BIRMINGHAM REALTY COMPANY
STATE OF ALABAMA) 2118 First Avenue North
Birmingham, Alabama 35203
JEFFERSON COUNTY) Telephone: (205) 322-7789
LEASE AGREEMENT
PERIMETER PARK SOUTH
THIS AGREEMENT, made and entered into on the 25th day of May,
1993, between BIRMINGHAM REALTY COMPANY (hereinafter called 'Landlord') and
CRESCENT CAPITAL TRUST (hereinafter called 'Tenant'), is to witness that:
Landlord does this day lease unto Tenant and Tenant does lease from Landlord
the following described space (herein called Premises) being approximately 1500
square feet located on the Third Floor South in the building known as ONE
PERIMETER PARK SOUTH, at the address of ONE PERIMETER PARK SOUTH, SUITE 335
SOUTH, BIRMINGHAM, ALABAMA 35243, in Jefferson County, Alabama. Premises are
more particularly shown and outlined on the plan attached hereto as Exhibit 'A'
and as the Premises shall be finished or remodeled as specified in Work Letter
Agreement attached hereto as Exhibit 'B', both made a part hereof.
1. TERM:
(a) The Term of this lease shall commence on the 1st day of
June, 1993, and end at 6:00 p.m. on the 31st day of May, 1994. The Tenant
agrees to pay each month as Base Rent for the Premises to Birmingham Realty
Company at 2118 First Avenue North, Birmingham, Alabama 35203, the sum of Six
Hundred Forty Six and 25/100------------------ Dollars ($646.25), being at the
rate of Seven Thousand Seven Hundred Fifty Five and No/100---------------
Dollars ($7,755.00) per annum, which sum shall be payable in advance on the
first day of each month during the rental period of this Lease, or sooner if
accelerated under the subsequent provisions hereof. The first month's base
rent shall be paid contemporaneously with the execution of this Lease by
Tenant. Lessee agrees that a Service and Bookkeeping Charge of 5% shall become
due and payable each and every month that the Rent has not been received in the
office of Birmingham Realty Company by the tenth (10th) of the month.
(b) It is understood that the Base Rent specified in
Paragraph (a) does not anticipate any increase in the amount of taxes on the
Property or in the cost of operations and maintenance thereof. Therefore, in
order that the rental payable throughout the term of the Lease shall reflect
any such increase, the parties agree as hereinafter in this Section set forth.
The Annual Base Rent payable pursuant to Paragraph (a) as increased pursuant to
Paragraphs (b) and (c) of this Section is hereinafter called the 'Rent', which
Tenant agrees to pay.
Certain terms are defined as follows:
Base Year: The Base Year for Taxes and Operating
Expenses shall be the full calendar year of 1993.
Tenant's Share: For each calendar year commencing with the
calendar year immediately following the Base Year, the Tenant's pro rata share
of the increase in Taxes and Operating Expenses over the Base Year. The
Tenant's Share is agreed to be 1.05% of such increase.
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Taxes: (i) all real estate taxes, including state equalization
factor, if any, payable (adjusted after protest or litigation, if any) for any
part of the term of this Lease, exclusive of penalties or discounts, on the
Property, (ii) any taxes which shall be levied in lieu of any such taxes, such
as taxes on the gross rentals of the Property, (iii) any special assessments
against the Property which shall be required to be paid during the calendar
year in respect to which taxes are being determined, and (iv) the expense of
contesting with Tenant's prior approval, the amount or validity of any such
taxes, charges, or assessments; such expense to be applicable to the period of
the item contested. The landlord reserves the right to recompute the
additional rent due hereunder in the event of a change of Taxes for the Base
Year and the Tenant agrees to pay such additional rent when billed.
Operating Expenses: Those expenses incurred or paid on
behalf of the Landlord in respect of the operation and maintenance of the
Property which, in accordance with accepted principles of sound accounting
practice used by the Landlord, as applied to the operation, management and
maintenance of first class office buildings, are properly chargeable to the
operation and maintenance of the Property, and the cost, as reasonably
amortized by the Landlord, with interest at the Prime Rate on the unamortized
amount of any capital improvement made after the Base Year which reduces other
Operating Expenses, but in an amount not to exceed such reduction for the
relevant year. Operating Expenses shall not include depreciation, debt
service, franchise or income taxes imposed on the landlord, except to the
extent hereinbefore provided, and the cost to the Landlord of any work or
service performed in any instance for any tenant (including the Tenant) at the
cost of such Tenant. If Landlord shall make any capital improvement after the
Operating Expense Base Year during the term of this Lease in compliance with
the requirements of any federal, state, or local law or governmental regulation,
then the reasonable annual amortization of the cost of such improvement, with
interest at the Prime Rate from the time of completion of such improvement,
shall be deemed an Operating Expense in each of the calendar years during which
such amortization is charged. The 'Prime Rate' shall be computed and adjusted
on a daily basis for each installment based on the prime rate in force from
time to time during the period with respect to which such installment is being
calculated. The term 'Prime Rate' shall mean the rate announced as such by
Chase Manhattan Bank or its successors at its principal office, but shall in no
event exceed the maximum rate provided by applicable law.
In determining the amount of Operating Expenses for the
purpose of this Section, for the Base Year or for any subsequent calendar year,
(i) if less than 95% of the Building shall have been occupied by tenants and
fully used by them, at any time during the year. Operating Expenses shall be
increased to an amount equal to the like operating expense which would normally
be expected to be incurred, had such occupancy been 95% and had such full
utilization been made during the entire period, or (ii) if the Landlord is not
furnishing any particular work or service (the cost of which if performed by
the Landlord would constitute an Operating Expense) to a tenant who has
undertaken to perform such work or service in lieu of the performance thereof
by the Landlord, Operating Expenses shall be deemed for the purposes of this
Section
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to be increased by an amount equal to the additional operating expense which
would reasonably have been incurred during such period by the Landlord if it
had at its own expense furnished such work or service to such tenant. The
Operating Expenses for the Base Year are estimated by the Landlord to be $5.17
per square foot of the Premises.
(c) In order to provide for current payments on account of any
increase in the Taxes and Operating Expenses over the Base Year, the Tenant
agrees, at Landlord's request, to pay as additional rent Tenant's Share due for
the ensuing twelve (12) months, as estimated by Landlord from time to time, in
twelve (12) monthly installments, each in an amount equal to 1/12th of Tenant's
Share so estimated by Landlord commencing on the first day of the month
following the month in which Landlord notifies Tenant of the amount of such
estimated Tenant's Share. If, as finally determined, Tenant's share shall be
greater than or to be less than the aggregate of all installments so paid on
account to the Landlord for such twelve (12) month period, then Tenant shall
pay to the Landlord the amount of such underpayment when billed, or the
Landlord shall credit Tenant for the amount of such overpayment as the case
may be. It is the intention hereunder to estimate the amount of Taxes and
Operating Expenses for each year and then to adjust such estimate in the
following year based on actual Taxes and Operating Expenses incurred and/or
paid by Landlord for the period Tenant occupies Premises. The obligation of
the Tenant with respect to the payment of Rent shall survive the termination of
this Lease. Any payment, refund, or credit made pursuant to this Paragraph (c)
shall be made without prejudice to any right of the Tenant to dispute or of
the Landlord to correct any item(s) as billed pursuant to the provisions
hereof.
(d) Upon receipt of the Landlord's statement, Tenant does
hereby covenant and agree promptly to pay the increases in Rent pursuant to
Paragraphs (b) and (c) of this Section as and when the same shall become due
and payable, without further demand therefor, and without any setoff or
deduction whatsoever. Failure to give such statement shall not constitute a
waiver by Landlord of its right to require an increase in Rent nor shall such
failure deprive Tenant of a decrease in Rent, as the case may be.
(e) Within thirty (30) days after receipt of such statement,
Tenant or its authorized employee shall have the right to inspect the books of
Landlord during the business hours of Landlord at Landlord's office in the
Building or, at Landlord's option, at such other location that Landlord may
specify for the purpose of verifying information in such statement. Unless
Tenant asserts specific error(s) within thirty (30) days after delivery of such
statement, the statement shall be deemed to be correct.
(f) No decrease in Taxes, Interest and/or Operating Expenses
shall reduce Tenant's Rent below the annual Base set forth in Paragraph (a) of
this Section.
(g) All costs and expenses which Tenant assumes or agrees to
pay to Landlord pursuant to this Lease shall be deemed additional rent and, in
the event of nonpayment thereof, Landlord shall have all the rights and
remedies herein provided for in case of nonpayment of Rent.
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2. SERVICES:
The Landlord shall provide at Landlord's expense,
except as otherwise provided, the following services:
(a) Heating and air conditioning service (8:00 a.m.
to 6:00 p.m. Mondays through Fridays; and 8:00 a.m. to 12:00 p.m. on Saturdays;
Sundays and legal holidays excepted).
(b) Continuous passenger elevator service.
(c) General cleaning and janitor services, but not
including cleaning of drapes and furniture, except for normal vacuuming and
dusting.
(d) Electric current for lighting and operation of
fluorescent tubes and incandescent bulbs in Building Standard lighting
fixtures and electrical current for operating small business machinery only
using 110 volt, 20 amp circuits.
(e) Cold drinking water in the corridor on each floor
in the Building.
(f) Men's and women's restrooms on each floor and
toilet supplies therefor.
Tenant shall be responsible for (1) the cost of
electricity or additional air conditioning required for special equipment that
may be installed by Tenant or because of unusually large number of personnel
in the premises; (2) the cost of any extraordinary or excessive consumption of
electricity, water, or other utilities by Tenant; (3) paying a reasonable
amount, not to exceed $5.00 per hour for the use of electricity beyond the time
electricity is provided by Landlord pursuant to subparagraph (a) above; and (4)
paying a reasonable amount, not to exceed $10.00 per hour for use of heating
and air conditioning service beyond time same is provided by Landlord pursuant
to subparagraph (a) above. The hourly rates above specified shall be adjusted
to the percentage of increase granted by the Alabama Public Service Commission.
Should Tenant require any additional work or service,
including but not limited to the additional work or service described above,
including service furnished outside the stipulated hours, Landlord may, on
terms to be agreed upon in reasonable advance notice by Tenant, furnish such
additional service and Tenant agrees to pay the Landlord such charges as may be
agreed on, but in no event at a charge less than Landlord's actual cost plus
overhead for the additional services provided, it being agreed that the cost to
the Landlord of such additional services shall be excluded from Operating
Expense.
It is understood that Landlord does not warrant that
any of the services referred to above or any other services which Landlord may
supply will be free from interruption; Tenant acknowledging that any one or
more such services may be suspended by reason of accident or of repairs,
alterations, or improvements necessary to be made, or by strikes or lockouts,
or by reason of operation of law, or causes beyond the reasonable control of
Landlord. Any such interruption of discontinuance of service shall never be
deemed an eviction or disturbance of Tenant's use and possession of the
Premises, or any part thereof, or render Landlord liable to Tenant for damages
by abatement of rent or otherwise, or relieve Tenant from performance of
Tenant's obligations under this Lease. Landlord agrees to use its best
efforts to promptly restore services.
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3. QUIET ENJOYMENT
So long as the Tenant shall observe and perform the
covenants and agreements binding on it hereunder, the Tenant shall at all
times during the term herein granted peacefully and quietly have and enjoy
possession of the Premises without any encumbrance or hindrance by, from, or
through the Landlord.
4. CERTAIN RIGHTS RESERVED TO THE LANDLORD
The Landlord reserves all rights not herein specified
granted including without limitation the following:
(a) To name the Building and to change the name or
street address of the Building.
(b) To install and maintain a sign or signs on the
exterior or interior of the Building.
(c) To designate all sources furnishing sign
painting and lettering, ice, drinking water, toilet supplies, vending machines,
mobile vending service, catering, and like services used on the Premises or in
the Building.
(d) During the last ninety (90) days of the term,
if during or prior to that time the Tenant vacates the Premises, to decorate,
remodel, repair, alter or otherwise prepare the Premises for reoccupancy,
without affecting Tenant's obligation to pay rental for the Premises, providing
same does not interfere with Tenant's use of said Premises.
(e) To constantly have pass keys to the Premises.
(f) On reasonable prior notice to the Tenant, to
exhibit the Premises to prospective tenants during the last six (6) months of
the term, and to any prospective purchaser, mortgagee, or assignee of any
mortgage on the Property and to others having a legitimate interest at any
time during the term.
(g) At any time, in the event of any emergency and
otherwise at reasonable times, to take any and all measures, including
inspections, repairs, alterations, additions, and improvements to the Premises
or to the Building as may be necessary or desirable for the safety, protection
or preservation of the Premises or the Building or the Landlord's interests,
or as may be necessary or desirable in the operation or improvement of the
Building or in order to comply with all laws, orders, and requirements of
governmental or other authority.
(h) To install vending machines of all kinds in the
Premises and to provide mobile vending service therefor, and to receive all of
the revenue derived therefrom; provided, however, that no vending machines
shall be installed by Landlord in the Premises nor shall any mobile vending
service be provided therefor unless Tenant so requests.
5. ESTOPPEL CERTIFICATE BY TENANT
The Tenant agrees that from time to time, upon not less
than ten (10) days prior request by the Landlord, the Tenant will deliver to
the Landlord a statement in writing certifying (a) that this Lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified and identifying the
modifications), (b) the dates to which the Rent and other charges have been
paid, and (c) that, so far as the person making the certificate knows, the
Landlord is not in default under any
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provision of this Lease and, if the Landlord is in default, specifying each
such default of which the person making the certificate may have knowledge, it
being understood that any such statement so delivered may be relied upon by any
landlord under any ground or underlying lease, or any prospective purchaser,
mortgagee, or any assignee of any mortgage on the Property.
6. WAIVER OF CERTAIN CLAIMS
The Tenant, to the extent permitted by law, waives all claims
it may have against the Landlord and against the Landlord's agents and
employees for damage to person or property sustained by the Tenant or by any
occupant of the Premises, or by any other person, resulting from any part of
the Property or any equipment or appurtenances becoming out of repair, or
resulting from any accident in or about the Property or resulting directly or
indirectly from any act or neglect of any tenant or occupant of any part of the
Property or of any other person, unless such damage is a result of the
negligence or contributory negligence of Landlord, or Landlord's agents or
employees. If any damage results from any act or neglect of the Tenant, the
Landlord may, at the Landlord's option, repair such damage and the Tenant shall
thereupon pay to the Landlord the total cost of such repair. All personal
property belonging to the Tenant or any occupant of the Premises that is in or
on any part of the Property shall be there at the risk of the Tenant or of such
other person only and the Landlord, its agents, and employees shall not be
liable for any damage thereto or for the theft or misappropriation thereof
unless such damage, theft, or misappropriation is a result of the negligence or
contributory negligence of Landlord or Landlord's agents or employees. The
Tenant agrees to hold the Landlord harmless and indemnified against claims and
liability for injuries to all persons and for damage to or loss of property
occurring in or about the Property due to any act of negligence or default
under this Lease by the Tenant, its contractors, agents, or employees.
To the extent that the Tenant carries hazard insurance on any
of its property in the Premises and to the extent that the Landlord carries
hazard insurance on the Property, each policy of insurance shall contain, if
obtainable from the insurer selected by the Tenant or the Landlord, as the case
may be, without additional expense, a provision waiving subrogation against the
other party to this Lease. If such provision can be obtained only at
additional expense, the obligation to obtain such provision shall continue if
the other party on notice shall pay the amount of such additional expense.
Each of the parties hereto releases the other with respect to any liability
which the other may have for any damage by fire or other casualty with respect
to which the party against whom such release is claimed shall be insured under
a policy or policies of insurance containing such provision waiving
subrogation.
7. LIABILITY INSURANCE
Tenant shall, at its expense, maintain during the term
comprehensive public liability insurance, contractual liability insurance, and
property damage insurance under policies issued by insurers of recognized
responsibility with limits of not less than $500,000 for personal injury,
bodily injury, death, or for damage or injury to or destruction of property
(including the loss of use thereof) for any one person and in an amount of not
less than
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$1,000,000 with respect to any one occurrence. Tenant's policies shall name
Landlord, its agents, servants, and employees as additional insureds. At the
option of the Landlord, the copies of all policies of insurance shall be held
by Landlord.
8. HOLDING OVER
If the Tenant retains possession of the Premises or any
part thereof after the termination of the term, the Tenant shall pay the
Landlord rent at double the monthly rate specified in Section 1 for the time
the Tenant thus remains in possession and, in addition thereto, shall pay the
Landlord for all damages, consequential as well as direct, sustained by reason
of the Tenant's retention of possession. If the Tenant remains in possession
of the Premises, or any part thereof, after the termination of the term, such
holding over shall, at the election of the Landlord expressed in a written
notice to the Tenant and not otherwise, constitute a renewal of this Lease for
one year under the same terms and conditions as this Lease. The provisions of
this Section do not exclude the Landlord's rights of re-entry or any other
right hereunder.
9. ASSIGNMENT AND SUBLETTING
(a) The Tenant shall not, without the Landlord's prior
written consent, (i) assign, convey, mortgage, pledge, encumber or otherwise
transfer (whether voluntarily or otherwise) this Lease or any interest under
it; (ii) allow any transfer thereof or any line upon the Tenant's interest by
operation of law; (iii) sublet the Premises or any part thereof; or (iv)
permit the use or occupancy of the Premises or any part thereof by any one
other than the Tenant.
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(c) Any sale or transfer after the date hereof, whether to
one or more persons or entities and whether at one or more different times, of
a total of more than fifty percent (50%) of the shares of capital stock of any
corporation, or more than fifty percent (50%) of the interest in any
partnership, which is then the legal Tenant under this Lease shall be deemed an
assignment of this Lease within the meaning of this Section.
(d) Tenant agrees to pay to Landlord, on demand, reasonable
costs incurred by Landlord in connection with any request by Tenant for
Landlord to consent to any assignment or subletting by Tenant.
(e) If, with the consent of the Landlord, this Lease be
assigned or if the Premises or any part thereof be sublet or occupied by
anybody other than Tenant, Landlord may, after default by Tenant, collect rent
from the assignee, subtenant or occupant, and apply the net amount collected
to the Rent and Additional Rent herein reserved; but no such assignment,
subletting, occupancy, or collection shall be deemed a waiver of any of
Tenant's covenants contained in this Lease or the acceptance of the assignee,
subtenant, or occupant as tenant, or a release of Tenant from further
performance by Tenant of covenants on the part of Tenant herein contained.
10. CONDITION OF PREMISES
Tenant's taking possession of the Premises shall be conclusive
evidence as against the Tenant that the Premises were in good order and
satisfactory condition when the Tenant took possession, except as to latent
defects. No promise of the Landlord to alter, remodel, repair or improve the
Premises or the Building and no representation respecting the condition of the
Premises or the Building have been made by Landlord to Tenant, other than as
may be contained herein or in a separate Work Letter Agreement signed by
Landlord and Tenant and attached hereto as Exhibit 'B'. At the termination of
this Lease, the Tenant shall return the Premises broom-clean and in as good
condition as when the Tenant took possession, ordinary wear and loss by fire or
other casualty excepted, failing which the Landlord may restore the Premises to
such condition and the Tenant shall pay the cost hereof on demand.
11. USE OF PREMISES
The Tenant agrees to comply with the following rules and
regulations and with such reasonable modifications thereof and additions
thereto as the Landlord may hereafter from time to time make for the Building.
The
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Landlord shall not be responsible for the non-observance by any other tenant of
any of said rules and regulations:
(a) The Tenant shall not exhibit, sell or offer for
sale on the Premises or in the Building any article or thing except those
articles and things essentially connected with the stated use of the Premises
by the Tenant without the advance consent of the Landlord.
(b) The Tenant will not make or permit to be made
any use of the Premises or any part thereof which would violate any of the
convenants, agreements, terms, provisions, and conditions of this Lease or
which directly or indirectly is forbidden by public law, ordinance, or
governmental regulation, or which may be dangerous to life, limb, or property,
or which may invalidate or increase the premium cost of any policy of insurance
carried on the Building or covering its operation, or which will suffer or
permit the Premises or any part thereof to be used in any manner, or anything
to be brought into or kept therein which, in the judgment of Landlord, shall in
any way impair or tend to impair the character, reputation, or appearance of
the Property as a high quality office building, or which will impair or
interfere with, or tend to impair or interfere with, any of the services
performed by Landlord for the Property.
(c) The Tenant shall not display, inscribe, print,
paint, maintain or affix on any place in or about the Building any sign,
notice, legend, direction, figure or advertisement, except on the doors of the
Premises and on the Directory Board, and then only such name(s) and matter, and
in such color, size, style, place and materials, as shall first have been
approved by the Landlord. The listing of any name other than that of Tenant,
whether on the doors of the Premises, on the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
Premises or be deemed to be the written consent of Landlord mentioned in
Section 9; it being expressly understood that any such listing is a privilege
extended by Landlord revocable at will by written notice to Tenant.
(d) The Tenant shall not advertise the business,
profession, or activities of the Tenant conducted in the Building in any manner
which violates the letter or spirit of any code of ethics adopted by any
recognized association or organization pertaining to such business, profession,
or activities, and shall not use the name of the Building for any purposes
other than that of the business address of the Tenant, and shall never use any
picture of likeness of the Building in any circulars, notices, advertisements,
or correspondence without the Landlord's consent.
(e) No additional locks or similar devices shall
be attached to any door or window without Landlord's prior written consent. No
keys for any door other than those provided by the Landlord shall be made. If
more than two (2) keys for one lock are desired, the Landlord will provide the
same upon payment by the Tenant. All keys must be returned to the Landlord at
the expiration or termination of this Lease.
(f) The Tenant shall not make any alterations,
improvement, or additions to the Premises, including but not limited to, wall
coverings, floor coverings, and special lighting installations, without the
Landlord's advance written consent in each and every instance. In the event
Tenant desires to make
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any alternations, improvement, or additions, Tenant shall first submit to
Landlord plans and specifications therefor and obtain Landlord's written
approval thereof prior to commencing any such work. All alternations,
improvements or additions, whether temporary or permanent in character, made by
Landlord or Tenant in or upon the Premises shall become Landlord's property and
shall remain upon the Premises at the termination of this Lease with
compensation to Tenant (excepting only Tenant's movable office furniture, trade
fixtures, office and professional equipment).
(g) All persons entering or leaving the Building after hours
on Monday through Friday, or at any time on Saturdays, Sundays, or Holidays,
may be required to do so under such regulations as the Landlord may impose.
The Landlord may exclude or expel any peddler.
(h) The Tenant shall not overload any floor. The landlord
may direct the time and manner of delivery, routing and removal, and the
location of safes and other heavy articles.
(i) Unless the Landlord gives advance written consent, the
Tenant shall not install or operate any steam or internal combustion engine,
boiler, machinery, refrigerating or heating device or air-conditioning
apparatus in or about the Premises, or carry on any mechanical business
therein, or use the Premises for housing accommodations or lodging or sleeping
purposes, or do any cooking therein, or use any illumination other than
electric light, or use or permit to be brought into the Building and
inflammable fluids, such as gasoline, kerosene, naphtha, and benzine, or any
explosives, radioactive materials or other articles deemed extra hazardous to
life, limb, or property, except in a manner which would not violate any
ordinance or regulation of the City. The Tenant shall not use the Premises for
any illegal or immoral purpose. *
(j) The Tenant shall cooperate fully with the Landlord to
assure the effective operation of the Building's air-conditioning system,
including the closing of venetian blinds and drapes and, if windows are
operable, to keep them closed when the air-conditioning system is in use.
(l) The sidewalks, halls, passages, exits, entrances,
elevators, and stairways, shall not be obstructed by the Tenant or used for any
purpose other than for ingress to egress from its Premises. The halls,
passages, exits, entrances, elevators, stairways, and roof are not for the use
of the general public and the Landlord shall in all cases retain the right to
control and prevent access thereto by all persons whose presence, in the
judgement of the Landlord, shall be prejudicial to the safety, character,
reputation, and interests of the Building and its tenants, provided that
nothing herein contained shall be construed to prevent such access to persons
with whom the Tenant normally deals in the ordinary course of Tenant's business
unless such persons
* However, Tenant may be able to operate a coffee machine,
refrigerator and microwave
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are engaged in illegal activities. No Tenant and no employees or invitees of
any Tenant shall go upon the roof or mechanical floors of the Building.
(m) Tenants shall not use, keep, or permit to be used or kept
any foul or noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to the
Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be brought in or kept in or about the
Premises or the Building.
(n) Tenant shall see that the doors and windows, if operable,
of the Premises are closed and securely locked before leaving the Building and
must observe strict care and caution that all water faucets or water apparatus
are entirely shut off before Tenant or Tenant's employees leave the Building,
and that all electricity shall likewise be carefully shut off so as to prevent
waste or damage, and for any default or carelessness, Tenant shall make good
all injuries or losses sustained by other tenants or occupants of the Building
of Landlord.
In addition to all other liabilities for breach of any
covenant of this Section, the Tenant shall pay to the Landlord an amount equal
to any increase in insurance premiums payable by the Landlord or any other
tenant in the Building caused by such breach.
12. REPAIRS
Tenant shall give to Landlord prompt written notice of any
damage to or defective condition in any part or appurtenance of the Building's
plumbing, electrical, heating, air-conditioning, or other systems serving,
located in, or passing through the Premises. Subject to the provisions of
Section 13, the Tenant shall, at the Tenant's own expense, keep the Premises in
good order, condition, and repair during the term, except that the Landlord, at
the Landlord's expense (unless caused by the fault or negligence of the Tenant,
its contractors, agents, or employees) shall keep in repair the elevators,
electrical lines, plumbing fixtures located in the Building (except those
installed by Tenant with Landlord's approval) heating and air-conditioning
equipment, outside walls, including windows, and roof. The Tenant, at the
Tenant's expense, shall comply with all laws and ordinances and all rules and
regulations of all governmental authorities and of all insurance bodies at any
time in force, applicable to the Premises or to the Tenant's use thereof,
except that the Tenant shall not hereby be under any obligation to comply with
any law, ordinance, rule, or regulation requiring any structural alteration of
or in connection with the Premises, unless such alteration is required by
reason of a condition which has been created by, or at the instance of, the
Tenant, or is required by reason of a breach of any of the Tenant's covenants
and agreements hereunder. Landlord shall not be required to repair any injury
or damage by fire or other cause, or to make any repairs orreplacements of any
panels, decoration, office fixtures, railing, ceiling, floor covering,
partitions, or any other property installed in the Premise by the Tenant,
except as such fire or other cause results from the negligence or contributory
negligence or willful acts of Landlord, Landlord's agents or employees.
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13. UNTENABILITY
If the Premises are made untenable in whole or in part by fire
or other casualty, the Rent, until repairs shall be made or the Lease
terminated as hereinafter provided, shall be apportioned on a per diem basis
according to the part of the Premises which is usable by the Tenant; if, but
only if, such fire or other casualty be not caused by the fault or negligence
of the Tenant, its contractors, agents, or employees. If such damage shall be
so extensive that the Premises cannot be restored to Building Standard by the
Landlord within a period of four (4) months, either party shall have the right
to cancel this Lease by notice to the other given at any time within thirty
(30) days after the date of such damage; except that, if such fire or casualty
resulted from the Tenant's fault or negligence, the Tenant shall have no right
to cancel. If a portion of the Building other than the Premises shall be so
damaged that, in the opinion of the Landlord, the Building should be restored
in such a way as to alter the Premises materially, the Landlord may cancel this
Lease by notice to the Tenant given at any time within thirty (30) days after
the date of such damage. In the event of giving effective notice pursuant to
this Section, this Lease and the term and the estate hereby granted shall
expire on the date fifteen (15) days after the giving of such notice as fully
and completely as if such date were the date hereinbefore set for the
expiration of the term of this Lease. If this Lease is not so terminated, the
Landlord will promptly repair the damage at the Landlord's expense.
14. EMINENT DOMAIN
(a) In the event that title to the whole or any part of the
Property shall be lawfully condemned or taken in any manner for any public or
quasi-public use, and if such condemnation materially effects business, this
Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title and the Landlord shall be entitled
to receive the entire award, the Tenant hereby assigning to the Landlord the
Tenant's interest therein, if any.
(b) In the event that title to a part of the Building other
than the Premises shall be so condemned or taken and, if in the opinion of the
Landlord, the Building should be restored in such a way as to alter the
Premises materially, the Landlord may terminate this Lease and the term and
estate hereby granted by notifying the Tenant of such termination within sixty
(60) days following the date of vesting of title, and this Lease and the term
and estate hereby granted shall expire on the date specified in the notice of
termination, not less than sixty (60) days after the giving of such notice, as
fully and completely as if such date were the date thereinbefore set for the
expiration of the term of this Lease, and the Rent hereunder shall be
apportioned as of such date.
15. LANDLORD'S REMEDIES
All rights and remedies of the Landlord herein enumerated
shall be cumulative, and none shall exclude any other right or remedy allowed
by law. In addition to the other remedies in this Lease provided, the Landlord
shall be entitled to the restraint by injunction of the violation or attempted
violation of the covenants, agreements, or conditions of this Lease.
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(a) If the Tenant shall (i) apply for consent to the
appointment of a receiver, trustee, or liquidator of the Tenant or of all or a
substantial part of its assets, (ii) admit in writing its inability to pay its
debts as they come due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law other
than the federal Bankruptcy Code, (v) file an answer admitting the material
allegations of a petition filed against the Tenant in any reorganization or
insolvency proceeding, other than a proceeding commenced pursuant to the
federal Bankruptcy Code, or if any order, judgment, or decree shall be entered
by any court of competent jurisdiction, except for a bankruptcy court or a
federal court sitting as a bankruptcy court, adjudicating the Tenant insolvent
or approving a petition seeking reorganization of the Tenant or appointing a
receiver, trustee, or liquidator of the Tenant or of all or a substantial part
of its assets, then, in any of such events, the Landlord may give to the
Tenant a notice of intention to end the term of this Lease specifying a day
not earlier than ten (10) days thereafter and, upon the giving of such notice,
the term of this Lease and all right, title, and interest of the Tenant
hereunder shall expire as fully and completely on the day so specified as if
that day were the date herein specifically fixed for the expiration of the
term.
(b) If the Tenant defaults in the payment of Rent and
such default continues for ten (10) days after notice, or defaults in the
prompt and full performance of any other provision of this Lease, and such
default continues for twenty (20) days after notice, or if the leasehold
interest of the Tenant be levied upon under execution or be attached by
process of law, or if the Tenant abandons the Premises, then and in any such
event, the Landlord may, at its election, either terminate the Lease and the
Tenant's right to possession of the Premises, or without terminating this
Lease, endeavor to relet the Premises. Nothing herein shall be construed so as
to relieve the Tenant of any obligation, including the payment of Rent, as
provided in this Lease.
(c) Upon any termination of this Lease, the Tenant
shall surrender possession and vacate the Premises immediately and deliver
possession thereof to the Landlord, and hereby grants to the Landlord full and
free license to enter into and upon the Premises, in such event with or
without process of law and to repossess the Landlord of the Premises as of
the Landlord's former estate and to expel or remove the Tenant and any others
who may be occupying or within the Premises and to remove any and all property
therefrom, using such force as may be necessary, without being deemed in any
manner guilty of trespass, eviction or forcible entry or detainer, and without
relinquishing the Landlord's right to Rent or any other right given to the
Landlord hereunder or by operation of law.
(d) If the Tenant abandons the Premises or the
Landlord otherwise becomes entitled so to elect, and the Landlord elects,
without terminating the Lease, to endeavor to relet the Premises, the Landlord
may, at the Landlord's option, enter into the Premises, remove the Tenant's
signs and other evidence of tenancy, and take and hold possession thereof as in
Paragraph (c) of this Section provided, without such entry and possession
terminating the
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lease or releasing the Tenant, in whole or in part, from the Tenant's
obligation to pay the Rent hereunder for the full term as hereinafter provided.
Upon and after entry into possession without termination of the Lease, the
Landlord may relet the Premises or any part thereof for the account of the
Tenant to any person, firm, or corporation other than the Tenant for such rent,
for such time and upon such terms as the Landlord shall determine to be
reasonable. In any such case, the Landlord may make repairs, alterations, and
additions in or to the Premises, and redecorate the same to the extent deemed
by the Landlord necessary or desirable, and the Tenant shall, upon demand, pay
the cost thereof, together with the Landlord's expenses of the reletting,
including without limitation, any applicable leasing commissions. If the
consideration collected by the Landlord upon any such reletting for the
Tenant's account is not sufficient to pay monthly the full amount of the rent
reserved in this Lease, together with the cost of repairs, alterations,
additions, redecorating, and the Landlord's expenses, the Tenant shall pay to
the Landlord the amount of each monthly deficiency upon demand.
(e) If the Landlord elects to terminate this Lease in any of
the contingencies specified in this Section, it being understood that the
Landlord may elect to terminate the lease after the notwithstanding its prior
election to terminate the Tenant's right to possession as in Paragraph (b) of
this Section, provided the Landlord shall forthwith upon such termination be
entitled to recover as damages, and not as penalty, an amount equal to the then
present value of the Rent and Additional Rent provided in this Lease for the
residue of the stated term hereof, less the present value of the fair rental
value of the Premises for the residue of the stated term.
(f) Any and all property which may be removed from the
Premises by the Landlord pursuant to the authority of the Lease or of law to
which the Tenant is or may be entitled may be handled, removed, or stored by
the Landlord at the risk, cost, and expense of the Tenant and the Landlord
shall in no event be responsible for the value, preservation, or safekeeping
thereof. The Tenant shall pay to the Landlord upon demand any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in the Landlord's possession or under the
Landlord's control. Any such property of the Tenant not removed from the
Premises or retaken from storage by the Tenant within thirty (30) days after
the end of the term or of the Tenant's right to possession of the Premises,
however terminated, shall be conclusively deemed to have been forever abandoned
by the Tenant and either may be retained by Landlord as its property or may be
disposed of in such manner as Landlord may see fit.
(g) The Tenant agrees that, if it shall at any time fail to
make any payment or perform any other act on its part to be made or performed
under this Lease, the Landlord may, but shall not be obligated to, and after
reasonable notice or demand and without waiving or releasing the Tenant from
any obligation under this lease, make such payment or perform such other act to
the extent the Landlord may deem desirable and in connection therewith to pay
expenses and employ counsel.
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All sums so paid by the Landlord and all expenses in connection therewith,
together with interest thereon at the Prime Rate form the date of payment,
shall be deemed additional rent hereunder and payable at the time of any
installment of Rent thereafter becoming due and the Landlord shall have the
same rights and remedies for the nonpayment thereof, or of any other additional
rent, as in the case of default in the payment of Rent.
16. SUBORDINATION OF LEASE
The rights of the Tenant under this Lease shall be and are
subject to subordinate at all times to all ground leases, and/or underlying
leases, if any, now or hereafter in force against the Property, and to the lien
of any mortgage or mortgages now or hereafter in force against such lease and/
or the Property, and to all advances made or hereafter to be made upon the
security thereof, and to all renewals, modifications, consolidations,
replacements, and extensions thereof. This Section is self-operative and no
further instrument of subordination shall be required. In confirmation of
such subordination, Tenant shall promptly execute such further instruments as
may be reasonably requested by the Landlord. Tenant, at the option of any
mortgagee, agree to attorn to such mortgage in the event of a foreclosure sale
or deed in lieu thereof.
17. COMMENCEMENT OF POSSESSION
If the Landlord shall be unable to give possession of the
Premises on the date of the commencement of the term hereof because the
Premises shall not be ready for occupancy, the Landlord shall not be subject to
any liability for the failure to give possession on said date. Under such
circumstances, unless the delay is the fault of the Tenant, the Rent shall not
commence until the Premises are available for occupancy by the Tenant, and no
such failure to give possession on the date of commencement of the term shall
in any wise affect the validity of this lease or the obligation of the Tenant
hereunder, nor shall same be construed in any wise to extend the term of this
Lease. If, at the Tenant's request, the Landlord shall make the Premises
available to the Tenant prior to the date of commencement of the term for the
purpose of decorating, furnishing, and equipping the Premises, the use of the
Premises for such work shall not create a landlord-tenant relationship between
the parties nor constitute occupancy of the Premises within the meaning of the
next sentence, but the provisions of Section 6 of this Lease shall apply. If,
with the consent of the Landlord, the Tenant shall enter into occupancy of the
Premises to do business therein prior to the date of commencement of the term,
provisions of this Lease shall apply and the Rent shall accrue and be payable
at the first rate specified in Paragraph (a) of Section 1 from the date of
occupancy.
18. NOTICES AND CONSENT
All notices, demands, requests, consents, or approvals which
may or are required to be given by either party to the other shall be in
writing and shall be deemed given when sent by United States Certified or
Registered
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Mail, postage prepaid, (a) if for the Tenant, addressed to the Tenant at the
Building or at such other place as the Tenant may from time to time designate
by written notice to the Landlord, or (b) if for the Landlord, addressed to the
office of the Landlord given in the aforesaid manner at the address first
stated above for Landlord with a copy to Landlord addressed to 2118 First
Avenue North, Birmingham, Alabama 35203, or at such other place as the Landlord
may form time to time designate by written notice to the Tenant given in the
aforesaid manner. All consents and approvals provided for herein must be in
writing to be valid. If the term Tenant, as used in this Lease, refers to more
than one person, any notice, consent, approval, request , bill, demand, or
statement given as aforesaid to any one of such persons shall be deemed to have
been duly given to Tenant.*
19. SPRINKLERS
If there now is or shall be installed in the Building a
'sprinkler system', and such system or any of its appliances shall be damaged
or injured or not in proper working order by reason of any act or omission of
the Tenant, Tenant's agents, servants, employees, licensees or visitors, the
Tenant shall forthwith restore the same to good working conditions at its own
expense; and, if the Board of Fire Underwriters of Fire Insurance Exchange or
any bureau, department, or official of the state or city government require or
recommend that any changes, modifications, alterations, or additional sprinkler
heads or other equipment be made or supplied by reason of the Tenant's
business, or the location of partitions, trade fixtures, or other contents of
the Premises, or for any other reason, or if any such changes, modifications,
alterations, additional sprinkler heads or other equipment become necessary to
prevent the imposition of a penalty or charge against the full allowance for a
sprinkler system in the fire insurance rate as fixed by said Exchange, or by
any fire insurance company, Tenant shall, at the Tenant's expense, promptly
make and supply such changes, modifications, alterations, additional sprinkler
head or other equipment.
20. INVALIDITY OF PARTICULAR PROVISIONS
If any clause or provision of this Lease is or becomes
illegal, invalid, or unenforceable because of present of future laws, or any
rule or regulation of any governmental body or entity, effective during its
terms, the intention of the parties hereto is that the remaining parts of this
Lease shall not be affected thereby unless such invalidity is, in the
reasonable determination of Landlord, essential to the rights of both parties,
in which event Landlord has the right to terminate this Lease on written notice
to Tenant.
21. WAIVER OF BENEFITS
Tenant waives the benefits of all existing and future Rent
Control Legislation and Statutes and similar governmental rules and regulation,
whether in time of war or not, to the extent permitted by law.
* consent, approval or determination made by Landlord shall
not be unreasonably withheld.
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22. WAIVER OF TRIAL BY JURY
It is mutually agreed by and between Landlord and Tenant that
the respective parties hereby shall, and they hereby do waive trial by jury in
any action, proceeding, of counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Premises, and any emergency statutory or any other
statutory remedy.
23. MISCELLANEOUS TAXES
Tenant shall pay prior to delinquency all taxes assessed
against or levied upon its occupancy of the Premises, or upon the fixtures,
furnishings, equipment, and all other personal property of Tenant located in
the Premises, if nonpayment thereof shall rise to a lien on the real estate,
and when possible, Tenant shall cause said fixtures, furnishings, equipment,
and other personal property to be assessed and billed separately from the
property of Landlord. In the event any or all of Tenant's fixtures,
furnishings, equipment, and other personal property, or Tenant's occupancy of
the Premises, shall be assessed and taxed with the property of Landlord, Tenant
shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of statement in writing setting forth the amount
of such taxes applicable to Tenant's fixtures, furnishings, equipment, or
personal property.
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26. BROKERAGE
(a) Tenant represents and warrants that it has
dealt with no broker, agent, or other person in connection with this
transaction and that no broker, agent, or other person brought about this
transaction, other than na and Tenant agrees to indemnify and
hold Landlord harmless from and against any claims by any other broker, agent,
or other person claiming a commission or other form of compensation by virtue
of having dealt with Tenant with regard to this leasing transaction. The
provisions of this Section shall survive the termination of this Lease.
27. SPECIAL STIPULATIONS
(a) No receipt of money by the Landlord from the
Tenant or Tenant or Landlord after the termination of this Lease, or after the
service of any notice, or after the commencement of any suit, or after final
judgment for possession of the Premises, shall reinstate, continue, or extend
the term of this Lease or affect any such notice, demand, or suit, or imply
consent for any action for which Landlord's consent is required.
(b) No waiver of any default of the Tenant or
Landlord hereunder shall be implied from any omission by the Landlord or
Tenant to take any action on account of such default, if such default persists
or be repeated, and no express waiver shall effect any default other than the
default specified in the express waiver and that only for the time and to the
extent therein stated.
(c) The term 'Landlord' as used in this Lease, so
far as covenants or agreements on the part of the Landlord are concerned,
shall be limited to mean and include only the owner or owners of the
Landlord's interest in this Lease at the time in question and, in the event of
any transfer or transfers of such interest, the Landlord herein named (and in
case of any subsequent transfer, the then transferer) shall be automatically
freed and relieved from and after the date of such transfer of all personal
liabilty as respects the performances of any covenants or agreements on the
part of the Landlord contained in this Lease thereafter to be performed.
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(d) It is understood that the Landlord may occupy portions
of the Building in the conduct of the Landlord's business. In such event, all
references herein to other tenants of the Building shall be deemed to include
the Landlord as an occupant.
(e) All of the covenants of the Tenant hereunder shall be
deemed and construed to be 'conditions' as well as 'covenants' as though the
words specifically expressing or imparting covenants and conditions were used
in each separate instance.
(f) The Tenant agrees that, upon receiving a written
request from the Landlord, the Tenant within ten (10) days deliver a copy of
this Lease or, if the Landlord so requests, a Memorandum of this Lease, in
recordable form to the Landlord. Tenant shall not record this Lease or a
Memorandum thereof without the prior written consent of the Landlord.
(g) Neither party has made any representation or promise,
except as contained herein, or in some further writings signed by the party
making such representation or promise.
(h) In event of variation or discrepancy, the Landlord's
original copy of the Lease shall control.
(i) Each provision hereof shall extend to and shall, as
the case may require, bind and inure to the benefit of the Landlord and the
Tenant and their respective heirs, legal representatives and successors, and
assigns in the event this Lease has been assigned with the express, written
consent of the Landlord.
(j) If, because of any act or omission of Tenant, its
employees, agents, contractors, or subcontractors, any mechanic's lien or
other lien, charge or order for the payment of money shall be filed against
Landlord, Premises are a part, Tenant shall, at its own cost and expense,
cause the same to be discharged or recorded within thirty (30) days after the
filing thereof and Tenant shall indemnify and save harmless Landlord against
and from all cost, liabilities, suits, penalties, claims, and demands,
including reasonable attorney's fees resulting therefrom.
(k) It is understood and agreed that this Lease shall not
be binding until and unless all parties have signed it.
Exhibits 2 and Riders 1, consisting of 3 pages are attached
hereto and become part of this Lease.
28. ADDITIONAL PROVISIONS
Additional provisions are set forth in Rider(s)
attached to this Lease and made a part hereof.
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IN WITNESS WHEREOF, the parties herein have hereunto set their
hands and seals in quadruplicate the date and year first above written.
Signed Sealed and Delivered TENANT:
in the Presense of: CRESCENT CAPITAL TRUST
/s/ Joy C. Newman By: /s/ John W. McRoberts (Seal)
- ----------------- ---------------------------
Witness (Authorized Signature)
Its: President
---------------------------
By: (Seal)
- ----------------- ---------------------------
Witness
Signed, Sealed, and Delivered LANDLORD
in the Presense of:
BIRMINGHAM REALTY COMPANY
/s/ Joy C. Newman By: /s/ J. Keith Hazelrig (Seal)
- ----------------- ---------------------------
Witness J. Keith Hazelrig, CCIM
Its: Vice President
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EXHIBIT 'B'
Tenant leases space in 'as is' condition as is referenced in Exhibit 'A'.
EXHIBIT A
Floorplan Drawing
Rider To Lease
Between
BIRMINGHAM REALTY COMPANY
And
CRESCENT CAPITAL CORPORATION
May 25, 1939
========================================
1) As a condition of this Lease, Tenant will receive the first three (3)
months of Rent free of any rental obligation.
2) Should Tenant enter into a Lease Agreement with Landlord for office
space in another facility owned by Landlord during the term of this
Lease, this Lease shall become null and void upon Tenant moving into new
space.
3) Should Tenant choose to relocate its offices at the end of the Lease,
out of a Birmingham Realty Company owned facility and not into a
company owned or affiliated company owned facility, then Tenant will
exclusively use Birmingham Realty Company as their representative in
procuring its new offices.
One Perimeter Park South (Birmingham, AL) Lease Agreement - Birmingham Realty Co. and Crescent Capital Trust
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