By: /s/ illegible
------------------------------- ----------------------------------
Its: Vice President - Real Estate Its: Executive Vice President and
-------------------------------- ---------------------------------
Corporate Secretary
2
62
Universal Underwriters
Suite 1100
[FLOOR PLAN]
EXHIBIT A
11TH FLOOR