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EXHIBIT 10.12
COMMERCIAL LEASE
This is a legally binding contract. If not understood, seek competent advice.
APPROVED BY BIRMINGHAM AREA BOARD OF REALTORS LEASE FORM
AMENDED OCTOBER, 1976 150-ZSSCO
STATE OF ALABAMA )
Jefferson County )
This lease made this 1st day of September 1996 by and between
Birmingham S.S.P., Inc. hereinafter called "Lessor", by N/A as
agent for the Lessor and by Computer Services Corporation
hereinafter called "Lessee";
WITNESSETH: That the Lessor does hereby demise and let unto
the Lessee the following described premises in the City of
Birmingham, Alabama, to-wit:
Approximately 2,501 square feet of building space (the
"Premises") located in the Midtown Center (the "Building"), ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, said Premises
being the Southeast corner of the rentable area on the East half
of the fourth floor.
Use Subject to existing easements, if any, and the regulatory laws
and ordinances of the political subdivision in which the property
is situated, for use and occupation by the Lessee as Office Space
Term and for no other or different use of purpose, for and during the
term of 108 Months beginning on First day of September 1996 and
ending on the 31st day of October 2005
Rent In consideration whereof, the Lessee agrees to pay the
Lessors agent at office of said agent, to the Lessor, at the
address set forth in Addendum A hereto, (see Addendum A) on the
first day of each month of said term, in advance, as rent for
said premises, the sum of (see Addendum A)
DOLLARS ($_________) per month,
being at the rate of DOLLARS ($_________) per annum.
Lessee agrees that a Service and Bookkeeping charge of N/A
shall become due and payable each and every month that the rent
has not been received in the office of N/A by the 10th of the
month.
Should premises by completed and turned over to Lessee
either prior to, or after N/A then in that event rent for such
fractional month shall be pro-rated, and this lease term shall
commence on the first day of the next calendar month.
Quiet This lease is made upon the following terms, conditions,
Enjoyment and covenants: The Lessor covenants to keep the Lessee in
possession of said premises during said term, but shall not be
Condition of liable for the loss of use by eminent domain nor the failure or
Premises inability of the Lessee to obtain possession thereof provided
the Lessor shall exercise due diligence and effort to place the
Lessee in possession. Nothing herein contained shall be construed
as a warranty that said premises are in good condition or are fit
or suitable for the use or purpose for which they are let. The
Lessor or Lessor's agent have made no representations or promises
with respect to said building or the demised premises except as
herein expressly set forth. The Lessee has examined the leased
premises and accepts the same.
Roof Should the roof of the building leak at any time during
said term, due to no fault on the part of the Lessee, the Lessor
will repair the same within a reasonable time after being
requested in writing by the Lessee so to do, but in no event
shall the Lessor be liable for damages or injuries arising from
such defect or the failure to make said repairs after being so
notified, except to the extent of the reasonable cost of
repairing said roof; nor shall the Lessor be liable for damages
or injuries arising from defective workmanship or materials, the
Lessee hereby expressly waiving the same. Lessor and its agents,
shall not be liable for any deaths, injury, loss or damage
resulting from any repair or improvement and undertaken,
voluntarily or involuntarily, by or on behalf of, the Lessor,
other than willfully wrongful acts of Lessor.
Air In the event air conditioning equipment or a part of any air
Conditioning conditioning equipment is installed on the roof of any building
and Signs hereby leased, or in the event that the Lessee installs a sign
on the roof, then Lessee shall be responsible for repairing any
roof leaks, attributable to such installation, during the term of
this lease at Lessee's sole cost and expense, but no such air
conditioning equipment or sign may be installed until the consent
in writing of the Lessor is first had and obtained thereto.
Repairs Lessor shall not be obligated or required to make any other
repairs or do any other work on or about said premises or any
part thereof, or the elevators therein, if any, or on or about
any premises connected therewith, but not hereby leased, unless
and only to the extent herein agree. All other portions of any
building hereby leased shall be kept in good repair by Lessee and
at the end of the term hereof, the Lessee shall deliver the
demised premises to Lessor in good repair and condition,
reasonable, wear and tear excepted.
Inspection However, Lessor reserves the right to enter upon said
and Showing premises and to make such repairs and to do, such work on or
about said premises as Lessor may deem necessary or proper, or
that lessor may be lawfully required to make. Lessor reserves the
right to visit and inspect said premises at all reasonable times
and the right to show said premises to prospective tenants and
purchasers, and the right to display "For Sale" and "For Rent"
signs on said premises.
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FAILURE OF Should the Lessee fail to make repairs agreed to by him
LESSEE TO under this lease, the Lessor may enter the premises and make such
REPAIR repairs and collect the cost thereof from the Lessee as
additional rent. Except as herein specifically provided, the
SIGNS Lessee will not make or permit to be made any alterations,
additions, improvements or changes in the premises, nor will the
Lessee paint the outside of the building or permit the same to be
painted without the written consent of the Lessor before work is
contracted or let. No signs of any character shall be erected on
the roof until the consent thereof in writing is first had and
obtained from the Lessor. The consent to a particular alteration,
addition, improvement or change shall not be deemed a consent to,
nor a waiver of, a restriction against alterations, additions,
improvements or changes for the future.
ALTERATIONS Lessee will replace all plate and other glass, if and when
AND IMPROVE- broken, and failing so to do the Lessee may replace the same and
MENTS BY the Lessee will pay the Lessor the cost and expense thereof upon
LESSEE demand. Lessee will replace all keys lost or broken, and will
pay all bills for utilities and services used on said premises.
UPKEEP Lessee will keep all air conditioning equipment, electric
wiring, water pipes, water closets, drains, sewer lines and other
COMPLIANCE plumbing on said premises in such good order and repair and will
WITH LAW do all repairs, modifications and replacements which may be
required by the applicable laws or ordinances. Lessor shall not
be liable for any damages caused by, or growing out of, any
breakage, leakage, getting out of order or defective conditions
of said air conditioning equipment, electric wiring, pipes,
water closets, drains, and sewer lines or plumbing, or any of
them. Lessee will comply, at all times and in all respects with
all the applicable laws and ordinances relating to nuisance,
insofar as the building and premises hereby let, and the
streets and highways bounding the same, are concerned, and the
Lessee will not by any act, or omission render the Lessor
liable for any violation thereof. Lessee will not commit any
waste of property, or permit the same to be done, and will take
good care of said building and said premises at all times.
PUBLIC
LIABILITY
INSURANCE
AND
INDEMNITY
DEFECTS IN Lessor shall not be liable for any injury or damage caused
PREMISES by, or growing out of, any defect in said building, or its
equipment, drains, plumbing, wiring, electric equipment or
appurtenances, or in said premises, or caused by, or growing
out of fire, rain, wind, leaks, seepage or other cause.
SNOW, ICE, If the leased premises, or any part thereof, consist of
TRASH first floor space, adjacent upon the street, or ground adjacent
to the street, the Lessee will keep the sidewalk, curb and
gutter in front thereof or adjacent thereto clean and free from
snow, ice, debris and obstructions and will hold the Lessor
harmless from all damages or claims arising out of the Lessee's
failure to so do.
EVENTS OF Upon the happening of any one or more of the events as
DEFAULT expressed in this paragraph, the Lessor shall have the right, at
the option of the Lessor, to either annul and terminate this
lease upon two days written notice to Lessee and thereupon
re-enter and take possession of the premises; or the right upon
two days written notice to the Lessee to re-enter and re-let
said premises, from time to time, as agents of the Lessee, and
such re-entry or re-letting or both, shall not discharge the
Lessee from any liability or obligation hereunder, except that
rents (That is, gross rents less the expense of collecting and
handling, and less commission) collected as a result of such
re-letting shall be credited on the Lessee's liability up to the
amount due under the terms of this lease and the balance, if
any, credited to the Lessor. Nothing herein, however, shall be
construed to require the Lessor to re-enter and re-let, nor
shall anything herein be construed to postpone the right of the
Lessor to ▇▇▇ for rents, whether matured by acceleration or
otherwise, but on the contrary, the Lessor is hereby given the
right to ▇▇▇ therefor at any time after default. The events or
default referred to herein are: failure of the Lessee to pay any
one or more of the installments of rent, or any other sum,
provided for in this lease as and when the same become due, the
removal, attempt to remove or permitting to be removed from said
premises, except in the usual course of trade, the goods,
furniture, effects or other property of the Lessee or any
assignee, or sub-tenant of the Lessee; the levy of an execution
or other legal process upon the goods, furniture, effects or
other property of the Lessee brought on the leased premises or
upon the interest of the Lessee in this lease; the filing of a
Petition in Bankruptcy, a Petition for an Arraignment or
reorganization by or against the Lessee; the appointment of a
receiver or trustee, or other court officer, for the assets of
the Lessee; the execution of an assignment for the benefit of
creditors of the Lessee; the vacation or abandonment by the
Lessee of the leased premises or the use thereof for any purpose
other than the purpose for which the same are hereby let or (if
the rental herein is based in whole or in part on the percentage
of Lessee's sales) failure of the Lessee to exercise diligent
effort to product the maximum volume of sales; the assignment by
Lessee of this lease or the re-letting or sub-letting by the
Lessee of the leased premises or any part thereof without the
written consent of the Lessor first had and obtained; the
violation by the Lessee of any other of the terms, conditions or
covenants not set out in this paragraph on the part of the
Lessee herein contained and failure of the Lessee to remedy such
violation within ten (10) days after written notice thereof is
given by the Lessor to the Lessee.
REMOVAL The Lessee shall not remove any of the goods, wares or
OF GOODS merchandise of the Lessee from said premises other than in the
regular course of Lessee's trade or business without having
first paid all rent due or to become due under the terms of this
lease.
ACCELERA- Upon termination or breach of this lease or re-entry upon
TION OF said premises for any one or more of the causes set forth above,
RENT or upon termination of this lease or re-entry of said premises,
the rents provided for in this lease for the balance of the
DEFAULT-- original rental term, or any renewal term or other extended
ATTORNEY term, and all other indebtedness to the Lessor owed by the
FEE AND Lessee, shall be and become immediately due and payable at the
COST option of the Lessor and without regard to whether or not
possession of the premises shall have been surrendered to or
WAIVER OF taken by the Lessor. The Lessee agrees to pay Lessor, or on
EXEMPTIONS Lessor's behalf, a reasonable attorney's fee in the event
Lessor employs an attorney to collect any rents due hereunder
by Lessee, or to protect the interest of Lessor in the event the
Lessee is adjudged a bankrupt, or legal process is levied upon
the goods, furniture, effects or personal property of the Lessee
upon the said premises, or upon the interest of the Lessee in
this lease or in said premises, or in the event the Lessee
violates any of the terms, conditions, or convenants on the part
of the Lessee herein contained. In order to further secure the
prompt payments of said rents, as and when the same mature, and
the faithful performance by the Lessee of all and singular the
terms, conditions and covenants on the part of the Lessee herein
contained, and all damages, and costs that the Lessor may
sustain by reason of the violation of said terms, conditions and
covenants, or any of them, the Lessee hereby waives any and all
rights to claim personal property as exempt from levy and sale,
under the laws of any State or the United States.
ABANDON- In the event the Lessee abandons the leased premises before
MENT the expiration of the term, whether voluntarily or
involuntarily, or violates any of the terms, conditions, or
RE-LETTING covenants hereof, the Lessor shall have the privilege at
Lessor's option of re-entering and taking possession of said
premises and leasing all or any portion of said premises for
such term and for such use deemed satisfactory to the Lessor,
applying each month the net proceeds obtained from said leasing
to the credit of the Lessee herein, up to the amount due under
the terms of this lease and the balance to the Lessor and, said
leasing shall not release the Lessee from liability hereunder
for the rents reserved for the residue of the term hereof, but
Lessee shall be responsible each month for the difference, if
any, between the net rents obtained from such leasing and the
monthly rent reserved hereunder, and said difference shall be
payable to the Lessor on the first day of each month for the
residue of the term hereof.
RE-ENTRY, No re-entry hereunder shall bar the recovery of rent or
ETC., NO BAR damages for the breach of any of the terms, conditions, or
covenants on the part of the Lessee herein contained. The
receipt of rent after breach or condition broken, or delay on
the part of Lessor to enforce any right hereunder, shall not be
deemed a waiver of forfeiture, or a waiver of the right of the
Lessor to annul the lease or to re-enter said premises or to
re-let the same, or to accelerate the maturity of the rents
hereunder.
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Reinstate- If this lease is terminated by the Lessor for any reason,
ment including non-payment or rent, and the Lessee pays the rent,
attorneys' fees and other charges and thus makes himself
current, and/or remains or continues to be in possession of the
leased premises or any part thereof, with the Lessor's consent,
this lease will be considered reinstated, and will continue in
effect as though it had not been terminated.
Improve- All improvements and additions to the leased premises shall
ments and adhere to the leased premises, and become the property of the
Additions Lessor, with the exception of such additions as are usually
Property of classed as furniture and trade fixtures; said furniture and
Lessor trade fixtures are to remain the property of the Lessee, and may
be removed by the Lessee two (2) weeks prior to the expiration
of this lease, provided all terms, conditions and covenants of
within contract have been complied with by Lessee and provided
said Lessee restores the building and premises to its original
condition, normal wear and tear excepted, except as may
otherwise be provided in Addendum A.
Fire & In the event of the total destruction of, or partial damage
Other to, the buildings upon the demised premises by fire or other
Casualty casualty, Lessor shall proceed with due diligence and dispatch to
repair and restore the buildings to the conditions to which they
existed immediately prior to the occurrence of such casualty, at
Lessor's cost and expense, provided such cost does not exceed the
proceeds of insurance collected on the buildings, by reason of
such casualty, the application of which insurance proceeds are
not prohibited, by reason of any mortgage provision, from being
used toward the cost of restoration and repairing the same;
provided, further, that if the unexpired portion of the term or
any extension thereof shall be two (2) years or less on the date
of such casualty and the cost of such repair or restoration
exceeds twenty percent (20%) of the then replacement value of
said damaged leased premises, as estimated by two or more
reputable contractors, Lessors may by written notice to the
Lessee, within thirty (30) days after the occurrence of such
casualty, terminate this lease. If Lessor exercises the above
right to terminate this lease and Lessee elects to exercise an
option of renewal privilege which Lessee may have under this
lease, which if exercised, would extend the unexpired term beyond
two (2) years. Lessee may void such above notice of Lessor's
right to terminate this lease by exercising such option renewal
privilege within such thirty (30) day period. If the insurance
proceeds are insufficient to effect such restoration or repairs,
Lessor at its option may cancel this lease by written notice to
Lessee within thirty (30) days after the occurrence of such
casualty.
In the event the repairing and restoring of the buildings
can not be completed within four (4) months after the date of
occurrence of such casualty, as estimated by two or more
reputable contractors, the Lessee shall have the right to
terminate this lease upon giving written notice to Lessor within
thirty (30) days from the date of occurrence of said casualty.
From the date of such damage or destruction until said building
has been substantially repaired or restored, an equitable
abatement of rent shall be allowed the Lessee.
Transfer or Each and every transfer or assignment of this lease, or any
Assignment, interest therein, and each and every sub-letting of said
Conditions premises, or any part thereof, or any interest therein, shall be
null and void, unless the written consent of the Lessor be first
Lease obtained thereto. As a condition precedent to the obtaining of
Assignment such consent, the assignee or sub-lessee must assume, in
Fee Clause writing, all the obligations of the Lessee hereunder, but such
assumption shall not operate to release the Lessee from any
agreement or understanding on the part of the Lessee expressed
or implied in this lease.
Notices and All notices and demands authorized or required to be given
Demands to the Lessee under any provision hereof must be in writing, and
may be delivered to the Lessee in person or left on or in the
leased premises or shall be conclusively deemed to have been
delivered to the Lessee if the same be deposited in the United
States mail addressed to the Lessee at the leased premises, with
the proper postage affixed thereto. All notices herein
authorized are required to be given to the Lessor may be given
by certified mail, addressed to the Lessor at the address of the
Lessor shown on page 1 of this lease, or in care of the Lessor's
rental agent at that time authorized by the Lessor to service
this lease, and said notices must be in writing.
Agents
Commission
Agreement
Agents
Repair and
Improve-
ment
Lessee Will Lessee will indemnify and hold Lessor and Lessor's agent
Hold free and harmless from all demands, claims and suits or expenses
Harmless caused by any default committed hereunder on the part of the
Lessee. Lessee will further indemnify and save harmless Lessor
and Lessor's agent from any loss, cost, damage and/or expenses
caused by injuries to persons or property while in, on or about
the demised premises, not attributable to the willfully wrongful
act of the Lessor or Lessor's agent. Any property stored in the
demised premises shall be at the sole risk of Lessee.
Waiver of Neither Lessor nor Lessee shall be liable to the other for
Subrogation any loss or damage from risks ordinarily insured against under
Rights fire insurance policies with extended-coverage endorsements,
irrespective of whether such loss or damage results from their
negligence or that of any of their agents, servants, employees,
licensees or contractors to the extent that such losses are
covered by valid and collectable insurance on the property at
the time of the loss.
Holdover Should the Lessee continue to occupy the premises after the
expiration of the said term or after a forfeiture incurred,
whether with or against the consent of the Lessor, such tenancy
shall be a tenancy at sufferance and in no event a tenancy from
month to month, or from year to year.
Non- The failure of the Lessor to insist, in any one or more
Waiver instances, upon a strict performance of any of the covenants of
this lease, or to exercise any option herein contained, shall
not be construed as a waiver, or a relinquishment for the
future, of such covenant or option, but the same shall continue
and remain in full force and effect. The receipt by the Lessor
of rent, with knowledge of the breach of any covenant hereof,
shall not be deemed a waiver of such breach, and no waiver by
the Lessor of any provision hereof shall be deemed to have been
made unless expressed in writing, and signed by the Lessor.
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Non-Waiver If all or any part of the demised premises is taken by
Eminent eminent domain ("eminent domain" shall include the exercise of
Domain and any similar power of taking, and any purchase or acquisition in
Condem- lieu of condemnation), or in the event the improvements are
nation ordered torn down or removed by lawful authority,
then the term of this lease shall cease as of the date possession
shall be taken by the condemning authority, or as of the date
improvements are ordered torn down or removed, whichever may be
applicable, with the rent to be apportioned as of the date of
such taking or of such order, as the case may be; provided,
however, if as a result of a partial taking of the demised
premises by eminent domain, the ground floor area of the building
forming a part of the demised premises is reduced by not more
than twenty-five percent (25%), the Lessor may elect to continue
the term of this lease and to restore, at Lessor's expense, the
remaining premises to a complete architectural unit with
storefront, signs and interior of equal appearance and utility as
they had previous to the taking, but there will be prorata
reduction of the rent payable each month. The Lessor shall be
deemed to have exercised its said option to restore the premises
unless, within 30 days after the date of taking, the Lessor shall
notify the Lessee in writing of its election to terminate this
lease. The Lessor shall be entitled to receive all of the
proceeds of any total or partial taking of the demised premises
by eminent domain, including any part of such award as may be
attributable to the unexpired leasehold interest or other rights
of the Lessee in the premises, and the Lessee hereby assigns, and
transfers to the Lessor all of the Lessee's right to receive any
part of such proceeds.
Clean The Lessee hereby agrees that upon the expiration or prior
Premises termination of this lease, the Lessee will promptly remove from
Upon the leased premises all signs, trash, debris and property of the
Termina- Lessee, and the Lessee will leave the floors, stairs,
tion, etc. passageways, elevator and shafts as clean as it is possible to
clean them by means of the use of broom and shovel.
Taxes and
Insurance
Addendum This lease consists of Four (4) pages together with an
Clause Addendum of Four (4) pages which is attached hereto, initialed by
the parties and incorporated in this lease by reference. In case
of conflict between the printed portion of this lease and the
Addendum, the terms of the Addendum shall prevail.
It is understood and agreed by the parties hereto that this
lease shall be binding upon the Lessee, its executor,
administrator, heirs, assigns or successor.
FURTHER TERMS AND CONDITIONS MADE A PART HEREOF
SEE ADDENDUM A
IN WITNESS WHEREOF, the Lessor and the Lessee have
respectively executed these presents this day of OCTOBER 1, 1996
Agent Birmingham S.S.P., Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------- (Lessor)
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
Witness for Lessor:
/s/
-------------------------
/s/ (L.S.)
------------------------------
Computer Services Corp. Lessee
CFO
Witness for Lessee:
-------------------------
(L.S.)
----------------------------
Lessee
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ADDENDUM A T0 SUBLEASE
Dated as of September 1, 1996, by and between BIRMINGHAM S.S.P., INC.
AND COMPUTER SERVICES CORPORATION.
1. Parties and Factual Background. It is specifically recognized
and understood that Birmingham S.S.P., Inc. does not own fee simple title to
the demised premises, but, instead, leases such property by virtue of a Lease
Agreement between HRT of Alabama, Inc. and Birmingham S.S.P., Inc., dated as of
June 1, 1993 (the "Lease Agreement"). In entering into this Commercial Lease,
Birmingham S.S.P., Inc. is doing so as sublessor and Computer Services
Corporation is doing so as sublessee, even though they are referred to in this
document as the Lessor and Lessee, respectively.
2. Rental Rate. Lessee agrees to pay to Lessor on the first day
of each month of the Term, in advance, as rent for said premises the following:
(a) for the period beginning on September 1,
1996, through October 31, 2005, the following amounts ("Monthly Base Rent"):
Two Thousand Five Hundred Forty-Eight and 94/100 Dollars ($2,548.94).
(b) Effective on each Adjustment Date (as
defined below), Monthly Base Rent (excluding Operating Expenses, as defined
below) shall be increased by the lessor of (I) four percent (4%) or (ii) the
percentage increase in the latest Consumer Price Index on the Adjustment Date
over the Consumer Price Index twelve months earlier.
3. Additional Rent. During any Adjustment Year (as defined
below) in which Operating Expenses exceed $1.98 per square foot in the
aggregate ("Aggregate Operating Expenses") for that Adjustment Year, Lessee
shall pay, as additional rent, Lessee's Pro Rata share (amortized on a monthly
basis) of the Operating Expenses for the Adjustment Year which exceed $1.98 per
square foot. Attached as Exhibit B are the elements and amounts of current
Operating Expenses.
4. Definitions. The following words and phrases shall have the
following meanings:
(a) "Adjustment Date" shall mean
September 1, 1997 and each anniversary date of said day during the term.
(b) "Adjustment Year" shall mean the
twelve months consisting of the calendar month in which an Adjustment Date
occurs plus the next eleven months.
(c) "Operating Expenses" shall mean
all costs, expenses and disbursements of every kind and nature which Lessor
shall pay or become obligated to pay in connection with the management,
operation, maintenance, replacement and repair of the Building, all
improvements and land on which the Building is situated, all ad valorem taxes,
special assessments and rental taxes, and the personal property, fixtures,
machinery, equipment, systems and apparatus located in or used in connection
with the Common Areas (as defined below). Operating Expenses shall not include
the following: costs of improvement of the premises and the premises of other
tenants of the Building; charges for depreciation of the buildings and
improvements; interest and principal payments on mortgages; ground rental
payments, real estate brokerage and leasing commissions; expenses incurred in
enforcing obligations of other tenants of the Building; any expenditures for
which Lessor has been reimbursed (other than pursuant to rent adjustment and
escalation provisions provided in leases); and capital improvements.
(d) "Lessee's Pro Rata Share" shall
mean a ratio equal to Lessee's percentage share of the total square footage of
the building leased during the Adjustment Year.
(e) "Common Areas" shall mean all
areas, improvements, space, equipment and special services in, at, or
contiguous to the Building provided by Lessor for the common or joint use and
benefit of tenants, and invitees, including without limitation all parking
areas, driveways, entrances and exits.
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(f) "Consumer Price Index" shall mean
the Consumer Price Index for All Urban Consumers, All Items (1967-100),
published by the United States Department of Labor, Bureau of Labor Statistics.
If said Consumer Price Index is discontinued or is unavailable, Lessor will
substitute a comparable index reflecting changes in the cost of living or
purchasing power of the consumer dollar published by any other governmental
agency, bank or other financial institution, or any recognized authority.
5. Projections. For purposes of calculating Operating Expenses
for any Adjustment Year, Lessor may make reasonable estimates, forecasts or
projections (collectively, the "Projections") of Operating Expenses for such
Adjustment Year. Lessor shall deliver to Lessee a written statement setting
forth the Projections of Operating Expenses for the Adjustment Year in which
such Adjustment Date occurs and providing a calculation of the increase in
installments of Additional Rent to become effective as of said Adjustment Date;
provided, however, that the failure of Lessor to provide any such statement
shall not relieve Lessee from its obligation to continue to pay Additional Rent
at the rate then in effect under this Lease, and if and when Lessee receives
such statement from Lessor, Lessee shall pay any increases in Additional Rent
reflected thereby effective retroactively to the most recently preceding
Adjustment Date.
6. Fixtures and Interior Alterations. Lessee, at its own expense
and with the prior written approval of Lessor, may from time to time during the
term of this lease make interior alterations, additions, improvements and
modifications in and to the demised premises which do not adversely affect the
structural integrity thereof; provided, however, that all such alterations,
additions, improvements and modifications shall be made in a good, workmanlike
manner and in accordance with all valid requirements of municipal or other
governmental authorities and no additions, alterations, improvements or
modifications will be made that change the character of the demised premises to
such extent that it no longer constitutes "property" listed in the National
Register of Historic Places within the meaning of the statute codified in Code
of Alabama 1975, Title 41 Chapter 10, Article 5, as amended and supplemented
and at the time in force and effect (the "Act"). All permanent improvements
shall belong to Lessor and become a part of the premises upon termination or
expiration of this lease.
7. Mechanics' Liens. Lessor will not be liable for any labor or
materials furnished to Lessee on credit, and no mechanics' or other liens for
any such labor or materials shall attach to or affect the reversion or other
estate or interest of Lessor in and to the premises. Lessee shall indemnify and
save Lessor and/or its agents harmless from and against any liability, damages,
claims or costs arising from the imposition of any such lien.
8. Subordinate. Lessee agrees that this lease shall at all times
be subject and subordinate to the Permitted Encumbrances as that term is
defined in the Mortgage and the Lease Agreement, including, without limitation,
the Mortgage, the Lease Agreement and the Conservation Easement, and Lessee
agrees to execute any instrument as may be required to effectuate such
subordination.
9. Preparation for Occupancy. Prior to the commencement of the
term, the Lessee, at its own expense and cost, shall alter and fix up the
premises for occupancy.
10. Public Liability Insurance and Indemnity. Lessee shall during
the entire term of this Lease, at Lessee's own expense, keep in force by
advance payment of premiums comprehensive general liability insurance against
liability for personal or bodily injury to or death of persons and for damage
or loss of property occurring on or about the demised premises in the minimum
amount of One Million Dollars ($1,000,000) for injury to or death of one person
or as the result of one occurrence, and not less than Two Million Five Hundred
Thousand Dollars ($2,500,000) for injury to or death of more than one person as
the result of one occurrence, and for damage to property in the amount of One
Million Dollars ($1,000,000) or single limit of Two Million Five Hundred
Thousand Dollars ($2,500,000) insuring Lessee, Lessor, Lessor's agents,
servants and employees (as an additional assured), and the Authority against
any liability that may accrue against them or any of them on account of any
occurrence in or about the demised premises during the term or in consequence
of Lessee's occupancy thereof and resulting in personal injury or death or
property damage. All policies evidencing the insurance required by the terms of
this paragraph shall be taken out and maintained in generally recognized
responsible insurance companies, qualified under the laws of the State of
Alabama to assume the respective risk undertaken, shall contain an agreement on
the part of the insurer issuing such policy that the same shall not be
canceled, terminated or permitted to lapse by such insurer unless thirty (30)
days prior written notice of such cancellation, termination or lapse in
coverage shall have been given to
7
the Lessor and Mortgagee, and may be written with co-insurance provisions and
deductible amounts comparable to those applicable to similar policies carried
by persons engaged in businesses of like size and type as the Lessee.
11. Condition of Premises. No agreement of Lessor to alter,
remodel, decorate, clean or improve the Premises, the Building, or the Common
Areas and no representation regarding the condition of the Premises, the
Building, or the Common Areas has been made by or on behalf of Lessor to
Lessee, except as stated in this Commercial Lease.
12. Services Provided by Lessor. Lessor shall provide the
following services:
(1) city water from the regular Building
fixtures for drinking, lavatory and toilet
purposes only;
(2) customary cleaning, snow removal, and trash
removal in the Common Areas;
(3) window washing of windows in the Premises,
inside and outside at reasonable intervals
as determined by Lessor; and
(4) adequate passenger elevator service in
common with other tenants of the Building;
(5) pest control and extermination services;
(6) elevator maintenance and maintenance for the
elevator emergency telephones;
(7) city sewer services; and
(8) electricity for the common areas.
13. Maintenance by Lessor. Lessor, at its expense, shall maintain
and make necessary repairs to the structural and mechanical elements and
exterior windows of the Building and the Common Areas. Lessor shall not be
responsible for the maintenance, repair or replacement of any systems which are
located within the Premises and are supplemental or special to the Building's
standard systems, whether installed by Lessor at Lessee's request or by Lessee
with Lessor's permission. The cost of performing any of said maintenance or
repairs caused by the negligence of Lessee, its employees, agents, servants,
licensees, contractors or invitees, or the failure of lessee to perform its
obligations under this Commercial Lease, shall be paid by Lessee, except to the
extent of insurance proceeds, if any, actually collected by Lessor with regard
to the damage necessitating such repairs.
14. Maintenance by Lessee. Lessee, at its expense and at all
times, shall provide all cleaning, plumbing and electrical service and
maintenance, garbage and trash removal, repairs and preventive maintenance
(including repairs and maintenance of heating, ventilation and air conditioning
system servicing the Premises) necessary to keep and maintain the Premises in
good order, condition and repair and in accordance with all applicable legal,
governmental and quasi-governmental requirements, ordinances and rules
(including the Board of Fire Underwriters and Public Health Department or
similar bodies). All utilities except water and sewer will be metered
separately and will be the responsibility of the Lessee. Lessee shall pay all
utility bills promptly.
15. Maintenance of Common Area. The Common Areas shall at all
times be subject to the exclusive control, management, operation and
maintenance of Lessor. Lessor shall have the right from time to time to
establish, modify and enforce rules and regulations with respect to the Common
Areas. Lessee agrees to comply with such rules and regulations, to cause its
agents, contractors and employees to so comply and to use its best efforts to
cause its customers, invitees, suppliers and licensees to so comply. Lessor
shall have the right to construct, maintain and operate lighting and facilities
in and on the Common Areas; to policy the same; to close temporarily all or any
part of the parking areas or parking facilities; and to do and perform such
other
8
acts in and to the Common Areas as, in the exercise of good business judgement,
Lessor shall determine to be advisable.
16. Parking. Lessee shall not be assigned on-site parking spaces
under this Lease.
17. Lessee Hazardous Substance Identification and Warranty. The
Lessee (together with his successor and assigns) warrants and represents that
no pollutants, hazardous wastes or other toxic or hazardous substances, as
defined under the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), the Resource and Conservation and Recovery Act
("RCRA"), or any other federal, state, or local statute, ordinance, or
regulation relating to protection of the environment that has been or shall be
discharged, dispersed, released, disposed of, or allowed to escape (whether
intentional, accidentally, or unintentionally and whether suddenly or
otherwise), stored, treated or generated on, in, or around the premises.
The Lessee's operations are in compliance with all applicable
federal, state, and local statutes, laws, and regulations. Copies of any notice
served on the Lessee by any entity, governmental body, or individual claiming
any violation of any laws, regulations, or ordinances regarding environmental
damage will be forwarded to the Lessor within three days of their receipt.
The Lessee agrees to defend, indemnify, and hold harmless the
Lessor, its Partners, Officers, Employees, Licensees, Successors, and assigns
from and against any and all claims, demands, judgments, demands for
contributions, settlements, damages, actions, cause of actions, injury,
administrative orders, consent agreement and orders, liabilities, penalties,
costs, including without limitation, expenses of any cleanup, removal, or
remedial action, and all expenses of any kind whatsoever, including claims
arising out of loss of life, injury to persons, property or business or damage
to natural resources, in connection to the premises or any activities related
to the Lessee. The Lessee shall bear, pay, and discharge when as the same shall
become due and payable, any and all such judgments or claims for damages,
penalties, or otherwise against the Lessor described in this paragraph. In
addition, the Lessee shall hold the Lessor harmless for those judgments or
claims and shall assume the burden and expense of defending all suits,
administrative proceedings, and negotiations of any description.
9
EXHIBIT B TO SUBLEASE
Operating Budget (8-1-96 to 7-31-97) $249,110.00
Square Footage Leased 125,509
Operating Expenses Per Square Foot $1.98
10
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Lessee or used for any purpose other than ingress and egress to and from the
demised premises.
2. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of the Lessor. (No curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the demised premises, without the prior written
consent of the Lessor. Such awnings, projections, curtains, blinds, shades,
screens, or other fixtures must be of a quality type, design and color, and
attached in the manner approved by the Lessor).
3. No sign, advertisement, notice, or other lettering shall be exhibited,
inscribed, painted or affixed by any Lessee on any part of the outside or inside
of the demised premises or building without the prior written consent of the
Lessor. In the event of the violation of the foregoing by any Lessee. Lessor may
remove same without any liability, and may charge the expense incurred by such
removal to the Lessee or Lessees violating this rule. Interior signs on doors
and directory tables shall be inscribed, painted or affixed for each Lessee by
the Lessor at the expense of such Lessee, and shall be of a size, color and
style acceptable to the Lessor.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways, or other public places in the
building shall not be covered or obstructed by any Lessee, nor shall any
bottles, parcels or other articles be placed on the windowsills.
5. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the building, nor placed in the halls, corridors,
or vestibules without the prior written consent of the Lessor.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweeping, rubbish, rugs, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the Lessee
who, or whose servants, employees, agents, visitors, or licensees shall have
caused the same.
7. No lessee shall ▇▇▇▇, paint, drill into or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with prior written
consent of the Lessor, and as it may direct. No Lessee shall lay linoleum, or
other similar floor coverings, so that the same shall come in direct contact
with the floor of the demised premises, and, if linoleum or other similar
floor covering is desired to be used, an interlining of builder's deadening felt
shall be first affixed to the floor, by a paste or other material, soluble in
water, the use of cement or other similar adhesive material being expressly
prohibited.
8. No bicycles, vehicles, or animals of any kind shall be brought into or
kept in or about the premises, and no cooking shall be done or permitted by any
Lessee on said premises. No Lessee shall cause or permit any unusual or
objectionable odors to be produced upon or permeate from the demised premises.
9. No space in the building shall be used for manufacturing, for the
storage of merchandise or for the sale of merchandise, goods, or property of
any kind at auction without written consent of Lessor.
10. No Lessee shall make or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this, or neighboring buildings
or premises or those having business with them, whether by the use of any
musical instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. No Lessee throw anything out of the doors,
windows, or skylights, or down the passageways.
11. No Lessee, nor any of the Lessee's servants, employees, agents,
visitors, or licensees shall at any time bring or keep upon the demised premises
any inflammable, combustible, or explosive fluid, chemical, or substance.
12. No additional locks or bolts, of any kind, shall be placed upon any
of the doors or windows by any Lessee, nor shall any changes be made in
existing locks or the mechanism thereof. Tenants shall not have any duplicate
keys made. The Lessor will furnish to the Lessee, free of charge, two keys to
each corridor door entering space rented under this lease. All additional keys
required must be ordered through the agents of the Lessor, for which the Lessee
shall pay to the said agents One Dollar ($1.00) each on delivery. If Lessee
vacates the space covered by this lease, or any additional space rented in
connection herewith, all keys, whether furnished free by the Lessor or said
agents, or paid for by the Lessee, shall be the property of the Lessor, and
shall be returned to said agents, and in case all keys are not so returned, the
Lessee shall pay to the said agents One Dollar ($1.00) each for all such keys.
13. All removals, or the carrying in or out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours
which the Lessor or its agents may determine from time to time. The Lessor
reserves the right to prescribe the weight and position of all safes, and
files, which must be placed upon strips to distribute the weight. The moving
of safes or other fixtures or bulky matter of any kind must be made upon
previous notice to the Superintendent of the building and under his supervision.
14. No Lessee shall occupy or permit any portion of the premises demised
to him to be occupied for the possession, storage, manufacture, or sale of
liquor, narcotics, dope, or tobacco in any form.
15. Any person employed by any Lessee, with the Lessor's consent, to do
janitor work, shall, while in said building and outside demised premises, be
subject to, and under the control and direction of, the Superintendent of said
building (but not as agent or servant of said Superintendent or of the Lessor).
16. Landlord shall maintain a directory board in the lobby of the
Building and shall list thereon the names that Tenant may request from time to
time during the term of this lease, provided that Tenant's listing does not
exceed ____ lines. Landlord shall have the right to impose a reasonable charge
for any initial or additional directory listings.
17. The premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. The request of Lessees for services will be considered only upon
application at the office of the building. Employees shall not perform work or
do anything outside of their regular duties, unless under special instructions
from the office of the Lessor.
19. Canvassing, soliciting, and peddling in the building is prohibited
and each Lessee shall cooperate to prevent the same.
