Alabama-Birmingham-44 Inverness Center Parkway Sublease - Southern Company Services Inc. and InfoCure Corp.
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease"), is entered into by and
between SOUTHERN COMPANY SERVICES, INC., an Alabama Corporation, having an
office located at 600 North 18th Street, Birmingham, Alabama 35203
("Sublessor"); and INFOCURE CORPORATION, a Delaware corporation, having an
office located at 239 Ethan Allen Highway, Ridgefield, Connecticut 06877
("Sublessee") (collectively the "Parties"), and shall become effective on the
date it is executed by the later of Sublessor and Sublessee (the "Effective
Date").
W I T N E S S E T H:
WHEREAS, Sublessor, as "Tenant", entered into a lease (the "Prime
Lease") with Metropolitan Life Insurance Company (the "Prime Landlord"), dated
April 1, 1992, leasing, among other areas, that certain building known as
"Inverness 44" (the "Building"). Said Prime Lease to which reference is made
above is incorporated herein by this reference, and
WHEREAS, Sublessor and Sublessee have agreed that Sublessor shall
sublet approximately 45,926 square feet of such space as rented under the Prime
Lease to Sublessee, as such space is shown on Exhibit "A" attached hereto and by
this reference incorporated herein, upon the terms and conditions as herein
described, and
WHEREAS, concurrently with and on the Effective Date of this
Sublease, the Parties entered into a Second Amendment ("Amendment") to an
existing Sublease ("Original Sublease") in which Amendment the Parties agreed to
terminate the Original Sublease on May 31, 2001, and
WHEREAS, in the Original Sublease the Sublessor subleased and rented
to Sublessee and Sublessee subleased and rented from Sublessor the entire 2nd
floor of that certain Building known as Inverness 42 ("Original Sublease
Premises") with a term set to expire on February 28, 2004, and
WHEREAS, the Parties desire that the 5th floor of the Building shall
serve as substitute premises ("Substitute Premises") for the Original Sublease
Premises, and
WHEREAS, the Parties desire for the term of the Substitute Premises
to expire on the same date as the Original Sublease Premises, February 28, 2004,
but to automatically renew for an additional term expiring on March 31, 2007,
and
WHEREAS, the Parties intend that upon the commencement date of the
Substitute Premises, the Original Sublease shall terminate.
NOW THEREFORE, for Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, paid by the Parties hereto to one another, the receipt
and sufficiency of which are hereby acknowledged by the Parties hereto, the
Parties hereto hereby covenant and agree as follows:
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<PAGE> 2
1. Sublease Premises, Rent and Term.
(a) Sublessor hereby leases and rents to Sublessee and Sublessee
hereby leases and rents from Sublessor, the 22,963 square feet, more or less, of
space on the 4th floor and the 22,963 square feet, more or less, of space on the
5th floor of the Building, shown on Exhibit "A", by this reference incorporated
herein, (the "Sublease Premises"), beginning for the 4th floor on April 1, 2001
("Commencement Date") and beginning for the 5th floor on June 1, 2001 and ending
for the entire Sublease Premises at midnight on March 31, 2007 (the "Term").
Sublessee shall, however, have the right to occupy the 4th floor of the Sublease
Premises on March 15, 2001 and the 5th floor of the Sublease Premises on May 1,
2001, for the purpose of performing tenant fit-up and finish work therein
(subject in all circumstances to the terms of this Sublease). All terms and
conditions of this Sublease shall be in force and effect upon such occupancy by
Sublessee, although no Base Rent for the 4th floor shall be due from Sublessee
until April 1, 2001; and no Base Rent for the 5th floor shall be due from the
Sublessee until June 1, 2001.
(b) The Base Rent due from Sublessee for such Sublease Premises shall
be as follows:
<TABLE>
<CAPTION>
Base Rent Rate Monthly
Period (Per Square Foot Per Annum) *Base Rent
------ -------------------------- -----------
<S> <C> <C>
April 1, 2001 - May 31, 2001 $15.50 $29,660.54
----- ---------
June 1, 2001 - March 31, 2002 $15.50 $59,321.08
----- ---------
April 1, 2002 - March 31, 2003 $15.75 $60,277.88
----- ---------
April 1, 2003 - March 31, 2004 $16.00 $61,234.66
----- ---------
April 1, 2004 - March 31, 2005 $16.25 $62,191.46
----- ---------
April 1, 2005 - March 31, 2006 $16.50 $63,148.25
----- ---------
April 1, 2006 - March 31, 2007 $16.75 $64,105.04
----- ---------
</TABLE>
* Assuming Sublessee is leasing 22,963 rentable square feet from April 1, 2001
through May 31, 2001 and 45,926 rentable square feet thereafter.
Sublessee shall also pay the additional rent (the "Additional Rent") described
in Paragraph 3 of this Sublease.
(c) Sublessee shall pay the Base Rent and Additional Rent
(collectively the "Rent") provided for hereunder in advance on the first day of
every month during the Term.
(d) The Sublease Premises are hereby leased by Sublessee on the
express condition that the term of the Original Sublease shall automatically
terminate upon the commencement date of the Substitute Premises.
2. No Assignment without Consent. Sublessee shall not assign this
Sublease nor sublet the Sublease Premises in whole or in part and shall not
permit Sublessee's interest in this
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<PAGE> 3
Sublease to be vested in any third party by operation of law or otherwise,
without the prior written consent of Sublessor, which consent shall not be
unreasonably withheld, conditioned or delayed.
3. Other Charges.
(a) Sublessee shall be liable for and shall pay any and all charges
attributable to the Sublease Premises for actual "O&M Expenses" (as that term is
defined in the Prime Lease) to the extent such O&M Expenses exceed the O&M
Expenses for calendar year 1997 ($937,924.00), as Additional Rent. In
determining O&M Expenses attributable to the Sublease Premises, Sublessor shall
assume an even and equal allocation of O&M Expenses over all of the square
footage of the Building.
(b) If Sublessee shall procure any additional services from the
Building, such as alterations or after-hour air conditioning, Sublessee shall
pay for same at the rates charged therefor by the Prime Landlord and shall make
such payment to the Sublessor or Prime Landlord, as Sublessor shall direct. Any
Rent or other sums payable by Sublessee under this Paragraph 3 shall be
Additional Rent and collectible by Sublessor as such. If Sublessor shall receive
any refund from Prime Landlord, Sublessee shall be entitled to the return of so
much thereof as shall be attributable to prior payments by Sublessee.
(c) Notwithstanding that the aforesaid Additional Rent payments are
due of Sublessee on a monthly basis, Sublessor and Sublessee shall adjust
between themselves amounts of Additional Rent due of Sublessee, and pay to one
another amounts due, as applicable, any time Sublessor provides or desires such
a reconciliation.
4. Subordinate to Prime Lease. This Sublease is subject and
subordinate in all instances and under all circumstances to the Prime Lease.
Except as may be inconsistent with the terms hereof, all the terms, covenants
and conditions in the Prime Lease contained shall be applicable to this Sublease
with the same force and affect as if Sublessor were the "Landlord" under the
Prime Lease and Sublessee were the "Tenant" thereunder; and in case of any
breach hereof by Sublessee, Sublessor shall have all the rights against
Sublessee as would be available to Prime Landlord against Sublessor as "Tenant"
under the Prime Lease.
5. Use. Sublessee shall use the Sublease Premises for general office
purposes only, and also in accordance with and subject to the Prime Lease, and
in a manner which does not interfere with Sublessor or create any disturbance or
nuisance to any other party.
6. Services. Notwithstanding anything to the contrary contained
herein, the only services or rights to which Sublessee is entitled hereunder are
those to which Sublessor is entitled to as "Tenant" under the Prime Lease and
that for all such services and rights Sublessee will look to Prime Landlord
under the Prime Lease. Sublessor and Sublessee acknowledge that this Sublease is
a full-service sublease, to the extent such services are available and provided
under the Prime Lease, and that services such as utilities and cleaning and
janitorial service are provided hereunder.
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<PAGE> 4
7. No Acts; Indemnity.
(a) Sublessee shall neither do nor permit anything to be done which
would cause the Prime Lease to be terminated or forfeited or any claims to
accrue to the benefit of Prime Landlord by reason of any right of termination or
forfeiture reserved or vested in Prime Landlord under the Prime Lease, or any
rights to damages accruing to or for the benefit of Prime Landlord under the
Prime Lease.
(b) Sublessee hereby indemnifies and holds Sublessor harmless from
and against all loss, cost, damage or expense, including, but not limited to,
attorney's fees and court costs, incurred by Sublessor by reason of any default
on the part of Sublessee by reason of which the Prime Lease may be terminated or
forfeited, or any claims that shall accrue to the benefit of or for Prime
Landlord under the Prime Lease, and against any and all other loss, cost, damage
or expense incurred or suffered by Sublessor as a result of or arising out of
the negligence of Sublessee or the failure of Sublessee to act in accordance
with this Sublease.
8. Sublease Premises; Review by Sublessee.
(a) Sublessee shall take the Sublease Premises "as is, where is", and
Sublessor makes and has made no representations or warranties whatsoever with
respect to the Sublease Premises or the fitness thereof for Sublessee's intended
purpose.
(b) Sublessee hereby acknowledges and agrees that Sublessee has had
the opportunity to and has reviewed the Prime Lease.
9. Right-of-First Refusal.
(a) Provided this Sublease is then in full force and effect and
Sublessee is in full compliance with the terms and conditions of this Sublease,
and there is no sub-sublease affecting the Sublease Premises and no assignment
of Sublessee's interest in the Sublease at such time, Sublessor hereby grants
Sublessee the right to sublease any other space in the Building on the 6th floor
(the "Expansion Space") in accordance with the within terms and conditions.
Should Sublessor receive a bona fide written offer to lease the Expansion Space,
upon terms and conditions and at a rental rate acceptable to Sublessor,
Sublessor shall notify Sublessee thereof in writing setting forth the terms and
conditions of such offer, and offering to lease the Expansion Space to Sublessee
upon the financial terms contained in the third party offer. Sublessee shall
have fifteen (15) days to accept or reject such offer. If Sublessee rejects such
offer or fails to respond within said fifteen (15) day period, then Sublessor
shall be entitled to rent said space to such third party on such terms and
conditions not materially more favorable than the terms and conditions offered
to Sublessee. If Sublessee accepts said offer, then Sublessee shall have leased
such space upon the financial terms contained in said offer, and upon the other
terms and conditions as contained in this Sublease and for a term co-terminus
with the Term except that the space shall be leased "as is, where is". The Rent
for said Expansion Space shall commence on the earlier to occur of (i) thirty
(30) days after Sublessee accepts such offer for such Expansion Space, or (ii)
on the date Sublessee occupies said Expansion Space.
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<PAGE> 5
(b) Notwithstanding the above, Sublessee shall have no rights of
offer or to lease any Expansion Space offered by Sublessor to any affiliates of,
or with a common parent with, Sublessor, present and future. Present affiliates
of Sublessor include Alabama Power Company, Georgia Power Company, Gulf Power
Company, Mississippi Power Company, Savannah Electric and Power Company,
Southern Nuclear Operating Company, Southern Electric Generating Company,
Southern Company Energy Solutions, Inc., and Southern Communications Services,
Inc.
10. Improvement Allowances.
(a) Sublessee shall cause the tenant fit-up and finish work in the
Sublease Premises to be completed in accordance with plans and specifications to
be agreed upon by Sublessor and Sublessee, in their respective reasonable
judgment. Sublessor shall provide an allowance for the tenant fit-up and finish
work in the Sublease Premises of $12.00 per rentable square foot for the 4th
floor and $6.00 per rentable square foot for the 5th floor within the Sublease
Premises (the "Allowance"). To the extent the costs to complete the tenant
fit-up and finish work in the Sublease Premises are less than the Allowance,
then the difference shall be retained by Sublessor. To the extent the costs to
complete the tenant fit-up and finish work in the Sublease Premises are greater
than the Allowance, then the amount of such excess shall be paid by Sublessee.
(b) Sublessor may, if requested by Sublessee, provide an additional
allowance to Sublessee for the tenant fit-up and finish work within the Sublease
Premises of up to Two and No/l00 Dollars ($2.00) per rentable square foot within
the Sublease Premises. Such amount, or so much thereof as is funded by
Sublessor, may, at Sublessee's option, either be repaid by Sublessee (i) in one
lump sum, within thirty (30) days after the bill thereof is delivered to
Sublessee, or (ii) at the time Base Rent is paid under the Sublease in equal
monthly installments over the Term of the Sublease at an interest rate of ten
percent (10%) per annum on amounts outstanding. Sublessee shall elect such
option on or before the Commencement Date. Such amounts shall be considered Rent
for the purposes of this Sublease.
(c) Sublessor will also provide to Sublessee a space planning
allowance of ten cents (10(cent)) per rentable square foot, or $4,592.60. No
further space planning allowance shall be made available or paid to Sublessee.
11. Insurance. Sublessee shall carry (at its sole expense during the
Term) (i) fire and extended coverage insurance insuring Sublessee's interest in
its improvements to the Sublease Premises and any and all furniture, equipment,
supplies, contents and other property owned, leased, held or possessed by
Sublessee and contained therein, such insurance coverage to be in an amount
equal to the full insurable value of such improvements and property, as such may
increase from time to time, (ii) worker's compensation insurance as required by
applicable law, and (iii) comprehensive liability coverage for injury to or
death of a person or persons and for damage to property occasioned by or arising
out of any construction work being done on the Sublease Premises, or arising out
of the condition, use, or occupancy of the Sublease Premises, or other portions
of the Building or property, the limits of such policy or policies to be in
amounts not less than One Million Five Hundred Thousand Dollars ($1,500,000)
with respect to
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<PAGE> 6
injuries to or death of any one person, Five Million Dollars ($5,000,000) with
respect to any one casualty or occurrence and Three Hundred Thousand Dollars
($300,000) with respect to property damage. Sublessee shall have included in all
policies of insurance obtained by them with respect to the Building or Sublease
Premises a waiver by the insurer of all right of subrogation against the other
in connection with any loss or damage insured against. To the full extent
permitted by law, Sublessor and Sublessee each waives all right of recovery
against the other, and agrees to release the other from liability for loss or
damage to the extent such loss or damage is covered by valid and collectible
insurance in effect at the time of such loss or damage; provided, however, that
the foregoing release by each party is conditioned upon the other party's
carrying insurance with the above described waiver of subrogation, and if such
coverage is not obtained or maintained by either party, then the other party's
foregoing release shall be deemed to be rescinded until such waiver is either
obtained or reinstated. All said insurance policies shall be carried with
companies licensed to do business in the State of Alabama reasonably
satisfactory to Sublessor and shall be non-cancelable except after twenty (20)
days' written notice to Sublessor. Each policy shall name Sublessor, Sublessor's
property manager and any other person designated by Sublessor's as additional
insureds and provide that it is primary to, and not contributing with, any
policy carried by Sublessor, Sublessor' s property manager, or other designated
person covering the same loss. At Sublessor's request, duly executed
certificates of such insurance shall be delivered to Sublessor prior to the
Commencement Date and at least thirty (30) days prior to the expiration of each
respective policy term.
12. Sublease Work; Lien Free Basis. With respect to Sublessee's
construction work within the Sublease Premises, (a) Sublessee must apply for and
maintain all relevant and necessary permits in connection with or as a part of
such construction, and Sublessor agrees to sign any and all reasonably required
documents from any applicable municipal agency to enable Sublessee to obtain the
same, provided such municipal agency requires the signature of Sublessor; (b)
such work must not adversely affect the structural components of the Building or
the Building's systems; (c) such work must be performed in a manner so as not to
disrupt or disturb Sublessor, or Sublessor's use of the Building; (d) Sublessee
must deliver to Sublessor, upon the completion of such work, complete, as-built
plans and specifications for the work performed; and (e) such work shall be
completed on a lien free basis, and Sublessee shall provide Sublessor with
evidence of such, sufficient for Sublessor in Sublessor's sole, reasonable
judgment.
13. Signage. Sublessee will be allowed to have a reasonable listing
on the Building directory located in the lobby of the Building. The exact size
and type of listing will be dependent on space available in the directory and
will be determined at a later date, in Sublessor's reasonable discretion.
Sublessee shall have the right, at Sublessee's sole cost and expense, to place
directional and informational signs throughout the Sublease Premises.
14. Broker Commissions. Hailey Realty Company, Inc. is serving as
Sublessee's "tenant representative". Sublessor shall pay a commission to Hailey
Realty Company of four percent (4%) of the gross dollar value of the Sublease
with respect to the expansion to the 4th floor of the Sublease Premises, two
percent (2%) of the gross dollar value
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<PAGE> 7
of the Sublease with respect to the renewal of the Substitute Premises (5th
floor) on March 1, 2004, four percent (4%) of the gross dollar value of any
other expansions, and two percent (2%) of the gross dollar value of any other
renewal terms in which Hailey Realty Company, Inc. has been actively involved
(without the involvement of another broker or agent). Sublessor will review the
proposed commission agreement and will work with Hailey Realty Company to
complete a mutually acceptable agreement. Sublessor and Sublessee hereby
indemnify one another, and hold one another harmless, from and against all loss,
cost, damage or expense, including, but not limited to, attorney's fees and
court costs, incurred by a party hereto as a result of any claims for brokerage
fees or commissions due which are made by, through or under the other party
hereto.
15. No Other Agreements. All prior understandings and agreements
between the Parties are merged within this Sublease, which alone fully and
completely sets forth the understanding of the Parties hereto. This Sublease may
not be changed or terminated in any manner other than by an agreement in
writing, executed by the party against whom enforcement of the change or
termination is sought.
16. Notice. Any notice of demand which either party may or must give
to the other hereunder shall be in writing and delivered personally, sent by
certified mail, return receipt requested, or by nationally recognized overnight
courier, addressed as follows:
If to Southern Company Services, Inc.:
R. Scott Vickers
8N-0286
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35203-0286
With a copy to:
Legal Department
7N-8374
Southern Company Services, Inc.
600 North 18th Street
Birmingham, Alabama 35203-8374
and if to Sublessee, as follows:
InfoCure Corporation/VitalWorks
239 Ethan Allen Highway
Ridgefield, Connecticut 06877
Attn.: CFO
and: Infocure Corporation/VitalWorks
44 Inverness Center Parkway
Birmingham, Alabama 35242
Attn.: Daren McCormick
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<PAGE> 8
Either party may, by notice in writing, direct that future notices or demands be
sent to a different address.
17. Binding. The covenants and agreements herein contained shall bind
and inure to the benefit of Sublessor, Sublessee, and their respective
executors, administrators, successors and assigns.
18. Representations. Sublessor represents and warrants to Sublessee
that:
a. It has full power and authority to enter into this
Sublease;
b. This Sublease does not violate any term or provision of
the Prime Lease;
c. Prime Landlord has consented to this Sublease;
d. Sublessor is not in default under the Prime Lease and the
Prime Lease is currently in full force and effect.
IN WITNESS WHEREOF, the Parties hereto have caused this Sublease to
be executed by their duly authorized representatives on the date(s) set forth
below.
SOUTHERN COMPANY SERVICES, INC.
"SUBLESSOR"
------------------------------------ BY:
WITNESS --------------------------
NAME:
------------------------
(TYPED OR PRINTED)
TITLE:
-----------------------
DATE:
------------------------
INFOCURE CORPORATION
"SUBLESSEE"
----------------------------------- BY:
WITNESS --------------------------
NAME:
--------------------------
(TYPED OR PRINTED)
TITLE:
-----------------------
DATE:
------------------------
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