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EXHIBIT 10.37
INDUSTRIAL PROPERTIES OF THE SOUTH
600 ST. CLAIR, SUITE 24
HUNTSVILLE, AL 35801
LEASE AGREEMENT
This Lease Agreement dated the 23rd day of July, 1993 between Industrial
Properties of the South, an Alabama General Partnership (herein referred to as
the "Lessor") and TxPort, Inc. (herein referred to as the "Lessee").
WITNESSETH: That the Lessor hereby demises and leases unto the Lessee, from the
Lessor, for the term and upon the rentals hereinafter specified, the premises
described herein and in Exhibit A.
PREMISES
1. Square footage 19,800
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Street Address 9668 Highway 20 West 3rd floor
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City/Township Madison
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County Madison
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State Alabama
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Zip Code 35758
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For purposes of this Lease Agreement the above-described premises shall
be deemed the "Demised Premises". See Exhibit A, incorporated herein by
reference, for additional information on the Demised Premises.
TERM
2. The Initial Term of this Lease Agreement shall be 3 years and 0 months,
commencing on September 1, 1993 or completion of construction, but no
later than October 1, 1993, and terminating on August 31, 1996. The
full term of the Lease may be extended by mutual written agreement of
the parties' authorized representatives, or upon exercise of any
options described herein.
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RENT
3. Lessee shall pay to the Lessor, without previous demand for this rent
by the Lessor, rent in monthly installments and due on the first of
each month and forwarded via U.S. mail, overnight courier, or by hand
to the office of the Lessor as provided herein or such other address as
may otherwise be directed by Lessor in writing; provided, that the
Lessor has performed all covenants contained herein and is not in
default hereof. If the term of this Lease Agreement shall commence or
terminate on a day other than the first day of the calendar month, the
rent for any partial month shall be prorated based on 1/365 of the
annual rent for each day. For the Initial Term the rent shall be an
annual rent of $99,000, payable in equal monthly installments of
$8,250.00. No base rent will be charged the first three months of
occupancy. See section 16 for services and utility payments.
QUIET ENJOYMENT
4. Lessor covenants that during the full term of this Lease Agreement,
upon the payment of the rent herein provided and the performance by the
Lessee of all covenants herein, Lessee shall have and hold the Demised
Premises, free from any interference from the Lessor.
PEACEFUL POSSESSION
5. Lessor covenants that during the full term of this Lease Agreement,
upon the payment of the rent herein provided and the performance by the
Lessee of all covenants herein, that the Lessee shall peaceably and
quietly have, hold, and enjoy peaceful possession of the Demised
Premises.
PERMITTED USES
6. Lessee covenants and agrees to use the Demised Premises as general
office space and agrees not to use or permit the premises to be used
for any other purpose without the prior written consent of the Lessor.
Lessor covenants that the premises may be lawfully used for these
purposes.
SUBLETTING AND ASSIGNMENT
7. Lessee shall not sublet the Demised Premises nor any portion thereof,
nor shall this Lease Agreement be assigned by the Lessee without the
prior written consent of the Lessor, which consent shall not be
unreasonably withheld.
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ATTORNMENT
8. In the event the Demised Premises are sold due to any foreclosure sale
or sales, by virtue of judicial proceedings or otherwise, this Lease
Agreement shall continue in full force and effect, and Lessee agrees,
upon request, to attorn to and acknowledge the foreclosure purchaser or
purchasers at such sale as Lessors hereunder; provided, however, that
such purchaser will accept all obligations of Lessor as contained in
this Lease Agreement.
ESTOPPEL CERTIFICATE
9. The Lessee agrees to execute an Estoppel Certificate for the benefit of
Lessor's lender or lenders; provided, however, that such Estoppel
Certificate consists solely of an acknowledgement of the terms and
conditions of this Lease Agreement.
RULES AND REGULATIONS
10. Lessee covenants and agrees that Lessee shall observe and comply with
those Rules and Regulations (if any) contained in Exhibit B, attached,
initialed by Lessee, and made a part hereof. All rules & regulations
made a part of this Lease by Lessor are implemented subject to Tenant's
right of quiet enjoyment and peaceful use of Premises.
LESSOR INSURANCE
11. Lessor shall maintain replacement fire and extended coverage insurance
on the Demised Premises, unless otherwise specified in this Lease
Agreement in sufficient amounts so as to be able to make all necessary
repairs to the Demised Premises in the event of a fire in or other
destruction of the Demised Premises, as well as insurance sufficient to
cover bodily injury and personal injury in the event of a claim against
Lessor for same. Certificates of insurance may be issued at Lessee's
request at reasonable times during the term of the Lease Agreement. Any
increase in building insurance caused by Lessee's business will be paid
for be Lessee.
LESSEE INSURANCE
12. Lessee agrees to procure and maintain at Lessee's expense throughout
the term of this Lease Agreement and any extension thereof, a policy or
policies of insurance
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as follows: (a) workers' compensation (statutory); (b) Employers'
Liability ($1,000,000 per occurrence, bodily injury by accident or
disease, including death); Commercial General Liability ($1,000,000
combined limit, bodily injury, personal injury and property damage,
including blanket contractual liability). The Lessor shall be included
as an additional insured under Commercial General Liability as respects
this lease of premises. Certificates of insurance may be issued at
Lessor's request at reasonable times during the term of the Lease
Agreement.
All personal property of Lessee in the demised premises or in the
building of which the demised premises is a part shall be at the sole
risk of Lessee. Lessor shall not be liable for any damage thereto or
for the theft or misappropriation thereof, unless such damage, theft or
misappropriation is directly attributable to the negligence or
intentional acts of Lessor, its agents, or employees. Lessor shall not
be liable for any accident to or damage to property of Lessee resulting
from the use or operation of mechanical, electrical or plumbing
apparatus, unless caused by and due to the negligence of Lessor, its
agents or employees.
LESSEE'S AND LESSOR'S OBLIGATIONS
13. Lessor shall take all reasonable and necessary precautions to prevent
damage, injury, or loss of life in and around the Demised Premises.
Lessor agrees to indemnify and save Lessee harmless from and against
any and all claims, actions, damages, liability and expense in
connection with or arising out of Lessee's use of the Demised Premises
occasioned wholly or in part by any willful misconduct or negligent act
or omission of Lessor, its agents, clients, or customers. In case
Lessee shall, without material fault on its part, be made a party to
any litigation commenced by or against Lessor, Lessor shall protect and
hold Lessee harmless and shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by Lessee in connection with such
litigation. The aforementioned, indemnification by Lessor of Lessee
shall not be effective as to any claim arising from or to the extent of
negligence or willful misconduct of the Lessee.
Lessee shall take all reasonable and necessary precautions to prevent
damage, injury, or loss of life in and around the Demised Premises.
Lessee agrees to indemnify and save Lessor harmless from and against
any and all claims, actions, damages, liability and expense in
connection with or arising out of Lessee's use of the Demised Premises
occasioned wholly or in part by any willful misconduct or negligent act
or omission of Lessee, its agents, clients, or customers. In case
Lessor shall, without material fault on its part, be made a party to
any litigation commenced by or against Lessee, Lessee shall protect and
hold Lessor harmless and shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by Lessor in connection with such
litigation.
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MUTUAL WAIVER OF SUBROGATION
13. Each of (Landlord/Lessor) and (Tenant/Lessee) shall cause its insurance
carriers to waive all rights of subrogation against the other party
hereto to the extent of (Landlord's/Lessor's) or (Tenant's/Lessee's)
undertaking set forth in Clauses 11, 12, & 13.
EVENT OF DESTRUCTION
14. In the event of the whole or partial destruction of the Demised
Premises or of the building containing the Demised Premises by fire,
explosion, the elements or otherwise during the term of this Lease
Agreement or previous thereto as to render the Demised Premises
untenantable or unfit for occupancy in whole or in part, or should the
Demised Premises be so badly injured that the same cannot be repaired
within ten days from the occurrence to the Demised Premises of such
destruction and injury then the Lessee may, at its option, terminate
this Lease Agreement and surrender the Demised Premises and all the
Lessee's interest therein to the Lessor as of the date of termination,
and shall pay rent only to the time of such event of destruction.
Should the Demised Premises be rendered untenantable and unfit for
occupancy in whole or in part, but yet be repairable within ten days
from the happening of such injury, the Lessor may enter and repair the
same, and the rent shall not accrue after such injury or while repairs
are being made, but shall recommence immediately after such repairs
shall be completed; provided such repairs are completed within the ten
days. But if the premises shall be so slightly injured as not to be
rendered untenantable and unfit for occupancy in whole or in part and
in the opinion of the Lessee, then the Lessor agrees to repair the same
with reasonable promptness and in that case the rent accrued and
accruing shall not cease. Nothing in this clause, however, shall be
construed as requiring the Lessor to repair the Demised Premises in the
event of their whole or partial destruction. However, if the Lessor
either does not repair within the appropriate time limits or states his
intention not to repair, then the Lessee's rights shall be the same as
though the Demised Premises were injured beyond repair.
In any event if the Lessor is unable to make repairs of such damage or
destruction within ten days of the occurrence of such an event the
Lessee may terminate the lease for other than default (unless such
damage or destruction was the result of the willful misconduct or
negligence of Lessor, its agents, clients, or customers, in which case
the termination shall be deemed one for default) by written notice to
the Lessor without any further obligations hereunder from the date of
the occurrence of such destruction.
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OBSERVATION OF LAWS
15. The Lessor and Lessee agree to observe and comply with all laws,
ordinances, rules, and regulations of the Federal, State, County, and
Municipal authorities applicable to the Demised Premises. The Lessor
and Lessee agree not to do or permit anything to be done in the Demised
Premises or the building in which the Demised Premises exist, or keep
anything therein which would obstruct or conflict with the regulations
of the Fire Department.
SERVICES AND UTILITIES
16. Services and utilities furnished to the Demised Premises UTILITIES
shall be provided and paid for as follows:
BY LESSEE ITEM BY LESSOR
--------- ---- ---------
Water & sewer b & d
------------------------ charges -------------------
Electric, fuel oil, b & d
------------------------ and/or gas, & hot -------------------
water charges
Plumbing mechanical b & d
------------------------ & maintenance -------------------
Heating mechanical b & d
------------------------ Maintenance -------------------
Air conditioning b & d
------------------------ mechanical & -------------------
maintenance
Interior building b & d
------------------------ maintenance -------------------
Capital expenditures a
------------------------ for plumbing, heating & -------------------
cooling repair
Exterior building b & d
------------------------ maintenance, e.g., -------------------
window cleaning, etc.
Real estate taxes b & d
------------------------ or other government -------------------
assessments
Trash removal b & d
------------------------ -------------------
c Janitorial service
------------------------ -------------------
All of the third
------------------------ floor -------------------
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Common area b & d
------------------------ janitorial, except -------------------
third floor
c Any security above
------------------------ "normally" locked -------------------
doors
Lawn care & land- b & d
------------------------ scaping maintenance -------------------
Driveway, parking b & d
------------------------ lot & sidewalk -------------------
maintenance
Snow glowing, side- b & d
------------------------ walk snow & ice -------------------
removal
Structural a
------------------------ maintenance -------------------
Roof maintenance a
------------------------ -------------------
Fire alarm hookup & b & d
------------------------ maintenance charges -------------------
Fire extinguishers, b & d
------------------------ installation & service -------------------
Building insurance b & d
------------------------ -------------------
In each instance, the following key indicates how the cost of such
services will be paid by Lessee:
(a) Included in the annual rent amount;
(b) Actual metered or incurred amounts at a stop of $2.38 (office)
to be paid by Lessee to Lessor within thirty days of receipt
of written notice of a request to be reimbursed by the Lessor;
necessary records to support the amounts will be kept by the
Lessor and copies made available to Lessee upon request;
Lessee may require such records prior to payment;
(c) Actual cost of services or metered amounts to be paid by
Lessee to the provider of the service (e.g., the utility
company or contractor).
(d) A proportionate share of the cost in excess of $2.38 per
square foot (the operating expense stop) for providing the
service to the entire building or facility of which the
Demised Premises are a part. In this case the proportionate
share is 34.5%, which is determined by dividing 19,800 (the
area of the Demised Premises) by 57,451 (the total area of the
building or facility). Necessary records to support the
amounts will be kept by the Lessor and copies made available
to Lessee upon request; Lessee may
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require such records prior to payment. Payments are to be made
within thirty days of receipt of invoice. So long as the space
is used only for office space, the operating expense stop may
not increase more than the CPI for the year.
INTERRUPTION OF SERVICES
17. Notwithstanding anything contained herein to the contrary, Lessee shall
have the right upon written notification to the Lessor to terminate
this Lease Agreement for default if any stoppage in any of the services
listed in the immediately preceding paragraph as being provided by the
Lessor continues for twenty days for whatever reason.
HOLDING OVER BY LESSEE
18. Nothing contained herein shall constitute the consent of Lessor to the
holding over of Lessee after the expiration of this Lease Agreement.
However, if Lessee shall for any reason remain in possession of any of
the Demised Premises after the expiration or earlier termination of the
Term hereof, except as specifically provided, such possession shall be
as a month-to-month Tenancy during which time Lessee shall pay as
rental, rent on the first day of each month at a rate equal to
one-twelfth the amount of annual rent payable monthly during the prior
year of the term of this Lease Agreement. Unless evidenced otherwise in
writing as the exercise of an option stated herein or as a modification
to this Lease Agreement, in no event shall any holding over by the
Lessee be construed as creating any new tenancy other than a month to
month tenancy.
CARE OF PREMISES
19. The Lessee agrees that it will take good care of the Demised Premises,
fixtures and appurtenances, and suffer no waste or injury, that it will
make all repairs to the Demised Premises, fixtures and appurtenances
necessitated by the fault of the Lessee, its agents, employees or
guests.
REPAIRS
20. The Lessor agrees to make such repairs as may be necessary to keep the
Demised Premises and appurtenances in good order and condition within
reasonable time after it knows or should know of the need of such
repairs; provided, however, when such repairs are necessitated by the
fault of the Lessee, its agents, employees
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or guests, Lessee shall reimburse Lessor for its reasonable costs
expended in making such repairs; and provided further that minor
repairs to the Demised Premises not exceeding $50.00 (inclusive of
service charges) in any one instance shall be the responsibility of
Lessee except for lighting ballasts. Lessee shall first be afforded the
opportunity to review all such costs prior to accrual thereof and may
request competitive bids where Lessee deems costs are excessive. Costs
shall only include actual out-of-pocket expenses of Lessor and shall
not include profit or overhead or any costs which have not been
reviewed and approved by the Lessee. Lessor shall make available to
Lessee copies of any and all records necessary to support the costs
levied against Lessor under this clause for which reimbursement is
being sought.
ENVIRONMENTAL
21. Lessor warrants and represents to Lessee that, to the best of its
knowledge: (a) Lessor, its agents, employees, representatives, tenants,
and its predecessors in interest in the Premises did not discharge,
release, or dispose of, in any form, any hazardous material or
substance into or onto the Premises and that no condition exists in or
on the Premises that may result in any violation of any federal, state
or local laws, regulations or ordinances relating to the protection of
the environment or the public health and welfare (collectively
hereinafter called "Environmental Laws"); and (b) Lessor has no
liability and there are no outstanding claims against Lessor for the
clean up of any hazardous material or substance deposited in the
environment, either directly on the Premises or elsewhere, that
resulted from or were ownership of the Premises. Lessee acknowledges
receipt of a Phase I Environmental Study dated July 22, 1993 by ATEC
Engineering Company (copy attached).
Lessee warrants and represents to Lessor that: (a) Lessee, its agents,
employees, representatives and subleases, if any, will not discharge,
release, or dispose of in any form any hazardous materials or
substances into or onto the Premises and that Lessee, will not create,
or permit to be created, any condition in or on the Premises that may
result in any violation of any environmental Laws: and (b) Lessee will
not allow any hazardous material or substance to exist or be stored,
located, discharged, possessed, managed, processed or otherwise handled
on the Premises except those customarily used in the conduct of
Lessee's normal business activities, and that Lessee shall comply with
all Environmental Laws affecting the Premises; and (c) Lessee shall
immediately notify Lessor should Lessee become aware of (i) any
hazardous material or substance or any other environmental problem or
liability with respect to the Premises, (ii) any lien, action or notice
related to any such environmental problem or liability, or (iii) any
material or substance or the existence of any hazardous material or
substance or other environmental contamination, liability or problem
with respect to or arising out of or in connection with the premises.
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Lessor shall indemnify, defend, and hold harmless Lessee, its agents,
employees, representatives, and affiliate organizations from and
against any and all claims, suits, loss, costs, damage or liability
relating to or arising out of any operations by Lessor, its agents,
employees, representatives, tenants, and predecessors in interest at
the Premises, such operations including, but not limited to, the
release or discharge into the environment, or disposal of hazardous
materials or substances at or in connection with the Premises.
Lessee shall indemnify, defend, and hold harmless Lessor, its agents,
employees, representatives, and affiliate organizations from and
against any and all claims, suits, loss, costs, damage or liability
relating to or arising out of any operations by Lessee, its agents,
employees, representatives or subleases, if any, at the Premises, such
operations including, but not limited to, the release or discharge into
the environment, or disposal of materials or other Substances at or in
connection with the Premises.
Upon termination of this lease, Lessee agrees to provide Lessor, as
satisfaction of Lessee indemnification paragraph above, a "Phase One
Environmental Site Assessment" performed by a certified testing and
engineering firm and Lessee shall be responsible to address identified
items or problems created by Lessee.
IMPROVEMENTS
22. The Lessor and Lessee have agreed as to the extent of improvements to
be made to the Demised Premises, and-the work will proceed in order to
meet the commitments herein provided. Such work to be completed by
Lessor is described in Exhibit C to this Lease Agreement. The parties
agree to cooperate in order for the work to proceed to be completed on
a timely basis. Improvements to be made by Lessee are described in
Exhibit D to this Lease Agreement
NOTICES
23. Formal notices or communications pertaining to this Lease Agreement
shall be deemed to have been duly given if personally provided to the
other party in writing or if sent to the other by U.S. mail, or an
independent delivery service, postage and other costs prepaid. Until
otherwise specified in writing, the addresses and telephone numbers of
the parties hereto for the purpose of any such notice or communications
are:
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LESSEE: LESSOR:
TxPort, Inc. Industrial Properties of the South
---------------------------- ----------------------------------
600 St. Clair, Suite 24
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Huntsville AL 35801
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Attn: Attn: Charlene B. Graham
----------------------- ------------------------------
Telephone: Telephone: (205) 536-4511
------------------ ------------------------
Telefax: Telefax: (205) 464-0193
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SUBORDINATION TO MORTGAGES AND DEEDS OF TRUST
24. This Lease Agreement is subject and is hereby subordinated to all
present mortgages, deeds of trust and other encumbrances affecting the
Demised Premises or the property of which said premises are a part. The
Lessor agrees to cause the mortgagee to provide to the Lessee, in
recordable form, an agreement not to disturb Lessee's right in or
possession of the premises so long as Lessee is not in default
hereunder, in the event this Lease Agreement is subordinated to
mortgage deeds of trust or other encumbrances and the subordination of
this Lease Agreement is conditioned upon the Lessee receiving such
nondisturbance agreement from the mortgagee.
LEASE BINDING ON HEIRS, SUCCESSORS, ETC.
25. All of the terms, covenants, and conditions of this Lease Agreement
shall inure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors, and assigns of the parties
hereto.
EMINENT DOMAIN, CONDEMNATION
26. If the entire property or any material part thereof wherein the Demised
Premises are located shall be taken by public or quasi-public authority
under any power of eminent domain or condemnation, this Lease Agreement
shall forthwith terminate and the Lessee shall have the right through
the Lessor to a claim for such taking, limited only to the cost or
value of material stock and cost of removal of stock, furniture and
fixtures owned by Lessee.
A material part is defined as taking which could interfere with the
Lessee's continued enjoyment and utilization of the premises as
described herein.
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SEVERABILITY
27. Each covenant and agreement in this Lease Agreement shall for all
purposes be construed to be a separate and independent covenant or
agreement. If any provision in this Lease Agreement or the application
thereof shall to any extent be invalid, illegal or otherwise
unenforceable, the remainder of this Lease Agreement, and the
application of such provision other than as invalid, illegal or
unenforceable, shall not be affected thereby) and such provisions in
this Lease Agreement shall be valid and enforceable to the fullest
extent permitted by law.
ADDITIONAL SIGNS
28. Lessor, at Lessee's expense, provided the necessary approvals can be
obtained from the appropriate governing authorities, may erect an
exterior sign or signs indicating the presence of Lessee in the Demised
Premises of the design and format to be agreed upon by the Lessor and
Lessee both using reasonable judgment and standards, and both using
good faith efforts to obtain any necessary approvals. All signage must
be maintained in very good condition by Lessee.
LESSOR'S RIGHT TO ENTRY
29. Lessor and Lessor's agents may enter the Demised Premises for the
following purposes only: to make repairs, alterations, or improvements
necessary under the terms of this Lease Agreement; to perform Lessor's
covenants as set forth in this Lease Agreement; for purposes of
inspection and, during the last two months of the Lease Term, to show
the Demised Premises to perspective tenants. Such entry shall not be so
frequent or of such a type as to disturb Lessee's peaceful enjoyment of
the Leased Premises. Such entry shall only take place with reasonable
prior notice to and consent of Lessee; consent shall not be
unreasonably withheld. If Lessor or its agent reasonably believes that
an emergency exists which requires immediate entry, such entry may be
made without Lessee's consent, but Lessor shall so inform Lessee of
such entry at the earliest practicable time afterwards. All persons who
enter the Demised Premises at Lessor's request must first obtain
clearance from Lessee before entry.
Notwithstanding anything in this Lease Agreement to the contrary, upon
any entry by Lessor or its duly authorized agents, servants, or
employees at any time during the Lease Term, such entry shall conform
to Lessee's security requirements as may be required by Lessee, the
federal government or any agency thereof, or any of Lessee's clients.
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LESSEE'S ALTERATIONS, IMPROVEMENTS, OR ADDITIONS
30. Any alterations, improvements, or additions to the Demised Premises in
the form of fixtures to the Demised Premises (collectively referred to
as "Alterations") and made by or at the request of Lessee shall remain
upon the Demised Premises at the expiration or earlier termination of
this Lease Agreement and shall become the property of Lessor unless
Lessor prior to the expiration or termination of this Lease Agreement,
gives written notice to Lessee to remove all such Alterations. Lessee
shall repair any damage caused by such removal and restore the Demised
Premises to substantially the same condition in which it existed prior
to the time that any such Alterations were made.
Lessee shall not, without on each occasion first obtaining Lessor's
prior written consent, make any Alterations to the Demised Premises,
except that Lessee may, without the consent of the Lessor but with
prior written notice to Lessor, make minor improvements to the interior
of the Demised Premises provided that they do not impair the structural
strength, operation, or value of the building of which Demised Premises
are a part, or violate any zoning, fire or building code. The cost of
any such violation shall be the responsibility of the Lessee.
RENEWAL OPTION
31. Lessee is given and granted an option to renew the term of this Lease
Agreement for two (2) successive terms of one year each on the same
terms and conditions except for the rental rate and the length of the
term. To exercise its option, the Lessee shall give the Lessor a notice
in writing not less than sixty days prior to the end of the original
term and any renewal terms and as a condition precedent to the notice
and the renewal that the Lessee not be in default under the terms and
conditions of this Lease Agreement.
The rental rates during each of the renewal periods shall be as
follows:
Annual Monthly
Option Term Rent (base) Rent (base)
------ ---- ----------- -----------
1 09/96 through 08/97 $5.50/sf $.4583/sf
2 09/97 through 08/98 $5.50/sf $.4583/sf
Actual dates to coincide with original lease commitment date.
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LESSEE'S DEFAULT
32. The Lessee shall be considered in default of this Lease Agreement upon
failure to pay when due the rent or any other sum required by the terms
of this Lease; the failure to perform any material term, covenant, or
condition of this Lease Agreement; the commencement of any action or
proceeding for the dissolution, liquidation, or reorganization under
the Bankruptcy Act, of Lessee, or for the appointment of a receiver or
trustee of the Lessee's property; the making of any assignment for the
benefit of creditors by Lessee; the suspension of business; or the
abandonment of the Demised Premises by the Lessee. In each case, Lessee
shall only be in default if the Lessee is given written notice by
Lessor of the specific grounds for the default termination and twenty
business days from receipt of such notice to correct such default and
Lessee fails to do so.
LESSOR'S DEFAULT
33. The Lessor shall be considered in default of this Lease Agreement upon
the failure to perform any material term, covenant, or condition of
this Lease Agreement; the commencement of any action or proceeding for
the dissolution, liquidation, or reorganization under the Bankruptcy
Act, of Lessor, or for the appointment of a receiver or trustee of the
Lessor's property; the making of any assignment for the benefit of
creditors by Lessor; the suspension of business; or any other reason
provided for herein. In each case, Lessor shall only be in default if
the Lessor is given written notice by Lessee of the specific grounds
for the default termination and twenty business days from receipt of
such notice to correct such default and Lessor fails to do so.
GENERAL
34. (a) This Lease Agreement shall be governed by and under the laws
of the State/Commonwealth of Alabama.
(b) Each party acknowledges that it has read this Lease Agreement,
understands it, and agrees to be bound by its terms, and
further agrees that this is the complete and exclusive
statement of the Lease Agreement between the parties, which
supersedes and merges all prior proposals, understandings, and
all other agreements, oral or written, between the parties
relating to this Lease Agreement. Any change in this Lease
Agreement must be made in writing and signed by authorized
representatives of both the Lessee and the Lessor.
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(c) If either party cannot perform any or all of its respective
obligations under this Lease Agreement because of the
occurrence of any event which is beyond its reasonable
control, then the non-performing party shall (i) notify the
other party, (ii) take reasonable steps to resume performance
as soon as possible, and (iii) not be considered in breach
during the period performance is beyond the party's reasonable
control.
(d) The failure of either party at any time to require performance
by the other party of any provision hereof shall not affect in
any way the full right to require such performance at any time
thereafter. The waiver by either party of a portion of a
provision herein shall not be taken or held by the other party
to be a waiver of the provision itself unless such a waiver
shall be express and in writing.
(e) In the event of any inconsistency between its component parts,
this Lease Agreement shall be construed with the following
order of precedence:
(1) The Basic Lease Agreement (This document)
(2) Exhibit A
(3) Exhibit C
(4) Exhibits B and D
(5) Other Exhibits (if any)
(f) The titles of the clauses in this Lease Agreement, including
all Exhibits thereto, shall be read as references only and
shall not be read as references only and shall not be read as
affecting, contradicting, negating, or explaining the meaning
or interpretation of this Lease Agreement.
(g) Each party represents and warrants that it has the right and
authority to enter into this Lease Agreement.
(h) Unless otherwise specifically noted, "days" shall mean
calendar days.
(i) In no event shall either party be liable to the other for
indirect, consequential, incidental or special damages, even
if it has been made aware of the possibility of such.
MECHANICS' LIENS
35. In the event that any mechanics' lien is filed against the premises as
a result of alterations, additions or improvements made by the Lessee,
the Lessor shall have the option, if the Lessee shall be unable to
procure effective cancellation, bonding or discharge of the lien within
30 days following written notice of the existence of such condition, to
take such steps and pay such monies as may be necessary to
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obtain an effective cancellation or discharge of such notice or claim,
in which event such monies as shall be expended by the Lessor shall be
considered additional rent hereunder and shall be due and payable on
the first day of the next month succeeding such payment by the Lessor.
RIGHT OF FIRST REFUSAL
36. Provided Lessee is not in default hereunder, Lessee shall have the
right of refusal to lease additional space within the building within
which the Demised Premises exist subject to previously granted refusal
options to other tenants in chronological order of granting of such
options.
Lessee will have forty-eight hours from the receipt of notice from
Lessor to Lessee to lease the space and execute an Agreement of Lease
in the same form and with the same conditions as this lease except for
rent and term. The rent and term for such additional space shall be the
same as the rent and term accepted by the third party prospective
tenant.
PARKING
37. Lessor agrees to provide adequate parking for Lessee's employees and
visitors with 5 spaces reserved for Lessee in front of the building.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day
and year first written above.
LESSEE
TxPort, Inc.
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125 West Park Loop
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Huntsville, AL 35806
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By: /s/ Mark H. Hoffman
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Printed Name: Mark H. Hoffman
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Title: President
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Date: July 23, 1993
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LESSOR
Industrial Properties of the South
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600 St. Clair Avenue, Suite 24
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Huntsville, Alabama 35801
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By: /s/ Charlene B. Graham
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Printed Name: Charlene B. Graham
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Title: Partner
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Date: July 23, 1993
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EXHIBIT A
DESCRIPTION OF DEMISED PREMISES
9668 Highway 20 West
Madison, Alabama 35758
The entire third floor.
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EXHIBIT B
RULES AND REGULATIONS
Rule 1: No sign, picture, advertisement, or notice shall be displayed,
inscribed, painted or affixed on any part of the outside, or inside of the
building or on or about the Demised Premises except on the doors of said Demised
Premises and on the Directory Board of the building, and then only of such
color, size and style and materials as shall be first specified by the Lessor.
No "For Rent" signs shall be displayed by the Lessee, and no showcases, or
obstructions, signs, flags, statuary, or any advertising device of any kind
whatever shall be placed in front of said building or in the passageways, halls,
lobbies, or corridors thereof by the Lessee; and the Lessor reserves the right
to remove all such showcases, obstructions, signs, flags, statuary, or
advertising devices and all signs other than those provided for, without notice
to the Lessee and at its expense.
Rule 2: The Lessor will maintain the grounds. Any person employed by the Lessor
to do grounds work, shall, while outside of said Demised Premises be subject to,
and under the control and direction of the Lessor (but not as agent or servant
of the Lessor).
Rule 3: No person shall disturb the occupants of this or any adjoining building
premises by the use of any musical instrument, unseemly noises, whistling,
singing or in any other way.
Rule 4: The Demised Premises leased shall not be used for lodging or sleeping,
not for any immoral or illegal purposes for any purpose that will damage the
Demised Premises.
Rule 5: Canvassing, soliciting and peddling in the building are prohibited and
each Lessee shall cooperate to prevent the same.
Rule 6: The water closets, wash basins, sinks, and other apparatus shall not be
used for any other purpose than those for which they were constructed, and no
sweeping, rubbish, or other substances shall be thrown therein.
Rule 7: All glass, locks and trimmings, in or about the doors and windows, and
all electrical globes and shades, broken by any Lessee, shall be immediately
replaced or repaired and put in order by such Lessee under the direction and to
the satisfaction of the Lessor, and on removal shall be left whole and in good
repair, normal wear and tear excluded.
Rule 8: Lessee will not block ingress and egress of the driveways or docks
leased to others.
Rule 9: The Lessor reserves the right to rescind any rules and to make such
other and further rules and regulations as, in Lessor's judgment, may from time
to time be needed for the safety, care, maintenance, operation and cleanliness
of the building, and for the preservation of good order therein, which, when so
made, and notice thereof given to the Lessee; shall have the
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same force and effect as if originally made a part of the foregoing lease; and
such other further rules, not however, to be inconsistent with the proper and
rightful enjoyment by the Lessee under the foregoing lease of the premises
therein referred to.
Rule 10: No smoking shall be allowed within any part of the premises herein
described.
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Madison County
State of Alabama
ADDENDUM NO. 1
TO
LEASE AGREEMENT
Whereas TxPort, Inc. and Industrial Properties of the South, an Alabama General
Partnership, as Lessor and TxPort, Inc. (TxPort), as lessee did execute a Lease
Agreement for 19,800 square feet on the third floor of 9668 Highway 20 West,
Madison, Alabama 35758 dated June, l993 and effective September 22, 1993, and
Now TxPort, Inc. hereby leases from Lessor the second floor of approximately
18,666 square feet starting April 1, 1996 for a two-year period ending March 31,
1998. The rate will be $6.25 base rate plus a $2.38 operating expense stop
(excludes janitorial) for $8.63 full service. A credit of $27,999.00 will be
applied against the rent due the first months (first two months free, rent for
third month of lease shall be $12,272.88), giving an effective base rate of
$5.50. Monthly rent will be 18,666 square feet x $8.63 = $161,087.58 divided by
12 = $13,423.96.
A one year option to renew the lease for the second floor hereby granted for the
period April 1, 1998 through March 31, 1999 at a rate of $6.25 base and $2.38
expense stop. Notice to be given as per Section 31 of the Master Lease
Agreement. The expense stop is still subject to adjustment per section 16(d) of
the Master Lease Agreement.
Further Terms and Conditions applicable to this second floor space:
1. IPS to approve all drawings and finish schedule, carpet, and paint
which approval shall not be unreasonably withheld. TxPort to have the
modifications made and pay for them on a timely basis - creating no
liens on the building.
2. Use Cox Corporation to modify HVAC duct work, thermostats, etc. Have
Cox remove and save all thermostats for reinstallation.
3. Finish schedule: comparable to what is existing, except wall paper is
not required may use painted sheet rock. Doors, frames and hardware to
match existing. Carpet to be a 26 ounce minimum weight commercial grade
carpet with appropriate vinyl base. Ceiling and grid to match existing.
4. Obtain permit from City of Madison - Call for and obtain all
inspections. Give a copy of the Certificate of Completion to IPS.
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5. TxPort to remove, save, and have re-installed the smoke detectors tying
in the fire alarm system of the building. Upon re-activation, have
re-certified by a licensed fire alarm contractor.
6. Deliver and turn over to Industrial Properties of the South all unused
doors, frames and hardware.
7. TxPort will assume all liability for any possible damage to the
building caused by construction.
8. Only one (1) lease contract agreement for the second floor - not two
(2).
All other terms and conditions of the lease remain in effect.
TxPort, Inc. Industrial Properties of the South
By: /s/ Donna M. Flammang By: /s/ Charlene B. Graham
--------------------------------- ---------------------------------
Title: Secretary Title: Managing Partner
------------------------------ -----------------------------
Date: 04/03/96 Date: 04/04/96
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Madison County July 22, 1998
State of Alabama
ADDENDUM NO. 2
TO
LEASE AGREEMENT
Whereas TxPort, Inc. and Industrial Properties of the South (IPS), an Alabama
General Partnership, as Lessor and TxPort, Inc. (TxPort), as Lessee did execute
a Lease Agreement for 19,800 square feet on the third floor of 9668 Highway 20
West, Madison, Alabama 35758 dated June, 1993 and effective September 22, 1993,
and
Now, with this addendum, an extension is contracted for the period September 22,
1998 through December 31, 1999, at a base rate of $6.90 and expense stop of
$2.58 per square foot per year. Rent will be 19,800 square feet x $9.48 =
$187,704.00 (annual rate) divided by 12 = $15,642.00 (per month).
This Lease will automatically renew for the period January 1, 2000 through
December 31, 2000 at the same rate stated above unless notice is received by May
1, 1999 indicating that Lessee will not be renewing. The expense stop is still
subject to adjustment per section 16(d) of the Master Lease Agreement.
All other terms and conditions of the lease remain in effect.
TxPort, Inc. Industrial Properties of the South
By: /s/ C. W. Smith By: /s/ Charlene B. Graham
--------------------------------- ---------------------------------
Title: VP & Treasurer Title: Managing Partner
------------------------------ ------------------------------
Date: 08/10/98 Date: 08/11/98
------------------------------- -------------------------------
Prepared by:
Industrial Properties of the South
2903 Wall Triana Hwy. Suite #7
Huntsville, Alabama 35824
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Madison County March 16, 1999
State of Alabama
ADDENDUM NO. 3
TO
LEASE AGREEMENT
Whereas, (as successor to TxPort, Inc.), Verilink, as Lessee, and Industrial
Properties of the South (IPS), as Lessor did enter into a Lease Agreement on
April 3, 1996 for the second floor of 9668 Madison Boulevard consisting of
approximately 18,666 square feet, which terminates on March 31, 1999,
Now, with this Addendum, an extension is contracted for the period April 1, 1999
through March 31, 2002, at a base rate of $6.40 per square foot per year plus
$2.58 per square foot per year operating expense stop which excludes janitorial.
Rent will be 18,666 square feet x $8.98 = $167,620.68 (annual rate) divided by
12 = $13,968.39 (per month).
All other terms and conditions of the lease remain in effect.
Verilink Industrial Properties of the South
By: /s/ C. W. Smith By: /s/ Charlene B. Graham
--------------------------------- ----------------------------------
Title: Controller, Huntsville
Business Unit Title: Managing Partner
------------------------------ ------------------------------
Date: 03/19/99 Date: 03/22/99
------------------------------- --------------------------------
Prepared by:
Industrial Properties of the South
2903 Wall Triana Hwy. Suite #7
Huntsville, Alabama 35824
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August 25, 1999
ADDENDUM NO. 4
TO
LEASE AGREEMENT
INDUSTRIAL PROPERTIES OF THE SOUTH AS LESSOR AND VERILINK CORPORATION
(AS SUCCESSOR TO TXPORT, INC.)
AS LESSEE DATED JUNE, 1993 AND EFFECTIVE SEPTEMBER 22, 1993 AND
HEREIN AFTER REFERRED TO AS THE MASTER LEASE
At Lessee's request, this Addendum No. 4 is executed to add approximately 10,226
S.F. of office space on the 1st floor to the Master Lease.
A. Location: Airport Office Center, 9668 Madison Boulevard, Madison, AL
35758
B. Term: Starting September 07, 1999 and terminating on December 31, 2000,
the same date as the Master Intense.
C. Rate This Addendum is at a base rate of $6.40 per square foot per year
plus $2.58 per square foot per year operating expense stop which
excludes janitorial. Rent will be 10,226 square feet x $8.98 =
$91,829.48 (annual rate) divided by 12 = $7,652.46 (per month).
Lessee to install one hallway at Lessee's expense, with wall construction to
deck, 4' minimum, and remove door to hallway from front entrance, hall to have
cased entrance, flush side walls to hall opening, and a door to the hallway
opening to the occupied space. See Exhibit A-4.
Lessee may install water in new Break Room, may take double doors down between
Lessee's office space and vacant office space next door and sheet rock the
opening at Lessee's expense.
All other terms and conditions of the Lease Agreement remain the same.
Verilink Corporation Industrial Properties of the South
By: /s/ C. W. Smith By: /s/ Charlene B. Graham
--------------------------------- ---------------------------------
Date: 09/07/99 Date: 09/07/99
--------------------------------- ---------------------------------
Prepared by:
Industrial Properties of the South
2903 Wall Triana Hwy., Suite 7
Huntsville, AL 35824
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