<PAGE>
EXHIBIT 10.23
INFINITY INSURANCE COMPANY
AT
3700 COLONNADE
LEASE AGREEMENT
AUGUST 26TH, 2003
COLONIAL
PROPERTIES TRUST
1
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TABLE OF CONTENTS
<TABLE>
<S>
<C>
1-15. SUMMARY OF LEASE
TERMS......................................................................3-4
16. LEASE
TERM...................................................................................4
17. COMPLETION
OF
IMPROVEMENTS...................................................................4
18. BASE
RENTAL; SECURITY
DEPOSIT................................................................4
19. ADDITIONAL
RENT..............................................................................5
20. BROKERAGE
DISCLOSURE.........................................................................6
21
USE..........................................................................................6
22. TENANT'S
ACCEPTANCE..........................................................................6
23. ASSIGNMENT
AND
SUBLETTING....................................................................6
24. HOLDING
OVER.................................................................................7
25.
ALTERATIONS AND
IMPROVEMENTS.................................................................7
26. REPAIRS TO
THE
PREMISES......................................................................7
27. ENTRY BY
LANDLORD............................................................................7
28. DEFAULT
AND REMEDIES
........................................................................8
29. LANDLORD'S
SERVICES..........................................................................9
30.
DESTRUCTION OF
PREMISES.....................................................................10
31.
CONDEMNATION OF
PREMISES....................................................................10
32.
INSURANCE/INDEMNIFICATION...................................................................10
33.
NOTICES.....................................................................................11
34. TRANSFER
OF
TENANT..........................................................................12
35. SUCCESSORS
AND ASSIGNS:
ATTORNMENT..........................................................12
36.
SEVERABILITY................................................................................12
37.
SUBORDINATION; ESTOPPEL
CERTIFICATES........................................................13
38. HAZARDOUS
SUBSTANCES........................................................................13
39. DAMAGE OR
THEFT OF PERSONAL
PROPERTY........................................................13
40. FORCE
MAJEURE...............................................................................13
41
SPECIAL
STIPULATIONS........................................................................13
42. FINANCIAL
STATEMENTS........................................................................13
43.
MISCELLANEOUS...............................................................................13
44. TENANTS
SELF HELP
RIGHTS....................................................................14
44.
GUARANTY....................................................................................14
</TABLE>
EXHIBITS:
"A-1 - A-4" PREMISES
"B"
RULES AND REGULATIONS
"C"
OPERATING EXPENSES
"D"
WORK AGREEMENT
"E"
RENT COMMENCEMENT DATE AND EXPIRATION DATE
"F"
SPECIAL STIPULATIONS
"G"
CLEANING SPECIFICATIONS
"H"
GUARANTY
"I"
PARKING
"J"
LICENSE AGREEMENT FOR COVERED PARKING
2
<PAGE>
COLONIAL PROPERTIES TRUST
LEASE AGREEMENT
This Lease Agreement ("LEASE") is made this
26TH day of August 2003, by and
between COLONIAL REALTY LIMITED
PARTNERSHIP, A Delaware limited partnership (the
"LANDLORD"); and INFINITY INSURANCE
COMPANY, a Indiana Corporation (the
"TENANT").
SUMMARY OF LEASE TERMS
1. LANDLORD'S ADDRESS: COLONIAL REALTY
LIMITED PARTNERSHIP
c/o Colonial Properties Services, Inc.
2101 Sixth Avenue North, Suite 750
Birmingham, Alabama 35203
Attn: Vice President
2. RENTAL PAYMENT
COLONIAL REALTY LIMITED PARTNERSHIP
ADDRESS:
Post Office Box 55379
Department #8010
Birmingham, Alabama 35255
3. TENANT ADDRESS:
3700 Colonnade Parkway
Suite 600
Birmingham, Alabama 35243
Attention:
Legal Department
4. PARK:
Colonnade
5. BUILDING:
3700 Colonnade
Legal Description of the Building: That portion of
Lot 3J, according to Colonnade, Resurvey No. 8,
recorded in Map Book 182, Page 69, in the Office of
Probate of Jefferson County, Alabama, on which have
been constructed as of the date hereof the office
building bearing civic address 3700 Colonnade
Parkway, the parking facilities and lots serving such
building, and all other improvements immediately
appurtenant thereto.
6. PREMISES:
Suite 600 (as shown on Exhibit "A-1" through "A-4")
consisting of all of Floors one, four, five and six
in the Building.
7. RENTABLE AREAS OF THE
PREMISES:
First Floor:
18,764 rentable square feet
Fourth Floor:
27,475 rentable square feet
Fifth Floor:
27,475 rentable square feet
Sixth Floor:
27,007 rentable square feet
____________________________________________________
Total Initial Premises: 100,721 Rentable Square Feet
8. RENTABLE AREA OF THE
BUILDING:
152,575 Square
Feet
9. COMMENCEMENT DATE: April 1,
2005
10. LEASE TERM
The period commencing at 12:01 a.m. on the
Commencement Date and expiring on the final day of
the month in which the one hundred thirty second
(132nd) month anniversary of the date prior
to the Commencement Date occurs, or March 31, 2016.
3
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RENT PER
11. BASE RENTAL: LEASE YEAR
MONTHLY
ANNUALLY SQUARE FOOT
1 $
81,835.81
$ 982,029.75
$ 9.75
2 $
81,835.81
$ 982,029.75
$ 9.75
3
$155,278.21 $1,863,338.50
$18.50
4
$158,383.77 $1,900,605.27
$18.87
5
$163,251.95 $1,959,023.45
$19.45
6
$165,769.98 $1,989,239.75
$19.75
7
$171,225.70 $2,054,708.40
$20.40
8
$173,324.05 $2,079,888.65
$20.65
9
$174,834.87 $2,098,018.43
$20.83
10
$178,360.10 $2,140,321.25
$21.25
11
$181,885.34 $2,182,624.07
$21.67
RENT PER
12. INITIAL INSTALLMENT: $81,835.81
13. SECURITY DEPOSIT: Intentionally
left blank
14. BASE YEAR:
2005 Base Year
15. EXHIBITS: Exhibit "A-1 - A-4"
Premises
Exhibit "B"
Rules and Regulations
Exhibit "C"
Operating Expenses
Exhibit "D"
Work Agreement
Exhibit "E"
Rent Commencement Date Expiration Date
Exhibit "F"
Special Stipulations
Exhibit "G"
Cleaning Specifications
Exhibit "H"
Guaranty
Exhibit "I"
Parking
Exhibit "J"
License Agreement for Covered Parking
All Exhibits listed above are attached to
the Lease and expressly made a part
hereof.
GENERAL LEASE PROVISIONS
16. LEASE
TERM. Landlord does hereby rent and lease to Tenant the
Premises for the Term hereof, subject to
the terms and conditions of this Lease.
Upon substantial completion of construction
to the Premises as further set forth
in Exhibit "D" herein, Landlord shall, at
its expense, direct Ray Harsh Design
to determine the Rentable Area of the
Premises and Building as actually
constructed and certify as to same to both
Landlord and Tenant. Such measurement
and certification shall be based upon the
ANSI/BOMA Z65.1-1996 Standard Method
for Measuring Floor Area in Office
Buildings. In the event that the Rentable
Area of the Building or Premises as
determined by Ray Harsh Design is greater or
less than the amount specified in Paragraph
7 or 8 of this Lease, the Rentable
Area of the Building or Premises shall be
adjusted to equal the amount as so
determined, and the Base Rental and any
other amounts specified in this Lease as
a function of the Rentable Area of the
Building or Premises shall be adjusted
proportionately. No easement for light, air
or view is granted or implied
hereunder. Promptly after the Commencement
Date, Landlord or Landlord's agent
shall send to Tenant a supplemental notice
substantially in the form of Exhibit
"E" attached hereto and by this reference
made a part hereof specifying the
Rental Commencement Date and the date of
expiration of the Term. "Lease Year,"
as used herein, means a period of twelve
(12) consecutive calendar months, or a
portion thereof falling within the Term,
with the first Lease Year commencing
with the first day of the first calendar
month beginning on or after the
Commencement Date and each subsequent Lease
Year commencing on each anniversary
during the Term of the first day of the
first Lease Year.
4
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The period, if any, from the Commencement
Date to the beginning of the first
Lease Year shall be treated as if it were
part of the first Lease Year under
this Lease for all purposes.
17. COMPLETION
OF IMPROVEMENTS. Landlord agrees to promptly proceed to
prepare the Premises for Tenant's occupancy
in accordance with the terms of this
Lease and in accordance with the work
schedule attached hereto as Exhibit "D".
Tenant shall be allowed access to the
Premises beginning sixty (60) days prior
to the Commencement Date for the purpose of
moving furniture, fixtures and
equipment into the Premises and installing
computer and telephone systems as
further described in Paragraph 7 of Exhibit
D.
18. BASE
RENTAL.
(a) Beginning
with the Commencement Date, Tenant shall pay in
advance to Landlord at Landlord's Address
For Rental Payments, or at such other
place as Landlord shall designate in
writing, promptly, without demand,
deduction or offset, on the first day of
each month during the Term the Base
Rental, which shall be adjusted from time
to time as provided in Paragraph 11
hereof. If the Term commences on a day
other than the first day of a month, or
terminates or expires on a day other than
the last day of a month, the Base
Rental for such partial month shall be
prorated based upon the actual number of
days in such a month. In the event the Base
Rental to be paid hereunder, or
other charges as hereinafter provided, is
not received by Landlord by the
seventh (7th) day of the month due,
Landlord shall have the right to impose a
late charge of three and one half percent
(3.5%) of all amounts past due.
Provided rental payments are received no
later than the tenth (10) day of the
month due, the Landlord will not impose an
interest charge nor will rental
payments be considered past due for one (1)
rental payment per Lease Year. Such
"grace periods" shall be on a
non-cumulative basis for the Term of this Lease.
(b)
Simultaneously with the execution of this Lease, Tenant shall
pay to Landlord the Initial Installment.
Such sum shall be applied by Landlord
to the first complete month's installment
of Base Rental as it becomes due
hereunder. If the first month is prorated,
the amount shall be due promptly
after Tenant's receipt of a notice from
Landlord stating the amount due for said
prorated month.
19. ADDITIONAL
RENT.
(a) The
following terms, as used in this Lease, shall have the
following meanings:
"ESCALATION YEAR" means each calendar year, commencing with
the first full calendar year following the calendar year in which
the
Commencement Date occurs, falling, in whole or in part, within
the
Term.
"OPERATING EXPENSES" are defined in Exhibit "C".
"BASE YEAR" shall mean the Operating Expenses incurred by
Landlord for Calendar Year 2005.
"EXCESS EXPENSES" means the amount by which the annual
Operating Expenses incurred by Landlord during each successive
Escalation Year exceed the Operating Expenses incurred by the
Landlord
during the Base Year, or for Calendar Year 2005.
"TENANT'S SHARE" means Tenant's pro rata share of the Excess
Expenses for a given Escalation Year, which shall be determined
with
respect to each item of expense by dividing the same by the
Rentable
Area of the Building and multiplying the resulting quotient by
the
Rentable Area of the Premises. Based upon the initial rentable
area
set forth in Paragraph 7 above, (100,721 rentable square feet),
"Tenant's Share" shall initially be 66.01%.
(b) Tenant
shall pay to Landlord as additional rent (the
"ADDITIONAL RENT"), for each Escalation Year during the Term,
Tenant's
Share for such Escalation Year.
(c) As soon as
practical prior to the beginning of each Escalation
Year (including during any extension or
renewal of the Term), Landlord shall
deliver to Tenant a statement setting forth
(i) Landlord's projection of the
Operating Expenses for the upcoming
Escalation Year, (ii) Tenant's Share for the
upcoming Escalation Year and (iii) a
computation of the monthly installments to
be paid by Tenant toward Tenant's Share for
the upcoming Escalation
5
<PAGE>
Year, which amount shall be one-twelfth
(1/12) of the amount determined pursuant
to (ii) above. In the event such statement
is not delivered until after the
commencement of the Escalation Year, Tenant
shall continue to pay Tenant's Share
based on the prior year's statement until
the statement for the then-current
Escalation Year is delivered, and when such
statement is delivered, Tenant shall
pay to Landlord the amount by which the
monthly installments of Tenant's Share
shown on such statement exceed the
installments of Tenant's Share actually paid
by Tenant for the expired months in the
then-current Escalation Year within
thirty (30) days after the rendering of
such statement by Landlord, and from and
after the delivery of such statement Tenant
shall pay to Landlord in advance on
the first day of each calendar month
following the rendering of such statement
the monthly installments provided for in
such statement, such payments to
continue until another statement is
rendered.
(d) Commencing
with Landlord's statement delivered following the
beginning of the second full Escalation
Year occurring during the Term, Landlord
shall also set forth (i) the actual amount
of the Operating Expenses incurred
during the preceding Escalation Year, and
(ii) any underpayment or overpayment
by Tenant based on Tenant's monthly
payment(s) (if any) of Tenant's Share made
during the preceding Escalation Year. In
the event of any underpayment by
Tenant, Tenant shall pay the full amount of
such deficiency to Landlord within
thirty (30) days of receipt of Landlord's
statement. Any overpayment by Tenant
shall be paid to Tenant within thirty (30)
days of delivery of Landlord's
statement. Within thirty (30) days
following receipt of Landlord's statement,
Tenant may notify Landlord that it elects
to audit Landlord's books and records
in order to confirm the accuracy of such
statement and Landlord shall make such
books and records available for Tenant's
review at Landlord's offices within
thirty (30) days thereafter for such period
of time as Tenant may reasonably
require in order to complete its review. If
the audit reveals a discrepancy and
the parties are in agreement that an item
of Operating Expenses was improperly
included or excluded or that Tenant's Share
was improperly calculated then
Landlord or Tenant, as the case may be,
shall either i) refund the appropriate
amount within thirty (30) days of the date
of such determination or ii)
reconcile such amount against the next due
monthly installment of Base Rental
and/or Additional Rent.
(e) For the
Escalation Year in which the Term expires, Landlord
shall prorate Tenant's Share based on the
number of days of such Escalation Year
falling within the Term. In any
underpayment, Tenant shall promptly pay the full
amount thereof to Landlord. If Tenant has
overpaid, Landlord shall promptly
reimburse Tenant the full amount of such
overpayment.
(f) If the
Building is not fully occupied during any calendar year
of the Term, including for purposes hereof
the Base Year, the Operating Expenses
and the Excess Expenses for purposes of
this Paragraph 19 shall be determined as
if the Building had been fully occupied
during such calendar year (and fully
assessed for real estate tax purposes). For
the purposes of this Paragraph 19,
"fully occupied" shall mean occupancy of
100% of the rentable area of the
Building.
20. BROKERAGE
DISCLOSURE. COLONIAL PROPERTIES SERVICES, INC. ("CPSI") HAS
REPRESENTED LANDLORD IN THIS LEASE.
CORPORATE REALTY ASSOCIATES, INC. HAS
REPRESENTED TENANT IN THIS LEASE. EACH OF
CPSI AND CORPORATE REALTY ASSOCIATES,
INC. SHALL BE PAID A COMMISSION BY LANDLORD
PURSUANT TO THE TERMS OF A SEPARATE
AGREEMENT. Each of Landlord and Tenant
shall indemnify the other from the claims
of any other brokers making a claim through
such party.
21. USE. The
Premises shall be used for business office and related
ancillary purposes and for no other
purposes. The Premises shall not be used for
any illegal purposes, nor in violation of
any regulation of any governmental
body, nor in any manner to create any
nuisance or trespass, nor in any manner to
vitiate the insurance or increase the rate
of insurance on the Premises or the
Building. Tenant shall, at its own expense,
promptly comply with any and all
municipal, county, state and federal
statutes, regulations and/or requirements
applicable or relating to the use,
occupancy or condition of the Premises.
Landlord believes to the best of its
knowledge, that as of the effective date
hereof, the Building complies with
applicable codes and ordinances in connection
with Tenant's intended use.
22. TENANT'S
ACCEPTANCE. Tenant acknowledges that it has been afforded an
opportunity to inspect the Premises and
accepts the Premises "as is" and as
suited for Tenant's intended use thereof,
subject only to the provisions of
Paragraph 17. Landlord shall ensure that
base Building mechanical, electrical
and plumbing systems shall be in proper
repair and good working order on the
Commencement Date. Upon completion of the
improvements contemplated by Paragraph
17, or occupancy of the Premises by Tenant,
whichever first occurs, Tenant shall
be deemed to have accepted any improvements
made since the date hereof, subject
only to items detailed on a punch list to
be agreed upon by Landlord and Tenant
prior to Tenant's occupancy of the
Premises.
6
<PAGE>
23. ASSIGNMENT
AND SUBLETTING.
(a) Tenant
shall not, whether by operation of law or otherwise,
assign, transfer, hypothecate or otherwise
encumber this Lease or any interest
herein and shall not sublet or permit the
use by others of the Premises or any
portion thereof without obtaining in each
instance Landlord's prior written
consent, which consent Landlord shall not
unreasonably withhold or delay. Any
such assignment, sublease, transfer or
hypothecation without Landlord's prior
written consent shall be void and shall, at
Landlord's option, constitute a
default under this Lease. No acceptance by
Landlord of any rent or any other sum
of money from any assignee, sublessee or
other category of transferee shall
release Tenant from any of its obligations
hereunder or be deemed to constitute
Landlord's consent to any assignment,
sublease, transfer or hypothecation, and
in any event, Tenant shall remain primarily
liable on this Lease for the entire
Term hereof and shall in no way be released
from the full and complete
performance of all the terms, conditions,
covenants and agreements contained
herein.
(b) If Tenant
should desire to assign this Lease or sublet the
Premises or any part thereof, Tenant shall
give Landlord prior written notice,
which notice shall specify (i) the name and
business of the proposed assignee or
sublessee, (ii) the amount and location of
the space affected, (iii) the
proposed effective date and duration of the
subletting or assignment, and (iv)
the proposed rental or other consideration
to be paid to Tenant by such
sublessee or assignee. Landlord shall then
have a period of twenty (20) days
following receipt of such notice within
which to notify Tenant in writing that
Landlord elects (1) to terminate this Lease
as to the space so affected as of
the date so specified by Tenant, in which
event Tenant will on that date be
relieved of all further obligations to pay
rent hereunder as to such space, (2)
to permit Tenant to assign or sublet such
space, in which event if the proposed
rental between Tenant and sublessee for the
space affected is greater than the
Base Rental as adjusted under this Lease
applicable to the space affected, or if
consideration other than rental is paid to
Tenant by such assignee or sublessee
with respect to the affected space, then
fifty percent (50%) of such excess
rental and other consideration, net of the
reasonable costs of such assignment
or subletting including but not limited to
brokerage commissions and tenant
improvement costs, shall be deemed
additional rent owed by Tenant to Landlord
under this Lease, and the amount of such
excess shall be paid by Tenant to
Landlord in the same manner that Tenant
pays the Base Rental hereunder and in
addition thereto, (3) to withhold consent
to Tenant's assigning or subleasing
such space and to continue this Lease in
full force and effect as to the entire
Premises which consent will not be
unreasonably withheld or delayed, or (4) to
consent to Tenant assigning or subleasing
such space, subject to Landlord's
approval of the assignment or sublease
document. Tenant agrees to reimburse
Landlord in an amount of $500.00 for
Landlord's attorneys' fees and costs
incurred in connection with the processing
and documentation of each request
made pursuant to this Paragraph.
Notwithstanding the giving by Landlord of its
consent to any assignment or sublease with
respect to the Premises, no such
assignee or sublessee may exercise any
expansion option, right of first refusal
option, or renewal option under this Lease
except in accordance with a separate
written agreement entered into directly
between such assignee or sublessee and
Landlord, and, absent Landlord's written
agreement to the contrary, all option
rights of Tenant, and all lease rights of
Tenant created pursuant to the
exercise of any option rights, with respect
to any space so assigned or
subleased shall be extinguished.
(c) The sale
or transfer of Tenant's voting stock (if a
corporation) or a partnership interest (if
a partnership) or member interest (if
a limited liability company) in Tenant
resulting in the transfer of control of a
majority of such stock or interest, or the
occupancy of the Premises by any
successor firm of Tenant or by any firm
into which or with which Tenant may
become merged or consolidated shall be
deemed an assignment of this Lease
requiring the prior written consent of
Landlord unless the resulting company
from such merger or consolidation has a
reputation as good or better than
Tenant, has a net worth (in accordance with
GAAP) as good or better than Tenant,
continues to use the Premises as provided
for herein and does not adversely
affect the tenant mix that Landlord has in
the Building where the Premises is
located.
(d) Provided
Landlord is notified in writing by Tenant prior to
any Assignment or Sublease, no consent of
Landlord shall be required for an
assignment or sublease to any parent,
subsidiary, successor, affiliate or
otherwise related company of Tenant
(including without limitation, any entity of
which Tenant or Tenant's parent owns at
least a 25% interest), or which result
from a consolidation or merger with Tenant
and/or Tenant's parent organization,
or which is the transferee of substantially
all of Tenant's assets. Any
assignees must have similar or greater
financial strength as that of Tenant and
must have a tenant profile and use of space
appropriate to the Building. Said
tenant profile shall include, but not be
limited to, employee density, parking
requirements and any other reasonable
standards/uses found in comparable office
buildings in Birmingham, Alabama.
7
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24. HOLDING
OVER. If Tenant remains in possession after the expiration of
the Term, or the termination of this Lease
without Landlord's consent, it shall
be a tenant at sufferance only and there
shall be no renewal hereof by operation
of law. In such event, such occupancy shall
be at an amount equal to one hundred
fifty percent (150%) of the Base Rental in
effect immediately prior to the
expiration or termination of this Lease and
shall otherwise be subject to all of
the covenants and provisions of this Lease.
Tenant shall be liable to Landlord
for all damages incurred by Landlord as a
result, in whole or in part, of
Tenant's failure to deliver possession of
the Premises to Landlord upon
expiration or termination of the Term.
Notwithstanding the above, in the event
Tenant provides Landlord irrevocable
written notice no later than six months
prior to the expiration of the Term of this
Lease, Tenant shall have the right
to remain in the Premises for up to two
months beyond the expiration of the Term
upon the same Base Rental and Additional
Rental then in effect immediately prior
to the expiration of the Term. Said written
notification shall specify the
number of days (the "Specified Number of
Days"), up to the equivalent of two
months, that Tenant desires to remain in
the Premises beyond the Lease
expiration and Tenant shall be subject to
the penalties set forth above in the
event Tenant remains in possession beyond
the Specified Number of Days.
25.
ALTERATIONS AND IMPROVEMENTS.
(a) No
alteration in, or addition to, the Premises will be made
without first obtaining Landlord's prior
written consent, which Landlord shall
not unreasonably withhold or delay, and any
such work consented to, although
paid for by Tenant, will be done by
Landlord with Landlord reserving the right
to charge Tenant a fee equal to five
percent (5%) of the cost of the work for
supervision of such alterations or
additions. Notwithstanding the foregoing,
Tenant may elect to perform such approved
alteration or addition itself, so long
as such alteration or addition does not
affect the Building mechanical,
electrical or plumbing systems and in such
event shall not be charged a
supervision fee.
(b) All
erections, additions, fixtures and improvements, whether
temporary or permanent in character (except
only the trade fixtures and movable
office furniture of Tenant) made in or upon
the Premises, shall be and remain
Landlord's property and shall remain upon
the Premises at the expiration or
earlier termination of this Lease, with no
compensation to Tenant. Landlord
reserves the right to require Tenant to
remove any such improvements or
additions at the termination hereof or
within fifteen (15) days thereafter.
Notwithstanding anything contained herein
to the contrary, Tenant shall not be
required to remove any improvements or
additions unless Landlord expressly
reserves the right to require such removal
by written notice to Tenant at the
same time Landlord consents to such
improvement or addition. Landlord may, at
its election, repair any damage to the
Premises caused by or in connection with
the removal of any articles of personal
property, business or trade fixtures,
alterations, improvements and
installations, and all costs for such repairs
shall be at Tenant's expense.
(c)
Notwithstanding the foregoing, Tenant shall be permitted to
make cosmetic alterations, installations,
additions or improvements to the
interior of the Premises which are
non-structural and which do not affect the
mechanical or utility facilities or systems
or materially impair the value of
the Premises without first obtaining
Landlord's written consent, provided Tenant
gives Landlord notice of such alterations,
installations, additions or
improvements and Tenant's contractors and
vendors follow Landlord's established
procedures, rules and regulations for such
alterations, installations, additions
or improvements and do not disrupt the
operations of other tenants in the
Building. Notwithstanding anything
contained herein to the contrary, Tenant may
employ, without Landlord's verbal or
written consent, contractors in connection
with any services, provisions,
installations, alterations or maintenance of or
to Tenant's personal property such as but
not limited to the installation and
maintenance of its phone and data systems,
computer systems, and its furniture,
fixtures and equipment so long as Tenant's
contractors and vendors follow
Landlord's established procedures, rules
and regulations for such services,
provisions, alterations, installations or
maintenance and do not disrupt the
operations of other tenants in the
Building.
26. REPAIRS TO
THE PREMISES. Unless caused by Landlord or Landlord's
employee, agent or party subject to
Landlord's control or supervision, Landlord
shall not be required to make any repairs
or improvements to the Premises,
except structural repairs necessary for
safety and tenantability. Except as
provided for in the preceding sentence,
Tenant shall, at its own cost and
expense, keep in good repair all portions
of the Premises, including but not
limited to windows, glass and plate glass,
doors, interior walls and finish
work, floors and floor coverings, and shall
take good care of the Premises and
its fixtures and permit no waste, except
normal wear and tear with due
consideration for the purpose for which the
Premises are leased.
27. ENTRY BY
LANDLORD. Landlord or its agents may enter the Premises at
reasonable hours to exhibit same to
prospective purchasers or tenants, to
inspect the Premises to see that Tenant is
complying with all of its
8
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obligations hereunder, and to make repairs,
improvements, alterations or
additions which Landlord shall deem
necessary for the safety, preservation or
improvement of the Building or to make
repairs or modifications to any adjoining
space.
28. DEFAULT
AND REMEDIES.
(a) In
addition to the circumstances hereinbefore set forth, the
occurrence of any of the following shall
constitute a default of this Lease by
Tenant: (i) the filing of any voluntary
petition or similar pleading under any
section or sections of any bankruptcy or
insolvency act by or against Tenant or
the institution of any voluntary or
involuntary proceeding in any court or
tribunal to declare Tenant insolvent or
unable to pay Tenant's debts as they
mature and, in the case of an involuntary
petition or proceeding, the petition
or proceeding is not dismissed within
forty-five (45) days from the date it is
filed, or the making of an assignment for
the benefit of its creditors by
Tenant, or the appointment of a trustee or
receiver for Tenant or for the major
part of Tenant's property which appointment
is not revoked within thirty (30)
days; (ii) Tenant's failure to pay the
monthly Base Rental, Additional Rent or
any other sum due hereunder, if such
nonpayment continues for five (5) or more
business days after the date notice of such
late payment is provided to Tenant;
(iii) Tenant's default in the prompt and
full performance of any other provision
of this Lease and Tenant does not cure the
default within twenty (20) days after
written demand by Landlord that the default
be cured provided, however, that if
the default cannot reasonably be cured
within such time period, then Tenant
shall not be in default if Tenant commences
to cure such default within such
time period and thereafter diligently
pursues the performance thereof to
completion (unless the default involves a
condition dangerous to person or
property, or which will become worse if no
immediate action is taken to cure
such default, in which event such default
shall be cured forthwith upon
Landlord's demand); (iv) Tenant shall do or
permit to be done anything that
creates a lien upon the Premises or the
Building if such lien is not removed
within twenty (20) days after written
notice thereof to Tenant. Landlord shall
have no obligation to notify Tenant of any
violations of this Lease, except
monetary, on more than two (2) occasions
during any Lease Year, and an event of
default shall be deemed to have occurred
hereunder in such circumstances without
the necessity of any prior notice by
Landlord or opportunity to cure by Tenant.
(b) Upon the
occurrence of any default by Tenant as aforesaid,
Landlord, in addition to any and all other
rights or remedies it may have at law
or in equity, shall have the option of
pursuing any one or more of the following
remedies:
(i) Landlord
shall have the immediate right of reentry
and may remove all property from the Premises to a warehouse or
elsewhere at the cost of, and for the account of Tenant, all
without
being deemed guilty of trespass or becoming liable for any loss,
damage
or damages which may be occasioned thereby;
(ii)
Landlord may terminate this Lease by giving notice of
termination, in which event this Lease shall expire and terminate
on
the date specified in such notice of termination, with the same
force
and effect as though the date so specified were the date herein
originally fixed as the expiration date of the Term of this Lease,
and
all rights of Tenant under this Lease and in and to the Premises
shall
expire and terminate, and Tenant shall remain liable for all
obligations under this Lease arising up to the date of such
termination, and Tenant shall surrender the Premises to Landlord on
the
date specified in such notice;
(iii)
Landlord may terminate this Lease as provided in
subparagraph 28(b)(ii) hereof and recover from Tenant all
damages
Landlord may incur by reason of Tenant's default, including,
without
limitation, a sum which, at the date of such termination,
represents
the then present value (calculated at the rate of twelve percent
(12%)
interest per annum) of the excess, if any, of (A) the Base
Rental
(including without limitation, increases in Base Rental pursuant
to
Paragraph 11 hereof), Additional Rent, and all other sums which
would
have been payable hereunder by Tenant for the period commencing
with
the day following the date of such termination and ending with the
date
hereinbefore set for the expiration of the full term hereby
granted,
over (B) the aggregate reasonable rental value of the Premises
(less
reasonable brokerage commissions, attorneys' fees and other
costs
relating to the reletting of the Premises) for the same period, all
of
which excess sum shall be deemed immediately due and payable;
(iv)
Landlord may, from time to time without terminating
this Lease, and without releasing Tenant in whole or in part
from
Tenant's obligation to pay Base Rental, Additional Rent and all
other
amounts due under this Lease and perform all of the covenants,
conditions and agreements to be performed by Tenant
9
<PAGE>
provided in this Lease, make such alterations and repairs as
necessary
to relet the Premises, and, after making such alterations and
repairs,
Landlord may, but shall not be obligated to, relet the Premises or
any
part thereof for such term (which may be for a term extending
beyond
the Term of this Lease) at such rental and upon such other terms
and
conditions as Landlord in its sole discretion may deem advisable
or
acceptable; upon each reletting, all rentals received by Landlord
from
such reletting shall be applied first, to the payment of any
indebtedness other than rent due hereunder from Tenant to
Landlord;
second, to the payment of any costs and expenses of such
reletting,
including brokerage fees and attorneys' fees, and of costs of
such
alterations and repairs; third, to the payment of the Base
Rental,
Additional Rent and other charges due and unpaid hereunder; and
the
residue, if any, shall be held by Landlord and applied against
payments
of future Base Rental, Additional Rent or other charges as the same
may
become due and payable hereunder. In no event shall Tenant be
entitled
to any excess rental received by Landlord over and above charges
that
Tenant is obligated to pay hereunder, including Base Rental,
Additional
Rent and all other charges; if such rentals received from such
reletting during any month are less than those to be paid during
the
month by Tenant hereunder, including Base Rental, Additional Rent
and
all other charges, Tenant shall pay any such deficiency to
Landlord,
which deficiency shall be calculated and paid monthly. Tenant
shall
also pay Landlord as soon as ascertained and upon demand all costs
and
expenses incurred by Landlord in connection with such reletting and
in
making any alterations and repairs which are not covered by the
rentals
received from such reletting; notwithstanding any such
reletting
without termination, Landlord may at any time thereafter elect
to
terminate this Lease for such previous breach.
(c) All sums
past due from Tenant under this Lease shall bear
interest at fifteen percent (15%) per
annum, but in no event in excess of the
maximum lawful rate, from due date until
paid in full.
(d) Tenant
shall and hereby agrees to pay all costs and expenses
incurred by Landlord in enforcing any of
the covenants and agreements of this
Lease, or as a result of an action brought
by Landlord against Tenant for an
unlawful detainer of the Premises, and all
such costs, expenses and attorneys'
fees shall, if paid by Landlord, be paid by
Tenant to Landlord within fifteen
(15) days of Landlord's written demand
therefor, together with interest at
fifteen percent (15%) per annum, but in no
event in excess of the maximum lawful
rate, from the date of Landlord's payment
thereof.
(e) In the
event of a default hereunder beyond applicable periods
of notice and cure, Landlord may declare
Tenant in default under any or all
other agreements between Landlord and
Tenant or any affiliate of Tenant, whether
in effect now or following the date of this
Lease.
29. LANDLORD'S
SERVICES. Landlord shall render certain services and
supplies in accordance with and as
described in this Paragraph 29, as follows:
(i) Landlord shall cause the Premises to be
cleaned between the hours of 6:00 PM
and 11:00 PM five (5) nights weekly,
excluding holidays, at least in accordance
with the standards attached hereto as
Exhibit "G". A day porter shall be
provided to the Building five (5) days per
week except for holidays; (ii)
Landlord shall furnish electric current for
Building standard tenant lighting
and small business machinery only from
electric circuits designated by Landlord
for Tenant's use. Tenant's usage of the
electrical panels on any given floor
shall not exceed Tenant's pro rata share
(based on rentable square footage) of
the panels' capacity. Tenant will not use
any electrical equipment which in
Landlord's opinion will overload the wiring
installations or interfere with the
reasonable use thereof by other users in
the Building. Tenant shall not have
access to any electrical closets in the
Building; any electrical engineering
design or contract work shall be performed
at Tenant's expense by Landlord or an
electrical engineer and/or electrical
contractor designated by Landlord. All
invoices respecting the design,
installation and maintenance of the facilities
requested by Tenant shall be paid within
thirty (30) days of Tenant's receipt
thereof. Landlord's charge to Tenant for
the cost of electric current so
provided, which shall not exceed the rate
per kilowatt hour amount charged by
Alabama Power Company, shall be paid within
thirty (30) days of receipt of
invoice by Tenant; (iii) Landlord shall
furnish seasonable air conditioning and
heating pursuant to applicable ASHREA
standards during normal business hours
(7:00 AM to 6:00 PM Monday through Friday
and 8:00 AM until 1:00 PM Saturday),
said heat or air conditioning not being
furnished Sunday or holidays observed by
Landlord. Holidays which are observed by
Landlord are New Years Day, Memorial
Day, Independence Day, Labor Day,
Thanksgiving Day and the following Friday, and
Christmas Day. Said air conditioning and
heating shall be based on the following
criteria (based on a density of one person
per two hundred rentable square feet
and provided Tenant's electrical use does
not exceed six (6) watts per square
foot of consumed load); a) inside summer
temperature of 72-76 degrees Fahrenheit
when an outside temperature of not greater
than 94 degrees Fahrenheit exists and
b) inside winter temperature of 70-74
degrees Fahrenheit when an outside
temperature of not less than 32 degrees
Fahrenheit exists. Should Tenant desire
either heating or air conditioning at other
times, Landlord agrees to provide
same, but at
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<PAGE>
Tenant's expense. The cost of Tenant's use
for HVAC service after the Hours of
Operation shall be charged at Landlord's
actual additional utility cost for
providing such service with no depreciation
charge or Landlord administrative
fee and shall, in no event, exceed the rate
per kilowatt hour billed by Alabama
Power Company, which charge Tenant shall
pay promptly upon being billed
therefor. If Tenant installs equipment
which in Landlord's opinion produces
enough heat to cause comfort problems in
the Building or any part thereof, or if
Tenant desires a supplemental air
conditioning system and Landlord has approved
same, then Landlord may, at its option,
either cause to be designed or permit
Tenant to design a supplemental air
conditioning system, subject to Landlord's
approval, and Landlord shall install such
system at Tenant's expense
substantially in accordance with such
design. If Tenant has requested such
supplemental system, Tenant shall be
responsible for determining that the design
of such system is adequate for its needs.
Tenant agrees to pay Landlord for such
equipment, design, installation, metering
and consumption of electricity for
supplemental air conditioning and to
maintain such equipment at Tenant's
expense, (iv) Standard passenger and
freight elevator service when the Building
is open and at least one passenger elevator
when the Premises are closed. The
elevator inspection certificate will be
kept on file in the management office
for the Building, (v) Hot and cold water to
serve the Building during the hours
when the Building is open as required for
lavatory and drinking purposes and
such other uses as are permitted pursuant
to this Lease. Subject to Paragraphs
30 and 40 herein, in the event that there
is a material interruption of a
critical service (a "Critical Service")
being provided by Landlord under this
Lease and such Critical Service
interruption is within Landlord's control to
restore (Critical Service being
specifically defined as electricity, water,
elevator service or heating and air
conditioning as further described in this
Paragraph 29 above) and such Critical
Service interruption results in Tenant's
inability to reasonably access and/or use
the Premises for Tenant's intended
business operations and such condition
continues for fifteen (15) days after
written notice to Landlord of the same,
then (beginning with the sixteenth day)
Tenant's Base Rental shall be equitably
abated for that portion of the Premises
that Tenant is unable to use for Tenant's
intended business operations until
such Critical Service is restored to the
Premises unless such Critical Service
can not reasonably be restored within said
fifteen (15) day period and Landlord
has begun such restoration and restores
said Critical Service within five (5)
days after said fifteen (15) day period.
Notwithstanding the above, if such
material interruption of said Critical
Service continues for a period in excess
of five (5) months after written notice to
Landlord from Tenant and as a result
of such interruption, Tenant cannot
reasonably access and/or use the Premises
for Tenant's intended business operations,
then Tenant may terminate this Lease
upon 30 days written notice to Landlord and
this Lease shall terminate at the
end of said thirty (30) day period unless
Landlord has restored said Critical
Service within said thirty (30) day
period.
30.
DESTRUCTION OF PREMISES. Should the Premises be so damaged by fire
or
other cause that rebuilding or repairs
cannot, in the reasonable opinion of
Landlord's and Tenant's architect, be
completed within one hundred eighty (180)
days from the date of the fire, or other
cause of damage, or should Landlord
refuse to build or make such repairs
because the cost exceeds available
insurance proceeds, then either Landlord or
Tenant may terminate this Lease by
written notice to the other given within
thirty (30) days of the date of such
damage or destruction, in which event rent
shall be abated from the date of such
damage or destruction. However, if the
damage or destruction is such that
rebuilding or repairs can be completed
within one hundred eighty (180) days,
Landlord covenants and agrees, subject to
the provisions of this Paragraph 30,
to make such repairs with reasonable
promptness and dispatch and to allow Tenant
an abatement in the rent for such time as
the Premises are untenantable or
proportionately for such portion of the
Premises as shall be untenantable, and
Tenant covenants and agrees that the terms
of this Lease shall not be otherwise
affected. Such repairs and restoration
relating to Tenant's initial leasehold
improvements or improvements otherwise made
by or for Tenant shall be made at
Tenant's expense in accordance with plans
and specifications approved by
Landlord and Tenant. Repairs and
restoration to base Building improvements
required by this Lease to be furnished by
Landlord at its expense (other than
Tenant's initial leasehold improvements)
shall be made at Landlord's expense. In
no event shall Landlord be required to
repair or replace any trade fixtures,
furniture, equipment or other property
belonging to Tenant; nor shall Landlord
have any obligation to incur any cost to
repair, reconstruct or restore the
Premises or the Building in excess of
insurance proceeds from the casualty
necessitating such work that are made
available to Landlord, under its sole
control, for such work. Notwithstanding
anything to the contrary contained in
this Paragraph, Landlord shall not have any
obligation whatsoever to repair,
reconstruct or restore the Premises when
the damage resulting from any casualty
occurs during the last twelve (12) months
of the Term.
31.
CONDEMNATION OF PREMISES.
(a) If any
part of the Premises shall be taken or appropriated by
any public or quasi-public authority under
the power of eminent domain, Landlord
shall have the right, at its option, to
terminate this Lease effective as of the
date possession is taken by said authority
(unless all of the Premises are so
taken in which case this Lease shall
11
<PAGE>
terminate), and shall be entitled to any
and all income, rent or award and any
interest thereon whatsoever which may be
paid or made in connection with such
public or quasi-public use or purpose.
Tenant hereby assigns to Landlord its
entire interest in any and all such awards,
and shall have no claim against
Landlord for the value of any portion of
the unexpired Term. If a part of the
Premises shall be so taken or appropriated,
and Landlord does not elect to
terminate this Lease, the Base Rental
thereafter to be paid shall be reduced by
an amount bearing the same ratio to the
total amount of Base Rental as the
rentable area of the Premises so taken
bears to the entire Premises.
(b) If any
part of the Building other than the Premises shall be
so taken or appropriated, Landlord shall
have the sole right, at its option, to
terminate this Lease and shall be entitled
to the entire award as above
provided, and in such case Tenant shall
likewise have no claim against Landlord
for the value of any unexpired Term of this
Lease.
(c) Nothing
hereinbefore contained shall be deemed to deny to
Tenant its right to claim from the
condemning authority compensation or damages
for its trade fixtures and personal
property, provided the condemning authority
makes a separate award therefor that does
not in any way decrease or reduce
Landlord's right to any compensation or
damages from such condemnation.
(d) If more
than 25% of the Premises shall be taken or
appropriated (or a smaller portion which
includes a critical function of
Tenant's business operation such as the
computer room and Tenant's use of the
Premises to conduct its normal business
operations are materially and adversely
affected) and Landlord does not elect to
terminate this Lease, Tenant shall have
the right to terminate this Lease by
written notice to Landlord if the portion
of the Premises remaining after such taking
or appropriation is not reasonably
suitable for the continued conduct of
Tenant's business therein in substantially
the same manner as such business was
conducted immediately prior to such taking
or appropriation.
32.
INSURANCE/INDEMNIFICATION.
(a) Tenant
shall carry special form/all risk insurance insuring
Tenant's interest in the improvements and
betterments to the Premises, including
initial improvements installed by Landlord,
and any and all furniture,
equipment, supplies and other property
owned, leased, held or possessed by it
and contained therein, in an amount equal
to the full replacement cost thereof,
subject to deductible amounts reasonably
satisfactory to Landlord, plus business
interruption insurance respecting Tenant's
business conducted from the Premises
in an amount reasonably satisfactory to
Landlord. Tenant shall also procure and
maintain throughout the Term a policy or
policies of commercial general
liability insurance, including contractual
liability, insuring Tenant, Landlord,
any manager of the Building, the asset
manager of the Building, and any
mortgagee which has an interest in or lien
upon the Building, as additional
insureds as their interest may appear,
against any and all liabilities for
injury to or death of a person or persons
and for damage to property occasioned
by or arising out of any construction work
being done on the Premises at the
direction of Tenant or Tenant's
contractors, subcontractors, employees, agents,
invitees or representatives, or arising out
of the condition, use or occupancy
of the Premises, or in any way occasioned
by or arising out of the activities of
Tenant or its agents, employees or
licensees in the Premises, or other portions
of the Building, Building site and adjacent
parking areas in amounts not less
than $3,000,000.00 with respect to any one
casualty or occurrence and
$1,000,000.00 with respect to property
damage, including fire legal liability.
Tenant shall also carry such other types of
insurance in form and amount which
Landlord shall reasonably deem to be
prudent for Tenant to carry, should the
circumstances or conditions so merit Tenant
carrying such type of insurance. To
the full extent permitted by law, Tenant
waives all right of recovery against
Landlord for, and agrees to release
Landlord from liability for, loss or damage
to the extent such loss or damage is
covered by valid and collectible insurance
in effect at the time of such loss or
damage or would be covered by the
insurance required to be maintained under
this Lease by Tenant.
(b) All
insurance policies procured and maintained by Tenant
pursuant to this Paragraph 32 shall be
carried with companies licensed to do
business in the State of Alabama with a
Best policyholder rating of not less
than A-, and a Best financial size rating
of not less than VIII, and shall be
noncancelable and not subject to material
change except after thirty (30) days
written notice to Landlord and any
designees of Landlord. Such policies or duly
executed certificates of insurance with
respect thereto shall be delivered to
Landlord prior to the date that Tenant
takes possession of the Premises, and
renewals thereof as required shall be
delivered to Landlord at least thirty (30)
days prior to the expiration of each
respective policy term.
(c) Tenant
shall have included in all policies of fire, extended
coverage, business interruption and loss
of
12
<PAGE>
rents insurance obtained by Tenant
hereunder, a waiver by the insurer of all
right of subrogation against Landlord in
connection with any loss or damage
thereby insured against. Any additional
premium for such waiver shall be paid by
Tenant. To the full extent permitted by
law, Tenant waives all right of recovery
against Landlord for, and agrees to release
Landlord from liability for, loss or
damage to the extent such loss or damage is
covered by valid and collectible
insurance in effect at the time of such
loss or damage or would be covered by
the insurance required to be maintained
under this Lease by Tenant.
(d) Tenant hereby
indemnifies and holds Landlord and its agents
and employees, harmless from and against
any injury, expense, damage, liability
or claim, imposed on Landlord and its
agents and employees, by any person
whomsoever, whether due to damage to the
Premises, claims for injuries to the
person or property of any other tenant of
the Building or Park or of any other
person in or about the Building, or
administrative or criminal action by a
governmental authority, whether such
injury, expense, damage, liability or claim
results from the act, omission, negligence,
misconduct or breach of any
provisions of this Lease by Tenant, the
agents, servants, invitees or employees
of Tenant or from any accident or incident
occurring within the Premises,
however and by whomever caused, including,
but not limited to Tenant's breach of
its obligations and covenants under
Paragraph 38 with respect to Hazardous
Substances. Tenant further agrees to
reimburse Landlord and its agents and
employees for any costs or expenses,
including, but not limited to, court costs
and reasonable attorneys' fees, which
Landlord and its agents and employees may
incur in investigating, handling or
litigating any such claim or any action by a
governmental authority. Paragraph 32 (d)
does not apply in cases of gross
negligence or the willful misconduct of the
Landlord and or its agents and or
employees.
(e) Unless due
directly to the gross negligence or willful
misconduct of the Tenant, it agents or
employees, Landlord hereby indemnifies
and holds Tenant and its agents and
employees harmless from and against any
injury, expense, damage, liability or
claim, imposed on Tenant and its agents
and employees, by any person whomsoever,
whether due to uninsured damage to the
Premises, claims for injuries to the person
or property of any other tenant of
the Building or Park or of any other person
in or about the Building, or
administrative or criminal action by a
governmental authority, whether such
injury, expense, damage, liability or claim
results from the act, omission,
negligence, misconduct or breach of any
provisions of this Lease by Landlord,
the agents, servants, invitees or employees
of Landlord; however in no event
shall such indemnification be greater than
Landlord's interest in the Building.
Landlord further agrees to reimburse Tenant
and its agents and employees for any
costs or expenses, including, but not
limited to, court costs and reasonable
attorneys' fees, which Tenant and its
agents and employees may incur in
investigating, handling or litigating any
such claim or any action by a
governmental authority.
33. NOTICES.
Every notice, demand or request hereunder shall be in writing
and shall be deemed to have been properly
given on the date delivered personally
or by courier (including a nationally
recognized overnight delivery service),
with a signed receipt, or two (2) business
days following deposit with the
United States Postal Service (or any
official successor thereto) designated
certified mail, return receipt requested,
bearing adequate postage and addressed
as designated in Paragraph 1 of the Lease.
The address so designated may be
changed by thirty (30) days prior written
notice from time to time.
34. TRANSFER
OF TENANT. INTENTIONALLY DELETED.
35. SUCCESSORS
AND ASSIGNS: ATTORNMENT. The covenants, conditions and
agreements herein contained shall inure to
the benefit of and be binding upon
Landlord, its successors and assigns, and
shall be binding upon Tenant, its
heirs, executors, administrators,
successors and assigns, and shall inure to the
benefit of Tenant and only such assigns of
Tenant to whom the assignment by
Tenant has been consented to by Landlord.
Nothing contained in this Lease shall
in any manner restrict Landlord's right to
assign or encumber this Lease in its
sole discretion. Should Landlord assign
this Lease as provided for above, or
should Landlord enter into a security deed
or other mortgage affecting the
Premises and should the holder of such deed
or mortgage succeed to the interest
of Landlord, Tenant shall be bound to said
assignee or any such holder under all
the terms, covenants and conditions of this
Lease for the balance of the Term
hereof remaining after such succession, and
Tenant shall attorn to such
succeeding party as its Landlord under this
Lease promptly under any such
succession. Tenant agrees that should any
party so succeeding to the interest of
Landlord require a separate agreement of
attornment regarding the matters
covered by this Lease, then Tenant shall
enter into any such "attornment
agreement," provided the same does not
modify any of the provisions of this
Lease and has no adverse effect upon
Tenant's continued occupancy of the
Premises.
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<PAGE>
36.
SEVERABILITY. If any provision or provisions, or if any portion of
any
provision or provisions, in this Lease is
or are ultimately determined by a
court of law to be in violation of any
local, state or federal law, or public
policy, and if such court shall declare
such portion, provision or provisions of
this Lease to be illegal, invalid,
unlawful, void or unenforceable as written,
then it is the intent both of Landlord and
Tenant that such portion, provision
or provisions shall be given force to the
fullest possible extent that they are
legal, valid and enforceable, that the
remainder of this Lease shall be
construed as if such illegal, invalid,
unlawful, void or unenforceable portion,
provision or provisions were not contained
herein, and that the rights,
obligations and interests of Landlord and
Tenant under the remainder of this
Lease shall continue in full force and
effect.
37.
SUBORDINATION; ESTOPPEL CERTIFICATES. Tenant agrees that this Lease
is
and shall remain subject and subordinate to
all present and future mortgages or
other security instruments, including all
advances, amendments, modifications,
renewals, consolidations and extensions
thereof (the "SECURITY DEEDS") affecting
the Building or the Premises. The terms of
this provision shall be
self-operative and no further instrument or
subordination shall be required.
Tenant, however, upon request of any party
in interest shall, within twenty (20)
days after written request, execute and
deliver to such interested party such
certificate or certificates in writing as
may be requested, showing the
subordination of the Lease to such Security
Deeds. In addition, Tenant shall,
within twenty (20) days after written
request, at any time and from time to time
execute, acknowledge and deliver to
Landlord a written statement addressed to
Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of,
the Building or any portion thereof,
certifying as follows: (i) that this Lease
is unmodified and in full force and effect
(or if there has been modification
thereof, that the same is in full force and
effect as modified and stating the
nature thereof); (ii) that to the best of
its knowledge there are no uncured
defaults on the part of Landlord (or if any
such default exists, the specific
nature and extent thereof); (iii) that
there are no defenses or offsets against
the enforcement of the Lease (or stating
those claimed by Tenant); (iv) the date
to which any rents and other charges have
been paid in advance, if any; and (v)
such other matters as Landlord or such
mortgagee, assignee or purchaser may
reasonably request. Any such certificate or
statement shall, at Landlord's
request, be in recordable form and be
recorded in the public records, and may be
relied upon by Landlord, any mortgagee,
proposed mortgagee, assignee, purchaser
and any other party to whom such
certificate or statement is addressed. Tenant's
failure to execute such certificate or
statement within twenty (20) days after
written request shall constitute an
immediate default by Tenant hereunder,
without the requirement of any further
notice, grace period or cure period
unless Tenant delivers said certificate or
statement to Landlord within ten (10)
days after said twenty (20) day period
expires. Notwithstanding anything to the
contrary, this Lease shall not be
subordinate to any Security Deeds unless the
mortgagee or beneficiary thereof shall
deliver to Tenant a non-disturbance
agreement in recordable form agreeing that
this Lease shall not be modified or
terminated so long as Tenant is not in
default under the terms of this Lease
beyond any cure period following notice
provided herein.
38. HAZARDOUS
SUBSTANCES. Tenant hereby covenants and agrees that Tenant
shall not cause or permit any "Hazardous
Substances" (as hereinafter defined) to
be generated, placed, held, stored, used,
located or disposed of in the Building
or any part thereof, except for Hazardous
Substances as are commonly and legally
used or stored as a consequence of using
the Premises for general office and
administrative purposes, but only so long
as the quantities thereof do not pose
a threat to public health or to the
environment, and so long as Tenant strictly
complies or causes compliance with all
applicable governmental rules and
regulations concerning the use or
production of such Hazardous Substances. For
purposes of this Paragraph 38, "Hazardous
Substances" shall mean and include
those elements or compounds which are
contained in the list of Hazardous
Substances adopted by the United States
Environmental Protection Agency (EPA) or
the list of toxic pollutants designated by
Congress or the EPA which are defined
as hazardous, toxic, pollutant, infectious
or radioactive by any other federal,
state or local statute, law, ordinance,
code, rule, regulation, order or decree
regulating, relating to or imposing
liability (including, without limitation,
strict liability) or standards of conduct
concerning, any hazardous, toxic or
dangerous waste, substance or material, as
now or at any time hereinafter in
effect (collectively "Environmental Laws").
The obligations of Tenant under this
Article shall survive any expiration or
termination of this Lease. Landlord
believes to the best of its knowledge that
as of the Commencement Date of the
Lease, the Building is and shall be free of
asbestos and shall be free of
Hazardous Substances.
39. DAMAGE OR
THEFT OF PERSONAL PROPERTY. All personal property brought
into the Premises by Tenant, or Tenant's
employees, agents, or business
visitors, shall be at the risk of Tenant
only, and Landlord shall not be liable
for theft thereof or any damage thereto
occasioned by any act of co-tenants,
occupants, invitees or other users of the
Building or any other person. Landlord
shall not at any time be liable for damage
to any property in or upon the
Premises, which results from gas, smoke,
water, rain, ice or snow which issues
or leaks from or forms upon any part of the
Building or from the pipes or
plumbing work of the same, or from any
other place whatsoever unless
14
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caused by the gross negligence or willful
misconduct of the Landlord or its
agents or employees.
40. FORCE
MAJEURE. In the event of strike, lockout, labor trouble, civil
commotion, act of God, or any other cause
beyond a party's control (collectively
"force majeure") resulting in Landlord's
inability to supply the services or
perform the other obligations requ
