EXHIBIT 10.23
INFINITY INSURANCE COMPANY
AT
3700 COLONNADE
LEASE AGREEMENT
AUGUST 26TH, 2003
COLONIAL
PROPERTIES TRUST
1
TABLE OF CONTENTS
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
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
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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.
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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.
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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
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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.
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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.
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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
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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
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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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
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
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.
13
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
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 required of Landlord hereunder, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. Provided however, subject
to the provisions of Paragraph 30 herein, in the event such force majeure
results in Landlord's inability to provide services to Tenant as provided for in
Paragraph 29 herein for a period in excess of one hundred twenty (120) days and
the failure to provide such services materially and adversely effects Tenant's
use of the Premises to conduct its normal business operations, then beginning on
the one hundred and twenty first (121st) 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 for the duration of such force majeure
event. If, as a result of force majeure, Tenant is delayed in performing any of
its obligations under this Lease, other than Tenant's obligation to take
possession of the Premises on or before the Commencement Date and to pay Rent
and all other charges and sums payable by Tenant hereunder, Tenant's performance
shall be excused for a period equal to such delay and Tenant shall not during
such period be considered to be in default under this Lease with respect to the
obligation, performance of which has thus been delayed.
41. SPECIAL STIPULATIONS. If the special stipulations, if any, set forth in
the special stipulations attachment to this Lease (Exhibit "F") conflict with
any of the foregoing provisions, the special stipulations shall control. Such
special stipulations are expressly incorporated herein by this reference.
Exhibits referenced in this Lease are a part of the Lease.
42. FINANCIAL STATEMENTS. Upon twenty (20) days written notice from
Landlord and on no more than one occasion each Lease Year, Tenant shall provide
Landlord with a current financial statement and financial statement from the
year prior to the current financial statement year and such other financial
information as Landlord may reasonably request. Such financial statement shall
be prepared in accordance with generally accepted accounting principles
consistently applied and, if such is the normal practice of Tenant, shall be
audited by an independent certified public accountant.
43. MISCELLANEOUS.
(a) This contract shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of Landlord. Tenant
has only a usufruct, not subject to levy and sale.
(b) The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any other term,
covenant or any subsequent breach of the same or any other term, covenant or
condition herein contained.
(c) This Lease sets forth all the covenants, promises, agreements,
conditions and undertakings between Landlord and Tenant concerning the Premises,
and there are no covenants, promises, agreements, conditions or undertakings
other than as herein set forth.
(d) Time is of the essence with respect to the performance of each
of the covenants and agreements of this Lease; provided, however, that failure
of Landlord to provide Tenant with any notification regarding adjustments in
Base Rental, Additional Rent, or any other charges provided for hereunder,
within the time periods prescribed in this Lease shall not relieve Tenant of its
obligation to make such payments, which payments shall be made by Tenant at such
time as notice is subsequently given.
(e) The captions of this Lease are for convenience of reference
only and in no way define, limit or describe the scope or intent of this Lease.
(f) The laws of the State of Alabama shall govern the validity,
performance and enforcement of this Lease.
15
(g) In any law suit or court action between Landlord and Tenant
arising out of or under this Lease, the prevailing party in such law suit or
court action shall be entitled to and shall collect from the non-prevailing
party the reasonable attorneys' fees and court costs actually incurred by the
prevailing party with respect to said lawsuit or court action.
(h) Landlord's obligations and liability to Tenant with respect to
this Lease shall be limited solely to Landlord's interest in the Building.
Neither Landlord nor any joint venturers of Landlord, nor any officer, director,
partner, shareholder or agent of Landlord or any joint venturers of Landlord,
shall have any personal liability whatsoever with respect to this Lease.
(i) The rules and regulations (the "RULES AND REGULATIONS")
attached as Exhibit "B" shall be and are hereby made a part of this Lease, and
Tenant, its employees and agents, will perform and abide by said Rules and
Regulations, and any reasonable amendments or additions to said Rules and
Regulations made from time to time by Landlord.
(j) If Tenant comprises more than one person, corporation,
partnership or other entity, the liability hereunder of all such persons,
corporations, partnerships or other entities shall be joint and several.
(k) So long as Tenant is in full compliance with the terms and
conditions of this Lease, Landlord shall warrant and defend Tenant in the quiet
enjoyment and possession of the Premises during the Term against any and all
claims made by, through or under Landlord, subject to the terms of this Lease.
(l) The use of headings herein is solely for the convenience of
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
(m) The submission of this Lease does not constitute an offer to
lease and this Lease shall be effective only upon the due execution and delivery
hereof by Landlord and Tenant.
44. LANDLORD DEFAULT AND TENANT'S SELF HELP RIGHTS. In addition to all of
Tenant's other rights and remedies under this Lease, and notwithstanding
anything to the contrary, in the event Landlord materially defaults in its
obligations under this Lease to provide services or to repair and maintain the
Building or the Premises and fails to cure or commence to diligently pursue
curing such default hereunder within thirty (30) days of receipt of written
notice of such default from Tenant and Landlord does not contest the claim of
such default and Tenant is not in default under this Lease, then Tenant shall
have the right to cure such default and to obtain reasonable reimbursement from
Landlord of the cost of such cure, with interest thereon at the rate of twelve
percent (12%) per annum or the highest rate allowed by law, whichever is less,
until paid. The provisions of this Paragraph 44 are subject to Paragraphs 30 and
40 herein.
45. GUARANTY. Tenant's obligations under this Lease are guaranteed by the
Guarantor pursuant to the Guaranty attached as Exhibit "H".
16
IN WITNESS WHEREOF, the parties hereto have herein set their hands and
seals, the day and year set forth below, effective as of the date first above
written.
TENANT: INFINITY INSURANCE COMPANY,
A INDIANA CORPORATION
By: /s/Roger Smith
-------------------------------------
Name: Roger Smith
-------------------------------------
Title: Chief Financial Officer
-------------------------------------
LANDLORD
COLONIAL REALTY LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP
By: Colonial Properties Trust
Its: General Partner
By: /s/ Robert A. Jackson
-------------------------------------
Name: Robert A. Jackson
-------------------------------------
Title: Executive Vice President
-------------------------------------
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EXHIBIT "A-1"
PREMISES
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EXHIBIT "A-2"
PREMISES
19
EXHIBIT "A-3"
PREMISES
20
EXHIBIT "A-4"
PREMISES
21
EXHIBIT "B"
RULES AND REGULATIONS
1. Sidewalks and public portions of the Building, such as entrances,
passages, courts, elevators, vestibules, stairways, corridors or halls,
shall not be obstructed or encumbered by Tenant or used for any purpose
other than ingress and egress to and from the Premises.
2. No curtains, blinds, shades, louvered openings or screens shall be
attached to or hung in, or used in connection with, any window or door
of the Premises, without the prior written consent of Landlord. The
sashes, sash doors, skylights, windows, heating, ventilating and air
conditioning vents and doors that reflect or admit light and air into
the halls, passageways or other public places in the Building shall not
be covered or obstructed by Tenant, nor shall any bottles, parcels or
other articles be placed on the window sills.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of
the Premises or Building or on corridor walls. Signs on entrance door
or doors shall conform to Building standard signs. Signs on doors
shall, at Tenant's expense, be inscribed, painted or affixed by sign
makers approved by Landlord. Landlord may, if Tenant violates this
provision, remove same without any liability, and any expense incurred
in such removal shall be payable by Tenant.
4. Water closets and other plumbing fixtures shall be used in a proper and
safe manner. No sweepings, rubbish, rags or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures
by, through or under Tenant shall be borne by Tenant.
5. Tenant shall not deface the Premises or Building. Tenant shall lay
linoleum, or other similar floor covering, so that the same shall come
in direct contact with the floor of the Premises, and, if linoleum or
other similar floor covering is used, an interlining of builders
deadening felt shall be first affixed to the floor by a paste or other
material, soluble in water. The use of cement or other similar adhesive
material for such purpose is prohibited.
6. No bicycles, vehicles or animals (except seeing eye dogs) shall be
brought into or kept in or about the Premises. No cooking shall be done
or permitted by Tenant on the Premises except in conformity with law
and then only in the utility kitchen, if any, as set forth in Tenant's
layout, which is to be used by Tenant's employees and guests for
heating beverages and light snacks. Tenant shall not cause or permit
any unusual or objectionable odors to be produced upon or permeate from
the Premises.
7. No portion of the Premises, Building or Park shall be used for
manufacturing or distribution, or for the sale of merchandise, goods or
property.
8. Tenant shall not make, or permit to be made, any disturbing noises or
disturb or interfere with occupants of the Building or neighboring
buildings or premises or those having business with them.
9. Neither Tenant, nor any of Tenant's agents, employees, contractors,
licensees, customers or guests, shall at any time put up or operate
electrical heaters or bring or keep upon the Premises inflammable,
combustible or explosive fluid, or chemical substance, other than
reasonable amounts of cleaning fluids or solvents required in the
normal operation of Tenant's business offices. No offensive gases or
liquids will be permitted.
10. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in
existing locks or the mechanism thereof, without the prior written
approval of Landlord and unless and until a duplicate key is delivered
to Landlord. Tenant shall, upon termination of its tenancy, restore to
Landlord all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, Tenant. Tenant shall pay to Landlord the
cost of any replacement keys.
11. All moves in or out of the Premises, or the carrying in or out of any
safes, freight, furniture or bulky matter of any description, must take
place during the hours which Landlord determines for such activity from
time to time. Only the Building freight elevator shall be used for such
purposes. Tenant will ensure that movers
22
take necessary measures required by Landlord to protect the Building
(e.g., windows, carpets, walls, doors and elevator cabs) from damage.
Landlord reserves the right to inspect all freight to be brought into
the Building and to exclude from the Building all freight which
violates these Rules or the Lease.
12. Tenant shall not place any furniture, accessories or other materials on
any balconies located within or adjacent to the Premises without having
obtained Landlord's express written approval thereof in each instance.
13. Landlord shall have the right to prohibit advertising by Tenant which
in Landlord's reasonable opinion tends to impair the reputation of the
Building or its desirability as a building for offices. Upon written
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
14. Landlord reserves the right to exclude from the Building at all times
other than business hours all persons who do not present a pass to the
Building signed by Tenant. Tenant shall be responsible for all persons
to whom it issues such a pass and shall be liable to Landlord for all
acts of such persons.
15. The Premises shall not be used for lodging or sleeping.
16. Landlord shall respond to Tenant service requests only after
application at the management office for the Building. Landlord shall
establish methods of application which may be changed from time to time
upon written notice to Tenant but shall initially employ e-mail and
telephone request procedures.
17. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent the same.
18. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by its jobbers or others, in the delivery
or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and side guards. No hand trucks, mail carts or mail bags
shall be used in passenger elevators.
19. All paneling or other wood products not considered furniture shall be
of fire retardant materials. Before installation of such materials,
certification of the materials' fire retardant characteristics shall be
submitted to Landlord, in a manner satisfactory to Landlord.
20. Tenant shall not employ any persons other than the janitors retained by
Landlord (who will be provided with pass-keys into the offices) for the
purpose of cleaning the Premises.
21. No painting shall be done, nor shall any alterations be made, to any
part of the common areas of the Building by putting up or changing any
partitions, doors or windows, nor shall there be any nailing, boring or
screwing into the woodwork or walls, nor shall any connection be made
to the electric wires or electric fixtures, without the consent in
writing on each occasion of Landlord. No sunscreen or other films shall
be applied to the interior surface of any window glass. All glass,
locks and trimmings in or upon the doors and windows of the Building
shall be kept whole, and when any part thereof shall be broken, the
same shall be immediately replaced or repaired and put in order at
Tenant's expense under the direction and to the satisfaction of
Landlord, and shall be left whole and in good repair.
22. Landlord will post on the Building directory up to Tenant's prorate
share of signage at no charge. All additional names which Tenant shall
desire put upon said directories must be first consented to by
Landlord, and if so approved, a charge to Tenant will be made for each
additional listing as prescribed by Landlord to be paid to Landlord by
Tenant.
23. Landlord reserves all vending rights, and in no event shall any vending
machines be visible from the exterior of the Premises. Request for such
service will be made to Landlord which consent shall not be
unreasonably withheld or delayed.
24. Parking facilities for the Building, if any, shall be used by vehicles
that may occupy a standard parking area only. The use of such parking
facilities shall be limited to normal business parking and shall not be
used for overnight parking unless in reserved spaces.
23
25. Smoking shall only be permitted in such areas as Landlord may from time
to time designate. Landlord shall designate an area or areas outside
buildings in the Park as "Designated Smoking Areas." Landlord shall
have the right to change such Designated Smoking Areas and to enact
reasonable future rules and regulations concerning smoking in such
Designated Smoking Areas. Tenant agrees to comply in all respects with
Landlord's regulation of smoking and to enforce compliance against its
employees, agents, invitees (to the extent reasonably possible) and
other persons under the control and supervision of Tenant on Premises
or the Park. Any violation of this provision shall, in addition and
without limiting Landlord's other rights and remedies, entitle Landlord
to assess a monetary fine against Tenant for each violation of this
Rule in the amount of $25.00 for the first violation, $50.00 for the
second violation, and $100.00 for each subsequent violation. For
purposes hereof, "smoking" means inhaling, exhaling, burning or
carrying any lighted cigar, cigarette, pipe or other smoking equipment
or device in any manner or form.
26. Landlord reserves the right to make reasonable modifications of or
delete any of the foregoing Rules and to make such other and reasonable
rules and regulations as in its judgment may from time to time be
needed for the safety, care and cleanliness of the Premises and
Property, and for the preservation of good order therein. Landlord
shall not be responsible to any tenant for the non-observance, or
violation, of any of these Rules by other tenants. Landlord will
provide written notification to Tenant of any modifications to the
Rules and Regulations.
24
EXHIBIT "C"
OPERATING EXPENSES
"Operating Expenses" shall mean the operating costs and expenses
attributable to Landlord's Property, as hereinafter defined, and delineated as
follows:
1. Costs and expenses paid or incurred by Landlord for the
maintenance and repair of the Building, its grounds, and parking areas and
facilities (hereinafter called "LANDLORD'S PROPERTY") and the personal property
used in connection therewith, including but not limited to (i) the heating,
ventilating and air-conditioning equipment, (ii) plumbing, electrical and
mechanical systems and equipment, (iii) light bulbs and broken glass, including
replacement thereof, (iv) all supplies, tools, equipment and materials used in
the operation, management, maintenance and access control of Landlord's
Property, and (v) elevators and escalators;
2. Cost of all maintenance and service agreements for Landlord's
property and the equipment therein, including, but not limited to, security
service, garage operators, window cleaning, elevator maintenance, HVAC
maintenance, janitorial service, landscaping maintenance and customary
landscaping replacement;
3. Utility costs and expenses including, but not limited to,
those for electricity, gas, steam, other fuels and forms of power or energy,
water charges, sewer and waste disposal, heating and air conditioning;
4. Costs and expenses of redecorating, painting and carpeting the
common areas;
5. Costs of all repairs, alterations, additions, changes,
replacements and other items required by any law or governmental regulation, or
by any insurance carrier, imposed or arising out of an interpretation made or
issued after the date of this Lease, regardless of whether such costs, when
incurred, are classified as capital expenditures, provided that such costs will
be amortized by Landlord over their useful life;
6. Costs of wages and salaries of all persons engaged in the
operation, maintenance, repair and security of Landlord's Property, and
so-called fringe benefits, including social security taxes, unemployment
insurance taxes, costs for providing coverage for disability benefits, costs of
any pensions, hospitalization, welfare or retirement plans, or any other similar
or like expense, costs of uniforms, and all other costs or expenses that
Landlord pays to or on behalf of employees engaged in the operation,
maintenance, repair and security of Landlord's Property;
7. Legal and accounting expenses incurred by Landlord in
connection with the management, maintenance, operation and repair of Landlord's
property, including, but not limited to, such expenses as relate to seeking or
obtaining reductions in and/or refunds of real estate taxes;
8. Amortization, with interest, of capital expenditures for
capital improvements made by Landlord after completion of the Building where
such capital improvements are for the purpose of reducing Operating Expenses (so
long as Operating Expenses are actually reduced), promoting safety, or complying
with governmental requirements;
9. Landlord's insurance costs and expenses for all types of
insurance carried by Landlord applicable to Landlord's Property;
10. Security service costs and expenses;
11. Management fees and expenses, not to exceed four percent (4%)
of gross revenues;
12. Taxes, which shall mean (i) personal property taxes
(attributable to the year in which paid) imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems and appurtenances used in connection
with Landlord's Property for the operation thereof, and (ii) real estate taxes,
assessments, community improvement district taxes and fees, sewer rents, rates
and charges, transit taxes, taxes based upon the receipt of rent and any other
federal, state or local governmental charge, general, special, ordinary or
extraordinary (but not including income or franchise taxes or any other taxes
imposed upon or measured by Landlord's income or profits, unless the
25
same shall be imposed in lieu of real estate taxes) which may now or hereafter
be levied or assessed against Landlord's Property, any other improvements
hereinafter constructed on Landlord's Property, or the rents derived from
Landlord's Property and such other improvements (in case of special taxes or
assessments which may be payable in installments, only the amount of each
installment paid during a calendar year shall be included in Operating Expenses
for that year);
13. The Building's pro rata share of expenses incurred for the
operation and maintenance of, and taxes and assessments assessed against, the
common areas of Landlord's Property and the Park, or any portion thereof;
14. Such other expenses paid by Landlord, from time to time, in
connection with the operation and maintenance of Landlord's Property as would be
expected to be paid by a reasonable and prudent operator and manager of a
building and site comparable to Landlord's Property;
15. The cost of conducting air quality audits, and any costs
incurred arising out of or in connection with any recommendations made in any
such audits;
16. The reasonable cost of operating the management office for the
Building (and if such management office also serves any other building, such
costs shall be allocated among such buildings on a per square foot basis),
including the cost of office supplies, bulletins, or newsletters distributed to
tenants, postage, telephone expenses, maintenance and repair of office
equipment, non-capital investment equipment, amortization (and reasonable
financing charges) of the cost of capital investment equipment, and rent; and
17. The cost of any bus shuttle or other transportation system or
equipment operated for the benefit of users of the Park.
Tenant acknowledges that the Building is part of a development, which
will or may include other improvements and that certain of the cost of
management, operation and maintenance of the development shall, from time to
time, be allocated among and shared by two (2) or more of the improvements in
the development (including the Building). The termination of such cost and their
allocation shall be made by Landlord in its sole but reasonable discretion.
Accordingly, the term "Operating Expenses" as used in this Lease shall, from
time to time, include some cost, expenses and taxes enumerated above which were
incurred with respect to other improvements in the development but which were
allocated to and shared by the Building in accordance with the foregoing.
Notwithstanding the foregoing, Tenant understands and agrees that its right to
use other portions of the development of which the Building is a part are those
available to the general public and that this Lease does not grant Tenant
additional rights of use.
The following shall be excluded from Operating Expenses:
(1) costs attributable to seeking and obtaining new tenants or
retaining existing tenants, such as advertising, brokerage
commissions, architectural, engineering, attorney's fees,
renovations and improvements;
(2) costs, attorneys' and accountants' fees, disbursements and
expenses incurred in connection with negotiations or disputes
with tenants, other occupants, or prospective tenants and
similar costs and expenses incurred in connection with
negotiations or disputes with consultants, management agents,
purchasers or mortgagees of the Building;
(3) costs that are reimbursable to Landlord by tenants as a result
of provisions contained in their specific leases, such as
excessive use of utilities;
(4) amortization of debt;
(5) costs incurred due to violations by Landlord of any of the
terms and conditions of any leases in the Building;
(6) interest or other finance charges on any mortgages or deeds of
trust of Landlord and rental under any ground or underlying
lease;
26
(7) any compensation paid to clerks, attendants or other persons
in commercial concessions operated by Landlord;
(8) all items and services for which tenants or other parties
reimburse Landlord or pay third persons or which Landlord
provides selectively to one or more tenants without
reimbursement or for which Landlord is entitled to
reimbursement;
(9) advertising expenditures;
(10) repairs and other work occasioned by fire, windstorm or other
casualty to the extent Landlord is reimbursed by insurance
proceeds;
(11) costs incurred in operating and maintaining the parking
facilities if Landlord charges for parking except for the
covered reserved parking described in Exhibit F, 1.05;
(12) any costs, fines or penalties incurred due to intentional
violations by Landlord of any governmental rule or authority;
(13) costs of obtaining, installing, repairing and maintaining
sculpture, paintings or other objects of art in the Building;
(14) wages, salaries or other compensation paid to any corporate
executive employees of Landlord;
(15) the costs of correcting any code violations that occurred
prior to the commencement of the term and costs incurred to
comply with handicap, life, fire and safety codes in effect
prior to the commencement of the term;
(16) costs attributable to repairing or replacing items to the
extent they are covered by warranties;
(17) repairs and maintenance performed for another tenant in the
Building for which Landlord is reimbursed directly by that
tenant;
(18) penalties for late payment of real estate taxes;
(19) costs of construction of improvements or repairs charged to
specific tenants or other occupants of the Building to the
extent Landlord is reimbursed by insurance or condemnation
proceeds;
(20) costs of bad debts, rent delinquencies or reserves for same;
(21) costs of abatement of Hazardous Substances including all
demolition and restoration necessitated by removal and fines
and penalties imposed by reason of their existence;
(22) net income, franchise, capital stock, estate, inheritance,
transfer, succession and gift taxes imposed as a result of a
change in ownership of Landlord's Property;
(23) costs incurred in connection with the sale, financing,
refinancing, mortgaging, selling or change of ownership of
Landlord's Property, including brokerage commissions,
attorneys' fees and accountants' fees, closing costs, title
insurance premiums, transfer taxes and interest charges;
(24) costs incurred by Landlord for organization expenses and
accounting fees relating to Landlord's general corporate
overhead;
(25) costs of repairing, replacing or otherwise correcting latent
defects, including, but not limited to, design and/or
construction defects (but not the costs of repair for normal
wear and tear) in the construction of the Building;
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(26) costs of any repair to any structural element of the Building;
(27) costs of any repair made by Landlord pursuant to or as a
result of condemnation;
(28) allowances and other costs and expenses incurred in fixturing,
furnishing, renovating or otherwise improving, decorating or
redecorating space (excluding Building common areas) for
tenants or prospective tenants or other occupants of the
Building;
(29) costs or expenses relating to another tenant's or occupant's
space which were incurred in rendering any service to such
tenant in excess of Building standard services;
(30) costs of repairs, restorations, replacements or other work
occasioned by the gross negligence or intentional tort of
Landlord, its agents or employees;
(31) costs of any political or charitable donations or
contributions;
(32) costs and expenses attributable to the initial construction of
the Building, including the initial tools, supplies, equipment
and materials necessary to initially make the Building
operational;
(33) costs of repairing the roof to the Building to the extent the
same would have been covered under a warranty which a
reasonably prudent developer of a first-class office building
in the vicinity of the Building would have obtained;
(34) costs and expenses associated with the creation and operation
of the entity which constitutes Landlord;
(35) except as provided above, costs for capital improvements and
repairs to the extent Landlord is reimbursed by insurance or
condemnation proceeds and deductions for depreciation and
obsolescence;
(36) costs of insurance coverage not customarily carried by
institutional landlords of similar stature as Landlord in
comparable buildings in the area in which the Building is
located;
(37) costs of installing any specialty service such as a restaurant
or athletic or recreation facility and
(38) insurance premiums to the extent of any premium refunds made
by an insurance carrier in connection with any premium
overpayment for the Building
In determining the amount of property taxes for any calendar year, the amount of
special assessments to be included shall be limited to the amount of the
installment (plus any interest payable thereon) of such special assessment which
would have been required to have been paid during such year if the Landlord had
elected to have such special assessment paid over the maximum period of time
permitted by law.
Notwithstanding anything in this lease to the contrary, it is agreed that in the
event the property covered by real estate tax bills included in operating
expenses is not fully assessed as a completed project for purposes of
calculating the taxes in the operating expenses, a reasonable and equitable
adjustment shall be made by Landlord in computing the operating expenses so that
the increase or decrease in operating expenses for any comparison year shall be
adjusted to the amount of increase or decrease that would have resulted had such
property been fully assessed as a completed project for purposes of calculating
the taxes included in operating expenses."
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EXHIBIT "D"
WORK AGREEMENT
1. TENANT'S PLANS. Not later than the 1ST DAY OF JUNE, 2004,
Tenant shall furnish to Landlord plans, drawings and specifications
(collectively "Tenant's Plans") for leasehold improvement work (the "Work")
which Tenant desires to be made to the Premises in sufficient detail to enable
to Landlord's architects and engineers to prepare the "Working Drawings"
(hereinafter defined) together with such additional information as is reasonably
necessary to enable Landlord to prepare the Working Drawings, including a final
telephone layout and special electrical connection requirements, if any. The
Work and Tenant's Plans shall be subject to Landlord's approval, which will not
be unreasonably withheld. Approval by Landlord of the Work and Tenant's plans
shall not constitute any warranty by Landlord to Tenant of the adequacy of the
design for Tenant's intended use of the Premises.
2. WORKING DRAWINGS. Landlord shall prepare final working
drawings and specifications for the Work based upon and consistent with Tenant's
Plans referred to above.
3. PERFORMANCE OF THE WORK. Except as otherwise provided herein,
Landlord shall perform the Work shown on the Working Drawings. The Work shall be
performed by Landlord at Tenant's sole expense subject to the Tenant Improvement
Allowance set forth in Paragraph 8. Tenant shall also pay any additional
expenses, which along with the cost of the Work exceed the Tenant Improvement
Allowance described herein below, incurred by Landlord in connection with the
installation, which result from any special work, materials, finishes, or
installations required by Tenant or from any delays in the Work caused by
Tenant.
Furthermore, all work performed by Landlord shall be subject to and in
accordance with all county and city building and/or fire department codes and
ordinances. Any required alterations performed to meet said code and ordinances
shall be performed by Landlord and shall be included as Tenant's Work.
4. PAYMENT. Prior to commencing the performance of the Work,
Landlord will submit to Tenant a written statement of the cost of that portion
of the Work to be paid for by Tenant as above described. Within seven (7)
business days after submission of such statement of cost, Tenant shall execute
and deliver to Landlord, in the form then in use by Landlord, an authorization
to proceed with that portion of the Work to be paid for by Tenant. Tenant shall
pay to Landlord 50% of the amount set forth in Landlord's statement within ten
(10) business days of Tenant's receipt of invoice and the balance of the amount
set forth in Landlord's statement shall be paid within ten (10) business days
after substantial completion of the Work. No work shall be commenced until
Tenant has fully complied with the requirements of this Paragraph.
5. SUBSTANTIAL COMPLETION. Landlord shall cause the Work to be
"substantially completed" on or before the commencement date stated in Paragraph
9 of the Lease, subject to delays attributable to any cause described in the
Lease and delays attributable to Tenant. The Work shall be considered
"substantially completed" for all purposes under this Work Agreement and the
Lease if and when Landlord issues a written certificate to Tenant, certifying
that the Work has been completed (except for minor finish-out and "punchlist"
items) in substantial compliance with the Working Drawings and the issuance of a
certificate of occupancy by the applicable governmental authority. If the Work
is not substantially completed on the date stated in Paragraph 9 of the Lease by
reason of any delay (other than a delay specified in Paragraph 6 below), this
Lease shall remain in effect, Landlord shall have no liability to Tenant as a
result of any delay in occupancy, the date stated in Paragraph 9 of the Lease
shall be extended (subject to Paragraph 6 below) to the date on which the Work
is substantially completed and the Expiration Date shall be extended by a like
number of days.
6. TENANT DELAYS. There shall be no extension of the date in
Paragraph 9 of the Summary of Lease Terms (as permissibly extended under
Paragraph 5 above) if the Work has not been substantially completed on said date
by reason of any delay attributable to Tenant, including without limitation:
(i) the failure of Tenant to furnish Tenant's Plans or
the other information required under Paragraph 1 above on or
before the date stated in Paragraph 1;
(ii) the failure of Tenant to comply with the requirements
of Paragraph 4 above;
29
(iii) Tenant's requirements for special work or materials,
finishes, or installations other than the Building Standards;
(iv) changes requested by Tenant in the Working Drawings
either during the preparation or subsequent to the completion
of same;
(v) the performance of any other work in the Premises by
any person, firm or corporation employed by or on behalf of
Tenant, or any failure to complete or delay in completion of
such work; or
(vi) any other act or omission of Tenant that causes a
delay in the substantial completion of the Work.
7. TENANT'S ACCESS. Landlord grants to Tenant and Tenant's agents
a license to enter the Premises prior to the date that the Work is substantially
completed so that Tenant may perform other work required by Tenant to make the
Premises ready for Tenant's initial use and occupancy. It shall be a condition
precedent to the right to exercise such license that Tenant give to Landlord not
less than five (5) days' prior written notice of its intention to enter the
Premises and that such access will not interfere with the performance of the
Work. Such early access shall be subject to scheduling by Landlord. Tenant's
agents, contractors, workmen, mechanics, and suppliers shall work in harmony and
not interfere with Landlord and Landlord's agents in the performance of the Work
in the Premises, Landlord's work in other premises and in the Common Areas, or
the general operation of the Building or the Property. If at any time such entry
shall cause or threaten to cause disharmony or interference, including labor
disharmony, Landlord may withdraw such license upon notice to Tenant. Any such
entry into the Premises by Tenant shall be deemed to be under all of the terms,
covenants, conditions and provisions of the Lease, excluding only the covenant
to pay Rent. Landlord shall not be liable for any injury, loss, or damage which
may occur to any of Tenant's work or installations made in the Demised Premises
or to property placed therein prior to the Commencement Date and Tenant shall
bear the risk of all such injury, loss or damage. Tenant shall pay for any
damage to the Premises or Building, or to any portion of the Work caused by
Tenant or any of Tenant's employees, agents, contractors, workmen or suppliers.
In the event the performance of any work by Tenant, its agents, employees or
contractors results in Landlord incurring costs (including without limitation
costs for the use or movement of labor or material) in excess of the customary
costs incurred by Landlord therefor under normal operation and Tenant "move-in"
procedures established for the Property by Landlord, Tenant shall reimburse
Landlord for such excess costs.
8. TENANT IMPROVEMENT ALLOWANCE. Tenant shall pay any cost
created by changes made by Tenant after Tenant's Plans have been approved by
both Landlord and Tenant and such cost may be funded from the Tenant Improvement
Allowance. After completion of the improvements (construction of which Landlord
will monitor and control) Tenant shall pay within twenty (20) business days of
Tenant's receipt of invoice for any cost overages resulting from changes made by
Tenant in approved Tenant's Plans. Landlord will provide a Tenant Improvement
Allowance of $28.00 per rentable square foot of the Premises toward the
completion of the Work shown in Tenant's Plans including any space planning and
engineering costs, data and voice cabling costs and systems furniture (such
systems furniture shall not exceed a cost of $4.00 per rentable square foot of
the Premises). Any unused allowance may be utilized by Tenant during the Term
for additional leasehold improvements to the Premises and/or up to $5.00 per
rentable square foot of any unused allowance may be converted, at Tenant's
request, to an equivalent amount of free rent to be applied against Base Rental
as it becomes due pursuant to Paragraph 18(a) of this Lease. In the event Tenant
elects to convert up to $5.00 per rentable square foot of any unused allowance
into free rent as provided for above, then the Tenant Improvement Allowance set
forth herein shall be reduced by an equivalent amount. In the event any portion
of the Tenant Improvement Allowance remains unused after the completion of the
Work, Landlord and Tenant agree to amend the Lease to specify the manner in
which Tenant desires to utilize the unused portion of the allowance in
accordance with the options set forth in this Paragraph 8.
9. SPACE DESIGN. Any architectural and engineering costs incurred
in order to implement construction of Tenant's premises per Tenant's Plans, as
approved by both Landlord and Tenant, shall be paid for by Tenant. Space design
may be paid from Tenant Improvement Allowance.
10. CONSTRUCTION. The Working Drawings shall be bid to a minimum
of three general contractors who shall be mutually agreed to by Landlord and
Tenant and Landlord and Tenant shall mutually agree on the successful
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bidder. Landlord will enter a construction contract with the successful
contractor for the completion of the Work. Landlord shall provide a weekly
construction status, including an accounting of all costs associated with the
Work, to Tenant. Landlord shall charge a two percent (2%) construction
management fee against the actual hard construction costs (such fee shall not
exceed 2% of the Tenant Improvement Allowance set forth in Paragraph 8 above).
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EXHIBIT "E"
RENT COMMENCEMENT DATE AND EXPIRATION DATE
RE: Lease dated as of ________day of August 2003, by and between
COLONIAL REALTY LIMITED PARTNERSHIP, as Landlord, and INFINITY
INSURANCE COMPANY, a Indiana Corporation, as Tenant.
1. The Commencement Date is the first day of April 2005, and the
expiration date of the Term is the last day of March 2016, subject
however to the terms and provisions of the Lease.
2. Terms denoted herein by initial capitalization shall have the meanings
ascribed thereto in the Lease.
"TENANT": INFINITY INSURANCE COMPANY, a
Indiana Corporation
BY:
--------------------------------
TITLE:
--------------------------------
DATE:
"LANDLORD":
COLONIAL REALTY LIMITED PARTNERSHIP
BY:
--------------------------------
Robert A. Jackson
TITLE: Executive Vice President
--------------------------------
DATE:
--------------------------------
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EXHIBIT "F"
SPECIAL STIPULATIONS
If the Special Stipulations set forth in this Exhibit "F" conflict with
any of the provisions of the foregoing Lease, the Special Stipulations shall
control.
1.01 CAP ON CONTROLLABLE OPERATING EXPENSES. For purposes of calculating
Tenant's Additional Rental pursuant to Paragraph 19 of the Lease,
Landlord and Tenant hereby agree that, commencing with the first full
calendar year of the Lease Term, Operating Expenses (except for
Uncontrollable Costs, as hereinafter defined) shall be deemed not to
increase by more than four and one-half percent (4 1/2%) herein
referred to as the "Operating Expense Cap" from one calendar year to
the next calendar year, regardless of any actual increases in Operating
Expenses; provided, however, in the event that in any calendar year any
such increase in Operating Expenses is in fact greater than the
Operating Expense Cap (any such increase in excess of the Operating
Expense Cap being hereinafter collectively referred to as the
"Carryover Percentage"), Landlord shall have the right to add all of
the Carryover Percentage (or such portion thereof as will not produce a
total increase in Operating Expenses in excess of the Operating Expense
Cap) to the increases in Operating Expenses occurring over any of the
following years of the Lease Term in which such increases in Operating
Expenses are less than the Operating Expense Cap, on a cumulative basis
until all such Carryover Percentages have been used to increase
Operating Expenses for purposes of calculating Tenant's Additional
Rental payable pursuant to Paragraph 19 of the Lease. For example, if
the actual increase in Operating Expenses during the second calendar
year of the Lease Term is ten percent (10%) and if, for purposes of
this example, the Operating Expense Cap is eight percent (8%) (thus
creating a Carryover Percentage of two percent (2%), which may be
carried forward to future years by Landlord), and if in the third
calendar year of the Lease Term the actual increase in the Operating
Expenses is six percent (6%), then during the third calendar year of
the Lease Term Operating Expenses shall be deemed to increase by eight
percent (8%), such eight percent (8%) increase arising from adding the
six percent (6%) increase in Operating Expenses which occurred in the
third calendar year to the two percent (2%) Carryover Percentage from
the second calendar year. The foregoing provisions of this Section
notwithstanding, Taxes, all utility costs and expenses, including,
without limitation, those for electricity and other fuels and forms of
power or energy, water charges, sewer and waste disposal, and the cost
of all casualty, liability and other insurance applicable to the
Project and Landlord's personal property used in connection with the
Project (all of the foregoing are herein collectively referred to as
"Uncontrollable Costs") shall not be subject to any limitation or cap,
and, accordingly, the total dollar increase in Operating Expenses, and
Tenant's Additional Rental payable pursuant to Paragraph 19 of the
Lease, for any and each calendar year during the Lease Term shall be
calculated without any limitation or cap on Uncontrollable Costs.
1.02 CONTRACTION OPTION. Tenant shall have two (2) options to reduce the
Premises, one (1) as of the end of the sixtieth (60th) month of the
initial Term of the Lease, (the "First Contraction Date"); and one (1)
as of the end of the ninety-sixth (96th) month of the initial Term of
the Lease, (the "Second Contraction Date") as further described herein
below. Such "Contraction Options" shall be strictly contingent upon and
subject to the following terms and conditions:
(a) Tenant shall not be in default in the performance of any of
the terms, covenants or conditions of the Lease.
(b) Tenant must provide written notification to Landlord of its
desire to exercise the Contraction Option a minimum of twelve
(12) months prior to the respective Contraction Date (the
"Contraction Notice").
(c) In each instance, the area of contraction shall be contiguous
and shall be located in a mutually acceptable floor in the
Building and in a mutually acceptable configuration.
(d) Within thirty (30) days of Tenant's Contraction Notice to
Landlord, Tenant shall reimburse Landlord an amount equal to
the unamortized balance, as of the Contraction Date, of the
Landlord's initial capital cost associated with the Lease,
including the Tenant Improvement Allowance and Real
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Estate Commissions paid in connection with this Lease plus
three (3) months base rental that would apply to the sixth
year of the Lease Term. The unamortized balance shall be
computed based upon an interest rate of 10% and shall be pro
rated so as to reflect the actual area of the Premises
associated with the contraction.
(e) Tenant shall pay all reasonable costs associated with Tenant's
contraction, as such relates to the costs associated with (i)
any required demising wall costs, (ii) the cost, if any, to
install a building standard common corridor; and (iii) HVAC
adjustments, necessary to delineate the Contraction Area from
Tenant's reduced Premises.
(f) The Contraction Dates and size of the Contraction Options are
as follows:
First Contraction Date - March 31, 2010
Tenant shall have a Contraction Option to reduce the rentable
square footage of the Premises by up to a maximum of ten
percent (10%) of the total Premises then under the Lease.
Second Contraction Date - March 31, 2013
Tenant shall have a Contraction Option to reduce the rentable
square footage of the Premises by up to a maximum of ten
percent (10%) of the total Premises then under the Lease.
Provided, however, if Tenant does not exercise its right to
contract on the First Contraction Date, then Tenant's
Contraction Option on the Second Contraction Date shall be
increased to a maximum of fifteen percent (15%) of the total
Premises then under the Lease.
1.03 FIRST RIGHT OF REFUSAL.
a. Right of Tenant. Provided that Tenant is not then in default
under the terms of this Lease, Tenant shall have an ongoing
and continuous first right of refusal ("Refusal Right") during
the Term of this Lease to lease additional contiguous space
which may be or may become available for lease in the Building
(the "Refusal Space").
b. Commencement of Right. Landlord hereby covenants and agrees
with Tenant that during the Term of the Lease (i) Landlord
shall provide Tenant with written notice ("Landlord's Notice")
at any time that Landlord intends to lease the Refusal Space
to any bona-fide third party tenant, except in the event that
such leasing of the Refusal Space is in connection with any
tenant of the Building's exercise of any option in its lease
to expand its premises or renew the term of its lease, in
which case Tenant's Refusal Right shall not apply. Such
Landlord's Notice shall contain all material business terms on
which Landlord has agreed to lease the First Refusal Space in
question and (ii) Landlord shall not lease said Refusal Space
to anyone other than Tenant without first providing Tenant the
opportunity to lease the Refusal Space specified in Landlord's
Notice upon the same terms and conditions specified in the
Landlord's Notice.
c. Exercise of Right. Tenant shall have seven (7) business days
after Landlord's delivery of Landlord's Notice to notify
Landlord of Tenant's agreement to lease the Refusal Space on
the terms set forth in the Landlord's Notice. Tenant shall
exercise the Refusal Right, if at all, as to all of the
Refusal Space described in the Landlord's Notice. If Tenant
does not notify Landlord within the applicable period that
Tenant desires to Lease the Refusal Space on the terms set
forth in the Landlord's Notice, Landlord shall have the right
to lease the Refusal Space on the terms specified in
Landlord's Notice to bona-fide third party tenants other than
Tenant. If the terms set forth in Landlord's Notice provide
for an expiration date beyond the expiration of this Lease
Term, Tenant shall have the right to exercise its Refusal
Right with respect to such space with an expiration date which
coincides with the expiration of the Lease Term, provided
however, that in such event any Landlord allowances shall be
pro rated appropriately (the "Reduced Term Refusal Right").
Notwithstanding the above, Tenant shall not have said Reduced
Term Refusal Right if Landlord's Notice is delivered during
the last three (3) years of the Lease Term.
d. Amendment to Lease. Landlord and Tenant hereby agree to
promptly execute an amendment to this
34
Lease ("Lease Amendment") as soon as reasonably possible after
Tenant's exercise of any Right for Refusal Space. The Lease
Amendment shall specify, among other things, the Rent, date of
occupancy and square footage of the Refusal Space taken in
connection with Tenant's exercise of Tenant's Refusal Right.
1.04 RENEWAL OPTION.
(a) As long as Tenant is not in default in the performance of its
covenants under this Lease, Landlord shall grant Tenant two (2) options
to renew (the "Renewal Options") the term of this Lease for two (2)
periods of five (5) years each (the "Renewal Terms"). Tenant shall
exercise the first Renewal Option by delivering written notice of such
election to Landlord at least eighteen (18) months prior to the
expiration of the initial term of this Lease and shall exercise the
second Renewal Option by delivering written notice of such election to
Landlord at least eighteen (18) months prior to the expiration of the
first Renewal Term. The renewal of this Lease shall be upon the same
terms and conditions of this Lease, except (i) the Base Rental Rate
during the Renewal Term shall be calculated based on the prevailing
Market Base Rental Rate (as hereinafter defined) at the time the
Renewal Term commences, (ii) Tenant shall not have the right to assign
its renewal rights to any sublessee of the Premises or any portion
thereof or to any assignee of the Lease, nor may any such sublessee or
assignee exercise or enjoy the benefit of such renewal rights (unless
otherwise agreed to by Landlord and Tenant), (iii) the leasehold
improvements to be provided by the Landlord shall be consistent with
the prevailing market allowance for comparable renewals in the
Birmingham area. Within thirty (30) days after Landlord's receipt of
Tenant's written notice of its intent to exercise its first or second
Renewal Option in accordance with the above, Landlord shall provide
Tenant a written proposal of terms and conditions including the Market
Base Rental Rate for the Renewal Term applicable to Tenant's notice.
Landlord and Tenant shall then have sixty (60) days during which to
mutually agree on terms and conditions for the applicable Renewal Term.
If Landlord and Tenant have not agreed on terms and conditions for said
Renewal Option within ninety (90) days after Tenant's notice to
Landlord exercising its Renewal Option, then said Renewal Option(s)
shall become null and void and of no further force or effect unless the
parties mutually agree to continue good faith negotiations to reach
mutual agreement on terms and conditions for said Renewal Term.
Notwithstanding the foregoing, Tenant shall have no right to exercise
such options to renew, and Landlord shall have no obligation to renew
this Lease, unless (A) this Lease shall be in full force and effect
upon the date of the exercise of the Renewal Option(s) and upon the
date of the expiration of the respective term, and (B) on the date of
the exercise of the Renewal Options and on the date of the expiration
of the respective term there shall exist no current default on the part
of Tenant under this Lease. If Tenant shall fail to exercise the
Renewal Option(s) within the time permitted or conditions (A) and (B)
set forth above are not entirely satisfied, the Renewal Option(s) shall
automatically terminate. If Tenant shall remain in possession of the
Premises after the expiration of the original term, without there
having been executed between Landlord and Tenant an amendment to this
Lease as contemplated by the terms of this Section, then Tenant shall
be a Tenant holding over as provided in this Lease.
(b) Whenever used in this Renewal Option, the term "Market Base
Rental Rate" shall mean the annual amount per rentable square foot that
Landlord is then quoting as base rent to existing third party tenants
who are renewing leases within the Building, for space comparable to
the space for which the Market Base Rental Rate is being determined
(taking into consideration use, location and/or floor level within the
applicable building, the definition of Rentable Floor Area, leasehold
improvements provided, remodeling credits or allowances granted,
quality, age and location of the applicable building, rental
concessions [such as abatements or lease assumptions], the provision of
free or paid unassigned parking, the time the particular rate under
consideration became effective, size of tenant, relative operating
expenses, relative services provided, etc.). It is agreed that written
offers to lease comparable space located elsewhere in the Building or
in comparable buildings in the Highway 280 submarket may be used by
Landlord as an indication of Market Base Rental Rate.
1.05 PARKING. Landlord shall designate and make available unassigned parking
on a non-exclusive basis, at a ratio of 5 spaces per 1,000 rentable
square feet of the Premises ("Tenant's Parking Ratio"). Such parking
shall be provided without additional, out of pocket charge due from
Tenant in the areas set forth on Exhibit I. Said areas for Tenant's
parking are identified on Exhibit I as Area "A", Area "B" and Area "C".
Tenant's
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Parking Ratio shall be allocated in each parking area as follows; Area
A allocation shall be 3.8 spaces per 1,000 rentable square feet of the
Premises, Area B shall be .6 spaces per 1,000 rentable square feet of
the Premises and Area C shall be .6 spaces per 1,000 rentable square
feet of the Premises (collectively the "Parking Ratio Allocation") for
a total of 5 spaces per 1,000 rentable square feet of the Premises.
Landlord shall have the right but not the obligation to construct, at
Landlord's sole cost, additional parking spaces and increase Tenant's
Parking Ratio Allocation in Area A and reduce Tenant's Parking Ratio
Allocation in Area B and or Area C. Landlord, at Landlord's discretion,
shall be entitled to establish a reasonable system for designating and
ensuring that Tenant's employees park their vehicles in the parking
areas in accordance with the Parking Ratio Allocation and Tenant agrees
to use good faith efforts to comply with said system.
Included in Tenant's Parking Ratio, Tenant shall have a license to
utilize twenty-five (25) covered and reserved parking spaces in an area
of Building parking lot Area A to be identified by Landlord. Landlord
shall construct said spaces, at Landlord's cost, and make such spaces
available on the Commencement Date of the Lease. Tenant's rights to
such spaces shall be in accordance with the terms and conditions of the
License Agreement for Covered Parking attached hereto as Exhibit "J".
Landlord may relocate such spaces from time to time during the Term
within such areas so long as the substituted spaces are not further
from the Building entrance used by Tenant's employees than the furthest
of the prior spaces. The cost of each covered parking space shall be
$50.00 per month increasing three percent (3%) per year beginning in
the second Lease Year. The total cost for the leased parking will be
charged directly to Tenant's office at the Premises for payment.
1.06 SIGNAGE. Landlord shall permit Tenant to install building standard
signage to be placed on or adjacent to the entry door of the Premises
and standard building directory signage which shall be located in the
Lobby of the Building. Additionally, Landlord shall permit Tenant to
place signage graphics on one panel of a shared monument sign located
adjacent to the Building entrance. Said monument signage graphics may
consist of Tenant's standard logo and design. In addition, so long as
Tenant is in occupancy of a minimum of 75,000 rentable square feet in
the Building, Landlord shall permit Tenant to have exclusive top of
building signage rights in one location. The cost to fabricate and
install all such building signage shall be at Tenant's sole cost and
may be funded from the Tenant Improvement Allowance. The size,
location, design and installation of the exterior building signage
shall be mutually agreed upon by Landlord and Tenant. Should Tenant's
occupancy in the Building be reduced below 75,000 rentable square
footage, then Tenant shall, at Tenant's cost, remove the exterior top
of building signage and restore the building exterior to its prior
condition.
1.07 AMERICANS WITH DISABILITIES ACT. If and to the extent Landlord is
required to comply with the provisions of Title III of the Americans
With Disabilities Act (the "ADA") with respect to the common areas of
the Park, Landlord agrees that it will use reasonable efforts to comply
in every material respect with the applicable provisions of the ADA
concerning the common areas of the Park (excluding the Premises);
provided, however, Landlord shall not be required to comply with the
provisions of the ADA if and to the extent the requirement of
compliance therewith arises from or extends to (a) the use or occupancy
of the Park, or any portion thereof, by any lessee, tenant, sublessee,
subtenant, licensee or occupant (including Tenant), or (b) any
alteration, improvement, addition, remodeling or renovation made, or
proposed to be made, to any space in the Park leased or available for
lease (including the Premises). All costs, expenses and disbursements
of every kind and nature in connection with the Landlord's obligations
under this Section shall be included in Operating Expenses. Tenant
hereby agrees that Tenant's sole remedy against Landlord for any claim
that Landlord has breached its obligations under this Section shall be
a suit for specific performance and Tenant hereby waives any claim
against Landlord for damages, whether actual, consequential or
otherwise.
1.08 BUILDING ACCESS AND SECURITY. Tenant shall have access to the Building
and parking will be available to Tenant 24 hours per day seven days a
week. Building access shall be limited at all times when the Building
is not open during Building hours. Tenant shall have access to the
Building after normal Building hours through a proximity card access
system. Landlord shall provide a minimum of one uniformed courtesy
patrol person on-site in the Park 24 hours per day seven days a week
except during the hours of 7:00 am until 6:00 pm on weekdays.
Additionally, Landlord shall permit the elevators to be programmed in
order to limit access to selected floors in the Building which are
fully leased by Tenant.
1.09 EXPANSION OR CONTRACTION OF PREMISES PRIOR TO THE COMMENCEMENT DATE.
Tenant shall have the right to increase or decrease the size of the
initial Premises by up to fifteen percent (15%) by giving Landlord
36
written notice a minimum of twelve (12) months prior to the
Commencement Date of this Lease (and Landlord and Tenant agree to
promptly amend the Lease accordingly). Any expansion or contraction
requested as provided for in this paragraph shall be on a mutually
acceptable floor and configuration. An expansion exercised under this
paragraph shall be upon the same terms and conditions set-forth in
this Lease.
1.10 RECEPTION/SECURITY STATION. Tenant shall have the right to occupy, at
no additional cost, the Reception/Security Station in the Lobby of
the Building so long as Tenant's occupancy has a first class appearance
and the personnel are willing to provide directions and information to
visitors, etc., who may be visiting other tenants in the Building.
Landlord may elect, but shall not be obligated to leave the monitoring
equipment serving common areas of the Building in place. Landlord shall
have the right to use said station after normal Building hours for use
as a base of operations by Landlord's security personnel.
1.11 THIRD YEAR EXPANSION OPTION. On the third anniversary from the
Commencement Date of this Lease, Tenant shall have a right to notify
Landlord of its desire to expand the Premises by up to 15,000 square
feet (the "Expansion Space"). Landlord will notify Tenant within 30
days of receiving notice from Tenant whether or not such space is
available within the Building ("Landlord's Response"). Landlord's
Response will identify if such space is available in the Building. If
no such space is available within the Building, Landlord shall use its
reasonable good faith efforts to identify space available in one of the
other office buildings it owns in the Park consisting of 3800 Colonnade
and 3500 Colonnade on the effective date of this Lease or a new office
building if such is built and owned by Landlord after the Commencement
Date hereof (the "Other Buildings"). If such Expansion Space is not
then available, then Tenant's rights under this Exhibit F, 1.03 shall
continue and shall be expanded, on a one time basis, to include up to
15,000 square feet of contiguous space that may become available in the
Other Buildings.
If Landlord's Response identifies available Expansion Space, Tenant
shall then have ten (10) days in which to notify Landlord in writing
exercising Tenant's right to lease the Expansion Space upon terms and
conditions to be mutually agreed to by Landlord and Tenant. If Tenant
exercises the right to lease the Expansion Space, said lease shall
commence on the earlier to occur of thirty (30) days after delivery of
possession of the Expansion Space to Tenant for the purpose of
constructing improvements, or the date the Expansion Space is used by
Tenant for the conduct of business, and shall continue for the duration
of the Term of the Lease. The right to lease the Expansion Space shall,
at Landlord's election, be null and void if Tenant is in default under
the Lease at the date Landlord would otherwise notify Tenant of the
availability of the Expansion Space or at any time thereafter and prior
to commencement of the lease for the Expansion Space. Additionally, if
Landlord and Tenant can not mutually agree on terms for the Expansion
Space within 45 days after Tenant's notice to Landlord exercising this
right, then this Expansion Option shall become null and void.
The foregoing expansion right shall apply only with respect to the
entire Expansion Space, and may not be exercised with respect to only a
portion thereof unless only a portion thereof shall first become
available (in which case, the foregoing expansion right shall apply to
such portions of the Expansion Space, as the same become legally
available to lease). If Tenant shall fail to exercise such expansion
right, after notice by Landlord of the availability of the Expansion
Space, as provided herein, such right shall be deemed to have lapsed
and expired, and shall be of no further force or effect. Landlord may
thereafter freely lease all or a portion of the Expansion Space to any
other party, at any time, on any terms, in Landlord's sole discretion.
The foregoing expansion right shall be subject to the existing tenants
or occupants of the Expansion Space renewing their existing leases
whether pursuant to options to extend previously granted or otherwise,
and in all events is subject and subordinate to any existing rights of
any other parties to lease the Expansion Space, if such existing rights
have already been granted prior to the date of this Lease.
If Tenant shall exercise the expansion right granted herein, Landlord
does not guarantee that the Expansion Space will be available on the
commencement date for the lease thereof, if the then existing occupants
of the Expansion Space shall hold-over, or for any other reason beyond
Landlord's reasonable control. In such event, rent with respect to the
Expansion Space shall be abated until Landlord legally delivers the
same to Tenant, as Tenant's sole recourse. Tenant's exercise of such
expansion right shall not operate to cure any default by Tenant of any
of the terms or provisions in the Lease, nor to extinguish or impair
any rights or remedies of Landlord arising by virtue of such default.
If the Lease or Tenant's right to possession of the Premises shall
terminate in any manner whatsoever before Tenant shall exercise the
right herein provided,
37
or if Tenant shall have subleased or assigned all or any portion of the
Premises, then immediately upon such termination, sublease or
assignment, the expansion right herein granted shall simultaneously
terminate and become null and void. Such right is personal to Tenant.
Under no circumstances whatsoever shall the assignee under a complete
or partial assignment of the Lease, or a subtenant under a sublease of
the Premises, have any right to exercise the expansion right granted
herein. Time is of the essence of this provision.
1.12 HVAC MAINTENANCE. In conjunction with the construction of the Work
described in Exhibit D, Tenant desires to have installed supplemental
HVAC in approximately 20,000 square feet of the Premises for use during
and or after normal Building hours. After initial construction, Tenant
may request that the Landlord provide ongoing maintenance for said
supplemental HVAC units along with any existing supplemental HVAC units
that may have been left in the premises by the prior tenant and re-used
by Tenant (collectively, the "Units"). Tenant shall be responsible for
any and all costs associated with the ongoing maintenance, repair and
or replacement of the Units during the Lease and any extensions
thereof. The cost of such maintenance, repair and replacement of said
units shall be billed directly to Tenant. Landlord shall have
maintenance personnel on call after normal Building hours to respond to
Tenant's HVAC or other emergency service requests.
1.13 FURNITURE IN THE PREMISES. Provided Tenant gives Landlord written
notice not less than thirty (30) days prior to the expiration of this
Lease Term including any extensions thereof, Tenant shall have the
first right to purchase any workstations and chairs placed or installed
in the Premises as part of the Work performed by Landlord for their
then determined fair market value, in which case Tenant shall remove
the same from the Premises within ten (10) days of Lease expiration.
1.14 GENERATOR PAD. Landlord shall permit Tenant to utilize the generator
location, or an alternate location identified by Landlord, at no
charge, for the purpose of installing and maintaining an emergency
generator.
1.15 AD VALOREM TAX ABATEMENT. In connection with this Lease, Tenant is
planning to relocate its corporate headquarters to the Building and
Tenant is currently in negotiations with the City of Birmingham,
Jefferson County and the Industrial Development Board of the City of
Birmingham for an ad valorem tax credit or abatement if such move is
made (the "Tax Credit"). Should Tenant be able to negotiate the Tax
Credit from such entity for such move which decreases the tax bill
applicable to the Building, then upon such Tax Credit becoming
effective and receipt by Landlord of such reduced tax notice for the
Building, Landlord and Tenant agree that Tenant shall receive a savings
equivalent to 65% of its pro rata share of said Tax Credit (the "Tenant
Tax Credit") associated with the Building during the term such Tax
Credit is in effect. Such Tenant Tax Credit shall be reflected as a
reduction to the Base Year amount accompanied by an equivalent
reduction to Tenant's Base Rental. The amount of said Tenant Tax Credit
shall be derived by dividing the total annual amount of the Tax Credit
by the total rentable square feet in the Building and multiplying that
figure by 0.65. The resulting figure shall be subtracted from the Base
Year amount and Tenant's Base Rental (both calculated on a per rentable
square foot basis). For example, if the Tax Credit equals $100,000 each
year and the total building rentable square footage is 150,000, then
the calculation of Tenant's Tax Credit shall be as follows:
$100,000/150,000 RSF = $.67/RSF, $.67/RSF x 65% = $.44/RSF. In this
example, the Tenant's Tax Credit equals $.44/RSF and would result in a
$.44/RSF reduction in Tenant's Base Rental rate during each year the
Tax Credit is in effect accompanied by a $.44/RSF reduction in the Base
Year amount for Operating Expenses under the Lease (for example, if the
initial Base Rental rate is $18.00/RSF and the Base Year amount is
$6.00/RSF then the Base Rental rate would be reduced to $17.56/RSF and
the Base Year amount would be reduced to $5.56/RSF). It is expressly
understood that such rent reduction in connection with said Tax Credit
shall only be granted if such Tax Credit is actually realized by the
Building. In the event such Tax Credit expires or is otherwise
terminated, revoked or ceases to be granted (the "Tax Credit
Expiration") prior to the expiration of the Lease, then the Base Year
amount and Base Rental hereunder shall be increased, as of the Tax
Credit Expiration, to the amounts that otherwise would have been in
effect if no Tax Credit was granted. Notwithstanding the Tax Credit
being in effect, Tenant shall continue to be responsible for its pro
rata share of any subsequent tax increases applicable to the Building
as provided for in the Lease. The parties agree that in the event such
Building Tax Credit is granted, the Lease shall be amended as soon as
reasonably possible to proportionately reflect the effect of such Tax
Credit to Tenant's rent obligations under the Lease.
1.16 SALES AND USE TAXES. Landlord acknowledges that Tenant has applied for
sales and use tax incentives
38
or abatements from the City of Birmingham, Jefferson County and the
Industrial Development Board of the City of Birmingham in connection
with moving its headquarters to the Building in connection with this
Lease. To the extent reasonably possible, Landlord shall cooperate with
Tenant to assist Tenant in realizing economic benefit from the granting
of such incentives only if such incentives are granted and in the event
they may relate to or be realized through Landlord's participation in
completing the Work described in Exhibit D of this Lease.
Notwithstanding anything contained in this paragraph to the contrary,
Landlord shall not be required to take any action which would cause
Landlord to incur any cost or expense that would not otherwise be
incurred by Landlord as a result of assisting or cooperating with
Tenant's sales and or use tax incentive.
1.17 CONSTRUCTION OF BUILDING PARKING FACILITIES. Tenant has informed
Landlord that it is seeking certain economic incentives from the City
of Birmingham, Jefferson County and the Industrial Development Board of
the City of Birmingham (the "Granting Authority") in connection with
entering this Lease for funds to be provided by the granting authority
to offset or reduce the funds that Landlord is required to expend to
construct covered parking for Tenant's benefit outlined in Exhibit J
herein (the "Covered Parking Funds") and funds to be provided by the
granting authority to Landlord should Landlord elect to expend funds in
order to increase Tenant's Parking Ratio Allocation in Area A as
described in this Exhibit F, Paragraph 1.05 (the "Expansion Parking
Funds"). In the event Landlord receives Covered Parking Funds from the
granting authority as described above to offset or reimburse Landlord
for a portion or all of the cost actually incurred by Landlord to
construct the covered parking spaces, then Tenant shall receive an
equivalent abatement of Tenant's obligation to pay the monthly license
fee described in Paragraph 2 of Exhibit J, License Agreement for
Covered Parking in this Lease until such time that such abatement
equals the amount of the Covered Parking Funds received by Landlord
from the granting authority. In the event Landlord receives Expansion
Parking Funds from the granting authority as described above to offset
or reimburse Landlord for a portion or all of the cost actually
incurred by Landlord following Landlord's election to construct
additional parking spaces in Area A in order to increase Tenant's
Parking Ratio Allocation as provided for in Exhibit F, 1.05, then the
Tenant Improvement Allowance set forth in Exhibit D shall be increased
by an amount equal to seventy-five percent (75%) of the Expansion
Parking Funds provided to and utilized by Landlord by such granting
authority for said offset or reimbursement of construction costs
actually incurred by Landlord to increase Tenant's Parking Ratio
Allocation. Notwithstanding anything contained in this paragraph to the
contrary, Landlord shall not be required to take any action or accept
such funds that would cause Landlord to incur any cost or expense that
would not otherwise be incurred by Landlord as a result of Tenant
seeking certain economic incentives.
1.18 CONFIDENTIALITY. The Landlord and the Tenant will use good faith
reasonable efforts to keep matters related to the Lease, the identity
of the parties to the Lease, the occurrence or nature of any
discussions or negotiations between the Landlord, the Tenant and any
other persons regarding the Lease of the Building, and any other
information that would have the effect of disclosing the Tenant's
intent to relocate to office facilities within the City of Birmingham,
Alabama confidential until the Tenant determines that the disclosure of
any information related to the Lease will not be detrimental to the
Tenant's application for tax abatements and for certain monetary
incentives the Tenant is seeking from the City of Birmingham, Alabama.
Notwithstanding the foregoing, this Lease shall remain in full force
and effect and no breach of this Lease shall be considered to have
occurred in the event of a disclosure by either party of any
information related to the Lease.
39
EXHIBIT "G"
CLEANING SPECIFICATIONS
PER PER PER
CLEANING ITEMS WEEK MONTH YEAR OTHER
- -------------- ---- ----- ---- -----
GENERAL
Clean & sanitize drinking fountains 5
Empty & damp wipe ashtrays 5
Dry clean chalkboards (if erased). 5
Empty all trash receptacles, replace liners. 5
Remove all collected trash to designated areas 5
Dust all horizontal surfaces 5
Clean switchplates 1
Dust all surfaces and ledges above normal 1
reach 1
Dust all low reach areas. 1
Dust ledges and window sills 5
Dust ledges, picture frames and moldings. 1
Spot clean all partition glass 5
Spot clean partition and door glass 5
Clean and wipe all telephones 1
Dust all venetian blinds 1
Spot clean wall surfaces around switches, 5
outlets, and door knobs.
Properly arrange all office furniture 5
Paneled walls to be dusted thoroughly 1
Vacuum all fabric furniture 1
CARPET FLOORS
Spot vacuum all carpeted areas 5
Vacuum all carpeted traffic lane areas 5
Fully vacuum all carpets wall to wall 1
Spot clean carpet 1
Vacuum walk-off mats 5
MARBLE FLOORS
Dust mop floors & baseboards 5
Damp mop floors & baseboards 1
*Refinish floors & baseboards 1
CARPET SHAMPOOING
Common areas 4
Suite areas X
* Buff with polish pad (1) time per week. No finish to be applied
X indicates service to be provided upon request at Tenant's cost
40
PER PER PER
CLEANING ITEMS WEEK MONTH YEAR OTHER
- -------------- ---- ----- ---- -----
RESTROOMS
Refill dispensers 5
Empty trash 5
Clean & sanitize all fixtures 5
Wipe all counters 5
Clean mirrors 5
Wipe chrome 5
Spot wipe partitions 5
Sweep & damp mop floors 5
Dust & clean all return air vents 1
Wash all restroom partitions on both sides 1
Machine scrub floors 1
Fully clean all showers 5
Machine wash all ceramic tubs 4
Clean both sides of all doors 1
CAFETERIA/BREAKROOM
Damp wipe all tables 5
Damp wipe all chairs 5
Damp clean interior & exterior of microwave oven 5
Clean & sanitize all sinks & wipe dry 5
Scrub hard surface floors, moving all tables 4
& chairs. Recoat with 1 coat of floor finish
STAIRS
Police and pick up litter 5
Dust mop stairs, railings, ledges & spot clean 1
Damp mop stairs, dust railings, ledges & Clean 1
Vacuum stairs, dust railing & ledges & spot clean 1
Shampoo carpeted stairs 1
WINDOWS
Vacuum curtains 2
WINDOW CLEANING (EXTERIOR)
Clean all windows 2
WINDOW CLEANING (INTERIOR)
Clean common areas 1
Clean suite areas (Tenant areas) X
CEILINGS
Clean all ceiling diffusers 1
Clean all ceiling vents 1
41
PER PER PER
CLEANING ITEMS WEEK MONTH YEAR OTHER
- -------------- ---- ----- ---- -----
ELEVATORS & ESCALATORS
Clean and vacuum carpet 5
Clean and damp mop hard surfaces 5
Clean and polish elevator bright work 5
Shampoo carpeted elevators 4
Spray buff hard surface elevator 1
Strip and refinish hard surface floors 2
Clean escalator sides, rails and vacuum treads 1
Polish elevator cabs, wipe down panels doors, 5
and walls.
Thoroughly clean each threshold 1
LOBBIES / ENTRANCE WAYS
Spot clean door glass and side glass 5
Clean both sides of all glass doors & side glass 1
Clean & polish all bright metal work 1
Clean lobby sign directories 1
Clean revolving door glass and side glass and 1
all metal framing 1
Spot clean revolving door glass, side glass, & 5
push bars.
HARD FLOORS
Dust mop hard surface floors 5
Mop all stains & spills on hard surface floors 5
Damp mop all hard surface floor wall to wall 1
Spray buff all hard surface floors 1
Lay one coat of floor polish on hard surface floors 1
Strip hard surface floors and recoat with three 1
coats of polish
42
EXHIBIT "H"
GUARANTY
In consideration of, and as an inducement for the granting, execution and
delivery of the foregoing Lease Agreement, dated __________ 2003, (the "Lease")
by COLONIAL REALTY LIMITED PARTNERSHIP, A Delaware limited partnership,
("Landlord", which term shall be deemed to include the named Landlord and its
successors and assigns), to INFINITY INSURANCE COMPANY, A FLORIDA CORPORATION,
("Tenant", which term shall be deemed to include the named Tenant and its
successors and assigns), and in further consideration of the sum of One Dollar
($1.00) and other good and valuable consideration paid by Landlord to the
undersigned, the receipt and sufficiency of which are hereby acknowledged, the
undersigned, INFINITY PROPERTY AND CASUALTY CORPORATION, AN OHIO CORPORATION
("Guarantor", which term shall be deemed to include the named Guarantor and its
successors and assigns), does hereby (jointly and severally, if executed by two
or more guarantors) guarantee, absolutely and unconditionally, to Landlord the
full and prompt payment of Base Rental, Additional Rent and all other charges
and sums (including, without limitation, Landlord's legal expenses and
attorneys' fees and disbursements) payable by Tenant under the Lease, and
Guarantor hereby covenants and agrees to and with Landlord that if default shall
at any time be made by Tenant in the payment of any Base Rental, additional rent
or other charges and sums, Guarantor shall and will forthwith pay Base Rental,
additional rent and all other charges and sums, to Landlord and any arrears
thereof and will forthwith pay to Landlord all damages that may arise in
consequence of any default by Tenant under the Lease, including, without
limitation, all reasonable attorneys' fees and disbursements incurred by
Landlord or caused by any such default or the enforcement of this Guaranty.
Notwithstanding the foregoing, this Guaranty shall be capped at an amount not to
exceed the collective total of the Tenant Improvement Allowance, and real estate
commissions paid by Landlord in connection with this Lease and any expansions
thereof. Provided Tenant has performed all of its obligations under the Lease
and is not then in default under the Lease beyond any applicable cure periods,
then beginning with the fourth Lease Year, the maximum amount of the Guaranty as
set forth above shall be reduced by one-third (1/3) each succeeding Lease Year
(the "Guaranty Reduction Years") and this Guaranty shall be extinguished and of
no further force or effect at the end of the sixth Lease Year. Provided,
however, if Tenant defaults under the Lease at any time during the Guaranty
Reduction Years, the annual reduction of the maximum amount of this Guaranty
shall cease and the maximum amount of the Guaranty shall then remain at the
level then in effect at the time of such default.
This Guaranty is an absolute and unconditional guaranty of payment (and
not of collection). The liability of Guarantor is co-extensive with that of
Tenant and also joint and several and this Guaranty shall be enforceable against
Guarantor without the necessity of any suit or proceeding on Landlord's part of
any kind or nature whatsoever against Tenant. Landlord hereby expressly agrees
that Guarantor shall be provided written notice of any financial default by the
Tenant in accordance with the Lease; and furthermore agrees that Guarantor will
receive written notice of Tenants curing or failure to cure said default as it
may apply. Guarantor's responsibility to cure said default, if not cured by
Tenant, shall be subject to the same time allowances as allowed to the Tenant
under the Lease. Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall in no way be
terminated, affected, diminished or impaired by reason of any non-liability of
Tenant under the Lease, whether by insolvency, discharge in bankruptcy or any
other defect or defense which may now or hereafter exist in favor of Tenant.
If during the first six years of the Lease, should Landlord be
obligated by any bankruptcy or other law to repay to Tenant or to Guarantor or
to any trustee, receiver or other representative of either of them, any amounts
previously paid, this Guaranty shall be reinstated in the amount of such
repayments. Landlord shall not be required to litigate or otherwise dispute its
obligations to make such repayments if it in good faith believes that such
obligation exists.
No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty or failure to exercise the same shall operate as a
waiver of or otherwise affect any such right, power or privilege, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
No waiver or modification of any provision of this Guaranty nor any
termination of this Guaranty shall be effective unless in writing, signed by
Landlord; nor shall any such waiver be applicable except in the specific
instance for which given.
43
All of Landlord's rights and remedies under the Lease and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate and cumulative and no exercise
or partial exercise of any such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any of the others.
Guarantor agrees that whenever at any time or from time to time
Guarantor shall make any payment to Landlord or perform or fulfill any term,
covenant or condition hereunder on account of the liability of Guarantor
hereunder, Guarantor will notify Landlord in writing that such payment or
performance, as the case may be, is for such purpose. No such payment or
performance by Guarantor pursuant to any provision hereof shall entitle
Guarantor by subrogation or otherwise to the rights of Landlord to any payment
by Tenant or out of the property of Tenant, except after payment of all sums or
fulfillment of all covenants, terms, conditions or agreements to be paid or
performed by Tenant.
Guarantor agrees that it will, at any time and from time to time, within ten
(10) business days following written request by Landlord, execute, acknowledge
and deliver to Landlord a statement certifying that this Guaranty is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and stating such modification).
Guarantor agrees that such certificate may be relied on by anyone holding or
proposing to acquire any interest in the Building (as defined in the Lease) from
or through Landlord or by any mortgagee (as defined in the Lease) or prospective
mortgagee or lessor of the Building or of any interest therein.
With regard to principles of conflicts of laws, the validity,
interpretation, performance and enforcement of this Guaranty shall be governed
by and construed in accordance with the internal laws of the State of Alabama.
IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty
this _____ day of ______________ 2003.
"GUARANTOR":
INFINITY PROPERTY AND CASUALTY CORPORATION,
AN OHIO CORPORATION
By: /s/ Roger Smith
----------------------------------------
Name: Roger Smith
--------------------------------------
Title: Chief Financial Officer
-------------------------------------
44
EXHIBIT "I"
PARKING
The parking areas are shown crosshatched
[MAP]
45
EXHIBIT "J"
LICENSE AGREEMENT FOR COVERED PARKING
THIS LICENSE AGREEMENT is made and entered into on this ______________
of _________________ 2003, by and between COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership, as Licensor and INFINITY INSURANCE COMPANY, a
Indiana Corporation, as Licensee.
RECITALS:
A. Licensor is the owner of that certain office building known as
3700 Colonnade (the "Building"); and
B. Licensee desires to license from Licensor twenty five (25)
parking spaces at the Building for covered reserved parking
collectively referred to herein as Licensed Space; and
C. Licensor is willing to license to Licensee the Licensed Space
for this purpose, with both Licensor and Licensee
acknowledging and agreeing that this document does not
constitute a lease and is only a license for the use of
certain parking at the Building in accordance with the terms
set forth below.
NOW, THEREFORE, for payment of the license fee set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned Licensor and Licensee agree as follows:
1. Licensor hereby licenses to Licensee, and Licensee hereby
licenses from Licensor the Licensed Space from the Commencement Date of the
Lease Agreement through the expiration of the Lease Agreement, unless sooner
terminated in the course of the provisions hereof, solely for the purpose of
non-commercial vehicles.
2. Licensee shall pay, on the first day of each month in advance,
the following to Licensor as a license fee for the use of the Licensed Space:
$50.00 per month per parking space or a total amount of
$1,250.00, escalating three percent (3%) annually on the first
day of each Lease Year
All payments of the license fee listed herein are due and payable in advance for
each monthly period on the first day of each month and late if not received by
Licensor by the seventh (7th) day (the "grace period") unless specifically
stated herein. Licensee agrees to pay a late fee of five percent (5%) for any
payments not received by the end of the grace period.
3. Licensee agrees to comply with all laws and ordinances,
including building and safety codes, health department rules, and reasonable
rules of the Licensor which may be designed specifically for Licensee and not a
general application and which may be changed or supplemented in the future at
the reasonable election of Licensor.
4. Licensee shall not voluntarily or by operation of law or otherwise,
assign, transfer, mortgage or otherwise encumber all or any part of
Licensee's interest in this license or in the Licensed Space or allow
any other party other than Licensee to use the Licensed Space without
first obtaining in each and every instance the prior written consent
of Licensor which may be withheld in Licensor's sole and absolute
discretion except if such is made on a pro rata basis in connection
with an approved assignment or sublease as provided for in Paragraph
23 of this Lease. This Agreement creates a license, not a lease, and
Licensee shall have no leasehold interest or interest in real estate
but only a license to use the Licensed Space in strict compliance with
the terms hereof.
5. This Agreement and the covenants and conditions herein
contained shall inure to the benefit of and be binding upon Licensor, its
successors and assigns, and shall be binding upon Licensee, its successors and
assigns.
6. Licensee shall, at its sole cost and expense, and prior to the
commencement of the term of this License Agreement, obtain all permits and
licenses required by any governmental authority, if any, for the use of the
Licensed Space.
7. Licensee's use of the Licensed Space shall be in accordance
with all rules, regulations, laws, ordinances, statutes and requirements of all
governmental authorities and Fire Insurance Rating Organization, the Board of
Fire Insurance Underwriters, and Licensor's insurance carrier.
8. Licensee and Licensor do hereby indemnify each other and save
each other harmless from and against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury, and/or
damage to property arising from or out of the occupancy or use by Licensee of
the Licensed Space or any part thereof, to the extent occasioned wholly or in
part by any negligent act or omission of Licensee or Licensor, their officers,
agents, contractors, or employees, said claims, actions, damages, liability
expense, including, but not limited to, any accidents or occurrences in or at
the Licensed Space, and any other omission by Licensee or Licensor, their
employees, servants, agents, officers, contractors or employees in the Building
or at the Licensor's property.
46
9. All of Licensee's personal property of every kind and
description which may at any time be in the Licensed Space or in the Building
shall be in the Licensed Space at the Licensee's sole risk, and Licensor shall
not be liable for any damage to said property caused in any manner whatsoever,
unless due to the gross negligence or willful misconduct of Landlord.
10. In addition to the other provision of this License Agreement
and not in limitation thereof, the occurrence of any of the following shall
constitute an event of default hereunder:
(a) Failure to pay the licensee fee within seven (7) days
after it is due (on more than two occasions in any
Lease Year);
(b) Violations of any term, condition or requirement of
this License Agreement;
(c) The filing of a petition by or against Licensee for
adjudication as a bankrupt;
(d) An assignment by Licensee for the benefit of
creditors;
(e) The taking of possession of the Licensed Space of
Licensee or of any personal property of Licensee by
any governmental office or agency pursuant to a
statutory authority for the dissolution or
liquidation of Licensee.
11. In the event of an occurrence of any event of default,
Licensor may terminate this License Agreement upon thirty (30) days
written notice to Licensee, and thereupon, this License Agreement and
the term hereof granted, shall wholly cease and expire and become void.
An event of default of the License Agreement shall not constitute an
event of default under the Lease.
12. Licensor shall have no obligation to police or
otherwise monitor Licensee's Licensed Space.
IN WITNESS WHEREOF, Licensor and Licensee have caused this Agreement to
be executed on the day and year first set forth above.
LICENSEE:
INFINITY INSURANCE COMPANY, a Indiana
corporation
By: /s/ Roger Smith
-----------------------------------
Name: Roger Smith
---------------------------------
Its: Chief Financial Officer
----------------------------------
Date Executed: 8/21/03
------------------
LICENSOR:
COLONIAL REALTY LIMITED
PARTNERSHIP, a Delaware Limited
Partnership
By: Colonial Properties Trust
By: /s/Robert A. Jackson
-----------------------------------
Robert A. Jackson
Executive Vice President
Date Executed:8.26.03
47