<PAGE>
EXHIBIT 10.11
OFFICE LEASE
STATE OF TENNESSEE:
COUNTY OF WILLIAMSON:
THIS
LEASE (the "Lease"), is made this the 22nd day of November, 1999,
by
and between HIGHWOODS/TENNESSEE HOLDINGS, L.P., a Tennessee limited
partnership
hereinafter "Landlord" and NETWORK HEALTH SERVICES, INC. d/b/a
TOTAL EMED.COM,
INC., a Tennessee corporation hereinafter "Tenant":
WITNESSETH:
Upon
the terms and conditions hereinafter set forth, Landlord leases
to
Tenant and Tenant leases from Landlord property referred to as the
Premises, all
as follows:
1.
PREMISES. The property hereby leased to Tenant is that area shown
on
Exhibit A hereto attached, which consists of approximately 26,084
rentable
square feet (Tenant reserves the right to have space measured),
which is located
in what is sometimes called the CoolSprings I Building (the
"Building"), located
at 720 Cool Springs Boulevard, Suite 200, The City of Franklin,
Williamson
County, State of Tennessee (the "Premises").
If
Landlord and Tenant desire for improvements to be made to the
Premises
prior to the Commencement Date such improvements shall be made
pursuant to the
workletter attached hereto as Exhibit A-1 (the "Workletter').
2.
TERM. This Lease Term (the "Term") is for 60 months, and shall
commence
on April 1, 2000 ("Commencement Date"), and shall expire (unless
sooner
terminated or extended as herein provided) at 6:00 p.m. on MARCH
31, 2005
("Expiration Date"). In the event Landlord shall permit Tenant to
take
possession of the Premises prior to the Commencement Date
referenced above, all
the terms and conditions of this Lease shall apply.
If
Landlord, for any reason whatsoever, cannot deliver possession of
the
Premises to Tenant on the Commencement Date, then this Lease shall
not be void
or voidable, no obligation of Tenant shall be affected thereby, and
neither
Landlord nor Landlord's agents shall be liable to Tenant for any
loss or damage
resulting from the delay in delivery of possession; provided,
however, that in
such event, the Commencement Date and Expiration Date of this
Lease, and all
other dates that may be affected by their change, shall be revised
to conform to
the date of Landlord's delivery of possession to Tenant. The above,
however, is
subject to the provision that the period permitted for the delay of
delivery of
possession of the Premises shall not exceed sixty (60) days after
the
Commencement Date set forth in the first sentence of this Section 2
(except that
those delays beyond Landlord's control, including, without
limitation, those
encompassed in the meaning of the term "force majeure", or caused
by Tenant (the
"Delays") shall be excluded in calculating such period). If
Landlord does not
deliver possession to Tenant within such period, then Tenant may
terminate this
Lease by written notice to Landlord; provided, that written
notice
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shall be ineffective if given after Tenant takes possession of any
part of the
Premises, or if given more than one hundred (100) days after the
original
Commencement Date plus the time of any Delays. Unless expressly
otherwise
provided herein, Rent (as hereinafter defined) shall commence on
the earlier of:
(i) the Commencement Date; (ii) occupancy of the Premises by
Tenant; (iii) the
date Landlord has the Premises ready for occupancy by Tenant, as
such date is
adjusted under the Workletter, if any, attached hereto; or (iv) the
date
Landlord could have had the Premises ready had there been no Delays
attributable
to Tenant. Unless the context otherwise so requires, the term
"Rent" as used
herein includes both Base Rent and Additional Rent as set forth in
Section 4.
If
the Expiration Date, as determined herein, does not occur on the
last
day of a calendar month, then Landlord, at its option, may extend
the Term by
the number of days necessary to cause the Expiration Date to occur
on the last
day of the last calendar month of the Term. Tenant shall pay Base
Rent and
Additional Rent for such additional days at the same rate payable
for the
portion of the last calendar month immediately preceding such
extension. The
Commencement Date, Term (including any extension by Landlord
pursuant to this
Section 2) and Expiration Date may be set forth in a commencement
letter (the
"Commencement Letter") prepared by Landlord and executed by
Tenant.
3.
USE. The Premises may be used only for general office purposes
in
connection with Tenant's present business, which is currently
medical
information management services, and be occupied by no more than
one hundred
thirty (130) persons (the "Permitted Use"), but for no other use
without
Landlord's prior written consent which shall not be unreasonably
withheld.
Tenant shall never make any use of the Premises which is in
violation of any
governmental laws, rules or regulations, whether now existing or
hereafter
enacted. or which is in violation of the general rules and
regulations for
tenants (a copy of the present rules are attached as Exhibit B) as
may be
developed or modified from time to time by Landlord effective as of
the date
delivered to Tenant or posted on the Premises providing such rules
are uniformly
applicable to all tenants in the Building (the "Rules and
Regulations"), nor may
Tenant make any use of the Premises not permitted, or otherwise
prohibited, by
any restrictive covenants which apply to the Premises. Tenant may
not make any
use that is or may be a nuisance or trespass, which increases any
insurance
premiums, or makes such insurance unavailable to Landlord on the
Building. In
the event of an increase in any of Landlord's insurance premiums
which results
from Tenant's use or occupancy of the Premises, if Tenant does not
pay Landlord,
on demand, the amount of such increase, Landlord may treat such use
as a default
hereunder.
4.
RENT. As used herein, the term "Rent" shall mean Base Rent (as
hereinafter defined) plus Additional Rent (as hereinafter defined).
Tenant shall
pay to Landlord Rent, on or before the first day of each calendar
month during
the Term, without previous demand or notice therefor by Landlord
and without set
off or deduction; provided, however, if the Term commences on a day
other than
the first day of a calendar month, then Rent for such month shall
be (i)
prorated for the period between the Commencement Date and the last
day of the
month in which the Commencement Date falls, and (ii) due and
payable on the
Commencement Date. Notwithstanding anything contained herein to the
contrary,
Tenant's obligation to pay Rent under this Lease is completely
separate and
independent from any of Landlord's obligations under this Lease.
For each
monthly Rent payment Landlord receives after the tenth (10'x) day
of the month,
Landlord shall be entitled to all remedies provided under Sections
13 and 14
below, and a late
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charge in the amount of five percent (5%) of all Rent due for such
month. If
Landlord presents Tenant's check to any bank and Tenant has
insufficient funds
to pay for such check, then Landlord shall be entitled to all
remedies provided
under Sections 13 and 14 below and a lawful bad check fee or five
percent (5%)
of the amount of such check, whichever amount is less.
4.1
BASE RENT. As used herein, "Base Rent" shall refer to the
following
schedule.
<TABLE>
<CAPTION>
FROM THROUGH RATE/SF MONTHLY
ANNUALLY
---- ------- ------- ---------- -----------
<S> <C>
<C>
<C>
<C>
4/1/00 3/31/01
$18.50
$40,212.83
$482,553.96
4/1/01 3/31/02
$18.50
$40,212.83
$482,553.96
4/1/02 3/31/03
$19.25
$41,843.08
$502,116.96
4/1/03 3/31/04
$19.63
$42,669.08
$512,028.96
4/1/04 3/31/05
$20.02
$43,516.81
$522,201.72
</TABLE>
4.2
ADDITIONAL RENT. As used in this Lease, the term "Additional
Rent"
shall mean all sums and charges, excluding Base Rent, due and
payable by Tenant
under this Lease, including, but not limited to, the following:
(a)
sales or use tax imposed on rents collected by Landlord or any tax
on
rents in lieu of ad valorem taxes on the Building, even though laws
imposing
such taxes attempt to require Landlord to pay the same.
(b)
Tenant's Proportionate Share (as hereinafter defined) of the
increase
in Landlord's Operating Expenses (as hereinafter defined) as set
forth in the
attached Addendum.
5.
SERVICES BY LANDLORD. Provided that Tenant is not then in
default,
Landlord shall cause to be furnished to the Building, or as
applicable, the
Premises, in common with other tenants, during business hours of
7:00 A.M. to
6:00 P.M. Monday through Friday and 8:00 A.M. to 12:00 P.M. on
Saturday
(excluding National and State holidays), the following services;
janitorial
services (five (5) days a week after normal working hours), water
(if available
from city mains) for drinking, lavatory and toilet purposes,
operatorless
elevator service and heating and air conditioning for the
reasonably comfortable
use and occupancy of the Premises, provided heating and cooling
conforming to
any governmental regulation prescribing limitations thereon shall
be deemed to
comply with this service. Landlord shall furnish the Premises with
electricity
for the maintenance of building standard fluorescent lighting
composed of 2' x
4' fixtures. Incandescent fixtures, table lamps, all lighting other
than the
aforesaid building standard fluorescent light, dimmers and all
lighting controls
other than controls for the aforesaid building standard fluorescent
lighting
shall be serviced, replaced and maintained at Tenant's expense.
Landlord shall
also furnish the Premises with electricity for lighting for the
aforesaid
building standard fluorescent lighting and for the operation of
general office
machines, such as electric typewriters, desk top computers, word
processing
equipment, dictating equipment, adding machines and calculators,
and general
service non-production type office copy machines. Landlord shall
have the right
to enter and inspect the Premises and all electrical devices
therein
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from time to time, provided that Landlord shall have no obligation
to provide
more than five (5) watts per usable square foot of electricity
serving the
Premises. Landlord must give Tenant reasonable notice before making
such
inspection, and Landlord shall conduct such inspection in a manner
and at a time
which shall not create a disruption to Tenant's business. Landlord
reserves the
right to separately meter the Premises should Tenants use of
electricity be
deemed excessive. After hours heating and air conditioning is
available at a
charge of $30.00 per hour, per zone, with a minimum of one (1) hour
per
occurrence. All additional costs resulting from Tenant's
extraordinary usage of
heating, air conditioning or electricity shall be paid by Tenant
upon demand as
Additional Rent for each month or portion thereof, and Tenant shall
not install
equipment with unusual demands for any of the foregoing without
Landlord's prior
written consent, which Landlord may withhold if it determines that
in its
opinion such equipment may not be safely used in the Premises or
that electrical
service is not adequate therefor. If heat generating machines or
equipment or
other intensive activities shall be used or carried on in the
Premises by Tenant
which affect the temperature otherwise maintained by the heating
and air
conditioning system, Landlord shall have the right to install
supplemental air
conditioning units in the Premises and the cost thereof, including
the cost of
engineering and installation, and the cost of operation and
maintenance thereof,
shall be paid by Tenant upon demand by Landlord. Landlord shall
further provide
a reasonable pro rata amount of unreserved free parking, in common
with the
other tenants, for Tenant's employees and visitors. There shall be
no abatement
or reduction of Rent by reason of any of the foregoing services not
being
continuously provided to Tenant.
Tenant shall report to Landlord immediately any defective condition
in or
about the Premises reasonably known to Tenant and if such defect is
not so
reported and such failure to promptly report results in other
damage, Tenant
shall be liable for same. Landlord shall not be liable to Tenant
for any damage
caused to Tenant and its property due to the Building or any part
or
appurtenance thereof being improperly constructed or being or
becoming out of
repair, or arising from the leaking of gas, water, sewer or steam
pipes, or from
problems with electrical service unless such damage arises from the
willful
acts, omissions, or gross negligence of Landlord or its
contractors.
6.
TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES; LANDLORD'S DUTIES
AND
RIGHTS. Subject to the terms of the attached Workletter, if any,
Tenant's
occupancy of the Premises is Tenant's representation to Landlord
that Tenant has
examined and inspected the same, finds the Premises to be as
represented by
Landlord and satisfactory for Tenant's intended use, and
constitutes Tenant's
acceptance "as is" with the exception of latent defects which may
not be
reasonably known to Tenant at the time. Landlord makes no
representation or
warranty as to the condition of said Premises. During Tenant's
move-in, a
representative of Tenant must be on-site with Tenant's moving
company to insure
proper treatment of the Building and the Premises. Elevators in
multi-story
office buildings must remain in use for the general public during
business hours
as defined herein in Section 5. Any specialized use of elevators
must be
coordinated with Landlord's property manager. Tenant must properly
dispose of
all packing material and refuse in accordance with the Rules and
Regulations.
Any damage or destruction to the Building or the Premises due to
moving will be
the sole responsibility of Tenant. Tenant shall deliver at the end
of this Lease
each and every part of the Premises in good repair and condition,
ordinary wear
and tear and damage by insured casualty excepted. The delivery of a
key or other
such tender of possession of the Premises to
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Landlord or to an employee of Landlord shall not operate as a
termination of
this Lease or a surrender of the Premises except upon written
notice by
Landlord. Tenant shall: (i) keep the Premises and fixtures in good
order; (ii)
make repairs and replacements to the Premises or Building needed
because of
Tenant's misuse or primary negligence; (iii) repair and replace
special
equipment or decorative treatments installed by or at Tenant's
request and that
serve the Premises only, except if this Lease is ended because of
casualty loss
or condemnation; and (iv) not commit waste. Tenant, however, shall
make no
structural or interior alterations of the Premises. If Tenant
requires
alterations, Tenant shall provide Landlord's managing agent with a
complete set
of construction drawings, and such agent shall then determine the
actual cost of
the work to be done (to include a construction supervision fee of
five percent
(5%) to be paid to Landlord's managing agent). Tenant may then
either agree to
pay Landlord to have the work done or withdraw its request for
alterations. On
termination of this Lease or vacation of the Premises by Tenant,
Tenant shall
restore the Premises, at Tenant's sole expense, to the same
condition as existed
at the Commencement Date, ordinary wear and tear and damage by
insured casualty
only excepted. Landlord, however, may elect to require Tenant to
leave
alterations performed for Tenant unless at the time of such
alterations Landlord
agreed in writing such alterations could be removed on the
Expiration Date, upon
the termination of this Lease or upon Tenant's vacation of the
Premises.
Tenant shall keep the Premises and the Building free from any liens
arising
out of any work performed, materials furnished, or obligations
incurred by or on
behalf of Tenant. Should any claim of lien or other lien be filed
against the
Premises or the Building by reason of any act or omission of Tenant
or any of
Tenant's agents, employees, contractors or representatives, then
Tenant shall
cause the same to-,be canceled and discharged of record by bond or
otherwise
within ten (10) days after the filing thereof. Should Tenant fail
to discharge
such lien within such ten (10) day period, then Landlord may
discharge the same,
in which event Tenant shall reimburse Landlord, on demand, as
Additional Rent,
for the amount of the lien or the amount of the bond, if greater,
plus all
administrative costs incurred by Landlord in connection therewith.
The remedies
provided herein shall be in addition to all other remedies
available to Landlord
under this Lease or otherwise. Tenant shall have no power to do any
act or make
any contract that may create or be the foundation of any lien,
mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or
any interest
of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS
FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR
AFFECT THE
INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE BUILDING.
Notwithstanding anything to the contrary set forth above in this
Section 6,
if Tenant does not perform its maintenance obligations in a timely
manner as set
forth in this Lease, commencing or diligently attempting to
commence the same
within ten (10) days after receipt of notice from Landlord
specifying the work
needed and thereafter diligently and continuously pursuing
completion of
unfulfilled maintenance obligations, then Landlord shall have the
right, but not
the obligation, to perform such maintenance, and any amounts so
expended by
Landlord shall be paid by Tenant to Landlord within thirty (30)
days after
demand, with interest at the maximum rate allowed by law (or the
rate of fifteen
percent (15%) per annum, whichever is less) accruing from the date
of
expenditure through the date paid.
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Except for repairs and replacements that Tenant must make under
this
Section 6, Landlord shall pay for and make all other repairs and
replacements to
the Premises, common areas and Building (including Building
fixtures and
equipment). This maintenance shall include the roof, foundation,
exterior walls,
interior structural walls, all structural components, and all
exterior (outside
of walls) systems, such as mechanical, electrical, HVAC, and
plumbing. Repairs
or replacements required under Section 6 shall be made within a
reasonable time
(depending on the nature of the repair or replacement needed) after
receiving
notice from Tenant or Landlord having actual knowledge of the need
for a repair
or replacement.
7.
DAMAGES TO PREMISES. If the Premises shall be partially damaged by
fire
or other casualty insured under Landlord's insurance policies, and
if Landlord's
lender(s) shall permit insurance proceeds paid as a result thereof
to be so
used, then upon receipt of the insurance proceeds, Landlord shall,
except as
otherwise provided herein, promptly repair and restore the Premises
(exclusive
of improvements made by Tenant, Tenant's trade fixtures,
decorations, signs, and
contents) substantially to the condition thereof immediately prior
to such
damage or destruction; limited, however, to the extent of the
insurance proceeds
received by Landlord. If by reason of such occurrence: (i) the
Premises is
rendered wholly untenantable; (ii) the Premises is damaged in whole
or in part
as a result of a risk which is not covered by Landlord's insurance
policies;
(iii) Landlord's lender does not permit a sufficient amount of the
insurance
proceeds to be used for restoration purposes; (iv) the Premises is
damaged in
whole or in part during the last two years of the Term; or (v) the
Building
containing the Premises is damaged (whether or not the Premises is
damaged) to
an extent of fifty percent (50%) or more of the fair market value
thereof, then
Landlord may elect either to repair the damage as aforesaid, or to
cancel this
Lease by written notice of cancellation given to Tenant within
sixty (60) days
after the date of such occurrence, and thereupon this Lease shall
terminate.
Tenant shall vacate and surrender the Premises to Landlord within
thirty (30)
days after receipt of such notice of termination. In addition,
Tenant may also
terminate this Lease by written notice given to Landlord at any
time between the
one hundred twenty-first (121st) and one hundred thirty-sixth
(136th) days after
the occurrence of any such casualty, if Landlord has failed to
restore the
damaged portions of the Building (including the Premises) within
one hundred
twenty (120) days of such casualty. However, if Landlord is
prevented by Delays
as defined in Section 2, from completing the restoration within
said one hundred
twenty (120) day period, and if Landlord provides Tenant with
written notice of
the cause for the Delays within fifteen (15) days after the
occurrence thereof,
such notice to contain the reason for the Delays and a good faith
estimate of
the period of the Delays caused thereby, then. Landlord shall have
an additional
period beyond said one hundred twenty (120) days, equal to the
Delays in which
to restore the damaged areas of the Building; and Tenant may not
elect to
terminate this Lease until said additional period required for
completion has
expired with the Building not having been substantially restored.
In such case,
Tenant's fifteen (15) day notice of termination period shall begin
to run upon
the expiration of Landlord's additional period for restoration set
forth in the
preceding sentence. Upon the termination of this Lease as
aforesaid, Tenant's
liability for the Rent and other charges reserved hereunder shall
cease as of
the effective date of the termination of this Lease, subject,
however, to the
provisions for abatement of Rent hereinafter set forth.
Notwithstanding the foregoing, Landlord shall use commercially
reasonable
efforts to provide Tenant temporary space which is reasonably
acceptable to
Tenant during the time period in which the damage to the Building
(including the
Premises) is being repaired.
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Unless this Lease is terminated as aforesaid, this Lease shall
remain in
full force and effect, and Tenant shall promptly repair, restore,
or replace
Tenant's improvements, trade fixtures, decorations, signs, and
contents in the
Premises in a manner and to at least a condition equal to that
existing prior to
their damage or destruction, and the proceeds of all insurance
carried by Tenant
on said property shall be held in trust by Tenant for the purposes
of such
repair, restoration, or replacement.
If,
by reason of such fire or other casualty, the Premises is
rendered
wholly untenantable, then the Rent payable by Tenant shall be fully
abated, or
if only partially damaged, such Rent and other charges shall be
abated
proportionately as to that portion of the Premises rendered
untenantable, in
either event (unless the Lease is terminated, as aforesaid) from
the date of
such casualty until the Premises have been substantially repaired
and restored,
or until Tenant's business operations are restored in the entire
Premises,
whichever shall first occur. Tenant shall continue the operation of
Tenant's
business in the Premises or any part thereof not so damaged during
any such
period to the extent reasonably practicable from the standpoint of
prudent
business management. However, if such damages or other casualty
shall be caused
by the negligence or other wrongful conduct of Tenant or of
Tenant's subtenants,
licensees, contractors, or invitees, or their respective agents or
employees,
there shall be no abatement of Rent. Except for the abatement of
the Rent
hereinabove set forth, Tenant shall not be entitled to, and hereby
waives, all
claims against Landlord for any compensation or damage for loss of
use of the
whole or any part of the Premises and/or for any inconvenience or
annoyance
occasioned by any such damage, destruction, repair, or
restoration.
8.
ASSIGNMENT -SUBLEASE. Tenant may not assign or encumber this Lease
or
its interest in the Premises arising under this Lease, and may not
sublet any
part or all of the Premises without first obtaining the written
consent of
Landlord first had and obtained, which consent may be withheld in
Landlord's
sole discretion. Any assignment or sublease to which Landlord may
consent (one
consent not being any basis that Landlord should grant any further
consent)
shall not relieve Tenant of any or all of its obligations
hereunder. For the
purpose of this Section 8, the word "assignment" shall be defined
and deemed to
include the following: (i) if Tenant consists of more than one
person, an
assignment, whether voluntary, involuntary, or by operation of law,
by one
person to one of the other persons that is a Tenant; (ii) if Tenant
is a
corporation, any dissolution or reorganization of Tenant, or the
sale or other
transfer of a controlling percentage (hereafter defined) of capital
stock of
Tenant other than to an affiliate or subsidiary or the sale of
fifty-one percent
(51%) in value of the assets of Tenant; (iii) if Tenant is a
limited liability
company, the change of members whose interest in the company is
fifty percent
(50%) or more. The phrase "controlling percentage" means the
ownership of, and
the right to vote, stock possessing at least fifty-one percent
(51%) of the
total combined voting power of all classes of Tenant's capital
stock issued,
outstanding and entitled to vote for the election of directors, or
such lesser
percentage as is required to provide actual control over the
affairs of the
corporation. Acceptance of Rent by Landlord after any non-permitted
assignment
shall not constitute approval thereof. by Landlord. Notwithstanding
the
foregoing provisions of this Section 8, Tenant may assign or
sublease part or
all of the Premises without Landlord's consent to: (i) any
corporation or
partnership that controls, is controlled by, or is under common
control with,
Tenant; or (ii) any corporation resulting from the merger or
consolidation with
Tenant or to any entity that acquires all of Tenant's assets as a
going concern
of the business that is being conducted on the Premises, as long as
the assignee
or sublessee is a bona fide entity and
7
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assumes the obligations of Tenant, and continues the same Permitted
Use as
provided under Section 3. However, Landlord must be given prior
written notice
of any such assignment or subletting, and failure to do so shall be
a default
hereunder. Landlord will never consent to an assignment or sublease
that might
result in a use that conflicts with the rights of an existing
tenant under its
lease.
In
no event shall this Lease be assignable by operation of any law,
and
Tenant's rights hereunder may not become, and shall not be listed
by Tenant as
an asset under any bankruptcy, insolvency or reorganization
proceedings. Tenant
is not, may not become, and shall never represent itself to be an
agent of
Landlord, and Tenant acknowledges that Landlord's title is
paramount, and that
it can do nothing to affect or impair Landlord's title.
If
Landlord consents to any assignment or subletting, Tenant shall pay
all
reasonable out-of-pocket costs and expenses incurred by Landlord in
connection
with the assignment or sublease transaction, including Landlord's
reasonable
attorneys' fees.
If
this Lease shall be assigned or the Premises or any portion
thereof
sublet by Tenant at a rental that exceeds the rentals to be paid to
Landlord
hereunder, attributable to the Premises or portion thereof so
assigned or
sublet, then fifty percent (50%) of any such excess shall be paid
over to
Landlord by Tenant. If Landlord assists Tenant in finding a
permissible
subtenant, Landlord shall be paid a fee for such assistance in
addition to a fee
in an amount necessary to cover the subtenant's improvements to the
Premises or
any portion thereof so assigned or sublet.
9.
TENANT'S COMPLIANCE; INSURANCE REQUIREMENTS. Tenant shall comply
with
all applicable laws, ordinances and regulations affecting the
Premises, now
existing or hereafter adopted, including the Rules and
Regulations.
Throughout the Term, Tenant, at its sole cost and expense, shall
keep or
cause to be kept for the mutual benefit of Landlord, Landlord's
managing agent,
(presently HighwoodslForsyth Limited Partnership and its
affiliates) and Tenant,
Commercial General Liability Insurance (1986 ISO Form or its
equivalent) with a
combined single limit, each Occurrence and General Aggregate-per
location of at
least TWO MILLION DOLLARS ($2,000,000), which policy shall insure
against
liability of Tenant, arising out of and in connection with Tenant's
use of the
Premises, and which shall insure the indemnity provisions contained
herein. Not
more frequently than once every three (3) years, Landlord may
require the limits
to be increased if In its reasonable judgment (or that of its
mortgagee) the
coverage is insufficient. Tenant shall also carry the equivalent of
ISO Special
Form Property Insurance on its personal property and fixtures
located in the
Premises and any improvements made by Tenant for their full
replacement value
and with coinsurance waived, and Tenant shall neither have, nor
make, any claim
against Landlord for any loss or damage to the same, regardless of
the cause
thereof.
Prior to taking possession of the Premises, and annually
thereafter, Tenant
shall deliver to Landlord certificates or other evidence of
insurance
satisfactory to Landlord. All such policies shall be non-assessable
and shall
contain language to the extent obtainable that: (i) any loss shall
be payable
notwithstanding any act or negligence of Landlord or Tenant that
might otherwise
result in forfeiture of the insurance, (ii) that the policies are
primary and
non-contributing with any insurance that Landlord may carry, and
(iii) that the
policies cannot be canceled, non-
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renewed, or coverage reduced except after thirty (30) days' prior
written notice
to Landlord. If Tenant fails to provide Landlord with such
certificates or other
evidence of insurance coverage, Landlord may obtain such coverage
and Tenant
shall reimburse the cost thereof on demand.
Anything in this Lease to the contrary notwithstanding, Landlord
hereby
releases and waives unto Tenant (including all partners,
stockholders, officers,
directors, employees and agents thereof), its successors and
assigns, and Tenant
hereby releases and waives unto Landlord (including all partners,
stockholders,
officers, directors, employees and agents thereof), its successors
and assigns,
all rights to claim damages for any injury, loss, cost or damage to
persons or
to the Premises or any other casualty, as long as the amount of
which injury,
loss, cost or damage has been paid either to Landlord, Tenant, or
any other
person, firm or corporation, under the terms of any Property,
General Liability,
or other policy of insurance, to the extent such releases or
waivers are
permitted under applicable law. As respects all policies of
insurance carried or
maintained pursuant to this Lease and to the extent permitted under
such
policies, Tenant and Landlord each waive the insurance carriers'
rights of
subrogation. Subject to the foregoing, Tenant shall indemnify and
hold Landlord
harmless from and against any and all claims arising out of (i)
Tenant's use of
the Premises or any part thereof, (ii) any activity, work, or other
thing done,
permitted or suffered by Tenant in or about the Premises or the
Building, or any
part thereof, (iii) any breach or default by Tenant in the
performance of any of
its obligations under this Lease, or (iv) any act or negligence of
Tenant, or
any officer, agent, employee, contractor, servant, invitee or guest
of Tenant;
and in each case from and against any and all damages, losses,
liabilities,
lawsuits, costs and expenses (including attorneys' fees at all
tribunal levels)
arising in connection with any such claim or claims as described in
(1) through
(iv) above, or any action brought thereon.
If
such action is brought against Landlord, Tenant upon notice
from
Landlord shall defend the same through counsel selected by Tenant's
insurer, or
other counsel acceptable to Landlord. Tenant assumes all risk of
damage or loss
to its property or injury or death to
persons in, on, or about the Premises, from all causes except
those
resulting from any act of gross negligence by Landlord, or for
which the law
imposes liability on Landlord regardless of any attempted waiver
thereof, and
Tenant hereby waives such claims in respect thereof against
Landlord. The
provisions of this paragraph shall survive the termination of this
Lease.
Landlord shall keep the Building, including the improvements,
insured
against damage and destruction by perils insured by the equivalent
of ISO
Special Form Property Insurance in the amount of the full
replacement value of
the Building.
Each
party shall keep its personal property and trade fixtures in
the
Premises and Building insured with the equivalent of ISO Special
Form Property
Insurance in the amount of the full replacement cost of the
property and
fixtures. Tenant shall also keep any non-standard improvements made
to the
Premises at Tenant's request insured to the same degree as Tenant's
personal
property.
Tenant's insurance policies required by this Lease shall: (I) be
issued by
insurance companies licensed to do business in the state in which
the Premises
are located with a general policyholder's ratings of at least A-
and a financial
rating of at least VI in the most current Best's
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Insurance Reports available on the Commencement Date, or if the
Best's ratings
are changed or discontinued, the parties shall agree to a
comparable method of
rating insurance companies; (ii) name the non-procuring party as an
additional
insured as its interest may appear [other landlords or tenants may
be added as
additional insureds in a blanket policy]; (iii) provide that the
insurance not
be canceled, non-renewed or coverage materially reduced unless
thirty (30) days
advance notice is given to the non-procuring party; (iv) be primary
policies;
(v) provide that any loss shall be payable notwithstanding any
gross negligence
of Landlord or Tenant which might result in a forfeiture thereunder
of such
insurance or the amount of proceeds payable; (vi) have no
deductible exceeding
TEN THOUSAND DOLLARS ($10,000), unless accepted in writing by
Landlord; and
(vii) be maintained during the entire Term and any extension
terms.
10.
SUBORDINATION-ATTORNMENT-LANDLORD FINANCING. Tenant agrees that
this
Lease will be either subordinate or superior to any mortgage
heretofore or
hereafter executed by Landlord covering the Premises, depending on
the
requirements of such mortgagee. Tenant, within ten (10) days after
request to do
so from Landlord or its mortgagee, will execute such agreement
making this Lease
superior or subordinate and containing such other agreements and
covenants on
Tenant's part as Landlord's mortgagee may request, and will agree
to attorn to
said mortgagee provided the mortgagee agrees not to disturb
Tenant's possession
hereunder so long as Tenant is in compliance with this Lease.
Further, Tenant
and Landlord, respectively, agree to execute within five (5) days
after request
therefor, and as often as requested, estoppel certificates
confirming any
factual matter requested therein which is true and is within
Tenant's or
Landlord's knowledge regarding this Lease, the Premises, or
Tenant's use
thereof, including, but not limited to date of occupancy,
Expiration Date, the
amount of Rent due and date to which Rent is paid, whether or not
Tenant has any
defense or offsets to the enforcement of this Lease or the Rent
payable
hereunder or knowledge of any default or breach by Landlord, and
that this Lease
together with any modifications or amendments is in full force and
effect.
Tenant and Landlord shall attach to such estoppel certificate
copies of all
modifications or amendments.
Tenant agrees to give any mortgagee of Landlord which has provided
a
non-disturbance agreement to Tenant, notice of, and a reasonable
opportunity
(which shall in no event be less than thirty (30) days after
written notice
thereof is delivered to mortgagee as herein provided) to cure, any
Landlord
default hereunder; and Tenant agrees to accept such cure if
effected by such
mortgagee. No termination of this Lease by Tenant shall be
effective until such
notice has been given and the curd period has expired without the
default having
been cured. Further, Tenant agrees to permit such mortgagee (or
other purchaser
at any foreclosure sale), and its successors and assigns, on
acquiring
Landlord's interest in the Premises and the Lease, to become
substitute Landlord
hereunder, with liability only for such Landlord obligations as
accrue after
Landlord's interest is so acquired. Tenant agrees to attorn to any
successor
Landlord.
11.
SIGNS. Tenant may not erect, install or display any sign or
advertising
material upon the Building exterior, the exterior of the Premises
(including any
exterior doors), or the exterior walls thereof, or in any window
therein,
without the prior written consent of Landlord which shall not be
unreasonably
withheld. Tenant shall have the right to such building standard
signage which
cost shall be deducted from Tenant's Allowance (as hereinafter
defined in
Exhibit A-1).
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12.
ACCESS TO PREMISES. Landlord shall have the right, at all
reasonable
times and with prior notice to Tenant (except in the case of an
emergency),
either itself or through its authorized agents, to enter the
Premises (i) to
make repairs, alterations or changes as Landlord deems necessary,
(ii) to
inspect the Premises, and (iii) to show the Premises to prospective
mortgagees
and purchasers. Landlord shall have the right, either itself or
through its
authorized agents, to enter the Premises at all reasonable times
for inspection
to show prospective tenants if within one hundred eighty (180) days
prior to the
Expiration Date as extended by any exercised option. Tenant, its
agents,
employees, invitees, and guests, shall have the right of ingress
and egress to
common and public areas of the Building, provided Landlord by
reasonable
regulation may control such access for the comfort, convenience,
safety and
protection of all tenants in the Building, or as needed for making
repairs and
alterations. Tenant shall be responsible for providing access to
the Premises to
its agents, employees, invitees and guests after hours, but in no
event shall
Tenant's use of and access to the Premises after hours compromise
the security
of the Building. Landlord shall have the right to enter the
Premises at any
time, with or without notice to Tenant, in the event of an
emergency. Upon any
event of entry to the Premises, Landlord shall use all reasonable
efforts not to
disrupt or interfere with Tenant's ability to conduct its normal
business
operations.
13.
DEFAULT. If Tenant: (i) fails to pay when due any Rent, or any
other
sum of money which Tenant is obligated to pay, as provided in this
Lease; or
(ii) breaches any other agreement, covenant or obligation herein
set forth and
such breach shall continue and not be remedied within fifteen (15)
days after
Landlord shall have given Tenant written notice specifying the
breach, or if
such breach cannot, with due diligence, be cured within said period
of fifteen
(15) days and Tenant does not within said fifteen (15) day period
commence and
thereafter with reasonable diligence completely cure the breach
within thirty
(30) days after notice; or (iii) files (or has filed against it and
not stayed
or vacated within sixty (60) days after filing) any petition or
action for
relief under any creditor's law (including bankruptcy,
reorganization, or
similar action), either in state or federal court; or (iv) makes
any transfer in
fraud of creditors as defined in Section 548 of the United States
Bankruptcy
Code (11 U.S.C. 548, as amended, or replaced), has a receiver
appointed for its
assets (and appointment shall not have been stayed or vacated
within thirty (30)
days), or makes an assignment for benefit of creditors; then Tenant
shall be in
default hereunder, and, in addition to any other lawful right or
remedy which it
may have, Landlord at its option may do the following: (i)
terminate this Lease;
(ii) repossess the Premises, and with or without terminating, relet
the same at
such amount as Landlord deems reasonable; and if the amount for
which the
Premises is relet is less than Tenant's Rent and all other
obligations of Tenant
to Landlord hereunder, then Tenant shall immediately pay the
difference on
demand to Landlord, but if in excess of Tenant's Rent, and all
other obligations
of Tenant hereunder, the entire amount obtained from such reletting
shall belong
to Landlord, free of any claim of Tenant thereto; (iii) seize and
hold any
personal property of Tenant located in the Premises and assert
against the same
a lien for monies due Landlord; or (iv) without obtaining any
court
authorization, lock the Premises and deny Tenant access thereto.
All reasonable
expenses of Landlord in repairing, restoring, or altering the
Premises for
reletting as general office space, together with leasing fees and
all other
expenses in seeking and obtaining a new Tenant, shall be charged to
and be 'a
liability of Tenant. Landlord's reasonable attorneys' fees in
pursuing any of
the foregoing remedies, or in collecting any Rent due by Tenant
hereunder, shall
be paid by Tenant.
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All
rights and remedies of Landlord are cumulative, and the exercise of
any
one shall not be an election excluding Landlord at any other time
from exercise
of a different or inconsistent remedy. No
