EXHIBIT 10.53
LEASE AGREEMENT
BETWEEN
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP,
A NORTH CAROLINA LIMITED PARTNERSHIP,
D/B/A HIGHWOODS ▇▇▇▇▇▇▇▇
AND
INFOCURE CORPORATION
DEMISED PREMISES:
8,880 RSF
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
OFFICE LEASE
THIS LEASE made as of the ___ day of ________, 1997, between
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP, A NORTH CAROLINA LIMITED PARTNERSHIP,
D/B/A HIGHWOODS ▇▇▇▇▇▇▇▇, as landlord ("Landlord") and InfoCure Corporation, as
tenant ("Tenant").
WITNESSETH:
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ARTICLE I
PREMISES AND TERM
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Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
that certain space known as Suite(s) 103 containing 1,954 rsf and Suite 400
containing 6,926 rsf ("Premises") described or shown on Exhibit "A" attached
hereto, in the building located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ("Property," as further described in Article 24), subject to the
provisions herein contained. The term ("Term") of this Lease shall commence on
the 1st day of December 1, 1997 ("Commencement Date"), and end on November 30,
2002 ("Expiration Date"), unless sooner terminated as provided herein. The
Commencement Date shall be subject to adjustment as provided in Article 4.
Landlord and Tenant agree that for purposes of this Lease the rentable area of
the Premises is 8,880 square feet and the rentable area of the Property is
90,325 square feet. The execution hereof is contingent upon the simultaneous
execution of that certain First Amendment to Lease by and between Landlord, as
successor in interest to Starwood Exchange Partners, L.P., and Tenant, as
successor in interest to DR Software, Inc., regarding that certain Lease
Agreement dated December 29, 1995 for certain premises located at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE 2
BASE RENT
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Tenant shall pay Landlord monthly Base Rent of Ten Thousand Three Hundred
Sixty Dollars ($10,360.00), in advance on or before the first day of each
calendar month during the Term, except that Base Rent for the first full I
calendar month for which Base Rent shall be due, shall be paid when Tenant
executes this Lease. If the Term commences on a day other than the first day of
a calendar month, or ends on a day other than the last day of a calendar month,
then the Base Rent for such month shall be prorated on the basis of I/30th of
the monthly Base Rent for each day of such month. (See Special Stipulations
Article 39 for the complete base rent schedule).
ARTICLE 3
ADDITIONAL RENT
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(A) OPERATING EXPENSES. Tenant shall pay Landlord an amount equal to
Tenant's Prorata Share of Operating Expenses in excess of the Expense Stop which
will be defined as the 1998 Actual Operating Expenses ("Expense Stop") per
square foot of rentable area of the Property. The terms "Operating Expenses"
and "Tenant's Prorata Share" shall have the meanings specified in Article 24.
(B) MANNER OF PAYMENT. Operating Expenses shall be paid in the
following manner: The maximum annual increase in Controllable Expenses shall be
limited to six (6%) percent of the prior year's cost. For purposes of this
Lease, Controllable Expenses shall be defined as all Operating Expenses as
defined in Article 24(l) except (a), (b), (c), (h), (j) & (k).
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(i) Landlord may reasonably estimate in advance the amounts Tenant
shall owe for Operating Expenses for any full calendar year of the Term. In such
event, Tenant shall pay such estimated amounts, on a monthly basis, on or before
the first day of each calendar month, together with Tenant's payment of Base
Rent. Such estimate may be reasonably adjusted once per year by Landlord as set
forth in paragraph (ii) below.
(ii) Within 120 days after the end of each calendar year, Landlord
shall provide a statement (the "STATEMENT") TO Tenant showing: (a) the amount of
actual Operating Expenses for such calendar year, with a listing of amounts for
major categories of Operating Expenses, (b) any amount paid by Tenant towards
Operating Expenses during such calendar year on an estimated basis, (c) any
revised estimate of Tenant's obligations for Operating Expenses for the current
calendar year.
(iii) If the Statement shows that Tenant's estimated payments were
less than Tenant's actual obligations for Operating Expenses for such year,
Tenant shall pay the difference. If the Statement shows an increase in Tenant's
estimated payments for the current calendar year, Tenant shall pay the
difference between the new and former estimates, for the period from January I
of the current calendar year through the month in which the Statement is sent.
Tenant shall make such payments within thirty (30) days after Landlord sends the
Statement.
(iv) If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Operating Expenses, Tenant shall receive a
credit for the difference against payments of Rent next due. If the Term shall
have expired and no further Rent shall be due, Tenant shall receive a refund of
such difference, within thirty (30) days after Landlord sends the Statement.
(v) So long, as Tenant's obligations hereunder are not materially
adversely affected thereby, Landlord reserves the right to reasonably change,
from time to time, the manner or timing of the foregoing payments. No
reasonable delay by Landlord in providing the Statement (or separate statements)
shall be deemed a default by Landlord or a waiver of Landlord's right to require
payment of Tenant's obligations for actual or estimated Operating Expenses. In
no event shall a decrease in Operating Expenses ever decrease the monthly Base
Rent. Tenant acknowledges that, except as may be separately represented to
Tenant in writing signed by Landlord, the Expense Stop does not necessarily
reflect actual Operating Expenses.
(vi) The Budget for 1997 and the actual Operating Expenses for 1996
are set forth in Exhibit "D" and by this reference incorporated herein.
(D) PRORATION. If the Term commences other than on January 1, or ends
other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Operating Expenses for such first or final calendar years shall
be prorated to reflect the portion of such years included in the Term. Such
proration shall be made by multiplying the total estimated or actual (as the
case may be) Operating Expenses, for such calendar years, as well as the Expense
Stop amount, by a fraction, the numerator of which shall be the number of days
of the Term during such calendar year, and the denominator of which shall be
365.
(E) Landlord's Records. Landlord shall maintain records respecting
Operating Expenses and determine the same in accordance with sound accounting
and management practices, consistently applied. Although this Lease
contemplates the computation of Operating Expenses on a cash basis, Landlord
shall make reasonable and appropriate accrual adjustments to ensure that each
calendar year includes substantially the same recurring items. Landlord
reserves the right to change to a full accrual system of accounting so long as
the same is consistently applied and Tenant's obligations are not materially
adversely affected. Tenant or its representative shall have the right to examine
Such records upon reasonable prior notice specifying such records Tenant desires
to examine, during normal business hours at the place or places where such
records are normally kept by sending such notice no
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later than sixty (60) days following the furnishing of the Statement. Tenant
may take exception to matters included in Operating Expenses, or Landlord's
computation of Tenant's Prorata Share, by sending notice specifying such
exception and the reasons therefor to Landlord no later than sixty (60) days
after Landlord makes such records available for examination. Such Statement
shall be considered final, except as to matters to which exception is taken
after examination of Landlord's records in the foregoing manner and within the
foregoing times. Tenant acknowledges that Landlord's ability to budget and
incur ex expenses depend on the finality of such Statement, and accordingly
agrees that time is of the essence of this Paragraph. If Tenant takes exception
to any matter contained in the Statement as provided herein, Landlord shall
refer the matter to an independent certified public accountant, such accountant
having no prior affiliation with Tenant or Landlord whose certification as to
the proper amount shall be final and conclusive as between Landlord and Tenant.
Tenant shall promptly pay the cost of such certification unless such
certification determines that Tenant was overbilled by more than 3%. Pending
resolution of any such exceptions in the foregoing manner, Tenant shall continue
paying Tenant's Prorata Share of Operating Expenses in the amounts determined by
Landlord, subject to adjustment after any such exceptions are so resolved.
(F) RENT AND OTHER CHARGES. Base Rent, Operating Expenses, and any other
amounts which Tenant is or becomes obligated to pay Landlord under this Lease or
other agreement entered in connection herewith, are sometimes herein referred to
collectively as "Rent," and all remedies applicable to the non-payment of Rent
shall be applicable thereto. Rent shall be paid at any office maintained by
Landlord or its agent at the Property, or at such other place as Landlord may
designate.
ARTICLE 4
COMMENCEMENT OF TERM
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The Commencement Date set forth in Article I shall be delayed and Rent
shall be abated to the extent that Landlord fails: (i) to substantially complete
any improvements to the Premises required to be performed by Landlord under the
Work Agreement attached hereto as Exhibit "B" and made a part hereof, or (ii) to
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deliver possession of the Premises for any other reason, including but not
limited to holding over by prior occupants, except to the extent that Tenant,
its contractors, agents or employees in any way contribute to either such
failures. If Landlord so fails for a ninety (90) day initial grace period, or
such additional time as may be necessary due to fire or other casualty, strikes,
lock-outs or other labor troubles, weather conditions, shortages of material,
equipment or labor, governmental requirements, power shortages or outages, acts
or omissions of Tenant or other Persons, or other causes beyond Landlord's
reasonable control (collectively, "force majeure events"), Tenant shall have the
right to terminate this Lease by written notice to Landlord any time thereafter
up until Landlord substantially completes any such improvements and delivers the
Premises to Tenant, which written notice of Tenant shall specify that this Lease
shall terminate unless Landlord substantially completes any such improvements
and delivers the Premises to Tenant within thirty (30) days of the delivery date
of such written notice (which 30 day period shall be subject to extension for
force majeure events). Any such delay in the Commencement Date shall not
subject Landlord to liability for loss or damage resulting therefrom, and
Tenant's sole recourse with respect thereto shall be the abatement of Rent and
right to terminate this Lease described above. Upon any such termination,
Landlord and Tenant shall be entirely relieved of their respective obligations
hereunder, and any Security Deposit and Rent payments shall be returned to
Tenant. If the Commencement Date is delayed, the Expiration Date shall not be
similarly extended, unless Landlord shall so elect (in which case, the parties
shall confirm the same in writing). During, any period that Tenant shall be
permitted to enter the Premises prior to the Commencement Date other than to
occupy the same (e.g., to perform alterations or improvements), Tenant shall
comply with all terms and provisions of this Lease, except those provisions
requiring the payment of Rent. If Tenant shall be permitted to enter the
Premises prior to the Commencement Date for the purpose of occupying the same,
Rent shall commence on such date. Landlord shall permit early entry, provided
the Premises are legally available and Landlord has completed any work required
under this Lease or any separate agreement entered in connection herewith.
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ARTICLE 5
USE AND RULES
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Tenant shall use the Premises for general office purposes and training, in
compliance with all applicable Laws, and without disturbing or interfering with
any other tenant or occupant of the Property. Tenant shall not use the Premises
in any manner so as to cause a cancellation of Landlord's insurance policies, or
an increase in the premiums thereunder. Tenant shall comply with all rules set
forth in EXHIBIT "C" attached hereto (the "RULES"). Landlord shall have the
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right to reasonably amend such Rules and supplement the same with other
reasonable Rules (not expressly inconsistent with this Lease) relating to the
Property, or the promotion of safety, care, cleanliness or, good order therein,
and all such amendments or new Rules shall be binding upon Tenant after five (5)
days' notice thereof to Tenant so long as such modifications do not materially,
adversely impact upon Tenant's use or access to the Premises. All Rules shall
be applied on a non-discriminatory basis, but nothing herein shall be construed
to give Tenant or any other Person (as defined in Article 24) any claim, demand
or cause of action against Landlord arising out of the violation of such Rules
by any other tenant, occupant, or visitor of the Property, or out of the
enforcement or waiver of the Rules by Landlord in any particular instance.
Subject to force majeure events, Tenant shall have twenty-four (24) hour access
to Building and Premises 365 days per year.
ARTICLE 6
SERVICES AND UTILITIES
----------------------
Landlord shall provide the following services and utilities (the cost of
which shall be included in Operating Expenses unless otherwise stated herein or
in any separate Exhibit hereto):
(A) Electricity for standard office lighting fixtures, and equipment and
accessories Customary for offices where: ( 1) the connected electrical load of
all of the same does not exceed an amount necessary for normal office use and
consistent with the floor plan attached as Exhibit "A" (or such lesser amounts
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as may be available, based on the safe and lawful capacity of the existing
electrical circuit(s) and facilities serving the Premises), (2) the electricity
will be at nominal 120 volts, single phase (or 110 volts, depending on available
service in the Building), and (3) the safe and lawful capacity of the existing
electrical circuit(s) serving the Premises is not exceeded.
(B) Heat and air-conditioning, to provide a temperature required, in
Landlord's reasonable opinion and customary in comparable office buildings in
Atlanta, Georgia and in accordance with applicable Law, for occupancy of the
Premises under normal business operations, from 8:00 a.m. until 6:00 p.m. Monday
through Friday, and Saturday 8:00 a.m. to 1:00 p.m., except on Holidays (as
defined in Article 25). Landlord shall not be responsible for inadequate air-
conditioning or ventilation to the extent the same occurs because Tenant uses
an), item of equipment consuming more than 500 ▇▇▇▇▇ at rated capacity (except
for normal office copiers) without providing adequate air-conditioning, and
ventilation therefor. After hours HVAC is available to Tenant, upon prior
written notice of twenty-four (24) hours, at Forty Dollars ($40) per hour.
(C) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of tenants at the Property.
(D) Customary office cleaning and trash removal service on Monday through
Friday (or Sunday through Thursday), except on Holidays, in and about the
Premises.
(E) Operatorless passenger elevator service and freight elevator service in
common with Landlord and other tenants and their contractors, agents and
visitors.
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(F) Landlord shall seek to provide such extra utilities or services as
Tenant may from time to time request, if the same are reasonable and feasible
for Landlord to provide and do not involve modifications or additions to the
Property or existing Systems and Equipment (as defined IN ARTICLE 24), and if
Landlord shall receive Tenant's request within a reasonable period prior to the
time such extra utilities or services are required. Landlord may comply with
written or oral requests by any officer or employee of Tenant, unless Tenant
shall notify Landlord of, or Landlord shall request, the names of authorized
individuals (up to 3 for each floor on which the Premises are located) and
procedures for written requests. Tenant shall, for such extra utilities or
services, pay such charges as Landlord shall from time to time reasonably
establish. The initial cost for after-hour HVAC shall be $40 per hour. All
charges for such extra utilities or services shall be due at the same time as
the installment of Base Rent with which the same are billed, or if billed
separately, shall be due within twenty (20) days after such billing.
Landlord may install and operate meters or any other reasonable system for
monitoring or estimating any services or utilities used by Tenant in excess of
those required to be provided by Landlord under this Article (including a system
for Landlord's engineer to reasonably estimate any such excess usage). If such
system indicates such excess services or utilities, Tenant shall pay Landlord's
reasonable charges for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical or other systems
or equipment (or adjustments or modifications to the existing Systems and
Equipment), and Landlord's reasonable charges for such amount of excess services
or utilities used by Tenant. Such reasonable charges for utilities shall not be
marked up and shall reflect the cost for actual use incurred by the Tenant.
Landlord does not warrant that any services or utilities will be free from
shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, weather conditions, inability
to obtain services, fuel, steam, water or supplies, governmental requirements or
requests, or other causes beyond Landlord's reasonable control. None of the
same shall be deemed an eviction or disturbance of Tenant's use and possession
of the Premises or any part thereof, or render Landlord liable to Tenant for
abatement of Rent, or relieve Tenant from performance of Tenant's obligations
under this Lease. Landlord in no event shall be liable for damages by reason of
loss of profits, business interruption or other consequential damages.
ARTICLE 7
ALTERATIONS AND LIENS
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Tenant shall make no additions, changes, alterations or improvements in
which the cost exceeds $2,000.00 (the "Work") to the Premises or the Systems and
Equipment (as defined in Article 25) pertaining to the Premises without the
prior written consent of Landlord. Landlord may impose reasonable requirements
as a condition of such consent including without limitation the submission of
plans and specifications for Landlord's prior written approval, obtaining
necessary permits, posting bonds, obtaining insurance, prior approval of
contractors, subcontractor and suppliers, prior receipt of copies of all
contracts and subcontracts, contractor and subcontractor lien waivers,
affidavits listing all contractors, subcontractors and suppliers, affidavits
from engineers acceptable to Landlord stating that the Work will not adversely
affect the Systems and Equipment or the structure of the Property, and
requirements as to the manner and times in which such Work shall be done. All
Work shall be performed in a good and workmanlike manner in compliance with all
applicable governmental standards, rules and regulations and approval
requirements and all materials used shall be of a quality comparable to or
better than those in the Premises and Property and shall be in accordance with
plans and specifications approved by Landlord, and Landlord may require that all
such Work be performed under Landlord's supervision. For work costing in excess
of $2,000, Tenant shall pay Landlord a reasonable fee to cover Landlord's
overhead in reviewing Tenant's plans and specifications and performing any
supervision of the Work. If Landlord consents or supervises, the same shall not
be deemed a warranty as to the adequacy of the design, workmanship or quality
of, materials, and Landlord hereby expressly
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disclaims any responsibility or liability for the same. Landlord shall under no
circumstances have any obligation to repair, maintain or replace any portion of
the Work.
Tenant shall keep the Property and Premises free from any mechanic's,
materialman's or similar liens or other such encumbrances in connection with any
Work on or respecting the Premises not performed by or at the request of
Landlord, and shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including; attorneys' fees) arising
out of the same or in connection therewith. Tenant shall give Landlord notice
at least twenty (20) days prior to the commencement of any Work on the Premises
(or such additional time as may be necessary under applicable Laws), to afford
Landlord the opportunity of posting and recording appropriate notices of non-
responsibility. Tenant shall remove any such lien or encumbrance by bond or
otherwise within thirty (30) days after written notice by Landlord, and if
Tenant shall fail to do so, Landlord may pay the amount necessary to remove such
lien or encumbrance, without being responsible for investigating the validity
thereof. The amount so paid shall be deemed additional Rent under this Lease
payable upon demand, without limitation as to other remedies available to
Landlord under this Lease. Nothing, contained in this Lease shall authorize
Tenant to do any act which shall subject Landlord's title to the Property or
Premises to any liens or encumbrances whether claimed by operation of law or
express or implied contract. Any claim to a lien or encumbrance upon the
Property or Premises arising in connection with any Work on or respecting the
Premises not performed by or at the request of Landlord shall be null and void,
or at Landlord's option shall attach only against Tenant's interest in the
Premises and shall in all respects be subordinate to Landlord's title to the
Property and Premises.
ARTICLE 8
REPAIRS
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Except for customary cleaning and trash removal provided by Landlord under
Article 6, reasonable wear and tear, and damage covered under Article 9, Tenant
shall keep the Premises in good and sanitary condition, working order and repair
(including without limitation, carpet, wall-covering, doors, plumbing and other
fixtures, equipment, alterations and improvements whether installed by Landlord
or Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly arrange for the same either through Landlord for
such reasonable charges as Landlord may from time to time establish, or such
contractors as Landlord generally uses at the Property or such other contractors
as Landlord shall first approve in writing, and in a first class, workmanlike
manner approved by Landlord in advance in writing. If Tenant does not promptly
make such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements, and the costs incurred by Landlord therefore shall
be reimbursed by Tenant promptly after request by Landlord. Tenant shall
indemnify Landlord and pay for any repairs, maintenance and replacements to
areas of the Property outside the Premises, caused, in whole or in part, as a
result of moving any furniture, fixtures, or other property to or from the
Premises, or by Tenant or its employees, agents, contractors, or visitors
(notwithstanding anything to the contrary contained in this Lease), so long as
Landlord provides to Tenant upon Tenant's request customary materials necessary
to protect elevators (i.e. elevator pads). Except as provided in the preceding
sentence, or for damage covered under Article 9, Landlord shall keep the common
areas of the Property in good and sanitary condition, working order and repair
(the cost of which shall be included in Operating Expenses, as described in
Article 24, except as limited therein).
ARTICLE 9
CASUALTY DAMAGE
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If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other Casualty, Landlord shall use available
insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and
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other Laws or by any Holder (as defined in Article 24), any other modifications
to the common areas deemed desirable by Landlord (provided access to the
Premises is not materially impaired), and except that Landlord shall not be
required to repair or replace any of Tenant's furniture, furnishings, fixtures
or equipment, or any alterations or improvements in excess of any work performed
or paid for by Landlord under any separate agreement signed by the parties in
connection herewith. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or its visitors, or injury to Tenant's business resulting in
any way from such damage or the repair thereof. However, Landlord shall allow
Tenant a proportionate abatement of Rent during the time and to the extent the
Premises are unfit for occupancy for the purposes permitted under this Lease and
not occupied by Tenant as a result thereof (unless Tenant or its employees or
agents caused the damage). Notwithstanding the foregoing to the contrary,
Landlord may elect to terminate this Lease by notifying Tenant in writing of
such termination within sixty (60) days after the date of damage (such
termination notice to include a termination date providing at least ninety (90)
days for Tenant to vacate the Premises), if the Property shall be materially
damaged by Tenant or its employees or agents, or if the Property shall be
damaged by fire or other casualty or cause such that: (a) repairs to the
Premises and access thereto cannot reasonably be completed within 120 days after
the casualty without the payment of overtime or other premiums, (b) more than
25% of the Premises is affected by the damage, and fewer than 24 months remain
in the Term, or any material damage occurs to the Premises during the last 12
months of the Term, (c) any Holder (as defined in Article 24) shall require that
the insurance proceeds or any portion thereof be used to retire the Mortgage
debt or the damage is not fully covered by Landlord's insurance policies, or (d)
the cost of the repairs, alterations, restoration or improvement work would
exceed 25% of the replacement value of the Building, or the nature of such work
would make termination of this Lease necessary or convenient. Tenant agrees
that Landlord's obligation to restore, and the abatement of Rent provided
herein, shall be Tenant's sole recourse in the event of such damage, and waives
any other rights Tenant may have under any applicable Law to terminate the Lease
by reason of damage to the Premises or Property. Tenant acknowledges that this
Article represents the entire agreement between the parties respecting damage to
the Premises or Property.
ARTICLE 10
INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
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Tenant shall maintain during the Term comprehensive (or commercial) general
liability insurance, with limits of not less than $1,000,000 combined single
limit for personal injury, bodily injury or death, or property damage or
destruction (including loss of use thereof) for any one occurrence. Tenant
shall also maintain during the Term worker compensation insurance as required by
statute, and primary, noncontributory, "all-risk" property damage insurance
covering Tenant's personal property, business records, fixtures and equipment,
for damage or other loss caused by fire or other casualty or cause including,
but not limited to, vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of pipes, explosion,
business interruption, and other insurable risks in amounts not less than the
full insurable replacement value of such property and full insurable value of
such other interests of Tenant (subject to reasonable deductible amounts).
Landlord shall, as part of Operating Expenses, maintain during the Term
comprehensive (or commercial) general liability insurance, with limits of not
less than $ 1,000,000 combined single limit for personal injury, bodily injury
or death, or property damage or destruction (including loss of use thereof) for
any one occurrence. Landlord shall also, as part of Operating Expenses,
maintain during the Term worker compensation insurance as required by statute,
and primary, non-contributory, extended coverage or "all-risk" property damage
insurance, in an amount equal to the full insurable replacement value of the
Property (exclusive of the costs of excavation, foundations and footings, and
such risks required to be covered by Tenant's insurance, and subject to
reasonable deductible amounts), or such other amount necessary to prevent
Landlord from being a co-insured, and such other coverage as Landlord shall deem
appropriate or that may be required by any Holder (as defined in Article 24).
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Tenant shall provide Landlord with certificates evidencing such coverage
(and, with respect to liability coverage, showing Landlord and such other
parties as Landlord may designate from time to time as additional insureds)
prior to the Commencement Date, which shall state that such insurance coverage
may not be changed or canceled without at least twenty (20) days' prior written
notice to Landlord, and shall provide renewal certificates to Landlord at least
twenty (20) days prior to expiration of such policies. Landlord may
periodically, but not more often than every two years, require that Tenant
reasonably increase the aforementioned coverage. Except as provided to the
contrary herein, any insurance carried by Landlord or Tenant shall be for the
sole benefit of the party carrying such insurance. Any insurance policies
hereunder may be "BLANKET POLICIES." All insurance required hereunder shall be
provided by responsible insurers and Tenant's insurer shall be reasonably
acceptable to Landlord. By this Article, Landlord and Tenant intend that their
respective property loss risks shall be borne by responsible insurance carriers
to the extent above provided, and Landlord and Tenant hereby agree to look
solely to, and seek recovery only from, their respective insurance carriers in
the event of a property loss to the extent that such coverage is agreed to be
provided hereunder. The parties each hereby waive all rights and claims against
each other for such losses, and waive all rights of subornation of their
respective insurers, provided such waiver of subrogation shall not affect the
right of the insured to recover thereunder. The parties agree that their
respective insurance policies are now, or shall be, endorsed such that said
waiver of subrogation shall not affect the right of the insured to recover
thereunder, so long as no material additional premium is charged therefor. By
this Article, Landlord and Tenant agree to look solely to, and seek recovery
only from, their respective insurance carriers in the event of a property loss.
The parties each hereby waive all rights and claims against each other for such
losses, and waive all rights of subrogation of their respective insurers,
provided such waiver shall not affect the right of the insured to recover
thereunder from its own insurance carrier.
ARTICLE 11
CONDEMNATION
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If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises or Property, or if Landlord shall grant a deed or other instrument
in lieu of such taking by eminent domain or condemnation, Landlord shall have
the option to terminate this Lease upon ninety (90) days' notice, provided such
notice is given no later than 180 days after the date of such taking,
condemnation, reconfiguration, vacation, deed or other instrument. Tenant shall
have reciprocal termination rights if the whole or any material part of the
Premises is permanently taken, or if access to the Premises is permanently
materially impaired. Landlord shall be entitled to receive the entire award or
payment in connection therewith, except that Tenant shall have the right to file
any separate claim available to Tenant for any taking of Tenant's personal
property and fixtures belonging to Tenant and removable by Tenant upon
expiration of the Term, and for moving expenses (so long as such claim does not
diminish the award available to Landlord or any Holder, and such claim is
payable separately to Tenant). All Rent shall be apportioned as of the date of
such termination, or the date of such taking, whichever shall first occur. If
any part of the Premises shall be taken, and this Lease shall not be so
terminated, the Rent shall be proportionately abated.
-8-
ARTICLE 12
RETURN OF POSSESSION
--------------------
At the expiration or earlier termination of this Lease or Tenant's right of
possession, Tenant shall surrender possession of the Premises in the condition
required under Article 8, ordinary wear and tear excepted, and shall surrender
all keys, any key cards, and any parking stickers or cards, to Landlord, and
advise Landlord as to the combination of any locks or vaults then remaining in
the Premises, and shall remove all personal property. All improvements,
fixtures and other items in or upon the Premises (except personal property
belonging to Tenant), whether installed by Tenant or Landlord, shall be
Landlord's property and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. However, if prior to such
termination or within ten (10) days thereafter Landlord so directs by notice,
Tenant shall promptly remove such of the foregoing items as are designated in
such notice and restore the Premises to the condition prior to the installation
of such items; provided, Landlord shall not require removal of customary office
improvements installed pursuant to any separate agreement signed by both parties
in connection with entering into this Lease (except as expressly provided to the
contrary therein), or installed by Tenant with Landlord's written approval
(except as expressly required by Landlord in connection with granting such
approval). If Tenant shall fail to perform any repairs or restoration, or fail
to remove any items from the Premises required hereunder, Landlord may do so,
and Tenant shall pay Landlord the cost thereof upon demand. All property removed
from the Premises by Landlord pursuant to any provisions of this Lease or any
Law may be handled or stored by Landlord at Tenant's expense, and Landlord shall
in no event be responsible for the value, preservation or safekeeping thereof.
All property not removed from the Premises or retaken from storage by Tenant
within thirty (30) days after expiration or earlier termination of this Lease or
Tenant's right to possession, shall at Landlord's option be conclusively deemed
to have been conveyed by Tenant to Landlord as if by ▇▇▇▇ of sale without
payment by Landlord. Unless prohibited by applicable Law, Landlord shall have a
lien against such property for the costs incurret in removing and storing the
same.
ARTICLE 13
HOLDING OVER
------------
Tenant agrees it shall indemnify and save Landlord harmless against all
costs, claims, loss or liability resulting from delay by Tenant in surrendering
the Premises upon the expiration or sooner termination of the term of this
Lease, including, without limitation, any claims made by any succeeding tenant
founded on such delay. Tenant agrees that if possession of the Premises is not
Surrendered to Landlord upon tile Expiration Date or sooner termination of the
term of this Lease, then Tenant will pay Landlord for each month and for each
portion of any month during which Tenant holds over in the Premises after
expiration or sooner termination of the term of this Lease (the "Holdover
Period"), a sum (the "Holdover Rent") equal to one hundred fifty percent (150%)
times tile average of the monthly installments of Rent which was payable per
month under this Lease during tile six (6) months period preceding such
expiration or sooner termination of the term of this Lease, which Holdover Rent
shall be in addition to all other costs, claims, losses or liabilities which
Tenant has agreed to indemnify Landlord against pursuant to this Section. If
Landlord shall, at any time after the expiration or sooner termination of the
term hereof, proceed to remove Tenant from the Premises as a holdover tenant,
Tenant shall pay the Holdover Rent for the use and occupancy of the Premises
during any Holdover Period. Tenant's aforesaid obligations shall survive the
expiration or earlier termination of the term of this Lease. There shall be no
renewal of this Lease by operation of law.
ARTICLE 14
NO WAIVER
---------
-9-
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord shall
not constitute a waiver of any breach by Tenant of any term or provision of this
Lease. No acceptance of a lesser amount than the Rent herein stipulated shall
be deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the full amount due. The acceptance of Rent or of the performance of any other
term of provision from any Person other than Tenant, including any Transferee,
shall not constitute a waiver of Landlord's right to approve any Transfer.
ARTICLE 15
ATTORNEYS' FEES AND JURY TRIAL
------------------------------
In the event of any litigation between the parties, the prevailing party
shall be entitled to obtain, as part of tile judgment, all reasonable attorneys'
fees, actually incurred costs and expenses incurred in connection with such
litigation, except as may be limited by applicable Law. In the interest of
obtaining a speedier and less costly hearing of any dispute, the parties hereby
each irrevocably waive the right to trial by jury.
ARTICLE 16
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
---------------------------------------------------
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises, and any
Work to the Premises under Article 7. Whenever possible, Tenant shall cause all
such items to be assessed and billed separately from the property of Landlord.
In the event any such items shall be assessed and billed with the property of
Landlord, Tenant shall pay Landlord its share of such taxes, charges or other
governmental impositions within thirty (30) days after Landlord delivers a
statement and a copy of the assessment or other documentation showing the amount
of such impositions applicable to Tenant's property. Tenant shall pay any rent
tax or sales tax, service tax, transfer tax or value added tax, or any other
applicable tax on the Rent or services herein or otherwise respecting this
Lease.
ARTICLE 17
REASONABLE APPROVALS
--------------------
Whenever Landlord's approval or consent is expressly required under this
Lease (including Article 20) or any other agreement between the parties,
Landlord shall not unreasonably withhold or delay such approval or consent
(reasonableness shall be a condition to Landlord's enforcement of such consent
or approval requirement, and not a covenant), except for matters affecting the
structure, safety or security of the Property, or tile appearance of the
Property from any common or public areas.
-10-
ARTICLE 18
SUBORDINATION. ATTORNMENT AND MORTGAGEE PROTECTION
--------------------------------------------------
This Lease is subject and subordinate to all Mortgages (as defined in
Article 24) now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the Property. If any
foreclosure proceedings are initiated by any Holder or a deed in lieu is
granted, Tenant agrees, upon written request of any such Holder or any purchaser
at foreclosure sale, to attorn and pay Rent to such party and to execute and
deliver any instruments necessary or appropriate to evidence or effectuate such
attornment (provided such Holder or purchaser shall agree to accept this Lease
and not disturb Tenant's occupancy, so long as Tenant does not default and fail
to cure within the time permitted hereunder). However, in the event of
attornment, no Holder shall be: (i) liable for any act or omission of Landlord,
or subject to any offsets or defenses which Tenant might have against Landlord
(prior to such Holder becoming Landlord under such attornment), (ii) liable for
any security deposit or bound by any prepaid Rent not actually received by such
Holder, or (iii) bound by any future modification of this Lease not consented to
b such Holder. Any Holder may elect to make this Lease prior to the lien of its
Mortgage, by written notice to Tenant, and if the Holder of any prior Mortgage
shall require, this Lease shall be prior to any subordinate Mortgage. Tenant
agrees to give any Holder by certified mail, return receipt requested, a copy of
any notice of default served by Tenant upon Landlord, provided that prior to
such notice Tenant has been notified in writing (by way of service on Tenant of
a copy of an assignment of leases, or otherwise) of the address of such Holder.
Tenant further agrees that if Landlord shall have failed to cure such default
within the times permitted Landlord for cure under this Lease, any such Holder
whose address has been provided to Tenant shall have an additional period of
thirty (30) days in which to cure (or such additional time as may be required
due to causes beyond such Holder's control, including time to obtain possession
of the Property by power of sale or judicial action). Tenant shall execute such
documentation as Landlord may reasonably request from time to time, in order to
confirm the matters set forth in this Article in recordable form.
ARTICLE 19
ESTOPPEL CERTIFICATE
--------------------
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified, is in full force and effect (or if this Lease is claimed not to
be in force and effect, specifying the ground therefor) and any dates to which
the Rent has been paid in advance, and the amount of any Security Deposit, (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed,
and (iii) certifying such other matters as Landlord may reasonably request, or
as may be requested by Landlord's current or prospective Holders, insurance
carriers, auditors, and prospective purchasers. Any such statement may be
relied upon by any such parties. If Tenant shall fail to execute and return
such statement within the time required herein, Tenant shall be deemed to have
agreed with the matters set forth therein.
ARTICLE 20
ASSIGNMENT AND SUBLETTING
-------------------------
(A) Transfers. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed, as
further described below: (i) directly or indirectly assign, mortgage, pledge,
hypothecate, encumber, or permit any lien to attach to, or otherwise transfer,
this Lease or any interest hereunder, by operation of law or otherwise (ii)
sublet the Premises or any part thereof, or (iii) permit the use of the Premises
by any Persons (as defined in Article 24) other than Tenant, its affiliates or
subsidiaries, and its employees (all of the foregoing are hereinafter sometimes
referred to collectively as "Transfers" and any Person to whom any Transfer is
made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Tenant shall desire
-11-
Landlord's consent to any Transfer, Tenant shall notify Landlord in writing,
which notice shall include: (a) the proposed effective date (which shall not be
less than 30 nor more than 180 days after Tenant's notice), (b) the portion of
the Premises to be Transferred (herein called the "Subject Space"), (c) the
terms of the proposed Transfer and the consideration therefor, the name and
address of the proposed Transferee, and a copy of all documentation pertaining
to the proposed Transfer and (d) current financial statements of the proposed
Transferee certified by an officer, partner or owner thereof, and any other
reasonable information to enable Landlord to determine the financial
responsibility, character, and reputation of the proposed Transferee, nature of
such Transferee's business and proposed use of the Subject Space, and such other
information as Landlord may reasonably require. Any Transfer made without
complying with this Article shall, at Landlord's option, be null, void and of no
effect, or shall constitute a Default under this Lease. Whether or not Landlord
shall grant consent, Tenant shall pay $300.00 towards Landlord's review and
processing expenses, as well as any reasonable legal fees actually incurred by
Landlord, within thirty (30) days after written request by Landlord.
(B) Approval. Landlord will not unreasonably withhold or delay its consent
(as provided in Article 18) to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in Tenant's notice. The parties hereby agree
that it shall be reasonable under this Lease and under any applicable Law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Property,
or would be a significantly less prestigious occupant of the Property than
Tenant, (ii) the Transferee intends to use the Subject Space for purposes which
are not permitted under this Lease, (iii) the Subject Space is not regular in
shape with appropriate means of ingress and egress Suitable for normal renting
purposes, (iv) the Transferee is either a government (or agency or
instrumentality thereof) or an occupant of the Property, (v) the aggregate rent
payable by the Transferee is less than the aggregate rent for comparable space
in the Building charged by Landlord, (vi) the proposed Transferee does not have
a reasonable financial condition in relation to the obligations to be assumed in
connection with the Transfer, or (vii) Tenant has committed and failed to cure a
Default at the time Tenant requests consent to the proposed Transfer.
(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord fifty percent (50%) of any Transfer Premium derived by Tenant from such
Transfer. "TRANSFER PREMIUM" shall mean all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent payable by Tenant
under this Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is transferred), after
deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other economic concessions or
services provided to the Transferee, and any customary brokerage commissions
paid in connection with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share of such non-cash
consideration shall be in such form as is reasonably satisfactory to Landlord.
The percentage of the Transfer Premium due Landlord hereunder shall be paid
within ten (10) days after Tenant receives any Transfer Premium from the
Transferee. In the event that Tenant should transfer this Lease to, or permit
use of the Premises by, Tenant's affiliates or subsidiaries, the provisions of
this subparagraph shall not apply, provided that Tenant shall continue to be
liable under this Lease.
(D) Recapture. Notwithstanding anything to the contrary contained in this
Article, Landlord shall have the option by giving written notice to Tenant
within thirty (30) days after receipt of Tenant's written notice of any proposed
Transfer, to recapture the Subject Space. Such recapture notice shall cancel
and terminate this Lease with respect to the Subject Space as of the date stated
in Tenant's notice as the effective date of the proposed Transfer (or at
Landlord's option, shall cause the Transfer to be made to Landlord or its agent,
in which case the parties shall execute the Transfer documentation promptly
thereafter). If this Lease shall be canceled with respect to less than the
entire Premises, the Rent reserved herein shall be prorated on the basis of the
number of rentable square
-12-
feet retained by Tenant in proportion to the number of rentable square feet
contained in the Premises, this Lease as so amended shall continue thereafter in
full force and effect, and upon request of either party, the parties shall
execute written confirmation of the same.
(E) TERMS OF CONSENT. If Landlord consents to a Transfer: (a) the terms
and conditions of this Lease, including among other things, Tenant's liability
for the Subject Space, shall in no way be deemed to have been waived or
modified, (b) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (c) no Transferee shall succeed to any rights
provided in this Lease or any amendment hereto to extend the Term of this Lease,
expand the Premises, or lease additional space, any such rights being deemed
personal to Tenant, (d) Tenant shall deliver to Landlord promptly after
execution, an original executed copy of all documentation pertaining to the
Transfer in form reasonably acceptable to Landlord, and (e) Tenant shall furnish
upon Landlord's request a complete statement, certified by an independent
certified public accountant, or Tenant's chief financial officer, setting forth
in detail the computation of any Transfer Premium Tenant has derived and shall
derive from such Transfer. Landlord or its authorized representatives shall
have the right at all reasonable times to audit the books, records and papers of
Tenant relating to any Transfer, and shall have the right to make copies
thereof. If the Transfer Premium respecting any Transfer shall be found
understated, Tenant shall within thirty (30) days after demand pay the
deficiency, and if understated by more than 3%, Tenant shall pay Landlord's
costs of such audit. Any sublease hereunder shall be subordinate and subject to
the provisions of this Lease, and if this Lease shall be terminated during the
term of an sublease, Landlord shall have the right to: (i) treat such sublease
as canceled and repossess the Subject Space by any lawful means, or (ii) require
that such subtenant attorn to and recognize Landlord as its landlord under any
such sublease. If Tenant shall Default and fail to cure within the time
permitted for cure under Article 22(A), Landlord is hereby irrevocably
authorized, as Tenant's agent and attorney-in-fact, to direct any Transferee to
make all payments under or in connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant's obligations under this Lease) until
such Default is cured.
(F) Certain Transfers. For purposes of this Lease, the term "Transfer"
shall also include the voluntary or involuntary filing of bankruptcy by or
against Tenant or reorganization by Tenant, dissolution or winding up of
Tenant's affairs. Notwithstanding the foregoing, the Tenant may assign this
Lease, without Landlord's consent, to: (i) a corporation that, either directly
or through one or more corporations, owns or controls a majority of the voting,
stock of Tenant; (ii) a corporation of which a majority of the voting stock is
owned or controlled by Tenant, either directly or through one or more
corporations; (iii) a corporation of which a majority of the voting stock is
directly or indirectly owned or controlled by the same corporation that directly
or indirectly owns or controls a majority of the voting stock of Tenant; or (iv)
a corporation in which Tenant is merged or consolidated in accordance with
applicable statutory provisions for merger and consolidation of corporations; so
long as, with regard to each of the foregoing, (a) this Lease is assumed by the
assignee or the liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving that merger or created by
that consolidation, as the case may be, (b) the assignee's or surviving
corporation's net worth is equal to or greater than the Tenant's, and (c) Tenant
gives Landlord thirty (30) days prior written notice thereof.
ARTICLE 21
RIGHTS RESERVED BY LANDLORD
---------------------------
Except to the extent expressly limited herein, Landlord reserves full
rights to reasonably control the Property (which rights may be exercised without
subjecting Landlord to claims for constructive eviction, abatement of Rent,
damages or other claims of any kind), including more particularly, but without
limitation, the following rights:
-13-
(A) To change the name or street address of the Property; install and
maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the use
permitted Tenant by this Lease; and have access for Landlord and other tenants
of the Property to any mail chutes located on the Premises according to the
rules of the United States Postal Service. If change of address shall occur,
Landlord shall pay reasonable and actual cost of new stationery and business
cards for Tenant.
(B) To enter the Premises at reasonable hours for reasonable purposes with
reasonable notice to Tenant, including inspection and supplying cleaning service
or other services to be provided Tenant hereunder, to show the Premises to
current and prospective mortgage lenders, round lessors, insurers, and
prospective purchasers, tenants and brokers, at reasonable hours, and if Tenant
shall abandon the Premises at any time, or shall vacate the same during, the
last 3 months of the Term, to decorate, remodel, repair, or alter the Premises.
(C) To limit or prevent access to the Property, shut down elevator service,
activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of tile Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(D) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to tile Property or any part thereof, and any
adjacent building, structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors, lobbies, parking
facilities (so long as Tenant still has use of the minimal number of parking
spaces as provided in Article 35) and other public areas and tile installation
of kiosks, planters, sculptures, displays, escalators, mezzanines, and other
structures, facilities, amenities and features therein, and changes for the
purpose of connection with or entrance into or use of the Property in
conjunction with any adjoining or adjacent building or buildings, now existing
or hereafter constructed). In connection with such matters, or with any other
repairs, maintenance, improvements or alterations, in or about the Property,
Landlord may erect scaffolding and other structures reasonably required, and
during such operations may enter upon the Premises and take into and upon or
through the Premises, all materials required to make such repairs, maintenance,
alterations or improvements, and may close public entry ways, other public
areas, restrooms, stairways or corridors.
In connection with entering the Premises to exercise any of tile foregoing
rights, Landlord shall: (a) provide reasonable advance written or oral notice to
Tenant's on-site manager or other appropriate person (except in emergencies, or
for routine cleaning or other routine matters), and (b) take reasonable steps to
minimize any interference with Tenant's business.
ARTICLE 22
LANDLORD'S REMEDIES
-------------------
(A) Default. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant, which if not cured within any applicable
time permitted for cure below, shall give rise to Landlord's remedies set forth
in Paragraph (B), below: (i) failure by Tenant to make when due any payment of
Rent, unless such failure is cured within ten (10) days after written notice;
(ii) failure by Tenant to observe or perform any of the terms or conditions of
this Lease to be observed or performed by Tenant other than the payment of rent,
or as provided below, unless such failure is cured within thirty (30) days after
written notice, or such shorter period expressly provided elsewhere in this
Lease (provided, if the nature of Tenant's failure is such that more than ten
(10) days time is reasonably required in order to cure, Tenant shall not be in
default if Tenant commences to cure within such period
-14-
and thereafter diligently seeks to cure such failure to completion); (iii)
failure by Tenant to comply with the Rules, unless such failure is cured within
ten (10) days after written notice (provided, if the nature of Tenant's failure
is such that more time is reasonably required in order to cure, Tenant shall not
be in Default if Tenant commences to cure within such period and thereafter
reasonably seeks to cure such failure to completion); (iv) vacation of all or a
substantial portion of the Premises for more than forty-five (45) consecutive
days, or the failure to take possession of the Premises within sixty (60) days
after the Commencement Date; (v) (a) making by Tenant or any guarantor of this
Lease ("GUARANTOR") of any general assignment for the benefit of creditors, (b)
filing by or against Tenant or any Guarantor of a petition to have Tenant or
such Guarantor adjudged a bankrupt or a petition for reorganization or
arrangement under any Law relating to bankruptcy (unless, in the case of a
petition flied against Tenant or such Guarantor, the same is dismissed within
sixty (60) days), (c) appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located on the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days, (d) attachment, execution or other judicial seizure of substantially
all of Tenant's assets located on the Premises or of Tenant's interest in this
Lease, (e) Tenant's or any Guarantor's convening of a meeting of its creditors
or any class thereof for the purpose of effecting a moratorium upon or
composition of its debts, or (f) Tenant's or any Guarantor's insolvency or
admission of an inability to pay its debts as they mature; (vi) any material
misrepresentation herein, or material misrepresentation or omission in any
financial statements or other materials provided by Tenant or any Guarantor in
connection with negotiating or entering this Lease or in connection with any
Transfer under Article 20; (vii) cancellation of any guaranty of this Lease by
any Guarantor; (viii) failure by Tenant to cure within any applicable times
permitted thereunder any default under any other lease for space at the Property
or any other buildings owned or managed by Landlord or its affiliates, now or
hereafter entered by Tenant (and any Default hereunder not cured within the time
permitted for cure herein shall, at Landlord's election, constitute a default
under any such other lease or leases). Failure by Tenant to comply with tile
same term or condition of this Lease oil three occasions during any twelve month
period shall cause any failure to comply with such term or condition during the
succeeding twelve month period, at Landlord's option, to constitute an incurable
Default, if Landlord has given Tenant written notice of each such failure within
ten (10) days after each such failure occurs. The notice and cure periods
provided herein are in lieu of, and not in addition to, any notice and cure
periods provided by Law.
(B) Remedies. If a Default occurs and is not cured within any applicable
time permitted under Paragraph (A), Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct, separate and cumulative with and
in addition to any other right or remedy allowed under any Law or, other
provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the Premises by
detainer suit, summary proceedings or other lawful means, and recover as damages
a sum of money equal to: (a) any unpaid Rent as of the termination date
including interest at the Default Rate (as defined in Article 24), (b) any
unpaid Rent which would have accrued after the termination date through the time
of award including interest at the Default Rate, less such loss of Rent that
Tenant proves could have been reasonably avoided, (c) any unpaid Rent which
would have accrued after the time of award during the balance of the Term, less
such loss of Rent that could be reasonably avoided, and (d) any other amounts
necessary to compensate Landlord for all damages directly caused b), Tenant's
failure to perform its obligations under this Lease, including without
limitation all Costs of Reletting (as defined in Paragraph F). For purposes of
computing the amount of Rent herein that would have accrued after the time of
award, Tenant's Prorata Share of Operating Expenses and shall be projected,
based upon the average rate of increase, if any, in such items from the
Commencement Date through the time of award.
(ii) If applicable Law permits, Landlord may terminate Tenant's right
of possession and repossess the Premises by detainer suit, summary proceedings
or other lawful means, without terminating this Lease (and if Such Law permits,
and Landlord shall not have expressly terminated the Lease in writing, any
termination
-15-
shall be deemed a termination of Tenant's right of possession only). In such
event, Landlord may recover: (a) any unpaid Rent as of the date possession is
terminated, including interest at the Default Rate, (b) any unpaid Rent which
accrues during the Term from the date possession is terminated through the time
of award (or which may have accrued from the time of any earlier award obtained
by Landlord through the time of award), including interest at the Default Rate,
less any Net Re-Letting Proceeds (as defined in Paragraph F) received by
Landlord during such period, and less such loss of Rent that Tenant proves could
have been reasonably avoided, and (c) any other amounts necessary to compensate
Landlord for all damages directly caused by Tenant's failure to perform its
obligations under this Lease, including without limitation, all Costs of
Reletting (as defined in Paragraph F). Landlord may bring suit for such amounts
or portions thereof, at any time or times as the same accrue or after the same
have accrued, and no suit or recovery of any portion due hereunder shall be
deemed a waiver of Landlord's right to collect all amounts to which Landlord is
entitled hereunder, nor shall the same serve as any defense to any subsequent
suit brought for any amount not theretofore reduced to judgment.
(C) MITIGATION OF DAMAGES. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall use reasonable efforts to mitigate
Landlord's damages, and Tenant shall be entitled to submit proof of such failure
to mitigate as a defense to Landlord's claims hereunder, if mitigation of
damages by Landlord is required by applicable Law. If Landlord has not
terminated this Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate, and may permit the Premises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages by attempting to
sublease the Premises or assign this Lease (subject to Article 20).
(D) SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION. Landlord
shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies available
under Paragraph (B) above, or any Law or other provision of this Lease), without
prior demand or notice except as required by applicable Law: (i) to seek any
declaratory, injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a violation or breach of any provision hereof, and
(ii) to ▇▇▇ for and collect any unpaid Rent which has accrued. Notwithstanding
anything to the contrary contained in this Lease, to the extent not expressly
prohibited by applicable Law, in the event of any Default by Tenant not cured
within any applicable time for cure hereunder, Landlord may terminate this Lease
or Tenant's right to possession and accelerate and declare that all Rent
reserved for the remainder of the Term shall be immediately due and payable to
the extent provided by law (in which event, Tenant's Prorata Share of Operating
Expenses, and for the remainder of the Term shall be projected based upon the
average rate of increase, if any, in such items from the Commencement Date
through the date of such declaration); provided, Landlord shall, after receiving
payment of the same from Tenant, be obligated to turn over to Tenant any actual
Net Re-Letting Proceeds thereafter received during the remainder of the Term, up
to the amount so received from Tenant pursuant to this provision.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, as additional Rent, a
service charge of three hundred fifty dollars ($350.00) for bookkeeping and
administrative expenses, if Rent is not received within five (5) days after its
due date. In addition, any Rent paid more than five (5) days after due shall
accrue interest from the due date at the Default Rate (as defined in Article
25), until payment is received by Landlord. Such service charge and interest
payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord's right to insist upon timely payments at any time, nor a waiver of
any remedies to which Landlord is entitled as a result of the late payment of
Rent.
(F) Certain Definitions. "Net Re-Letting Proceeds" shall mean the total
amount of rent and other consideration paid by any Replacement Tenants, less all
Costs of Re-Letting, during a given period of time. "Costs of Re-Letting" shall
include without limitation, all reasonable costs and expenses incurred by
Landlord for any repairs, maintenance, changes, alterations and improvements to
the Premises, brokerage commissions, advertising costs, reasonable attorneys'
fees actually incurred, any customary free rent periods or credits, tenant
improvement
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allowances, take-over lease obligations and other customary, necessary or
appropriate economic incentives required to enter leases with Replacement
Tenants, and costs of collecting rent from Replacement Tenants. "Replacement
Tenants" shall mean any Persons (as defined in Article 24) to whom Landlord re-
lets the Premises or any portion thereof pursuant to this Article.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, re-letting, acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord or its agent to Tenant. To
the fullest extent permitted by Law, all rent and other consideration paid by
any Replacement Tenants shall be applied: first, to the Costs of Re-Letting
second, to the payment of any Rent theretofore accrued, and the residue, if any,
shall be held by Landlord and applied to the payment of other obligations of
Tenant to Landlord as the same become due (with any remaining residue to be
retained by Landlord). Rent shall be paid without any prior demand or notice
therefor (except as expressly provided herein) and without any deduction, set-
off or counterclaim, or relief from any valuation or appraisement laws. Tenant
hereby waives the right to interpose a counterclaim in any summary or other
proceeding instituted by Landlord against Tenant for unpaid Rent or other
Default under this Lease. Landlord may apply payments received from Tenant to
any obligations of Tenant then accrued, without regard to such obligations as
may be designated by Tenant. Landlord shall be under no obligation to observe
or perform any provision of this Lease on its part to be observed or performed
which accrues after the date of written notice of any Default by Tenant
hereunder not cured within the times permitted hereunder. The times set forth
herein for the curing of any defaults by Tenant are of the essence of this
Lease. Tenant hereby irrevocably waives any right otherwise available under any
Law to redeem or reinstate this Lease.
ARTICLE 23
LANDLORD'S RIGHT TO CURE
------------------------
If Landlord shall fail to perform any term or provision under this Lease
required to be performed by Landlord, Landlord shall not be deemed to be in
default hereunder nor subject to any claims for damages of any kind, unless such
failure shall have continued for a period of thirty (30) days after written
notice thereof' by Tenant; provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter reasonably seeks to cure such
failure to completion. The aforementioned periods of time permitted for
Landlord to cure shall be extended for any period of time during which Landlord
is delayed in, or prevented from, curing due to fire or other casualty, strikes,
lock-outs or other labor troubles, shortages of equipment or materials,
governmental requirements, power shortages or outages, acts or omissions by
Tenant or other Persons, and other causes beyond Landlord's reasonable control.
If Landlord shall fail to cure within the times permitted for cure herein,
Landlord shall be subject to such remedies as may be available to Tenant
(subject to the other provisions of this Lease); provided, in recognition that
Landlord must receive timely payments of Rent and operate the Property, Tenant
shall have no right to withhold, set-off, or ▇▇▇▇▇ Rent.
ARTICLE 24
CAPTIONS, DEFINITIONS AND SEVERABILITY
--------------------------------------
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair or invalidate any other terms or provisions hereof, or its enforceability
with
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respect to any other Person, the parties hereto agreeing that they would have
entered into the remaining portion of this Lease notwithstanding the omission of
the portion or portions adjudged invalid, void, illegal, or unenforceable with
respect to such Person.
(A) "Building" shall mean the structure identified in Article I of this
Lease.
(B) "Default Rate" shall mean twelve percent (12%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in question,
and where such Mortgage is a ground lease, such term shall refer to the ground
lessor.
(E) "Holidays" shall mean all federal and state holidays, including New
Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
(F) "Landlord" and "Tenant" shall be applicable to one or more Persons as
the case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
(G) "Law" shall mean all federal, state, county and local governmental and
municipal laws, statutes, ordinances, rules, regulations, codes, decrees, orders
and other such requirements, applicable equitable remedies and decisions by
courts in cases where such decisions are considered binding precedents in the
state in which the Property is located, and decisions of federal courts applying
the Laws of such State.
(H) "Mortgage" shall mean all mortgages, deeds of trust, ground leases and
other such encumbrances now or hereafter placed upon the Property or Building,
or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(I) "Operating Expenses" shall mean all expenses, costs and amounts of
every kind and nature which Landlord shall pay during any calendar year any
portion of which occurs during the Term, because of or in connection with the
ownership, management, repair, maintenance, restoration and operation of the
Property, including without limitation, any amounts paid for: (a) utilities for
the Property, including but not limited to electricity, power, gas, steam, oil
or other fuel, water, sewer, lighting, heating, air conditioning and
ventilating, (b) permits, licenses and certificates necessary to operate, manage
and lease the Property, (c) insurance applicable to the Property, not limited to
the amount of coverage Landlord is required to provide under this Lease, (d)
supplies, tools, equipment and materials used in the operation, repair and
maintenance of the Property, (e) accounting, legal, inspection, consulting,
concierge and other services, (f) any equipment rental (or installment equipment
purchase or equipment financing agreements), or management agreements (including
the cost of any management fee actually paid thereunder and the fair rental
value of any office space provided thereunder, up to customary and reasonable
amounts), (g) wages, salaries, and other compensation and benefits (including
the fair value of any parking privileges provided) for all on-site persons
engaged in the day-to-day operation, but shall not include salaries and other
compensation of executive officers of Landlord, Building Manager, maintenance or
security of the Property, and employer's Social Security taxes, unemployment
taxes or insurance, and any other taxes which may be levied on such wages,
salaries, compensation and benefits, (h) payments under any easement, operating
agreement, declaration, restrictive covenant, or instrument pertaining to the
sharing of costs in any planned development, (i) operation,
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repair, and maintenance of all Systems and Equipment and components thereof
(including, replacement of components), janitorial service, alarm and security
service, window cleaning, trash removal, elevator maintenance, cleaning of
walks, parking facilities and building walls, removal of ice and snow,
replacement of wall and floor coverings, ceiling tiles and fixtures in lobbies,
corridors, restrooms and other common or public areas or facilities, maintenance
and replacement of shrubs, trees, grass, sod and other landscaped items,
irrigation systems, drainage facilities, fences, curbs, and walkways, re-paving
and re-striping parking facilities, and roof repairs, j) Taxes and (k) costs and
expenses assessed against Landlord or the Property as part of the "North x
Northwest" Office Park. If the Property is not fully occupied during all or a
portion of any calendar year, Landlord may, in accordance with sound accounting
and management practices, determine the amount of variable Operating Expenses
(i.e. those items which vary according to occupancy levels that would have been
paid had the Property been fully occupied), and the amount so determined shall
be deemed to have been the amount of variable Operating; Expenses for such year.
If Landlord makes such an adjustment, Landlord shall make a comparable
adjustment for the Base Expense Year. Notwithstanding the foregoing, Operating
Expenses shall not, however, include:
(i) depreciation, interest and amortization on Mortgages, and other
debt costs or ground lease payments, if any; legal fees in connection with
leasing, tenant disputes or enforcement of leases; real estate brokers' leasing
commissions; improvement or alterations to tenant spaces; the cost of providing
any service directly to and paid directly by, any tenant; any costs expressly
excluded from Operating Expenses elsewhere in this Lease; costs of any items to
the extent Landlord receives reimbursement from insurance proceeds or from a
third party (such proceeds to be deducted from Operating Expenses in the year in
which received); and
(ii) capital expenditures, except those: (a) made primarily to reduce
Operating Expenses, or to comply with any Laws or other governmental
requirements, but only to the extent such expenditures accomplish such goal;
provided, however, that Landlord shall not be able to pass on Landlord's costs
which arise out of correcting a matter or item in the Building which is not in
compliance with governmental requirements as of the date of this Lease, or (b)
for reasonable replacements (as opposed to additions or new improvements) of
non-structural items located in the common areas of the Property required to
keep such areas in good condition; provided, all such permitted capital
expenditures (together with reasonable financing charges) shall be amortized for
purposes of this Lease over the shorter of: (i) their useful lives, (ii) the
period during which the reasonably estimated savings in Operating Expenses
equals the expenditures, or (iii) three (3) years.
(iii) those expenses listed in Article 42 and by this reference
incorporated herein.
(J) "Person" shall mean an individual, trust, partnership, joint venture,
association, corporation, and any other entity.
(K) "Property" shall mean the Building, and any common or public areas or
facilities, easements, corridors, lobbies, sidewalks, loading areas, driveways,
landscaped areas, skywalks, parking garages and lots, and any and all other
structures or facilities operated or maintained in connection therewith or for
the benefit of the Building, and all parcels or tracts of land on which all or
any portion of the Building or any of the other foregoing items are located, and
any fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture
and other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
areas necessary for utilities, services, safety and operation of the Property,
including the System and Equipment (as defined in Article 24), fire stairways,
perimeter walls, space between the finished ceiling of the Premises and the slab
of the floor or roof of the Property there above, and the use thereof together
with the right to install, maintain, operate, repair and replace the Systems and
Equipment, including any of the same in, through, under or above the Premises in
locations that will not materially interfere with Tenant's use of the Premises,
are hereby excepted and reserved by Landlord, and not demised to Tenant.
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(L) "Rent" shall have the meaning specified therefor in Article 3(F).
(M) "Systems and Equipment" shall mean any plant, machinery, transformers,
duct work, cable, wires, and other equipment, facilities, and systems designed
to supply heat, ventilation, air conditioning and humidity or any other services
or utilities, or comprising or serving as any component or portion of the
electrical, gas, steam, plumbing, sprinkler, communications, alarm, security, or
fire/life/safety systems or equipment, or any other mechanical, electrical,
electronic, computer or other systems or equipment for the Property.
(N) "Taxes" shall mean all federal, state, county, or local governmental or
municipal taxes, fees, charges or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary (including without
limitation, real estate taxes, general and special assessments, transit taxes,
water and sewer rents, taxes based upon the receipt of rent including gross
receipts or sales taxes applicable to the receipt of rent or service or value
added taxes (unless required to be paid by Tenant under Article 16), personal
property taxes imposed upon the fixtures, machinery, equipment, apparatus,
Systems and Equipment, appurtenances, furniture and other personal property used
in connection with the Property which Landlord shall pay during any calendar
year, any portion of which occurs during the Term (without regard to any
different fiscal year used by such government or municipal authority) because of
or in connection with the ownership, leasing and operation of the property.
Notwithstanding the foregoing, there shall be excluded from Taxes all excess
profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and state income taxes, and other taxes
to the extent applicable to Landlord's general or net income (as opposed to
rents, receipts or income attributable to operations at the Property). If the
method of taxation of real estate prevailing at the time of execution hereof
shall be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or heretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital levy
or otherwise, or on or measured by the rents received therefrom, then such new
or altered taxes attributable to the Property shall be included within the term
"Taxes," except that the same shall not include any enhancement of said tax
attributable to other income of Landlord. Any expenses incurred by Landlord in
attempting, to protest, reduce or minimize Taxes shall be included in Taxes in
the calendar year such expenses are paid. Tax refunds shall be deducted from
Taxes in the year they are received by Landlord, but if such refund shall relate
to taxes paid in a prior year of the Term, and the Lease shall have expired,
Landlord shall mail Tenant's Prorata Share of such net refund (after deducting
expenses and attorneys' fees), up to the amount Tenant paid towards Taxes during
such year, to Tenant's last known address. If Taxes for an period during the
Term or any extension thereof, shall be increased after payment thereof by
Landlord, for any reason including without limitation error or reassessment by
applicable governmental or municipal authorities, Tenant shall pay Landlord upon
demand Tenant's Prorata Share of such increased Taxes. Tenant shall pay
increased Taxes whether Taxes are increased as a result of increases in the
assessment or valuation of the Property (whether based on a sale, change in
ownership or refinancing of the Property or otherwise), increases in the tax
rates, reduction or elimination of any rollbacks or other deductions available
under current law, scheduled reductions of any tax abatement, as a result of the
elimination, invalidity or withdrawal of any tax abatement, or for any other
cause whatsoever. Notwithstanding the foregoing, if any Taxes shall be paid
based on assessments or bills by a governmental or municipal authority using a
fiscal year other than a calendar year, Landlord may elect to average the
assessments or bills for the subject calendar year, based on the number of
months of such calendar year included in each such assessment or ▇▇▇▇.
(O) "Tenant's Prorata Share" of Operating Expenses shall be the rentable
area of the Premises divided by the rentable area of the Property as set forth
in Article I on the last day of the calendar year for which Operating Expenses
are being determined, excluding any parking facilities. If the Property shall
contain tenants who do not participate in all or certain categories of Operating
Expenses on a prorata basis, Landlord may exclude the amount of Operating
Expenses, or such categories of the same, as the case may be, attributable to
such tenants, and exclude the rentable area of their premises, in computing
Tenant's Prorata Share. If the Property shall be part of or
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shall include a complex, development or group of buildings or structures
collectively owned or managed by Landlord or its affiliates or collectively
managed by Landlord's managing agent, Landlord may allocate Operating Expenses
within such complex, development or group, and between such buildings and
structures and the parcels on which they are located, in accordance with sound
accounting and management principles. In the alternative, Landlord shall have
the right to determine, in accordance with sound accounting and management
principles, Tenant's Prorata Share of Operating Expenses based upon the totals
of each of the same for all such buildings and structures, the land constituting
parcels on which the same are located, and all related facilities, including
common areas and easements, corridors, lobbies, sidewalks, elevators, loading
areas, parking facilities and driveways and other appurtenances and public
areas, in which event Tenant's Prorata Share shall be based on the ratio of the
rentable area of the Premises to the rentable area of all such buildings.
ARTICLE 25
CONVEYANCE BY LANDLORD AND LIABILITY
------------------------------------
(A) In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof in which the Premises
are located, to another Person (and nothing herein shall be construed to
restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to have fully
assumed and be liable for all obligations of this Lease to be performed by
Landlord which first arise after the date of conveyance, including tile return
of any Security Deposit, and Tenant shall attorn to such other Person, and
Landlord or such successor owner shall, from and after the date of conveyance,
be free of all liabilities and obligations hereunder not then incurred. The
liability of Landlord to Tenant for any default by Landlord under this Lease or
arising in connection herewith or with Landlord's operation, management,
leasing, repair, renovation, alteration, or any other matter relating to the
Property or the Premises, shall be limited to the interest of Landlord in the
Property (and the rental proceeds thereof). Tenant agrees to look solely to
Landlord's interest in tile Property (and tile rental proceeds thereof) for the
recovery of any judgment against Landlord, and Landlord shall not be personally
liable for any such judgment or deficiency after execution thereon. The
limitations of liability contained in this Article shall apply equally and inure
to the benefit of Landlord's present and future partners, beneficiaries,
officers, directors, trustees, shareholders, agents and employees, and their
respective partners, heirs, successors and assigns. Under no circumstances
shall any present or future general or limited partner of Landlord (if Landlord
is a partnership), or trustee or beneficiary (if Landlord or any partner of
Landlord is a trust) have any personal liability for tile performance of
Landlord's obligations under this Lease. Notwithstanding the foregoing to the
contrary, Landlord shall have personal liability for insured claims, beyond
Landlord's interest in the Property (and rental proceeds thereof), to the extent
of Landlord's liability insurance coverage available for such claims.
(B) In the event the Tenant claims or asserts that the Landlord has
violated or failed to perform a covenant of Landlord not to unreasonably
withhold or delay Landlord's consent or approval, or in any case where
Landlord's reasonableness in exercising its judgment is in issue, Tenant's sole
remedy shall be an action for specific performance, declaratory judgment or
injunction and in no event shall Tenant be entitled to any money damages for a
breach of such covenant and in no event shall Tenant claim or assert any claims
for money damages in any action or by way of set-off, defense or counterclaim
and Tenant hereby specifically waives the right to an), motley damages or other
remedies. Whenever Land[Landlord's consent or approval is required under this
Lease, and this Lease does not specify that such consent or approval shall not
be unreasonably withheld or delayed, Landlord may determine whether to grant or
withhold such consent or approval in its sole and absolute discretion,
regardless of whether such refusal to consent or approve may be deemed
arbitrary.
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(C) Whenever this Lease requires Landlord's consent or approval, Tenant
shall reimburse Landlord on demand as a condition to granting such consent or
approval any reasonable and customary costs actually incurred in connection with
reviewing the request for consent or approval, including, without limitation,
reasonable attorneys fees, not to exceed $500.
ARTICLE 26
INDEMNIFICATION
---------------
Except to the extent arising from the negligent acts of Landlord or
Landlord's agents or employees, Tenant shall defend, indemnify and hold harmless
Landlord from and against any and all claims, demands, liabilities, damages,
judgments, orders, decrees, actions, proceedings, fines, penalties, costs and
expenses, including without limitation, court costs and reasonable attorneys'
fees actually incurred arising from or relating to any loss of life, damage or
injury to person, property or business occurring in or from the Premises, or
caused by or in connection with any violation of this Lease or use of the
Premises or Property by, or any other act or omission of, Tenant, any other
occupant of the Premises, or any of their respective agents, employees,
contractors or guests. Without limiting the generality of the foregoing, Tenant
specifically acknowledges that the indemnity undertaking herein shall apply to
claims in connection with or arising out of any "Work" as described in Article
7, the installation, maintenance, use or removal of any "Lines" located in or
serving the Premises as described in Article 28, and the transportation, use,
storage, maintenance, generation, manufacturing, handling, disposal, release or
discharge of any "Hazardous Material" as described in Article 29 (whether or not
any of such matters shall have been therefor approved by Landlord), except to
the extent that any of the same arises from the negligent acts of Landlord or
Landlord's agents or employees.
ARTICLE 27
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
--------------------------------------------------
The parties acknowledge that safety and security devices, services and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses, as
further described in Article 10. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord or required by Law.
ARTICLE 28
COMMUNICATIONS AND COMPUTER LINES
---------------------------------
Tenant may install, maintain, replace, remove or use any communications or
computer wires, cables and related devices (collectively the "Lines") at the
Property in or serving the Premises, provided: (a) Tenant shall obtain
Landlord's prior written consent, use an experienced and qualified contractor
approved in writing, by Landlord, and comply with all of the other provisions of
Article 7, (b) any such installation, maintenance, replacement, removal or use
shall comply with all Laws applicable thereto and good work practices, and shall
not interfere with the use of ally then existing Lines at the Property, (c) an
acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Property, as determined in
Landlord's reasonable opinion, (d) if Tenant at any time uses any equipment that
may create an electromagnetic field exceeding the normal insulation ratings of
ordinary twisted pair riser cable or cause radiation higher than normal
background radiation, the Lines therefor (including riser cables) shall be
appropriately insulated to prevent such excessive electromagnetic fields or
radiation, (e) as a condition to permitting the installation of new Lines,
Landlord may require that Tenant remove
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existing Lines located in or serving the Premises, and (f) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines located in or serving the Premises which are installed
in violation of these provisions, or which are at any time in violation of any
Laws or represent a dangerous or potentially dangerous condition (whether such
Lines were installed by Tenant or any other party), within three (3) business
days after written notice.
Landlord may (but shall not have the obligation to): (i) install new Lines
at the Property (ii) create additional space for Lines at the Property, and
(iii) reasonably direct, monitor and/or supervise the installation, maintenance,
replacement and removal of, the allocation and periodic re-allocation of
available space (if any) for, and the allocation of excess capacity (if any) on,
any Lines now or hereafter installed at the Property by Landlord, Tenant or any
other party (but Landlord shall have no right to monitor or control the
information transmitted through such Lines). Such rights shall not be in
limitation of other rights that may be available to Landlord by Law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant for
the costs attributable to Tenant, or may include those costs and all other costs
in Operating Expenses under Article 24 (including without limitation, costs for
acquiring and installing Lines and risers to accommodate new Lines and spare
Lines, any associated computerized system and software for maintaining records
of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) over the
period of time prescribed by Article 24.
Notwithstanding anything to the contrary contained in Article 12, Landlord
reserves the right to require that Tenant remove any or all Lines installed by
or for Tenant within or serving the Premises upon termination of this Lease,
provided Landlord notifies Tenant prior to or within thirty (30) days following
such termination. Any Lines not required to be removed pursuant to this Article
shall, at Landlord's option, become the property of Landlord (without payment by
Landlord). If Tenant fails to remove such Lines as required by Landlord, or
violates any other provision of this Article, Landlord may, after twenty (20)
days written notice to Tenant, remove such Lines or remedy such other violation,
at Tenant's expense (without limiting Landlord's other remedies available under
this Lease or applicable Law). Except to the extent arising from the
intentional or negligent acts of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (x) any eavesdropping or wire-tapping by
unauthorized parties, (y) any failure of any Lines to satisfy Tenant's
requirements, or (z) any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by the installation, maintenance,
replacement, use or removal of Lines by or for other tenants or occupants at the
Property, by any failure of the environmental conditions or the power supply for
the Property to conform to any requirements for the Lines or any associated
equipment, or any other problems associated with any Lines by any other cause.
Under no circumstances shall any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord liable to Tenant for abatement
of Rent, or relieve Tenant from performance of Tenant's obligations under this
Lease. Landlord in no event shall be liable for damages by reason of loss of
profits, business interruption or other consequential damage arising from any
Line Problems.
ARTICLE 29
HAZARDOUS MATERIALS
-------------------
Tenant shall not transport, use, store, maintain, generate, manufacture,
handle, dispose, release or discharge any "Hazardous Material" (as defined
below) upon or about the Property, or permit Tenant's employees, agents,
contractors, and other occupants of the Premises to engage in such activities
upon or about the Property. However, the foregoing provisions shall not
prohibit the transportation to and from and use, storage, maintenance and
handling within, the Premises of substances customarily used in offices (or Such
other business or activity expressly permitted to be undertaken in the Premises
under Article 5), provided: (a) such substances shall be used and maintained
only in
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such quantities as are reasonably necessary for such permitted use of the
Premises, strictly in accordance with applicable Law and the manufacturers'
instructions therefor, (b) such substances shall not be disposed of, released or
discharged on the Property, and shall be transported to and from the Premises in
compliance with all applicable Laws, and as Landlord shall reasonably require,
(c) if any applicable Law or Landlord's trash removal contractor requires that
any such substances be disposed of separately from ordinary trash, Tenant shall
make arrangements at Tenant's expense for such disposal directly with a
qualified and licensed disposal company at a lawful disposal site (subject to
scheduling and approval by Landlord), and shall ensure that disposal occurs
frequently enough to prevent unnecessary storage of such substances in the
Premises, and (d) any remaining such substances shall be completely, property
and lawfully removed from the Property upon expiration or earlier termination of
this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup or
other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on the Premises
or the migration thereof from or to other property, (ii) any demands or claims
made or threatened by any party against Tenant or the Premises relating to any
loss or injury resulting from any Hazardous Material, (iii) any release,
discharge or non-routine, improper or unlawful disposal or transportation of any
Hazardous Material on or from the Premises, and (iv) any matters where Tenant is
required by Law to give a notice to any governmental or regulatory authority
respecting any Hazardous Material on the Premises. Landlord shall have the
right (but not the obligation) to join and participate as a party in any legal
proceedings or actions affecting the Premises initiated in connection with any
environmental, health or safety Law. At such times as Landlord may reasonably
request, Tenant shall provide Landlord with a written list identifying any
Hazardous Material then used, stored, or maintained upon the Premises, the use
and approximate quantity of each such material, a copy of any material safety
data sheet ("MSDS") issued by the manufacturer therefor, written information
concerning the removal, transportation and disposal of the same, and such other
information as Landlord may reasonably require or as may be required by Law.
The term "Hazardous Material" for purposes hereof shall mean any chemical,
substance, material or waste or component thereof which is now or hereafter
listed, defined or regulated as a hazardous or toxic chemical, substance,
material or waste or component thereof by any federal, state or local governing
or regulatory body having jurisdiction, or which would trigger any employee or
community "right-to-know" requirements adopted by any such body, or for which
any such body has adopted any requirements for the preparation or distribution
of an MSDS.
If any Hazardous Material is released, discharged or disposed of by Tenant
or any other occupant of the Premises, or their employees, agents or
contractors, on or about tile Property in violation of the foregoing provisions,
Tenant shall immediately, properly and in compliance with applicable Laws clean
up and remove the Hazardous Material from the Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord), at Tenant's expense. Such clean up and removal work shall
be subject to Landlord's prior written approval (except in emergencies), and
shall include, without limitation, any testing investigation, and the
preparation and implementation of any remedial action plan required by any
governmental body having jurisdiction or reasonably required by Landlord. If
Tenant shall fail to comply with the provisions of this Article within five (5)
days after written notice by Landlord, or such shorter time as may be required
by Law or in order to minimize any hazard to Persons or property, Landlord may
(but shall not be obligated to) arrange for such compliance directly or as
Tenant's agent through contractors or other parties selected by Landlord, at
Tenant's expense (without limiting Landlord's other remedies under this Lease or
applicable Law). If any Hazardous Material is released, discharged or disposed
of on or about the Property and such release, discharge or disposal is not
caused by Tenant or other occupants of the Premises, or their employees, agents
or contractors, such release, discharge or disposal shall be deemed casualty
damage under Article 9 to the extent that the Premises or common areas serving
the Premises are affected thereby; in Such case, Landlord and Tenant shall have
the obligations and rights respecting such casualty damage provided under
Article 9. Landlord represents to the best of its knowledge that there are no
Hazardous Materials in the Premises as of the date of this Lease.
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ARTICLE 30
MISCELLANEOUS
-------------
(A) Each of the terms and provisions of this Lease shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 20 respecting Transfers.
(B) Neither this Lease nor any memorandum of lease or short form lease
shall be recorded by Tenant.
(C) This Lease shall be construed in accordance with the Laws of the State
of Georgia.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier ten-termination of
this Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and performs the
terms and provisions hereunder, and subject to all other terms and provisions of
this Lease, Tenant shall hold and enjoy the Premises during the Term, free of
all lawful claims by any Person acting by or through Landlord.
(F) This Lease does not grant any legal rights to "light and air" outside
the Premises nor any particular view visible from the Premises.
ARTICLE 31
OFFER
-----
The submission and negotiation of this Lease shall not be deemed an offer
to enter the same by Landlord, but the solicitation of such an offer by Tenant.
Tenant agrees that its execution of this Lease constitutes a firm offer to enter
the same which may not be withdrawn for a period of 30 days after delivery to
Landlord (or such other period as may be expressly provided in any other
agreement signed by the parties). During such period and in reliance on the
foregoing, Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 32
NOTICES
-------
Except as expressly provided to the contrary in this Lease, every notice or
other communication to be given by either party to the other with respect hereto
or to the Premises or Property, shall be in writing and shall not be effective
for any purpose unless tile same shall be served personally or by national air
courier service, or United States certified mail, return receipt requested,
postage prepaid, addressed, if to Tenant, at the address first set forth in the
Lease, until the Commencement Date, and thereafter to the Tenant at the
Premises, and if to Landlord, Asset Manager at Highwoods ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or to such other place as
Landlord may from time to time designate in writing Tenant. Every notice or
other Communication hereunder shall be deemed to have been given as of the third
business day following the date of such mailing (or as of any earlier date
evidenced by a receipt from such national air courier service or the United
States Postal Service)
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or immediately if personally delivered. Notices not sent in accordance with the
foregoing shall be of no force or effect until received by the foregoing parties
at such addresses required herein.
ARTICLE 33
REAL ESTATE BROKERS
-------------------
Tenant represents that Tenant has dealt only with Hailey Realty Associates
and ▇▇▇▇ Real Estate Services, Inc., (whose commission, if any, shall be paid by
Landlord pursuant to a separate agreement) as broker, agent or finder in
connection with this Lease and agrees to indemnify and hold Landlord harmless
from all damages, judgments, liabilities and expenses (including reasonable
attorneys' fees) arising from any claims or demands of any other broker, agent
or finder with whom Tenant has dealt for any commission or fee alleged to be due
in connection with its participation in the procurement of Tenant or the
negotiation with Tenant of this Lease.
ARTICLE 34
SECURITY DEPOSIT
----------------
Tenant shall deposit with Landlord the amount of $10,360.00 ("Security
Deposit"), upon Tenant's execution and submission of this Lease. The Security
Deposit shall serve as security for the prompt, full and faithful performance by
Tenant of the terms and provisions of this Lease. In the event that Tenant is
in Default hereunder and fails to cure within any applicable time permitted
under this Lease, or in the event that Tenant owes any amounts to Landlord upon
the expiration of this Lease, Landlord may use or apply the whole or any part of
the Security Deposit for the payment of Tenant's obligations hereunder. The use
or application of the Security Deposit or any portion thereof shall not prevent
Landlord from exercising any other right or remedy provided hereunder or under
any Law and shall not be construed as liquidated damages. In the event the
Security Deposit is reduced by such use or application, Tenant shall deposit
with Landlord within ten (10) days after written notice, an amount sufficient to
restore the full amount of the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from Landlord's general funds or pay
interest on the Security Deposit. Any remaining portion of the Security Deposit
shall be returned to Tenant within forty-five (45) days after Tenant has vacated
the Premises in accordance with Article 12.
ARTICLE 35
PARKING SPACES
--------------
Landlord hereby grants to Tenant and persons designated by Tenant the right
to use 32 spaces unreserved, surface parking spaces in the designated parking
area at the Property (the "Parking Area"). The term of such license shall
commence on the Lease Commencement Date and shall continue until the earlier to
occur of the Expiration Date under this Lease, or termination of this Lease.
The parking spaces hereunder shall be available to Tenant, its employees and
visitors on an unreserved "first-come, first-served" basis. Washing, waxing,
cleaning or servicing of any vehicle in the Parking Area is prohibited. Parking
spaces may be used only for parking automobiles, sport utility vehicles,
motorcycles and minivans.
Tenant shall at all times comply with all applicable ordinances, rules,
regulations, codes, laws, statutes and requirements of all federal, state,
county and municipal governmental bodies or their subdivisions respecting the
use of the parking spaces. Landlord reserves the right to adopt, modify and
enforce reasonable rules governing the use of the parking spaces from time to
time, including any key-card, sticker or other identification or entrance
system, and hours of operation. Landlord may refuse to permit any person who
violates such rules to park, and any violation of the rules shall subject the
car to removal from the Parking Area.
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Landlord shall have no liability whatsoever for any damage to vehicles or
other property located in the Parking Area, nor for any personal injuries or
death arising out of any matter relating to the Parking Area, and in all events,
Tenant agrees to look first to its insurance carrier and to request that
Tenant's employees look first to their respective insurance carriers for payment
of any losses sustained in connection with any use of the Parking Area. Tenant
hereby waives on behalf of its insurance carriers all rights of subrogation
against Landlord or Landlord's agents. Landlord reserves the right to assign a
reasonable number of specific spaces, and to reserve spaces for couriers,
visitors, compact or midget cars, handicapped persons and for other tenants,
guests of tenants or other parties, and Tenant and persons designated by Tenant
hereunder shall not park in any such assigned or reserved space, so long; as
Tenant still has the use of the minimum number of parking spaces as provided
herein. Landlord also reserves the right to close all or any portion of the
Parking Area in order to make repairs or perform maintenance services, or to
alter, modify, re-stripe or renovate the Parking Area, or if required by
casualty, strike, condemnation, act of God, governmental law or requirement or
other reason beyond Landlord's reasonable control, provided Landlord closes all
or substantially all of the Parking Area, Landlord will provide alternative
parking areas.
ARTICLE 36
CONSENT TO JURISDICTION
-----------------------
The shareholders of Tenant hereby consent and submit to the jurisdiction of
any court of record of Georgia State located in ▇▇▇▇ County, or of the United
States District Court for the Northern District of Georgia and agree that
service of process in any action or proceeding, brought by Landlord may be made
upon any or all shareholders by mailing a copy of the summons to such
shareholder(s) either at their respective addresses or at the Premises, by
registered or certified mail, return receipt requested. Notwithstanding the
foregoing, the residence of any shareholder of Tenant shall not be a basis for a
choice of venue or for a motion by a shareholder of Tenant for transfer of venue
or forum non conveniens pursuant to any rule of common law and/or any applicable
state or federal provision or statute, and each shareholder of Tenant and Tenant
hereby waives the right to choose venue or to move for transfer of venue or
forum non conveniens on the grounds that all individual shareholder of the
Tenant resides in a particular jurisdiction.
ARTICLE 37
ENTIRE AGREEMENT
----------------
This Lease, together with the Exhibits (WHICH COLLECTIVELY ARE HEREBY
INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART HEREOF AS THOUGH FULLY SET
FORTH), contains all tile terms and provisions between Landlord and Tenant
relating to the matters set forth herein and no prior or contemporaneous
agreement or understanding pertaining to the same shall be of any force or
effect, except any such contemporaneous agreement specifically referring to and
modifying this Lease, signed by both parties without limitation as to the
generality of the foregoing, Tenant hereby acknowledges and agrees that
Landlord's leasing agents and field personnel are only authorized to show the
Premises and negotiate terms and conditions for leases subject to Landlord's
final approval, and are not authorized to make any agreements, representations,
understandings or obligations, binding upon Landlord, respecting the condition
of the Premises or Property, suitability of the same for Tenant's business, or
any other matter, and no such agreements, representations, understandings or
obligations not expressly contained herein or in such contemporaneous agreement
shall be of any force or effect. Neither this Lease, nor any Exhibits or
Exhibits referred to above may be modified, except in writing signed-by both
parties.
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ARTICLE 38
SPECIAL STIPULATIONS
--------------------
Insofar as the special stipulations attached hereto and incorporated herein
conflict with any of the foregoing provisions, said special stipulations shall
control.
ARTICLE ▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ (1,954 RSF)
---------------------
Annual Base Rent Base Rent Per Month Annual
Period Per Rentable Square Foot (Based on 1,954 RSF) Base Rent
---------------------------------- ------------------------ -------------------- ----------
12/01/97 - 11/31/98 $14.00 $2,279.66
$27,356.00 12/01/98 - 11/31/99 $14.42 $2,348.06 $28,176.68
12/01/99 - 11/31/00 $14.85 $2,418.08 $29,016.90
12/01/00 - 11/31/01 $15.30 $2,491.35 $29,896.20
12/01/01 - 11/31/02 $15.76 $2,566.25 $30,795.04
ARTICLE ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ (6,926 RSF)
---------------------
Annual Base Rent Base Rent Per Month Annual
Period Per Rentable Square Foot (Based on 1,954 RSF) Base Rent
----------------------------------- ------------------------ -------------------- -----------
12/01/97 - 11/31/98 $14.00 $8,080.33
$96,964.00 12/01/98 - 11/31/99 $14.42 $8,322.74 $ 99,872.92
12/01/99 - 11/31/00 $14.85 $8,570.93 $102,851.10
12/01/00 - 11/31/01 $15.30 $8,830.65 $105,967.80
12/01/01 - 11/31/02 $15.76 $9,096.15
$109,153.76
ARTICLE 40
SECURITY
--------
Landlord is not responsible or liable for any thefts or criminal acts
incurred on the premises at any time for any reason.
ARTICLE 41
FIRST RIGHT OF OFFER
--------------------
Subject to Subsection B below, and subject to any expansion or renewal
options of any current tenant in the Building (a "PRIOR TENANT") Landlord hereby
grants to Tenant for the term of the Lease a right of first offer for the
remaining space on the third and fourth floor of the Building (collectively, the
"Rofo Space "), to be exercised in accordance with Subsection A below.
------------
A. If any ROFO Space becomes available for lease to anyone other than a Prior
Tenant, Landlord shall so notify Tenant ("LANDLORD'S ROFO NOTICE") identifying
------------------
the available ROFO Space (the "Subject ROFO Space"). Landlord's ROFO Notice may
------------------
be given up to sixteen (16) months in advance of such availability and shall
contain the terms upon which Landlord intends to offer the Subject ROFO Space
for lease to the market. Tenant shall notify
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Landlord within ten (10) days of receipt of Landlord's ROFO Notice whether it
desires to lease the Subject ROFO Space on the terms set forth in Landlord's
ROFO Notice. If Tenant does not notify Landlord within said I O-day period that
it will lease the Subject ROFO Space, Tenant shall be deemed to have refused the
Subject ROFO Space. After any refusal, Tenant shall have no further right of
first offer for such Subject ROFO Space and Landlord shall I be free to lease
such space to any party for any term. If Tenant exercises its right of first
offer with respect to the Subject ROFO Space, such space shall be added to the
Premises for all purposes of this lease for the remaining Term of the Lease (but
in no event less than [three (3)] years) on (a) the terms specified in
Landlord's ROFO Notice, and (b) the terms of this Lease to the extent that they
do not conflict with the terms specified in Landlord's ROFO Notice, except that
the terms of Landlord's ROFO Notice shall not apply during any Renewal Term, and
instead, the terms of the Lease applying to the remainder of the Premises during
the Renewal Term shall also apply to the Subject ROFO Space.
B. Tenant's right of first offer is subject to the conditions that: (i) on the
date that Tenant delivers its notice exercising its right of first offer, Tenant
is not in default under this Lease after the expiration of any applicable notice
and cure periods, and (ii) Tenant shall not have assigned the Lease, or sublet
any portion of the Premises under a sublease which is in effect at any time
during the period commencing with Tenant's delivery of its notice and ending on
the date the ROFO Space is added to the Premises.
C. Promptly after Tenant's exercise of its right of first offer, Landlord shall
execute and deliver to Tenant an amendment to the Lease to reflect changes in
the Premises, Base Rent, Tenant's Proportionate Share and any other appropriate
terms changed by the addition of the ROFO Space. Within 15 days thereafter,
Tenant shall execute and return the amendment.
ARTICLE 42
OPERATING EXPENSES
------------------
In further reference to Article 24 (I) (iii) operating expenses shall not
include the following:
* Interest and principal payments on mortgage debt;
* ground rental payments;
* the cost of capital improvements not otherwise allowed in Paragraph 1.4(j)
of the Lease;
* the costs of painting or decorating other than Common Areas, alterations to
the Premises or the premises of other tenants of the building, or work
furnished by Landlord without charge as an inducement for a tenant to lease
space (ie., free rent, improvement allowances);
* salaries and other compensation of executive officers of Landlord or Managing
Agent senior to the Building manager;
* income or franchise taxes or other such taxes unless imposed in lieu of
Property Taxes imposed or measured by the income of Landlord from the
operation of the Building;
* the cost of constructing, installing, operating or maintaining any special
service or facility such as an observatory, broadcasting facility luncheon
club, athletic or recreational club, cafeteria or dining facility;
* the costs associated with services or amenities not available to all tenants
or provided to any tenant to a materially greater extent or more favorable
manner than generally provided to other tenants;
* the costs of correcting latent defects and defects in construction or
renovation of the Building or its systems;
-29-
* the costs (including fines and penalties), to comply with laws such as ADA
and environmental laws not otherwise Tenant's obligation as provided for in
Article 29, including without limitation, laws relating to the required phase
out of so-called "freon" as a coolant;
* the cost of any work performed or service provided for which fees are charged
or other compensation received;
* payments for rental items, the cost of which would constitute a capital
expenditure except where used to reduce or offset operating expenses if such
equipment were purchased;
* legal expenses incurred in connection with tenant leases including, without
limitation, negotiations with prospective tenants and enforcing provisions of
this Lease or other leases in the Building;
* costs for sculptures, paintings and other objects of art located in the
interior or on the exterior of the Building or immediately adjacent thereto;
* any fees and expenses paid to an agent which is related to Landlord to the
extent such fees or expenses are in excess of the customary market amounts
which would be paid in the absence of such a relationship;
* expenditures for repairs or maintenance which are covered by warranties,
guarantees or service contracts;
* any expenditure for which Landlord has been or is entitled to be reimbursed
by third parties such as insurance companies or would have been compensated
through proceeds of insurance had Landlord maintained insurance required
under this Lease;
* the cost of any alterations, additions or equipment replacements and tile
like which under generally accepted accounting or principals and practices
are properly classified as capital expenditures, except for those items which
reduce operating expenses;
* advertising, promotional and marketing expenses, or the cost of maintaining a
leasing or marketing office for the Building;
* real estate brokerage and leasing commissions;
* expenses in connection with repairs or other work occasioned by the exercise
of the right of eminent domain;
* damages incurred due to the gross negligence of the Landlord;
* debt costs or the costs of financing or refinancing;
* the costs, fines or penalties incurred due to violations by Landlord of any
governmental rule or authority;
* expenses incurred by Landlord, if any, in connection with the operation,
cleaning, repair, safety, management, security, maintenance or other services
of any kind provided to any portions of the Building which are leased or
designated to be used for retail, garage or storage purposes to the extent
such expenses are reimbursed or paid directly by any tenant or garage
operator;
* expenses incurred by Landlord, if any, in connection with any special
services or any garage operations, but to the extent such expenses are less
than any income Generated by such special services or garage operation;
* any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord; and
* Landlord's General partnership overhead not related to management of the
Building.
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ARTICLE 43
MONUMENT SIGN
-------------
Notwithstanding anything in the Lease to the contrary, Tenant shall have
the right to install and maintain, at Tenant's sole cost and expense, an
exterior monument sign at the entrance to the Property, the exact location being
mutually agreeable to Landlord and Tenant, identifying Tenant as a tenant of the
Property and of the Building. Such identification sign shall be consistent with
a first class, multi-tenant office building, shall not be obstructed by future
signs, and shall comply with all applicable governmental laws, rules,
ordinances, and regulations. Tenant, prior to installation of such
identification sign, shall submit the sign, including the style, color, letter
and materials, to Landlord for Landlord's approval, which approval shall not be
unreasonably withheld or delayed.
ARTICLE 44
EXTENSION OPTION WITHOUT ARBITRATION
------------------------------------
Subject to Subsections B and C below, Tenant may, at its option, extend the
Term of this Lease for the entire Premises for one period of five years (the
"Renewal Term" ) upon the same terms contained in this Lease, except for the
---------------
amount of Base Rent payable during the Renewal Term. Tenant shall have no
additional extension option.
A. The Base Rent during the Renewal Term should be the greater of (i) the
Base Rent applicable to the last day of the final Lease Year prior to the
applicable Renewal Term, or (ii) the then prevailing market rate for a
comparable term commencing, on the first day of the Renewal Term for tenants of
comparable size and creditworthiness for comparable space in the Building and
other first class office buildings in the vicinity of the Building as reasonably
determined by Landlord.
B. To exercise its option, Tenant must deliver, as set forth below, a
final, binding notice to Landlord not less than twelve (12) months prior to the
proposed commencement of the applicable Renewal Term. At some point between the
thirteenth (13th) and fourteenth (14th) months prior to the proposed
commencement of the applicable Renewal Term, Tenant shall deliver an initial,
non-binding notice to Landlord. Within fifteen (15) days of receipt of said
notice, Landlord shall calculate and inform Tenant of the Base Rent for the
Premises. Such calculation shall be final and shall not be recalculated at the
actual commencement of the Renewal Term, if any. Tenant shall give Landlord
final binding notice of intent to exercise its option to extend within fifteen
(15) days after receiving Landlord's calculation of Base Rent. If Tenant fails
to give either its initial non-binding notice or its final binding notice
timely, Tenant will be deemed to have waived its option to extend.
C. Tenant's option to extend this Lease is subject to the conditions that:
(i) on the date that Tenant delivers its final binding notice exercising, its
option to extend, Tenant is not in default under this Lease after the expiration
of any applicable notice and cure periods, and (ii) Tenant shall not have
assigned this Lease, or sublet any portion of the Premises under a sublease
which is in effect at any time during the final 12 months prior to the
applicable Renewal Term.
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-32-
LANDLORD:
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
By: Highwoods Properties, Inc., general partner
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, Sr. Vice President
11-21-97
---------------------------------
Date executed by Landlord
TENANT:
INFOCURE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Fine
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. Fine
---------------------------
Title: President
--------------------------
Witness: /s/ [Illegible]
---------------------------
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Witness:
-----------------------------
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