Georgia-Atlanta-7000 Central Parkway Lease - ZML-Central Park LLC and ActaMed Corp.
CENTRAL PARK
LEASE AGREEMENT
BY AND BETWEEN
ZML-CENTRAL PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
ACTAMED CORP., A GEORGIA CORPORATION
("TENANT")
DATED
NOVEMBER 6, 1995
FOR
SUITE NUMBER 400
SUITE NUMBER 600
CONTAINING
41,292 SQUARE FEET OF RENTABLE FLOOR AREA
AT BUILDING 7000
TERM: 60 MONTHS
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Lease of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. Rental Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. Base Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7. Rental Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
8. Additional Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9. Operating Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10. Tenant Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
12. Late Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. Use Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
14. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
15. Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
16. Landlord's Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . 7
17. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
18. Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . 7
19. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
20. Waiver of Breach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
21. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . . 8
22. Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
24. Services by Landlord. . . . . . . . . . . . . . . . . . . . . . . . . . .10
25. Attorneys' Fees and Homestead . . . . . . . . . . . . . . . . . . . . . .10
26. Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
27. Subordination and Attornment. . . . . . . . . . . . . . . . . . . . . . .10
28. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . .11
29. No Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
30. Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
31. Holding Over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
32. Surrender of Premises . . . . . . . . . . . . . . . . . . . . . . . . . .11
33. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
34. Damage or Theft of Personal Property. . . . . . . . . . . . . . . . . . .11
35. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
36. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
39. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
40. Landlord's Liability. . . . . . . . . . . . . . . . . . . . . . . . . . .13
41. Landlord's Covenant of Quiet Enjoyment. . . . . . . . . . . . . . . . . .13
42. Security Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
43. Hazardous Substances. . . . . . . . . . . . . . . . . . . . . . . . . . .13
44. Submission of Lease . . . . . . . . . . . . . . . . . . . . . . . . . . .14
45. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
46. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
47. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
48. Broker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
49. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
50. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
51. Joint and Several Liability . . . . . . . . . . . . . . . . . . . . . . .14
52. Special Stipulations. . . . . . . . . . . . . . . . . . . . . . . . . . .14
</TABLE>
RULES AND REGULATIONS
EXHIBIT "A" - Legal Description
EXHIBIT "B" - Floor Plan
EXHIBIT "C" - Supplemental Notice
EXHIBIT "D" - Landlord's Construction
EXHIBIT "E" - Building Standard Services
EXHIBIT "F" - Special Stipulations
<PAGE>
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into this 6th day of
November 1995, by and between Landlord and Tenant.
W I T N E S S E T H:
1. CERTAIN DEFINITIONS. For purposes of this Lease, the following terms shall
have the meanings hereinafter ascribed thereto:
(a) LANDLORD: The Equitable Life Assurance Society of the United States
(b) LANDLORD'S ADDRESS: LANDLORD'S ADDRESS FOR PAYMENTS:
c/o Equity Office Holding, c/o Equity Office Properties, L.L.C.
L.L.C. Suite 1040
Two North Riverside Plaza 7000 Central Parkway, N.E.
22nd Floor Atlanta, Georgia 30328
Chicago, Illinois 60606
Attention: General Counsel
(c) TENANT: ActaMed Corp., a Georgia corporation
(d) TENANT'S ADDRESS:
Suite 400
7000 Central Parkway
Atlanta, Georgia 30328
Attn: Chief Financial Officer
(e) BUILDING ADDRESS:
7000 Central Parkway
Atlanta, Georgia 30328
(f) SUITE NUMBERS:
Suite 400: 25,331 rentable square feet
Suite 600: 15,961 rentable square feet
Total: 41,292 rentable square feet
(g) RENTABLE FLOOR AREA OF DEMISED PREMISES:
Total 41,292 square feet.
(h) RENTABLE FLOOR AREA OF BUILDING: 410,490 square feet.
(i) LEASE TERM: Suite 400 - 60 months
Suite 600 - 55 months
(j) BASE RENTAL RATE: $19.95 per square foot of Rentable Floor Area of
Demised Premises per year.
(k) RENTAL COMMENCEMENT DATE: Suite 400 - August 1, 1996
Suite 600 - January 1, 1997
See Special Stipulation No. 34.
(l) TENANT IMPROVEMENT ALLOWANCE: $7.83 per square foot of rentable floor
area in Demised Premises.
See Special Stipulation No. 11.
<PAGE>
(m) SECURITY DEPOSITS:
(i) $43,875.04 [Article 42(a)].
(ii) $ N/A [Article 42(b)].
(n) BROKER(S): CB Commercial Real Estate Group, Inc.
2. LEASE OF PREMISES. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building (the "Building") located on that certain tract of land (the
"Land") more particularly described on EXHIBIT "A" attached hereto and by this
reference made a part hereof, which Demised Premises are outlined in red or
cross-hatched on the floor plan attached hereto as EXHIBIT "B" and by this
reference made a part hereof, with no easement for light, view or air included
in the Demised Premises or being granted hereunder. The "Project" is comprised
of the Building, the Land, the Building's parking facilities, any walkways,
covered walkways, tunnels or other means of access to the Building and the
Building's parking facilities, all common areas, including any lobbies or
plazas, and any other improvements or landscaping on the Land.
3. TERM. The term of this Lease (the "Lease Term") shall commence on
the date first hereinabove set forth (the "Term Commencement Due"), and,
unless sooner terminated as provided in this Lease, shall end on the
expiration of the period designated in Article 1(i) above, which period shall
commence on the Rental Commencement Date, unless the Rental Commencement Date
shall be other than the first day of a calendar month, in which event such
period shall commence on the first day of the calendar month following the
month in which the Rental Commencement Date occurs. Promptly after the
Rental Commencement Date, Landlord or Landlord's agent shall send to Tenant a
Supplemental Notice in the form of EXHIBIT "C" attached hereto and by this
reference made a part hereof, specifying the Rental Commencement Date, the
date of expiration of the Lease Term in accordance with Article 1(i) above
and certain other matters as therein set forth. Notwithstanding anything
herein to the contrary, if the Additional Space is not substantially complete
within sixty (60) days after the scheduled Rental Commencement Date, Tenant
shall have the option of terminating this Lease upon written notice to
Landlord, provided that if any delay in Landlord's completion of the Demised
Premises shall be caused by Tenant the deadline for substantial completion
shall be adjusted accordingly.
See Special Stipulation No. 34.
4. POSSESSION. The obligations of Landlord and Tenant with respect to
the initial leasehold improvements to the Additional Space are set forth in
EXHIBIT "D" attached hereto and by this reference made a part hereof. Taking of
possession by Tenant of the Additional Space shall be deemed conclusively to
establish that Landlord's construction obligations with respect to the
Additional Space have been completed in accordance with the plans and
specifications approved by Landlord and Tenant and that the Additional Space, to
the extent of Landlord's construction obligations with respect thereto, are in
good and satisfactory condition, except as to latent defects and any items
Tenant notifies Landlord of in writing within ten (10) days of Tenant's taking
possession of the Additional Space. Landlord shall repair any such defects and
items within a reasonable period following receipt of notice from Tenant.
5. RENTAL PAYMENTS.
(a) Commencing on the Rental Commencement Date, and continuing
thereafter throughout the Lease Term, Tenant hereby agrees to pay all Rent due
and payable under this Lease. As used in this Lease, the term "Rent" shall mean
the Base Rental, Rental Adjustment, Tenant's Forecast Additional Rental,
Tenant's Additional Rental, and any other amounts that Tenant assumes or agrees
to pay under the provisions of this Lease that are owed to Landlord, including,
without limitation, any and all other sums that may become due by reason of any
default of Tenant or failure on Tenant's part to comply with the agreements,
terms, covenants and conditions of this Lease to be performed by Tenant. Base
Rental, together with Tenant's Forecast Additional Rental, shall be due and
payable in twelve (12) equal installments on the first day of each calendar
month, commencing on the Rental Commencement Date and continuing thereafter
throughout the Lease Term and any extensions or renewals thereof. Tenant hereby
agrees to pay such Rent to Landlord at Landlord's address as provided herein (or
such other address as may be designated by Landlord from time to time) monthly
in advance. Tenant shall pay all Rent and other sums of money as shall become
due from and payable by Tenant to Landlord under this Lease at the times and in
the manner provided in this Lease, without demand, set-off or counterclaim,
except as specifically set forth in this Lease.
(b) If the Rental Commencement Date is other than the first day of a
calendar month or if this Lease terminates on a day other than the last day of a
calendar month, then the installments of Base Rental and Tenant's Forecast
Additional Rental for such month or months shall be prorated on a daily basis
and the installment or installments so prorated shall be paid in advance. Also,
if the Rental Commencement Date occurs on a day other than the first day of a
calendar year, or if this Lease expires or is terminated on a day other than the
last day of a calendar year, Tenant's Additional Rental shall be prorated for
such commencement or termination year, as the case may be, by multiplying such
Tenant's Additional Rental by a fraction, the numerator of which shall be the
number of days of the Lease Term (from and after the Rental Commencement Date)
during the commencement or expiration or termination year, as the case may be,
and the denominator of which shall be 365, and the calculation described in
Article 8 hereof shall be made as soon as possible after the expiration or
termination of this Lease, Landlord and Tenant hereby agreeing that the
provisions relating to said calculation shall survive the expiration or
termination of this Lease, by not more than three (3) years.
6. BASE RENTAL. From and after the applicable Rental Commencement Date,
Tenant shall pay to Landlord a base annual rental (herein called "Base Rental")
equal to the Base Rental Rate set forth in Article 1(j) above multiplied by the
Rentable Floor Area of the portion of the Demised Premises as set forth in
Article 1(f) above.
2
<PAGE>
7. RENTAL ADJUSTMENT.
(a) Tenant shall pay to Landlord as additional rental a rental
adjustment (the "Rental Adjustment") which shall be determined as of the
first anniversary of the Rental Commencement Date and as of each January 1
thereafter during the Lease Term in the manner hereinafter provided (each
such date being hereinafter in this Article 7 called an "Adjustment Date",
and each period of time from any given Adjustment Date through the day before
the next succeeding Adjustment Date being herein called an "Adjustment
Period"). Each such Rental Adjustment shall be payable in monthly
installments in advance on the first day of every such calendar month during
the Adjustment Period for which such Rental Adjustment was determined. A
prorated monthly installment, based on the number of days in the partial
month, shall be paid for any fraction of a month if the Rental Commencement
Date falls on any day other than the first day of a calendar month, or if the
Lease Term is terminated or expires on any other day than the last day of a
calendar month. Landlord shall use reasonable efforts to notify Tenant in
writing of the monthly amount of the Rental Adjustment for each Adjustment
Period at least ten (10) days prior to the date on which the first
installment of such Rental Adjustment is due and payable, or as soon
thereafter as is practicable. Failure by Landlord to notify Tenant of the
monthly amount of such Rental Adjustment shall not prejudice Landlord's right
to collect the full amount of such Rental Adjustment, nor shall Landlord be
deemed to have forfeited or surrendered its rights to collect such Rental
Adjustment which may have become due pursuant to this Article 7, and Tenant
agrees to pay within thirty (30) days after notice all accrued but unpaid
Rental Adjustment.
(b) For each Adjustment Period, each monthly installment of the
Rental Adjustment shall be an amount equal to one-twelfth (1/12th) of the
product of: (i) the annual Base Rental set forth in Article 6 hereof,
multiplied by (ii) .50, multiplied by (iii) the "percentage increase" (as
hereinafter defined), if any, in the "index" (as hereinafter defined), as
such percentage increase is determined with respect to the Adjustment Date
beginning such Adjustment Period.
(c) For purposes of Articles 7(a) and (b) above, the "percentage
increase," if any, in the Index for each Adjustment Date shall mean and equal
the quotient (expressed as a decimal) determined by dividing (i) the
difference obtained by subtracting the Index for the calendar month in which
the Rental Commencement Date falls from the Index for the calendar month of
October immediately preceding the Adjustment Date in question [if the
difference so obtained is negative, then this factor (i) shall be deemed to
be zero], by (ii) the Index for the calendar month in which the Rental
Commencement Date falls.
(d) The term "Index" as used in Articles 7(b) and (c) above shall
mean the Consumer Price Index for All Urban Consumers, U.S. City Average, All
Items (1982-84 = 100), published by the Bureau of Labor Statistics of the
United States Department of Labor. If the Bureau of Labor Statistics should
discontinue the publication of the Index, or publish the same less
frequently, or alter the same in some manner, then Landlord shall adopt a
substitute Index or substitute procedure which reasonably reflects and
monitors consumer prices.
(e) Nothing contained in this Article 7 shall be construed at any
time so to reduce the monthly installments of Base Rental payable hereunder
below the amount set forth in Article 6 of this Lease. Notwithstanding
anything contained in this Lease to the contrary, it is agreed that (i) the
Rental Adjustment for any given Adjustment Period shall not be less than the
Rental Adjustment for the immediately preceding Adjustment Period, and (ii)
Tenant's payments pursuant to this Article 7 shall not be deemed payments of
rent as that term is construed relative to governmental wage and price
controls or analogous governmental actions affecting the amount of rent which
Landlord may charge Tenant.
See Special Stipulation No. 3
8. ADDITIONAL RENTAL.
(a) For purposes of this Lease, "Tenant's Forecast Additional
Rental" shall mean Landlord's reasonable estimate of Tenant's Additional
Rental for each calendar year or portion thereof during the Lease Term. If
at any time it appears to Landlord that Tenant's Additional Rental for the
current calendar year then at hand will vary from Landlord's estimate,
Landlord shall have the right to revise, by notice to Tenant, its estimate
for such year, and subsequent payments by Tenant for such year shall be based
upon such revised estimate of Tenant's Additional Rental. Failure to make a
revision contemplated by the immediately preceding sentence shall not
prejudice Landlord's right to collect the full amount of Tenant's Additional
Rental. "Prior to the Rental Commencement Date, and thereafter prior to the
beginning of each calendar year during the Lease Term, including any
extensions or renewals thereof, Landlord shall present to Tenant a statement
of Tenant's Forecast Additional Rental for such calendar year; provided,
however, that if such statement is not given prior to the beginning of any
calendar year as aforesaid, Tenant shall continue to pay during the next
ensuing calendar year on the basis of the amount of Tenant's Forecast
Additional Rental payable during the calendar year just ended until the month
after such statement is delivered to Tenant."
(b) For purposes of this Lease, "Tenant's Additional Rental" shall
mean for each calendar year (or portion thereof) during the Lease Term the
excess of (x) the Operating Expense Amount (defined below) multiplied by the
number of square feet of Rentable Floor Area of the Demised Premises, over
(y) the Operating Expense Stop (as hereinafter defined). As used herein,
"Operating Expense Amount" shall mean an amount equal to the amount of
Operating Expenses (as defined below) for such calendar year divided by the
greater of (i) ninety-five percent (95%) of the number of square feet of
Rentable Floor Area of the Building, or (ii) the total number of square feet
of Rentable Floor Area occupied in the Building for such calendar year on an
average annualized basis; provided, however, if the amount is calculated
under (i) above, the Operating Expenses actually incurred with respect to
such calendar year shall be adjusted to reflect the amount of Operating
Expenses which would have been incurred if the Building were ninety-five
percent (95%) occupied throughout such calendar year. As used herein,
"Operating Expense Stop" shall be determined by calculating the Operating
Expenses during the first twelve (12) months following the Rental
Commencement Date for Suite 400.
(c) Within one hundred fifty (150) days after the end of the
calendar year in which the Rental Commencement Date occurs and of each
calendar year thereafter during the Lease Term, or as soon thereafter as
practicable, Landlord shall provide Tenant a statement showing the Operating
3
<PAGE>
Expenses for said calendar year, as prepared by an authorized representative
of Landlord, and a statement prepared by Landlord comparing Tenant's Forecast
Additional Rental with Tenant's Additional Rental. In the event Tenant's
Forecast Additional Rental exceeds Tenant's Additional Rental for said
calendar year, Landlord shall credit such amount against the Forecast
Additional Rental next due hereunder or, if the Lease Term has expired or is
about to expire, promptly refund such excess to Tenant if Tenant is not in
default under this Lease (in the instance of a default, such excess shall be
held as additional security for Tenant's performance, may be applied by
Landlord to cure any such default, and shall not be refunded until any such
default is cured). In the event that the Tenant's Additional Rental exceeds
Tenant's Forecast Additional Rental for said calendar year, Tenant shall pay
Landlord, within thirty (30) days of receipt of the statement, an amount
equal to such difference. The provisions of this Lease concerning the payment
of Tenant's Additional Rental shall survive the expiration or earlier
termination of this Lease.
(d) Landlord's books and records pertaining to the calculation of
Operating Expenses for any calendar year within the Lease Term may be audited
by Tenant or its representatives at Landlord's office where Operating Expense
records are kept, at Tenant's expense, at any time within ninety (90) days
after Landlord's annual statement is delivered to Tenant for such calendar
year; provided that Tenant shall give Landlord not less than thirty (30)
days' prior written notice of any such audit. If Landlord's calculations of
Tenant's Additional Rental for the audited calendar year was incorrect, then
Tenant shall be entitled to a prompt refund of any overpayment or Tenant
shall promptly pay to Landlord the amount of any underpayment, as the case
may be.
See Special Stipulation No. 21.
9. OPERATING EXPENSES.
(a) For the purposes of this Lease, "Operating Expenses" shall
mean all expenses, costs and disbursements (but not specific costs billed or
billable to specific tenants of the Building) of every kind and nature,
computed on an accrual basis and in conformity with generally accepted
accounting principles consistently applied, relating to or incurred or paid
in connection with the ownership, management, operation, repair and
maintenance of the Project, including but not limited to, the following:
(1) wages, salaries and other costs of all on-site and
off-site employees engaged either full or part time in the operation,
management, maintenance or access control of the Project, including
taxes, insurance and benefits relating to such employees, allocated
based upon the time such employees are engaged directly in providing
such services;
(2) the cost of all supplies, tools, equipment and materials
used in the operation, management, maintenance and access control of the
Project;
(3) the cost of all utilities for the Project, including but
not limited to the cost of electricity, gas, water, sewer services and
power for heating, lighting, air conditioning and ventilating;
(4) the cost of all maintenance and service agreements for
the Project and the equipment therein, including, but not limited to,
security service, garage operators, window cleaning, elevator
maintenance, HVAC maintenance, janitorial service, landscaping
maintenance and customary landscaping replacement;
(5) the cost of inspections, repairs and general maintenance
of the Project;
(6) amortization (together with reasonable financing charges,
whether or not actually incurred) of the cost of acquisition and/or
installation of capital investment items (including security equipment),
amortized over their respective useful lives, which are installed for
the purpose of reducing operating expenses (providing that such
amortization charge shall not exceed the cost reduction attributable to
the capital investment item for the related period), promoting safety,
complying with governmental requirements, or maintaining the first-class
nature of the Project;
(7) the cost of casualty, rental loss, liability and other
insurance applicable to the Project and Landlord's personal property
used in connection therewith;
(8) the cost of trash and garbage removal, vermin
extermination, and snow, ice and debris removal;
(9) the cost of legal and accounting services incurred by
Landlord in connection with the management, maintenance, operation and
repair of the Project, excluding the owner's or Landlord's general
accounting, such as partnership statements and tax returns, and
excluding services described in Article 9(b)(14) below;
(10) all taxes, assessments and governmental charges, whether
or not directly paid by Landlord, whether federal, state, country or
municipal and whether they be by taxing districts or authorities
presently taxing the Project or by others subsequently created or
otherwise, and any other taxes and assessments attributable to the
Project or its operation (and the costs of monitoring and contesting any
of the same), including business license taxes and fees (all of the
foregoing are herein sometimes collectively referred to as "Taxes"),
excluding, however, taxes and assessments imposed on the personal
property of the tenants of the Project, federal and state taxes on
income, death taxes, franchise taxes, and any taxes (other than business
license taxes and fees) imposed or measured on or by the income of
Landlord from the operation of the Project; provided, however, that if
at any time during the Lease Term, the present method of taxation or
assessment shall be so changed that the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or
imposed on real estate and the improvements thereon shall be
discontinued and as a substitute therefor, or in lieu of or in addition
thereto, taxes, assessments, levies, impositions or charges shall be
4
<PAGE>
levied, assessed and/or imposed wholly or partially as a capital levy or
otherwise on the rents received from the Project or the rents reserved
herein or any part thereof, then such substitute or additional taxes,
assessments, levies, impositions or charges, to the extent so levied,
assessed or imposed, shall be deemed to be included within the Operating
Expenses to the extent that such substitute or additional tax would be
payable if the Project were the only property of the Landlord subject to
such tax; and it is agreed that Tenant will be responsible for ad
valorem taxes on its personal property and on the value of the leasehold
improvements in the Demised Premises to the extent that the same exceed
building standard allowances, if said taxes are based upon an assessment
which includes the cost of such leasehold improvements in excess of
building standard allowances (and if the taxing authorities do not
separately assess Tenant's leasehold improvements, Landlord may make an
appropriate allocation of the ad valorem taxes allocated to the Project
to give effect to this sentence) (for purposes of this subparagraph
only, "building standard allowances" shall mean the improvements which
exist in the Demised Premises as of the Term Commencement Date plus all
additional improvements constructed using the Tenant Improvement
Allowances);
(11) the cost of operating the management office for the
Project, including cost of office supplies, telephone expenses and
non-capital investment equipment and amortization (together with
reasonable financing charges) of the cost of capital investment
equipment; and
(12) management fees consistent with those charged for
comparable buildings in the north central submarket of Atlanta, Georgia.
Tenant acknowledges that the Project is part of a development, which
will or may include other improvements and that the costs of management,
operation and maintenance of the development shall, from time to time, be
allocated among and shared by two or more of the improvements in the
development (including the Project). The determination of such costs and
their allocation shall be made by Landlord in its reasonable discretion. In
addition, Landlord reserves the right to recompute and adjust the base year
of any component of Operating Expenses at any time during the Lease Term as a
result of any reallocation within the Project. Accordingly, the term
"Operating Expenses" as used in this Lease shall, from time to time, include
some costs, expenses and taxes enumerated above which were incurred with
respect to other improvements in the development but which were allocated to
and shared by the Project in accordance with the foregoing. Notwithstanding
the foregoing, Tenant understands and agrees that its right to use other
portions of the development of which the Project is a part are those
available to the general public and that this Lease does not grant to Tenant
additional rights of use.
(b) For purposes of this Lease, and notwithstanding anything in
any other provision of this Lease to the contrary, "Operating Expenses" shall
not include the following:
(1) the cost of any special work or service performed for any
tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any
specialty service, such as an observatory, broadcasting facility,
luncheon club, restaurant, cafeteria, retail store, sundry shop,
newsstand, or concession, but only to the extent such costs exceed those
which would normally be expected to be incurred had such space been
general office space;
(3) the cost of correcting defects in construction;
(4) compensation paid to officers and executives of Landlord
(but it is understood that the on-site building manager and other
on-site employees below the grade of building manager may carry a title
such as vice president and the salaries and related benefits of these
officers/employees of Landlord would be allowable Operating Expenses
under Article 9[a][1] above);
(5) the cost of any items for which Landlord is reimbursed by
insurance, condemnation or otherwise, except for costs reimbursed
pursuant to provisions similar to Articles 8 and 9 hereof;
(6) the cost of any additions, changes, replacements and
other items which are made in order to prepare for a new tenant's
occupancy;
(7) the cost of repairs incurred by reason of fire or other
casualty;
(8) insurance premiums to the extent Landlord may be directly
reimbursed therefor, except for premiums reimbursed pursuant to
provisions similar to Articles 8 and 9 hereof;
(9) interest on debt or amortization payments on any mortgage
or deed to secure debt (except to the extent specifically permitted by
Article 9[a]) and rental under any ground lease or other underlying
lease;
(10) any real estate brokerage commissions or other costs
incurred in procuring tenants or any fee in lieu of such commission;
(11) any advertising expenses incurred in connection with the
marketing of any rentable space;
(12) rental payments for base building equipment such as HVAC
equipment and elevators;
(13) any expenses for repairs or maintenance which are covered
by warranties and service contracts, to the extent such maintenance and
repairs are made at no cost to Landlord;
5
<PAGE>
(14) legal expenses arising out of the construction of the
improvements on the Land or the enforcement of the provisions of any
lease affecting the Land or Building, including without limitation this
Lease; and
(15) amortization or depreciation of the cost of acquisition
of the Building, project and any improvements thereto (other than those
described in section 9(a)(6).
See Special Stipulation No. 22.
10. TENANT TAXES. Tenant shall pay promptly when due all taxes
directly or indirectly imposed or assessed upon Tenant's gross sales,
business operations, machinery, equipment, trade fixtures and other personal
property or assets, whether such taxes are assessed against Tenant, Landlord
or the Building. In the event that such taxes are imposed or assessed
against Landlord or the Building, Landlord shall furnish Tenant with all
applicable tax bills, public charges and other assessments or impositions and
Tenant shall forthwith pay the same either directly to the taxing authority
or, at Landlord's option, to Landlord.
11. PAYMENTS. All payments of Rent and other payments to be made to
Landlord shall be made on a timely basis and shall be payable to Landlord or
as Landlord may otherwise designate. All such payments shall be mailed or
delivered to Landlord's Address designated in Article 1(b) above or at such
other place as Landlord may designate from time to time in writing. If
mailed, all payments shall be mailed in sufficient time and with adequate
postage thereon to be received in Landlord's account by no later than the due
date for such payment.
12. LATE CHARGES. Any Rent or other amounts payable to Landlord under
this Lease, if not paid by the fifth day of the month for which such Rent is
due, or by the due date specified on any invoices from Landlord for any other
amounts payable hereunder, shall incur a late charge of Fifty Dollars
($50.00) for Landlord's administrative expense in processing such delinquent
payment and in addition thereto shall bear interest at the rate of fifteen
percent (15%) per annum from and after the due date for such payment.
Notwithstanding anything to the contrary contained in this Lease, in no event
shall the rate of interest payable on any amount due under this Lease exceed
the legal limits for such interest enforceable under applicable law.
13. USE RULES. The Demised Premises shall be used for executive,
general administrative and office space purposes, including, without
limitation, sales offices, training facilities for Tenant's customers and
employees, ancillary kitchen facilities (including use of vending machines),
and no other purposes and in accordance with all applicable laws, ordinances,
rules and regulations of governmental authorities and the Rules and
Regulations attached hereto and made a part hereof. Tenant covenants and
agrees that it will, at its expense, comply with all laws, ordinances,
orders, directions, requirements, rules and regulations of all governmental
authorities (including Federal, State, county and municipal authorities), now
in force or which may hereafter be in force ("Legal Requirements"), which
shall impose any duty upon Landlord or Tenant with respect to the use,
occupancy or alteration of the Demised Premises, and of all insurance bodies
applicable to the Demised Premises or to the Tenant's use or occupancy
thereof. Notwithstanding the foregoing, nothing in this Lease shall be
construed to require Tenant to make any structural repairs, alterations or
modifications to the Demised Premises, the Building (including the bathrooms
and Common Areas) or the Project, in connection with any Legal Requirements.
Tenant covenants and agrees to abide by the Rules and Regulations in all
respects as now set forth and attached hereto or as hereafter promulgated by
Landlord, provided that such rules do not materially and adversely affect
Tenant's rights hereunder. Landlord shall have the right at all times during
the Lease Term to publish and promulgate and thereafter enforce such rules
and regulations or changes in the existing Rules and Regulations as it may
reasonably deem necessary in its sole discretion to protect the
tenantability, safety, operation, and welfare of the Demised Premises and the
Project.
See Special Stipulation No. 27.
14. ALTERATIONS. Except for any initial improvement of the Demised
Premises pursuant to EXHIBIT "D", which shall be governed by the provisions
of said EXHIBIT "D", Tenant shall not make, suffer or permit to be made any
alterations, additions or improvements to or of the Demised Premises or any
part thereof, or attach any fixtures or equipment thereto, without first
obtaining Landlord's written consent. With respect to any alteration,
addition or improvement which does not affect the structure of the Building,
does not affect any of the Building's systems (e.g., mechanical, electrical
or plumbing), does not diminish the capacity of such Building systems
available to other portions of the Building, is not visible from the common
areas or exterior of the Building, and is in full compliance with all laws,
orders, ordinances, directions, requirements, rules and regulations of all
governmental authorities. Landlord's consent shall not be unreasonably
withheld (and Landlord's consent shall not be required if the cost of the
aforesaid type of alteration is less than $15,000.00). Any such alterations,
additions or improvements to the Demised Premises consented to by Landlord
shall be made by Landlord or under Landlord's supervision for Tenant's
account and Tenant shall reimburse Landlord for all costs thereof (including
a reasonable charge for Landlord's overhead), as Rent, within ten (10) days
after receipt of a statement. All such alterations, additions and
improvements (except for Tenant's trade fixtures and computer and electronic
equipment) shall become Landlord's property at the expiration or earlier
termination of the Lease Term and shall remain on the Demised Premises
without compensation to Tenant unless Landlord elects by notice to Tenant to
have Tenant remove such alterations, additions and improvements, in which
event, notwithstanding any contrary provisions respecting such alterations,
additions and improvements contained in Article 32 hereof, Tenant shall
promptly restore, at its sole cost and expense, the Demised Premises to its
condition prior to the installation of such alterations, additions and
improvements, normal wear and tear excepted. Tenant shall under no
circumstances be required to remove any alterations, additions and
improvements which are part of the initial improvement of the Demised
Premises which do not require Landlord's consent, or which are made with
Landlord's consent (unless the removal requirement is specified by Landlord
at the time of initial approval).
See Special Stipulation No. 39.
6
<PAGE>
15. REPAIRS.
(a) Landlord shall maintain in good order and repair, subject to
normal wear and tear and subject to casualty and condemnation, the Building
(excluding the Demised Premises, other than the structural portions thereof,
and other portions of the Building leased to other tenants, other than the
structural portions thereof), the Building parking facilities, the public
areas and the landscaped areas. Notwithstanding the foregoing obligation,
the cost of any repairs or maintenance to the foregoing necessitated by the
intentional acts or negligence of Tenant or its agents, contractors,
employees, invitees, licensees, tenants or assigns, shall be borne solely by
Tenant and shall be deemed Rent hereunder and shall be reimbursed by Tenant
to Landlord upon demand. Landlord shall not be required to make any repairs
or improvements to the Demised Premises except structural repairs necessary
for safety and tenantability.
(b) Tenant covenants and agrees that it will take good care of the
Demised Premises and all alterations, additions and improvements thereto and
will keep and maintain the same in good condition and repair, except for
normal wear and tear (Covered Repairs" (as defined in Special Stipulation No.
36), condemnation and casualty. To the fullest extent permitted by law,
Tenant hereby waives all rights to make repairs at the expense of Landlord or
in lieu thereof to vacate the Demised Premises as may be provided by any law,
statute or ordinance now or hereafter in effect. Landlord has no obligation
and has made no promise to alter, remodel, improve, repair, decorate or paint
the Demised Premises or any part thereof, except as specifically and
expressly herein set forth.
16. LANDLORD'S RIGHT OF ENTRY. Landlord shall retain duplicate keys to
all doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder, all without being liable to Tenant in any manner
whatsoever for any damages arising therefrom, unless caused by Landlord's
negligence or willful misconduct; provided, however, that Landlord shall, except
in case of emergency, afford Tenant such prior notification of any entry into
the Demised Premises as shall be reasonably practicable under the circumstances.
Landlord shall be allowed to take into and through the Demised Premises any and
all materials (except hazardous substances as defined in Article 43) that may be
required to make such repairs. During such time as such work is being carried
on, in or about the Demised Premises, the Rent provided herein shall not abate,
and Tenant waives any claim or cause of action against Landlord for damages by
reason of interruption of Tenant's business or loss of profits therefrom because
of the prosecution of any such work or any part thereof.
See Special Stipulation No. 23.
17. INSURANCE. Tenant shall procure at its expense and maintain
throughout the Lease Term a policy or policies of commercial property insurance,
issued on an "all risks" basis insuring the full replacement cost with a
reasonable deductible amount of its furniture, equipment, supplies and other
property owned, leased, held or possessed by it and contained in the Demised
Premises, together with the excess value of the improvements to the Demised
Premises over the "building standard allowances" as defined in subparagraph
9(a)(10) (with a replacement cost endorsement sufficient to prevent Tenant from
becoming a co-insurer), and workmen's compensation insurance as required by
applicable law. Tenant shall also procure at its expense and maintain
throughout the Lease Term a policy or policies of commercial general liability
insurance, written on an occurrence basis and insuring Tenant, and naming as an
additional insured, Landlord and any mortgagee identified by written notice to
Tenant, against any and all liability for injury to or death of a person or
persons and for damage to property occasioned by or arising out of any
construction work being done on the Demised Premises by Tenant or its agent or
contractors, or arising out of the use or occupancy of the Demised Premises, or
in any way occasioned by or arising out of the activities of Tenant, its agents,
contractors, employees, guests or licensees in the Demised Premises, or other
portions of the Building or the Project, the limits of such policy or policies
to be in combined single limits for both damage to property and personal injury
and in amounts not less than Three Million Dollars ($3,000,000.00) for each
occurrence. Such insurance shall, in addition, extend to any liability of
Tenant arising out of the indemnities provided for in this Lease. Landlord
shall keep and maintain in effect fire insurance with extended coverage in an
amount equal to at least eighty percent (80%) of the insurable amount of the
Building. Such insurance company (an "Eligible Company") shall be solvent,
authorized to do business in Atlanta, Georgia, and be acceptable to prudent
landlords of first class office buildings in the Atlanta, Georgia, area similar
to the Building. Landlord shall keep and maintain comprehensive general
liability insurance, including contractual liability coverage issued by an
Eligible Company. The insurance policies evidencing the coverages described
above shall contain such terms and conditions as similar policies obtained by
landlords of similar first class office buildings in the Atlanta, Georgia, area.
All insurance policies procured and maintained by Tenant pursuant to this
Article 17 shall name Landlord and any mortgagee as additional insured, shall be
carried with companies licensed to do business in the State of Georgia
reasonably satisfactory to Landlord and shall be non-cancelable and not subject
to material change except after twenty (20) days' written notice to Landlord.
Duly executed certificates of insurance with respect to such policies,
accompanied by proof of payment of the premium therefor, shall be delivered to
Landlord prior to the Rental Commencement Date, and renewals of such policies
shall be delivered to Landlord at least thirty (30) days prior to the expiration
of each respective policy term.
18. WAIVER OF SUBROGATION. Landlord and Tenant shall each have included
in all policies of commercial property insurance, commercial general liability
insurance, and business interruption and other insurance respectively obtained
by them pursuant to this Lease, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and releases the other from
liability for, loss or damage to the extent such loss or damage is covered by
valid and collectible insurance in effect at the time of such loss or damage or,
in the event of self-insurance or a failure to insure, would be covered by the
insurance required to be maintained under this Lease by the party seeking
recovery.
7
<PAGE>
19. DEFAULT
(a) The following events shall be deemed to be events of default
by Tenant under this Lease: (i) Tenant shall fail to pay any installment of
Rent or any other charge or assessment against Tenant pursuant to the terms
hereof within five (5) days following written notice by Landlord to Tenant of
its failure to pay such installments, provided that Landlord shall not be
obligated to send to Tenant such written notice more often than twice in any
calendar year during the term hereof; (ii) Tenant shall fail to comply with
any term, provision, covenant or warranty made under this Lease by Tenant,
other than the payment of the Rent or any other charge or assessment payable
by Tenant, and shall not cure such failure within twenty (20) days after
notice thereof to Tenant; (iii) Tenant or any guarantor of this Lease shall
make a general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due, or shall file a
petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent, or
shall file a petition in any proceeding seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or shall file
an answer admitting or fail timely to contest the material allegations of a
petition filed against it in any such proceeding; (iv) a proceeding is
commenced against Tenant or any guarantor of this Lease seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, and such proceeding shall not have been dismissed within
forty-five (45) days after the commencement thereof; (v) a receiver or
trustee shall be appointed for the Demised Premises or for all or
substantially all of the assets of Tenant or of any guarantor of this Lease
(unless such receiver is removed within thirty (30) days after appointment
thereof); and (vi) Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises or the Project and such lien is not
removed or discharged within fifteen (15) days after the filing thereof.
Notwithstanding the foregoing, in the case of a non-monetary default which is
subject to cure but which cannot by its very nature be cured within said
twenty (20) day period, Tenant shall be granted an additional period of time,
not to exceed twenty-five (25) days, in which to effect such cure, provided
Tenant promptly commences to cure such default and diligently pursues said
cure to completion.
(b) Upon the occurrence of any of the aforesaid events of default,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever: (i) terminate this Lease,
in which event Tenant shall immediately surrender the Demised Premises to
Landlord and if Tenant fails to do so, Landlord may without prejudice to any
other remedy which it may have for possession or arrearages in Rent, enter
upon and take possession of the Demised Premises and expel or remove Tenant
and any other person who may be occupying said Demised Premises or any part
thereof, in accordance with applicable law, without being liable for
prosecution or any claim of damages therefor; Tenant hereby agreeing to pay
to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet the
Demised Premises on satisfactory terms or otherwise; (ii) terminate Tenant's
right of possession (but not this Lease) and enter upon and take possession
of the Demised Premises and expel or remove Tenant and any other person who
may be occupying said Demised Premises or any part thereof, by entry (in
accordance with applicable law), dispossessory suit or otherwise, without
thereby releasing Tenant from any liability hereunder, without terminating
this Lease, and without being liable for prosecution or any claim of damages
therefor and, if Landlord so elects, make such alterations, redecorations and
repairs as, in Landlord's judgment, may be necessary to relet the Demised
Premises, and Landlord may, but shall be under no obligation to do so, relet
the Demised Premises or any portion thereof in Landlord's or Tenant's name,
but for the account of Tenant, for such term or terms (which may be for a
term extending beyond the Lease Term) and at such rental or rentals and upon
such other terms as Landlord may deem advisable, with or without
advertisement, and by private negotiations, and receive the rent therefor,
Tenant hereby agreeing to pay to Landlord the deficiency, if any, between all
Rent reserved hereunder and the total rental applicable to the Lease Term
hereof obtained by Landlord re-letting, and Tenant shall be liable for
Landlord's expenses in redecorating and restoring the Demised Premises and
all costs incident to such re-letting, including broker's commissions and
lease assumptions, and in no event shall Tenant be entitled to any rentals
received by Landlord in excess of the amounts due by Tenant hereunder; or
(iii) enter upon the Demised Premises, in accordance with applicable law,
without being liable for prosecution or any claim of damages therefor, and do
whatever Tenant is obligated to do under the terms of this Lease; and Tenant
agrees to reimburse Landlord on demand for any expenses including, without
limitation, reasonable attorneys' fees which Landlord may incur in this
effecting compliance with Tenant's obligations under this Lease and Tenant
further agrees that Landlord shall not be liable for any damages resulting to
Tenant from such action. If this Lease is terminated by Landlord as a result
of the occurrence of an event of default, Landlord may declare due and
payable immediately an amount determined as follows: (x) the entire amount of
Rent and other charges and assessments which would have become due and
payable during the remainder of the Lease Term (including, without
limitation, increases in Rent pursuant to Article 7 hereof), discounted to
present value by using a discount factor of eight percent (8%) per annum,
plus (y) all of Landlord's costs and expenses (including, without limitation,
Landlord's expenses in redecorating and restoring the Demised Premises and
all costs relating to such reletting, including broker's commissions and
lease assumptions) reasonably incurred in connection with or related to the
reletting of the Demised Premises, minus (z) the market rental value of the
Demised Premises for the remainder of the Lease Term, based on Landlord's
reasonable determination of both future rental value and the probability of
reletting the Demised Premises for all or part of the remaining Term,
discounted to present value by using a discount factor of eight percent (8%)
per annum. Such payment shall not constitute a penalty or forfeiture but
shall constitute liquidated damages for Tenant's failure to comply with the
terms and provisions of this Lease (Landlord and Tenant agreeing that
Landlord's exact damages in such event are impossible to ascertain and that
the amount set forth above is a reasonable estimate thereof). For purposes of
determining what could be collected by Landlord by reletting under this
subsection, Landlord is not required to relet when other comparable space in
the Building is available. The term "remaining Lease Term" as used in this
subsection shall mean the period which otherwise would have (but for the
termination of this Lease) constituted the balance of the Lease Term from the
date of the termination of this Lease.
(c) Pursuit of any of the foregoing remedies shall not preclude
pursuit of any other remedy herein provided or any other remedy provided by
law or at equity, nor shall pursuit of any remedy herein provided constitute
an election of remedies thereby excluding the later election of an alternate
remedy, or a forfeiture or waiver of any Rent or other charges and
assessments payable by Tenant and due to Landlord hereunder or of any damages
accruing to Landlord by reason of violation of any of the terms, covenants,
warranties and provisions herein contained. No reentry or taking possession
8
<PAGE>
of the Demised Premises by Landlord or any other action taken by or on behalf of
Landlord shall be construed to be an acceptance of a surrender of this Lease or
an election by Landlord to terminate this Lease unless written notice of such
intention is given to Tenant. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default. In determining the amount of
loss or damage which Landlord may suffer by reason of termination of this Lease
or the deficiency arising by reason of any reletting of the Demised Premises by
Landlord as above provided, allowance shall be made for the expense of
repossession. Tenant agrees to pay to Landlord all costs and expenses incurred
by Landlord in the enforcement of this Lease, including without limitation, the
fees of Landlord's attorneys as provided in Article 25 hereof.
20. WAIVER OF BREACH. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
21. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord, assign this Lease or any interest herein or in
the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise
transfer or sublet the Demised Premises or any part thereof or permit the use
of the Demised Premises by any party other than Tenant. Consent to one or
more such transfers or subleases shall not destroy or waive this provision,
and all subsequent transfers and subleases shall likewise be made only upon
obtaining the prior written consent of Landlord. Without limiting the
foregoing prohibition, in no event shall Tenant assign this Lease or any
interest herein, whether directly, indirectly or by operation of law, or
sublet the Demised Premises or any part thereof or permit the use of the
Demised Premises or any part thereof by any party if such proposed
assignment, subletting or use would contravene any restrictive covenant
(including any exclusive use) granted to any other tenant of the Building or
would contravene the provisions of Article 13 of this Lease. Sublessees or
transferees of the Demised Premises for the balance of the Lease Term shall
become directly liable to Landlord for all obligations of Tenant hereunder,
without relieving Tenant (or any guarantor of Tenant's obligations hereunder)
of any liability therefor, and Tenant shall remain obligated for all
liability to Landlord arising under this Lease during the entire remaining
Lease Term including any extensions thereof, whether or not authorized
herein. If Tenant is a partnership, a withdrawal or change, whether
voluntary, involuntary or by operation of law, of partners owning a
controlling interest in the Tenant shall be deemed a voluntary assignment of
this Lease and subject to the foregoing provisions. If Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization
of Tenant, or the sale or transfer of a controlling interest in the capital
stock of Tenant, whether in a single transaction or in a series of
transactions, shall be deemed a voluntary assignment of this Lease and
subject to the foregoing provisions. Landlord may, as a prior condition to
considering any request for consent to an assignment or sublease, require
Tenant to obtain and submit current financial statements of any proposed
subtenant or assignee and such other financial documentation relative to the
proposed subtenant or assignee as Landlord may reasonably require. In the
event Landlord consents to an assignment or sublease, Tenant shall pay to
Landlord a fee to cover Landlord's accounting costs plus any legal fees
actually incurred by Landlord as a result of the assignment or sublease (not
to exceed $1,000.00). The consent of Landlord to any proposed assignment or
sublease may be withheld by Landlord in its sole and absolute discretion.
Any consideration, in excess of the Rent and other charges and sums due and
payable by Tenant under this Lease, paid to Tenant by any assignee of this
Lease for its assignment, or by any sublessee under or in connection with its
sublease, or otherwise paid to Tenant by another party for use and occupancy
of the Demised Premises or any portion thereof (after deducting Tenant's
reasonable costs associated therewith, including brokerage fees, attorneys'
fees and remodeling costs), shall be promptly remitted by Tenant to Landlord
as additional rent hereunder and Tenant shall have no right or claim thereto
as against Landlord. No assignment of this Lease consented to by Landlord
shall be effective unless and until Landlord shall receive an original
assignment and assumption agreement, in form and substance satisfactory to
Landlord, signed by Tenant and Tenant's proposed assignee, whereby the
assignee assumes due performance of this Lease to be done and performed for
the balance of the then remaining Lease Term of this Lease. No subletting of
the Demised Premises, or any part thereof, shall be effective unless and
until there shall have been delivered to Landlord an agreement, in form and
substance satisfactory to Landlord, signed by Tenant and the proposed
sublessee, whereby the sublessee acknowledges the right of Landlord to
continue or terminate any sublease, in Landlord's sole discretion, upon
termination of this Lease, and such sublessee agrees to recognize and attorn
to Landlord in the event that Landlord elects under such circumstances to
continue such sublease. Upon Landlord's receipt of a request by Tenant to
assign this Lease or any interest herein or in the Demised Premises or to
transfer or sublet the Demised Premises or any part thereof or permit the use
of the Demised Premises by any party other than Tenant, Landlord shall
exercise in writing one of the following options: (a) to terminate this Lease
as to the portion of the Demised Premises proposed to be assigned or sublet;
(b) to consent to the proposed assignment or sublease, subject to the other
terms and conditions set forth in this Article 21; or (c) to refuse to
consent to the proposed assignment or sublease, which refusal shall be deemed
to have been exercised unless Landlord gives Tenant written notice providing
otherwise. Landlord agrees to respond to any such request within ten (10)
days after receipt of such request, together with such information as may be
reasonably necessary to enable Landlord to make an informed decision with
respect to such request.
See Special Stipulation No. 5.
22. DESTRUCTION.
(a) If the Demised Premises are damaged by fire or other casualty,
the same shall be repaired or rebuilt as speedily as practical under the
circumstances as the expense of Landlord, unless this Lease is terminated as
provided in this Article 22, and during the period required for restoration,
a just and proportionate part of Base Rental shall be abated until the
Demised Premises are repaired or rebuilt.
(b) If the Demised Premises are (i) damaged to such an extent that
repairs cannot be completed within one hundred eighty (180) days after the
date of the casualty, or (ii) damaged or destroyed as a result of a risk
which is not insured under the insurance policies required hereunder, or
(iii) damaged or destroyed during the last eighteen (18) months of the Lease
Term, or (iv) if the Building is damaged in whole or in part (whether or not
the Demised Premises are damaged) to such an extent that the Building cannot,
in Landlord's reasonable judgment, be operated economically as an integral
unit, then and in any such event Landlord may at its option terminate this
Lease by notice in writing to Tenant within sixty (60) days after the day of
such occurrence. With respect to condition (iv) above, Landlord must
terminate all other leases
9
<PAGE>
in the Building in order to terminate this Lease. If the Demised Premises are
damaged to such an extent that repairs cannot reasonably be anticipated to be
to be or are not completed within one hundred eighty (180) days after the date
of the casualty or if the Demised Premises are substantially damaged during
the last eighteen (18) months of the Lease Term, then in either such event
Tenant may elect to terminate this Lease by notice in writing to Landlord
given within forty-five (45) days after the date of such occurrence (or
within thirty (30) days of the conclusion of such one hundred eighty (180)
day period if the repairs are not completed within such period). Unless
Landlord or Tenant elects to terminate this Lease as hereinabove provided,
this Lease will remain in full force and effect and Landlord shall repair such
damage at its expense to the extent required under subparagraph (c) below as
expeditiously as possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to
subparagraph (a) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original Building
and any other work or improvements which were originally performed or
installed at Landlord's expense as described in EXHIBIT "D" hereto or with
the proceeds of the Tenant Improvement Allowance. If Landlord's mortgagee or
the lessor under a ground or underlying lease shall require that any
insurance proceeds from a casualty loss be paid to it, Landlord may terminate
this Lease unless Tenant, within fifteen (15) days after demand therefor,
deposits with Landlord a sum of money sufficient to pay the difference
between the cost of repair and the proceeds of the insurance available to
Landlord for such purpose.
(d) In no event shall Landlord be liable for any loss or damage
sustained by Tenant by reason of casualties mentioned hereinabove or any
other accidental casualty.
(e) In the event of a minor casualty (i.e., one which can be fully
repaired in less than thirty (30) days), Landlord shall not be entitled to
terminate this Lease and shall restore the Demised Premises in accordance
with the provisions of this Article 22.
See Special Stipulation No. 37.
23. LANDLORD'S LIEN. [INTENTIONALLY DELETED.]
24. SERVICES BY LANDLORD. Landlord shall provide the Building Standard
Services described on EXHIBIT "E" attached hereto and by this reference made
a part hereof.
25. ATTORNEYS' FEES AND HOMESTEAD. [INTENTIONALLY DELETED.]
See Special Stipulation No. 18.
26. TIME. Time is of the essence of this Lease and whenever a certain
day is stated for payment or performance of any obligation of Tenant or
Landlord, the same enters into and becomes a part of the consideration hereof.
27. SUBORDINATION AND ATTORNMENT.
(a) Tenant agrees that this Lease and all rights of Tenant
hereunder are and shall be subject and subordinate to any ground or
underlying lease which may now or hereafter be in effect regarding the
Project or any component thereof, to any mortgage now or hereafter
encumbering the Demised Premises or the Project or any component thereof, to
all advances made or hereafter to be made upon the security of such mortgage,
to all amendments, modifications, renewals, consolidations, extensions and
restatements of such mortgage, and to any replacements and substitutions for
such mortgage. The terms of this provision shall be self-operative and no
further instrument of subordination shall be required. Tenant, however, upon
request of any party in interest, shall execute promptly such instrument or
certificates as may be reasonably required to carry out the intent hereof,
whether said requirement is that of Landlord or any other party in interest,
including, without limitation, any mortgagee.
(b) If any mortgagee or lessee under a ground or underlying lease
elects to have this Lease superior to its mortgage or lease and signifies its
election in the instrument creating its lien or lease or by separate recorded
instrument, then this Lease shall be superior to such mortgage or lease, as
the case may be. The term "mortgage", as used in this Lease, includes any
deed to secure debt, deed of trust or security deed and any other instrument
creating a lien in connection with any other method of financing or
refinancing. The term "mortgagee", as used in this Lease, refers to the
holder(s) of the indebtedness secured by a mortgage.
(c) In the event any proceedings are brought for the foreclosure
of, or in the event of exercise of the power of sale under, any mortgage
covering the Demised Premises or the Project, or in the event the interests
of Landlord under this Lease shall be transferred by reason of deed in lieu
of foreclosure or other legal proceedings, or in the event of termination of
any lease under which Landlord may hold title, Tenant shall, at the option of
the transferee or purchaser at foreclosure or under power of sale, or the
lessor of the Landlord upon such lease termination, as the case may be
(sometimes hereinafter called "such person"), attorn to such person and shall
recognize and be bound and obligated hereunder to such person as the Landlord
under this Lease; provided, however, that no such person shall be (i) bound
by any payment of Rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease; (ii) bound by any amendment or modification of
this Lease made without the express written consent of the mortgagee or lessor
of the Landlord, as the case may be (provided that Tenant was notified in
writing of such mortgagee or lessor of Landlord); (iii) obligated to cure
any defaults under this Lease of any prior landlord (including Landlord);
(iv) liable for any act or omission of any
10
<PAGE>
prior landlord (including Landlord); (v) subject to any offsets or defenses
which Tenant might have against any prior landlord (including Landlord); or
(vi) bound by any warranty or representation of any prior landlord (including
Landlord) relating to work performed by any prior landlord (including
Landlord) under this Lease. Landlord's successor shall not be liable for the
matters described in clauses (iii) through (vi) of the preceding sentence,
provided Landlord shall remain liable to Tenant for the matters described
therein. Tenant agrees to execute any attornment agreement reasonable in form
and content and not in conflict herewith requested by Landlord, the mortgagee
or such person. Tenant's obligation to attorn to such person shall survive
the exercise of any such power of sale, foreclosure or other proceeding.
Tenant agrees that the institution of any suit, action or other proceeding by
any mortgagee to realize on Landlord's interest in the Demised Premises or
the Building pursuant to the powers granted to a mortgagee under its
mortgage, shall not, by operation of law or otherwise, result in the
cancellation or termination of the obligations of Tenant hereunder. Landlord
and Tenant agree that notwithstanding that this Lease is expressly subject
and subordinate to any mortgages, any mortgagee, its successors and assigns,
or other holder of a mortgage or of a note secured thereby, may sell the
Demised Premises or the Building, in the manner provided in the mortgage and
may, at the option of such mortgagee, its successors and assigns, or other
holder of the mortgage or note secured thereby, make such sale of the Demised
Premises or Building subject to this Lease.
See Special Stipulation No. 6.
28. ESTOPPEL CERTIFICATES. Within twenty (20) days after written
request therefor by Landlord, Tenant agrees to execute and deliver to
Landlord in recordable form an estoppel certificate addressed to Landlord,
any mortgagee or assignee of Landlord's interest in, or purchaser of, the
Demised Premises or the Building or any part thereof, certifying (if such be
the case) that this Lease is unmodified and is in full force and effect (and
if there have been modifications, that the same is in full force and effect
as modified and stating said modifications); that there are no defenses or
offsets against the enforcement thereof to Tenant's knowledge or stating
those claimed by Tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also include such other information
concerning the Lease and Tenant's occupancy as may reasonably be required by
such mortgagee, proposed mortgagee, assignee, purchaser or Landlord. Any such
certificate may be relied upon by Landlord, any mortgagee, proposed
mortgagee, assignee, purchaser and any other party to whom such certificate
is addressed. Upon written request from Tenant, Landlord agrees to provide
estoppel certificates to Tenant generally in the same manner as set forth
herein above.
29. NO ESTATE. This Lease shall create the relationship of landlord and
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale
and not assignable in whole or in part by Tenant except as herein provided.
30. CUMULATIVE RIGHTS. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
31. HOLDING OVER. If Tenant remains in possession after expiration or
termination of the Lease Term with or without Landlord's written consent,
Tenant shall become a tenant-at-sufferance, and there shall be no renewal of
this Lease by operation of law. During the period of any such holding over,
all provisions of this Lease shall be and remain in effect except that the
monthly rental shall be one hundred fifty percent (150%) of Rent (including
any adjustments as provided herein) payable for the last full calendar month
of the Lease Term including renewals or extensions. The inclusion of the
preceding sentence in this Lease shall not be construed as Landlord's consent
for Tenant to hold over.
32. SURRENDER OF PREMISES. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises
and every part thereof and all alterations, additions and improvements
thereto, broom clean and in good condition and state of repair, reasonable
wear and tear and damage caused by casualty or condemnation excepted. Tenant
shall remove all personalty and equipment not attached to the Demised
Premises which it has placed upon the Demised Premises, and Tenant shall
restore the Demised Premises to the condition immediately preceding the time
of placement thereof. If Tenant shall fail or refuse to remove all of
Tenant's effects, personalty and equipment from the Demised Premises upon the
expiration or termination of this Lease for any cause whatsoever or upon
Tenant being dispossessed by process of law or otherwise, such effects,
personalty and equipment shall be deemed upon three (3) business days prior
written notice to Tenant to be abandoned and may be appropriated, sold,
stored, destroyed or otherwise disposed of by Landlord without written notice
to Tenant or any other party and without obligation to account for them.
Tenant shall pay Landlord on demand any and all reasonable expenses incurred
by Landlord in the removal of such property, including, without limitation,
the cost of repairing any damage to the Building or Project caused by the
removal of such property and storage charges (if Landlord elects to store
such property). The covenants and conditions of this Article 32 shall survive
any expiration or termination of this Lease.
See Special Stipulation No. 39.
33. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to have been fully given, whether
actually received or not, when delivered in person, or one (1) days after
being deposited with an overnight commercial courier, or three (3) days after
being deposited, postage prepaid, in the United States Mail, certified,
return receipt requested, and addressed to Landlord or Tenant at their
respective address set forth hereinabove or at such other address as either
party shall have theretofore given to the other by notice as herein provided.
See Special Stipulation No. 33.
34. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal property brought
into the Demised Premises by Tenant, or Tenant's employees, agents, or
business visitors, shall be at the risk of Tenant only, and Landlord shall
not be liable for theft thereof or any damage thereto occasioned by any act
11
<PAGE>
of co-tenants, occupants, invitees or other users of the Building or any other
person unless damage or theft is caused by Landlord's negligence or misconduct.
Landlord shall not at any time be liable for damage to any personal property of
Tenant, its employees, sublessees, or invitees in or upon the Demised Premises,
which results from gas, smoke, water, rain, ice or snow which issues or leaks
from or forms upon any part of the Building or from the pipes or plumbing work
of the same, or from any other place whatsoever unless damage is caused by
Landlord's negligence or misconduct.
35. EMINENT DOMAIN.
(a) If all or part of the Project shall be taken for any public or
quasi-public use by virtue of the exercise of the power of eminent domain or by
private purchase in lieu thereof, this Lease shall terminate as to any part of
the Demised Premises so taken as of the date of taking, and, in the case of a
partial taking, either Landlord or Tenant shall have the right to terminate this
Lease by written notice to the other within thirty (30) days after such date;
provided, however, that a condition to the exercise by Tenant of such right to
terminate shall be that the portion of the Project taken shall be of such extent
and nature as to materially impair Tenant's use of the balance of the Demised
Premises (i.e. insufficient parking, lack of access, non-availability of
essential services). If title to so much of the Project is taken that a
reasonable amount of reconstruction thereof will not in Landlord's sole
discretion result in the Building being a practical improvement and reasonably
suitable for use for the purpose for which it is designed, then this Lease shall
terminate on the date that the condemning authority actually takes possession of
the part so condemned or purchased; provided, however, that as a condition to
terminating this Lease, Landlord must also terminate all other leases in the
Building. If a temporary taking has a material, adverse effect on the Demised
Premises and will extend beyond one hundred eighty (180) days, then Tenant shall
have the right to terminate this Lease by timely notice to Landlord. If any
part of the Demised Premises is taken and Tenant elects not to terminate the
Lease, rent will be reduced in proportion to the area of the Demised Premises so
taken.
(b) If this Lease is terminated under the provisions of this
Article 35, Rent shall be apportioned and adjusted as of the date of
termination. Tenant shall have no claim against Landlord or against the
condemning authority for the value of any leasehold estate or for the value
of the unexpired Lease Term provided that the foregoing shall not preclude
any claim that Tenant may have against the condemning authority for the
unamortized cost of leasehold improvements, to the extent the same were
installed at Tenant's expense (and not with the proceeds of the Tenant
Improvement Allowance), or for loss of business, moving expenses or other
consequential damages, in accordance with subparagraph (d) below.
(c) If there is a partial taking of the Project and this Lease is
not thereupon terminated under the provisions of this Article 35, then this
Lease shall remain in full force and effect, and Landlord shall, within a
reasonable time thereafter, repair or reconstruct the remaining portion of
the Project or Building to the extent necessary to make the same a complete
architectural unit; provided, that in complying with its obligations
hereunder, Landlord shall not be required to expend more than the net
proceeds of the condemnation award which are paid to Landlord. Upon any such
partial taking, Landlord shall have the right to reduce the figure described
in Article 8(b)(y) hereof by an amount equal to the product of (x) the amount
of tax savings arising from such partial taking, as determined by Landlord in
its reasonable discretion, divided by the number of square feet of Rentable
Floor Area of the Building, multiplied by (y) the number of square feet of
Rentable Floor Area of the Demised Premises. Landlord shall give Tenant
notice of such adjustment and a statement setting forth a reasonably detailed
explanation of how the adjustment was calculated.
(d) All compensation awarded or paid to Landlord upon a total or
partial taking of the Demised Premises or the Project shall belong to and be
the property of Landlord without any participation by Tenant. Nothing herein
shall be construed to preclude Tenant from prosecuting any claim directly
against the condemning authority for loss of business, for damage to, and
cost of removal of, trade fixtures, furniture and other personal property
belonging to Tenant, and for the unamortized cost of leasehold improvements
to the extent the same were installed at Tenant's expense (and not with the
proceeds of the Tenant Improvement Allowance); provided, however, that no
such claim shall diminish or adversely affect Landlord's award.
(e) Notwithstanding anything to the contrary contained in this
Article 35, if, during the Lease Term, the use or occupancy of any part of
the Project or the Demised Premises shall be taken or appropriated
temporarily for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain, this Lease shall be
and remain unaffected by such taking or appropriation and Tenant shall
continue to pay in full all Rent payable hereunder by Tenant during the Lease
Term. In the event of any such temporary appropriation or taking, Tenant
shall be entitled to receive that portion of any award which represents
compensation for the loss of use or occupancy of the Demised Premises during
the Lease Term, and Landlord shall be entitled to receive that portion of any
award which represents the cost of restoration and compensation for the loss
of use or occupancy of the Demised Premises after the end of the Lease Term.
36. PARTIES. The term "Landlord", as used in this Lease, shall include
Landlord and its successors and assigns. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees, if this Lease shall be
validly assigned for the balance of the Lease Term or any renewals or extensions
thereof. In addition, Landlord and Tenant covenant and agree that Landlord's
right to transfer or assign Landlord's interest in and to the Demised Premises,
or any part or parts thereof, shall be unrestricted, and that in the event of
any such transfer or assignment by Landlord which includes the Demised Premises,
Landlord's obligations to Tenant hereunder shall cease and terminate, and Tenant
shall look only and solely to Landlord's assignee or transferee for performance
thereof, provided Landlord's successor assumes all of Landlord's liability
hereunder.
37. [INTENTIONALLY DELETED.]
12
<PAGE>
See Special Stipulation No. 17.
38. RELOCATION OF THE PREMISES. [INTENTIONALLY DELETED.]
39. FORCE MAJEURE. In the event of strike, lockout, labor trouble,
civil commotion, Act of God, or any other cause beyond a party's control
(collectively "force majeure") resulting in Landlord's inability to supply
the services or perform the other obligations required of Landlord hereunder,
this Lease shall not terminate and Tenant's obligation to pay Rent and all
other charges and sums due and payable by Tenant shall not be affected or
excused and Landlord shall not be considered to be in default under this
Lease. If, as a result of force majeure, Tenant is delayed in performing any
of its obligations under this Lease, other than Tenant's obligation to take
possession of the Demised Premises on or before the Rental Commencement Date
and to pay Rent and all other charges and sums payable by Tenant hereunder,
Tenant's performance shall be excused for a period equal to such delay and
Tenant shall not during such period be considered to be in default under this
Lease with respect to the obligation, performance of which has thus been
delayed.
40. LANDLORD'S LIABILITY. Landlord shall have no personal liability
with respect to any of the provisions of this Lease. If Landlord is in
default with respect to its obligations under this Lease, Tenant shall look
solely to the interest of Landlord in and to the Building and the Land
(including net rental income and net sales, insurance and condemnation
proceeds) for satisfaction of Tenant's remedies, if any. It is expressly
understood and agreed that Landlord's liability under the terms of this Lease
shall in no event exceed the amount of its interest in and to said Land and
Building. In no event shall any partner of Landlord nor any joint venturer in
Landlord, nor any officer, director or shareholder of Landlord or any such
partner or joint venturer of Landlord be personally liable with respect to
any of the provisions of this Lease.
41. LANDLORD'S COVENANT OF QUIET ENJOYMENT. Provided Tenant performs
the terms, conditions and covenants of this Lease, and subject to the terms
and provisions hereof, Landlord covenants and agrees that Tenant shall have
the quiet and peaceful possession of the Demised Premises, for the Lease
Term, without hindrance, claim or molestation by Landlord or any other person
lawfully claiming under Landlord.
42. SECURITY DEPOSITS.
(a) As security for Tenant's obligations to take possession of the
Demised Premises in accordance with the terms of this Lease and to comply
with all of Tenant's covenants, warranties and agreements hereunder, Tenant
shall deposit with Landlord the sum set forth in Article 1(m)(i) above on the
date Tenant executes and delivers this Lease to Landlord as prepaid rent.
Such amount shall be applied by Landlord, without interest, to the first
monthly installment(s) of Base Rental as they become due hereunder. In the
event Tenant fails to take possession of the Demised Premises as aforesaid,
said sum shall be retained by Landlord for application in reduction, but not
in satisfaction, of damages suffered by Landlord as a result of such breach by
Tenant.
(c) In the event of a sale or transfer of Landlord's interest in
the Demised Premises or the Building or a lease by Landlord of the Building,
Landlord shall have the right to transfer the within described security
deposits to the purchaser or lessor, as the case may be, and Landlord shall
be relieved of all liability to Tenant for the return of such security
deposits. Tenant shall look solely to the new owner or lessor for the return
of said security deposits. The security deposits shall not be mortgaged,
assigned or encumbered by Tenant. In the event of a permitted assignment
under this Lease by Tenant, the security deposits shall be held by Landlord as
a deposit made by the permitted assignee and Landlord shall have no further
liability with respect to the return of said security deposits to the
original Tenant.
(d) Neither Landlord nor its agents shall be required to keep the
security deposits separate from their general accounts, it being agreed that
the security deposits may be commingled with other funds of Landlord or of
its agents. It is further agreed and acknowledged by Tenant that Landlord or
its agents shall have the right to deposit the security deposits in an
interest-bearing account, and all interest accrued on the security deposits
shall belong to Landlord and will be retained by Landlord as its property.
43. HAZARDOUS SUBSTANCES. Tenant hereby covenants and agrees that
Tenant shall not bring or cause to be brought any "Hazardous Substances" (as
hereinafter defined) or knowingly permit to be generated, placed, held,
stored, used, located or disposed of at the Project or any part thereof,
except for Hazardous Substances as are commonly and legally used or stored as
a consequence of using the Demised Premises for general office and
administrative purposes, but only so long as the quantities thereof do not
pose a threat to public health or to the environment or would necessitate a
"response action", as that term is defined in CERCLA (as hereinafter
defined), and so long as Tenant strictly complies or causes compliance with
all
13
<PAGE>
applicable governmental rules and regulations concerning the use or
production of such Hazardous Substances, at the time such materials are
placed in or on the Land, Building or the Demised Premises. For purposes of
this Article 43, "Hazardous Substances" shall mean and include those elements
or compounds which are contained in the list of Hazardous Substances adopted
by the United States Environmental Protection Agency (EPA) or the list of
toxic pollutants designated by Congress or the EPA which are defined as
hazardous, toxic, pollutant, infectious or radioactive by any other federal,
state or local statute, law, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability (including, without
limitation, strict liability) or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any
time hereinafter in effect (collectively "Environmental Laws"). Tenant hereby
agrees to indemnify Landlord and hold Landlord harmless from and against any
and all losses, liabilities, including strict liability, damages, injuries,
expenses, including reasonable attorneys' fees, costs of settlement or
judgment and claims of any and every kind whatsoever paid, incurred or
suffered by, or asserted against, Landlord by any person, entity or
governmental agency for, with respect to, or as a direct or indirect result
of Tenant's breach of this paragraph 43 (including, without limitation, any
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees, costs of any settlement or judgment or
claims asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act ["CERCLA"], any so-called federal, state or
local "Superfund" or "Superlien" laws or any other Environmental Law);
provided, however, that the foregoing indemnity is limited to matters arising
solely from Tenant's violation of the covenant contained in this Article. The
obligations of Tenant under this Article shall survive any expiration or
termination of this Lease.
See Special Stipulation No. 16.
44. SUBMISSION OF LEASE. The submission of this Lease for examination
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant.
45. SEVERABILITY. If any clause or provision of the Lease is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision
of this Lease which is illegal, invalid or unenforceable, there shall be
added as a part of this Lease a clause or provision as nearly identical to
the said clause or provision as may be legal, valid and enforceable.
46. ENTIRE AGREEMENT. This Lease contains the entire agreement of the
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord
hereunder, or to insist upon strict compliance by Tenant with any obligation
of Tenant hereunder, and no custom or practice of the parties at variance
with the terms hereof, shall constitute a waiver of Landlord's right to
demand exact compliance with the terms hereof. This Lease may not be
altered, waived, amended or extended except by an instrument in writing
signed by Landlord and Tenant. This Lease is not in recordable form, and
Tenant agrees not to record or cause to be recorded this Lease or any short
form or memorandum thereof.
47. HEADINGS. The use of headings herein is solely for the convenience
of indexing the various paragraphs hereof and shall in no event be considered
in construing or interpreting any provision of this Lease.
48. BROKER. Broker(s) [as defined in Article 1(n)] is(are) entitled to
a leasing commission from Landlord by virtue of this Lease, which leasing
commission shall be paid by Landlord to Broker(s) in accordance with the
terms of a separate agreement between Landlord and Broker(s). Tenant
represents and warrants to Landlord that [except with respect to any Broker(s)
identified in Article 1(n) hereinabove, which has(have) acted as agent for
Tenant (and not for Landlord) in this transaction] no broker, agent,
commission salesperson, or other person has represented Tenant in the
negotiations for and procurement of this Lease and that [except with respect
to any Broker(s) identified in Article 1(n) hereinabove] no commissions, fees
or compensation of any kind are due and payable in connection herewith to any
broker, agent, commission salesperson or other person as a result of any act
or agreement of Tenant. Tenant agrees to indemnify and hold Landlord harmless
from all loss, liability, damage, claim, judgment, cost or expense (including
reasonable attorneys' fees and court costs) suffered or incurred by Landlord
as a result of a breach by Tenant of the representation and warranty
contained in the immediately preceding sentence or as a result of Tenant's
failure to pay commissions, fees or compensation due to any broker who
represented Tenant, whether or not disclosed, or as a result of any claim for
any fee, commission or similar compensation with respect to this Lease made
by any broker, agent or finder [other than the Broker(s) identified in
Article 1(n) hereinabove] claiming to have dealt with Tenant with respect to
the Lease, whether or not such claim is meritorious. The parties hereto do
hereby acknowledge and agree that COMPASS Management and Leasing, Inc., a
subsidiary of Equitable Real Estate Investment Management, Inc., has acted as
agent for Landlord in this transaction and shall be paid a commission by
Landlord in connection with this transaction pursuant to the terms of a
separate written commission agreement. COMPASS Management and Leasing, Inc.
has not acted as agent for Tenant in this transaction. Landlord hereby
warrants and represents to Tenant that Landlord has not dealt with any
broker, agent or finder other than COMPASS Management and Leasing, Inc. and
Broker as defined in subparagraph 1(n) in connection with this Lease, and,
Landlord hereby agrees to indemnify and hold Tenant harmless from and against
any and all loss, damage, liability, claim, judgment, cost or expense
(including, but not limited to, reasonable attorneys' fees and court costs)
that may be incurred or suffered by Tenant because of any claim for any fee,
commission or similar compensation with respect to this Lease made by any
broker, agent or finder claiming to have represented Landlord.
49. GOVERNING LAW. The laws of the State of Georgia shall govern the
validity, performance and enforcement of this Lease.
50. AUTHORITY. If Tenant executes this Lease as a corporation, Tenant
does hereby represent and warrant that Tenant is a duly incorporated or a
duly qualified (if a foreign corporation) corporation and is fully authorized
and qualified to do business in the State in which the Demised Premises are
located, that the corporation has full right and authority to enter into this
Lease, and that each person signing on behalf of the corporation is an
officer of the corporation and is authorized to sign on behalf of the
corporation. If Tenant signs as a partnership, joint venture or sole
proprietorship or other
14
<PAGE>
business entity (each being herein called "Entity"), each of the persons
executing on behalf of Tenant does hereby covenant and warrant that Tenant is
a duly authorized and existing Entity, that Tenant has full right and
authority to enter into this Lease, that all persons executing this Lease on
behalf of the Entity are authorized to do so on behalf of the Entity, and
that such execution is fully binding upon the Entity and its partners, joint
venturers or principal, as the case may be. Upon the request of Landlord,
Tenant shall deliver to Landlord documentation satisfactory to Landlord
evidencing Tenant's compliance with this Article, and Tenant agrees to
promptly execute all necessary and reasonable applications or documents as
reasonably requested by Landlord, required by the jurisdiction in which the
Demised Premises is located, to permit the issuance of necessary permits and
certificates for Tenant's use and occupancy of the Demised Premises.
51. JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one person,
corporation, partnership or other entity, the liability hereunder of all such
persons, corporations, partnerships or other entities shall be joint and
several.
52. SPECIAL STIPULATIONS. The special stipulations attached hereto as
EXHIBIT "F" are hereby incorporated herein by this reference as though fully set
forth (if none, so state). To the extent the special stipulations conflict with
or are inconsistent with the foregoing provisions of this Lease or any exhibit
to this Lease, the special stipulations shall control.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day, month and year first above written.
"LANDLORD": ZML-CENTRAL PARK, L.L.C., a Delaware
Limited Liability Company
BY: EQUITY OFFICE HOLDINGS, L.L.C., as agent
Date executed by Landlord By: /s/ Arvid Povilaitis
-------------------------------------------
11/6/95 Arvid Povilaitis
------------------- Title: Vice President
----------------------------------------
"TENANT":
ACTAMED CORP., a Georgia corporation
Date executed by Tenant By: /s/ Nancy J. Ham
10/2/95 -------------------------------------------
----------- Title: Chief Financial Officer
----------------------------------------
Attest:
---------------------------------------
Title:
---------------------------------------
[CORPORATE SEAL]
Exhibits Attached
Rules and Regulations
Exhibit "A" - Legal Description of Building 7000
Exhibit "A-1" - Storage Space
Exhibit "B" - Floor Plan
Exhibit "C" - Supplemental Notice
Exhibit "D" - Landlord's Construction
Exhibit "E" - Building Standard Services
Exhibit "F" - Special Stipulations
Exhibit "G" - Janitorial Specifications
15
<PAGE>
ADDENDUM
This Addendum is entered into as of the 6th day of November, 1995 by
and between ZML-Central Park, L.L.C., a Delaware Limited Liability Company
("Landlord") by its agent Equity Office Holdings, L.L.C., a Delaware Limited
Liability Company, and Actamed Corp., a Georgia Corporation ("Tenant").
WITNESSETH:
WHEREAS, simultaneously with the execution of this Addendum, Landlord and Tenant
have entered into that certain lease of even date herewith (the "Lease") for
approximately 41,292 square feet of Rentable Floor Area on the 4th and 6th
floors of the building located at 7000 Central Parkway, Atlanta, Georgia and
commonly known as Central Park (the "Building"), all as more particularly
described in the Lease; and
WHEREAS, Landlord and Tenant desire to modify certain terms and conditions of
the Lease as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and
other good and valuable consideration, the sufficiency and receipt of which is
acknowledge, Landlord and Tenant agree as follows:
1. TERM. Article 3 of the Lease is hereby amended by adding the
following language at the end thereof:
"Notwithstanding anything herein to the contrary, if Landlord determines
that it will be unable to substantially complete the Additional Space by
sixty (60) days after the scheduled Rental Commencement Date for the
Additional Space (the "Outside Completion Date"), Landlord shall have the
right to provide Tenant with written notice (the "Outside Extension
Notice") of such inability, which Outside Extension Notice shall set forth
the date on which Landlord reasonably believes that it will be able to
substantially complete the Additional Space. Upon receipt of the Outside
Extension Notice, Tenant shall have the right to terminate this Lease by
providing written notice of termination to Landlord within five (5)
business days after the date of the Outside Extension Notice. In the event
that Tenant does not terminate this Lease within such five (5) business day
period, the Outside Completion Date shall automatically be amended to be
the date set forth in Landlord"s Outside Extension Notice."
2. RELOCATION OF PREMISES. Article 38 of the Lease is hereby amended by
deleting the words "INTENTIONALLY DELETED" and adding the following in lieu
thereof:
"In the event that: (i) Tenant leases First Refusal Space (as defined in
Exhibit F) on any floor of the Building other than the 4th and 6th floors;
and (ii) such First Refusal Space, when combined with any other space
already leased by Tenant on such floor, equals a total of less than 6,000
rentable square feet, then Landlord, at its expense, shall be entitled to
cause Tenant to relocate from such First Refusal Space to space containing
comparable improvements and approximately the same Rentable Area as the
First Refusal Space (the "Relocation Space")
<PAGE>
SECOND AMENDMENT
This Second Amendment (the "Amendment") is made and entered into as of the
22nd day of April 1996, by and between ZML-Central Park, L.L.C., a Delaware
limited liability company "Landlord") by its agent, Equity Office Holdings,
L.L.C., a Delaware limited liability company and ActaMed Corporation, a Georgia
corporation ("Tenant").
WITNESSETH
A. WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement
dated the 4th day of November, 1995 as amended by that certain Addendum dated
the 6th day of November, 1995, for approximately 41,292 rentable square feet of
space described as Suite No(s). 400 and 600 on the fourth (4th) and sixth (6th)
floor(s) of the building commonly known as 7000 Central Park and the address of
which is 7000 Central Parkway, Atlanta, Georgia (the "Building"); and
B. WHEREAS, Tenant has requested that additional space consisting of 2,404
rentable square feet on the third (3rd) floor of the Building shown on Exhibit A
hereto (the "Expansion Space") be added to the Premises and that the Lease be
appropriately amended, and Landlord is willing to do the same on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION AND EFFECTIVE DATE. Effective as of the Expansion
Effective Date (as hereinafter defined), the Premises is increased from
41,292 rentable square feet on the fourth (4th) and sixth (6th) floor(s) to
43,696 rentable square feet on the third (3rd), fourth (4th) and sixth (6th)
floor(s) by the addition of the Expansion Space. The lease term for the
Expansion Space shall commence on the Expansion Effective Date and end at
5:00 p.m. on the last day following thirty-six (36) calendar months following
the Expansion Effective Date (the "Expansion Space Termination Date"). The
Expansion Space is subject to all the terms and conditions of the Lease
except as expressly modified herein and except that Tenant shall not be
entitled to receive any allowances, abatement or other financial concession
granted with respect to the Premises unless such concessions are expressly
provided for herein with respect to the Expansion Space.
A. The Expansion Effective Date shall be April 22, 1996
("Expansion Effective Date").
II. MONTHLY BASE RENTAL.
In addition to Tenants' obligation to pay Base Rental for the Premises,
Tenant shall pay Landlord the sum of One Hundred Sixty-two Thousand Two Hundred
Seventy and 00/100's Dollars ($165,539.40) as Base Rental for the Expansion
Space in Thirty-six monthly installments as follows:
A. Twelve equal installments of Four Thousand Five Hundred
Seven and 50/100's Dollars ($4,507.50) each payable on or before
the first day of each month during the period beginning April 22,
1996 and ending April 21, 1997.
B. Twelve equal installments of Four Thousand Five Hundred
Ninety-seven and 65/100's Dollars ($4,597.65) each payable on or
before the first day of each month during the period beginning
April 22, 1997 and ending April 21, 1998.
<PAGE>
C. Twelve equal installment of Four Thousand Six Hundred
Eighty-nine and 80/100's Dollars ($4,689.80) each payable on or
before the first day of each month during the period beginning
April 22, 1998 and ending April 21, 1999.
All such Base Rental shall be payable by Tenant in accordance with the
terms of Article V of the Lease.
III. TENANT'S PRO RATA SHARE. For the period commencing with the
Expansion Effective Date and ending on the Expansion Space Termination Date
unless terminated sooner as provided herein, Tenants Pro Rata Share for purposes
of calculating Tenant's Additional Rental for the Expansion Space is Fifty-nine
One Hundredths percent (.59%).
IV. BASE YEAR, BASE AMOUNT, TAX BASE, AND EXPENSE BASE. For the
period commencing with the Expansion Effective Date and ending on the Expansion
Space Termination Date, the Base Year for the computation of Tenant's Pro Rata
Share of Basic Costs applicable to the Expansion Space is 1996.
V. IMPROVEMENTS TO EXPANSION SPACE.
A. ACCEPTANCE OF EXPANSION SPACE. Tenant has inspected the
Expansion Space and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on the
part of Landlord to perform any alterations, repairs or
improvements, except as may be expressly provided otherwise in this
Amendment.
B. OCCUPANCY OF EXPANSION SPACE. Tenant shall have the right to
take occupancy of the Expansion Space on April 22, 1996. Tenant
may elect to perform improvements or have Landlord perform
improvements to the Expansion Space thereafter.
C. COST OF IMPROVEMENTS TO EXPANSION SPACE. Provided Tenant is
not in default, Tenant shall be entitled to receive an improvement
allowance (the "Expansion Improvement Allowance") in an amount not
to exceed Nineteen Thousand Five Hundred Ninety-two and 60/100
Dollars ($19,592.60) to be applied toward the cost of performing
initial construction, alteration or improvement of the Expansion
Space, including but not limited to the cost of space planning,
design and related architectural and engineering services and a
five percent (5%) construction management fee if Tenant elects to
have Landlord manage the construction of the Expansion Space. In
the event the total cost of the initial improvements to the
Expansion Space exceeds the Expansion Improvement Allowance, Tenant
shall pay for such excess upon demand. Any unused Expansion
Improvement Allowance may be used by Tenant for improvements in the
original Premises within eight (8) months after the Expansion
Effective Date or if not used within said eight (8) months, accrue
to the sole benefit of Landlord. Landlord shall pay such Expansion
Improvement Allowance directly to the contractors retained to
perform the construction, design or related improvement work to the
Expansion Space.
<PAGE>
D. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE.
(i) WORK PERFORMED BY OR ON BEHALF OF LANDLORD PURSUANT TO
PLANS YET TO BE PREPARED.
If Tenant elects to have Landlord manage the construction of
the Expansion Space, Landlord shall enter into a direct
contract for the initial improvements to the Expansion Space
with a general contractor selected by Landlord. Tenant
shall devote such time in consultation with Landlord or
Landlord's architect as may be required to provide all
information Landlord deems necessary in order to enable
Landlord to complete, and obtain Tenant's written approval
of, the plans for the initial improvements to the Expansion
Space in a timely manner. All plans for the initial
improvements to the Expansion Space shall be subject to
Landlord's consent, which consent shall not be unreasonably
withheld. If the cost of such improvements exceeds the
Expansion Improvement Allowance, then prior to commencing
any construction of improvements to the Expansion Space,
Landlord shall submit to Tenant a written estimate setting
forth the anticipated cost, including but not limited to the
cost of space planning, design and related architectural and
engineering services, labor and materials, contractor's
fees, and permit fees. Within a reasonable time thereafter,
Tenant shall either notify Landlord in writing of its
approval of the cost estimate or specify its objections
thereto and any desired changes to the proposed
improvements. In the event Tenant notifies Landlord of such
objections and desired changes, Tenant shall work with
Landlord to reach a mutually acceptable alternative cost
estimate.
VI. RIGHT TO TERMINATE. Provided Tenant is not in default under the
Lease, as amended, Tenant shall have a one-time right to terminate the Lease
with respect to the Expansion Space only as defined by this Second Amendment
effective as of October 21, 1997 (the "Early Termination Date") subject to the
following terms and conditions:
A. Tenant shall notify Landlord in writing of its desire to
terminate the Lease with respect to the Expansion space no less
than six (6) months prior to the Early Termination Date.
B. Tenant shall pay to Landlord no later than October 1, 1997 a
termination fee equal to Thirty-five Thousand three Hundred
Ninety-eight and 90/100 Dollars ($35,398.90) which is the (i)
unamortized Expansion Improvement Allowance (at 13%), (ii) the
difference between a Base Rental Rate of $22.50 and $25.00 for
twelve (12) months and the difference between a Base Rental Rate
of $22.95 and $25.00 for six (6) months and (iii) three (3) months
rent at $25.00 per rentable square foot.
C. Tenant shall vacate the Expansion Space effective October
21, 1997 and leave same in broom clean condition.
VII. MISCELLANEOUS.
A. This Second Amendment sets forth the entire agreement
between the parties with respect to the matters set forth herein.
There have been no additional oral or written representations or
agreements.
<PAGE>
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and in
full force and effect.
C. In the case of any inconsistency between the provisions of
the Lease and this Second Amendment, the provisions of this
Amendment shall govern and control.
D. Submission of this Second Amendment by Landlord is not an
offer to enter into this Second Amendment but rather is a
solicitation for such an offer by Tenant. Landlord shall not be
bound by this Second Amendment until Landlord has executed and
delivered the same to Tenant.
E. The capitalized terms used in this Second Amendment shall
have the same definitions as set forth in the Lease to the extent
that such capitalized terms are defined therein and not redefined
in this Second Amendment.
F. This Second Amendment shall be of no force and effect unless
and until accepted by any guarantors of the Lease, who by signing
below shall agree that their guarantee shall apply to the Lease as
amended herein, unless such requirement is waived by Landlord in
writing.
G. Landlord and Tenant each warrant and represent to the other
that CB Commercial Real Estate Services ("Broker") has represented
Tenant in connection with the negotiations of the Second Amendment
and that Equity Office Properties, L.L.C. ("Co-Broker"),
collectively "Brokers", has represented Landlord, and it knows of
no other real estate broker, agent or finder other than the Brokers
who is entitled to any commission in connection with this Second
Amendment. Landlord and Tenant each covenant and agree to defend,
indemnify and hold the other harmless from and against any and all
loss, liability, damage, claim, judgment, cost or expense
(including, but not limited to, reasonable attorneys' fees and
expenses and court costs) that may be incurred or suffered by the
other because of any claim for any fee, commission or similar
compensation with respect to the Second Amendment made by any
broker, agent or finder claiming to have dealt with the
indemnifying party whether or not such claim is meritorious.
Landlord agrees to pay the commission due Brokers in connection
with this Second Amendment pursuant to a separate written
commission agreement. The parties hereby acknowledge CB Commercial
Real Estate Services has represented Tenant and Equity Office
Properties, L.L.C. has represented Landlord in this transaction.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Second
Amendment as of the day and year first above written.
WITNESSES; ATTESTATION LANDLORD:ZML-Central Park, L.L.C.,
a Delaware limited liability company
BY: EQUITY OFFICE HOLDINGS, L.L.C.,
a Delaware limited liability company as
agent
By: /s/ Arvid A. Povilaitis
--------------------------------
/s/ Angel Rivera
----------------------------
Name (print): Angel Rivera Name: /s/ Arvid A Povilaitis
-------------- ------------------------------
/s/ illegible
----------------------------
Title: VP -- ASSET MANAGEMENT
-----------------------------
Name (print): illegible
----------------------------
Date:
------------------------------
TENANT: ActaMed Corporation,
a Georgia corporation
/s/ Mary Lee Lockhart
----------------------------
By: /s/ Nancy J. Ham
--------------------------------
Name (print): Mary Lee Lockhart
/s/ Katherine B. Grissom Its: CFO
---------------------------- -------------------------------
Name (print): Katherine B. Grissom Date: 4/22/96
--------------------- ------------------------------
<PAGE>
EXHIBIT A
This Exhibit is attached to and made a part of the Third Amendment dated
April 22nd, 1996, by and between ZML-Central Park, L.L.C., a Delaware limited
liability company ("Landlord"), by its agent Equity Office Holdings, L.L.C., a
Delaware limited liability company and ActaMed Corporation, a Georgia
corporation ("Tenant") for space in the Building located at 7000 Central
Parkway, Atlanta, Georgia.
The Expansion Space shall consist of 2,404 rentable square feet located on
the third (3rd) floor in the Building commonly known as 7000 Central Park in the
approximate location outlined below.
[MAP]
<PAGE>
THIRD AMENDMENT
This Third Amendment (the "Amendment") is made and entered into as of the
9th day of February, 1998, by and between EOP-Central Park, L.L.C., a Delaware
limited liability company ("Landlord"), and ActaMed Corporation, a Georgia
corporation ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (f/k/a ZML-Central Park, L.L.C.) and Tenant are parties
to that certain lease dated the 6th day of November, 1995, for space
currently containing approximately 43,696 rentable square feet of space
(the "Original Premises") described as Suite No(s). 370, 400, and 600 on
the Third, Fourth, and Sixth floor(s) of the building commonly known as
Central Park and the address of which is 7000 Central Parkway, Atlanta, GA
30328 (the "Building"), which lease has been previously amended or assigned
by instrument(s) dated November 6, 1995 and April 22, 1996 (collectively,
the "Lease"); and
B. WHEREAS, Tenant desires to surrender a portion of the Premises to Landlord
containing approximately 2,404 rentable square feet on the Third floor(s)
of the Building as shown on EXHIBIT A hereto (the "Reduction Space") and
that the Lease be appropriately amended, and Landlord is willing to accept
such surrender on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. REDUCTION. Effective as of December 31, 1997 (the "Reduction
Effective Date"), the Premises is decreased from 43,696 rentable
square feet on the Third, Fourth and Sixth floor(s) to 41,292
rentable square feet on the Fourth and Sixth floor(s) by the
elimination of the Reduction Space. As of the Reduction Effective
Date, the Reduction Space shall be deemed surrendered by Tenant to
Landlord, the Lease shall be deemed terminated with respect to the
Reduction Space, and the "Premises", as defined in the Lease, shall
be deemed to mean the Original Premises, less the Reduction Space.
Tenant shall fully comply with all obligations under the Lease
respecting the Reduction Space through the Reduction Effective
Date, including those provisions relating to the condition of the
Reduction Space and removal of Tenant's Property therefrom upon
termination or expiration of the Lease. Landlord acknowledges
that Tenant has surrendered the Reduction Space as of the Reduction
Effective Date and Tenant will not be subject to any holdover
provisions as defined in the Lease, as it relates to the Reduction
Space. Landlord also acknowledges that the Reduction Space was
returned to it in broom clean condition.
II. MONTHLY BASE RENTAL. As of the Reduction Effective Date, the
schedule of monthly installments of Base Rental contained in the
Second Amendment is hereby deleted.
III. TENANT'S PRO RATA SHARE. For the period commencing with the
Reduction Effective Date, Tenant's Pro Rata Share as contained in
the Second Amendment is hereby deleted.
IV. REPRESENTATIONS. Each party represents to the other that it has
full power and authority to execute this Amendment. Tenant
represents that it has not made any assignment, sublease, transfer,
conveyance of the Lease or any interest therein or in the Reduction
Space other than those explicitly recited herein and further
represents that there is not and will not hereafter be any claim,
demand, obligation, liability, action or cause of action by any
other party respecting, relating to or arising out of the Reduction
Space, and Tenant agrees to indemnify and hold harmless Landlord
and the Landlord Related Parties (as defined in the "Miscellaneous"
Section below) from all liabilities, expenses, claims, demands,
judgments, damages or costs arising from any of the same, including
without limitation, attorneys' fees. Tenant acknowledges that
Landlord will be relying on this Amendment in entering into leases
for the Reduction Space with other parties.
VII. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There
have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled
to any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection
<PAGE>
with entering into the Lease, unless specifically set forth
in this Amendment. This Amendment shall not be relied upon
by any other party, individual, corporation, partnership or
entity as a basis for reducing its lease obligations with
Landlord. Tenant agrees that it shall not disclose any
matters set forth in this Amendment or disseminate or
distribute any information concerning the terms, details or
conditions hereof to any person, firm or entity without
obtaining the express written consent of Landlord.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of
the Lease and this Amendment, the provisions of this
Amendment shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by
this Amendment until Landlord has executed and delivered the
same to Tenant.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent
that such capitalized terms are defined therein and not
redefined in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Landlord Related Parties") harmless from all claims of any
brokers claiming to have represented Tenant in connection
with this Amendment. Landlord hereby represents to Tenant
that Landlord has dealt with no broker in connection with
this Amendment. Landlord agrees to indemnify and hold
Tenant, its members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the
respective principals and members of any such agents
(collectively, the "Tenant Related Parties") harmless from
all claims of any brokers claiming to have represented
Landlord in connection with this Amendment.
2
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
EOP-CENTRAL PARK, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership, its
managing member
By Equity Office Properties Trust,
a Maryland real estate
investment trust, its managing
general partner
By:
----------------------------------- --------------------------------
Name (print): Name:
---------------------- ------------------------------
Title:
----------------------------------- -----------------------------
Name (print):
----------------------
TENANT: ACTAMED CORPORATION,
a Georgia corporation
/s/ Katherine B. Grissom By: /s/ Lewis R. Belote
----------------------------------- --------------------------------
Name: Lewis R. Belote, II
--------------------------------
Pat N. Daer
-----------------------------------
Title: Senior VP & CFO
-----------------------------
3