Tennessee-Nashville-Burton Hills II Sublease - Phycor Inc. and iPayment Technologies Inc.
SUBLEASE
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THIS SUBLEASE (this "Sublease" is made and entered into as of the 13th day
of March, 2001, by and between PHYCOR, INC. ("Sublandlord"), and IPAYMENT
TECHNOLOGIES, INC., a California corporation ("Subtenant");
WITNESSETH:
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WHEREAS, by that certain Lease Agreement dated October 28, 1993, a copy of
which is attached hereto as Exhibit A and by this reference is incorporated
herein and made a part hereof (collectively, the "Prime Lease"), Cornerstone
Suburban Office L.P., ("Landlord"), leased to Sublandlord certain space on the
1st floor in the building known as the Burton Hills II (the "Building"), in
Nashville, Tennessee, containing 2,075 rentable square feet (the "Premises"),
for a term ending on August 30, 2003 (the "Termination Date"); and
WHEREAS, Subtenant desires to sublease from Sublandlord, and Sublandlord
desires to sublease to Subtenant, the Premises, as described on Exhibit B (the
"Sublease Premises"), all upon the terms and subject to the conditions and
provisions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, Sublandlord and Subtenant hereby agree as follows:
1. Demise: Use. Sublandlord hereby leases to Subtenant and Subtenant
hereby leases from Sublandlord the Sublease Premises for the term and rental and
upon the other terms and conditions hereinafter set forth, to be used and
occupied by Subtenant solely for general business office purposes.
2. Term. This Sublease shall commence upon the latter of (a) March 15,
2001 or the date Sublandlord vacates the sublease premises (the "Commencement
Date"), and shall terminate upon the first to occur of (i) termination of the
Prime Lease or (ii) the Termination Date.
3. Base Rent. Subtenant shall pay without deduction or set-off to
Sublandlord Base Rental (the "Base Rent") for the Sublease Premises in the
amounts set forth below. Upon the written agreement of the Landlord,
Sublandlord, and the Subtenant, Subtenant may be directed to pay the Base Rent
directly to the Landlord, provided Subtenant delivers to Sublandlord copies of
all bills received and payments made for the Base Rent to the Landlord. In the
event that Subtenant defaults in any payments made directly to Landlord,
Landlord shall give notice of such default to Sublandlord within ten (10) days
of default and Sublandlord shall be allowed, but not required, to cure such
default within ten (10) days of receive of notice from the Landlord.
Notwithstanding the forgoing, Base Rent shall not commence until the
Commencement Date, provided, however in the event that Sublandlord vacates the
Sublease Premises after March 19, 2001, the Base Rental shall abate until April
1, 2001, at which time the first rental payment shall be due. In the event that
Sublandlord fails to vacate the Sublease Premises prior to 5:00 PM CST on May
23, 2001, Subtenant, in its sole discretion, shall have the right to terminate
this Sublease
<PAGE>
Agreement without penalty by providing Sublandlord written notice of its
election to terminate by 5:00 PM CST on May 26, 2001.
Rentable
From To /Sq. Ft. /Year /Mo.
---- -- -------- -------- ----
Commencement
Date 8/31/03 $19.00 $39,425.00 $3,285.42
Base Rent shall be payable in monthly installments in the amounts set forth
above, and each such installment shall be due and payable in advance, starting
on the Commencement Date and continuing on the first (1st) day of each calendar
month thereafter. If this Sublease ends or begins on a day other than the first
or last day of a month, respectively, the monthly installment of Base Rent for
such month shall be prorated except as provided above.
4. Additional Rent; Payments; Interest
(a) Subtenant also shall pay to Sublandlord all other amounts
payable by Sublandlord under the Prime Lease that are attributable to the
Sublease Premises or attributable to Subtenant, its agents, employees,
customers or invitees, including any current or future adjustments to Base
Rental under Article 4 (the "Operating Expenses") in the Prime Lease in excess
of the Operating Expenses for the calendar year 2001. Furthermore, Subtenant
shall be responsible for all amounts expended by Landlord or Sublandlord to
remove or discharge liens or claims attributable to, but not settled by,
Subtenant.
(b) Each amount due pursuant to subsection (a) above and each other
amount payable by Subtenant hereunder, unless a date for payment of such amount
is provided for elsewhere in this Sublease, shall be due and payable, in the
case of any adjustment to Base Rent, on the same dates that monthly
installments of Base Rent are payable, and in the case of any other such
amount, on the tenth (10th) day following the date on which Landlord or
Sublandlord has given notice to Subtenant on the amount thereof.
(c) All amounts payable to Sublandlord under this Sublease shall be
deemed to be rent. If all installments of rent are not paid within five (5)
days after the same are due, Subtenant shall pay Sublandlord a late charge
equal to ten percent (10%) of such installment. All rent shall be paid without
notice, demand, setoff or deduction whatsoever except as expressly may be
provided herein.
(d) Except for Base Rent, which shall be paid to Sublandlord,
Subtenant may pay to Landlord all amounts that are billed by Landlord directly
to Subtenant; provided Subtenant delivers to Sublandlord copies of all such
bills and receipts paid to Landlord. Sublandlord consents to this arrangement
and will give Subtenant credit for same against Subtenant's obligations to pay
such amounts under this Sublease.
5. Security Deposit. Upon execution of this Sublease, Sublandlord,
Subtenant and an escrow agent selected by Sublandlord and approved by Subtenant
(the "Escrow Agent"), shall enter into an Escrow Agreement, whereby Subtenant
shall deposit the sum of $10,000.00 as a security deposit (the "Security
Deposit"). Escrow Agent shall hold the Security Deposit as
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security for the full and faithful performance by Subtenant of all terms,
covenants, and conditions of this Sublease to be performed on the part of
Subtenant. Upon notice from Sublandlord of a default, the Escrow Agent shall
transfer so much of the funds held in escrow to Sublandlord as Sublandlord
requests. Upon written request by Subtenant and approval by Sublandlord in
writing, the Security Deposit renaming in escrow, if any, will be returned to
Subtenant after the expiration or termination of the Sublease. The Subtenant
shall not mortgage, pledge, or otherwise attempt to convey an interest in the
Security Deposit. The Security Deposit shall not be subject to any mortgage,
pledge, assignment or any lien or encumbrance of any kind. Subtenant shall be
responsible for all fees and expenses charged by the Escrow Agent.
6. Condition of the Sublease Premises.
(a) Subtenant's taking possession of the Sublease Premises shall be
conclusive evidence as against Subtenant that the Sublease Premises were in good
order and satisfactory condition when Subtenant took possession. Without
limiting or modifying any of Landlord's or Sublandlord's obligations to maintain
the Sublease Premises as provided in the Prime Lease or herein, Subtenant
acknowledges that it will be taking possession of the Sublease Premises in their
current "AS-IS" and "WHERE LOCATED" condition. No promise of Sublandlord to
alter, remodel and improve the Sublease Premises and no representation
respecting the condition of the Sublease Premises or the Building, except as
expressly set forth herein, has been made by Sublandlord to Subtenant. Upon the
expiration or earlier termination of this Sublease, Subtenant shall surrender
the Sublease Premises in the condition required by the Prime Lease.
(b) Subtenant expressly acknowledges and understands that neither
Sublandlord nor Landlord has made or is making any representation or warranty as
to compliance of the Sublease Premises with any applicable law, including, but
not limited to, any environmental laws or the Americans With Disabilities Act of
1990 (the "ADA"). Subtenant warrants that its use of the Sublease Premises and
the materials used in the conduct of its business operations at and on the
Sublease Premises, or the manner of use, and its waste, effluent and vapors will
not violate any laws, ordinances, rules or regulations relating to or affecting
the environment or dealing with environmental matters, as hereinafter defined,
or hazardous substances of any kind or nature, whether imposed or enforced by
any state, local or federal agency, and that Subtenant shall alter its use of
the Sublease Premises to comply with such laws, ordinances, rules or regulations
if required to do so by any such governmental agency. Subtenant shall not use
the Sublease Premises, maintain them nor allow use of the Sublease Premises in
any manner constituting a violation of any ordinance, statute, rule, regulation
or order of any governmental authority, including, but not limited to, the ADA,
zoning ordinances, or environmental rules, regulations and laws, nor will
Subtenant maintain or permit any nuisance to occur or to be maintained on the
Sublease Premises. Subtenant shall not cause or permit injury or waste to the
Sublease Premises or the Building, and shall keep the Sublease Premises and the
Parking Garage, loading, unloading, service and public areas used by Subtenant
clear and free from rubbish, dirt, and debris at all times, and shall store all
trash, garbage, and debris within the Sublease Premises until the regular pickup
thereof.
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7. The Prime Lease.
(a) Except as expressly set forth below, this Sublease and all rights
of Subtenant hereunder and with respect to the Sublease Premises are subject to
the terms, conditions and provisions of the Prime Lease. Subtenant shall be
entitled to exercise and enjoy all of the rights and benefits of Sublandlord, as
tenant, under the Prime Lease, subject to all of the terms and provisions of the
Prime Lease and except as otherwise provided in this Sublease. Subtenant hereby
assumes and agrees to perform faithfully and be bound by, with respect to the
Sublease Premises, all of Sublandlord's obligations, covenants, agreements and
liabilities as tenant under the Prime Lease and all terms, conditions,
provisions and restrictions contained in the Prime Lease arising from and after
the date hereof except:
for the payment of Base Rental to be paid buy Sublandlord under Article 1
paragraph K of the Prime Lease;
(b) Without limitation of the foregoing:
(i) Subtenant shall not make any alteration, additions or
improvements in or to the Sublease Premises except in
accordance with the provisions of the Prime Lease.
(ii) If Subtenant desires to take any action and the Prime Lease
would require that Sublandlord obtain the consent of
Landlord before undertaking an action of the same kind,
Sublandlord may require Subtenant to contact Landlord
directly for such consent. Further, Subtenant shall not
undertake such action without the prior written consent of
Sublandlord, not to be unreasonably withheld, and
Sublandlord may condition its consent on the consent of
Landlord being obtained.
(iii) Sublandlord shall also have all rights, privileges,
options, reservations and remedies, granted or allowed to,
or held by, Landlord under the Prime Lease.
(iv) Subtenant shall maintain all insurance in the amounts
required to be maintained by Sublandlord under the Prime
Lease.
Subtenant shall furnish evidence satisfactory to Landlord
and Sublandlord of the maintenance of such insurance and
shall use its best efforts to obtain a written obligation
on the part of each insurance company to notify Landlord
and Sublandlord at least thirty (30) days prior to the
cancellation of such insurance. All policies of insurance
carried by Subtenant shall name as additional insureds
Sublandlord, Landlord, and the mortgagees of Landlord, as
their interest may appear. Prior to taking possession of
the Sublease Premises, Subtenant shall deliver copies of
insurance certificates to both Sublandlord and Landlord,
and such certificates
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shall state that the applicable policies cannot be canceled
without at least thirty (30) days prior notice to Sublandlord
and Landlord.
(v) Subtenant shall not do anything or suffer or permit anything to
be done that would result in a default under the Prime Lease or
permit the Prime Lease to be canceled or terminated.
(c) Notwithstanding anything contained herein or in the Prime Lease that
may appear to the contrary, Sublandlord and Subtenant hereby agree as
follows:
(i) Subtenant shall not assign, mortgage, pledge, hypothecate or
otherwise transfer or permit the transfer of this Sublease or
any interest of Subtenant in this Sublease, by operation of law
or otherwise, or permit the use of the Sublease Premises or any
part thereof by any persons other than Subtenant and Subtenant's
employees, or sublet the Sublease Premises or any part thereof
without the prior consent of the Sublandlord which shall not be
unreasonably withheld, and any attempt to do any of the
foregoing without the prior express written consent of
Sublandlord shall be void and of no effect.
(ii) Neither Base Rent nor other payments due or coming due
hereunder shall abate by reason of any damage to or destruction
of the Sublease Premises, or the Building or any part thereof,
unless, and then only to the extent that, rental and such other
payments actually abate under the Prime Lease with respect to
the Sublease Premises on account of such event.
(iii) Subtenant shall not have any right to any portion of the
proceeds of any award for a condemnation or other taking, or a
conveyance in lieu thereof, of all or any portion of the
Building or the Sublease Premises, except that Subtenant shall
be entitled to appear, claim, prove and receive in the
condemnation proceeding such award as may be made as represents
the loss or damage to Subtenant's trade fixtures and removable
personal property, removal or relocation costs, and the
unamortized balance of any Building Nonstandard Work or
alterations installed in the Sublease Premises by Subtenant, and
any incidental damages, all at Subtenant's expense.
(iv) To the extent that the Prime Lease imposes obligations on the
tenant thereunder that are greater than the obligations imposed
on Subtenant under this Sublease, the obligations imposed by the
Prime Lease shall be deemed to supplement the obligations
imposed by this Sublease. To the extent that the Prime Lease
imposes obligations on the tenant thereunder that conflict with
the obligations of Subtenant under this Sublease, the
obligations
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imposed by such Prime Lease shall supersede the obligations
imposed by this Sublease.
(v) Except as expressly set forth in this Sublease. Sublandlord
does not assume and shall not have any of the obligations or
liabilities of Landlord under the Prime Lease and Sublandlord
is not making the representations or warranties, if any, made
by Landlord in the Prime Lease. With respect to work, services,
repairs and restoration or the performance of other obligations
required of Landlord under the Prime Lease, Sublandlord's sole
obligation with respect thereto shall be to request the same,
upon written request from Subtenant, and to use reasonable
efforts to obtain the same from Landlord. Sublandlord shall not
be liable in damages, nor shall rent abate hereunder, for or on
account for any failure by Landlord to perform the obligations
and duties imposed on it under the Prime Lease, except, and
only to the extent that, rent abates under the Prime Lease on
account of such event.
8. Default by Subtenant. Upon the happening of any of the following:
(a) Subtenant's failure to pay any installment of Base Rent within
five (5) days after the date when due;
(b) Subtenant's failure to pay any other amount due from Subtenant
hereunder and such failure continues for five (5) days after notice thereof from
Sublandlord to Subtenant;
(c) Subtenant's failure to perform or observe any other covenant or
agreement set forth in this Sublease and such failure continues for fifteen
(15) days after notice thereof from Sublandlord to Subtenant, or in the case of
a default that cannot, with due diligence, be cured within said fifteen (15)
days period, Subtenant's failure to commence to cure such default within said
fifteen (15) day period and thereafter diligently prosecute the same; or
(d) The occurrence of any other event involving Subtenant, any
guarantor of Subtenant's obligations under the Sublease, or the Sublease
Premises that would constitute a default under the Prime Lease if it involved
Sublandlord, any guarantor of Sublandlord's obligations under the Prime Lease,
or the Sublease Premises;
Subtenant shall be deemed to be in default hereunder, and Sublandlord may
exercise, without limitation of any other rights and remedies available to it
hereunder or at law or in equity ,any and all rights and remedies of Landlord
set forth in the Prime Lease in the event of a default by the tenant
thereunder. No receipt of moneys by Sublandlord from Subtenant after the
termination in any way of the term or of Subtenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the term or affect any notice given to Subtenant or any suit commenced or
judgment entered prior to receipt of such moneys, except to the extent
expressly agreed to by Sublandlord.
9. Right to Perform Obligations. In the event Subtenant fails or refuses
to make any payment or perform any covenant or agreement to be performed
hereunder by Subtenant,
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Sublandlord may make such payment or undertake to perform such covenant or
agreement (but shall not have any obligation to Subtenant to do so). In such
event, amounts so paid and amounts expended in undertaking such performance,
together with all reasonable costs, expenses and attorneys' fees incurred by
Sublandlord in connection therewith, shall be additional rent hereunder.
10. Subtenant's Quiet Enjoyment. Sublandlord covenants that so long as
Subtenant keeps, observes and performs all of the terms, conditions, provisions
and agreements herein contained on the part of Subtenant to be kept, observed
and performed, Subtenant shall during the term hereof peaceably and quietly
hold the Sublease Premises, subject to the terms, covenants, conditions,
provisions and agreements hereof, free from hindrance by Sublandlord.
11. Representations and Warranties Regarding Prime Lease. Sublandlord
hereby represents and warrants to Subtenant as follows:
(a) As of the date hereof, the Prime Lease is in full force and
effect.
(b) The copy of the Prime Lease attached hereto is true and complete
and the Prime Lease has not been modified or amended, except as indicated
herein.
12. Waiver of Claims and Indemnity.
(a) Subtenant hereby releases and waived any and all claims against
Sublandlord and its officers, directors, partners, members, agents and
employees for injury or damage to person, property or business sustained in or
about the Building or the Sublease Premises by Subtenant, other than by reason
of gross negligence or willful misconduct of Sublandlord and except in any case
which would render this release and waiver void under the law.
(b) Subtenant agrees to indemnify, defend and hold harmless
Sublandlord and its members, officers, directors, partners, agents and
employees, from and against any and all claims, demands, costs and expenses of
every kind and nature, including attorneys' fees and litigation expenses
(hereinafter "Claims"), arising from Subtenant's occupancy of the Sublease
Premises, Subtenant's construction of any leasehold improvements in the Sublease
Premises or from any breach or default on the part of Subtenant in the
performance of any agreement or covenant of Subtenant performed or to be
performed under this Sublease or pursuant to the terms of this Sublease, or
from any act or neglect of Subtenant or its agents, members, officers,
employees, guests, servants, invitees or customers in or about the Sublease
Premises. In case any such proceeding is brought against any of said
indemnified parties, Subtenant covenants, if requested by Sublandlord, to
defend such proceeding at its sole cost and expense by legal counsel reasonably
satisfactory to Sublandlord. The foregoing indemnity from Subtenant shall not
be construed to cover Landlord's or Sublandlord's breach of the Prime Lease or
this Sublease or either of said party's gross negligence or willful misconduct.
(c) Sublandlord agrees to indemnify, defend and hold harmless
Subtenant and its shareholders, officers, directors, partners, agents and
employees, from and against any and all Claims arising from any breach or
default on the part of Sublandlord in the performance of any agreement or
covenant of Sublandlord performed or to be performed under this Sublease or
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pursuant to the terms of this Sublease. In case any proceeding which is covered
by the indemnity described in the preceding sentence is brought against any of
said indemnified parties, Sublandlord covenants, if requested by Subtenant, to
defend such proceeding at its sole cost and expense by legal counsel reasonably
satisfactory to Subtenant. The foregoing indemnity from Sublandlord shall not
be construed to cover Claims which arise solely as a result of Landlord's
breach of the Prime Lease or of Subtenant's breach of this Sublease.
13. Bankruptcy. In the event the Prime Lease is rejected by Landlord in a
proceeding under the United States Bankruptcy Code or similar statutes relating
to insolvency, possession of the Sublease Premises by Subtenant shall be deemed
to be possession of the Sublease Premises by Sublandlord. Subtenant may
exercise Sublandlord's right to remain in possession of the Sublease Premises
and the terms of such possession shall be governed by the Prime Lease and this
Sublease.
14. Maintenance and Repair. Except for items that are the responsibility
of Landlord under the Prime Lease, Subtenant, at its own cost and expense,
shall maintain in good condition and repair the Sublease Premises and every
part thereof.
15. Brokerage Commissions. Each party hereby represents and warrants to
the other that it has had no dealings with any real estate broker or agent in
connection with this Sublease and that it knows of no real estate broker or
agent who is or might be entitled to a commission in connection with this
Sublease, except Mission Property Company, successor-in-interest to Eakin &
Smith Real Estate representing Sublandlord and Grubb & Ellis Centennial
representing Subtenant. Each party agrees to protect, defend, indemnify and
hold the other harmless from and against any and all claims inconsistent with
the foregoing representations and warranties for any brokerage, finder's or
similar fee or commission in connection with this Sublease, if such claims are
based on or relate to any act of the indemnifying party that is contrary to the
foregoing representations and warranties.
16. Successors and Assigns. This Sublease shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto.
17. Entire Agreement. This Sublease contains all the terms, covenants,
conditions and agreements between Sublandlord and Subtenant relating in any
manner to the rental, use and occupancy of the Sublease Premises. No prior
agreement or understanding pertaining to the same shall be valid or of any
force or effect. The terms, covenants and conditions of this Sublease cannot be
altered, changed, modified or added to except by a written instrument signed by
Sublandlord and Subtenant.
18. Notices.
(a) From and after the date hereof, Sublandlord and Subtenant shall
each immediately deliver to the other true, complete and exact copies of any
notices, demands, communications or other instruments or documents received
from, or given by or to Landlord, by either of them pertaining to any default
under the Prime Lease or in any way relating to or affecting the Prime Lease or
the Sublease Premises, including, but not limited to, receipts, notices and
letters. Sublandlord and Subtenant each immediately shall furnish the other with
any
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and all information such party may request concerning performance by the other
party of the covenants of the Prime Lease.
(b) Notices and demands required or permitted to be given by either
party to the other with respect hereto or to the Sublease Premises shall be in
writing and shall not be effective for any purpose unless the same shall be
served either by personal delivery with a receipt requested, by overnight
courier service or by United States certified or registered mail, return receipt
requested, postage prepaid; provided, however, that all notices of default shall
be served either by personal delivery with a receipt requested or by overnight
courier service, addressed as follows:
Sublandlord: PhyCor, Inc. ______________________
Attn: Mr. Brandon Dyson ___________
30 Burton Hills Blvd. #400 ________
Nashville, TN 37205 _______________
Subtenant: iPayment Technologies Inc.
Attn: Carl Grimstad
30 Burton Hills Blvd, Suite 520
Nashville, TN 37215
Notices and demands shall be deemed to have been given upon mailing, if mailed,
or, if made by personal delivery or by overnight courier service, then upon such
delivery. Either party may change its address for receipt of notices by giving
at least ten (10) days' prior notice to the other party.
19. Authority. Each party represents and warrants to the other that this
Sublease has been duly authorized, executed and delivered by and on its behalf
and constitutes its valid, enforceable and binding agreement. Notwithstanding
the foregoing, the effectiveness of this Sublease and Sublandlord's obligations
hereunder are expressly subject to the prior written consent of Landlord.
20. Examination. Submission of this instrument for examination or
signature does not constitute a reservation of or option for the Sublease
Premises or in any manner bind either party, and no lease, sublease or
obligation shall arise until this instrument is signed and delivered by
Sublandlord and Subtenant and written consent hereto is given by Landlord.
21. Severability. If any provision in this Sublease is or shall be deemed
to be illegal, invalid or unenforceable, the remaining provisions hereof shall
not be affected or impaired, and such remaining provisions shall remain in full
force and effect and shall be interpreted as if such illegal, invalid or
unenforceable provisions did not exist.
22. Nonwaiver. Failure of either party to declare any default or delay in
taking any action in connection therewith shall not waive such default.
23. Cumulative Rights and Remedies. All rights and remedies of Sublandlord
and Subtenant under this Sublease shall be cumulative and none shall exclude any
other rights or remedies allowed by law.
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24. Attorneys' Fees. In the event of a dispute arising from this Sublease
that results in litigation, the party at fault, as determined by the applicable
court, shall pay the prevailing party's reasonable attorneys' fees and expenses.
25. Memorandum of Sublease. Either party shall, upon written request of
the other or of the Landlord, promptly execute, acknowledge and deliver to the
other a short-form sublease or notice of sublease or memorandum of sublease for
recording purposes, and all costs and expenses related thereto shall be borne
by the requesting party.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the date aforesaid.
SUBLANDLORD:
PHYCOR, INC.
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------------
Title: VP, [ILLEGIBLE]
SUBTENANT:
IPAYMENT TECHNOLOGIES, INC., a California
corporation
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------------
Title: EVP
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