Georgia-Atlanta-1765 The Exchange Lease - InfoCure Corp. and PracticeWorks Systems LLC
LEASE AGREEMENT
BETWEEN
INFOCURE CORPORATION, ITS
SUCCESSORS AND/OR ASSIGNS ("LANDLORD")
AND
PRACTICEWORKS SYSTEMS, LLC ("TENANT")
-------------------------------------------------------------
DEMISED PREMISES
59,323 RSF
1765 THE EXCHANGE
ATLANTA, GA 30339
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OFFICE LEASE
THIS LEASE made effective as of the 6th day of March, 2001, between INFOCURE
CORPORATION, ITS SUCCESSORS AND/OR ASSIGNS, 239 ETHAN ALLEN HIGHWAY, RIDGEFIELD,
CT 06877 , as landlord ("Landlord") and PRACTICEWORKS SYSTEMS, LLC, 1765 THE
EXCHANGE, SUITE 200, ATLANTA, GA 30339, as tenant ("Tenant").
WITNESSETH:
ARTICLE I
PREMISES AND TERM
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
that certain space known as Suite 100 containing 9,768 rsf, Suite 105 containing
987 rsf, Suite 200 containing 9,266 rsf, Suite 250 containing 7,629 rsf, Suite
300 containing 7,700 rsf, Suite 350 containing 5,578 rsf, and Suite 500
containing 18,395 rsf (such suites, or such portions of suites occupied by
Tenant and governed by this Lease subject to Article 4, collectively referred to
herein as the "Premises") in the building located at 1765 The Exchange
("Building"), Atlanta, Georgia ("Property," as further described in Article 24),
subject to the provisions herein contained. The term ("Term") of this Lease
shall commence on the 6th day of March, 2001 ("Commencement Date"), and end on
August 31, 2006 ("Expiration Date"), except as otherwise provided herein. The
Commencement Date shall be subject to adjustment as provided in Article 4.
Landlord and Tenant agree that for purposes of this Lease the total rentable
area of the Premises shall be 59,323 square feet (as of the "Target Commencement
Date" or such later date as described in Article 4) and the rentable area of the
Property is 90,215 square feet.
ARTICLE 2
BASE RENT
Tenant shall pay Landlord monthly Base Rent of FORTY FOUR THOUSAND SEVEN
HUNDRED NINETY TWO AND 50/100 DOLLARS ($44,792.50), in advance on or before the
first day of each calendar month during the Term, except that Base Rent for the
first and second full calendar month for which Base Rent shall be due, shall be
paid when Tenant executes this Lease. If the Term commences on a day other than
the first day of a calendar month, or ends on a day other than the last day of a
calendar month, then the Base Rent for such month shall be prorated on the basis
of 1/30th of the monthly Base Rent for each day of such month. (See Article 39
for the complete base rent schedule).
ARTICLE 3
ADDITIONAL RENT
(A) OPERATING EXPENSES. In addition to the Base Rent required to be
paid hereunder, in the event the sum of Landlord's Operating Expenses shall, in
any calendar year during the term, exceed Operating Expenses for the Building
incurred during the Base Year, Tenant agrees to pay as Additional Rent Tenant's
Prorata share of such excess Operating Expenses on a per rentable square foot
per annum basis. The terms "OPERATING EXPENSES", "TENANT'S PRORATA SHARE" and
"BASE YEAR" shall have the meanings specified in Article 24.
(B) MANNER OF PAYMENT.
(i) Following the Base Year, Landlord may reasonably estimate
in advance the amounts Tenant shall owe for Operating Expenses in excess of the
Base Year for any full calendar year of the Term. In such event, Tenant shall
pay such estimated amounts, on a monthly basis, on or before the FIRST day of
each calendar month, together with Tenant's payment of Base Rent. Such estimate
may be reasonably adjusted once per year by Landlord as set forth in paragraph
(ii) below.
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(ii) Within 120 days after the end of each calendar year
including the Base Year, Landlord shall provide a statement (the "Statement") to
Tenant showing: (a) the amount of actual Operating Expenses for such calendar
year, with a listing of amounts for major categories of Operating Expenses, (b)
any amount paid by Tenant towards Operating Expenses during such calendar year
on an estimated basis, (c) any revised estimate of Tenant's obligations for
Operating Expenses for the current calendar year and (d) the amount of Operating
Expenses for the Base Year, with a listing of amounts for the major categories
of Operating Expenses.
(iii) If the Statement shows that Tenant's estimated payments
were less than Tenant's actual obligations for Operating, Expenses for such
year, Tenant shall pay the difference. If the Statement shows an increase in
Tenant's estimated payments for the current calendar year, Tenant shall pay the
difference between the new and former estimates, for the period from January 1
of the current calendar year through the month in which the Statement is sent.
Tenant shall make all such payments contemplated in this paragraph, within
thirty (30) days after Landlord sends the Statement.
(iv) If the Statement shows that Tenant's estimated payments
exceeded Tenant's actual obligations for Operating Expenses, Tenant shall
receive a credit for the difference against payments of Rent next due. If the
Term shall have expired and no further Rent shall be due, Tenant shall receive a
refund of such difference, within thirty (30) days after Landlord sends the
Statement.
(v) So long as Tenant's obligations hereunder are not
materially adversely affected thereby, Landlord reserves the right to reasonably
change, from time to time, the manner or timing, of the foregoing payments. No
reasonable delay by Landlord in providing the Statement (or separate statements)
shall be deemed a default by Landlord or a waiver of Landlord's right to require
payment of Tenant's obligations for actual or estimated Operating Expenses. In
no event shall a decrease in Operating Expenses ever decrease the monthly Base
Rent.
(D) PRORATION. If the Term commences other than on January 1, or ends
other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Operating Expenses for such first or final calendar years shall
be prorated to reflect the portion of such years included in the Term. Such
proration shall be made by multiplying the total estimated or actual (as the
case may be) Operating Expenses, for such calendar years, by a fraction, the
numerator of which shall be the number of days of the Term during such calendar
year, and the denominator of which shall be 365.
(E) LANDLORD'S RECORDS. Landlord shall maintain records respecting
Operating Expenses and determine the same in accordance with sound accounting
and management practices, consistently applied. Although this Lease contemplates
the computation of Operating Expenses on a cash basis, Landlord shall make
reasonable and appropriate accrual adjustments to ensure that each calendar year
includes substantially the same recurring items. Landlord reserves the right to
change to a full accrual system of accounting so long as the same is
consistently applied and Tenant's obligations are not materially adversely
affected. Tenant or its representative shall have the right to examine such
records upon reasonable prior notice specifying such records Tenant desires to
examine, during normal business hours at the place or places where such records
are normally kept by sending such notice no later than sixty (60) days following
the furnishing of the Statement. Tenant may take exception to matters included
in Operating Expenses, or Landlord's computation of Tenant's Prorata Share, by
sending notice specifying such exception and the reasons therefore to Landlord
no later than sixty (60) days after Landlord makes such records available for
examination. Such Statement shall be considered final, except as to matters to
which exception is taken after examination of Landlord's records in the
foregoing manner and within the foregoing times. Tenant acknowledges that
Landlord's ability to budget and incur expenses depend on the finality of such
Statement, and accordingly agrees that time is of the essence of this Paragraph.
If Tenant takes exception to any matter contained in the Statement as provided
herein, Landlord shall refer the matter to an independent certified public
accountant mutually agreed upon by Landlord and Tenant, such accountant having
no prior affiliation with Tenant or Landlord whose certification as to the
proper amount shall be final and conclusive as between Landlord and Tenant.
Tenant shall promptly pay the cost of such certification unless such
certification determines that Tenant was overbilled by more than 3%, in which
event Landlord shall pay the cost of such certification. Pending resolution of
any such exceptions in the foregoing manner, Tenant shall continue paying
Tenant's Prorata Share of Operating Expenses in the amounts determined by
Landlord, subject to adjustment after any such exceptions are so resolved.
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(F) RENT AND OTHER CHARGES. Base Rent, Operating Expenses, and any other
amounts which Tenant is or becomes obligated to pay Landlord under this Lease or
other agreement entered in connection herewith, are sometimes herein referred to
collectively as "Rent," and all remedies applicable to the non-payment of Rent
shall be applicable thereto. Rent shall be paid at any office maintained by
Landlord or its agent at the Property, or at such other place as Landlord may
designate.
ARTICLE 4
COMMENCEMENT OF TERM FOR SUITE 100 AND SUITE 500
The commencement date for Suite 100 shall be July 1, 2001 ( "Target
Commencement Date"), except as otherwise provided herein. Rent for this portion
of the Premises shall commence 180 days thereafter ("Suite 100 Rent Commencement
Date"), except as otherwise provided herein. In the event the Target
Commencement Date shall be delayed then Rent shall be abated to the extent that
Landlord fails to deliver possession of the Premises for Suite 100 for any
reason on or before the Target Commencement Date, including but not limited to
holding over by prior occupants, except to the extent that Tenant, its
contractors, agents or employees in any way contribute to such failure. Landlord
and Tenant hereby acknowledge that Suite 100 is a necessary and integral part of
Tenant's operations at the Premises and a material inducement for Tenant
entering into this Lease. If Landlord's failure to deliver Suite 100 continues
beyond one hundred twenty (120) days from the intended Target Commencement Date,
or such additional time as may be necessary due to fire or other casualty,
strikes, lock-outs or other labor troubles, weather conditions, shortages of
material, equipment or labor, governmental requirements, power shortages or
outages, or other causes beyond Landlord's reasonable control (collectively,
"force majeure events"), Tenant shall have the right, but not the obligation, to
terminate this Lease, by written notice to Landlord (the "Termination Notice")
any time thereafter up until Landlord delivers Suite 100 to Tenant. If Tenant
exercises its right to terminate, this Lease shall terminate on the date so
selected by Tenant in the Termination Notice which date shall not be less than
three months nor later than six months from the date such notice is delivered to
Landlord (the "Termination Date"), and on the Termination Date this Lease shall
terminate and come to an end as though the date selected by Tenant were the last
day of the natural expiration of the Term; provided, however, that no such
termination shall affect or limit any obligations or liabilities of Tenant or
Landlord arising or accruing under this Lease prior to the effective date of any
such termination. Any such delay shall not subject Landlord to liability for
loss or damage resulting therefrom, and Tenant's sole recourse with respect
thereto shall be the abatement of Rent and right to terminate this Lease as
described above. Tenant shall be permitted to enter Suite 100 at any time after
the Target Commencement Date but prior to the Suite 100 Rent Commencement Date
to perform alterations or improvements and/or to occupy same for the purpose of
conducting its business, so long as Tenant shall comply with all terms and
provisions of this Lease, except those provisions requiring the payment of Rent.
Landlord shall deliver the fifth floor ("Suite 500") as of the date
hereof, in its "as is, where is" condition, so that Tenant may commence tenant
fit-up and finish work. Once Tenant has completed its tenant finish work, Tenant
shall have the right to occupy Suite 500 for the purpose of conducting its
business. Notwithstanding the foregoing, the Tenant's obligation to pay rent for
Suite 500 shall commence on October 1, 2001 ("Suite 500 Rent Commencement
Date").
ARTICLE 5
USE AND RULES
Tenant shall use the Premises for general office purposes and training, in
compliance with all applicable Laws, and without disturbing or interfering with
any other tenant or occupant of the Property. Tenant shall not use the Premises
in any manner so as to cause a cancellation of Landlord's insurance policies, or
an increase in the premiums thereunder. Tenant shall comply with all rules set
forth in Exhibit "A" attached hereto (the "Rules"). Landlord shall have the
right to reasonably amend such Rules and supplement the same with other
reasonable Rules (not expressly inconsistent with this Lease) relating to the
Property, or the promotion of safety, care, cleanliness or good order therein,
and all such amendments or new Rules shall be binding upon Tenant after five (5)
days' notice thereof to Tenant so long as such modifications do not materially,
adversely impact upon Tenant's use or access to the Premises. All Rules shall be
applied on a non-discriminatory basis, but nothing herein shall be construed to
give
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Tenant or any other Person (as defined in Article 24) any claim, demand or cause
of action against Landlord arising out of the violation of such Rules by any
other tenant, occupant, or visitor of the Property, or out of the enforcement or
waiver of the Rules by Landlord in any particular instance. Subject to force
majeure events, Tenant shall have twenty-four (24) hour access to Building and
Premises 365 days per year.
ARTICLE 6
SERVICES AND UTILITIES
Landlord shall provide the following services and utilities (the cost of
which shall be included in Operating Expenses unless otherwise stated herein or
in any separate Exhibit hereto):
(A) Electricity for standard office lighting fixtures, and equipment and
accessories for offices where: (1) the connected electrical load of all of the
same does not exceed an amount necessary for normal OFFICE use and consistent
with rentable square footage of the Premises, (2) the electricity will be at
nominal 120 volts, single phase (or 110 volts, depending on available service in
the Building), and (3) the safe and lawful capacity of the existing electrical
circuit(s) serving the Premises is not exceeded. Tenant hereby agrees that, as
of the date of this Lease, the operations of Tenant currently in place at the
Premises do not exceed a necessary amount of electrical load for normal office
use.
(B) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and customary in comparable office buildings in
Atlanta, Georgia and in accordance with applicable Law, for occupancy of the
Premises under normal business operations, from 8:00 a.m. until 6:00 p.m. Monday
through Friday, and Saturday 8:00 a.m. to 1:00 p.m., except on Holidays (as
defined in Article 25). Landlord shall not be responsible for inadequate
air-conditioning or ventilation to the extent the same occurs because Tenant
uses any item of equipment consuming more than 500 watts at rated capacity
(except for normal office copiers) without providing adequate air-conditioning
and ventilation therefor. Tenant hereby agrees to modify the HVAC, or that
portion of the HVAC serving Suite 500, if necessary, to the extent such HVAC
becomes inadequate as a result of Tenant's occupancy. After hours HVAC is
available to Tenant, upon prior notice of twenty-four (24) hours, at fifty $50
Dollars per hour.
(C) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of tenants at the Property.
(D) Customary office cleaning and trash removal service on Monday through
Friday (or Sunday through Thursday), except on Holidays, in and about the
Premises.
(E) Operatorless passenger elevator service and freight elevator service
in common with Landlord and other tenants and their contractors, agents and
visitors.
(F) All building standard fluorescent bulb replacement in all areas and
all incandescent bulb replacement in public areas, toilet and restroom areas,
and stairwells.
(G) Landlord shall seek to provide such extra utilities or services as
Tenant may from time to time request, if the same are reasonable and feasible
for Landlord to provide and do not involve modifications or additions to the
Property or existing Systems and Equipment (as defined in Article 24), and if
Landlord shall receive Tenant's request within a reasonable period prior to the
time such extra utilities or services are required. Landlord may comply with
written or oral requests by any officer or employee of Tenant, unless Tenant
shall notify Landlord of, or Landlord shall request, the names of authorized
individuals (up to 3 for each floor on which the Premises are located) and
procedures for written requests. Tenant shall, for such extra utilities or
services, pay such charges as Landlord shall from time to time reasonably
establish. The initial cost for after-hour HVAC shall be $50 per hour. All
charges for such extra utilities or services shall be due at the same time as
the installment of Base Rent with which the same are billed, or if billed
separately, shall be due within thirty (30) days after such billing.
Landlord may install and operate meters or any other reasonable system for
monitoring or estimating any services or utilities used by Tenant in excess of
those required to be provided by Landlord under this Article
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(including a system for Landlord's engineer to reasonably estimate any such
excess usage). If such system indicates such excess services or utilities,
Tenant shall pay Landlord's reasonable charges for installing and operating such
system and any supplementary air-conditioning, ventilation, heat, electrical or
other systems or equipment (or adjustments or modifications to the existing
Systems and Equipment), and Landlord's reasonable charges for such amount of
excess services or utilities used by Tenant. Such reasonable charges for
utilities shall not be marked up and shall reflect the cost for actual use
incurred by the Tenant.
Landlord does not warrant that any services or utilities will be free from
shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, weather conditions, inability
to obtain services, fuel, steam, water or supplies, governmental requirements or
requests, or other causes beyond Landlord's reasonable control. None of the same
shall 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 abatement
of Rent, or relieve Tenant from performance of Tenant's obligations under this
Lease. Landlord in no event shall be liable for damages by reason of loss of
profits, business interruption or other consequential damages so long as
Landlord is diligently working to restore such service whenever reasonably
possible. Landlord hereby agrees that Landlord shall perform all work requiring
utilities or other services to be temporarily suspended during non-business
hours, except in the event of emergency.
ARTICLE 7
ALTERATIONS AND LIENS
Except as provided herein, Tenant shall make no additions, changes,
alterations or improvements the cost of which exceeds $5,000.00 in the aggregate
(the "Work") to the Premises or the Systems and Equipment (as defined in Article
25) pertaining to the Premises without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed.
Landlord may impose reasonable requirements as a condition of such consent
including without limitation the submission of plans and specifications for
Landlord's prior written approval, obtaining necessary permits, obtaining
insurance, prior approval of contractors, subcontractor and suppliers, prior
receipt of copies of all contracts and subcontracts contractor and subcontractor
lien waivers, affidavits listing all contractors, subcontractors and suppliers,
affidavits from engineers acceptable to Landlord stating that the Work will not
adversely affect the Systems and Equipment or the structure of the Property, and
requirements as to the manner and times in which such Work shall be done. All
Work shall be performed in a good and workmanlike manner in compliance with all
applicable governmental standards, rules and regulations and approval
requirements and all materials used shall be of a quality comparable to or
better than those in the Premises and Property and shall be in accordance with
plans and specifications approved by Landlord, and Landlord may require that all
such Work be performed under Landlord's supervision. Tenant shall pay Landlord a
reasonable fee to cover Landlord's overhead in reviewing Tenant's plans and
specifications and performing any supervision of the Work. Landlord consent or
supervision shall not be deemed a warranty as to the adequacy of the design,
workmanship or quality of materials, and Landlord hereby expressly disclaims any
responsibility or liability for the same. Landlord shall under no circumstances
have any obligation to repair, maintain or replace any portion of the Work,
unless damaged by the gross negligence of Landlord, its agents, employees or
contractors. Landlord hereby consents to Tenant's proposed alterations to Suite
100 and Suite 500, so long as such alterations are consistent with the
improvements existing in the Premises currently occupied by Tenant.
Tenant shall keep the Property and Premises free from any mechanic's,
materialman's or similar liens or other such encumbrances in connection with any
Work on or respecting the Premises not performed by or at the request of
Landlord, and shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including reasonable attorneys' fees
actually incurred) arising out of the same or in connection therewith. Tenant
shall give Landlord notice at least ten (10) days prior to the commencement of
any Work on the Premises (or such additional time as may be necessary under
applicable Laws), to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance caused by or connected with Tenant's work, by bond or otherwise
within thirty (30) days after written notice by Landlord, and if Tenant shall
fail to do so, Landlord may pay the amount necessary to remove such lien or
encumbrance, without being responsible for investigating the validity thereof.
The amount so paid shall be deemed additional Rent under this Lease payable upon
demand, without limitation as to other remedies available to Landlord
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under this Lease. Nothing contained in this Lease shall authorize Tenant to do
any act, which shall subject Landlord's title to the Property or Premises to any
liens or encumbrances whether claimed by operation of law or express or implied
contract. Any claim to a lien or encumbrance upon the Property or Premises
arising in connection with any Work on or respecting the Premises not performed
by or at the request of Landlord shall be null and void, or at Landlord's option
shall attach only against Tenant's interest in the Premises and shall in all
respects be subordinate to Landlord's title to the Property and Premises.
ARTICLE 8
REPAIRS
Except for customary cleaning and trash removal provided by Landlord under
Article 6, reasonable wear and tear, and damage covered under Article 9, Tenant
shall keep the Premises in good and sanitary condition, working order and repair
(including without limitation, carpet, wall-covering, doors, plumbing and other
fixtures, equipment, alterations and improvements whether installed by Landlord
or Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly arrange for the same. If Tenant does not
promptly make such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements, and the costs incurred by Landlord therefore shall
be reimbursed by Tenant promptly after request by Landlord. Tenant shall
indemnify Landlord and pay for any repairs, maintenance and replacements to
areas of the Property outside the Premises, caused, in whole or in part, as a
result of moving any furniture, fixtures, or other property to or from the
Premises, or caused by Tenant or its employees, agents, contractors, or visitors
(notwithstanding anything to the contrary contained in this Lease), so long as
Landlord provides to Tenant upon Tenant's request customary materials necessary
to protect elevators (i.e. elevator pads). Except as provided in the preceding
sentence, or for damage covered under Article 9, Landlord shall keep the common
areas of the Property in good and sanitary condition, working order and repair
(the cost of which shall be included in Operating Expenses, as described in
Article 24, except as limited therein).
ARTICLE 9
CASUALTY DAMAGE
If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other casualty, Landlord may use available
insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and other Laws or by any Holder (as
defined in Article 24), any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures or equipment, or any
alterations or improvements in excess of any work performed or paid for by
Landlord under any separate agreement signed by the parties in connection
herewith. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way from
such damage or the repair thereof. However, Landlord shall allow Tenant a
proportionate abatement of Rent during the time and to the extent the Premises
are unfit for occupancy for the purposes permitted under this Lease and not
occupied by Tenant as a result thereof (unless Tenant or its employees or agents
caused the damage). Notwithstanding the foregoing to the contrary, Landlord may
elect to terminate this Lease by notifying Tenant in writing of such termination
within sixty (60) days after the date of damage (such termination notice to
include a termination date providing at least ninety (90) days for Tenant to
vacate the Premises), if the Property shall be materially damaged by Tenant or
its employees or agents, or if the Property shall be damaged by fire or other
casualty or cause such that: (a) repairs to the Premises and access thereto
cannot reasonably be completed within 120 days after the casualty without the
payment of overtime or other premiums, (b) more than 25% of the Premises is
affected by the damage, and fewer than 24 months remain in the Term, or any
material damage occurs to the Premises during the last 12 months of the Term,
(c) any Holder (as defined in Article 24) shall require that the insurance
proceeds or any portion thereof be used to retire the Mortgage debt or the
damage is not fully covered by Landlord's insurance policies, or (d) the cost of
the repairs, alterations, restoration or improvement work would exceed 25% of
the replacement value of the Building, or the nature of such work would make
termination of this Lease necessary or convenient. Tenant agrees that the
remedies provided in this Article 9 shall be Tenant's sole recourse in the event
of such damage, and Tenant waives any other rights Tenant may have under any
applicable Law to terminate the Lease by reason of damage to the Premises or
Property. Tenant
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acknowledges that this Article represents the entire agreement between the
parties respecting Landlord's obligations concerning damage to the Premises or
Property.
ARTICLE 10
INSURANCE, SUBROGATION. AND WAIVER OF CLAIMS
Tenant shall maintain during the Term comprehensive (or commercial)
general liability insurance, with limits of not less than $1,000,000 combined
single limit for personal injury, bodily injury or death, or property damage or
destruction (including loss of use thereof) for any one occurrence. Tenant shall
also maintain during the Term worker compensation insurance as required by
statute, and primary, noncontributory, "all-risk" property damage insurance
covering Tenant's personal property, business records, fixtures and equipment,
for damage or other loss caused by fire or other casualty or cause including,
but not limited to, vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of pipes, explosion,
business interruption, and other insurable risks in amounts not less than the
full insurable replacement value of such property and full insurable value of
such other interests of Tenant (subject to reasonable deductible amounts).
Landlord shall, as part of Operating Expenses, maintain during the Term
comprehensive (or commercial) general liability insurance, with limits of not
less than $ 1,000,000 combined single limit for personal injury, bodily injury
or death, or property damage or destruction (including loss of use thereof) for
any one occurrence. Landlord shall also, as part of Operating Expenses, maintain
during the Term worker compensation insurance in an amount as required by
statute, and primary, noncontributory, "all-risk" property damage insurance
covering the Property, fixtures and equipment, for damage or other loss caused
by fire or other casualty or cause including, but not limited to, vandalism and
malicious mischief, theft, water damage of any type, including sprinkler
leakage, bursting or stoppage of pipes, explosion, business interruption, and
other insurable risks in amounts not less than the full insurable replacement
value of the Property and full insurable value of such other interests of
Landlord (subject to reasonable deductible amounts)..
Tenant shall provide Landlord with certificates evidencing such
coverage (and, with respect to liability coverage, showing Landlord and such
other parties as Landlord may designate from time to time as additional
insureds) prior to the Commencement Date, which shall state that such insurance
coverage may not be changed or canceled without at least twenty (20) days' prior
written notice to the other party, and shall provide renewal certificates to the
other party at least twenty (20) days prior to expiration of such policies.
Except as provided to the contrary herein, any insurance carried by Landlord or
Tenant shall be for the sole benefit of the party carrying such insurance. Any
insurance policies hereunder may be "blanket policies." All insurance required
hereunder shall be provided by responsible insurers and Tenant's insurer shall
be reasonably acceptable to Landlord. By this Article, Landlord and Tenant
intend that their respective property loss risks shall be borne by responsible
insurance carriers to the extent above provided, and Landlord and Tenant hereby
agree to look solely to, and seek recovery only from, their respective insurance
carriers in the event of a property loss to the extent that such coverage is
agreed to be provided hereunder. The parties each hereby waive all rights and
claims against each other for such losses, and waive all rights of subrogation
of their respective insurers, provided such waiver of subrogation shall not
affect the right of the insured to recover thereunder. The parties agree that
their respective insurance policies are now, or shall be, endorsed such that
said waiver of subrogation shall not affect the right of the insured to recover
thereunder. By this Article, Landlord and Tenant agree to look solely to, and
seek recovery only from, their respective insurance carriers in the event of a
property loss. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver shall not affect the right of the insured to
recover thereunder from its own insurance carrier.
ARTICLE II
CONDEMNATION
If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the
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use, reconstruction or remodeling of any part of the Premises or Property, or if
Landlord shall grant a deed or other instrument in lieu of such taking by
eminent domain or condemnation, Landlord or Tenant shall have the option to
terminate this Lease upon ninety (90) days' notice, provided such notice is
given no later than 180 days after the date of such taking, condemnation,
reconfiguration, vacation, deed or other instrument. Tenant shall have
reciprocal termination rights if the whole or any material part of the Premises
is permanently taken, or if access to, or parking for, the Premises is
permanently materially impaired. Landlord shall be entitled to receive the
entire award or payment in connection therewith, except that Tenant shall have
the right to file any separate claim available to Tenant for any taking, of
Tenant's personal property and fixtures belonging to Tenant and removable by
Tenant upon expiration of the Term, and for moving expenses (so long as such
claim does not diminish the award available to Landlord or any Holder, and such
claim is payable separately to Tenant). All Rent shall be apportioned as of the
date of such termination, or the date of such taking, whichever shall first
occur. If any part of the Premises shall be taken, and this Lease shall not be
so terminated, the Rent shall be proportionately abated.
ARTICLE 12
RETURN OF POSSESSION
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall surrender possession of the Premises in the
condition required under Article 8, ordinary wear and tear excepted, and shall
surrender all keys, any key cards, and any parking cards, to Landlord, and
advise Landlord as to the combination of any locks or vaults then remaining in
the Premises, and shall remove all personal property. All improvements, fixtures
and other items in or upon the Premises (except personal property belonging to
Tenant), whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain upon the Premises, all without compensation, allowance or
credit to Tenant. However, if prior to such termination or within ten (10) days
thereafter Landlord so directs by notice, Tenant shall promptly remove such of
the foregoing items as are designated in such notice and restore the Premises to
the condition prior to the installation of such items so long as Landlord
previously designated such items at the time of installation of same and;
provided, Landlord shall not require removal of customary office improvements
installed pursuant to any separate agreement signed by both parties (except as
expressly provided to the contrary therein), or installed by Tenant with
Landlord's written approval (except as expressly required by Landlord in
connection with granting such approval). If Tenant shall fail to perform any
repairs or restoration, or fail to remove any items from the Premises required
hereunder, Landlord may do so, and Tenant shall pay Landlord the cost thereof
upon demand. All property removed from the Premises by Landlord pursuant to any
provisions of this Lease or any Law may be handled or stored by Landlord at
Tenant's expense, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof.
All property not removed from the Premises or retaken from storage by Tenant
within thirty (30) days after expiration or earlier termination of this Lease or
Tenant's right to possession, shall at Landlord's option be conclusively deemed
to have been conveyed by Tenant to Landlord as if by bill of sale without
payment by Landlord. Unless prohibited by applicable Law, Landlord shall have a
lien against such property for the costs incurred in removing and storing the
same
ARTICLE 13
HOLDING OVER
Tenant agrees it shall indemnify, defend and save Landlord harmless
against all actual and direct costs, claims, loss or liability resulting from
delay by Tenant in surrendering the Premises upon the expiration or sooner
termination of the term of this Lease. Tenant agrees that if possession of the
Premises is not surrendered to Landlord upon the Expiration Date or sooner
termination of the term of this Lease, then Tenant will pay Landlord for each
month and for each portion of any month during which Tenant holds over in the
Premises after expiration or sooner termination of the term of this Lease (the
"Holdover Period"), a sum (the "Holdover Rent") equal to one hundred fifty
percent (150%) times the average of the monthly installments of Rent which was
payable per month under this Lease during the six (6) month period preceding
such expiration or sooner termination of the term of this Lease, which Holdover
Rent shall be in addition to all other costs, claims, losses or liabilities
which Tenant has agreed to
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indemnify Landlord against pursuant to this Article. If Landlord shall, at any
time after the expiration or sooner termination of the term hereof, proceed to
remove Tenant from the Premises as a holdover tenant, Tenant shall pay the
Holdover Rent for the Use and occupancy of the Premises during any Holdover
Period, Tenant's aforesaid obligations shall survive the expiration or earlier
termination of the term of this Lease. There shall be no renewal of this Lease
by operation of law.
ARTICLE 14
NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord shall
not constitute a waiver of any breach by Tenant of any term or provision of this
Lease. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the full amount due. The acceptance of Rent or of the performance of any other
term or provision from any Person other than Tenant, including any Transferee,
shall not constitute a waiver of Landlord's right to approve any Transfer.
ARTICLE 15
ATTORNEYS' FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing party
shall be entitled to obtain, as part of the judgment, all reasonable attorneys'
fees, costs and expenses actually incurred in connection with such litigation,
except as may be limited by applicable Law. In the interest of obtaining a
speedier and less costly hearing of any dispute, the parties hereby each
irrevocably waive the right to trial by jury.
ARTICLE 16
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises, and any
Work to the Premises under Article 7. Whenever possible, Tenant shall cause all
such items to be assessed and billed separately from the property of Landlord.
In the event any such items shall be assessed and billed with the property of
Landlord, Tenant shall pay Landlord its share of such taxes, charges or other
governmental impositions within thirty (30) days after Landlord delivers a
statement and a copy of the assessment or other documentation showing the amount
of such impositions applicable to Tenant's property. Tenant shall pay any rent
tax or sales tax, service tax, transfer tax or value added tax, or any other
applicable tax on the Rent or services herein or otherwise respecting this
Lease. Notwithstanding Tenant's obligation to pay the above-referenced taxes,
Tenant shall have the right to protest any taxes levied by any governmental
authority in accordance with this paragraph and shall not be in default
hereunder of its obligations to pay any such taxes during the pendency of such
protest or appeal.
ARTICLE 17
APPROVALS
Whenever Landlord's consent or approval is expressly required under this
Lease, (including Article 20 or any other agreement between the parties),
Landlord agrees that such consent or approval shall not be unreasonably
withheld, conditioned or delayed. Landlord shall only be permitted to withhold
such consent or approval in its sole and absolute discretion, where specifically
provided in this Lease.
ARTICLE 18
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SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages (as defined in
Article 24) now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the Property. If any
foreclosure proceedings are initiated by any Holder or a deed in lieu is
granted, Tenant agrees, upon written request of any such Holder or any purchaser
at foreclosure sale, to attorn and pay Rent to such party and to execute and
deliver any instruments necessary or appropriate to evidence or effectuate such
attornment (provided such Holder or purchaser shall agree to accept this Lease
and not disturb Tenant's occupancy, so long as Tenant does not default and fail
to cure within the time permitted hereunder). However, in the event of
attornment, no Holder shall be liable for any act or omission of Landlord, or
subject to any offsets or defenses which Tenant might have against Landlord
(prior to such Holder becoming Landlord under such attornment). Any Holder may
elect to make this Lease prior to the lien of its Mortgage, by written notice to
Tenant, and if the Holder of any prior Mortgage shall require, this Lease shall
be prior to any subordinate Mortgage. Tenant agrees to give any Holder by
certified mail, return receipt requested, a copy of any notice of default served
by Tenant upon Landlord, provided that prior to such notice Tenant has been
notified in writing (by way of service on Tenant of a copy of an assignment of
leases, or otherwise) of the address of such Holder. Tenant further agrees that
if Landlord shall have failed to cure such default within the times permitted
Landlord for cure under this Lease, any such Holder whose address has been
provided to Tenant shall have an additional period of thirty (30) days in which
to cure (or such additional time as may be required due to causes beyond such
Holder's control, including time to obtain possession of the Property by power
of sale or judicial action). Tenant shall execute such documentation as Landlord
may reasonably request from time to time, in order to confirm the matters set
forth in this Article in recordable form.
ARTICLE 19
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying, that this
Lease as so modified, is in full force and effect (or if this Lease is claimed
not to be in force and effect, specifying the ground therefor) and any dates to
which the Rent has been paid in advance, and the amount of any Security Deposit,
(ii) acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults if any
are claimed, and (iii) stating the term of the Lease and the amounts of all
rentals due thereunder. Any such statement may be relied upon by Landlord, its
prospective purchaser or mortgagee.
ARTICLE 20
ASSIGNMENT AND SUBLETTING
(A) TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed: (i) directly or indirectly assign, mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise transfer, this Lease or
any interest hereunder, by operation of law or otherwise (ii) sublet the
Premises or any part thereof, or (iii) permit the use of the Premises by any
Persons (as defined in Article 24) other than Tenant. Any use or transfer to
anyone other than Tenant, as contemplated by this Article, are hereinafter
sometimes referred to collectively as "Transfers" and any Person to whom any
Transfer is made or solicited to be made is hereinafter sometimes referred to as
a "Transferee"). If Tenant shall desire Landlord's consent to any Transfer,
Tenant shall notify Landlord in writing, which notice shall include: (a) the
proposed effective date (which shall not be less than fifteen (15) nor more than
180 days after Tenant's notice), (b) the portion of the Premises to be
Transferred (herein called the "Subject Space"), (c) the terms of the proposed
Transfer and the consideration therefor, the name and address of the proposed
Transferee, and a copy of all proposed documentation pertaining to such Transfer
and (d) current financial statements of the proposed Transferee certified by an
officer, partner or owner thereof, and any other reasonable information to
enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space, and such other information as Landlord may
reasonably require. Any Transfer made without complying with this Article shall,
at Landlord's option, be null, void and of no effect. Whether or not Landlord
shall grant consent, Tenant shall pay any reasonable legal fees actually
incurred by
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Landlord, not to exceed One Thousand and no/Dollars ($1,000.00) within thirty
(30) days after written request by Landlord.
(B) APPROVAL. The parties hereby agree that it shall be reasonable under
this Lease and under any applicable Law for Landlord to withhold consent to any
proposed Transfer where one or more of the following applies (without limitation
as to other reasonable grounds for withholding consent): (i) the Transferee is
of a character or reputation or engaged in a business which is not consistent
with the quality of the Property, (ii) the Transferee intends to use the Subject
Space for purposes which are not permitted under this Lease, (iii) the Subject
Space is not regular in shape with appropriate means of ingress and egress
suitable for normal renting purposes, (iv) the proposed Transferee does not have
a reasonable financial condition in relation to the obligations to be assumed in
connection with the Transfer, or (v) Tenant has committed and failed to cure a
Default within the time allowed hereunder for cure of such Default at the time
Tenant requests consent to the proposed Transfer.
(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, then as a
condition thereto, which the parties hereby agree is reasonable, Tenant shall
pay Landlord fifty percent (50%) of any Transfer Premium derived by Tenant from
such Transfer. "Transfer Premium" shall mean all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent payable by Tenant
under this Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is transferred), after
deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, and other economic concessions or
services provided to the Transferee, legal fees and other administrative
expenses incurred by Tenant in connection with the Transfer, and any customary
brokerage commissions paid in connection with the Transfer. The percentage of
the Transfer Premium due Landlord hereunder shall be paid within ten (10) days
after Tenant receives any Transfer Premium from the Transferee. In the event
that Tenant should transfer this Lease to, or permit use of the Premises by,
Tenant's affiliates or subsidiaries, the provisions of this subparagraph shall
not apply, provided that Tenant shall continue to be liable under this Lease.
(D) RECAPTURE. Notwithstanding, anything to the contrary contained in this
Article, Landlord shall have the option by giving written notice to Tenant
within thirty (30) days after receipt of Tenant's written notice of any proposed
Transfer excluding an Affiliate Transfer (as defined in Section 20(f)), to
recapture the Subject Space. Such recapture notice shall cancel and terminate
this Lease with respect to the Subject Space as of the date stated in Tenant's
notice as the effective date of the proposed Transfer (or at Landlord's option,
shall cause the Transfer to be made to Landlord or its agent, in which case the
parties shall execute the Transfer documentation promptly thereafter). If this
Lease shall be canceled with respect to less than the entire Premises, the Rent
reserved herein shall be prorated on the basis of the number of rentable square
feet retained by Tenant in proportion to the number of rentable square feet
contained in the Premises, this Lease as so amended shall continue thereafter in
full force and effect, and upon request of either party, the parties shall
execute written confirmation of the same.
(E) TERMS OF CONSENT. If Landlord consents to a Transfer, (a) the terms
and conditions of this Lease, including among other things, Tenant's liability
for the Subject Space, shall in no way be deemed to have been waived, (b) such
consent shall not be deemed consent to any further Transfer by either Tenant or
a Transferee, (c) no Transferee shall succeed to any rights provided in this
Lease or any amendment hereto to extend the Term of this Lease, expand the
Premises, or lease additional space, any such rights being deemed personal to
Tenant (except in the event of an Affiliate Transfer-as defined herein), (d)
Tenant shall deliver to Landlord promptly after execution, an executed copy of
all documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, and (d) Tenant shall furnish upon Landlord's request a complete
statement, certified by an independent certified public accountant, or Tenant's
chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer. Landlord or its
authorized representatives upon prior notice shall have the right at all
reasonable times to audit the books, records and papers of Tenant relating to
any Transfer, and shall have the right to make copies thereof. If the Transfer
Premium respecting any Transfer shall be found understated, Tenant shall within
thirty (30) days after demand pay the deficiency, and if understated by more
than 3%, Tenant shall pay Landlord's costs of such audit. Any sublease hereunder
shall be subordinate and subject to the provisions of this Lease, and if this
Lease shall be terminated during the term of any sublease, Landlord shall have
the right to: (i) treat such sublease as canceled and repossess the Subject
Space by any lawful means, or (ii) require that such subtenant attorn to and
recognize Landlord as its landlord under any such sublease.
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(F) CERTAIN TRANSFERS. For purposes of this Lease, the term "TRANSFER"
shall also include the voluntary or involuntary filing of bankruptcy by or
against Tenant or reorganization by Tenant, dissolution or winding up of
Tenant's affairs. Notwithstanding the foregoing, the Tenant may assign this
Lease, without Landlord's consent, to: (i) a corporation that, either directly
or through one or more corporations, owns or controls a majority of the voting
stock of Tenant, (ii) a corporation of which a majority of the voting stock is
owned or controlled by Tenant, either directly or through one or more
corporations; (iii) a corporation of which a majority of the voting stock is
directly or indirectly owned or controlled by the same corporation that directly
or indirectly owns or controls a majority of the voting stock of Tenant; or (iv)
a corporation in which Tenant is merged or consolidated in accordance with
applicable statutory provisions for merger and consolidation of corporations;
(hereinafter referred to as an "Affiliate Transfer") so long as, with regard to
each of the foregoing, (a) this Lease is assumed by the assignee and the
liabilities of the corporations participating in such merger or consolidation
are assumed by the corporation surviving that merger or created by that
consolidation, as the case may be, (b) the assignee's or surviving corporation's
net worth is equal to or greater than the Tenant's as of the date hereof, and
(c) Tenant gives Landlord ) twenty (20) days prior written notice thereof.
ARTICLE 21
RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to reasonably control the Property (which rights may be exercised without
subjecting Landlord to claims for constructive eviction, abatement of Rent,
damages or other claims of any kind), including more particularly, but without
limitation, the following rights:
(A) To change the name or street address of the Property; install and
maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the use
permitted Tenant by this Lease; and have access for Landlord and other tenants
of the Property to any mail chutes located on the Premises according to the
rules of the United States Postal Service. If change of name or street address
of the Property shall occur, Landlord shall pay the actual cost of new
stationery, business cards and marketing materials for Tenant to the extent such
materials are rendered unusable by such name or address change. However in no
event shall Landlord's cost exceed $10,000.00
(B) To enter the Premises during normal business hours for reasonable
purposes with reasonable notice to Tenant, including inspection and supplying
cleaning service or other services to be provided Tenant hereunder, to show the
Premises to current and prospective mortgage lenders, ground lessors, insurers,
and prospective purchasers, tenants (notwithstanding anything to the contrary
herein, Landlord shall only be permitted to show the Premises to a prospective
tenant during the last six (6) months of the term of the Lease) and brokers, at
reasonable hours.
(C) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency, controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(D) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors, lobbies, parking
facilities (so long as Tenant still has use of the minimum number of parking
spaces as provided in Article 35) and other public areas and the installation of
kiosks, planters, sculptures, displays, escalators, mezzanines, and other
structures, facilities, amenities and features therein, and changes for the
purpose of connection with or entrance into or use of the Property in
conjunction with any adjoining or adjacent building or buildings, now existing
or hereafter constructed). In
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connection with such matters, or with any other repairs, maintenance,
improvements or alterations, in or about the Property, Landlord may erect
scaffolding and other structures reasonably required, and during such operations
may enter upon the Premises and take into and upon or through the Premises, all
materials required to make such repairs, maintenance, alterations or
improvements, and may close public entry ways, other public areas, restrooms,
stairways or corridors. the Premises to exercise any of the foregoing rights,
Landlord shall: (a) provide reasonable advance written or oral notice to
Tenant's on-site manager or other appropriate person (except in emergencies, or
for routine cleaning or other routine matters), and (b) take reasonable steps to
minimize any interference with Tenant's business.
ARTICLE 22
LANDLORD'S REMEDIES
(A) DEFAULT. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant, which if not cured within any applicable
time permitted for cure below, shall give rise to Landlord's remedies set forth
in Paragraph (B), below: (i) failure by Tenant to make when due any payment of
Rent, unless such failure is cured within ten (10) days after written notice;
(ii) failure by Tenant to observe or perform any of the terms or conditions of
this Lease to be observed or performed by Tenant other than the payment of Rent,
or as provided below, unless such failure is cured within thirty (30) days after
written notice, or such shorter period expressly provided elsewhere in this
Lease (provided, if the nature of Tenant's failure is such that more than thirty
(30) days time is reasonably required in order to cure, Tenant shall not be in
default if Tenant commences to cure within such period and thereafter diligently
seeks to cure such failure to completion); (iii) failure by Tenant to comply
with the Rules, unless such failure is cured within ten (10) days after written
notice (provided, if the nature of Tenant's failure is such that more time is
reasonably required in order to cure, Tenant shall not be in Default if Tenant
commences to cure within such period and thereafter reasonably pursues such cure
to completion); (iv) (a) making by Tenant or any guarantor of this Lease
("Guarantor") of any general assignment for the benefit of creditors, (b) filing
by or against Tenant or any Guarantor of a petition to have Tenant or such
Guarantor adjudged a bankrupt or a petition for reorganization or any other
proceeding under any Law relating to bankruptcy (unless, in the case of a
petition filed against Tenant or such Guarantor, the same is dismissed within
sixty (60) days), (c) appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located on the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days, (d) attachment, execution or other judicial seizure of substantially
all of Tenant's assets located on the Premises or of Tenant's interest in this
Lease, (e) Tenant's or any Guarantor's convening of a meeting of its creditors
or any class thereof for the purpose of effecting a moratorium upon or
composition of its debts, or (f) Tenant's or any Guarantor's insolvency or
admission of an inability to pay its debts as they mature; (v) any material
misrepresentation herein, or material misrepresentation or omission in any
financial statements or other materials provided by Tenant or any Guarantor in
connection with negotiating or entering this Lease or in connection with any
Transfer under Article 20; (vi) cancellation of any guaranty of this Lease by
any Guarantor. The aforementioned periods of time permitted for Tenant to cure
shall be extended for any period of time during which Tenant is delayed in, or
prevented from, curing due to fire or other casualty, strikes, lock-outs or
other labor troubles, shortages of equipment or materials, governmental
requirements, power shortages or outages, acts or omissions by Landlord or other
Persons, Failure by Tenant to comply with the same term or condition of this
Lease on three occasions during any twelve month period shall cause any failure
to comply with such term or condition during the succeeding twelve month period,
at Landlord's option, to constitute an incurable Default, if Landlord has given
Tenant written notice of each such failure within ten (10) days after each such
failure occurs. The notice and cure periods provided herein are in lieu of, and
not in addition to, any notice and cure periods provided by Law.
(B) REMEDIES. If a Default occurs and is not cured within any applicable
time permitted under Paragraph (A), Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct, separate and cumulative with and
in addition to any other right or remedy allowed under any Law or, other
provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the Premises by
detainer suit, summary proceedings or other lawful means, and recover as damages
a sum of money equal to: (a) any unpaid Rent as of the termination date
including interest at the Default Rate (as defined in Article 24), (b) any
unpaid Rent which would have accrued after the termination date through the time
of award including interest at the Default Rate, less such
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loss of Rent that Tenant proves could have been reasonably avoided, and (c) any
other amounts necessary to compensate Landlord for all actual damages directly
caused by Tenant's failure to perform its obligations under this Lease,
including, without limitation all reasonable Costs of Re-letting (as defined in
Paragraph F). For purposes of computing the amount of Rent herein that would
have accrued after the time of award, Tenant's Prorata Share of Operating
Expenses shall be projected, based upon the average rate of increase, if any, in
such items from the Commencement Date through the time of award.
(ii) If applicable Law permits, Landlord may terminate Tenant's
right of possession and repossess the Premises by detainer suit, summary
proceedings or other lawful means, without terminating this Lease (and if such
Law permits, and Landlord shall not have expressly terminated the Lease in
writing, any termination shall be deemed a termination of Tenant's right of
possession only). In such event, Landlord may recover: (a) any unpaid Rent as of
the date possession is terminated, including interest at the Default Rate, (b)
any unpaid Rent which accrues during the Term from the date possession is
terminated through the time of award (or which may have accrued from the time of
any earlier award obtained by Landlord through the time of award), including
interest at the Default Rate, less any Net Re-Letting Proceeds (as defined in
Paragraph F) received by Landlord during such period, and less such loss of Rent
that Tenant proves could have been reasonably avoided, and (c) any other amounts
necessary to compensate Landlord for all damages directly caused by Tenant's
failure to perform its obligations under this Lease, including without
limitation, all Costs of Re-letting (as defined in Paragraph F). Landlord may
bring suits for such amounts or portions thereof, at any time or times as the
same accrue or after the same have accrued, and no suit or recovery of any
portion due hereunder shall be deemed a waiver of Landlord's right to collect
all amounts to which Landlord is entitled hereunder, nor shall the same serve as
any defense to any subsequent suit brought for any amount not theretofore
reduced to judgment.
(C) MITIGATION OF DAMAGES. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall use reasonable efforts to mitigate
Landlord's damages, and Tenant shall be entitled to submit proof of such failure
to mitigate as a defense to Landlord's claims hereunder. If Landlord has not
terminated this Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate, and may permit the Premises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages by attempting to
sublease the Premises or assign this Lease (subject to Article 20).
(D) SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION. Landlord
shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies available
under Paragraph (B) above, or any Law or other provision of this Lease), without
prior demand or notice except as required by applicable Law: (i) to seek any
declaratory, injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a violation or breach of any provision hereof, and
(ii) to sue for and collect any unpaid Rent which has accrued. Notwithstanding
anything to the contrary contained in this Lease, to the extent not expressly
prohibited by applicable Law, in the event of any Default by Tenant not cured
within any applicable time for cure hereunder, Landlord may terminate this Lease
or Tenant's right to possession and accelerate and declare that all Rent
reserved for the remainder of the Term shall be immediately due and payable to
the extent provided by law (in which event, Tenant's Prorata Share of Operating
Expenses, and for the remainder of the Term shall be projected based upon the
average rate of increase, if any, in such items from the Commencement Date
through the date of such declaration); provided, Landlord shall, after receiving
payment of the same from Tenant, be obligated to turn over to Tenant any actual
Net Re-Letting Proceeds thereafter received during the remainder of the Term, up
to the amount so received from Tenant pursuant to this provision.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, as additional Rent, a
service charge of fifty dollars ($50.00) for bookkeeping and administrative
expenses, if Rent is not received within ten (10) days after its due date. In
addition, any Rent paid more than ten (10) days after due shall accrue interest
from the due date at the Default Rate (as defined in Article 25), until payment
is received by Landlord. Such service charge and interest payments shall not be
deemed consent by Landlord to late payments, nor a waiver of Landlord's right to
insist upon timely payments at any time, nor a waiver of any remedies to which
Landlord is entitled as a result of the late payment of Rent.
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(F) CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean the total
amount of rent and other consideration paid by any Replacement Tenants, less all
Costs of Re-Letting, during given period of time. "Costs of Re-Letting" shall
include without limitation, all reasonable costs and expenses actually incurred
by Landlord for any repairs, maintenance, changes, alterations and improvements
to the Premises, brokerage commissions, advertising, costs, reasonable
attorneys' fees actually incurred, tenant improvement allowances not to exceed
$20 per rsf, and costs of collecting rent from Replacement Tenants. "Replacement
Tenants" shall mean any Persons (as defined in Article 24) to whom Landlord
re-lets the Premises or any portion thereof pursuant to this Article.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, re-letting" acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord or its agent to Tenant. To
the fullest extent permitted by Law, all rent and other consideration paid by
any Replacement Tenants shall be applied: first, to the Costs of Re-Letting,
second, to the payment of any Rent theretofore accrued, and the residue, if any,
shall be held by Landlord and applied to the payment of other obligations of
Tenant to Landlord as the same become due (with any remaining, residue to be
retained by Landlord). Rent shall be paid without any prior demand or notice
therefor (except as expressly provided herein) and without any deduction,
set-off or counterclaim, or relief from any valuation or appraisement laws. .
The times set forth herein for the curing of any defaults by Tenant are of the
essence of this Lease. Tenant hereby irrevocably waives any right otherwise
available under any Law to redeem or reinstate this Lease.
ARTICLE 23
LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this
Lease required to be performed by Landlord, Landlord shall not be deemed to be
in default hereunder nor subject to any claims for damages of any kind, unless
such failure shall have continued for a period of thirty (30) days after written
notice thereof by Tenant, provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter reasonably seeks to cure such
failure to completion (unless the default involves a condition dangerous to
person or property, or which will become worse if no immediate action is taken
to cure such default, in which event such default shall be cured forthwith upon
Tenant's demand). The aforementioned periods of time permitted for Landlord to
cure shall be extended for any period of time during which Landlord is delayed
in, or prevented from, curing due to fire or other casualty, strikes, lock-outs
or other labor troubles, shortages of equipment or materials, governmental
requirements, power shortages or outages, acts or omissions by Tenant or other
Persons, and other causes beyond Landlord's reasonable control. If Landlord
shall fail to cure within the times permitted for cure herein, Landlord shall be
subject to such remedies as may be available to Tenant at law and in equity
(subject to the other provisions of this Lease), as well as an abatement of Rent
due hereunder until such time as such default of Landlord is cured.
Anything to the contrary contained in this Lease notwithstanding, in
the event Tenant shall offset any moneys (claimed to be owed to Tenant by
Landlord) against the Rent payable by Tenant hereunder pursuant to the
provisions of this Lease, and Landlord shall dispute Tenant's right to such
offset or the amount thereof, Tenant shall not be deemed to be in default of
this Lease by reason of such offset until such dispute is resolved and Tenant
shall fail to pay any sums determined to be payable by Tenant to Landlord in the
resolution of such dispute after the expiration of ten (10) days following such
determination (whether by arbitration or otherwise).
ARTICLE 24
CAPTIONS, DEFINITIONS AND SEVERABILITY
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall
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be found invalid, void, illegal, or unenforceable with respect to any particular
Person by a court of competent jurisdiction, it shall not affect, impair or
invalidate any other terms or provisions hereof, or its enforceability with
respect to any other Person, the parties hereto agreeing that they would have
entered into the remaining portion of this Lease notwithstanding the omission of
the portion or portions adjudged invalid, void, illegal, or unenforceable with
respect to such Person.
(A) "Base Year" shall mean the calendar year 2001.
(B) "Building" shall mean the structure identified in Article 1 of this
Lease.
(C) "Default Rate" shall mean twelve percent (12%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
(E) "Holidays" shall mean New Year's Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day and any other
federal or state holidays recognized by landlords or comparable buildings.
(F) "Landlord" and "Tenant" shall be applicable to one or more Persons as
the case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
(G) "Law" shall mean all federal, state, county and local governmental and
municipal laws, statutes, ordinances, rules, regulations, codes, decrees, orders
and other such requirements, applicable equitable remedies and decisions by
courts in cases where such decisions are considered binding precedents in the
state in which the Property is located, and decisions of federal courts applying
the Laws of such State.
(H) "Mortgage" shall mean all mortgages, deeds of trust, ground leases and
other such encumbrances now or hereafter placed upon the Property or Building,
or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(I) "Operating Expenses" shall mean all reasonable expenses, costs and
amounts of every kind and nature which Landlord shall pay during any calendar
year any portion of which occurs during the Term, because of or in connection
with the management, repair, maintenance, restoration and operation of the
Property, including without limitation, any amounts paid for: (a) utilities for
the Property, including but not limited to electricity, power, gas, steam, oil
or other fuel, water, sewer, lighting, heating, air conditioning and
ventilating, (b) permits, licenses and certificates necessary to operate, manage
and lease the Property, (c) insurance applicable to the Property, not limited to
the amount of coverage Landlord is required to provide under this Lease, (d)
supplies, tools, equipment and materials used in the operation, repair and
maintenance of the Property, (e) accounting, legal, inspection, consulting,
concierge and other services (except as provided herein), (f) any equipment
rental (or installment equipment purchase or equipment financing agreements), or
management agreements (including the cost of any management fee actually paid
thereunder and the fair rental value of any office space provided thereunder, up
to customary and reasonable amounts), (g) wages, salaries, and other
compensation and benefits (including the fair value of any parking privileges
provided) for all on-site persons engaged in the day-to-day operation, but shall
not include salaries and other compensation of executive officers of Landlord,
Building Manager, maintenance or security of the Property, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes which may
be levied on such wages, salaries, compensation and benefits, (h) payments under
any easement, operating agreement, declaration, restrictive covenant, or
instrument pertaining to the sharing of costs in any planned development, (i)
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operation, repair, and maintenance of all Systems and Equipment and components
thereof (including replacement of components provided, if such component is a
capital expenditure such cost shall be amortized as provided herein), janitorial
service, alarm and security service, window cleaning, trash removal, elevator
maintenance, cleaning of walks, parking facilities and building walls, removal
of ice and snow, replacement of wall and floor coverings, ceiling tiles and
fixtures in lobbies, corridors, restrooms and other common or public areas or
facilities, maintenance and replacement of shrubs, grass, sod and other
landscaped items, irrigation systems (maintenance only), drainage facilities,
fences, curbs, and walkways, re-paving, and re-striping parking facilities, and
roof repairs, (j) Taxes and (k) costs and expenses assessed against Landlord or
the Property as part of the "North x Northwest" Office Park. If the Property is
not fully occupied during all or a portion of any calendar year, Landlord may,
in accordance with sound accounting and management practices, determine the
amount of variable Operating Expenses (i.e. those items which vary according to
occupancy levels that would have been paid had the Property been fully
occupied), and the amount so determined shall be deemed to have been the amount
of variable Operating Expenses for such year. If Landlord makes such an
adjustment, Landlord shall make a comparable adjustment for the Base Expense
Year. Notwithstanding the foregoing, Operating Expenses shall not, however,
include:
(i) depreciation, interest and amortization on Mortgages, and other
debt costs or ground lease payments, if any; legal fees in connection with
leasing, tenant disputes or enforcement of leases; real estate brokers' leasing
commissions; improvement or alterations to tenant spaces; the cost of providing
any service directly to and paid directly by, any tenant; any costs expressly
excluded from Operating Expenses elsewhere in this Lease; costs of any items to
the extent Landlord receives reimbursement from insurance proceeds or from a
third party (such proceeds to be deducted from Operating Expenses in the year in
which received); and
(ii) capital expenditures, except those: (a) made primarily to
reduce Operating Expenses, or to comply with any Laws or other governmental
requirements, but only to the extent such expenditures accomplish such goal;
provided, however, that Landlord shall not be able to pass on Landlord's costs
which arise out of correcting a matter or item in the Building which is not in
compliance with governmental requirements as of the date of this Lease, or (b)
for reasonable replacements (as opposed to additions or new improvements) of
non-structural items located in the common areas of the Property required to
keep such areas in good condition; provided, all such permitted capital
expenditures (together with reasonable financing charges) shall be amortized for
purposes of this Lease over their useful lives.
(iii) those expenses listed in Article 41 and by this reference
incorporated herein.
(J) "Person" shall mean an individual, trust, partnership, joint venture,
association, corporation, and any other entity.
(K) "Property" shall mean the Building, and any common or public areas or
facilities, easements, corridors, lobbies, sidewalks, loading areas, driveways,
landscaped areas, skywalks, parking garages and lots, and any and all other
structures or facilities operated or maintained in connection with or for the
benefit of the Building, and all parcels or tracts of land on which all or any
portion of the Building or any of the other foregoing items are located, and any
fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture and
other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
areas necessary for utilities, services, safety and operation of the Property,
including the Systems and Equipment (as defined in Article 24) fire stairways,
perimeter walls, space between the finished ceiling of the Premises and the slab
of the floor or roof of the Property therein above, and the use thereof together
with the right to install, maintain, operate, repair and replace the Systems and
Equipment, including any of the same in, through, under or above the Premises in
locations that will not materially interfere with Tenant's use of the Premises,
are hereby excepted and reserved by Landlord, and not demised to Tenant
(L) "Rent" shall have the meaning specified therefor in Article 3(F).
(M) "Systems and Equipment" shall mean any heat pumps, plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and
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humidity or any other services or utilities, or comprising or serving as any
component or portion of the electrical, gas, steam, plumbing, sprinkler,
communications, alarm, security, or fire/life/safety systems or equipment, or
any other mechanical, electrical, electronic, computer or other systems or
equipment for the Property.
(N) "Taxes" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary (including
without limitation, real estate taxes, general and special assessments, transit
taxes, water and sewer rents, taxes based upon the receipt of rent including
gross receipts or sales taxes applicable to the receipt of rent or service or
value added taxes (unless required to be paid by Tenant under Article 16),
personal property taxes imposed upon the fixtures, machinery, equipment,
apparatus, Systems and Equipment, appurtenances, furniture and other personal
property used in connection with the Property which Landlord shall pay during
any calendar year, any portion of which occurs during the Term (without regard
to any different fiscal year used by such government or municipal authority)
because of or in connection with the leasing and operation of the property.
Notwithstanding the foregoing, there shall be excluded from Taxes all excess
profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and state income taxes, and other taxes
to the extent applicable to Landlord's general or net income (as opposed to
rents, receipts or income attributable to operations at the Property). If the
method of taxation of real estate prevailing at the time of execution hereof
shall be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or heretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital levy
or otherwise, or on or measured by the rents received therefrom, then such new
or altered taxes attributable to the Property shall be included within the term
"Taxes," except that the same shall not include any enhancement of said tax
attributable to other income of Landlord. Any expenses incurred by Landlord in
attempting to protest, reduce or minimize Taxes shall be included in Taxes in
the calendar year such expenses are paid. Tax refunds shall be deducted from
Taxes in the year they are received by Landlord, but if such refund shall relate
to taxes paid in a prior year of the Term, and the Lease shall have expired,
Landlord shall mail Tenant's Prorata Share of such net refund (after deducting
expenses and attorneys' fees), up to the amount Tenant paid towards Taxes during
such year, to Tenant's last known address. If Taxes for any period during the
Term or any extension thereof, shall be increased after payment thereof by
Landlord, for any reason including without limitation error or reassessment by
applicable governmental or municipal authorities, Tenant shall pay Landlord upon
demand Tenant's Prorata Share of such increased Taxes. Tenant shall pay
increased Taxes whether Taxes are increased as a result of increases in the
assessment or valuation of the Property (unless such reassessment is based on a
sale, change in ownership or refinancing of the Property or otherwise),
increases in the tax rates, reduction or elimination of any rollbacks or other
deductions available under current law, scheduled reductions of any tax
abatement, as a result of the elimination, invalidity or withdrawal of any tax
abatement, or for any other cause whatsoever. Notwithstanding anything to the
contrary contained in this Lease, if, at any time during the first three (3)
years of the Lease term, any change in ownership of the Building is consummated,
and as a result thereof, and to the extent that in connection therewith the
Building is reassessed (the "Reassessment") for real estate tax purposes by the
appropriate governmental authority, then Tenant shall not be liable for such Tax
Increase (as hereinafter defined). The term "Tax Increase" shall mean that
portion of the Taxes, as calculated immediately following the Reassessment,
which is attributable to the Reassessment. Accordingly, the term Tax Increase
shall not include any portion of the Taxes, as calculated immediately following
the Reassessment, which (i) is attributable to the initial assessment of the
value of the Building, or the tenant improvements located in the Building, or
(ii) is attributable to an annual inflationary increase of real estate taxes.
Notwithstanding the foregoing, if any Taxes shall be paid based on assessments
or bills by a governmental or municipal authority using a fiscal year other than
a calendar year, Landlord may elect to average the assessments or bills for the
subject calendar year, based on the number of months of such calendar year
included in each such assessment or bill.
(O) "Tenant's Prorata Share" of Operating Expenses shall be the rentable
area of the Premises divided by the rentable area of the Property as set forth
in Article I on the last day of the calendar year for which Operating, Expenses
are being determined, excluding any parking facilities. As of the date hereof,
Tenant's Prorata Share of Operating Expenses is 54.93%. As of the Suite 100
Commencement Date (as hereinafter defined), Tenant's Prorata Share of Operating
Expenses shall be 65.76%. If the Property shall contain tenants who do not
participate in all or certain categories of Operating Expenses on a prorata
basis, Landlord may exclude the amount of Operating Expenses, or such categories
of the same, as the case may be, attributable to such tenants, and exclude the
rentable area of their premises, in computing Tenant's Prorata Share. If the
Property shall be part of or shall include a
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complex, development or group of buildings or structures collectively owned or
managed by Landlord or its affiliates or collectively managed by Landlord's
managing agent, Landlord may allocate Operating Expenses within such complex,
development or group, and between such buildings and structures and the parcels
on which they are located, in accordance with sound accounting and management
principles. In the alternative, Landlord shall have the right to determine, in
accordance with sound accounting and management principles, Tenant's Prorata
Share of Operating Expenses based upon the totals of each of the same for all
such buildings and structures, the land constituting parcels on which the same
are located, and all related facilities, including common areas and easements,
corridors, lobbies, sidewalks, elevators, loading areas, parking facilities and
driveways and other appurtenances and public areas, in which event Tenant's
Prorata Share shall be based on the ratio of the rentable area of the Premises
to the rentable area of all such buildings.
ARTICLE 25
CONVEYANCE BY LANDLORD AND LIABILITY
(A) In case Landlord or any successor owner of the Property or the
Building shall convey or otherwise dispose of any portion thereof in which the
Premises are located, to another Person (and nothing herein shall be construed
to restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be required to execute a
written agreement assuming all of Landlord's obligations under this Lease under
which such successor owner shall fully assumed and be liable for all obligations
of this Lease to be performed by Landlord which first arise after the date of
conveyance, including the return of any Security Deposit, and Tenant shall
attorn to such other Person, and Landlord or such successor owner shall, from
and after the date of conveyance, be free of all liabilities and obligations
hereunder not then incurred. The liability of Landlord to Tenant for any default
by Landlord under this Lease or arising in connection herewith or with
Landlord's operation, management, leasing, repair, renovation, alteration, or
any other matter relating to the Property or the Premises, shall be limited to
the interest of Landlord in the Property (and the rental proceeds thereof).
Tenant agrees to look solely to Landlord's interest in the Property (and the
rental proceeds thereof) for the recovery of any judgment against Landlord, and
Landlord shall not be personally liable for any such judgment or deficiency
after execution thereon. The limitations of liability contained in this Article
shall apply equally and inure to the benefit of Landlord's present and future
partners, beneficiaries, officers, directors, trustees, shareholders, agents and
employees, and their respective partners, heirs, successors and assigns. Under
no circumstances shall any present or future general or limited partner of
Landlord (if Landlord is a partnership), or trustee or beneficiary (if Landlord
or any partner of Landlord is a trust) have any personal liability for the
performance of Landlord's obligations under this Lease. Notwithstanding the
foregoing to the contrary, Landlord shall have personal liability for insured
claims, beyond Landlord's interest in the Property (and rental proceeds
thereof), to the extent of Landlord's liability insurance coverage available for
such claims.
(B) [Intentionally Deleted]
(C) Whenever this Lease requires Landlord's consent or approval, Tenant
shall reimburse Landlord on demand as a condition to granting such consent or
approval any reasonable and customary costs actually incurred in connection with
reviewing the request for consent or approval, including, without limitation,
reasonable attorneys fees, not to exceed $500.
ARTICLE 26
INDEMNIFICATION
Except to the extent arising, from the negligent acts of Landlord or
Landlord's agents or employees, Tenant shall defend, indemnify and hold harmless
Landlord from and against any and all claims, demands, liabilities, damages,
judgments, orders, decrees, actions, proceedings, fines, penalties, costs and
expenses, including without limitation, court costs and reasonable attorneys'
fees actually incurred arising from or relating to any loss of life, damage or
injury to person, property or business occurring in or from the Premises, or
caused by Tenant or in connection with any violation of this Lease or use of the
Premises or Property by, or any other act or omission of, Tenant, any other
occupant of the Premises, or any of their respective agents, employees,
contractors or guests. Without limiting the generality of the foregoing, Tenant
specifically acknowledges that the indemnity undertaking
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herein shall apply to claims in connection with or arising out of any "Work" as
described in Article 7, the installation, maintenance, use or removal of any
"Lines" located in or serving the Premises as described in Article 28, and the
transportation, use, storage, maintenance, generation, manufacturing, handling,
disposal, release or discharge of any "Hazardous Material" as described in
Article 29 (whether or not any of such matters shall have been theretofore
approved by Landlord), except to the extent that any of the same arises from the
negligent acts of Landlord or Landlord's agents or employees.
Except to the extent arising, from the negligent acts of Tenant or
Tenant's agents or employees, Landlord shall defend, indemnify and hold harmless
Tenant from and against any and all claims, demands, liabilities, damages,
judgments, orders, decrees, actions, proceedings, fines, penalties, costs and
expenses, including without limitation, court costs and reasonable attorneys'
fees actually incurred arising from or relating to any loss of life, damage or
injury to person, property or business occurring in or from the Premises, or
caused by the Landlord or in connection with any violation of this Lease by the
Landlord or use of the Premises or Property by, or any other act or omission of
Landlord or any of its respective agents, employees, contractors or guests.
ARTICLE 27
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
The parties acknowledge that safety and security devices, services
and programs provided by Landlord, if any, while intended to deter crime and
ensure safety, may not in given instances prevent theft or other criminal acts,
or ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses, as
further described in Article 10. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord or required by Law.
ARTICLE 28
COMMUNICATIONS AND COMPUTER LINES
Tenant may install, maintain, replace, remove or use any communications or
computer wires, cables and related devices (collectively the "Lines") at the
Property in or serving the Premises, provided: (a) Tenant shall obtain
Landlord's prior written consent, use an experienced and qualified contractor
approved in writing by Landlord, and comply with all of the other provisions of
Article 7, (b) any such installation, maintenance, replacement, removal or use
shall comply with all Laws applicable thereto and good work practices, and shall
not interfere with the use of any then existing Lines at the Property, (c) an
acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Property, as determined in
Landlord's reasonable opinion, (d) if Tenant at any time uses any equipment that
may create an electromagnetic field exceeding the normal insulation ratings of
ordinary twisted pair riser cable or cause radiation higher than normal
background radiation, the Lines therefor (including riser cables) shall be
appropriately insulated to prevent such excessive electromagnetic fields or
radiation, (e) as a condition to permitting the installation of new Lines,
Landlord may require that Tenant remove existing Lines located in or serving the
Premises, and (f) Tenant shall pay all costs in connection therewith. Landlord
reserves the right to require that Tenant remove any Lines located in or serving
the Premises which are installed in violation of these provisions, or which are
at any time in violation of any Laws or represent a dangerous or potentially
dangerous condition (whether such Lines were installed by Tenant or any other
party), within three (3) business days after written notice.
Landlord may (but shall not have the obligation to): (i) install new
Lines at the Property (ii) create additional space for Lines at the Property,
and (iii) reasonably direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic
re-allocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any Lines now or hereafter installed at the Property by
Landlord, Tenant or any other party (but Landlord shall have no right to monitor
or control the information transmitted through such Lines). Such rights shall
not be in limitation of other rights that may be available to Landlord by Law or
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otherwise. If Landlord exercises any such rights, Landlord may charge Tenant for
the costs attributable to Tenant, or may include those costs and all other costs
in Operating Expenses under Article 24 (including without limitation, costs for
acquiring, and installing Lines and risers to accommodate new Lines and spare
Lines, any associated computerized system and software for maintaining records
of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) over the
period of time prescribed by Article 24.
Tenant hereby reserves the right to remove any or all Lines installed by
or for Tenant within or serving the Premises upon termination of this Lease.
Notwithstanding anything, to the contrary contained in Article 12, Landlord
reserves the right to require that Tenant remove any or all Lines installed by
or for Tenant within or serving the Premises upon termination of this Lease,
provided Landlord notifies Tenant prior to or within thirty (30) days following
such termination. Tenant shall have a reasonable period of time to complete such
removal. Any Lines not required to be removed pursuant to this Article shall, at
Landlord's option, become the property of Landlord (without payment by
Landlord). If Tenant fails to remove such Lines as required by Landlord, or
violates any other provision of this Article, Landlord may, after twenty (20)
days written notice to Tenant, remove such Lines or remedy such other violation,
at Tenant's expense (without limiting Landlord's other remedies available under
this Lease or applicable Law). Except to the extent arising from the intentional
or negligent acts of Landlord or Landlord's agents or employees, Landlord shall
have no liability for damages arising from, and Landlord does not warrant that
the Tenant's use of any Lines will be free from the following (collectively
called "Line Problems"): (x) any eavesdropping or wire-tapping by unauthorized
parties other than by Landlord, its agents or employees, (y) any failure of any
Lines to satisfy Tenant's requirements, or (z) any shortages, failures,
variations, interruptions, disconnections, loss or damage caused by the
installation, maintenance, replacement, use or removal of Lines by or for other
tenants or occupants at the Property, by any failure of the environmental
conditions or the power supply for the Property to conform to any requirements
for the Lines or any associated equipment, or any other problems associated with
any Lines by any other cause. Under no circumstances shall any Line Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable to
Tenant for abatement of Rent, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damage arising from any Line Problems. Landlord shall be responsible for
repairing all Line Problems caused by Landlord, its agents, employees, invitees
or contractors, and Landlord shall use its best efforts to cause any third party
causing such Line Problems to promptly repair such Line Problems.
ARTICLE 29
HAZARDOUS MATERIALS
Tenant shall not transport, use, store, maintain, generate, manufacture,
handle, dispose, release or discharge any "Hazardous Material" (as defined
below) upon or about the Property, or permit Tenant's employees, agents,
contractors, and other occupants of the Premises to engage in such activities
upon or about the Property. However, the foregoing provisions shall not prohibit
the transportation to and from and use, storage, maintenance and handling,
within, the Premises of substances customarily used in offices (or such other
business or activity expressly permitted to be undertaken in the Premises under
Article 5), provided: (a) such substances shall be used and maintained only in
such quantities as are reasonably necessary for such permitted use of the
Premises, strictly in accordance with applicable Law and the manufacturers'
instructions therefor, (b) such substances shall not be disposed of, released or
discharged on the Property, and shall be transported to and from the Premises in
compliance with all applicable Laws, and as Landlord shall reasonably require,
(c) if any applicable Law or Landlord's trash removal contractor requires that
any such substances be disposed of separately from ordinary trash, Tenant shall
make arrangements at Tenant's expense for such disposal directly with a
qualified and licensed disposal company at a lawful disposal site (subject to
scheduling and approval by Landlord), and shall ensure that disposal occurs
frequently enough to prevent unnecessary storage of such substances in the
Premises, and (d) any remaining such substances shall be completely, properly
and lawfully removed from the Property upon expiration or earlier termination of
this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup or
other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on
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the Premises or the migration thereof from or to other property, (ii) any
demands or claims made or threatened by any party against Tenant or the Premises
relating to any loss or injury resulting from any Hazardous Material, (iii) any
release, discharge or nonroutine, improper or unlawful disposal or
transportation of any Hazardous Material on or from the Premises, and (iv) any
matters where Tenant is required by Law to give a notice to any governmental or
regulatory authority respecting any Hazardous Material on the Premises. Landlord
shall have the right (but not the obligation) to join and participate as a party
in any legal proceedings or actions affecting the Premises initiated in
connection with any environmental, health or safety Law. At such times as
Landlord may reasonably request, Tenant shall provide Landlord with a written
list identifying any Hazardous Material then used, stored, or maintained upon
the Premises, the use and approximate quantity of each such material, a copy of
any material safety data sheet ("MSDS") issued by the manufacturer therefor,
written information concerning the removal, transportation and disposal of the
same, and such other information as Landlord may reasonably require or as may be
required by Law. The term "Hazardous Material" for purposes hereof shall mean
any chemical, substance, material or waste or component thereof which is now or
hereafter listed, defined or regulated as a hazardous or toxic chemical,
substance, material or waste or component thereof by any federal, state or local
governing or regulatory body having jurisdiction, or which would trigger any
employee or community "right-to-know" requirements adopted by any such body, or
for which any such body has adopted any requirements for the preparation or
distribution of an MSDS.
If any Hazardous Material is released, discharged or disposed of by Tenant
or any other occupant of the Premises, or their employees, agents or
contractors, on or about the Property in violation of the foregoing provisions,
Tenant shall immediately, properly and in compliance with applicable Laws clean
up and remove the Hazardous Material from the Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord), at Tenant's expense. Such clean up and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include, without limitation, any testing investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Tenant shall fail to
comply with the provisions of this Article within five (5) days after written
notice by Landlord, or such shorter time as may be required by Law or in order
to minimize any hazard to Persons or property, Landlord may (but shall not be
obligated to) arrange for such compliance directly or as Tenant's agent through
contractors or other parties selected by Landlord, at Tenant's expense (without
limiting Landlord's other remedies under this Lease or applicable Law). If any
Hazardous Material is released, discharged or disposed of on or about the
Property and such release, discharge or disposal is not caused by Tenant or
other occupants of the Premises, or their employees, agents or contractors, such
release, discharge or disposal shall be deemed casualty damage under Article 9
to the extent that the Premises or common areas serving the Premises are
affected thereby; in such case, Landlord and Tenant shall have the obligations
and rights respecting such casualty damage provided under Article 9.
ARTICLE 30
MISCELLANEOUS
(A) Each of the terms and provisions of this Lease shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 20 respecting Transfers.
(B) Neither this Lease nor any memorandum of lease or short form lease
shall be recorded by Tenant.
(C) This Lease shall be construed in accordance with the Laws of the State
of Georgia.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and performs the
terms and provisions hereunder, and subject to all other terms and provisions of
this Lease, Tenant shall hold and enjoy the Premises during, the Term, free of
all lawful claims by any Person acting by or through Landlord.
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(F) This Lease does not grant any legal rights to "light and air" outside
the Premises nor any particular view visible from the Premises.
ARTICLE 31
OFFER
The submission and negotiation of this Lease shall not be deemed an offer
to enter the same by Landlord, but the solicitation of such an offer by Tenant.
Tenant agrees that its execution of this Lease constitutes a firm offer to enter
the same. During such period and in reliance on the foregoing, Landlord may, at
Landlord's option (and shall, if required by applicable Law), deposit any
security deposit and Rent, and proceed with any plans, specifications,
alterations or improvements, and permit Tenant to enter the Premises, but such
acts shall not be deemed an acceptance of Tenant's offer to enter this Lease,
and such acceptance shall be evidenced only by Landlord signing and delivering
this Lease to Tenant.
ARTICLE 32
NOTICES
Except as expressly provided to the contrary in this Lease, every notice
or other communication to be given by either party to the other with respect
hereto or to the Premises or Property, shall be in writing, and shall not be
effective for any purpose unless the same shall be delivered by facsimile
transmission, served personally or by national air courier service, or United
States certified mail, return receipt requested, postage prepaid, addressed, if
to Tenant, at the address first set forth in the Lease, until the Commencement
Date, and thereafter to the Tenant at the Premises, and if to Landlord, 239
Ethan Allen Highway, Ridgefield, Connecticut 06877, Attention: CFO, Facsimile
No. 203-894-1801 or to such other place as Landlord may from time to time
designate in writing to Tenant. Every notice or other communication hereunder
shall be deemed to have been given as of the third business day following the
date of such mailing (or as of any earlier date evidenced by a receipt from such
national air courier service or the United States Postal Service) or immediately
if personally delivered. Notices may be given by facsimile, so long as a copy is
provided otherwise in accordance with the terms hereof (the receipt of a
facsimile copy shall not constitute receipt for purposes of commencing any time
period for any action or response to any notice). Notices not sent in accordance
with the foregoing shall be of no force or effect until received by the
foregoing parties at such addresses required herein.
ARTICLE 33
REAL ESTATE BROKERS
Tenant represents that Tenant has dealt only with Hailey Realty
Associates as broker, agent or finder in connection with this Lease and agrees
to indemnify, defend and hold Landlord harmless from all damages, judgments,
liabilities and expenses (including reasonable attorneys' fees) arising from any
claims or demands of any other broker, agent or finder with whom Tenant has
dealt for any commission or fee alleged to be due in connection with its
participation in the procurement of Tenant or the negotiation with Tenant of
this Lease. Landlord represents that Landlord has dealt only with Hailey Realty
as broker, agent or finder in connection with this Lease and agrees to
indemnify, defend and hold Tenant harmless from all damages, judgments,
liabilities and expenses (including reasonable attorneys' fees) arising from any
claims or demands of any other broker, agent or finder with whom Landlord has
dealt for any commission or fee alleged to be due in connection with its
participation in the negotiation of this Lease.
ARTICLE 34
SECURITY DEPOSIT
Tenant shall deposit with Landlord the amount of $44,792.50 ("Initial
Deposit"), upon Tenant's execution and submission of this Lease. On or before
the date Tenant occupies Suite 500 (as defined herein), Tenant shall deposit
with Landlord the amount of $26,442.81 ("5th Floor Deposit"). Upon the Suite 100
Rent Commencement Date, Tenant shall deposit an additional $14,041.50 ("1st
Floor Deposit"). The Initial Deposit, the 5th Floor Deposit and the 1st Floor
Deposit collectively referred to herein as the "Security Deposit." The Security
Deposit shall serve
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as security for the prompt, full and faithful performance by Tenant of the terms
and provisions of this Lease. In the event that Tenant is in Default hereunder
and fails to cure within any applicable time permitted under this Lease, or in
the event that Tenant owes any amounts to Landlord upon the expiration of this
Lease, Landlord may use or apply the whole or any part of the Security Deposit
necessary for the payment of Tenant's obligations hereunder. The use or
application of the Security Deposit or any portion thereof shall not prevent
Landlord from exercising any other right or remedy provided hereunder or under
any Law and shall not be construed as liquidated damages. In the event the
Security Deposit is reduced by such use or application, Tenant shall deposit
with Landlord within ten (10) days after written notice, an amount sufficient to
restore the full amount of the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from Landlord's general funds or pay
interest on the Security Deposit. Any remaining portion of the Security Deposit
shall be returned to Tenant within forty-five (45) days after Tenant has vacated
the Premises in accordance with Article 12.
ARTICLE 35
PARKING SPACES
During the Term, Landlord hereby grants to Tenant and persons designated
by Tenant a non-exclusive license and right to use not less than 3.7 parking
spaces per 1,000 square feet on an unreserved basis, in the designated parking
area at the Property (the "Parking Area"); provided, however, while InfoCure
Corporation is a tenant of the Building, Landlord hereby grants Tenant the right
to use not less than 240 parking spaces. The term of such license shall commence
on the Lease Commencement Date and shall continue until the earlier to occur of
the Expiration Date under this Lease, or termination of this Lease. The parking
spaces hereunder shall be available to Tenant, its employees and visitors on an
unreserved "first-come, first-served" basis. Washing, waxing, cleaning or
servicing of any vehicle in the Parking Area is prohibited. Parking spaces may
be used only for parking automobiles, sport utility vehicles, motorcycles and
minivans.
Tenant shall at all times comply with all applicable ordinances, rules,
regulations, codes, laws, statutes and requirements of all federal, state,
county and municipal governmental bodies or their subdivisions respecting, the
use of the parking spaces. Landlord reserves the right to adopt, modify and
enforce reasonable rules governing the use of the parking, spaces from time to
time, including any key-card, sticker or other identification or entrance
system, and hours of operation. Landlord may refuse to permit any person who
violates such rules to park, and any violation of the rules shall subject the
car to removal from the Parking Area.
Landlord shall have no liability whatsoever for any damage to vehicles or
other property located in the Parking Area, nor for any personal injuries or
death arising out of any matter relating to the Parking Area, and in all events,
Tenant agrees to look first to its insurance carrier and to request that
Tenant's employees look first to their respective insurance carriers for payment
of any losses sustained in connection with any use of the Parking Area. Tenant
hereby waives on behalf of its insurance carriers all rights of subrogation
against Landlord or Landlord's agents. Landlord reserves the right to assign a
reasonable number of specific spaces, and to reserve spaces for couriers,
visitors, compact or midget cars, handicapped persons and for other tenants,
guests of tenants or other parties, and Tenant and persons designated by Tenant
hereunder shall not park in any such assigned or reserved space, so long as
Tenant still has the use of the minimum number of parking spaces as provided
herein. Landlord also reserves the right to close all or any portion of the
Parking Area in order to make repairs or perform maintenance services, or to
alter, modify, re-stripe or renovate the Parking Area, or if required by
casualty, strike, condemnation, act of God, governmental law or requirement or
other reason beyond Landlord's reasonable control. If Landlord closes all or
substantially all of the Parking Area, Landlord will provide alternative parking
areas.
ARTICLE 36
CONSENT TO JURISDICTION
[Intentionally Deleted]
ARTICLE 37
ENTIRE AGREEMENT
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This Lease, together with the Exhibits (WHICH COLLECTIVELY ARE HEREBY
INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART HEREOF AS THOUGH FULLY SET
FORTH), contains all the terms and provisions between Landlord and Tenant
relating to the matters set forth herein and no prior or contemporaneous
agreement or understanding pertaining to the same shall be of any force or
effect, except any such contemporaneous agreement specifically referring to and
modifying this Lease, signed by both parties. Without limitation as to the
generality of the foregoing, Tenant hereby acknowledges and agrees that
Landlord's leasing agents and field personnel are only authorized to show the
Premises and negotiate terms and conditions for leases subject to Landlord's
final approval, and are not authorized to make any agreements, representations,
understandings or obligations, binding upon Landlord, respecting the condition
of the Premises or Property, suitability of the same for Tenant's business, or
any other matter, and no such agreements, representations, understandings or
obligations not expressly contained herein or in such contemporaneous agreement
shall be of any force or effect. Neither this Lease, nor any Exhibits or
Exhibits referred to above may be modified, except in writing signed by both
parties.
ARTICLE 38
SPECIAL STIPULATIONS
Insofar as the special stipulations attached hereto and incorporated
herein conflict with any of the foregoing provisions, said special stipulations
shall control.
ARTICLE 39
BASE RENTAL
<TABLE>
<CAPTION>
PERIOD RENTABLE SQUARE ANNUAL BASE RENT BASE RENT PER ANNUAL BASE RENT
FOOTAGE PER RENTABLE SQUARE MONTH
FOOT
<S> <C> <C> <C> <C>
3/06/01 - 9/30/01 31,160 $ 17.25 $44, 792.50 $537,510.00
</TABLE>
<TABLE>
<CAPTION>
PERIOD RENTABLE SQUARE ANNUAL BASE RENT BASE RENT PER ANNUAL BASE RENT
FOOTAGE PER RENTABLE SQUARE MONTH
FOOT
<S> <C> <C> <C> <C>
10/01/01 - Day 49,555 $ 17.25 $ 71,235.31 $ 854,823.75
Preceding the Suite 100
Rent Commencement Date
Suite 100 Rent 59,323 $ 17.25 $ 85,276.81 $ 1,023,321.75
Commencement Date -
2/28/02
3/01/02 - 2/28/03 59,323 $ 17.77 $ 87,847.48 $ 1,054,169.71
3/01/03 - 2/29/04 59,323 $ 18.30 $ 90,467.58 $ 1,085,610.90
3/01/04 - 2/28/05 59,323 $ 18.85 $ 93,186.55 $ 1,118,238.55
3/01/05 - 2/28/06 59,323 $ 19.42 $ 96,004.39 $ 1,152,052.66
3/01/06 - 8/31/06 59,323 $ 20.00 $ 98,871.67 $ 1,186,460.00
</TABLE>
*NOTWITHSTANDING THE SCHEDULE SET FORTH HEREIN, THE BASE RENT PER MONTH, THE
ANNUAL BASE RENT AND RENTABLE SQUARE FOOTAGE MAY BE ADJUSTED PROPORTIONATELY, AS
NECESSARY, TO REFLECT ADDITION AREA ADDED TO THE PREMISES.
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<PAGE> 27
AT THE REQUEST OF EITHER PARTY, LANDLORD AND TENANT HEREBY AGREE TO EXECUTE A
CERTIFICATE SETTING FORTH THE REVISED RENT SCHEDULE AND CONFIRMING THE SUITE 100
COMMENCEMENT DATE.
ARTICLE 40
SECURITY
Landlord is not responsible or liable for any thefts or criminal acts
incurred on the premises at any time for any reason, except when caused by the
gross negligence of Landlord, its agents, employees or contractors.
ARTICLE 41
OPERATING EXPENSES
In further reference to Article 24(h)(i) and (ii) operating expenses
shall also not include the following,:
- interest and principal payments on mortgage debt;
- ground rental payments;
- the cost of capital improvements not otherwise allowed in Paragraph 1.4(j)
of the Lease;
- the costs of painting or decorating other than Common Areas, alterations
to the Premises or the premises of other tenants of the building, or work
furnished by Landlord without charge as an inducement for a tenant to
lease space (i.e. free rent, improvement allowances);
- salaries and other compensation of executive officers of Landlord or
Managing Agent senior to the Building manager;
- income or franchise taxes or other such taxes unless imposed in lieu of
Property Taxes imposed or measured by the income of Landlord from the
operation of the Building;
- the cost of constructing, installing, operating or maintaining any special
service or facility such as an observatory, broadcasting facility,
luncheon club, athletic or recreational club, cafeteria or dining
facility;
- the costs associated with services or amenities not available to all
tenants or provided to any tenant to a materially greater extent or more
favorable manner than generally provided to other tenants;
- the costs of correcting latent defects and defects in construction or
renovation of the Building or its systems;
- the costs (including fines and penalties), to comply with laws such as ADA
and environmental laws not otherwise Tenant's obligation as provided for
in Article 29, including without limitation, laws relating to the required
phase out of so-called "freon" as a coolant or to accomplish other future
retrofitting driven by as-yet-unknown future environmental concerns, or to
purchase environmental insurance;
- the cost of any work performed or service provided for which fees are
charged or other compensation received;
- payments for rental items, the cost of which would constitute a capital
expenditure except where used to reduce or offset operating expenses if
such equipment were purchased;
- legal expenses incurred in connection with tenant leases including,
without limitation, negotiations with prospective tenants and enforcing
provisions of this Lease or other leases in the Building;
- costs for sculptures, paintings and other objects of art located in the
interior or on the exterior of the Building or immediately adjacent
thereto;
- any fees and expenses paid to an agent which is related to Landlord to the
extent such fees or expenses are in excess of the customary market amounts
which would be paid in the absence of such a relationship;
- expenditures for repairs or maintenance which are covered by warranties,
guarantees or service contracts;
- any expenditure for which Landlord has been or is entitled to be
reimbursed by third parties such as insurance companies or would have been
compensated through proceeds of insurance had Landlord maintained
insurance required under this Lease;
- the cost of any alterations, additions or equipment replacements and the
like which under generally accepted accounting principals and practices
are properly classified as capital expenditures, except
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for those items which were purchased for the purpose of reducing Operating
Expenses and actually reduce Operating Expenses;
- advertising, promotional and marketing expenses, or the cost of
maintaining a leasing or marketing office for the Building;
- real estate brokerage and leasing commissions;
- expenses in connection with repairs or other work occasioned by the
exercise of the right of eminent domain;
- damages incurred due to the gross negligence of the Landlord;
- debt costs or the costs of financing or refinancing;
- the costs, fines or penalties incurred due to violations by Landlord of
any governmental rule or authority;
- expenses incurred by Landlord, if any, in connection with the operation,
cleaning, repair, safety, management, security, maintenance or other
services of any kind provided to any portions of the Building which are
leased or designated to be used for retail, garage or storage purposes to
the extent such expenses are reimbursed or paid directly by any tenant or
garage operator;
- expenses incurred by Landlord, if any, in connection with any special
services or any garage operations, but to the extent such expenses are
less than any income generated by such special services or garage
operation;
- any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord;
- Landlord's overhead not related to management of the Building;
- Charitable contributions of Landlord;
- Any "finders' fees," brokerage commissions, job placement costs, or job
advertising cost;
- Any "above-standard" cleaning, including, but not limited to construction
cleanup or special cleanings associated with parties/events;
- Cost of any magazine, newspaper, trade or other subscriptions;
- Cost of any training or incentive programs, other than for Tenant life
safety information services;
- Cost of any "Tenant relations" parties, events or promotion not consented
to by an authorized representative of Tenant in writing;
- "In-house" legal and/or accounting fees; and
- Reserves for bad debts or for future improvements, repairs, additions,
etc.
ARTICLE 42
PREMISES "AS IS"
Tenant acknowledges and agrees that the Premises are being delivered in
"as is" condition, and Landlord has no obligation to make any alteration or
representation to the same, except, Landlord hereby agrees to replace the carpet
in the common areas, renovate the elevator cabs during the calendar year 2001
and to replace the heat pumps throughout the building, as necessary to keep same
in good and working order.
ARTICLE 43
VIOLATIONS
Any violation, municipal, governmental or otherwise, placed on the
Premises as a result of Tenant's (or its employees or agents) acts or omissions,
is deemed a default by Tenant under the Lease and the Landlord will be entitled
to pursue all rights and remedies set forth in the Lease for a Tenant default
and any other rights or remedies available to Landlord under applicable law.
ARTICLE 44
EXPANSION OPTIONS
(A) RIGHT OF FIRST REFUSAL
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(i) Tenant shall have an on-going Right of First Refusal (as
described herein) on any office space in the Building currently available or any
office space in the Building that becomes available during the Term (hereinafter
the "First Refusal Space"). Landlord acknowledges that Tenant may wish to expand
the Premises and lease a portion or portions of the First Refusal Space. Tenant,
however, acknowledges that Landlord must be in a position to lease the First
Refusal Space to other tenants. In order to accommodate Tenant's desires
regarding the First Refusal Space and Landlord's requirement for future leasing
of the First Refusal Space, Landlord grants to Tenant the right of first refusal
to lease the First Refusal Space in accordance with the terms and conditions
contained herein. If Landlord makes a written offer (in response to a request,
written or oral, for proposal) to a prospective tenant to lease all or any
portion of the First Refusal Space, then Landlord shall submit to Tenant in
writing a copy of such proposed offer to lease (hereinafter referred to as the
"Offer") and, for a period of ten (10) business days after Landlord submits the
offer to Tenant, Tenant shall have the right and option to lease the First
Refusal Space covered by the Offer upon equivalent monetary terms and
conditions, including security deposit, any offer of free rent and leasehold
improvement allowances, as embodied in the copy of such Offer submitted to
Tenant by Landlord, but upon all other terms and conditions contained in this
Lease and for a term expiring as of the date of the expiration of this Lease. In
the event the remaining months in the Term or any extension thereof, are less
than the number of months in the term embodied in the Offer, then such free rent
and leasehold improvement allowances shall be reduced to the amounts that bear
the same ratio to the free rent and leasehold improvement allowances embodied in
the Offer as the remaining months in the Term bears to the number of months of
the term embodied in the Offer. If Tenant shall elect to exercise its right to
lease the First Refusal Space covered by the Offer, written notice of such
election shall be given to Landlord within ten (10) business days from the time
that Landlord submitted a copy of the Offer to Tenant (hereinafter referred to
as the "Offer Period"), which notice by Tenant shall specify a date that Tenant
shall lease the space covered by the Offer, which date shall be not less than
thirty (30) nor more than ninety (90) days after the giving of notice thereof.
(ii) Upon the exercise of its right to lease the First Refusal
Space covered by the Offer, Landlord and Tenant shall enter into a written
agreement modifying and supplementing this Lease and specifying that the First
Refusal Space is a part of the Premises and under this Lease and containing
other appropriate terms and provisions relating to the addition of such area to
this Lease, including, without limitation, increasing, adjusting or augmenting
Rent and Additional Rent and Security Deposit as a result of the addition of
such space.
(iii) If a right to lease pursuant to this Article shall not be
exercised within the Offer Period or shall be waived (no notice is deemed to be
a waiver of such right), then Landlord shall have the right to lease such space
to the prospective tenant, and if such transaction is consummated, Tenant's
rights under this Article shall automatically terminate and be of no further
force or effect. If a right to lease pursuant to this Article shall not be
exercised within the Offer Period or shall be waived (no notice is deemed to be
a waiver of such right), and Landlord fails to lease the space covered by the
Offer within six (6) months after Landlord's submission of a copy of the Offer
to Tenant, then this Article shall be applicable to any subsequent offer to
lease the First Refusal Space or any portion thereof.
(iv) Notwithstanding the foregoing right of first refusal and any
other provision of this Lease to the contrary, such right of first refusal is
conditioned upon this Lease being in full force and effect, that Tenant has
received not more than one default notice relating to the payment of Rent or
Additional Rent from Landlord in the preceding six (6) months, and there being
no default continuing under this Lease. If Tenant fails to exercise the
foregoing right of first refusal as provided in and in strict accordance with
the terms of this Article, the foregoing right of first refusal shall
automatically terminate and be of no further force or effect, or if exercised,
shall be null and void.
(v) Tenant shall not have the right to assign its right of first
refusal to any sublessee of the Premises or any portion thereof or to any
assignee of this Lease (except an "Affiliate Transfer"), nor may any such
sublessee or assignee exercise or enjoy the benefit of such right of first
refusal.
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<PAGE> 30
(vi) Notwithstanding any other term or provision of this Article or
elsewhere in this Lease, expressed or implied, it is understood and agreed by
Tenant that (i) Landlord shall not be liable for the failure or inability of
Tenant to exercise or benefit from any or all rights granted in this Article
with respect to said First Refusal Space or any portion thereof and (ii) Tenant
shall not be entitled to any compensation, consolation, consideration,
replacement of such space, or any other remedy from or against Landlord by
reason of such failure or inability.
(B) Right of First Offer
(i) In addition to the foregoing Right of First Refusal, Provided no
event of Default on the part of Tenant has occurred or is continuing, and
further provided, that during the term of this Lease any additional space in the
Building becomes available for lease, Landlord shall before offering same on the
market, first offer same to the Tenant upon the same rent, terms and conditions
as Landlord shall offer to any third party.
(ii) Tenant shall have ten (10) business days immediately following
receipt of written notification from Landlord of the availability of such space
for lease to notify Landlord in writing by certified mail with return receipt
requested or by overnight courier that Tenant has agreed to lease such
additional space upon the terms and conditions as set forth by Landlord.
(iii) In the event Tenant has notified Landlord of its intention to
exercise its option to lease the additional space as provided herein, Landlord
will deliver to Tenant a lease amendment to reflect the addition of such space
to the Premises and incorporating any other financial terms and conditions as
agreed upon between the parties relating to such space.
ARTICLE 45
AUTHORITY
If either party signs as a corporation, execution hereof shall constitute
a representation and warranty by such party to the other that such party is a
duly organized and existing corporation, that such party has been and is
qualified to do business in the State of Georgia and in good standing with the
State of Georgia, that the corporation has full right and authority to enter
into this Lease, and that all persons signing on behalf of the corporation were
authorized to do so by appropriate corporate action. If either party signs as a
partnership, trust, or other legal entity, execution hereof shall constitute a
representation and warranty by such party to the other that such party has
complied with all applicable laws, rules, and governmental regulations relative
to such party's right to do business in the State of Georgia, that such entity
has the full right and authority to enter into this Lease, and that all persons
signing on behalf of such entity were authorized to do so by any and all
necessary or appropriate partnership, trust, or other legal entity.
ARTICLE 46
WAIVER OF LANDLORD'S LIEN
Landlord hereby expressly waives Landlord's statutory or common law
Landlord's lien with regard to the personal property of Tenant, and further
agrees to execute at any time or times hereafter, upon request of Tenant, all
instruments evidencing such waiver.
ARTICLE 47
INTERRUPTION OF SERVICES
If any essential services (such as HVAC, passenger elevators if necessary
for reasonable access, electricity, water) supplied by Landlord are interrupted,
and the interruption does not result from the negligence or willful misconduct
of Tenant, its employees, invitees, or agents, Tenant shall be entitled to an
abatement of Rent and Additional Rent. The abatement shall begin on the third
consecutive business day of the interruption or when Tenant stops using the
Premises because of the interruption, whichever is later. The abatement shall
end when the services are restored. Tenant shall have the option to cancel the
Lease if the interruption unreasonably and materially interferes with Tenant's
use of or access to the Premises for at least ninety (90) days. To exercise this
option Tenant
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must give Landlord notice of the cancellation within ten (10) days from the end
of the ninety (90) day period. During any such interruption, Landlord shall use
its best efforts to restore the services.
ARTICLE 48
GENERATOR
During the Term, Landlord hereby grants to Tenant the exclusive right to
use the generator currently located at the Building. In consideration for such
right, Tenant hereby agrees to maintain such generator; provided, however,
Tenant shall not be responsible for non-routine maintenance or repairs to or
replacement of the generator. Tenant shall have the right to test the generator
on a weekly basis and shall be provided the benefit of any riser space or other
space required for connection to the Premises. Landlord and Tenant acknowledge
that InfoCure Corporation's computer room is currently connected to the
generator and will remain connected to the generator so long as InfoCure
Corporation, or its affiliate, remains a tenant in the Building. During such
time period, InfoCure Corporation agrees to share the cost of maintenance of the
generator proportionately.
ARTICLE 49
RIGHT OF FIRST REFUSAL TO PURCHASE:
Landlord hereby grants to Tenant the right of first refusal to
purchase the Property upon the terms and conditions as set forth herein.
Landlord shall not sell and convey all or any portion of the Property to
any party other than Tenant during the Term unless Landlord shall have first (a)
obtained a valid offer in writing from a prospective purchaser other than Tenant
to purchase all or a portion of Property (hereinafter referred to as the "Third
Party Offer"), (b) offered (hereinafter referred to as the "Refusal Offer") to
sell the Property (or such portion thereof) to Tenant in writing on terms
substantially identical to those contained in the Third Party Offer and (c)
received notice of rejection of the Refusal Offer in writing from Tenant or
failed to receive from Tenant a notice of acceptance of the Refusal Offer
together with an earnest money deposit of Twenty Thousand Dollars ($20,000.00)
within ten (10) business days after receipt by Tenant of the Refusal Offer (the
"Election Period"). Such earnest money shall be applied as part payment of the
purchase price of the Property at the closing.
If Tenant rejects or fails to accept the Refusal Offer within the Election
Period, then Landlord may enter into a binding agreement in accordance with the
Third Party Offer. In the event that such transaction does not close within six
(6) months after the expiration of the Election Period, Tenant's right of first
refusal shall be reinstated with respect to the Property and, Landlord shall,
prior to consummating any sale of the Property, again give Tenant the right of
first refusal to purchase the Property pursuant to the terms of this Section.
Landlord, in such event, shall again be required to submit to Tenant written
notice which shall trigger all the same time periods for Tenant's response as
provided above. Tenant will provide such documentation as Landlord shall
reasonably request to release the Property from this right of first refusal, if
applicable.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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LANDLORD: TENANT:
INFOCURE CORPORATION PRACTICEWORKS SYSTEMS, LLC
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Printed Name Printed Name
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Title Title
WITNESS: WITNESS:
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(print name & title) (print name & title)
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(print name & title) (print name & title
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