1
EXHIBIT 10.17
FIRST AMENDMENT TO SUBLEASE AGREEMENT
IT IS HEREBY MUTUALLY AGREED, between the undersigned Sub-Lessor and
Sub-Lessee, that the Lease dated May 5, 1997, by and Between ABB Environmental
Systems, Inc., a division of ABB Flakt, Inc., a Delaware Corporation as
Sub-Lessor and TXEN Inc., as Sub-Lessee, leasing the premises as described in
the master lease and all lease amendments between Metropolitan Life Insurance
Company and the Sub-Lessor as Suite 600, 31 Inverness Center Parkway,
Birmingham, Alabama is hereby amended under the following terms and conditions:
1. ADDITIONAL SPACE: The total square footage now covered by the
attached Sub-lease shall be amended to include 3500 square feet, on
the third floor of 31 Inverness Parkway and part of the entire
leased premises addressed in the above mentioned master lease.
2. TERM: The initial term of this amendment shall be concurrent with
the term of the attached sub-lease beginning February 1, 1998 and
expiring July 1, 1998.
3. RENTAL RATE: The rental rate for the initial term of this amendment
will be $3000.00 per month. Rental payment beginning on February
1, 1998
4. POSSESSION: Sub-lessee shall take possession of the additional
leased space immediately upon execution of this agreement to begin
improvements to the additional leased space.
5. RIGHT TO RENEW: Sub-lessee shall have the right to renew this
portion of space as allowed in the attached sub-lease. Upon
renewal, Sub-lessee will be assessed the rental rate, per square
foot, stated in the above-mentioned master lease, for the entire
3500 square feet added by this amendment.
This amendment to lease is granted under the same terms and conditions
as in the lease herein above described, which Lease by reference is expressly
made a part hereof. Nothing herein contained shall operate to release or alter
any of the terms and conditions of said lease except as above set forth.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
document on this the day of December 1997.
ABB Flakt, Inc., a Delaware Corporation
By: /s/
------------------------------------
TXEN Inc.
By: /s/
-----------------------------------
2
FIRST AMENDMENT TO SUBLEASE AGREEMENT
IT IS HEREBY MUTUALLY AGREED, between the undersigned Sub-Lessor and
Sub-Lessee, that the Lease dated May 5, 1997, by and Between ABB Environmental
Systems, Inc., a division of ABB Flakt, Inc., a Delaware Corporation as
Sub-Lessor and TXEN Inc., as Sub-Lessee, leasing the premises as described in
the master lease and all lease amendments between Metropolitan Life Insurance
Company and the Sub-Lessor as Suite 600, 31 Inverness Center Parkway,
Birmingham, Alabama is hereby amended under the following terms and conditions:
1. ADDITIONAL SPACE: The total square footage now covered by the
attached Sub-lease shall be amended to include 3500 square feet, on
the third floor of 31 Inverness Parkway and part of the entire
leased premises addressed in the above mentioned master lease.
2. TERM: The initial term of this amendment shall be concurrent with
the term of the attached sub-lease beginning February 1, 1998 and
expiring July 1, 1998.
3. RENTAL RATE: The rental rate for the initial term of this amendment
will be $3000.00 per month. Rental payment beginning on February
1, 1998
4. POSSESSION: Sub-lessee shall take possession of the additional
leased space immediately upon execution of this agreement to begin
improvements to the additional leased space.
5. RIGHT TO RENEW: Sub-lessee shall have the right to renew this
portion of space as allowed in the attached sub-lease. Upon
renewal, Sub-lessee will be assessed the rental rate, per square
foot, stated in the above-mentioned master lease, for the entire
3500 square feet added by this amendment.
This amendment to lease is granted under the same terms and conditions
as in the lease herein above described, which Lease by reference is expressly
made a part hereof. Nothing herein contained shall operate to release or alter
any of the terms and conditions of said lease except as above set forth.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
document on this the 31st day of December 1997.
ABB Flakt, Inc., a Delaware Corporation
By: /s/
------------------------------------
TXEN Inc.
By: /s/
-----------------------------------
3
8/5/98
TXEN RENT CALCULATION
(1)
INVOICED AMT. OF CORRECTED CORRECTED AMT. OF
RATE PER RENT RATE PER RENT RENT
SQ FT. SQ FT. PAID SQ FT. DUE DUE
------ -------- --------- --------- --------- --------
Oct-97 15,872 12.85 17,000.00 14.24 18,838.51 1,838.51
Nov-97 15,872 12.85 17,000.00 14.24 18,838.51 1,838.51
Dec-97 15,872 12.85 17,000.00 14.24 18,838.51 1,838.51
Jan-98 15,872 12.85 17,000.00 14.24 18,838.51 1,838.51
Feb-98 18,672 12.85 20,000.00 14.24 22,162.84 2,162.84
Mar-98 18,672 12.85 20,000.00 14.24 22,162.84 2,162.84
Apr-98 18,672 12.85 20,000.00 14.24 22,162.84 2,162.84
May-98 18,672 12.85 20,000.00 14.24 22,162.84 2,162.84
Jun-98 18,672 12.85 20,000.00 14.24 22,162.84 2,162.84
Jul-98 15,872 12.85 20,000.00 14.24 18,838.51 1,838.51
Aug-98 15,872 12.85 14,000.00 14.24 18,838.51 1,838.51
------ -------- ---------- --------- ---------- ---------
202,000.00 230,493.92 21,845.26
- ---------------
(1) Per article 4 of the master lease, section E, Sublessee shall pay to ABB
Environmental Systems additional operating expenses at the Subleased
Premises.
Effective 10/1/97, the Master Lessor increased estimated operating expenses
by $1.39 per square foot for the year beginning 10/1/97 and ending 9/30/98.
Effective with the September lease payment, rent is due at $22,162.84 per
month until the end of the lease or until adjusted by the Master Lessor for
additional operating expenses.
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SUBLEASE
THIS SUBLEASE is made on May 5, 1997, by ABB Environmental Systems,
Inc., a Division of ABB Flakt, Inc., a Delaware Corporation ("sublandlord"),
whose address is 1400 Centerpoint Boulevard, Knoxville, Tennessee and TXEN, Inc.
("subtenant"), whose address is Suite 500, 10 Inverness Center Parkway,
Birmingham, Alabama, 35243.
RECITALS
Whereas, Metropolitan Life Insurance Company, as landlord ("landlord"),
and sublandlord, as tenant, entered into a lease dated July 31, 1980, (the
"master lease"), with regard to Suite 600, 31 Inverness Center Parkway,
Birmingham, Alabama (the "premises"). A copy of the master lease and all lease
amendments are attached to this sublease as Exhibit A. Sublandlord wishes to
sublease to subtenant, and subtenant wishes to sublease from sublandlord, a part
of the premises encompassing the entire 5th floor containing approximately
15,872 square feet, 31 Inverness Center Parkway, Birmingham, Alabama (the
"subleased premises"). The subleased premises are depicted on Exhibit B to this
sublease. Accordingly, sublandlord and subtenant agree:
1. Agreement. Sublandlord subleases the subleased premises to
subtenant, and subtenant subleases premises from sublandlord, according to this
sublease. All provisions of the master lease are incorporated into, and make a
part of, this sublease as the agreement of sublandlord and subtenant as though
sublandlord was landlord under the master lease and subtenant was tenant under
the master lease.
2. Term. The term of this sublease will begin on July 1, 1997, and
will end on June 30, 1998, inclusive.
3. Rent. Subtenant will pay sublandlord as rent for the subleased
premises $17,000.00 per month, in advance, without notice, demand, offset, or
counterclaim, on the first day of each month. If the term of this sublease
begins on other than the first day of a month or ends on other than the
last day of a month, rent will be prorated on a per diem basis.
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4. Acceptance of Premises. Subtenant accepts the subleased premises
in their present condition. Sublandlord will not be obligated to make any
alterations or improvements to the subleased premises on account of this
sublease.
5. Other Charges. During the term of this sublease, subtenant will
pay to sublandlord any increase in sublandlord's rent pursuant to Article 4 of
the master lease.
6. Services. Sublandlord will not be obligated to provide any
services to subtenant. Subtenant's sole source of such services is landlord,
pursuant to the master lease. Sublandlord makes no representation about the
availability or adequacy of such services.
7. The Master Lease. This sublease is subject to the master lease.
The provisions of the master lease are applicable to this sublease as though
landlord under the master lease were the sublandlord under this sublease and
tenant under the master lease were subtenant under this sublease. Subtenant has
received a copy of the master lease. Subtenant will not cause or allow to be
caused any default under the master lease. Subtenant will indemnify sublandlord
against any loss, liability, and expenses (including reasonable attorney's fees
and costs) arising out of any default under the master lease caused by
subtenant, and sublandlord will indemnify subtenant against any loss,
liability, and expenses (including reasonable attorney's fees and costs)
arising out of any default under the master lease caused by sublandlord.
8. Subtenant shall have the right to renew this sublease on a year to
year basis at the same rental rate stated in paragraph three, provided that
Subtenant gives Sublandlord one hundred twenty 120 days notice prior to the
expiration of this sublease.
Sublandlord and subtenant have executed this sublease on the date
first written above.
SUBLANDLORD: ABB ENVIRONMENTAL SYSTEMS, INC.
By: /s/
-----------------------------------------
Date: May 5, 1997
SUBTENANT: TXEN, INC.
By: /s/
-----------------------------------------
Date: April 24, 1997
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EXHIBIT A
LEASE AGREEMENT
COMBUSTION ENGINEERING, INC.
and
METROPOLITAN LIFE INSURANCE COMPANY
BUILDING 31
INVERNESS CENTER
BIRMINGHAM, ALABAMA
7
TABLE OF CONTENTS
LEASE AGREEMENT BETWEEN
COMBUSTION ENGINEERING, INC. AND METROPOLITAN LIFE INSURANCE COMPANY
BUILDING 31, INVERNESS CENTER,
BIRMINGHAM, ALABAMA
ARTICLE PAGE
NO. NO.
- ------- ----
1. PREMISES......................................................... 1
2. TERM............................................................. 2
3. BASE RENTAL...................................................... 3
4. RENT ADJUSTMENTS DUE TO CHANGES IN REAL ESTATE TAXES
AND OPERATING EXPENSES........................................... 4
5. ASSIGNMENT AND SUBLETTING........................................ 10
6. ALTERATIONS...................................................... 11
7. TENANT'S USE OF PREMISES......................................... 12
8. MAINTENANCE AND REPAIRS.......................................... 13
9. SECURITY......................................................... 13
10. INSURANCE AND INDEMNIFICATION.................................... 14
11. DEFAULT OF TENANT................................................ 14
12. RIGHT OF ENTRY................................................... 16
13. TENANT'S HOLDOVER................................................ 17
14. RIGHTS OF RENEW.................................................. 17
15. LANDLORD'S COVENANTS............................................. 18
16. ADDITIONAL SERVICES.............................................. 22
17. DEFAULT OF LANDLORD.............................................. 24
18. COMPLIANCE WITH LAW.............................................. 24
19. CONDEMNATION..................................................... 25
20. RULES AND REGULATIONS............................................ 26
21. ENTIRE AGREEMENT................................................. 26
22. NOTICES.......................................................... 27
23. MEMORANDUM OF LEASE.............................................. 27
24. GOVERNING LAW.................................................... 28
25. DAMAGE AND DESTRUCTION........................................... 28
26. BUILDING SIGNAGE................................................. 28
27. RIGHTS OF SALE AND FIRST REFUSAL................................. 29
28. PARKING.......................................................... 31
29. EATING FACILITY.................................................. 31
30. ADDITIONAL CONSTRUCTION.......................................... 31
8
TABLE OF CONTENTS (con't)
ARTICLE PAGE
NO. NO.
- ------- ----
31. FIRE ALARM SYSTEM................................................ 31
32. MEASUREMENT OF PREMISES.......................................... 32
33. PREPARATION OF PREMISES.......................................... 34
34. INVERNESS COUNTRY CLUB........................................... 38
35. OPTION FOR ADDITIONAL SPACE...................................... 38
36. BUILDING RECEPTION AREA.......................................... 41
37. AGENT'S COMMISSION............................................... 41
38. USUFRUCT ONLY.................................................... 42
39. STATUS REPORTS................................................... 42
EXHIBITS
- --------
A-1 .................... Plan of Inverness Center Office Park
A-2 .................... Site Plan-Building 31
A-3 .................... Floor Plan-Premises on 3rd Floor
A-4 .................... Floor Plan-Premises on 4th Floor
A-5 .................... Floor Plan-Premises on 5th Floor
A-6 .................... Floor Plan-Premises on 6th Floor
A-7 .................... Floor Plan-Premises in Basement
B .................... Rules and Regulations
C .................... Unit Price Schedule
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L E A S E
THIS AGREEMENT made this 3rd day of July, 1980, by and between
METROPOLITAN LIFE INSURANCE COMPANY, a New York Corporation, with a principal
place of business at One Madison Avenue, New York, New York 10010, (hereinafter
referred to as "Landlord") and COMBUSTION ENGINEERING, INC., a corporation of
the State of Delaware, with a principal place of business at 1000 Prospect Hill
Road, Windsor, Connecticut, (hereinafter referred to as "Tenant"), and Taylor &
Mathis of Alabama, Inc., a Georgia Corporation (hereinafter referred to as
"Agent".)
W I T N E S S E T H:
WHEREAS, Landlord desires to lease space in a building located in
Inverness Center, Birmingham, Alabama, (hereinafter referred to as "Park")
known as Building 31, (hereinafter referred to as "Building"); situated on Site
7, (hereinafter referred to as "Real Property") and more particularly described
as shown in red on the plans appended hereto as Exhibits A-1 through A-7; and,
WHEREAS, Tenant descries to occupy all or a portion of that space and
use it as general office space as stated in Article 7.
NOW THEREFORE, in consideration of the mutual obligations and
covenants hereinafter set forth, the Landlord does hereby demise and lease unto
the Tenant the premises described below and the parties further agree that:
1. PREMISES
Landlord demises and leases to Tenant the space located at Building
31, Inverness Center, Birmingham, Alabama, and all the appurtenances and
easements thereto consisting of FIFTY-THREE THOUSAND AND FORTY-SIX (53,046) net
rentable square feet of office space on floors 3,4,5, and 6 and THREE THOUSAND
(3,000) usable square feet of basement space as more particularly described and
shown in red on the plans appended hereto as Exhibits A-3, A-4, A-5, A-6 and
A-7 (hereinafter referred to as the "Premises").
Page 1
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2. TERM
The term of this lease shall be for five (5) years and shall commence on
the later of July 1, 1980, or the date upon which Building 31 and the Premises
are entirely complete and ready for Tenant's occupancy, including the Building's
paved parking areas, Tenant's improvements, installation of Tenant's telephone
system, and the issuance of all required governmental approvals and permits.
Upon actual completion of the Premises, as herein above defined in no less than
whole floor increments except for the third floor space, Tenant shall
immediately begin to occupy such entirely completed portion of the Premises, and
Tenant shall be obligated to pay rent based on the number of square feet
occupied at the time such space is occupied. Notwithstanding the above, Tenant
shall begin paying the full Base Rental as set forth in Article 3 hereof within
30 days after the completion of the entire Premises. Landlord shall notify
Tenant in writing of the projected completion date of the Premises at least
thirty (30) days prior to Landlord's anticipated completion of any portion of
the Premises. In no event will Tenant be required to take occupancy of the
Premises prior to July 1, 1980. Landlord and Tenant shall execute an amendment
to the lease setting forth the actual commencement and termination dates of this
lease within sixty (60) days after Tenant's full occupancy of the said Premises,
said commencement date shall be the first day of the month following the month
in which Tenant fully occupies the Premises. Landlord shall use its best efforts
to prepare the Premises for occupancy by July 1, 1980, in accordance with the
plans and specifications appended hereto as Exhibits A-3, A-4, A-5, A-6 and A-7.
In the event the Premises are not ready for occupancy by September 30, 1980, due
to circumstances within the reasonable control of the Landlord, Landlord shall
be obligated to pay within thirty (30) days after invoice from Tenant any added
expenses and penalties incurred by Tenant at 200 and 400 Office Park Drive and
One Office Park Circle (herein referred to as the "Existing Leases") as a result
of Tenant being
Page 2
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required to holdover at its present locations after September 30, 1980, which
is the expiration date for the Existing Leases (including any rent over and
above the rent payable during the last year of the term of the existing
leases). If Tenant must vacate its office space at 200 Office Park Drive and/or
One Office Park Circle, then Landlord shall pay for all expenses incurred in
moving Tenant to a temporary location and the installation cost of a temporary
telephone system in addition to any rental cost over and above the rent payable
during the last year of the term for the Existing Leases. If the Premises are
not ready for Tenant's occupancy by January 1, 1981, and the delay is not due
to the fault of the Tenant, this lease shall terminate anytime thereafter upon
five (5) days written notice from Tenant to Landlord; or Tenant shall have the
right to complete the Premises and charge the expense thereof, subject to
Section A&B of Article 33, to Landlord or offset a compensating amount from
monthly rents after occupancy.
3. BASE RENTAL.
Tenant shall pay to landlord as Base-Rental in accordance with Article 2
hereof the sum of NINE AND TWENTY FIVE ONE HUNDREDTHS ($9.25) DOLLARS per square
foot per annum for each square foot of the _____ building area which constitutes
the Premises on floors 3, 4, 5 and 6, and shall pay FOUR AND NO ONE HUNDREDTHS
($4.00) DOLLARS per square foot per annum for each square foot leased in the
basement. The Base Rental during each year of the term of this lease shall be
FIVE HUNDRED AND TWO THOUSAND SIX HUNDRED SEVENTY-FIVE AND 50/100 ($502,675.50)
DOLLARS. Tenant shall pay the said Base Rent in twelve (12) equal monthly
installments of FORTY-ONE THOUSAND EIGHT HUNDRED EIGHTY-NINE AND 63/100
($41,889.63) dollars payable monthly in advance. Tenant is obligated to pay rent
based on the number of square feet occupied, at the said rate of $9.25 per
square foot per annum on floors 3, 4, 5 and 6, and $4.00 per square foot per
annum for the basement area. Full rent shall commence on the earlier of the date
that
Page 3
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tenant fully occupies the Premises, or thirty days after the Premises are
completed pursuant to Article 2 hereof. The aforesaid rental payments shall be
prorated to the first day of the next succeeding month. Provided however, that
in the event this lease commences prior to October 1, 1980, Landlord agrees
that the monthly rental payment from the date the lease commences through
September 30, 1980, shall be reduced by FIVE THOUSAND SIX HUNDRED THIRTY-SIX
AND THIRTY-SIX ONE HUNDREDTHS ($5,636.36) DOLLARS (which is one-half (1/2) the
monthly rental Tenant is obligated to pay for the remainder of its original
lease term for space at 200 Office Park Drive, Birmingham, Alabama). The square
footage of the Premises and the Building shall be certified to the Tenant in
writing, at the Landlord's expense, by Sidney R. Barrett and Associates,
Landlord's architects, in accordance with Article 32 within thirty (30) days
after completion of the premises.
Tenant shall make payments to Landlord, at Landlord's office or to such
other persons and addresses as directed by notice to Tenant by Landlord in
lawful money of the United States which shall be legal tender for debts public
or private at the time of payment.
4. RENT ADJUSTMENTS DUE TO THE CHANGES IN REAL ESTATE TAXES AND OPERATING
EXPENSES.
(A) Base Year means the twelve (12) month period commencing the first day
of the first month immediately following the date Tenant takes occupancy of the
Premises as set forth in Article 2 hereof and ending twelve (12) months
thereafter.
(B) Operating Year means each twelve-month period succeeding the Base
Year.
(C) Tenant's Prorata Share means the ratio, expressed as a percentage, of
the area of the Premises as set forth in Article 1 to the total net rentable
area of the Building (excluding rentable basement storage space), which is
91,803 square feet. Tenant's Prorata Share is 57.78 percent initially. Such
Prorata Share
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shall be adjusted as the area of the Premises is adjusted over the term of the
Lease and all renewal periods.
(D) Real Estate Taxes means the amount (in dollars) of real property
taxes levied or assessed against the Building and the land Upon which it stands,
in any tax year or fractional part thereof. Excluded are all estate, sales,
gift, transfer, succession, income, franchise or similar tax.
(E) Operating Expense means the actual and reasonable expense incurred
and paid by the Landlord for the operation and maintenance of the Building,
Premises, Real Property, and Park in accordance with accepted principals of
sound management and accounting practices as consistently applied to
first-class office buildings, including, but not limited to: (i) Wages of
employees, other than employees above the grade of General Manager of Inverness
Center, to the extent of time spent in connection with operation of Inverness
Center, including salaries, payroll taxes, social security and unemployment
insurance, workmen's compensation insurance, disability insurance, fringe
benefits including vacations, holidays and other proper allowances,
hospitalization, medical, surgical, welfare, retirement, pension and profit
sharing plans; (ii) Cleaning, vermin extermination and janitorial services and
supplies; (iii) High quality rest room supplies and supplies used in the
maintenance of common areas of the Building; (iv) Removal of snow, trash,
garbage and other refuse; (v) Electrical cost and expenses; (vi) Plumbing
repairs; (viii) Fuel, water, sewer charges and other utilities; (ix) Elevator
maintenance; (x) grounds maintenance for the Real Property; (xi) Building
maintenance and repairs (including, but not limited to, painting and
redecoration); (xii) Insurance; (xiii) Security services; (xiv) Supervision of
work performed on behalf of the Building, Premises, Real Property, and Park;
and (xv) Premises prorata share of parkwide common area maintenance subject
to Article 4-G(iii) hereof. Provided, however, that for the purposes of
establishing Base Year expenses, Landlord shall include the cost of expenses
which would have reasonably been incurred in the operation of the Building and
Real Property, but were not actually
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14
incurred due to warranties in existence the first year of operation. The
initial cost of these items, such as service and outside labor contracts, if
any, related to elevator maintenance and HVAC maintenance shall be added to
Base Year Operating Expense and escalated thereafter. No further adjustments to
the Base Year Operating Expense shall be made.
(F) Notwithstanding anything to the contrary, the following expenses are
excluded from Operating Expenses: (i) All executives' salaries and fringe
benefits above the grade of General Manager of Inverness Center; (ii)
Expenditures for capital improvements made to the Real Property, Building or
Park; (iii) Expenses for painting, redecorating or other work which Landlord
performs for any other tenant of the Building; (iv) Expenses incurred in
leasing or procuring new tenants (including broker commissions and finder's
fees); (v) Legal costs other than those reasonable legal expenses incurred in
connection with protesting Real Estate Taxes when Landlord decides in good
faith that such protest is warranted and informs Tenant in advance of its
intention to protest; (vi) Interest or amortization payments on any mortgage;
(vii) Depreciation and any ground rent; (viii) The cost of correcting defects,
both structural and non-structural, in the Building, Premises or parking area
caused by faulty design, poor workmanship or deficient materials for a period
of two (2) years or the length of any warranty covering the cost of repairing
the defect, whichever is longer; (xi) All costs associated with the initial
construction of the Building; (x) Any structural repair to the roof,
foundation, floors or exterior walls; (xi) Franchise, income or other taxes
based on income or rent or on personal property not used directly in the
operation of the Building, Real Property or Park; (xii) The cost of painting
the Premises in accordance with Article 15 of this Lease; (xiii) The cost of
any repair made by Landlord pursuant to Article 19 and Article 25 of this Lease.
(G) Tenant acknowledges that some Operating Expenses may be incurred by
Landlord directly for the benefit of the Premises and shall, therefore, be
charged directly thereto, whereas certain other Operating
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15
Expenses may be incurred by Landlord either directly for the Building and Real
Property, or either of them, or for the Park as a whole. In computing Operating
Expenses applicable to the Premises, there shall be three methods of charging
or allocating Landlord's Operating Expenses as follows:
(i) "Direct Charge", which shall include those Operating Expenses
paid only and solely for the benefit of the Premises, or upon Tenant's express
written request;
(ii) "Building and Real Property Allocation", which shall include
those Operating Expenses paid only and solely in and upon the Building and the
Real Property and not with respect to the Park and not at the request of any
other tenant or user of the Building or Real Property. Tenant shall pay its
prorata share of the increase in these expenses.
(iii) "Common Area Allocation for the Park", which shall include
those Operating Expenses incurred only and solely in and upon common areas of
the Park (as shown on Exhibit A-1, attached hereto and made a part hereof),
outside other buildings or building sites and for the benefit of all tenants and
users of the Park and not at the specific request of any other tenant or user
thereof. The amount of such Common Area Operating Expenses for the Park
allocated to the Building shall be determined by multiplying the Common Area
Operating Expenses by a percentage, which percentage is a fraction having as its
numerator the number of acres comprising the Real Property (6.5), and as its
denominator the total number of acres comprising the Park on each anniversary
date of the Lease (81.353). The Premises will be charged with its Prorata Share
of such amount allocated to the Building. Provided, however, that the amount of
any such increase over the previous year allocable to the Building shall not
exceed ONE THOUSAND TWO HUNDRED DOLLARS ($1,200.00) in any one Operating Year.
Landlord agrees that the Common Area Expenses for the Park shall be a minimum of
$25,000.00 in the Base Year.
(H) Landlord agrees to keep accurate records in accordance with sound
accounting principals, consistently applied, of all Operating Expenses and to
submit to Tenant, within one hundred twenty (120) days
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subsequent to the expiration of the Base Year and any Operating Year, a
statement in reasonable detail certified by any officer, or agent of Landlord
setting forth the Operating Expenses.
(I) In the event the actual Operating Expenses applicable to the Premises
for any Operating Year exceed the Operating Expenses applicable to the Premises
for the Base year, Tenant shall pay such difference as adjusted for payments
received by Landlord applicable to such year pursuant to Paragraph L of this
Article 4, within sixty (60) days after receipt of a statement from Landlord.
Provided, however, such payment shall not bar Tenant from disputing and
recovering the payment of such amounts as hereinafter provided.
(J) In the event the actual Operating Expenses applicable to the Premises
for any Operating Year, are less than Operating Expenses applicable to the
Premises for the Base Year, as adjusted for any payments made or received by
Landlord pursuant to Paragraph L of this Article 4, Landlord shall pay the
difference to tenant within sixty (60) days of forwarding the statement to
Tenant.
(K) Within eighteen (18) months after receipt of a statement from Landlord
setting forth the Operating Expenses applicable to the Premises for the Base
year and within six (6) months after receipt of a statement from Landlord
setting forth the Operating Expense applicable to the Premises for any Operating
Year, Tenant shall have the right, upon ten (10) days written notice to
Landlord, to inspect and audit Landlord's records which shall be maintained at
Inverness Center or in Atlanta, Georgia. Tenant shall notify Landlord within
said eighteen (18) months or six (6) months, as the case may be, if it disputes
the inclusion of any item or items in such statements and tenant will be
promptly reimbursed by Landlord for any items improperly charged for which
tenant paid. If Landlord and Tenant cannot agree as to the inclusion of any item
or items within thirty (30 days after notice has been delivered to Landlord, by
Tenant, then Tenant may submit the dispute to arbitration and such dispute shall
be settled in accordance with the rules and regulations of the American
Arbitration Association. Any such arbitration shall be held in Shelby County,
Alabama, unless the parties otherwise mutually agree. The determination of any
such matter by the Arbitrators shall be final and binding upon both Landlord
and Tenant, and the expenses involved in such determination shall be borne by
the party against whom a decision is rendered by the Arbitrators, provided that
if more than one item is
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disputed and the decision shall be against each party in respect of any item or
items so disputed, the expense shall be apportioned according to the dollar
value of the items decided against each party.
(L) Landlord shall furnish to Tenant no later than 30 days before the end
of each Operating Year, a statement certified by an authorized agent of the
Landlord setting forth in reasonable detail the projected Operating Expenses
for the next succeeding Operating Year. Tenant shall pay monthly beginning with
the first month of the next succeeding Operating Year for which the expenses
were projected, one twelfth (1/12) of said projected increase in Operating
Expenses applicable to the Premises. Landlord agrees that for the purpose of
Tenant making payments pursuant to Paragraph L of this Article 4, Tenant's
share of any projected increases for the next succeeding Operating Year shall
not be greater than twelve (12%) percent of the total Operating Expenses
applicable to the Premises in the immediately preceding Operating Year.
(M) The Base Year's Real Estate Taxes shall be determined by applying the
millage rate and the percentage used in computing assessed value applicable for
the 1980 tax year to an estimated valuation certified by the Shelby County
Tax Assessor's office obtained in October of 1980, but based on a completed
building being substantially occupied. In the event this estimate is not
available in 1980, the final assessed building value determined in October 1981
shall be used in computing base year taxes provided, however, that millage and
assessment rates in effect in October of 1980 shall be applied. If the taxes
payable by Landlord during any tax year subsequent to the base tax year exceed
the Base Year taxes, Tenant shall pay to Landlord Tenant's prorata share of
such excess. Payment of such increase shall be made within thirty (30) days
after the rendition of a statement in reasonable detail from Landlord setting
forth the amount due. Such statement shall specify the Real Estate Taxes paid
by Landlord for the base tax year and for the current tax year and shall be
accompanied by copies of receipted tax bills indicating the payment of
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such taxes. If Landlord shall receive a refund for any tax year for which
payment has been made by Tenant, Landlord shall promptly pay Tenant its prorata
share of such refund.
(N) Landlord will notify Tenant promptly of any discriminatory or
unreasonable increase in Real Estate Taxes resulting from other than a general
increase in the tax rate. Landlord will take all reasonable steps to contest
any such increase, and shall keep Tenant informed, with timely advice, of the
steps being taken. If Landlord elects not to contest such increase, Tenant may
after advising Landlord, contest in good faith and by appropriate proceedings
at its own expense any such tax increase or assessment. Any such contest or
legal proceedings shall be begun by Tenant as soon as reasonably possible after
the decision by Landlord not to contest which shall be made and notice given to
Tenant no later than thirty (30) days in advance of the expiration date for the
filing of any such contest. Tenant may in its discretion consolidate any
proceeding to obtain a reduction in assessed valuation of the Premises for tax
purposes relating to any tax year with any similar proceeding or proceedings
relating to one or more other tax years. Anything to the contrary herein
notwithstanding, Landlord shall pay all such contested items before the time
when the Premises or any part thereof might be forfeited as a result of
nonpayment. Landlord agrees to cooperate with Tenant in such contest and in the
event Tenant is successful in such contest, Tenant will be reimbursed by
Landlord from the recovered proceeds for any overpayment of Taxes by Tenant as
well as Landlord's proportionate share of Tenant's cost for such recovery.
5. ASSIGNMENT AND SUBLETTING
Tenant may assign, sublet, transfer or dispose of all or any portion of
the Premises only with consent of Landlord, which consent shall not be
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unreasonably withheld or delayed. Landlord shall give verbal response to Tenant
within a reasonable time after Tenant's request to assign or sublet any part of
the Premises, and written response within twenty (20) days of Tenant's request.
Any such disposition of this Lease shall in no way terminate the liability of
the Tenant for the performance of and compliance with all the covenants and
provisions of this lease on the part of the Tenant, except as may be otherwise
agreed, and Tenant shall remain fully liable hereunder.
Tenant's assignee or sublessee shall use the Premises for purposes in
keeping with the use provision stated in Article 7. Further, Tenant may, in all
instances, assign or sublet the Tenant's obligations under this lease to any
business entity that it controls, is controlled by or is under common control
with Tenant. Such an assignment or subletting shall not require Landlord's
consent.
There shall promptly be delivered to Landlord the original or a duplicate
original of the instrument or instruments containing such assignment.
6. ALTERATIONS
The Tenant make at its own expense, and of quality equal to or better than
Landlord's Tenant Finish Standards, alterations, decorations, additions, or
improvements in or to the demised Premises without Landlord's consent provided
that such alterations, decorations, additions or modifications do not materially
affect any building system (electrical, plumbing, mechanical, elevator, HVAC).
However, if any building system will be materially affected, Landlord's consent
to such work must be obtained. All such decorations, alterations, additions, or
improvements shall be done in a workmanlike manner, in accordance with all state
and federal and municipal regulations, and in a manner that will not impair the
structural integrity of the Building. Before making any alterations, additions,
improvements, decorations or other changes in or to the
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Premises, whether or not Landlord's approval is required, Tenant shall first
give Landlord the opportunity to do such work, and Landlord shall submit an
estimate for the cost of said work. In the event Tenant feels that Landlord's
cost estimate for the job is too high, Tenant may seek outside bids from two
other contractors. In the event either of the two bids are lower, Landlord
shall then have the opportunity to do the work for the lower of the cost
submitted on such outside bids. In the event Landlord does not agree to meet
the outside contractor's cost, Tenant may then contract with the outside
contractor to do the work; provided, however, that Tenant shall use, at
Tenant's expense, Sidney R. Barrett and Associates, Architects, or such other
architectural firm as is the then Architect for Landlord, to prepare the
working drawings for all such alterations, decorations, additions or
modifications as well as for preparing as-built drawings of such work and
making the appropriate changes on the Building record drawings. All such
alterations, decorations, modifications and improvements, as well as Tenant's
trade fixtures and personal property (including moveable partition with
associated doors), shall remain the property of Tenant and may be removed by
Tenant. Upon the termination of this Lease, if Tenant fails to promptly remove
said alterations, decorations, modifications and improvements, they shall from
that time forward be the sole and exclusive property of Landlord, and Tenant
shall have no rights in or to the alterations, decorations, modifications and
improvements. If the Tenant elects to remove any of the said alterations,
decorations, improvements, Tenant shall do so in a timely manner and shall be
responsible for repairing the Premises and placing them as nearly as possible
in their original condition prior to the addition of Tenant's improvements,
normal wear and tear excepted.
7. TENANT'S USE OF PREMISES
Tenant shall use and occupy the Premises as general office space and for
such related activities as are in concert with Tenant's business and for any
lawful purposes incidental to the use of the Premises as general office space.
Landlord warrants that Tenant's use of the Premises also includes the
installation of vending machines and appropriate lunchroom
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facilities, as required by Tenant. Any subtenant, assignee, subsidiary, parent
or controlled corporation of the Tenant or any successor to it by merger,
consolidation or other corporate action may similarly use the Premises.
Landlord warrants and represents that the use of the Premises set forth
herein is permitted under current laws, ordinances and regulations. Landlord
further warrants that if, at any time during the term of this lease, Tenant's
use of Premises shall become prohibited by reason of any change in the
applicable laws, ordinances and regulations, this lease shall at the option of
Tenant terminate and neither party shall have any further liability to the
other.
8. MAINTENANCE AND REPAIRS
Landlord shall at its expense, subject to Article 4, make all repairs and
replacements structural and otherwise, necessary or desirable in order to keep
in good order and repair the interior and exterior of the Building, all building
systems (electric, plumbing, mechanical and HVAC), the parking area and the
public portions of the Building. Landlord shall make all necessary repairs and
replacements to the Premises, subject to Article 4 hereof, unless the repairs or
replacements are caused by the negligence of Tenant, its servants, agents or
employees. Tenant and Landlord agree that each party shall notify the other of
the need or necessity of such repairs within the Premises and that all such
repairs and replacements shall be in quality and class equal to the original
work or installations and done in a workmanlike manner.
9. SECURITY
Landlord agrees to provide and maintain at Landlord's cost subject to
Article 4 hereof, an electronic surveillance system for the Building and
surrounding area which shall be operable and monitored during all
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non-business hours. In addition, after each day's janitorial cleaning services
are performed, Landlord will turn off all lights and lock all access doors to
the Building and the Premises.
10. INSURANCE AND INDEMNIFICATION
During the term of this lease, Tenant shall defend and hold harmless
Landlord from and against any loss, claim, expense, damage or liability
sustained by Landlord in connection with the Premises resulting from any
negligent act or omission on the part of the Tenant, its agents, employees, or
invitees. Likewise, during the term of this lease, Landlord shall defend and
hold harmless Tenant from and against any loss, claims, expense, damages or
liability sustained by Tenant in connection with the Premises resulting from
any negligent act or omission on the part of Landlord, its agents, employees or
invitees. Tenant shall, at its expense, cause to be placed in effect upon the
commencement of the term hereof and cause to remain in effect comprehensive
general liability insurance in the amount of $5,000,000.
11. DEFAULT OF TENANT
If any one or more of the following happen (hereinafter referred to as
"Event or Events of Default"):
(a) If default shall be made in the due and punctual payment of the base
rent and all other charges payable under this lease when and as the same shall
become due and payable, and such default shall continue for a period of ten
(10) days after written notice from Landlord to Tenant without being cured by
Tenant; or
(b) If default shall be made by Tenant in the performance of or
compliance with any of the covenants, agreements, terms or conditions contained
in this lease, other than that contained in subsection (a) hereof, and such
default shall continue for a period of thirty (30) days after written notice of
said defaults received by Tenant, and Tenant shall
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not have cured said default in that time or within such period as may
reasonably be required to remedy the default (if the default cannot be cured
within said thirty (30) day period) if Tenant has not begun and is not
proceeding with all due diligence to cure said default; or
(c) If Tenant shall file a voluntary petition in bankruptcy or shall be
adjudicated a bankrupt or insolvent or shall file any petition or answer seeking
any arrangement, liquidation, dissolution or similar relief under present or
future federal bankruptcy law or any other applicable state or federal law or
shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of any or all of its properties or of the
Premises, and, if within seventy-five (75) days after the commencement of any
proceeding against Tenant as enumerated in this subsection, said proceeding has
not been dismissed or if within seventy-five (75) days after the appointment of
any trustee, receiver or liquidator of Tenant for all or any portion of Tenant's
properties, including the Premises, such appointment shall not be vacated or
otherwise stayed; then and in any such event Landlord, at any time thereafter,
as long as such default continues, may give notice to Tenant specifying such
event of default or events of default and stating that this lease and the term
hereby demised shall expire and terminate on the date specified in such notice,
which shall be at least ten (10) days after giving such notice, and upon the
date specified in said notice this lease shall terminate and expire. Upon such
termination Tenant shall remain liable as hereinafter provided unless before
said termination date Tenant has paid all arrearages of rent, all other amounts
payable by Tenant under this lease and all costs or expenses incurred by
Landlord as a result of said default, including reasonable attorneys' fees and
all other defaults existing at that time under this lease have been fully cured
or satisfied by Tenant in which event the consequences of such default shall be
nullified.
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Upon any such expiration or termination of this lease Tenant shall quit and
peacefully surrender the Premises to the Landlord without any payment therefor
by Landlord, and Landlord, upon or at any time after said expiration or
termination, may re-enter the Premises and possess itself thereof by use of
legal process; and, the Tenant shall continue to pay at the same time as the
rent becomes due and payable under the terms hereof, the base rent, as adjusted
in accordance with Article 4 herein, until such time as Landlord shall re-rent
the Premises. At such time as the Premises are re-rented, Tenant shall remain
liable until the amounts due and owing to Landlord as default amounts have been
paid in full. No receipt of monies by Landlord from Tenant after the
termination in any way of this lease, shall re-instate, continue or extend the
term of this lease or affect any notice given to Tenant prior to receipt of
such money but may so operate only upon the specific written agreement of
Landlord. Landlord and Tenant, and each of them, shall have, upon any default
under the terms and conditions of this Lease Agreement, such remedies available
to them as are provided herein together with such other remedies as may be
available to the parties at law or in equity, none to the exclusion of the
other. The waiver of any default or breach hereunder shall not prevent a
subsequent act, which would have originally constituted a default or breach,
from having all the force and effect of an original default or breach. The
receipt and acceptance by Landlord or Agent of rent shall not constitute a
waiver of any default or breach hereof by Tenant of which Landlord then has
knowledge except where said default or breach by Tenant is non-payment of the
rent so received or accepted.
12. RIGHT OF ENTRY
Tenant agrees that Landlord, its agents or employees will be permitted
access to the Premises at all reasonable times upon reasonable notice to the
Tenant to examine, inspect or to protect the Premises from damage or injury.
Nothing herein shall be construed as prohibiting Landlord, its agents, or
employees from entering the Premises without
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notice in case of emergency to prevent damage or injury to the Premises.
Landlord shall further have the right to enter the Premises upon reasonable
notice to Tenant during the last six (6) months of the term hereof to exhibit
the Premises to prospective tenants.
13. TENANT'S HOLDOVER
On the termination or expiration of this Lease, the Premises shall be
surrendered to Landlord in the condition in which Tenant is required to
maintain same, reasonable wear and tear and damage by fire or other action
beyond Tenant's control excepted.
Upon notice to Landlord, at least 30 days prior to expiration of the
lease, of Tenant's inability to vacate Premises due to reasons beyond Tenant's
control, Landlord shall grant Tenant the right to remain in the Premises for a
period of sixty (60) days beyond the normal lease expiration date at the
monthly rental rate then in effect; provided, however, that Tenant shall be a
tenant at will during said period and there shall be no renewal of this Lease
by operation of law. Upon the expiration of this additional sixty day period,
Tenant shall surrender the Premises to Landlord.
14. RIGHTS TO RENEW
Tenant shall have the right to renew this lease for three (3) successive
periods of five (5) years each. In order to exercise any of these three (3)
options, Tenant must provide written notice to Landlord at least six (6) months
prior to the expiration date of the initial lease term or any renewal term. Each
and every renewal option shall be effective for all space under lease by Tenant
in Building 31 at the time the option is exercised. Each renewal period shall be
governed by the same terms and conditions of this lease excepting Base Rental,
as defined in Article 3 hereof, which shall be governed by the following
schedule:
A. First Option Period: 5% increase over the Base Rental at the time the
option is exercised for that space under lease.
B. Second Option Period: 5% increase over first option period Base Rental
at the time the option is exercised for that space under lease.
C. Third Option Period: 5% increase over second option period Base Rental
at the time the option is exercised for that space under lease.
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In addition, the parties intend that the phrase "governed by the same terms and
conditions" shall be applicable as to each successive Renewal Period, but shall
not apply to provide additional renewal options beyond the Third Option Period.
In each instance the Base Year for the calculation of property tax and
operating expense adjustments remains the same as defined in Article 4 hereof.
15. LANDLORD'S COVENANTS
Without limiting the generality and effect of any other provision of this
lease, Landlord covenants that:
(A)(i) Landlord has the right and authority to execute this lease; (ii)
that Tenant, on paying the rent herein reserved and upon performance of all the
terms and conditions of this lease on its part to be performed, shall at all
times during the term hereof peacefully and quietly have, hold and enjoy the
leased Premises; (iii) Landlord further covenants and agrees that Tenant's
employees, agents, invitees and visitors shall have the right at all times to
unhindered access to and egress from the Building, the Premises and parking lot.
(B) To the extent permitted by the laws and insurance regulations of
Alabama, without penalty or extra premium charge therefor, the respective
parties hereto hereby waive and release any and all claims, demands and causes
of action which each might have against the other party, either for damage to or
loss of any part of the leased Premises, the Building, or of any adjoining
premises belonging to Landlord, or for damage to or loss of any of the contents
and/or leasehold improvements belonging to Tenant, arising from perils
ordinarily insured against under a standard fire and extended coverage
insurance policy whether or not such damage or loss is occasioned by the
negligence of the respective parties, or either of them, their agents, servants
or employees to the extent of said coverage against perils ordinarily insured
against under a standard fire and extended coverage insurance policy. The
provisions of this Paragraph B shall prevail over the provisions of Article 10
of this lease.
(C) Landlord will furnish the following facilities, maintenance and
services, at its expense subject to Article 4 and Article 16, and in a
first-rate manner commensurate with the usual standard of a first class office
building:
(i) Electricity for ordinary office uses including normal lighting,
and normal business machines.
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(ii) Elevator service at all times.
(iii) The painting of all portions of walls, columns, and
partitions, other than moveable partitions, as is necessary
to maintain the leased Premises in a first-class condition.
Provided, however, Landlord shall completely repaint the
Premises during the third year of the initial lease term and
during the third year of any renewal term in all space leased
by Tenant, at Landlord's sole expense. Said repainting(s)
shall be done in colors selected by Tenant from Landlord's
Tenant Finish Standards, but in the manner and at times
mutually convenient to Landlord and Tenant. Such repainting
of the entire Premises shall not be subject to Article 4, of
this lease.
(iv) Heating, ventilating and refrigerated air conditioning, in
season, in accordance with ASHRAE standards during the hours
from 7:30 a.m. to 5:30 P.M., Monday through Friday, and 7:30
A.M. to 12:30 P.M. Saturday (hereinafter referred to as
"Building's Regular Business Hours"), except holidays
observed jointly by Landlord and Tenant. Provided however,
Landlord agrees, at Landlord's cost subject to Article 4 and
Article 16 hereof, to provide all Building services and
utilities for Tenant on those holidays where the Building is
considered closed but Tenant's offices are open for business.
(v) Building access and all services and utilities necessary to
permit use of the leased Premises by Tenant at any time after
Building's Regular Business Hours, subject to the provisions
of Article 16.
(vi) Toilet facilities as indicated on Exhibit A-3, A-4, A-5 and
A-6, attached hereto, together with necessary toilet
supplies, hot and cold water, and sewage disposal.
(vii) Repair and replacement of Building Standard window draperies
and rods, if any, and/or blinds, as necessary.
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(viii) Refrigerated drinking water.
(ix) Janitorial services on a five (5) day per week basis, which
janitorial services shall include:
Daily-Five days per week (Monday through Friday, after
Tenant's business hours, except Holidays).
CLEANING SCHEDULE
(a) General Cleaning-Nightly
1. Clean entrance doors
2. Dust, sweep or vacuum all flooring and carpeting and insure dust free
flooring.
3. Empty and clean all waste baskets, ash trays, etc., damp dust as
necessary.
4. Clean cigarette urns and replace sand or water as necessary.
5. Remove wastepaper and waste materials to a designated area.
6. Dust and wipe furniture, fixtures, desks, equipment, displays,
telephones and window sills.
7. Dust or damp dust counters, work tables, shop windows and metal trim.
8. Wipe fingerprints, smudges, ink stains from all surfaces.
9. Brush upholstered furniture.
10. Dust baseboards, chair rails, trim, louvres, etc. (within reach)
11. Wash drinking fountains.
12. Wash counter tops.
13. Wash floor mats.
14. Wipe name plates.
15. Leave locker and service closet in a clean and orderly manner.
16. After each day's cleaning, Landlord will turn off the lights in the
Premises and lock all access doors to the Building and Premises.
(b) Lavatory Cleaning-Nightly
1. Sweep and wash flooring with a germicidal solution.
2. Wash and polish mirrors, powder shelves, brightwork, etc.
3. Wash both sides of toilet seats and urinals including piping, hinges,
bowls, basins, etc. with a germicidal detergent solution.
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4. Dust partitions, tile walls, dispensers and receptacles.
5. Empty and clean towel and sanitary disposal receptacles.
6. Remove wastepaper and refuse to a designated area.
7. Refill toilet tissue holders, soap and towel dispenses with high
quality supplies furnished by Landlord.
(c) Recurrently as Necessary
1. Dust door louvres and other ventilating louvres within reach when
necessary.
2. Remove fingerprints from metal partitions and other similar surfaces
when necessary.
3. Wash and polish glass or glass topped furniture as required.
4. Machine or hand scrub lavatory floor with germicidal solution
when necessary.
5. Machine or hand scrub entrance flooring as necessary.
6. Clean lights, globes and lighting fixtures as required.
7. Rub down entrance way metal and other high level brightwork as
necessary.
8. Keep Premises free from rodents, insects and pests.
9. Replace flourescent tubes and ballasts as necessary.
10. Spot clean carpet as necessary.
(d) Weekly Cleaning
1. Damp mop and touch up vinyl asbestos tile areas in traffic areas and
pivot points, buff if necessary.
(e) Monthly Cleaning
1. Wash lavatory partitions, tile walls and enamel surfaces with
germicidal detergent solutions.
2. Dust exterior of lighting fixtures.
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3. Dust down entrance walls.
4. Dust pictures, frames, etc. not reached in nightly cleaning.
5. Dust exterior of lighting fixtures, overhead pipes, sprinklers.
6. Dust blinds/window hangings and window frames.
7. Dust all vertical surfaces such as partitions, etc. not reached in
nightly cleaning.
8. Wash and apply coating of slip prevention finish to all resilient
floor areas once each month. (Strip finish periodically and apply
two coats.)
(f) Window Washing
1. Wash interior and partition glass as required.
2. Wash exterior windows inside and out as required.
(g) Entrance Lobby
1. Clean entrance doors nightly.
2. Wash and scrub clean lobby floor as required.
3. Wash lobby windows inside and out once a month.
(h) Tenant shall have the right, upon occupying one hundred percent of the
Building, to assume the obligations of Landlord for cleaning Tenant's
Premises, if Tenant should become dissatisfied with the quality of these
cleaning services provided by Landlord. The cost of said cleaning services
will then be borne by the Tenant rather than the Landlord.
16. ADDITIONAL SERVICES
(1) Landlord shall provide heating, ventilation and air-conditioning at
times other than during Building's Regular Business Hours subject to the
following provisions:
(a) Tenant shall notify Landlord of the necessity for after-hours
heating and air conditioning services no later than 2:00 P.M. on the
day such services are required; provided however, that notification
for services required on Saturday or Sunday must be given by 2:00 P.M.
on the preceding Friday. Said notification may be verbal, but shall be
reduced to writing within two (2) business days thereafter.
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(b) Tenant shall pay a charge of $20.00 per hour floor for the first
floor required by Tenant and a charge of $15.00 per hour per floor
for each additional floor required by Tenant for said service
after-hours. Said charge will be billed monthly by Landlord and Tenant
shall pay Landlord within fifteen (15) days of receipt of such bill.
(c) The said charges of $20.00 and $15.00 per hour per floor, as set
forth above, shall be subject to increases from time to time due to
increases in the cost of electricity as charged by Alabama Power
Company, or successor thereto, over the cost of electricity as charged
by Alabama Power Company for the month of July 1980.
(2) Landlord and Tenant recognize that electricity consumed by Tenant may
be in excess of electricity consumed in comparable office buildings for
ordinary lighting levels and normal business machine usage during normal
operating hours; and agree that at the end of the Base Year, Tenant and
Landlord will attempt, in good faith, to quantify such excess use of
electricity, if any. Tenant further agrees to pay to Landlord the cost of
such excess electricity used during the Base Year and agrees that the Base
Year Operating Expenses shall be reduced by the amount of such excess.
(3) Tenant shall pay for all electricity required to operate
data-processing computer machine installation(s) and ancillary key-punch or
other data-input operations contained in separate data-operations rooms.
Such operations shall be separately metered and billed, at the rate then in
effect with Alabama Power Company, monthly, directly to Tenant by Landlord.
Tenant shall pay Landlord such additional charges within fifteen (15) days
or receipt of said bill. Furthermore, Tenant shall be solely responsible
for the cost of furnishing, operating, maintaining, and repairing the
heating, ventilating and air conditioning system required for
data-processing and data-input rooms installations.
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17. DEFAULT BY LANDLORD
If Landlord shall default in fulfilling any of the covenants or provisions
of this Lease on its part to be performed and shall fail to remedy the default
within thirty (30) days (except that any default consisting or amounting to
dispossession of the Tenant shall be immediately actionable) after Tenant shall
have given Landlord written notice of such default, then Tenant shall have the
rights, powers or remedies permitted to it by law and shall have, without
limiting the generality of the foregoing, the right to (a) remedy Landlord's
default and charge Landlord for the cost of remedying the default by withholding
rent or otherwise, or (b) allow the default to continue and reduce the payment
of rent by reason of the default. If Landlord does not remedy such default
within one hundred eighty (180) days after Tenant's written notice of default,
then Tenant, while such default shall continue, shall have the further right to
give Landlord written notice of its intention to terminate this Lease on the
date of such notice or on any later date; and on the date specified in such
notice, Tenant's obligation to pay rent shall cease and this Lease shall
terminate. Provided, however, that Tenant shall not have the right to terminate
this Lease as aforesaid if Landlord is using his best efforts to cure said
default.
18. COMPLIANCE WITH LAW
Landlord shall at its own expense promptly observe and comply with all
present and future laws, ordinances, requirements, orders directions, rules and
regulations of the federal, state, county and city governments and of all other
governmental authorities having or claiming jurisdiction, directly or
indirectly, over the Premises, Building or appurtenances or any part thereof
(including, but not limited to, such regulations or standards as are or may be
promulgated under the Federal Occupational Safety & Health Act of 1970 as
amended or similar federal, state or local requirements pertaining to the
Tenant's use of the Premises and the Building), whether the same are in force at
the commencement of the term or may in the future be passed, enacted or
directed. Without
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limiting the generality of the foregoing, the Landlord shall also procure each
and every permit, license, certificate or other authorization required in
connection with the lawful and proper use of the Premises, Building, or
appurtenances or any part thereof, as now or hereafter constituted.
19. CONDEMNATION
In the event the entire Premises shall be appropriated or taken under the
power of eminent domain by any public or quasi-public authority this lease shall
terminate and expire as of the date of taking and each party shall be released
from liability to the other except to the extent that any rents paid for periods
subsequent to the date of taking shall be refunded to Tenant.
In the event that a portion of the Premises or a portion of the Building
of which the Premises are a part is condemned or taken by eminent domain so as
to render the Premises substantially unusable, Tenant shall have the right to
cancel and terminate this lease effective as of the date of taking by giving
notice to Landlord of that intention within forty-five (45) days after receipt
from Landlord of notice of such appropriation or taking. Any taking or
appropriation by eminent domain proceedings or condemnation shall be deemed to
render the Premises substantially unusable hereunder if such appropriation or
taking will result in Tenant's ability to use any portion of the Premises in
the manner in which and for the purposes for which it has been or may be used
under this lease. In the event of such termination each party shall be released
from liability to the other except to the extent that any rents paid for
periods subsequent to the date of taking shall be refunded to Tenant.
Eminent domain proceeds shall be paid to Landlord, but the Landlord shall,
and hereby does, assign to Tenant an amount out of such award equal to the sum
of (a) the amount attributable to Tenant's trade fixtures and personalty in the
Premises so taken, which fixtures and personalty Tenant elects not to remove;
(b) the cost incurred by Tenant in moving from the condemned Premises in the
event the lease is terminated.
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In the event that less than the whole of the Premises are so appropriated
or taken and Tenant elects not to terminate this lease but shall remain in the
portion of the Premises not so appropriated or taken, then the Base Rent to be
paid hereunder to Landlord shall abate and Tenant shall pay only the portion of
the Base Rent that is in proportion to the space remaining.
20. RULES AND REGULATIONS
Tenant covenants that the rules and regulations appended hereto as Exhibit
B, unless in conflict with the terms and provisions of this lease, and such
other further rules and regulations as the Landlord may make and which are, in
Landlord's judgment, necessary and appropriate for the general well being,
safety, care and cleanliness of the Premises and the Building of which they are
a part, shall be faithfully kept, observed and performed by Tenant, its agents,
servants and employees, but only to the extent that such rules and regulations
are reasonable and uniformly applied to all tenants in the Building and not in
conflict with the terms of this lease.
21. ENTIRE AGREEMENT
It is expressly understood and agreed by and between the parties hereto
that this lease and the exhibits appended hereto set out all the promises,
agreements, conditions, inducements and understandings between Landlord and
Tenant relative to the Premises and that there are not promises, agreements,
conditions, understandings, inducements, warranties or representations, oral
or written, express or implied between them except as herein set forth. This
lease shall not be modified or amended in any manner except by an instrument in
writing executed by the parties.
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22. NOTICES
Any notice to be given by either party to the other pursuant to this lease
or to the provisions of any law, present or future, shall be given by
registered or certified mail, return receipt requested, addressed to the party
for whom it is intended at the address stated below or any other address
designated.
If to Landlord: Vice President Vice President
Metropolitan Life & Metropolitan Life
Insurance Company Insurance Company
One Madison Avenue 47 Perimeter Center East,
New York, New York, 10010 Suite 650
Atlanta, Georgia, 30346
If to Tenant: Vice President-Finance and Administration
Combustion Engineering, Inc.
Inverness Center, Building 31
Birmingham, Alabama 35243
with a copy to: Combustion Engineering, Inc., Corporate Real Estate Department,
1000 Prospect Hill Road, Windsor, Connecticut 06095.
23. MEMORANDUM OF LEASE
The parties agree that concurrently with the execution of this lease they
shall execute a memorandum of lease, in recordable form, to be recorded in the
land records of Shelby County setting forth:
(a) names of the parties hereto
(b) addresses of the parties hereto
(c) the existence of any renewal options
(d) any other terms required by statute or deemed appropriate
by the parties; provided, however, that Tenant's rights to
expand the Premises shall not be included in such a
memorandum.
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24. GOVERNING LAW
This lease shall be construed in accordance with the laws of the State of
Alabama.
25. DAMAGE AND DESTRUCTION
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give immediate notice thereof to Landlord and this Lease
shall continue in full force and effect except as hereinafter set forth. If the
Premises or any part thereof or any portion of the Building are partially
damaged or rendered partially unusable by fire or other casualty, such damages
shall be repaired by and at the expense of Landlord and this Lease shall not
terminate, and the Base Rent, until such repair shall be completed, shall be
apportioned from the day following the casualty according to the part of the
Premises which is unusable. If said repairs are not completed within one hundred
eighty (180) days from the date of said damage or if said repairs have not
commenced within thirty (30) days from the date of said damage, or Landlord is
not proceeding diligently after commencing with said repairs, then this Lease
shall be immediately terminable at the option of the Tenant.
Landlord shall give Tenant written notice within ten (10) days after the
date of any casualty as to whether said repairs can be completed within one
hundred eighty (180) days; if said repairs cannot be completed within one
hundred eighty (180) days or if Landlord fails to give proper notice within ten
(10) days, then Tenant shall have the right, at Tenant's option, to terminate
this Lease anytime after receipt of Landlord's notice or said ten (10) day
period.
If the Premises are totally destroyed by fire or other casualty, then the
Base Rent and all other charges due from Tenant pursuant to this Lease shall be
paid up to the time of the casualty and at either party's option this Lease
shall terminate, provided written notice is given the other party within 30
days of such destruction.
26. BUILDING SIGNAGE
At the request of Tenant, Landlord shall design, install and maintain an
exterior, free-standing sign to be located at the street entrance to Building
31 and/or adjacent to Building 31. The cost of the sign and installation at the
street entrance and adjacent to the Building shall be
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paid by Tenant. Such signs shall conform to municipal and other applicable laws
and regulations and shall be subject to Tenant's approval as to their design,
size and location.
Tenant may design, install and maintain at its expense signs containing
Tenant's corporate identification and lettering and other appropriate
information on, above or beside all doors leading into the Premises, in
accordance with Combustion Engineering, Inc.'s corporate standards and
Landlord's signage standards and subject to Landlord's approval as to their
design, size and location, which approval shall not be unreasonably withheld or
delayed.
Landlord shall maintain at its expense in the Building lobby a suitable
directory for the tenants in the Building and Tenant shall be allotted, without
charge therefor, Tenant's prorata share of the spaces on such directory, as
determined by Article 4 (C). Landlord agrees that such directory shall list, as
Tenant shall determine, Tenant's name and the name of any affiliate or
subtenants.
27. RIGHTS OF SALE AND FIRST REFUSAL.
If Landlord shall desire to sell the Building and the Real Property, apart
from the rest of Inverness Center, Landlord may consummate such sale only if
(a) such sale is to a corporation affiliated with Landlord, or (b) compliance
has been made with the provisions and conditions of Subsections (i) through
(v) of this Article 27.
(i) Landlord shall deliver to Tenant a written statement reflecting the
price for which, and the terms upon which, Landlord would be willing to sell
the Building and the Real Property.
(ii) Tenant shall have the right to purchase the Building and the Real
Property at the price and on the terms contained in such statement.
(iii) Tenant shall have a period of thirty (30) days after the service of
such statement to serve upon Landlord a notice which shall specify whether
Tenant shall purchase the Building and the Real Property. If Tenant fails to
respond within the allocated time, Tenant shall be deemed to have elected and
agreed not to purchase. If Tenant shall have served upon Landlord a notice
specifying that Tenant shall purchase the Building and the Real Property, and
if Tenant shall thereafter fail or refuse to
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close such purchase as required by Subsection (iv) of this Article 27, Landlord
may bring (1) any proceeding in the nature of injunction or other equitable
remedy, it being acknowledged by Tenant that damages at law may be an
inadequate remedy for such failure or refusal of Tenant to close such purchase,
and (2) any action at law against Tenant in order to recover damages.
(iv) Any closing in respect to the sale of the Building and the Real
Property to Tenant shall be held within thirty (30) days after the notice sent
by Tenant as provided in Subsection (iii) of this Article 27.
(v) If Tenant elects not to purchase the Building and the Real Property,
Landlord will have the right for a period of one year from its delivery of the
statement described in Subsection (i) of this Article 27, to sell the Building
and the Real Property at a price and on terms no less favorable to Landlord
than those specified in such statement. For the purposes of this Section 27,
the price for which and the terms upon which Landlord shall sell the Building
and the Real Property shall be deemed "less favorable to Landlord" than those
reflected in such statement if (a) the total price is lower than that set forth
in such statement, (b) a lesser portion of the price is paid in cash at the time
of the sale than that set forth in such statement, or (c) the portion of the
price not paid in cash at the time of the sale is payable over a longer period
of time, at a lower interest rate or with lower periodic payments than those
set forth in such statement. If Landlord does not sell the Building within one
year from delivery of the statement described in Subsection (i) above then
Tenant's rights as described in Subsections (i) through (iv) shall reapply
after said one year period.
If Landlord decides, after notice to Tenant as described in
Subsection (i) above, to sell the Building on terms "less favorable to
Landlord" as described in Subsection (v) above; then Landlord must notify
Tenant of said less favorable terms and Subsection (ii) through (iv) shall
reapply.
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28. PARKING
Landlord shall provide, at no expense to Tenant, one parking space for each
240 square feet of office space leased in Building 31 by Tenant during the
initial lease term or any extension thereof. This ratio shall remain constant
and shall apply equally to any expansion space, other than basement space,
leased by Tenant. Said parking spaces shall be located in the paved and lighted
parking lot adjacent to the Building as shown in red on Exhibit A-2 attached
hereto. Landlord shall provide, as part of the agreed upon parking, five parking
spaces for each floor Tenant occupies completely as reserved parking. These
spaces shall be appropriately marked by Landlord and located as outlined in blue
on the attached Exhibit A-2.
29. EATING FACILITY
As part consideration for Tenant entering into this lease, Landlord
agrees, covenants and warrants that it shall provide a sandwich eating
facility in the basement of Building 31 for the common use of Tenant's
employees, invitees and others within thirty (30) days after Tenant takes
occupancy. Thereafter, Landlord shall use its best efforts to provide such a
facility. Said facility shall be adequate to provide sit down service for
approximately sixty (60) persons, and shall provide facilities for the warming
of food but not for the cooking of food.
30. ADDITIONAL CONSTRUCTION
Landlord hereby covenants and agrees that all other buildings to be built
in Inverness Center will be comparable in quality to Building 31. Landlord will
take reasonable measures to protect Tenants's property and personnel from loss
and injury and to avoid disrupting Tenant's regular business routine during any
construction.
31. FIRE ALARM SYSTEM
Landlord agrees to install and maintain internal fire alarm system,
including emergency lighting in fire stairs and fire extinguishers and fire
hose cabinets adjacent to the fire stairs on each floor, at no cost to Tenant.
Said alarm system shall comply with all present and future requirements of
federal, state, county and city governments and of all other governmental
authorities having jurisdiction.
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32. MEASUREMENT OF PREMISES
The rent stated in Article 3 is calculated on the basis of $9.25 per square
foot per year for the net rentable floor space occupied on floors 1 through 6 by
Tenant. The net rentable floor space was calculated by using the following basis
of measurement:
(1) The net area of a single tenant office floor, other than the
first floor, is computed as follows:
(a) Measure from the inside surfaces of the glass in the outer
Building walls to the inside surfaces of the glass in the
opposite outer Building walls and calculate the resulting
square foot area;
(b) Measure the following excluded area: Building stairs, fire
towers, elevator shafts and elevator machine rooms with
their enclosing walls, tank rooms, flues, vents, stacks,
ducts, and pipe shafts with their enclosing walls, except
those in columns and projections necessary to the Building
and calculate the resulting square foot area. The square
foot area resulting from subtracting (b) from (a) is the net
rentable area.
(2) The net rentable area of a multi-tenant office floor, other than
the first floor, is computed as follows:
(a) Measure from the inside surfaces of the glass in the outer
Building walls to the inside surfaces of the glass in
opposite outer Building walls and calculate the resulting
square foot area;
(b) Measure the Premises from the inside surfaces of the glass
in the outer Building walls to the inside surfaces of the
glass in the opposite Building walls or to the middle of any
demising walls or corridor walls or to the outside surface
of any core walls wherever applicable and calculate the
resulting square foot area;
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(c) Measure the following excluded areas: Building stairs, fire towers,
elevator shafts, elevator machine rooms with their enclosing walls,
tank rooms, flues, vents, stacks, ducts and pipe shafts with their
enclosing walls, except those in columns and projections necessary to
the Building and calculate the resulting square foot area;
(d) Measure the following common areas: passenger and service elevator
lobbies, men's and women's rest rooms, telephone, electric and janitor
closets, and common corridors and calculate the resulting square foot
area.
Tenant's square foot area is developed by applying the
results of (a) (b) (c) and (d) above in the following
formula:
(1) a-(c+d)=e (Net usable floor area)
(2) b/e = f% (Tenant's share of net usable floor area)
(3) f% x d=g (Tenant's share of common area)
(4) b+g = Tenant's net rentable area on a multi-tenant
floor.
The square foot area for basement space is calculated by
measuring the distance between the inside surface of two
opposite perpendicular walls and the distance between the
two adjacent opposite perpendicular walls. The two numbers
derived should be multiplied to arrive at a square foot
area. The square foot area resulting is multiplied by $4.00
and the result is the annual rent for basement space.
(3) The net rentable area for space occupied on the first floor of
the building is computed as follows:
(a) In the event the first floor is occupied by tenants other
than Tenant, the formula for computing the area of
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a multi-tenant office floor is used, as described
hereinabove in Section (2) of this Article 32, except that
the area of the Building entrance lobby is included in the
common areas set forth in subsection (d) of said section
(2);
(b) In the event the first floor is occupied completely by
Tenant, the formula for computing the area of a single tenant
office floor is used, as described hereinabove in Section (1) of
this Article 32, except that the area of the Building entrance
lobby is included in the Tenant's space as set forth in
subsection (a) of said Section (1).
33. PREPARATION OF PREMISES
(A) Prior to the commencement date of this lease Landlord will, at
Landlord's sole cost, complete the following improvements to the Building and
Premises in a first class and workmanlike manner:
(1) Finished, insulated and soundproofed perimeter walls, core
walls, corridor walls and demising wall on the third floor and basement of the
Building.
(2) Two (2) building standard, solid core, tenant entrance doors on
third floor and one (1) in the basement of Building with building standard
hardware and locksets;
(3) Building standard finished elevators, stairwells, core walls,
building entrance, first floor elevator lobby and building standard restrooms
on all floors; and elevator lobby on the multi-tenant floor.
(4) Suspended 2' X 2' lay-in-grid accoustical tile ceiling
throughout the Premises, excluding basement space, and factory finished panels.
(5) Recessed lighting fixtures, installed as specified on lighting
plans to be approved by Tenant prior to installation, sufficient to maintain a
minimum of 80 foot candles of illumination at desk level uniformly distributed
throughout the Premises, excluding basement space, complete with acrylic
lenses, lamps and ballasts on floors one through 6 of the Building; and a
minimum of 50 foot candles of illumination in the basement supplied by hanging
strip lighting.
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(6) Building standard Levelor blinds with all necessary hardware at
all windows. Building standard drapery pockets at all windows on the second
through sixth floors of the Building.
(7) Finished and operational distributed HVAC system for standard
office space designed and operable in accordance with ASHRAE standards and
Tenant's final floor plans, excluding basement space. This shall include all
mechanical equipment, duct work distribution and thermostatic controls. Any HVAC
equipment required in addition to the standard HVAC system serving the Building
shall be at Tenant's sole expense. The HVAC system will be controlled by a
thermostat covering each of the eight (8) separately zoned areas on each floor.
The thermostats will be located in close proximity to that building area which
the thermostat controls.
(8) Emergency lighting in fire stairs, hand fire extinguishers and
fire hose cabinets adjacent to the fire stairs on each floor and any other fire
and emergency equipment required by local, state and federal authorities
applicable to standard office space.
(B) In addition to performing the above stated work, Landlord shall
provide Tenant with an allowance of $6.00 per net rentable square foot leased,
excluding any basement areas, which will be a total of $318,276. Said lump sum
amount can be used by Tenant in any manner it so chooses, including the
purchase of movable partitions and furniture. Tenant and Landlord hereby agree
that Landlord will control such funds, and will make disbursements therefrom
upon written request by Tenant.
(C) All such work performed by Landlord on Tenant's behalf shall be done
as shown on and to the extent required by Tenant's interior layout plans
attached hereto as Exhibits A-3, A-4, A-5, A-6 and A-7.
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Landlord will certify that the Building structural design recognizes and
accommodates the weight of Tenant's furniture and equipment as shown on
Tenant's floor plans.
Within fifteen (15) business days after execution of this lease, Tenant
shall notify Landlord of Tenant's approval for Landlord to proceed with
Tenant's Work or notify Landlord of any changes Tenant desires to make.
Landlord shall perform the rest of Tenant's Work in accordance with the terms
of this lease. If Tenant shall have failed to respond to Landlord's price
within said period, Tenant shall be deemed to have approved same.
Any changes in Tenant's Work proposed by Tenant subsequent to the
submission and approval of Tenant's plans shall, to the extent possible, be
priced based upon the unit price schedule attached hereto as Exhibit C and made
a part hereof and be subject to Landlord's approval, which approval Landlord
agrees not to unreasonably withhold or delay. It is understood between the
parties that the unit prices shown on Exhibit C are valid through August 1,
1980. If, subsequent to the submission and approval of Tenant's plans and the
determination of Landlord's price, Tenant requests a change in Tenant's Work,
and such change, in Landlord's opinion, shall increase the overall cost to
Landlord of performing Tenant's Work, and if Landlord shall so notify Tenant
prior to taking action with respect to any such change, Landlord may predicate
its making of such change upon the adjustment of Landlord's price to reflect
any increased cost to Landlord of such change. If Tenant requests a change in
Tenant's Work after such submission, approval and determination, which change
shall decrease the overall cost to Landlord of performing Tenant's Work, Tenant
may request an adjustment of Landlord's overall price to reflect any such
decrease.
(E) If Landlord's price shall exceed Tenant's allowance as determined by
Subparagraph (B) above, Tenant shall pay to Landlord the amount of such excess
within twenty (20) days after Tenant occupies the Premises upon receipt of
Landlord's invoice itemizing any excesses. Any amounts not paid within said
twenty (20) days shall bear interest at the rate of 1 1/2% percent per month.
If Landlord's prices shall be less than Tenant's allowance as determined by
Subparagraph (B) above, Tenant shall receive a rent credit equal to the amount
of any difference between Landlord's overall price and Tenant's allowance as a
reduction in Tenant's first and succeeding monthly rent payment until the
credit has been exhausted.
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(F) During the construction of the Building and the performance of
Tenant's Work in the Premises, Tenant, its agents and employees shall be
afforded reasonable access and entry to the Building and Premises at all
reasonable hours for the purpose of inspecting and verifying construction of the
Building and Premises as herein provided and the performance of Tenant's Work
and all other work in the Premises required by Exhibits A-3, A-4, A-5, A-6 and
A-7, provided, however, that such access and entry does not unreasonably
interfere with the performance of such construction or other work.
(G) Landlord at its expense shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's Work
and for final approval thereof upon completion, and shall cause Tenant's Work to
be performed in compliance therewith and with all applicable laws and
requirements of state and local public authorities, and in good and workmanlike
manner; provided, however, that Landlord and Tenant shall cooperate reasonably
and expeditiously in making reasonable changes in Tenant's plans necessary to
obtain such permits, certificates and approval.
(H) Landlord hereby warrants the work performed by its contractors and
subcontractors for a period of one (1) year from the date of the occupancy of
the Premises by Tenant against defects in workmanship and materials in the
construction of the Building and Premises. During the period of this warranty,
the Landlord agrees to promptly repair or make good, without cost to Tenant,
any and all such defects in workmanship and materials upon receipt of notice
thereof from Tenant. Further, Landlord hereby agrees to name Tenant as its
joint beneficiary, as their interest may appear, on any warranty in excess of
said one (1) year period, received by it from its contractor or subcontractors
with respect to individual trade bonds, warranties, or guarantees specified
under the various trade sections of the specifications. The foregoing covenant
shall in no wise affect or limit Landlord's obligations to make repairs as
elsewhere provided in this Lease to Tenant.
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34. INVERNESS COUNTRY CLUB
Landlord agrees to provide Tenant, at no cost to Tenant, fifteen (15)
individual dining privileges at the Inverness Country Club for the purpose of
utilizing the club's dining facilities. Said dining privileges shall be
provided by Landlord from the date of Tenant's occupancy of the Premises to the
expiration date of the initial term of this Lease. Tenant shall furnish to
Landlord continuously updated lists of the 15 individuals and their positions
with Combustion Engineering to whom these privileges pertain.
If Landlord continues to own the Inverness Country Club after the initial
term of this Lease, and if, in Tenant's reasonable judgment there are no eating
facilities comparable to the Inverness Country Club within two (2) miles of the
Building, then Landlord will continue to provide Tenant with fifteen (15)
dining privileges at the Inverness Country Club, at no cost to Tenant. The
fifteen (15) dining privileges will continue to be provided until Landlord
sells the Country Club or until comparable dining facilities are opened within
(2) miles of the Building in Tenant's reasonable judgment.
In the event that comparable eating facilities are available within two
miles of the Building, after the initial five year term of this Lease, then
Tenant may, at Tenant's option and expense, continue the use of fifteen (15)
dining privileges at the Inverness Country Club for any extended lease term.
35. OPTION FOR ADDITIONAL SPACE
(A) Landlord hereby grants Tenant the option to acquire additional office
space on Floors 1, 2, and 3 of the Building, in accordance with the following
schedule:
(1) Landlord agrees to limit all leases on the third floor and
approximately one-half of the contiguous space on the second floor of
the Building to a maximum lease term of three (3) years. Tenant will
have the option to acquire all the office space on the third floor and
approximately one-half of the second floor as the initial lease(s)
expire. In any event all space on the third floor and approximately
one-half of
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the second floor will be made available no later than January 1, 1984.
(2) Landlord agrees to limit all leases on the first floor and
approximately one-half of the second floor of the Building to a
maximum lease term of five (5) years. Tenant will have the option to
acquire all the office space on the first and approximately one-half
of the second floor of the Building as the initial leases expire. In
any event all space on the first and second floors will be made
available to Tenant no later than January 1, 1986.
Landlord will furnish Tenant a continuously updated list, as
leases are made for space on the first, second and third floors of
the Building. The list shall include the amount of the square feet
under lease, the location of the space drawn on a 1/8" scale typical
Building floor plan, the lease expiration date and the space
presently vacant in the Building. Tenant shall advise Landlord in
writing no later than six (6) months in advance of each lease
expiration date of its intent to acquire any space or within ten (10)
days of the date space becomes vacant for any other reason. Any space
so acquired by Tenant shall be subject to all the same terms and
conditions of this lease including termination date except as
provided herein.
(B) In addition to the options for additional space granted to
Tenant, as stated herein, Tenant shall have the right to lease any unleased
space in the Building and to lease any leased space that becomes vacant for any
reason from time to time on the same terms and conditions as contained in
sections (D) and (E) of this Article 35. Landlord shall inform Tenant monthly of
the status of any negotiations concerning unleased or vacant space and Tenant
shall inform Landlord within a reasonable time thereafter of Tenant's desire to
acquire any of said vacant or unleased space. At the request of Tenant, Landlord
shall lease to Tenant any vacant space available
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unless Landlord has made a binding commitment to lease the requested space to a
third party.
(C) If Tenant does not acquire all the space in the Building as provided
for herein, Landlord may re-lease any space not acquired for a maximum term of
five (5) years. Tenant shall have the option to acquire any remaining space in
the building at the expiration of the said five (5) year lease term in the same
manner as provided herein.
(D) The rental schedule for all expansion space acquired in accordance
with this Article 35 shall be as follows:
(1) The rental rate for all space acquired on the third floor will
be at $9.25 per net rentable square foot per year plus
accumulated escalations as determined by Article 4.
(2) The rental rate for all space acquired on the first floor and
second floor prior to the end of the initial lease term of five
(5) years and the First Option period, years 6 through 10, will
be at the lower of the ten current market rate for said space
based on the rental rates for comparable space in Inverness
Center, (hereinafter referred to as "Market Rate"), or an
increase of 10% over the base rental rate then in effect for
Tenant's fourth, fifth, and sixth floor space, plus accumulated
escalation as determined by Article 4. The rental rate for said
space acquired during the Second Option Period, or lease years
11-15, shall be at the lower of the Market Rate or 20% over the
base rental rate then in effect for Tenant's fourth, fifth and
sixth floor office space, plus accumulated escalation. The
rental rate for space acquired during the Third Option Period or
lease years 16-20, shall be at the lower of the Market Rate or
30% over the base rental then in effect for Tenant's fourth,
fifth and sixth floor office space, plus accumulated escalation.
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(E) All expansion space acquired in accordance with this Article 35 shall
be prepared for Tenant's occupance by Landlord in accordance with the following
schedule:
(1) If the expansion space acquired by Tenant had not been previously
occupied by tenants, agent or Landlord, then Landlord shall prepare
the space for Tenant's occupancy in accordance with Article 33.
(2) If the expansion space acquired by Tenant had been previously
occupied by tenants, agent or Landlord, then Landlord shall, at
Landlord's expense, perform any demolition work required by Tenant for
its use of the space, and Tenant shall, at Tenant's expense, perform
any construction work relating to interior leasehold improvements
notwithstanding the provision of Article 33 hereof.
36. BUILDING RECEPTION AREA
Landlord agrees that Tenant shall have the right to establish a reception
area in the Building entrance lobby area when Tenant occupies 100 percent of
the Building. Landlord also agrees that no other tenant shall have the right to
use the Building entrance lobby as a reception area at any time.
37. AGENT'S COMMISSION
Landlord and Tenant agree that Taylor & Mathis of Alabama, Inc., acted as
sole Agent for the purpose of this lease. It is understood that any fee due
Agent is the responsibility of Landlord and the same shall be paid by
Landlord. Landlord agrees to pay Agent as compensation for Agent's services
rendered in procuring this Lease, the first full month's rent paid hereunder
and thereafter 5 percent (5%) of all rental paid to Lessor as rent for the
Premises or any part thereof, whether paid under this Lease or otherwise, and
Landlord with consent of Tenant, hereby assigns to Agent that portion of such
rental payment constituting the aforesaid commission. If the term
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of this Lease is extended or renewed, or if this Lease is amended to cover
any other premises as an expansion of, renewal of, or substitute for, the
Premises herein leased or any part thereof, or if a new lease is entered
into between Landlord and Tenant covering the Premises, or any part
thereof, or covering any other premises as an expansion of, renewal of, or
substitute for the Premises herein leased or any part thereof, then in any
such said events, Landlord, in consideration of Agent having procured
Tenant hereunder, agrees to pay Agent 5 percent (5%) of all rental paid to
Landlord under such extensions, renewals, amendments or such new lease.
Agent agrees in the event Landlord sells Premises that upon Landlord's
furnishing Agent with an agreement signed by Purchaser, assuming Landlord's
obligations to Agent under this Lease, that Agent will release original
Landlord from any further obligations to Agent hereunder. Agent is a party
to this Lease solely for the purpose of enforcing its rights under this
Lease, and it is understood by all parties hereto that Agent is acting
solely in the capacity as Agent for Landlord, to whom Tenant may look as
regards all covenants, agreements and warranties herein contained.
38. USUFRUCT ONLY
This contract shall create the relationship of landlord and tenant; no
estate shall pass out of Landlord; Tenant has only a usufruct, not subject
to levy and sale.
39. STATUS REPORTS
Recognizing that Landlord may find it necessary from time to time to
establish to third parties such as accountants, banks, mortgagees or the
like, the then current status of performance hereunder, Tenant agrees
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upon the written request of Landlord, made from time to time by notice, to
furnish promptly a written statement (in recordable form, if requested) on the
status of any matter pertaining to this Lease to the best of the knowledge and
belief of the Tenant making such statement. This lease and all the agreements,
covenants and conditions contained herein shall be binding on the Landlord and
Tenant and upon their respective successors and assigns.
IN WITNESS WHEREOF the parties hereto have set their hands and seals on the
date and year first above written.
LANDLORD
METROPOLITAN LIFE INSURANCE COMPANY
/s/ /s/
- ------------------------------------ ----------------------------------------
By: Vice President
/s/ Judith J. Ross
- ------------------------------------
ATTEST: /s/
--------------------------------
By: Assistant Secretary
TENANT:
COMBUSTION ENGINEERING, INC.
/s/ /s/ R. J. Hallinan
- ------------------------------------ ----------------------------------------
By: Vice President
/s/ Patricia J. Sawyer
- ------------------------------------
/s/
----------------------------------------
ATTEST: Assistant Secretary
AGENT:
TAYLOR & MATHIS OF ALABAMA, INC.
/s/ Carroll M. Battey /s/
- ------------------------------------ ---------------------------------------
By: Chairman of the Board
/s/
- ------------------------------------
ATTEST:
/s/
----------------------------------------
By: Secretary
Page 43
52
STATE OF CONNECTICUT )
) S.S.
COUNTY OF FAIRFIELD )
BE IT REMEMBERED THAT on this 19th day of May 1980, before me, a
Notary Public in and for said State, personally appeared R. J. Hallinan, who
is personally known to me and known to me to be the identical person described
in and who executed the foregoing instrument, and such person duly acknowledged
to me the execution of the same as a free and voluntary act and deed for the
uses and purposes and consideration therein set forth.
WITNESS MY HAND AND OFFICIAL SEAL OF THIS OFFICE this day and year
above written.
/s/
Notary Public in and for
Fairfield County,
NOTARY PUBLIC
My Commission Expires March 31, 1985 (SEAL)
STATE OF GEORGIA )
)S.S.
COUNTY OF DEKALB )
BE IT REMEMBERED THAT on this 3rd day of July 1980, before me, a
Notary Public in for said State, personally appeared ____________________,
who is personally known to me and known to me to be the identical person
described in and who executed the foregoing instrument, and such person duly
acknowledged to me the execution of the same as a free and voluntary act and
deed for the uses and purposes and consideration therein set forth.
WITNESS MY HAND AND OFFICIAL SEAL OF THIS OFFICE this day and year
above written.
/s/
Notary Public in and for
DeKalb County,
Notary Public Georgia State at Large
My Commission Expires: 9-26-82 (SEAL)
Page 44
53
STATE OF )
) S.S.
COUNTY OF )
BE IT REMEMBERED THAT on this 30th day of June 1980, before me, a
Notary Public in and for said State, personally appeared C.M. Taylor, who is
personally known to me and known to me to be the identical person described in
and who executed the foregoing instrument, and such person duly acknowledged to
me the execution of the same as a free and voluntary act and deed for the uses
and purposes and consideration therein set forth.
WITNESS MY HAND AND OFFICIAL SEAL OF THIS OFFICE this day and year
above written.
/s/ Renee H. Williams
---------------------
Notary Public in and for
------------------------ County,
Notary Public, Georgia State at Large
My Commission Expires July 29, 1983 (SEAL)
Page 45
54
MEMORANDUM OF LEASE
This is a Memorandum of that certain unrecorded Lease dated July 3,
1980 between METROPOLITAN LIFE INSURANCE COMPANY, a New York Corporation,
Landlord, whose address is 47 Perimeter Center East, Suite 650, Atlanta,
Georgia 30346, and COMBUSTION ENGINEERING, INC., a Delaware Corporation,
Tenant, whose address is Inverness Center, Building 31, Birmingham, Alabama
35243, concerning the premises described in Exhibit A attached hereto and made
a part and made a part hereof by reference.
For good and valuable consideration, Landlord leases the premises,
together with all appurtenances and easements thereto to Tenant, for the term
and under the provisions contained in the above-mentioned unrecorded Lease,
which unrecorded Lease is incorporated in this Memorandum by this reference.
Tenant is also entitled to the use of parking areas and common eating facility
area in the basement of the leased premises, all as described in said
unrecorded Lease, for the term of the Lease.
The term of the Lease is to commence when the demised premises are
completed constructed and ready for occupancy, according to the terms of the
unrecorded Lease, but no later than January 1, 1981, and will run for a term of
five (5) years; ending no later than January 1, 1986.
Tenant has an option and right to renew this lease for three (3)
successive periods of five (5) years each, subject to the terms and conditions
of the Lease.
This Memorandum is not a complete summary of the above-mentioned
unrecorded Lease. Provisions in this Memorandum shall not be used in
interpreting the lease provisions. In the event of conflict between
Page 46
55
the Memorandum and the recorded Lease, the unrecorded Lease shall control.
IN WITNESS WHEREOF the parties hereto have set their hands and seals
on the date and year first above written.
LANDLORD:
METROPOLITAN LIFE INSURANCE COMPANY
/s/ By: /s/
------------------------ ------------------------
Vice President
/s/ Judith J. Ross
------------------------
TENANT: COMBUSTION ENGINEERING, INC.
/s/ By: /s/ R.J. Hallinan
------------------------ ------------------------
/s/ Patricia J. Sawyer
------------------------
Page 47
56
STATE OF GEORGIA )
)
COUNTY OF DEKALB )
I, the undersigned, a Notary Public in and for said County in said State,
hereby certify that C.E. Sayres, whose name as Vice President of Metropolitan
Life Insurance Company, corporation, is signed to the foregoing conveyance, and
who is known to me, acknowledged before me on this day that, being informed of
the contents of this Memorandum of Lease, he, as such officer and with full
authority, executed the same voluntarily for and as the act of said corporation.
GIVEN UNDER MY HAND AND OFFICIAL SEAL, this the 3rd day of July, 1980.
/s/ Judith J. Ross
----------------------------------------
Notary Public
Notary Public Georgia State at Large
My Commission Expires: 9-26-82
(SEAL)
STATE OF CONNECTICUT )
)
COUNTY OF FAIRFIELD )
I, the undersigned, a Notary Public in and for said County in said State,
hereby certify that R.J. Hallinan, whose name as Vice President of COMBUSTION
ENGINEERING, INC., a corporation, is signed to the foregoing conveyance, and
who is known to me, acknowledged before me on this day that, being informed of
the contents of this Memorandum of Lease, he, as such officer and with full
authority, executed the same voluntarily for and as the act of said corporation.
GIVEN UNDER MY HAND AND OFFICIAL SEAL, this the 19th day of May, 1980.
/s/ Ruth M. Storch
----------------------------------------
Notary Public
NOTARY PUBLIC
My Commission Expires: March 31, 1985
(SEAL)
57
EXHIBIT A
The demised premises are a part of a six-story office building, being known as
31 Inverness Center, and being located on Site 7, Inverness Office Park, which
has a legal description as follows:
A part of the Northwest Quarter of the Southwest Quarter of Section
36, Township 18 South, Range 2 West, and the Northeast Quarter of the
Southeast Quarter of Section 35, Township 18 South, Range 2 West,
being more particularly described as follows: Commence at the
Southwest Corner of the Northwest Quarter of the Southwest Quarter and
sighting North along the West line of said Quarter-Quarter Section
turn an angle left of 44 degrees 12 feet and run Northwesterly 354.20
feet; thence, turn an angle right of 78 degrees 37 feet and run
Northeasterly 638.56 feet; thence, turn right 30 degrees 46 feet 30
inches and run Northeasterly 225.67 feet; thence, turn right 90
degrees 42 feet and run Southeasterly 372.33 feet to the Point of
Beginning of the tract herein described, said point being on the 496
foot contour of Lake Heather; thence, an angle right of 180 degrees
and run Northwesterly 290.25 feet to the right-of-way of Inverness
Center Arterial Road; thence backsighting on last course turn an
interior angle right of 87 degrees 18 feet and run Southwesterly 80.69
feet to a point of curve to the left; running thence along said curve,
having a chord measuring 398.34 feet that forms an interior angle of
164 degrees 42 feet 30 inches, an arc distance of 403.11 feet (said
curve having a radius of 755.19 feet and central angle of 30 degrees
35 feet); thence, backsighting on last course turn an interior angle
right of 164 degrees 42 feet 30 inches to chord of said curve and run
along said southerly right-of-way in a Southwesterly direction 150.86
feet; thence, backsighting on last course turn an interior angle right
of 102 degrees 03 feet 30 inches and run Southeasterly 269.97 feet;
thence, backsighting on last course, turn an interior angle right of
141 degrees 30 feet and run Southeasterly 107.44 feet to the 496 foot
contour of Lake Heather; thence following the meanderings of 496 foot
contour to the Point of Beginning.
58
PAGE TWO
8. If tenants require wiring for bell or buzz system, such wiring shall
be done by the electrician of the building only, and no outside wiring men will
be allowed to do work of this kind unless by the written permission of Landlord,
or its representatives. If telegraphic or telephonic service is desired, the
wiring for same shall be done as directed by the electrician of the building or
by some other employee of Landlord who may be instructed by the Superintendent
of the Building to supervise same, and no boring or cutting for wiring shall be
done unless approved by Landlord or its representatives, as stated. The electric
current shall be used for customary office purposes only, unless written
permission to do otherwise shall first have been obtained from Landlord, or its
representative, and at an agreed cost to tenants.
9. The Landlord, and its agents, shall have the right to enter the Premises at
all reasonable hours for the purpose of making any repairs, alterations, or
additions which it shall deem necessary for the safety, preservation, or
improvement of said building, and the Landlord shall be allowed to take all
material into and upon said Premises that may be required to make such repairs,
improvements, and additions, or any alterations for the benefit of the Tenant
without in any way being deemed or held guilty of an eviction of the Tenant; and
the rent reserved shall in no wise abate while said repairs, alterations, or
additions are being made; and the Tenant shall not be entitled to maintain a
set-off or counterclaim for damages against the Landlord by reason of loss or
interruption to the business of the Tenant because of the prosecution of any
such work. All such repairs, decorations, additions, and improvements shall be
done during ordinary business hours, or, if any such work is at the request of
the Tenant to be done during any other hours, the Tenant shall pay for all
overtime costs.
10. Landlord reserves all vending rights. Requests for such service will be
made to Landlord.
11. The Landlord reserves the right 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 for the preservation of good
other therein.
59
LEASEHOLD IMPROVEMENTS
UNIT PRICES FOR COMBUSTION ENGINEERING
1. Supply and install Lessor's standard interior 9'0"
drywall partitions (1/2" gypsum wallboard both side
of 3 5/8" metal studs), painted both sides. $ 20.63/LFT*
2. Supply and install Lessor's standard interior
3'0" X 7'0" high pressure laminate faced solid core
doors in painted metal frames, complete with latch
set hardward (no closer). $ 353.63/ea.
3. Supply and install Lessor's standard wall-mounted
duplex grounded type receptacles completely circuited
to 120 volt panel in drywall. $ 39.20/ea.
4. Supply and install Lessor's standard wall-mounted
telephone outlets in drywall. $ 11.20/ea.
$ 1.74/LFT for
1" conduit.
5. Supply and install Lessor's standard single pole
wall-mounted silent electric switches in drywall. $ 39.20/ea.
6. Supply and install Lessor's standard 2' X 4' four
lamp recessed fluorescent lighting fixtures. $ 73.74/ea.
7. Supply and install Lessor's standard J.J. Industries
2600-Z 26 ounce carpet (direct glue-down) throughout
the leased area. $ 9.25/sq.yd.
8. Supply and install Lessor's standard entrance door,
3'0" X 8'9 1/4" complete with closer and hardware. $ 548.51/ea.
9. Supply and install building standard 4" covered vinyl
base (with tab corners). $ .55/LFT
10. Supply and install paid of Lessor's standard tenant
entrance doors, 3'0" X 8'9 1/4", high pressure laminate
faced (both sides), edge bound, solid core doors in
welded metal frames complete with closer and hardware. $ 841.27/ea.
*Price of $20.63 per lineal foot is applicable only to work completed
by August 1, 1980.
EXHIBIT "C"
60
[TAYLOR&MATHIS LOGO]
INVERNESS
Post Office Box 43248
Birmingham, Alabama 35243-0248
(205) 991-8600
(205) 980-5266 Fax
Real Estate Development, Management and Brokerage
Atlanta - Birmingham - Miami
May 24, 1995
VIA U.S. MAIL
Mr. Thomas H. Ogiba
Director of Project Services
Asea Brown Boveri
31 Inverness Center
Fourth Floor
Birmingham, Alabama 35242
RE: Second Agreement Amending Lease by and between Metropolitan Life Insurance
Company, Inc., a New York Corporation ("Landlord") and Taylor & Mathis,
Inc. ("Leasing Agent") and ABB Environmental Systems, Inc., successor in
interest to Combustion Engineering, Inc., ("Tenant").
Dear Tom:
Enclosed please find one (1) fully executed original of the above referenced
Second Amending Lease Agreement for ABB's space at 31 Inverness Center.
Tom, if you have any questions or need any additional information, please do
not hesitate to call me.
Very truly yours,
/s/ R. William Pradat, Jr.
- ------------------------------------
R. William Pradat, Jr.
Vice President - Marketing
RWP:kn
Enclosure
61
SECOND AGREEMENT AMENDING LEASE
STATE OF ALABAMA
COUNTY OF SHELBY
THIS AGREEMENT, entered into this 28th day of April, 1995, by and
between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter called "Landlord"); and ABB ENVIRONMENTAL SYSTEMS, INC., successor
in interest to COMBUSTION ENGINEERING, INC. (hereinafter called "Tenant"); and
TAYLOR & MATHIS IV, a Georgia general partnership (hereinafter called "Leasing
Agent"):
W I T N E S S E T H
WHEREAS, by Lease dated July 3, 1980, and First Agreement Amending
Lease dated January 22, 1982, Landlord leased to Tenant certain premises
located in Birmingham, Alabama, and more particularly known as 31 Inverness
Center, Suite 600, Birmingham, Alabama 35242 (hereinafter called the
"Premises"), commencing September 1, 1980, and ending September 30, 1995;
WHEREAS, Landlord and Tenant mutually agree to modify the Lease as
described below; and
WHEREAS, Landlord and Tenant mutually agree to extend the Lease term;
and
WHEREAS, Landlord agrees to leasehold improve the Premises; and
WHEREAS, Landlord and Tenant mutually agree to document said amendment;
NOW THEREFORE, in consideration of the mutual promises, obligations,
and covenants contained in said Lease, as hereby amended, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. The Lease Term as stated in Article 2 of the Lease is hereby
extended, such that the Lease shall now expire on September 30,
2000.
2. Effective October 1, 1995, the upper floor monthly base rental as
stated in Paragraph 4 of the Lease shall be $49,849.12, which is
$598,189.44 per annum.
62
3. Landlord shall provide a leasehold improvement allowance of
$2000,000.00 to leasehold improve the Premises. Any cost of
construction and design in excess of said allowance shall be paid by
Tenant to Landlord in one (1) payment which shall be due within thirty
(30) days of receipt of Landlord's invoice.
4. Provided (1) Tenant is not then in default, and provided that Tenant
has paid all sums due in a timely manner in strict accordance with the
terms and provisions of this Lease, and provided Tenant has not
assigned or sublet all or any portion of the Premises, and provided
that it is in the interest of Landlord at the time to negotiate with
Tenant for an extension of the Term, then, Tenant shall have the right
to extend this Lease (hereinafter the "Extension Right"), commencing
immediately upon the expiration of the initial Term of the Lease. Said
Extension Right shall be subject further to the following conditions.
(i) Tenant shall notify Landlord no earlier than nine (9)
months prior to the expiration of the initial Lease Term that
it desires to negotiate a rental rate for the Extension Term.
(ii) The rental rate for the Extension Term shall be the
mutually acceptable rental rate to be negotiated between the
parties at that time, which rate shall be determined prior to
the exercise of the Extension Right pursuant to (iii) below.
If the parties are unable to agree upon the rate prior to the
date by which the Extension Right must be exercised, the
Extension Right shall thereby be declared null and void and of
no further force or effect.
(iii) Tenant shall have exercised its Extension Right by
providing Landlord with written notice at least one hundred
eighty (180) days prior to the expiration of the Term.
(iv) All other terms, covenants and provisions of the Lease
shall continue in full force and effect during the Extension
Term of the Lease.
This Lease is hereby amended, ratified, confirmed and continued in all respects
except for those items stated above and all such covenants, terms and conditions
of the Lease are hereby incorporated by this reference.
63
IN WITNESS WHEREOF, this agreement is executed as of the date above
written.
Signed, sealed and delivered in LANDLORD: METROPOLITAN LIFE INSURANCE
the presence of: COMPANY, a New York corporation
/s/ By: /s/
- ------------------------------- ------------------------
Witness Assistant Vice President
/s/
- -------------------------------
Notary Public
Notary Public, Cobb County,
Georgia. My Commission Expires
May 19, 1998.
Signed, sealed and delivered in TENANT: ABB ENVIRONMENTAL SYSTEMS, INC.,
the presence of: DIV. OF ABB FLAKT, successor in
interest to COMBUSTION
ENGINEERING, INC.
/s/ By: /s/ James H. Miller
- ------------------------------- ------------------------
Witness Name: James H. Miller
Title: President
/s/ By: /s/ Thomas E. Liggett
- ------------------------------- ------------------------
Notary Public Name: Thomas E. Liggett
Title: Secretary
MY COMMISSION EXPIRES AUGUST 9, 1997
LEASING
Signed, sealed and delivered in AGENT: TAYLOR & MATHIS IV, a Georgia
the presence of: general partnership
/s/ By: /s/
- ------------------------------- ------------------------
Witness
/s/
- -------------------------------
Notary Public
Notary Public, Dekalb County, Georgia
My Commission Expires September 28, 1996
64
THIRD AGREEMENT AMENDING LEASE
STATE OF ALABAMA
COUNTY OF SHELBY
THIS AGREEMENT, entered into this 26th day of June, 1996, by and
between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter called "Landlord"); and ABB ENVIRONMENTAL SYSTEMS, INC., successor
in interest to COMBUSTION ENGINEERING, INC. (hereinafter called "Tenant"); and
TAYLOR & MATHIS IV, L.P., a Georgia limited partnership (hereinafter called
"Leasing Agent"):
W I T N E S S E T H
WHEREAS, by Lease dated July 3, 1980, and First Agreement Amending
Lease dated January 22, 1982, and Second Agreement Amending Lease dated April
28, 1995, Landlord leased to Tenant certain premises located in Birmingham,
Alabama, and more particularly known as 31 Inverness Center, Suite 600,
Birmingham, Alabama 35242 (hereinafter called the "Premises"), commencing
September 1, 1980, and ending September 30, 2000;
WHEREAS, the parties hereto have mutually agreed to a reduction in the
Premises in accordance with the terms, conditions and agreements hereinafter
set forth; and
WHEREAS, all parties wish to document said reduction.
NOW, THEREFORE, in consideration of the covenants contained herein,
the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Provided Tenant has performed strictly in accordance with all terms
hereof, and is in full compliance with all provisions contained in this
Agreement, then, effective June 1, 1996, which date shall be referred to as the
"Termination Date", the Premises shall be reduced by the entire area on the
Sixth Floor of 31 Inverness Center (15,770 square feet) hereinafter referred to
as the "Relinquished Area".
2. Tenant agrees that on or before the Termination Date, Tenant shall
have (i) paid the Termination Fee in accordance with Paragraph 4 below and as
defined therein, and all rents due under the Lease through the Termination
Date, (ii) satisfied all of its other obligations under the Lease through the
Termination Date, and (iii) vacated and returned possession of the Relinquished
Area to the Landlord in "broom clean" condition on or before the Termination
Date.
3. Effective June 1, 1996, the upper floor monthly base rental as stated
in Paragraph 4 of the Lease shall be reduced by $14,068.52 which is $168,822.24
per annum.
4. In consideration of this reduction of the Premises as of the
Termination Date, upon execution of this Third Agreement Amending Lease, Tenant
agrees to pay Two Hundred Twenty Thousand and No/100 Dollars ($220,000.00) to
Metropolitan Life Insurance Company, which amount shall hereinafter be referred
to as the "Termination Fee". Tenant hereby acknowledges that Landlord has
incurred expenses associated with its obligations under the Lease, including
but not limited to, space planning and design fees, construction expenses,
brokerage fees, opportunity costs with respect to the marketing of the
Premises, and administrative expenses in connection with all of the foregoing,
and Tenant hereby acknowledges that the Landlord will suffer damages as a
result of this reduction in the Premises, consequently, the Termination Fee
shall be deemed to be
65
as a result of this reduction in the Premises, consequently, the Termination Fee
shall be deemed to be compensation to Landlord for the damages incurred as a
result of said reduction, and the Termination Fee shall not be deemed to be a
penalty. Receipt of the Termination Fee shall be Landlord's exclusive remedy for
Tenant's reduction of the Premises.
5. Upon Tenant's full compliance with all provisions contained herein on or
before the Termination Date, then, as of the Termination Date, Landlord, Tenant
and Leasing Agent mutually release and discharge one another from, and
acknowledge full accord, satisfaction and final settlement of any and all
claims, demands, causes of action, liabilities, indebtedness or obligations of
any kind or nature, whether known or unknown, whether contingent or
speculative, which one may have against either or both of the others arising
out of or in any way related to the Lease for the Relinquished Area, including
without limitations, claims for future rent charges and other amounts under the
Lease. As of the Termination Date, Landlord, Leasing Agent and Tenant shall
have no further rights or obligations under the Lease and all obligations and
rights thereunder shall cease and are extinguished, however, it is expressively
agreed that Landlord and Tenant obligations under the Lease with respect to
operating expenses of the Relinquished Area shall be reconciled and settled in
accordance with Landlord's annual accounting of operating expenses.
66
LEASE AMENDMENT
THIS LEASE AMENDMENT made as of this 4th day of February , 1981,
between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation with a
principal place of business at One Madison Avenue, New York, New York 10010
(hereinafter referred to as "Landlord"), COMBUSTION ENGINEERING, INC., a
corporation of the State of Delaware, with a principal place of business at
1000 Prospect Hill Road, Windsor, Connecticut 06095 (hereinafter referred to as
"Tenant"), and TAYLOR & MATHIS OF ALABAMA, INC., a Georgia corporation
(hereinafter referred to as "Agent").
NOW THEREFORE, in accordance with Article 2 of the lease agreement
made as of July 3, 1980, between the parties and in consideration of the
premises and the mutual and dependent promises hereinafter set forth, the
parties hereto do hereby agree as follows:
1. The date of full occupancy and rental commencement under the lease
is September 2, 1980.
2. The "Commencement Date" of the lease agreement between the parties
as defined in Article 2 of the lease shall for all purposes mean and be October
1, 1980.
3. The "Termination Date" of the initial term of the lease agreement
between the parties as defined in Article 2 of the lease shall for all purposes
mean and be September 30, 1985.
4. Upon execution and delivery of this amendment it shall be deemed
to be and shall become a part of the lease agreement as if such agreement had
been set forth in the lease in its entirety at
67
the time of the original execution and delivery thereof.
IN WITNESS WHEREOF the parties hereto have executed this instrument the
day and year first above written.
LANDLORD
METROPOLITAN LIFE INSURANCE COMPANY
/s/ /s/
- ---------------------------------- ----------------------------------------
By Assistant Vice President
/s/ JUDITH J. ROSS ATTEST: /s/
- ---------------------------------- ---------------------------------
By Assistant Secretary
TENANT
COMBUSTION ENGINEERING, INC.
/s/ P. J. SAWYER By: /s/ R. J. HALLINAN
- ---------------------------------- --------------------------------------
/s/ V. R. COLLINS ATTEST: /s/
- ---------------------------------- ----------------------------------
By
AGENT
TAYLOR & MATHIS OF ALABAMA, INC.
/s/
- ---------------------------------- ----------------------------------------
By
ATTEST: /S/ E. H. AVERY
- ---------------------------------- ---------------------------------
By: E. H. Avery, Secretary
-2-
68
IN WITNESS WHEREOF, the parties hereto have herein set their hands and
seals, effective as of the date first above written.
Signed, sealed and delivered LANDLORD: METROPOLITAN LIFE INSURANCE
by Landlord in the presence of: COMPANY, a New York corporation
/s/
- ------------------------------ By: ------------------------------
Witness J. Samuel O'Briant
Equity Investment Manager
/s/ Heather Jarvis
- ------------------------------
Notary Public
NOTARY PUBLIC, GWINNETT COUNTY, GEORGIA
MY COMMISSION EXPIRES SEPT. 20, 1998
(NOTARIAL SEAL)
Signed, sealed and delivered by TENANT: ABB ENVIRONMENTAL SYSTEMS, INC.
Tenant in the presence of: successor in interest to
COMBUSTION ENGINEERING, INC.
/s/ By: /s/
- ------------------------------ --------------------------------------
Witness Title Senior Vice President & General Mgr.
------------------------------------
/s/
- ------------------------------
Notary Public
My Commission Expires: 5/28/97
STATE OF TENNESSEE AT LARGE
(NOTARIAL SEAL) (CORPORATE SEAL)
Signed, sealed and delivered by LEASING AGENT: TAYLOR & MATHIS IV, L.P.,
Agent in the presence of: a Georgia limited partnership
/s/ By: /s/
- ----------------------------- --------------------------------------
Witness E. H. Avery
Executive Vice President - Operations
/s/
- -----------------------------
Notary Public
NOTARY PUBLIC, DEKALB COUNTY, GEORGIA
MY COMMISSION EXPIRES SEPTEMBER 28, 1998
My Commission Expires:
(NOTARIAL SEAL)
69
EXHIBIT "B"
RULES AND REGULATIONS
(Which are referred to in the within Lease and made a part thereof.)
1. The sidewalks, entry passages, corridors, halls, elevators and stairways
shall not be obstructed by tenants, or used by them for any purpose other than
those of ingress and egress. The floors, skylights and windows that reflect or
admit light into any place in said building, shall not be covered or obstructed
by tenants. The water closets and other water apparatus shall not be used for
any other purpose than those for which they were constructed, and no sweepings,
rubbish, or other obstructing substances shall be thrown therein.
2. No advertisement, sign or other notice, shall be inscribed, painted or
affixed on any part of the outside or inside of said building, except upon the
interior door and windows permitted by Landlord, which signs, etc., shall be of
such order, size and style, and at such places as shall be designated by
Landlord. Interior signs on doors will be provided for tenants by Landlord, the
cost of the signs to be paid by tenants.
3. Nothing shall be thrown by tenants, their clerks or servants out of the
windows or doors, or down the passages or skylights of the building. No
rooms shall be occupied or used as sleeping or lodging apartments at any time.
4. Tenants shall not employ any persons other than the janitors of Landlord
(who will be provided with pass-keys into the offices) for the purpose of
cleaning or taking charge of said premises. It is understood and agreed that
the Landlord shall not be responsible to any tenant for any loss of property
from rented premises, however occurring, or for any damage done to the
furniture or other effects of any tenant by the janitor or any of its employees,
unless through negligence of Landlord.
5. No animals, birds, bicycles or other vehicles shall be allowed in the
offices, halls, corridors, elevators or elsewhere in the building.
6. All tenants and occupants shall observe strict care not to leave their
windows or doors open when it rains or snows, or while air-conditioning or
heating systems are in operation, and, for any fault or carelessness in any of
these respects, shall make good any injury sustained by other tenants, and to
Landlord for damage to paint, plastering or other parts of the building
resulting from such default or carelessness. No painting shall be done, nor
shall that be any nailing, boring or screwing into the woodwork or plastering,
nor shall any connection be made to the electric wires or electric fixtures,
without the consent in writing on each occasion of Landlord or its Agent. 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 under the direction and to
the satisfaction of Landlord, or its Agent, and shall be left whole and in good
repair. Tenants shall not injure, overload, or deface the building, the
woodwork or the walls of the Premises, nor carry on upon the Premises any
noisesome, noxious, noisy, or offensive business.
7. The tenant shall not (without the Landlord's written consent) put up or
operate any steam engine, boiler, machinery or stove upon the Premises, or
carry on any mechanical business thereon, or use or allow to be used upon the
Premises oil, burning fluids, camphene, gasoline, or kerosene for heating,
warming, or lighting. No article deemed extra hazardous on account of fire and
no explosives shall be brought into said premises. No offensive gases or
liquids shall be permitted.
70
COUNTY OF SHELBY
THIS AGREEMENT, dated this 22nd day of January, 1982 between METROPOLITAN
LIFE INSURANCE COMPANY, a New York Corporation, with a principal place of
business at One Madison Avenue; New York, New York 10010, (hereinafter referred
to as "Landlord") and COMBUSTION ENGINEERING, INC., a corporation of the State
of Delaware, with a principal place of business at 1000 Prospect Hill Road;
Windsor, Connecticut, (hereinafter referred to as "Tenant"), and TAYLOR &
MATHIS OF ALABAMA, INC., a Georgia corporation, (Hereinafter referred to as
"Agent").
W I T N E S S E T H:
WHEREAS, by Lease dated July 3, 1980, Landlord leased to Tenant certain
space in an office building located at 31 Inverness Center, Birmingham,
Alabama, (hereinafter referred to as the "Lease"); and
WHEREAS, the parties hereto wish to amend said Lease as hereby amended;
NOW, THEREFORE, in consideration of the mutual promises, obligations, and
covenants contained in said Lease, the parties hereto, intending to be legally
bound, do hereby agree as follows:
(1)
The square footage under Article 1 is increased 2,832 square feet on the
third floor, as shown on Exhibit "A" attached, making the total area FIFTY-FIVE
THOUSAND EIGHT HUNDRED SEVENTY-EIGHT (55,878) net rentable square feet of
office space on floors three, four, five, and six; and THREE THOUSAND (3,000)
usable square feet of basement space.
(2)
Tenant agrees to pay Landlord an additional base monthly rental of TWO
THOUSAND ONE HUNDRED EIGHTY-THREE DOLLARS ($2,183.00) plus accumulated
escalations as determined by Article 4 of the Lease effective upon completion
of the Tenant's work necessary to prepare the space of occupancy as indicated
on Exhibit A attached hereto and made a part hereof. The total amended base
rental during each year of the term of this Lease shall be FIVE HUNDRED
TWENTY-EIGHT THOUSAND EIGHT HUNDRED SEVENTY-ONE