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Proc-Type: 2001,MIC-CLEAR
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<SEC-DOCUMENT>0001005477-01-003860.txt : 20010702
<SEC-HEADER>0001005477-01-003860.hdr.sgml : 20010702
ACCESSION NUMBER: 0001005477-01-003860
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 6
CONFORMED PERIOD OF REPORT: 20010331
FILED AS OF DATE: 20010629
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: QUALITY SYSTEMS INC
CENTRAL INDEX KEY: 0000708818
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373]
IRS NUMBER: 952888568
STATE OF INCORPORATION: CA
FISCAL YEAR END: 0331
FILING VALUES:
FORM TYPE: 10-K
SEC ACT:
SEC FILE NUMBER: 001-12537
FILM NUMBER: 1671898
BUSINESS ADDRESS:
STREET 1: 17822 E 17TH ST STE 210
CITY: TUSTIN
STATE: CA
ZIP: 92780
BUSINESS PHONE: 7147317171
MAIL ADDRESS:
STREET 1: 178222 E 17TH STREET
STREET 2: SUITE 210
CITY: TUSTIN
STATE: CA
ZIP: 92780
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>0001.txt
<DESCRIPTION>ANNUAL REPORT
<TEXT>
================================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended March 31, 2001
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
Commission file number 0-13801
QUALITY SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
California 95-2888568
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
17822 East 17th Street, Tustin, California 92780
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (714) 731-7171
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Title of each class Name of each exchange on which registered:
Common Stock, par value $.01 per share NA
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding twelve months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past ninety days. Yes |X| No |_|
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. |_|
State the aggregate market value of the voting stock held by non-affiliates of
the Registrant as of May 31, 2001: $35,746,654.*
Indicate the number of shares outstanding of each of the Registrant's classes of
Common Stock as of May 31, 2001: 5,988,503.
DOCUMENTS INCORPORATED BY REFERENCE
The information required by Part III of the Form 10-K is incorporated by
reference from Registrant's Definitive Proxy Statement for its 2001 annual
meeting which is to be filed with the Commission on or before July 29, 2001.
* For purposes of this report, in addition to those shareholders which fall
within the definition of "affiliates" under Rule 405 of the Securities Act of
1933, as amended, holders of ten percent or more of the Registrant's Common
Stock are deemed to be affiliates.
================================================================================
<PAGE>
PART I
Item 1. Business
Except for the historical information contained herein, the matters discussed in
this Annual Report on Form 10-K, including discussions of the Registrant's
product development plans, business strategies and market factors influencing
the Registrant's results, are forward-looking statements that involve certain
risks and uncertainties. Actual results may differ from those anticipated by the
Registrant as a result of various factors, both foreseen and unforeseen,
including, but not limited to, the Registrant's ability to continue to develop
new products and increase systems sales in markets characterized by rapid
technological evolution, consolidation within the Registrant's target
marketplace and among the Registrant's competitors, and competition from larger,
better capitalized competitors. Many other economic, competitive, governmental
and technological factors could impact the Registrant's ability to achieve its
goals. Interested persons are urged to review the risks described under "Item 1.
Business. Risk Factors" and in "Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations" as well as in the Registrant's
other public disclosures and filings with the Securities and Exchange
Commission.
Company Overview
Quality Systems, Inc. ("QSI") and its wholly-owned subsidiary, Clinitec
International, Inc. ("Clinitec") d/b/a MicroMed Healthcare Information Systems,
Inc. ("MicroMed"), (collectively, the "Company") develop and market healthcare
information systems that automate medical and dental group practices, physician
hospital organizations ("PHOs"), management service organizations ("MSOs"),
ambulatory care centers, community health centers, and medical and dental
schools. In response to the growing need for more comprehensive, cost-effective
information solutions for physician and dental practices, the Company's systems
enable clients to redesign office workflow processes, improve productivity,
reduce information processing and administrative costs, and utilize electronic
medical records to store and access patient information. The Company's
proprietary software systems cover a number of important practice elements
including but not limited to general patient information, electronic medical
records, appointment scheduling, billing, insurance claims submission and
processing, eligibility verification, managed care plan implementation, referral
management, treatment outcome studies, treatment planning, drug formularies,
dental charting, and letter generation. Several of the Company's software
systems may be operated remotely using thin client connectivity or a standard
web browser. In addition to providing fully integrated software solutions to its
clients, the Company offers comprehensive hardware and software installation
services, maintenance and support services, and system training services.
The Company currently has a base of approximately 700 clients, with each
client including between one and 500 physicians or dentists. The Company
believes that as healthcare providers are increasingly required to reduce costs
and maintain the quality of healthcare, the Company will be able to capitalize
on its strategy of providing fully integrated information systems and superior
client service.
QSI, a California corporation formed in 1974, was founded with an early
focus on providing information systems and services for dental group practices.
In the mid-1980's, QSI capitalized on the increasing focus on medical cost
containment and further expanded its information processing systems to serve the
medical market. Today, the Company has dedicated products serving both the
medical and dental markets.
The Company's QSI Division develops and markets dental practice management
and medical practice management software suites utilizing a UNIX(1) operating
system. Its Clinical Product Suite ("CPS") utilizes a Windows NT(2) operating
system and can be fully integrated with the Company's dental practice
- ----------
(1) UNIX is a registered trademark of AT&T Corporation.
(2) Microsoft Windows, Windows NT, Windows 95, Windows 98, and Windows 2000 are
registered trademarks of Microsoft Corporation.
2
<PAGE>
management applications. CPS incorporates a wide range of clinical tools
including but not limited to periodontal charting and digital imaging of X-ray
and inter-oral camera images as part of a complete electronic patient record. In
addition, the QSI Division develops and markets the Company's QUIC product suite
which incorporates a variety of products that enhance the connectivity between
provider and payor, and provider and patient. The QSINet Application Services
Provider ("ASP")/Internet product offering is also developed and marketed in
this division. QSINet enables providers to extend patient appointment
scheduling, electronic bill payment, and other functions to patients via the
Internet.
QSI's MicroMed Division develops and sells proprietary electronic medical
records software and practice management systems under the NextGen(R)(3) product
name. Major product categories of the NextGen suite include Electronic Medical
Records (NextGen(emr)), Enterprise Practice Management (NextGen(epm)),
Enterprise Appointment Scheduling (NextGen(eas)), Enterprise Master Patient
Index (NextGen(epi)), Managed Care, Electronic Data Interchange, System
Interfaces, Internet Operability (NextGen(web)), and a Patient-centric and
Provider-centric Web Portal Solution (NextMD.com(4)). The Company's enterprise
practice management and electronic medical records software packages can run via
private intranet or via the Internet in an ASP environment.
Enhancements to these products continued during fiscal 2001.
For the purposes of Statement of Accounting Standards ("SFAS") No. 131
"Disclosures About Segments of an Enterprise and Related Information" we have
provided a breakdown of our business utilizing the management approach in the
Notes to Consolidated Financial Statements No. 11 "Operating Segment
Information."
Industry Background
To compete in the continually changing healthcare environment, providers
are increasingly using technology to help maximize the efficiency of their
business practices and to assist in enhancing patient care.
As the managed care environment continues to expand, more healthcare
providers enter into contracts, often with multiple entities, which define the
terms under which care is administered. The expansion in the number of managed
care and third party payor organizations, as well as additional government
regulation and changes in reimbursement models, has greatly increased the
complexity of pricing, billing, reimbursement, and records management for
medical and dental practices. To operate effectively, healthcare provider
organizations must efficiently manage patient care and other information and
workflow processes which increasingly extend across multiple locations and
business entities.
In response, healthcare provider organizations have placed increasing
demands on their information systems. Initially, these information systems
automated financial and administrative functions. As it became necessary to
manage patient flow processes, the need arose to integrate "back-office" data
with such clinical information as patient test results and office visits.
Particularly for larger organizations and group practices, the Company believes
information systems must facilitate enterprise-wide management of patient
information incorporating administrative, financial and clinical information
from multiple entities. In addition, large healthcare organizations increasingly
require information systems that can deliver high performance in environments
with multiple concurrent computer users.
Many existing healthcare information systems were designed for limited
administrative tasks such as billing and scheduling and can neither accommodate
multiple computing environments nor operate effectively across multiple
locations and entities. The Company believes as the healthcare industry
continues to evolve, healthcare organizations will increasingly require systems
that compile structured clinical information from multiple sources and enable
measurement of treatment outcomes and management of clinical processes. Further,
the Company believes that systems which integrate this patient clinical data
with administrative, financial and other practice management data to maintain
patient
- ----------
(3) NextGen is a registered trademark of MicroMed Healthcare Information
Systems, Inc.
(4) NextMD.com is a trademark of MicroMed Healthcare Information Systems, Inc.
3
<PAGE>
flow while contributing to reduced costs and improved quality of care are best
positioned to succeed in the evolving managed care environment. As healthcare
organizations transition to new computer platforms and newer technologies, the
Company believes such organizations will be migrating toward the implementation
of enterprise-wide, patient-centric computing systems embedded with automated
clinical patient records.
Products
In response to the growing need for more comprehensive, cost-effective
healthcare information solutions for physician and dental practices, the
Company's systems provide its clients with the ability to redesign patient care
and other workflow processes while improving productivity through facilitation
of managed access to patient information. Utilizing the Company's proprietary
software combined with proven third party hardware solutions, the Company's
products enable the integration of a variety of administrative and clinical
information operations. Leveraging more than 20 years of experience in the
healthcare information services industry, the Company believes that it continues
to distinguish its solutions by providing its clients with sophisticated,
full-featured software systems along with comprehensive systems implementation,
maintenance and support.
Practice Management Systems. The Company's products consist primarily of
proprietary healthcare software applications together with third party hardware
and other non-industry specific software. The systems range in capacity from one
to hundreds of users, allowing the Company to address the needs of both small
and large organizations. The systems are modular in design and may be expanded
to grow with changing client requirements.
The Company's character-based practice management system is available in
both dental and medical versions and primarily uses the IBM RS6000(5) central
processing unit and IBM'S AIX(6) version of the UNIX operating system as a
platform for its application software enabling a wide range of flexible and
functional systems. The hardware components, as well as the requisite operating
system licenses, are purchased from manufacturers or distributors of those
components. QSI assembles and tests the hardware components and incorporates its
software and other third party packages into completed systems tailored to
accommodate particular client requirements. The Company continually evaluates
the hardware components of its systems with a view toward utilizing hardware
that is functional, reliable and cost-effective.
NextGen(epm) expands the Company's practice management system product
line. NextGen(epm) has been developed using a graphical user interface ("GUI")
client-server platform for compatibility with Windows 95, Windows 98, Windows
2000, and Windows NT operating systems and a relational database that is ANSI
SQL-compliant. NextGen(epm) is scalable and includes a master patient index,
enterprise-wide appointment scheduling with referral tracking, clinical support,
and centralized or decentralized patient financial management based on either a
managed care or fee-for-service model. The system's three-tiered architecture
allows work to be performed on the database server, the application server and
the client workstation.
To date, the Company generally has made hardware recommendations for
NextGen(epm) to its clients based upon information provided by each client.
Clients are responsible for the selection, installation, and integration of the
hardware purchased from third party suppliers other than the Company.
The Company also offers practice management solutions for both dental and
medical practices through the Internet. These products are marketed under the
QSINet and NextGen(web) trade names, respectively.
Clinical Systems. The Company's dental charting software system, the
Clinical Product Suite (CPS), is a comprehensive solution designed specifically
for the dental group practice environment. CPS integrates the dental practice
management product with a computer-based clinical information system that
incorporates a wide range of clinical tools, including:
- ----------
(5) RS6000 is a registered trademark of International Business Machines
Corporation.
(6) AIX is a registered trademark of International Business Machines
Corporation.
4
<PAGE>
o Electronic charting of dental procedures, treatment plans and
existing conditions;
o Periodontal charting via light-pen, voice-activation, or keyboard
entry for full periodontal examinations and PSR scoring;
o Digital imaging of X-ray and intra-oral camera images;
o Computer-based patient education modules, viewable chair-side to
enhance case presentation;
o Full access to patient information, treatment plans, and insurance
plans via a fully integrated interface with the Company's dental
practice management product; and
o Document and image scanning for digital storage and linkage to the
electronic patient record.
The result is a comprehensive clinical information management system that
helps practices save time, reduce costs, improve case presentation, and enhance
the delivery of dental services and quality of care. Clinical information is
managed and maintained electronically thus forming an electronic patient record
that allows for the implementation of the "chartless" office.
CPS incorporates Windows-based client-server technology consisting of one
or more file servers together with any combination of one or more desktop,
laptop, or pen-based PC workstations. The file server(s) used in connection with
CPS utilize(s) a Windows NT operating system and the hardware is typically a
Pentium(7)-based single or multi-processor platform. Based on the server
configuration chosen, CPS is scalable from one to hundreds of workstations. A
typical configuration may also include redundant disk storage, magnetic tape
units, intra- and extra-oral cameras, digital X-ray components, digital
scanners, conventional and flat screen displays, and printers. The hardware
components, including the requisite operating system licenses, are purchased
from third party manufacturers or distributors either directly by the customer
or by the Company for resale to the customer.
MicroMed provides software applications that are complementary to, and
interface with, the Company's medical practice management offerings as well as
many of the other leading practice management software systems on the market.
The applications incorporated into the Company's practice management solutions
and others such as scheduling, eligibility, billing and claims processing are
augmented by clinical information captured by NextGen(emr), including services
rendered and diagnoses used for billing purposes. The Company believes that it
currently provides a comprehensive information management solution for the
medical marketplace.
NextGen(emr) was developed with client-server architecture and a GUI
utilizing Microsoft Windows 95, Windows 98, Windows 2000, or Windows NT on each
workstation and either Windows NT, UNIX or Novell(8) on the server. NextGen(emr)
maintains data using an industry standard relational database engine such as
Microsoft SQL Server(9), INFORMIX(10) or Oracle(11). The system is scalable from
one to hundreds of workstations.
NextGen(emr) stores and maintains clinical data including:
o Data captured using user-customized input "templates";
o Scanned or electronically acquired images, including X-rays and
photographs;
o Data electronically acquired through interfaces with clinical
instruments;
o Other records, documents or notes, including electronically captured
handwriting and annotations; and
o Digital voice recordings.
NextGen(emr) also offers a workflow module, prescription management,
automatic document and letter generation, patient education, referral tracking,
interfaces to billing and lab systems, physician alerts and reminders, and
powerful reporting and data analysis tools.
- ----------
(7) Pentium is a registered trademark of Intel Corporation.
(8) Novell is a registered trademark of Novell, Inc.
(9) Microsoft is a registered trademark and SQL Server is a registered trademark
of Microsoft Corporation.
(10) INFORMIX is a registered trademark of Informix Corporation.
(11) Oracle is a registered trademark of Oracle Corporation.
5
<PAGE>
NextGen(emr) is sold either as a combination of software and services, or
as a turnkey system including computer hardware and requisite operating system
software. Computer hardware for turnkey systems is purchased for resale by the
Company from third party manufacturers or distributors.
The Company continued to enhance the NextGen(emr) application in fiscal
2001 to enable NextGen(emr) to be run via private intranet or the Internet in an
ASP environment.
Connectivity Services. The Company makes available electronic data
interchange ("EDI") capabilities and connectivity services to its customers.
These capabilities and services facilitate the sharing of information between
providers and payors as well as providers and patients to increase office
efficiency, reduce processing time, and enhance collection of accounts
receivable. The EDI/connectivity capabilities encompass direct interfaces
between the Company's products and external third party systems, as well as
transaction-based services. Services include:
o Electronic claims submission through the Company's relationships
with a number of national claims clearinghouses;
o Electronic patient statements, appointment reminder cards and calls,
recall cards, patient letters, and other correspondence;
o Electronic insurance eligibility verification; and
o Electronic posting of remittances from insurance carriers into the
accounts receivable application.
Internet Applications. The Company maintains an Internet-based consumer
health portal, NextMD.com. NextMD.com is a vertical portal for the healthcare
industry, linking patients with their physicians, insurers, laboratories, and
online pharmacies, while providing a centralized source of health-oriented
information for both consumers and medical professionals. Patients whose
physicians are linked to the portal are able to request appointments, send
appointment changes or cancellations, receive test results on-line, request
prescription refills, view and/or pay their statements, and communicate with
their physicians, all in a secure, on-line environment. The Company's NextGen
suite of information systems are or will be linked to NextMD.com, integrating a
number of these features with physicians' existing systems.
The Company also provides a web-based application called QSINet which
allows clients to securely access information from their practice management
system via the Internet. This application also enables providers to offer their
patients convenient services such as on-line appointment scheduling and
electronic bill payment through the client's website, and posts this data
directly to the client's existing practice management system.
Sales and Marketing
The Company sells and markets its products nationwide through a direct
sales force. Sales staff typically make presentations to potential clients by
demonstrating the system and its capabilities on the prospective client's
premises. The Company's sales and marketing employees identify prospective
clients through a variety of means, including referrals from existing clients,
contacts at professional society meetings and seminars, trade journal
advertising, direct mail advertising, and telemarketing.
The Company's sales cycle can vary significantly and typically ranges from
three to twelve months from initial contact to contract execution. Systems are
normally delivered to a customer within sixty days of receipt of a system order,
and therefore, the Company does not believe data pertaining to backlog is
meaningful. As part of the fees paid by its clients, the Company receives
up-front licensing fees and a monthly or quarterly service fee based on system
configuration.
Several clients have purchased the Company's practice management system
and, in turn, are providing either time-share or billing services to single and
group practice practitioners. Under the time-share or billing service
agreements, the client provides the use of its system for a fee to one or more
practitioners. Although the Company does not receive a fee directly from the
distributor's customers, implementation of such arrangements has resulted in the
purchase of additional system capacity by the distributor, as well as new system
purchases made by the distributor's customers should such customers decide to
perform the practice management functions in-house.
6
<PAGE>
The Company continues to concentrate its sales and marketing efforts on
medical and dental practices, professional schools, physician clinics, MSOs,
PHOs, ambulatory care settings and community health centers.
MSOs and PHOs to which the Company has sold systems provide use of the
Company's software to those group and single physician practices associated with
the organization or hospital on either a service basis or by directing the
Company to contract with those practices for the sale of stand-alone systems.
The Company has also entered into marketing assistance agreements with
certain of its clients pursuant to which the clients allow the Company to
demonstrate to potential clients the use of systems on the existing clients'
premises. In addition, the Company has established a network of resellers for
its systems. Through these arrangements the reseller markets and sells the
Company's products and services to prospects in a defined market area or
segment. These prospects are generally smaller healthcare facilities than those
actively pursued by the Company. Resellers are compensated through a variety of
contractual arrangements.
The Company from time to time assists prospective clients in identifying
third party sources for financing the purchase of the Company's systems. The
financing is typically obtained by the client directly from institutional
lenders and typically takes the form of a loan from the institution secured by
the system to be purchased or a leasing arrangement.
The Company has numerous clients and does not believe that the loss of any
single client would have a material adverse effect on the Company. No client
accounted for ten percent or more of net revenues during fiscal years ended
March 31, 2001, 2000 or 1999.
Customer Service and Support
The Company believes its success is attributable in part to its customer
service and support departments. The Company offers support to its clients seven
days a week, 24 hours a day. Because most of the Company's installed systems
have a dedicated computer port for dial-up remote access facilitating rapid
response by technicians to system inquiries, most inquiries can be resolved
without the need to dispatch technicians to the client location. These support
services also provide the Company with the opportunity to monitor changes in
each client's information processing requirements and to recommend the purchase
of system hardware or software enhancements designed to satisfy these additional
requirements.
The Company's client support staff is comprised of specialists who are
knowledgeable in the areas of hardware and software technology as well as in the
day-to-day operations of a group practice. System support activities range from
correcting minor procedural problems in the client's system to performing
complex database reconstructions or software updates. The Company's QSI Division
also utilizes an automated online support system which assists clients in
resolving minor problems and facilitates automated electronic retrieval of
problems and symptoms following a client's call to the automated support system.
Additionally, this online support system maintains a complete call record at
both the client's facility and the Company.
The Company offers its clients support services for most system
components, including hardware and software maintenance, for a fixed monthly or
quarterly fee. The Company also subcontracts, in certain instances, with third
party vendors to perform specific hardware maintenance tasks under the Company's
direction.
Implementation and Training
The Company offers full service implementation and training services and
believes that its system delivery, implementation and support services are key
elements of successful client relationships. When a client signs a contract for
the purchase of a system, a client manager/implementation specialist trained in
medical and/or dental group practice procedures is assigned to oversee the
installation of the system and the training of appropriate practice staff.
7
<PAGE>
Before activation of the client's system, Company personnel typically
convert, or assist in conversion of, the relevant client data onto the system.
Data is typically converted electronically from the preceding computer system
enabling a quick, cost-effective and accurate conversion. The system is then
subjected to extensive testing which includes processing representative data
using the client's system configuration.
Training may include a combination of computer assisted instruction
("CAI") for certain of the Company's products, remote training techniques and
training classes conducted by Company staff at the client's office(s). CAI
consists of workbooks, computer interaction and self-paced instruction. CAI is
also offered to clients, for an additional charge, after the initial training
program is completed for the purpose of training new and additional employees.
Remote training allows a trainer at the Company office to train one or more
people at a client site via telephone and computer connection, thus allowing an
interactive and client-specific mode of training without the expense and time
required for travel. In addition, the Company's on-line "help" documentation
feature facilitates client training as well as ongoing support.
Competition
The markets for healthcare information systems are intensely competitive.
The industry is highly fragmented and includes numerous competitors, none of
which the Company believes dominates these markets. The electronic medical
records and connectivity markets, in particular, are subject to rapid changes in
technology, and the Company expects that competition in these market segments
will increase as new competitors enter. The Company believes its principal
competitive advantages are the features and capabilities of its products and
services, its high level of customer support, and its extensive experience in
the industry.
Product Enhancement and Development
The healthcare information management and computer software and hardware
industries are characterized by rapid technological change requiring the Company
to engage in continuing investments to update, enhance, and improve its systems.
During fiscal years 2001, 2000, and 1999, the Company expended approximately
$5.1 million, $4.9 million and $4.8 million, respectively, on research and
development activities including capitalized software amounts of $1.1 million,
$1.1 million and $1.2 million, respectively. In addition, many of the Company's
product enhancements have resulted from software development work performed
under contracts with its clients.
Employees
As of May 31, 2001, the Company employed 227 persons of which 223 were
full-time employees. The Company believes that its future success depends in
part upon recruiting and retaining qualified sales, marketing and technical
personnel as well as other employees.
Risk Factors
Competition. The markets for healthcare information systems are intensely
competitive, and the Company faces significant competition from a number of
different sources. Several of the Company's competitors have significantly
greater name recognition as well as substantially greater financial, technical,
product development and marketing resources than the Company.
The Company competes in all of its markets with other major healthcare
related companies, information management companies, systems integrators, and
other software developers. Competitive pressures and other factors, such as new
product introductions by the Company or its competitors, may result in price or
market share erosion that could have a material adverse effect on the Company's
business, results of operations and financial condition. Also, there can be no
assurance that the Company's applications will achieve broad market acceptance
or will successfully compete with other competing software products.
8
<PAGE>
The Company's inability to make initial sales of its systems to either
newly formed groups and/or healthcare providers that are replacing or
substantially modifying their healthcare information systems could have a
material adverse effect on the Company's business, results of operations and
financial condition. If new systems sales do not materialize, the Company's
maintenance revenues can be expected to decrease over time due to the combined
effects of potential attrition of existing clients and a shortfall in new client
additions.
Fluctuation in Quarterly Operating Results. The Company's revenues and
operating results have fluctuated in the past, and may fluctuate in the future
from quarter to quarter and period to period, as a result of a number of factors
including, without limitation: the size and timing of orders from clients; the
length of sales cycles and installation processes; the ability of the Company's
clients to obtain financing for the purchase of the Company's products; changes
in pricing policies or price reductions by the Company or its competitors; the
timing of new product announcements and product introductions by the Company or
its competitors; the availability and cost of system components; the financial
stability of major clients; market acceptance of new products, applications and
product enhancements; the Company's ability to develop, introduce and market new
products, applications and product enhancements and to control costs; the
Company's success in expanding its sales and marketing programs; deferrals of
client orders in anticipation of new products, applications or product
enhancements; changes in Company strategy; personnel changes; and general
economic factors.
The Company's products are generally shipped as orders are received and
accordingly, the Company has historically operated with minimal backlog. As a
result, sales in any quarter are dependent on orders booked and shipped in that
quarter and are not predictable with any degree of certainty. Furthermore, the
Company's systems can be relatively large and expensive and individual systems
sales can represent a significant portion of the Company's revenues for a
quarter such that the loss or deferral of even one such sale can have a
significant adverse impact on the Company's quarterly profitability.
Clients often defer systems purchases until the Company's quarter end, so
quarterly results generally cannot be predicted and frequently are not known
until the quarter has concluded.
The Company's sales are dependent upon client's initial decision to
replace, or substantially modify its existing information system, and
subsequently a decision as to which products and services to purchase. These are
major decisions for healthcare providers, and accordingly, the sales cycle for
the Company's systems can vary significantly and typically ranges from three to
twelve months from initial contact to contract execution/shipment.
Because a significant percentage of the Company's expenses are relatively
fixed, a variation in the timing of systems sales and installations can cause
significant variations in operating results from quarter to quarter. As a
result, the Company believes that interim period-to-period comparisons of its
results of operations are not necessarily meaningful and should not be relied
upon as indications of future performance. Further, the Company's historical
operating results are not necessarily indicative of future performance for any
particular period.
The Company recognizes revenue pursuant to Statement of Position ("SOP")
No. 97-2, "Software Revenue Recognition" ("SOP 97-2"). Additionally, in December
1999, the Securities and Exchange Commission ("SEC") issued Staff Accounting
Bulletin ("SAB") No. 101, "Revenue Recognition in Financial Statements" ("SAB
101"). SAB 101 summarizes the staff's views in applying generally accepted
accounting principles to revenue recognition in financial statements. SAB 101
became effective for the Company in the third quarter of fiscal 2001.
There can be no assurance that application and subsequent interpretations
of these pronouncements will not further modify the Company's revenue
recognition policies, or that such modifications would not have a material
adverse effect on the operating results reported in any particular quarter.
There can be no assurance that the Company will not be required to adopt
changes in its licensing or services practices to conform to SOP 97-2 or SAB
101, or that such changes, if adopted, would not result in delays or
cancellations of potential sales of the Company's products.
9
<PAGE>
Due to all of the foregoing factors, it is possible that in some future
quarter(s) the Company's operating results may be below the expectations of
public market analysts and investors. In such event, the price of the Company's
Common Stock would likely be materially adversely affected.
Dependence on Principal Product and New Product Development. The Company
currently derives substantially all of its net revenues from sales of its
healthcare information systems and related services. The Company believes that a
primary factor in the market acceptance of its systems has been its ability to
meet the needs of users of healthcare information systems. The Company's future
financial performance will depend in large part on the Company's ability to
continue to meet the increasingly sophisticated needs of its clients through the
timely development, successful introduction and implementation of new and
enhanced versions of its systems and other complementary products. The Company
has historically expended a significant percentage of its net revenues on
product development and believes that significant continuing product development
efforts will be required to sustain the Company's growth.
There can be no assurance that the Company will be successful in its
product development efforts, that the market will continue to accept the
Company's existing products, or that new products or product enhancements will
be developed and implemented in a timely manner, meet the requirements of
healthcare providers, or achieve market acceptance. If new products or product
enhancements do not achieve market acceptance, the Company's business, results
of operations and financial condition could be materially adversely affected. At
certain times in the past, the Company has also experienced delays in purchases
of its products by clients anticipating the launch of new products by the
Company. There can be no assurance that material order deferrals in anticipation
of new product introductions will not occur.
Technological Change. The software market generally is characterized by
rapid technological change, changing customer needs, frequent new product
introductions, and evolving industry standards. The introduction of products
incorporating new technologies and the emergence of new industry standards could
render the Company's existing products obsolete and unmarketable. There can be
no assurance that the Company will be successful in developing and marketing new
products that respond to technological changes or evolving industry standards.
New product development depends upon significant research and development
expenditures which depend ultimately upon sales growth. Any material weakness in
revenues or research funding could impair the Company's ability to respond to
technological advances in the marketplace and to remain competitive. If the
Company is unable, for technological or other reasons, to develop and introduce
new products in a timely manner in response to changing market conditions or
customer requirements, the Company's business, results of operations and
financial condition may be materially adversely affected.
In response to increasing market demand, the Company is currently
developing new generations of certain of its software products. There can be no
assurance that the Company will successfully develop these new software products
or that these products will operate successfully, or that any such development,
even if successful, will be completed concurrently with or prior to introduction
of competing products. Any such failure or delay could adversely affect the
Company's competitive position or could make the Company's current products
obsolete.
Litigation. The Company faces one Federal securities action (see "Item 3.
Legal Proceedings."). At this time it is not reasonably possible to estimate the
damage, or the range of damages, if any, that the Company might incur in
connection with this action. However, the uncertainty associated with
substantial unresolved litigation may have an adverse impact on the Company's
business. In particular, such litigation could impair the Company's
relationships with existing customers and its ability to obtain new customers.
Defending such litigation may result in a diversion of management's time and
attention away from business operations, which could have a material adverse
effect on the Company's business, results of operations and financial condition.
Such litigation may also have the effect of discouraging potential acquirers
from bidding for the Company or reducing the consideration such acquirers would
otherwise be willing to pay in connection with an acquisition.
There can be no assurance that such litigation will not result in
liability in excess of its insurance coverage, that the Company's insurance will
cover such claims or that appropriate insurance will continue to be available to
the Company in the future at commercially reasonable rates.
10
<PAGE>
Proprietary Technology. The Company is heavily dependent on the
maintenance and protection of its intellectual property and relies largely on
license agreements, confidentiality procedures, and employee nondisclosure
agreements to protect its intellectual property. The Company's software is not
patented and existing copyright laws offer only limited practical protection.
There can be no assurance that the legal protections and precautions taken
by the Company will be adequate to prevent misappropriation of the Company's
technology or that competitors will not independently develop technologies
equivalent or superior to the Company's. Further, the laws of some foreign
countries do not protect the Company's proprietary rights to as great an extent
as do the laws of the United States and are often not enforced as vigorously as
those in the United States.
The Company does not believe that its operations or products infringe on
the intellectual property rights of others. However, there can be no assurance
that others will not assert infringement or trade secret claims against the
Company with respect to its current or future products or that any such
assertion will not require the Company to enter into a license agreement or
royalty arrangement with the party asserting the claim. As competing healthcare
information systems increase in complexity and overall capabilities and the
functionality of these systems further overlaps, providers of such systems may
become increasingly subject to infringement claims. Responding to and defending
any such claims may distract the attention of Company management and have a
material adverse effect on the Company's business, results of operations and
financial condition. In addition, claims may be brought against third parties
from which the Company purchases software, and such claims could adversely
affect the Company's ability to access third party software for its systems.
Ability to Manage Growth. The Company has in the past experienced periods
of growth which have placed, and may continue to place, a significant strain on
the Company's resources. The Company also anticipates expanding its overall
software development, marketing, sales, client management and training capacity.
In the event the Company is unable to identify, hire, train and retain qualified
individuals in such capacities within a reasonable timeframe, such failure could
have a material adverse effect on the Company. In addition, the Company's
ability to manage future increases, if any, in the scope of its operations or
personnel will depend on significant expansion of its research and development,
marketing and sales, management, and administrative and financial capabilities.
The failure of the Company's management to effectively manage expansion in its
business could have a material adverse effect on the Company's business, results
of operations and financial condition.
Dependence Upon Key Personnel. The Company's future performance also
depends in significant part upon the continued service of its key technical and
senior management personnel, many of whom have been with the Company for a
significant period of time. The Company does not maintain key man life insurance
on any of its employees. Because the Company has a relatively small number of
employees when compared to other leading companies in the same industry, its
dependence on maintaining its employees is particularly significant. The Company
is also dependent on its ability to attract and retain high quality personnel,
particularly in the areas of sales and applications development.
The industry is characterized by a high level of employee mobility and
aggressive recruiting of skilled personnel. There can be no assurance that the
Company's current employees will continue to work for the Company.
Loss of services of key employees could have a material adverse effect on
the Company's business, results of operations and financial condition.
Furthermore, the Company may need to grant additional stock options to key
employees and provide other forms of incentive compensation to attract and
retain such key personnel.
Product Liability. Certain of the Company's products provide applications
that relate to patient clinical information. Any failure by the Company's
products to provide accurate and timely information could result in claims
against the Company. In addition, a court or government agency may take the
position that the Company's delivery of health information directly, including
through licensed practitioners, or delivery of information by a third party site
that a consumer accesses through the Company's web sites, exposes the Company to
malpractice or other personal injury liability for wrongful
11
<PAGE>
delivery of healthcare services or erroneous health information. The Company
maintains insurance to protect against claims associated with the use of its
products, but there can be no assurance that its insurance coverage would
adequately cover any claim asserted against the Company. A successful claim
brought against the Company in excess of its insurance coverage could have a
material adverse effect on the Company's business, results of operations and
financial condition. Even unsuccessful claims could result in the Company's
expenditure of funds in litigation and management time and resources.
Certain healthcare professionals who use the Company's Internet-based
products will directly enter health information about their patients including
information that constitutes a record under applicable law that the Company will
store on the Company's computer systems. Numerous federal and state laws and
regulations, the common law, and contractual obligations govern collection,
dissemination, use and confidentiality of patient-identifiable health
information, including:
o State privacy and confidentiality laws;
o The Company's contracts with customers and partners;
o State laws regulating healthcare professionals;
o Medicaid laws; and
o The Heath Insurance Portability and Accountability Act of 1996
("HIPAA") and related rules proposed by the Heath Care Financing
Administration; and Health Care Financing Administration standards
for Internet transmission of health data.
The U.S. Congress has been working to finalize proposed legislation that
would establish a new federal standard for protection and use of health
information. Any failure by the Company or by its personnel or partners to
comply with any of these legal or other requirements may result in a material
liability.
Although the Company has systems in place for safeguarding patient health
information from unauthorized disclosure, these systems may not preclude claims
against the Company for violation of applicable law or other requirements. Other
third party sites or links that consumers access through the Company's web sites
also may not maintain systems to safeguard this health information, or may
circumvent systems the Company put in place to protect the information from
disclosure. In addition, future laws or changes in current laws may necessitate
costly adaptations to the Company's systems.
There can be no assurance that the Company will not be subject to product
liability claims, that such claims will not result in liability in excess of its
insurance coverage, that the Company's insurance will cover such claims or that
appropriate insurance will continue to be available to the Company in the future
at commercially reasonable rates. Such claims could have a material adverse
affect on the Company's business, results of operations and financial condition.
Uncertainty in Healthcare Industry; Government Regulation. The healthcare
industry is subject to changing political, economic and regulatory influences
that may affect the procurement processes and operation of healthcare
facilities. During the past several years, the healthcare industry has been
subject to an increase in governmental regulation of, among other things,
reimbursement rates and certain capital expenditures.
In the past, various legislators have announced that they intend to
examine proposals to reform certain aspects of the U.S. healthcare system
including proposals which may increase governmental involvement in healthcare,
lower reimbursement rates and otherwise change the operating environment for the
Company's clients. Healthcare providers may react to these proposals, and the
uncertainty surrounding such proposals, by curtailing or deferring investments,
including those for the Company's systems and related services. Cost-containment
measures instituted by healthcare providers as a result of regulatory reform or
otherwise could result in a reduction in the allocation of capital funds. Such a
reduction could have an adverse effect on the Company's ability to sell its
systems and related services. On the other hand, changes in the regulatory
environment have increased and may continue to increase the needs of healthcare
organizations for cost-effective data management and thereby enhance the overall
market for healthcare management information systems. The Company cannot predict
what impact, if any, such
12
<PAGE>
proposals or healthcare reforms might have on the Company's business, financial
condition and results of operations.
HIPAA mandates the use of national standards for transmissions of certain
patient healthcare information, and prescribes security measures to protect the
confidentiality of such information as well as other patient record privacy and
security provisions within two years after the adoption of final regulations by
the Department of Health and Human Services ("HHS"). These proposed regulations
will establish new federal standards for privacy of health information. The
Company anticipates that these regulations will directly affect the Company's
products and services, but the Company cannot fully predict the impact at this
time. The Company's intention is to modify its products and services as
necessary to facilitate client compliance with the final regulations, but there
can be no assurance that the Company will be able to do so in a timely manner.
Achieving compliance with these regulations could be costly and distract
management's attention and other resources from the Company's historical
business, and any noncompliance by the Company could result in civil and
criminal penalties. In addition, development of related federal and state
regulations and policies on confidentiality of health information could
negatively affect the Company's business.
In addition, the Company's software may be subject to regulation by the
U.S. Food and Drug Administration (the "FDA") as a medical device. Such
regulation could require the registration of the applicable manufacturing
facility and software and hardware products; application of detailed
recordkeeping and manufacturing standards; and FDA approval or clearance prior
to marketing. An approval or clearance requirement could create delays in
marketing, and the FDA could require supplemental filings or object to certain
of these applications, the result of which could have a material adverse effect
on the Company's business, financial condition and results of operations.
Item 2. Properties
The Company's principal administrative, data processing, marketing and
development operations are located in approximately 15,000 square feet of leased
space in Tustin, California, under a lease which expires in March 2002. In
addition, the Company leases approximately 13,000 square feet of space in Santa
Ana, California, to house its assembly and warehouse operations, approximately
15,000 square feet of space in Horsham, Pennsylvania, the principal office for
the Company's MicroMed Division, approximately 8,000 square feet of space in
Atlanta, Georgia, and an aggregate of 4,000 square feet of space in Florida,
Kansas, Minnesota, Texas, Wisconsin, and Washington to house additional sales,
training, development and service operations. These leases, including options,
have expiration dates ranging from month-to-month to February 2006. The Company
believes that its facilities are adequate for its current needs and that
suitable additional or substitute space is available, if needed, at commercially
reasonable rates.
Item 3. Legal Proceedings
On April 22, 1997, a purported class action entitled JOHN P. CAVENY v. QUALITY
SYSTEMS, INC., ET AL. was filed in the Superior Court of the State of California
for the County of Orange, in which Mr. Caveny, on behalf of himself and all
others who purchased the Company's Common Stock between June 26, 1995 and July
3, 1996, alleges that the Company, and Sheldon Razin, Robert J. Beck, Gregory S.
Flynn, Abe C. LaLande, Donn Neufeld, Irma G. Carmona, John A. Bowers, Graeme H.
Frehner, and Gordon L. Setran (all of the foregoing individuals were either
officers, directors or both during the period from June 26, 1995 through July 3,
1996), as well as other defendants not affiliated with the Company, violated
California Corporations Code Sections 25400 and 25500, California Civil Code
Sections 1709 and 1710, and California Business and Professions Code Sections
17200 et. seq., by issuing positive statements about the Company that allegedly
were knowingly false, in part, in order to assist the Company and the individual
defendants in selling Common Stock at an inflated price in the Company's March
5, 1996 public offering and at other points during the class period. The
complaint seeks compensatory and punitive damages in unspecified amounts,
disgorgement, declaratory and injunctive relief, and attorneys' fees.
13
<PAGE>
The Company and the other named defendants successfully demurred to the
plaintiffs' claim under California Civil Code Sections 1709 and 1710, and that
claim, which served as the only basis for plaintiffs' request for punitive
damages, has been dismissed from both actions.
On January 25, 1999, the court denied plaintiffs' motion to certify the
class representative and class legal counsel. Plaintiffs appealed that decision
as to class legal counsel. On February 25, 2000, the Fourth District Court of
Appeals affirmed the order disqualifying the class legal counsel. On May 9,
2000, the Court of Appeals issued its Remittur certifying its decision as final.
In May 2000, plaintiffs associated in additional class legal counsel, and
moved for approval by the court. Upon defendants' objection, the court on August
17, 2000, denied plaintiffs' motion, and ordered plaintiffs to retain new class
counsel.
At the end of November 2000, the plaintiffs retained new class counsel who
substituted in for plaintiffs' previous class counsel. The Company and the other
named defendants did not oppose plaintiffs' motion for approval of the new class
counsel. On January 24, 2001, the court granted the motion to certify class
legal counsel.
On March 27, 2001, the court approved a notice of class certification to
be mailed to shareholders who are potential class members. Between April 9, 2001
and May 9, 2001, class notice was mailed to potential class members.
Merits-related discovery in the action had been stayed pending the
appointment of class counsel. In March 2001, the plaintiffs requested that
documents be produced informally. The defendants have produced documents
informally for plaintiffs' review. The court has entered a stipulated protective
order governing discovery in the action. Counsel for plaintiffs and defendants
intend to meet to discuss the plaintiffs' review of the informal document
production at or around the time that the parties appear in court for the next
status conference on July 30, 2001.
In Management's opinion the outcome of this case is uncertain, and
therefore no accrual has been made to the financial statements.
On May 14, 1997, a second purported class action entitled WENDY WOO v.
QUALITY SYSTEMS, INC., ET AL. was filed in the same court, essentially repeating
the allegations in the Caveny lawsuit and seeking identical relief. This action
has for all purposes been consolidated with the Caveny action.
On March 23, 1999, a purported class action and derivative complaint
entitled IRVING ROSENZWEIG v. SHELDON RAZIN, ET AL. was filed in the Superior
Court of the State of California for the County of Orange, in which Mr.
Rosenzweig, on behalf of himself and all non-director shareholders, and
derivatively on behalf of the Company, alleges that Sheldon Razin, John Bowers,
William Bowers, Patrick Cline, Janet Razin and Gordon Setran (all of the
foregoing individuals were directors of the Company) breached their fiduciary
duties by allegedly entrenching themselves in their positions of control,
failing to ensure that third party offers involving the Company were fully and
fairly considered, and/or failing to conduct a reasonable inquiry to assure the
maximization of shareholder value. The complaint sought declaratory and
injunctive relief, an accounting of monetary damages allegedly suffered by
plaintiff and the purported class, and attorneys' fees. Defendants demurred to
each of the causes of action alleged in the complaint and the court sustained
those demurrers with leave to amend in December 1999. Rather than file an
amended complaint, plaintiff filed a motion for attorney's fees. Defendants, in
turn, filed a motion to dismiss the action for failure to file an amended
pleading within the time limit specified by the court.
The parties agreed to a settlement of action and stipulated to a final
judgment and order which was entered by the court on May 15, 2000, at which time
the action was dismissed. The final judgment and order provided for a dismissal
of the action with prejudice, releases given to each of the defendants, and
payment of the nominal sum of $100,000 (paid by the Company's directors and
officers liability insurance company) in full settlement of plaintiff's motion
for attorney's fees.
The settlement further expressly provided that it did not constitute an
admission of any liability of defendants, which defendants continue to
vigorously deny.
14
<PAGE>
The Company is a party to various other legal proceedings incidental to its
business, none of which are considered by the Company to be material.
Item 4. Submission of Matters to a Vote of Security Holders
No matter was submitted to a vote of security holders during the fourth quarter
of fiscal year 2001.
Executive Officers of the Company
The executive officers of the Company as of May 31, 2001 were as follows:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------
Name Age Position
--------------------------------------------------------------------------------------
<S> <C> <C>
Louis E. Silverman 42 President, Chief Executive Officer
--------------------------------------------------------------------------------------
Patrick B. Cline 40 President, MicroMed Healthcare Information Systems Division
--------------------------------------------------------------------------------------
Greg Flynn 43 Executive Vice President and General Manager of QSI Division
--------------------------------------------------------------------------------------
Paul Holt 35 Chief Financial Officer, Secretary
--------------------------------------------------------------------------------------
</TABLE>
Executive officers of the Company are elected by, and serve at the
discretion of, the Board of Directors. Additional information regarding the
Company's executive officers is set forth below.
Louis E. Silverman was appointed President and Chief Executive Officer of
the company on July 31, 2000. Mr. Silverman was previously Chief Operations
Officer of CorVel Corp., a $200 million publicly traded national managed care
services and technology firm with headquarters in Irvine, California. Mr.
Silverman holds a Master of Business Administration degree from Harvard Graduate
School of Business Administration and a Bachelor of Arts degree from Amherst
College.
Patrick B. Cline currently serves as president of the Company's MicroMed
Healthcare Information Systems Division. He served as the Company's Interim
Chief Executive Officer for the April - July 2000 period. Mr. Cline was a
co-founder of Clinitec and has served as its President since its inception in
January 1994. Prior to co-founding Clinitec, Mr. Cline served, from July 1987 to
January 1994, as Vice President of Sales and Marketing with Script Systems, a
subsidiary of InfoMed, a healthcare information systems company. From January
1994 to May 1994, after the founding of Clinitec, Mr. Cline continued to serve,
on a part time basis, as Script Systems' Vice President of Sales and Marketing.
Mr. Cline has held senior positions in the healthcare information systems
industry since 1981.
Greg Flynn has served as the Company's General Manager since April 2000
and as Executive Vice President since August 1998 after serving as Vice
President of Sales and Marketing from January 1996 to August 1998. Prior to
January 1996, Mr. Flynn served as Vice President Administration since June 1992.
In these capacities, Mr. Flynn has been responsible for numerous functions
related to the ongoing management of the Company and sales. Previously, Mr.
Flynn served as the Company's Vice President Corporate Communications. Since
joining the Company in January 1982, Mr. Flynn has held a variety of
increasingly responsible management positions within the organization. He holds
a B.A. degree in English from the University of California, Santa Barbara.
Paul Holt was appointed Chief Financial Officer in November 2000. Mr. Holt
has served as the Company's Controller from January 2000 to May 2000 and was
appointed interim Chief Financial Officer in May 2000. Prior to joining the
Company, Mr. Holt was the Controller of Sierra Alloys Co., Inc., a titanium
metal manufacturing company from August 1999 to December 1999. From May 1997 to
July 1999, he was Controller of Refrigeration Supplies Distributor, a wholesale
distributor and manufacturer of refrigeration supplies and heating controls.
From March 1995 to April 1997 he was Assistant Controller of Refrigeration
Supplies Distributor. Mr. Holt is a Certified Public Accountant and holds an
M.B.A. from the University of Southern California and a B.A. in Economics from
the University of California, Irvine.
15
<PAGE>
PART II
Item 5. Market for Company's Common Equity and Related Stockholder Matters
The Company's Common Stock is traded on the NASDAQ National Market under the
symbol "QSII". The following table sets forth for the quarters indicated the
high and low sales prices as reported by NASDAQ. The quotations reflect
inter-dealer prices, without retail markup, markdown, or commissions, and may
not necessarily represent actual transactions.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Quarter Ended High Low
----------------------------------------------------------------------------------------------
<S> <C> <C>
June 30, 1999 $ 6.56 $ 3.75
----------------------------------------------------------------------------------------------
September 30, 1999 $ 8.38 $ 5.63
----------------------------------------------------------------------------------------------
December 31, 1999 $ 7.75 $ 5.88
----------------------------------------------------------------------------------------------
March 31, 2000 $ 18.75 $ 6.75
----------------------------------------------------------------------------------------------
June 30, 2000 $ 15.25 $ 6.50
----------------------------------------------------------------------------------------------
September 30, 2000 $ 9.75 $ 6.75
----------------------------------------------------------------------------------------------
December 31, 2000 $ 8.27 $ 6.69
----------------------------------------------------------------------------------------------
March 31, 2001 $ 11.13 $ 7.76
----------------------------------------------------------------------------------------------
</TABLE>
At May 31, 2001, there were approximately 130 holders of record of the
Company's Common Stock. The Company estimates the number of beneficial holders
of its Common Stock to be in excess of 1,300.
Through May 31, 2001, the Company has not paid cash dividends on shares of
its Common Stock. The Company anticipates that for the foreseeable future, all
earnings, if any, will be retained for use in the Company's business and it does
not anticipate paying any cash dividends in the future. Payment of future
dividends, if any, will be at the discretion of the Company's Board of Directors
after taking into account various factors, including the Company's financial
condition, operating results, current and anticipated cash needs and plans for
expansion.
Item 6. Selected Financial Data
The following selected financial data with respect to the Company's Consolidated
Statements of Income Data for each of the five years in the period ended March
31, 2001 and the Consolidated Balance Sheet Data as of the end of each such
fiscal year are derived from the audited financial statements of the Company.
The following information should be read in conjunction with the Consolidated
Financial Statements of the Company and the related notes thereto and "Item 7.
Management's Discussion and Analysis of Financial Condition and Results of
Income." included elsewhere herein.
16
<PAGE>
Consolidated Statements of operations Data
(In thousands, except for per share data)
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------
Year Ended March 31,
2001 2000 1999 1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net Revenues $ 39,936 $ 36,373 $ 33,816 $ 31,216 $ 20,127
Cost of Products and Services 17,283 16,395 15,834 13,509 10,089
-----------------------------------------------------------------------------
Gross Profit 22,653 19,978 17,982 17,707 10,038
Selling, General and Administrative Expenses 13,585 12,645 13,495 12,485 7,736
Research and Development Costs 4,081 3,726 3,603 3,072 1,978
Purchased In-Process Research and Development(1) -- -- -- 10,200 8,300
-----------------------------------------------------------------------------
Income (Loss) from Operations(2) 4,987 3,607 884 (8,050) (7,976)
Investment Income 1,032 759 413 971 1,285
-----------------------------------------------------------------------------
Income (Loss) before Provision for (Benefit from)
Income Taxes(2) 6,019 4,366 1,297 (7,079) (6,691)
Provision for (Benefit from) Income Taxes(3) 2,510 1,862 713 (2,463) 784
-----------------------------------------------------------------------------
Net Income (Loss)(2) $ 3,509 $ 2,504 $ 584 $ (4,616) $ (7,475)
-----------------------------------------------------------------------------
Net Income (Loss) per Share, Basic and Diluted(2) $ 0.57 $ 0.40 $ 0.09 $ (0.77) $ (1.26)
-----------------------------------------------------------------------------
Weighted Average Shares Outstanding, Basic 6,130 6,208 6,176 5,981 5,937
-----------------------------------------------------------------------------
Weighted Average Shares Outstanding, Diluted 6,203 6,261 6,185 5,981 5,937
=============================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In May 1996, the Company acquired Clinitec which was treated as a purchase
transaction for accounting purposes. In connection with this treatment,
the Company incurred an $8.3 million charge for purchased in-process
research and development during the year ended March 31, 1997.
In May 1997, the Company acquired MicroMed which was treated as a purchase
transaction for accounting purposes. In connection with this treatment,
the Company incurred a $10.2 million charge for purchased in-process
research and development during the year ended March 31, 1998.
(2) Includes a charge of $10.2 million and $8.3 million for purchased
in-process research and development for the years ended March 31, 1998 and
1997, respectively. Excluding the charge, on a pro forma basis, income
from operations and income before provision for (benefit from) income
taxes would have been $2.2 million and $3.1 million, respectively, for
fiscal 1998 and $324,000 and $1.6 million, respectively for fiscal 1997.
The income tax benefit related to the charge for purchased in-process
research and development for the years ended March 31, 1998 and 1997 was
$3.9 million and $0, respectively. Excluding the charge and related income
tax benefit, on a pro forma basis, net income and basic and diluted income
per share would have been $1.7 million, $0.29 and $0.28, respectively, for
fiscal 1998 and $825,000, $0.14 and $0.14, respectively, for fiscal 1997.
(3) The provision for income taxes for the year ended March 31, 1997 differs
from the Company's combined Federal and State statutory rates primarily
due to the non-deductible charge for purchased in-process research and
development incurred in connection with the acquisition of Clinitec in May
1996.
Consolidated Balance Sheet Data
(in thousands)
<TABLE>
<CAPTION>
----------------------------------------------------------------------
March 31,
2001 2000 1999 1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Cash and Cash Equivalents and Short-Term Investments $ 18,729 $ 16,169 $ 14,441 $ 17,080 $ 22,735
----------------------------------------------------------------------
Working Capital 24,196 21,332 18,166 15,453 25,613
----------------------------------------------------------------------
Total Assets 44,883 44,136 40,218 40,916 37,866
----------------------------------------------------------------------
Total Liabilities 10,996 12,053 10,554 13,475 5,596
----------------------------------------------------------------------
Shareholders' Equity $ 33,887 $ 32,083 $ 29,664 $ 27,441 $ 32,270
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
17
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Except for the historical information contained herein, the matters discussed in
this Annual Report on Form 10-K, including discussions of the Company's product
development plans, business strategies and market factors influencing the
Company's results, are forward-looking statements that involve certain risks and
uncertainties. Actual results may differ from those anticipated by the Company
as a result of various factors, both foreseen and unforeseen, including, but not
limited to, the Company's ability to continue to develop new products and
increase systems sales in markets characterized by rapid technological
evolution, consolidation, and competition from larger, better capitalized
competitors. Many other economic, competitive, governmental and technological
factors could impact the Company's ability to achieve its goals, and interested
persons are urged to review the risks described in "Item 1. Business. Risk
Factors" and in "Management's Discussion and Analysis of Financial Condition and
Results of Operations" set forth below, as well as in the Company's other public
disclosures and filings with the Securities and Exchange Commission.
The following discussion should be read in conjunction with, and is
qualified in its entirety by, the Consolidated Financial Statements and related
notes thereto included elsewhere herein. Historical results of operations,
percentage margin fluctuations and any trends that may be inferred from the
discussion below are not necessarily indicative of the operating results for any
future period.
Results of Operations
The following table sets forth for the periods indicated the percentage of
net revenues represented by each item in the Company's Consolidated Statements
of Operations.
<TABLE>
<CAPTION>
---------------------------------------------------
Year Ended March 31,
2001 2000 1999
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net Revenues:
Sales of computer systems, upgrades and supplies 49.9% 52.9% 55.8%
Maintenance and other services 50.1 47.1 44.2
---------------------------------------------------
100.0 100.0 100.0
Cost of Products and Services 43.3 45.1 46.8
---------------------------------------------------
Gross Profit 56.7 54.9 53.2
Selling, General and Administrative Expenses 34.0 34.8 39.9
Research and Development Costs 10.2 10.2 10.7
---------------------------------------------------
Income from Operations 12.5 9.9 2.6
Investment Income 2.6 2.1 1.2
---------------------------------------------------
Income before Provision for Income Taxes 15.1 12.0 3.8
Provision for Income Taxes 6.3 5.1 2.1
---------------------------------------------------
Net Income 8.8% 6.9% 1.7%
===================================================
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
For the Years Ended March 31, 2001 and 2000
For the year ended March 31, 2001, the Company's net income was $3,509,000
or $0.57 per share on a basic and diluted basis. In comparison, the Company
earned $2,504,000 or $0.40 per share on a basic and diluted basis in the year
ended March 31, 2000. The increase in net income was achieved through a
combination of an increase in revenue from software systems sales, maintenance,
and other services along with an increase in the gross profit margin associated
with software systems, maintenance and other services. Also, operating expenses
grew at a lesser rate than revenues and gross margin.
Net Revenues. Net revenues for the year ended March 31, 2001 increased
9.8% to $39.9 million from $36.4 million for the year ended March 31, 2000.
Sales of computer systems, upgrades and supplies increased 3.6% to $19.9 million
from $19.2 million while net revenues from maintenance and other service grew
16.8% to $20.0 from $17.1 million during the comparable prior period. The
increase in net revenues from sales of computer systems, upgrades and supplies
was principally due to increased sales of the Company's NextGen(epm) and
NextGen(emr) products, offset by a decrease in sales of new systems in the
18
<PAGE>
Company's QSI Division. The increase in maintenance and other services net
revenue resulted primarily from the Company's increased client base together
with an increase in revenues generated from the Company's EDI services. Revenue
from the Company's EDI services increased 37.2% to $5.2 million for the year
ended March 31, 2001, compared to $3.8 million in the year ended March 31, 2000.
Cost of Products and Services. Cost of products and services for the year
ended March 31, 2001 increased 5.4% to $17.3 million from $16.4 million for the
year ended March 31, 2000, while the cost of products and services as a
percentage of net revenues decreased to 43.3% compared to 45.1% during the
comparable periods. The decrease in cost of products and services as a
percentage of net revenues resulted from the effects of the increase in
maintenance and other services revenues, and a decrease in the hardware content
of new system sales. Margins on new system sales are inversely proportional to
the relative level of hardware content. The relative level of hardware content
in new systems sales fluctuates from period to period. The effect of the
above-mentioned items was slightly offset by an increase in revenue from EDI
services which yields a lower gross margin than other products and services.
Selling, General and Administrative. Selling, general and administrative
expenses for the year ended March 31, 2001 increased 7.4% to $13.6 million from
$12.6 million, while decreasing on a percentage of revenues basis from 34.8% to
34.0% for the respective fiscal years. These numbers were driven primarily by an
increase in the Company's reserve for bad debts and limited increases in most
other SG&A expense categories.
Research and Development Costs. Research and development costs for the
year ended March 31, 2001 increased 9.5% to $4.1 million from $3.7 million for
the year ended March 31, 2000. The increase is primarily the result of increased
research and development efforts at MicroMed. Research and development costs as
a percentage of net revenues remained constant at 10.2% for the respective
fiscal years.
Investment Income. Investment income for the year ended March 31, 2001
increased 36.0% to $1,032,000 from $759,000 for the year ended March 31, 2000.
Contributing to the increase in investment income was an increase in average
funds available for investment during the year ended March 31, 2001 combined
with an increase in average interest rates compared to the year ended March 31,
2000.
Provision for Income Taxes. The provision for income taxes for the year
ended March 31, 2001 was $2,510,000 as compared to $1,862,000 for the year ended
March 31, 2000. The provision for income taxes for the years ended March 31,
2001 and 2000 respectively, differ from the combined statutory rates primarily
due to the effect of varying state tax rates together with the impact of
non-deductible amortization of certain intangible assets acquired in the May
1996 acquisition of Clinitec.
For the Years Ended March 31, 2000 and 1999
For the year ended March 31, 2000, the Company's net income was $2,504,000
or $0.40 per share on a basic and diluted basis. In comparison, the Company
earned $584,000 or $0.09 per share on a basic and diluted basis in the year
ended March 31, 1999. The increase in net income was achieved through a
combination of an increase in revenue from software systems sales, maintenance,
and other services along with a reduction in selling, general and administrative
expenses. Selling, general and administrative expenses declined due to the
integration of the Company's two subsidiaries, Clinitec and MicroMed. For the
year ended March 31, 2000, revenue increased 7.6% to $36.4 million compared to
$33.8 million in the year ended March 31, 1999. Selling, general and
administrative expenses declined 6.3% to $12.6 million in the year ended March
31, 2000 compared to $13.5 million in the year ended March 31, 1999.
Net Revenues. Net revenues for the year ended March 31, 2000 increased
7.6% to $36.4 million from $33.8 million for the year ended March 31, 1999.
Sales of computer systems, upgrades and supplies increased 2.0% to $19.2 million
from $18.9 million while net revenues from maintenance and other service grew
14.6% to $17.1 from $14.9 million during comparable periods. The increase in net
revenues from sales of computer systems, upgrades and supplies was principally
due to increased sales of the Company's Clinical Product Suite, NextGen(epm) and
NextGen(emr) products, offset by a decrease in sales of the Company's dental
practice management product. The increase in maintenance and other services net
19
<PAGE>
revenue resulted primarily from the Company's increased client base together
with an increase in revenues generated from the Company's EDI services. Revenue
from the Company's EDI services increased 37.6% to $3.8 million for the year
ended March 31, 2000 compared to $2.8 million in the year ended March 31, 1999.
Cost of Products and Services. Cost of products and services for the year
ended March 31, 2000 increased 3.5% to $16.4 million from $15.8 million for the
year ended March 31, 1999 while the cost of products and services as a
percentage of net revenues decreased to 45.1% compared to 46.8% during the
comparable periods. The decrease in cost of products and services as a
percentage of net revenues resulted from a combination of: the effects of the
increase of maintenance and other services revenues, a change in the mix of new
systems sales toward systems with lower hardware content, a leveling out of
product development, customer service, support and training costs, and an
increase in the cost of EDI services. In the year ended March 31, 2000, the
Company was able to leverage its existing infrastructure on to a higher level of
computer systems, upgrades and supplies sales. This contributed to the reduction
in cost of products and services as a percentage of revenue during the year
ended March 31, 2000. Also, new computer systems sales in the year ended March
31, 2000 had a lower relative level of hardware content compared to the year
ended March 31, 1999. Margins on system sales are inversely proportional to the
relative level of hardware content which fluctuates from period to period. The
effect of the above-mentioned items was slightly offset by an increase in
revenue from EDI services which yields a lower gross margin than other products
and services.
Selling, General and Administrative. Selling, general and administrative
expenses for the year ended March 31, 2000 decreased 6.3% to $12.6 million from
$13.5 million. The decrease in selling, general and administrative expenses was
primarily the result of the integration of the Company's Clinitec and MicroMed
subsidiaries along with a reduction in bad debt expense for the year ended March
31, 2000 compared to the year ended March 31, 1999.
Selling, general and administrative expenses as a percentage of net
revenue declined to 34.8% for the year ended March 31, 2000 compared to 39.9% in
the year ended March 31, 1999.
Research and Development Costs. Research and development costs for the
year ended March 31, 2000 increased 3.4% to $3.7 million from $3.6 million for
the year ended March 31, 1999. The increase is the result of increased research
and development efforts by Clinitec and MicroMed. Research and development costs
as a percentage of net revenues decreased to 10.2% as compared to 10.7% for the
respective fiscal years as a result of the effect of costs associated with the
increased research and development efforts growing at a proportionately lower
rate than net revenues during the comparable years.
Investment Income. Investment income for the year ended March 31, 2000
increased 83.8% to $759,000 from $413,000 for the year ended March 31, 1999.
During the year ended March 31, 1999, the Company liquidated certain investments
and incurred a loss of $241,000. Also contributing to the comparative increase
in investment income was an increase in average funds available for investment
during the year ended March 31, 2000.
Provision for Income Taxes. The provision for income taxes for the year
ended March 31, 2000 was $1,862,000 as compared to $713,000 for the year March
31, 1999. The provision for income taxes for the years ended March 31, 2000 and
1999, differ from the combined statutory rates primarily due to the effect of
varying state tax rates together with the impact of non-deductible amortization
of certain intangible assets acquired in the May 1996 acquisition of Clinitec.
Liquidity and Capital Resources
Cash and cash equivalents increased $2.5 million in the year ended March
31, 2001 after increasing by $1.7 million in the year ended March 31, 2000 and
declining by $1.9 million in the year ended March 31, 1999. The decreases in
cash and cash equivalents in fiscal 1999 was primarily a result of payments made
in connection with the MicroMed acquisition.
20
<PAGE>
Net cash provided by operating activities was $6.1 million, $3.6 million
and $3.3 million for the years ended March 31, 2001, 2000 and 1999,
respectively. Net cash provided by operations for the year ended March 31, 2001
consisted principally of net income before depreciation, amortization and
provision for bad debts, and an increase in accounts payable offset by a
decrease in income taxes payable and an increase in gross accounts receivable.
Net cash provided by operations for the year ended March 31, 2000 consisted
primarily of net income before depreciation and amortization and increases in
deferred service revenue, offset by an increase in gross accounts receivable and
a decrease in accounts payable.
Net cash used in investing activities for the years ended March 31, 2001,
2000, and 1999 was $1.9 million, $1.8 million, and $5.1 million, respectively.
Net cash used in investing activities for the years ended March 31, 2001 and
2000 was principally composed of investments in capitalized software and
equipment and improvements. Net cash used in investing activities for the year
ended March 31, 1999 was principally impacted by the $3.8 million paid in
connection with the MicroMed acquisition. Net cash used for additions to
equipment, improvements and capitalized software for the years ended March 31,
2001, 2000 and 1999 were $1.8 million, $1.7 million and $1.7 million
respectively. There were no material short-term investment sales or purchases
during the years ended March 31, 2001 and 2000. Net cash used in investing
activities for the year ended March 31, 1999 were offset in part by cash
provided from net sales of short-term investments of $467,000.
Net cash used in financing activities for the years ended March 31, 2001
and 2000 was $1,703,000 and $86,000, respectively, which includes $1,864,000 and
$111,000 used in each fiscal year to repurchase 235,900 shares and 17,400
shares, respectively, of the Company's Common Stock. Net cash used in financing
activities for the years ended March 31, 2001, 2000 and 1999 also includes the
proceeds from the exercise of employee stock options.
The Company has no significant capital commitments and currently
anticipates that additions to equipment and improvements for fiscal 2002 will be
comparable to fiscal 2001.
At March 31, 2001, the Company had cash and cash equivalents of $18.5
million and short-term investments of $258,000. The Company believes that its
cash and cash equivalents and short-term investments on hand at March 31, 2001,
together with the cash flows from operations, if any, will be sufficient to meet
its working capital and capital expenditure requirements for the next year.
Item 7A. Qualitative and Quantitative Disclosures About Market Risk
The Company has a significant amount of cash and short-term investments with
maturities less than three months. This cash portfolio exposes the Company to
interest rate risk as short-term investment rates can be volatile. Given the
short-term maturity structure of the Company's investment portfolio, the Company
believes that it is not subject to principal fluctuations and the effective
interest rate of the Company's portfolio tracks closely to various short-term
money market interest rate benchmarks.
Item 8. Financial Statements and Supplementary Data
The Financial Statements of the Company identified in the Index to Financial
Statements appearing under "Item 14. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K." of this report are incorporated herein by reference to
Item 14.
Item 9. Changes In and Disagreements With Accountants on Accounting and
Financial Disclosure
None.
21
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Company
Except for information concerning the Company's executive officers which is
included under the caption "Executive Officers of the Company" following Part I,
Item 4 of this report, the information required by Item 10 is incorporated
herein by reference from the Company's definitive proxy statement scheduled to
be filed with the Securities and Exchange Commission on or before July 29, 2001
for the Company's 2001 annual shareholders' meeting.
Item 11. Executive Compensation
The information required by Item 11 is incorporated herein by reference from the
Company's definitive proxy statement scheduled to be filed with the Securities
and Exchange Commission on or before July 29, 2001 for the Company's 2001 annual
shareholders' meeting.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The information required by Item 12 is incorporated herein by reference from the
Company's definitive proxy statement scheduled to be filed with the Securities
and Exchange Commission on or before July 29, 2001 for the Company's 2001 annual
shareholders' meeting.
Item 13. Certain Relationships and Related Transactions
The information required by Item 13 is incorporated herein by reference from the
Company's definitive proxy statement scheduled to be filed with the Securities
and Exchange Commission on or before July 29, 2001 for the Company's 2001 annual
shareholders' meeting.
22
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
Page
----
(a) 1. Index to Financial Statements
Independent Auditors' Report F-1
Consolidated Balance Sheets at March 31, 2001 and 2000 F-2
Consolidated Statements of Income and Comprehensive
Income for the Years Ended March 31, 2001, 2000 and 1999 F-3
Consolidated Statements of Shareholders' Equity for the Years
Ended March 31, 2001, 2000 and 1999 F-3
Consolidated Statements of Cash Flows for the Years Ended March
31, 2001, 2000 and 1999 F-4
Notes to Financial Statements F-5
2. Financial Statement Schedule
Schedule II - Valuation and Qualifying Accounts F-15
3. Exhibits
Exhibit Sequential
Number Description Page Number
------ ----------- -----------
3.1 Articles of Incorporation of the Company, as
amended, are hereby incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form
10-K for the year ended March 31, 1984, File No.
2-80056.
3.2 Bylaws of the Company, as amended, are hereby
incorporated by reference to Exhibit 3.3 to the
Company's Registration Statement on Form S-1, File
No. 2-80056.
3.3 Certificate of Amendment of Bylaws of the Company
is hereby incorporated by reference to Exhibit
3.2.1 to the Company's Registration Statement on
Form S-1, File No. 333-00161.
3.4 Text of Sections 2 and 3 of Article II of the
Bylaws of the Company is hereby incorporated By
reference to Exhibit 3.2.2 to the Company's
Quarterly report on Form 10-QSB for the period
Ended December 31, 1996, File No. 0-13801.
3.5 Certificate of Amendment of Bylaws of the Company,
incorporated by reference to Exhibit 3.2.3 to the
Company's Annual Report on Form 10-K for the year
ended March 31, 2000, File No. 0-13801.
10.2* 1989 Incentive Stock Option Plan is hereby
incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8, File
No. 33-31949.
10.2.1* Form of Incentive Stock Option Agreement is hereby
incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement on Form S-1, File
No. 333-00161.
10.2.2* Form of Non-Qualified Stock Option Agreement is
hereby incorporated by reference to Exhibit 10.3
to the Company's Registration Statement on Form
S-1, File No. 333-00161.
10.3* Form of Incentive Stock Option Agreement is hereby
incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement on Form S-1, File
No. 2-80056.
10.4* 1993 Deferred Compensation Plan, is hereby
incorporated by reference to Exhibit 10.5 to the
Company's Annual Report on Form 10-KSB for the
year ended March 31, 1994, File No. 0-13801.
23
<PAGE>
Exhibit Sequential
Number Description Page Number
------ ----------- -----------
10.4.2* Profit Sharing and Retirement Plan, as amended, is
hereby incorporated by reference to Exhibit 10.4.2
to the Company's Annual Report on Form 10-KSB for
the year ended March 31, 1994, File No. 0-13801.
10.4.3* Profit Sharing and Retirement Plan, as amended,
amendments No. 2 and 3, are hereby incorporated by
reference to Exhibit 10.4.3 to the Company's
Annual Report on Form 10-KSB for the year ended
March 31, 1996, File No. 0-13801.
10.5 Series "A" Convertible Preferred Stock Purchase
Agreement, as amended, dated April 21, 1995
between the Company and Clinitec International,
Inc., is hereby incorporated by reference to
Exhibit 10.11 to the Company's Annual Report on
Form 10-KSB for the year ended March 31, 1995,
File No. 0-13801.
10.6 Form of Indemnification Agreement is hereby
incorporated by reference to Exhibit 10.10 to the
Company's Registration Statement on Form S-1, File
No. 333-00161.
10.7 Agreement and Plan of Merger, dated May 16, 1996,
by and among Quality Systems, Inc., CII
Acquisition Corporation, Clinitec International,
Inc. and certain shareholders of Clinitec
International, Inc. and certain exhibits is hereby
incorporated by reference to Exhibit 2 to the
Company's Current Report on Form 8-K, dated May
17, 1996 and filed May 30, 1996.
10.8 Asset Purchase Agreement, dated May 15, 1997, by
and among MicroMed Healthcare Information Systems,
Inc., MHIS Acquisition Corp., Quality Systems,
Inc., and certain shareholders of MicroMed
Healthcare Information Systems, Inc. is hereby
incorporated by reference to Exhibit 2 of
Company's Current Report on Form 8-K, dated May
15, 1997 and filed May 29, 1997, File No. 0-13801.
10.9* 1998 Employee Stock Contribution Plan is hereby
incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8, File
No. 333-63131.
10.10* 1998 Stock Option Plan is hereby incorporated by
reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8, File No.
333-67115.
10.11* Memorandum of Understanding regarding the April 3,
2000 resignation of Sheldon Razin between Sheldon
Razin and Quality Systems, Inc., incorporated by
reference to Exhibit 10.16 to the Company's Annual
Report on Form 10-K for the year ended March 31,
2000, File No. 0-13801.
10.12* Memorandum of Understanding Relating to Director
Nominees is hereby incorporated by reference to
Company's Definitive Proxy Statement for the
Company's 1999 Shareholder's Meeting, File No.
001-12537.
10.13* Employment Agreement dated July 20, 2000 between
Quality Systems, Inc. and Lou Silverman,
incorporated by reference to Exhibit 10.18 to the
Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 2000, File No.
0-13801.
10.14 Lease Agreement between Company and Tower Place,
L.P. dated November 15, 2000, commencing February
5, 2001.
10.15 Lease Agreement between Company and Orangewood
Business Center Inc. dated April 3, 2000, amended
February 22, 2001.
10.16 Lease Agreement between Company and Craig
Development Corporation dated February 22, 2001.
21 List of Subsidiaries. 44
23.1 Independent Auditor's Consent - Deloitte & Touche
LLP. 45
* This exhibit is a management contract or a compensatory plan or arrangement.
(b) Reports on Form 8-K: None
24
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934,
the Company caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
QUALITY SYSTEMS, INC.
By: /s/ LOUIS SILVERMAN
----------------------------
Louis Silverman
Chief Executive Officer
Date: June 26, 2001
In accordance with the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the Company and in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ SHELDON RAZIN Chairman of the Board of Directors June 27, 2001
- ------------------------------
SHELDON RAZIN
/s/ AHMED HUSSEIN Co-Chairman of the Board of Directors June 26, 2001
- ------------------------------
AHMED HUSSEIN
/s/ LOUIS SILVERMAN Chief Executive Officer June 27, 2001
- ------------------------------
LOUIS SILVERMAN
/s/ PAUL HOLT Chief Financial Officer, Secretary June 27, 2001
- ------------------------------
PAUL HOLT
/s/ MOHAMMED TAWFICK EL-BARDAI Director June 25, 2001
- ------------------------------
MOHAMMED TAWFICK EL-BARDAI
/s/ DALE HANSON Director June 25, 2001
- ------------------------------
DALE HANSON
/s/ FRANK MEYER Director June 26, 2001
- ------------------------------
FRANK MEYER
/s/ WILLIAM SMALL Director June 27, 2001
- ------------------------------
WILLIAM SMALL
/s/ EMAD ZIKRY Director June 26, 2001
- ------------------------------
EMAD ZIKRY
</TABLE>
25
<PAGE>
INDEPENDENT AUDITORS' REPORT
Board of Directors and Shareholders
Quality Systems, Inc.
We have audited the accompanying consolidated balance sheets of Quality Systems,
Inc. and subsidiary as of March 31, 2001 and 2000, and the related consolidated
statements of income and comprehensive income, shareholders' equity and cash
flows for each of the three years in the period ended March 31, 2001. Our audits
also included the financial statement schedule listed in the Index of Item 14.
(a) (2). These financial statements and schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements and schedule based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Quality Systems, Inc. and
subsidiary as of March 31, 2001 and 2000, and the results of their operations
and their cash flows for each of the three years in the period ended March 31,
2001 in conformity with accounting principles generally accepted in the United
States of America. Also, in our opinion, the related financial statement
schedule, when considered in relation to the basic financial statements taken as
a whole, presents fairly in all material respects the information set forth
therein.
/s/ Deloitte & Touche LLP
Costa Mesa, California
May 22, 2001
F-1
<PAGE>
QUALITY SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except for per share data)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
March 31,
ASSETS 2001 2000
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 18,471 $ 15,926
Short-term investments 258 243
Accounts receivable, less allowance for doubtful accounts
of $1,335 and $1,121, respectively 13,335 13,710
Inventories, net 1,030 1,010
Deferred tax assets 1,566 2,066
Other current assets 532 430
---------------------------------------------
Total current assets 35,192 33,385
Equipment and Improvements, net 1,819 1,797
Capitalized Software Costs, net 1,769 1,984
Deferred Tax Assets 2,960 3,042
Goodwill, net of accumulated amortization of
$1,634 and $1,294, respectively 1,772 2,112
Other Assets, net 1,371 1,816
---------------------------------------------
Total assets $ 44,883 $ 44,136
=============================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 1,829 $ 1,246
Deferred revenue 5,595 5,691
Other current liabilities 3,572 5,116
---------------------------------------------
Total liabilities 10,996 12,053
---------------------------------------------
Commitments and Contingencies (Note 9)
Shareholders' Equity:
Common Stock, $0.01 par value, 20,000 shares authorized,
5,987 and 6,201 shares issued and outstanding, respectively 60 62
Additional paid-in capital 33,780 35,483
Retained earnings (accumulated deficit) 47 (3,462)
---------------------------------------------
Total shareholders' equity 33,887 32,083
---------------------------------------------
Total liabilities and shareholders' equity $ 44,883 $ 44,136
=============================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-2
<PAGE>
QUALITY SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
-------------------------------------------------------
Year Ended March 31,
2001 2000 1999
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net Revenues:
Sales of computer systems, upgrades and supplies $ 19,935 $ 19,247 $ 18,875
Maintenance and other services 20,001 17,126 14,941
-------------------------------------------------------
39,936 36,373 33,816
Cost of Products and Services 17,283 16,395 15,834
-------------------------------------------------------
Gross Profit 22,653 19,978 17,982
Selling, General and Administrative Expenses 13,585 12,645 13,495
Research and Development Costs 4,081 3,726 3,603
-------------------------------------------------------
Income from Operations 4,987 3,607 884
Investment Income 1,032 759 413
-------------------------------------------------------
Income before Provision for Income Taxes 6,019 4,366 1,297
Provision for Income Taxes 2,510 1,862 713
-------------------------------------------------------
Net Income and Comprehensive Income $ 3,509 $ 2,504 $ 584
=======================================================
Net Income per Share, basic and diluted $ 0.57 $ 0.40 $ 0.09
=======================================================
Weighted Average Shares Outstanding - Basic 6,130 6,208 6,176
-------------------------------------------------------
Weighted Average Shares Outstanding - Diluted 6,203 6,261 6,185
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
QUALITY SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(in thousands)
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------
Retained
Common Shares Issued Earnings Total
Additional (Accumulated Shareholders'
Number Amount Paid-in Capital Deficit) Equity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at April 1, 1998 5,988 $60 $ 33,931 $ (6,550) $ 27,441
Shares Issued for contingent purchase obligation 245 3 1,833 -- 1,836
Exercise of Stock Options 33 -- 50 -- 50
Purchases of Common Stock (52) (1) (246) -- (247)
Net Income -- -- -- 584 584
-----------------------------------------------------------------------------
Balance at March 31, 1999 6,214 62 35,568 (5,966) 29,664
Exercise of Stock Options 4 -- 25 -- 25
Tax Benefit Resulting From Stock Options -- -- 1 -- 1
Purchases of Common Stock (17) -- (111) -- (111)
Net Income -- -- -- 2,504 2,504
-----------------------------------------------------------------------------
Balance at March 31, 2000 6,201 62 35,483 (3,462) 32,083
Exercise of Stock Options 22 -- 152 -- 152
Tax Benefit Resulting From Stock Options -- -- 7 -- 7
Purchases of Common Stock (236) (2) (1,862) -- (1,864)
Net Income -- -- -- 3,509 3,509
-----------------------------------------------------------------------------
Balance at March 31, 2001 5,987 $60 $ 33,780 $ 47 $ 33,887
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE>
QUALITY SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
---------------------------------------------------
Year Ended March 31,
2001 2000 1999
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net Income $ 3,509 $ 2,504 $ 584
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 2,697 2,204 2,465
Provision for bad debts 1,272 529 954
Loss on short-term investments and other 19 132 261
Deferred income taxes 582 (1,088) (592)
Changes in:
Accounts receivable (897) (1,751) (3,496)
Inventories (20) (238) 556
Other current assets (102) (176) (2)
Accounts payable 583 (567) 486
Deferred service revenue (96) 1,207 2,240
Income taxes payable (1,233) 723 344
Other current liabilities (203) 136 (453)
---------------------------------------------------
Net Cash Provided By Operating Activities 6,111 3,615 3,347
---------------------------------------------------
Cash Flows from Investing Activities:
Proceeds from sales of short-term investments -- 29 542
Purchases of short-term investments -- (50) (75)
Additions to equipment and improvements (778) (588) (521)
Additions to capitalized software costs (1,063) (1,130) (1,204)
Payment of contingent purchase obligation -- -- (3,840)
Change in other assets (13) (60) 37
---------------------------------------------------
Net Cash Used In Investing Activities (1,854) (1,799) (5,061)
---------------------------------------------------
Cash Flows from Financing Activities:
Purchases of Common Stock $ (1,864) $ (111) $ (247)
Proceeds from exercise of stock options 152 25 50
---------------------------------------------------
Net Cash Used In Financing Activities (1,712) (86) (197)
---------------------------------------------------
Net Increase (Decrease) in Cash and Cash Equivalents 2,545 1,730 (1,911)
Cash and Cash Equivalents, beginning of year 15,926 14,196 16,107
---------------------------------------------------
Cash and Cash Equivalents, end of year $ 18,471 $ 15,926 $ 14,196
===================================================
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Supplemental Information - During fiscal 2001, 2000 and 1999 the Company made
income tax payments of $2,779, $2,421 and $951, respectively.
See notes to consolidated financial statements.
F-4
<PAGE>
QUALITY SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Description of Business
Quality Systems, Inc. ("QSI") and its wholly-owned subsidiary, Clinitec
International, Inc. ("Clinitec"), d/b/a MicroMed Healthcare Information Systems,
Inc. ("MicroMed"), (collectively the "Company") develop and market proprietary
healthcare information systems that automate medical and dental group practices,
community health centers, physician hospital organizations, management service
organizations, and dental schools. The Company's proprietary software systems
include general patient information, appointment scheduling, billing, insurance
claims submission and processing, managed care plan implementation and referral
management, treatment outcome studies, treatment planning, drug formularies,
electronic medical records, dental charting and letter generation. In addition
to providing fully integrated solutions, the Company provides its clients with
comprehensive hardware and software maintenance and support services, system
training services and electronic claims submission services.
2. Summary of Significant Accounting Policies
Principles of Consolidation. The consolidated financial statements include
the accounts of the Company and its wholly-owned subsidiary. All inter-company
amounts have been eliminated.
Basis of Presentation. The accompanying consolidated financial statements
have been prepared in accordance with accounting principals generally accepted
in the United States of America.
Revenue Recognition. The Company recognizes revenue pursuant to Statement
of Position ("SOP") 97-2, "Software Revenue Recognition" ("SOP 97-2"). The
Company generates revenues from licensing rights to use its software products
directly to end-users. The Company also generates revenues from sales of
hardware and third party software, and implementation, training, software
customization and post-contract support ("maintenance") services performed for
customers who license the Company's products. A typical system contract contains
multiple elements of two or more of the above items. In accordance with SOP
97-2, revenue is allocated to each element of the contract based on vendor
specific evidence of each element's fair market value. Provided the fees are
fixed and determinable and collection is considered probable, revenue from
licensing rights and sales of hardware and third party software are recognized
upon shipment and transfer of title. Revenue from implementation, training and
software customization services is recognized as the corresponding services are
performed. Maintenance revenue is recognized ratably over the contractual
maintenance period.
In December 1999, the SEC issued SAB No. 101, "Revenue Recognition in
Financial Statements" ("SAB No. 101"). SAB No. 101 summarizes the staff's views
in applying generally accepted accounting principles to revenue recognition in
financial statements. SAB No. 101 became effective for the Company in the third
quarter of fiscal year 2001 and did not have a significant effect on the
Company's financial statements.
Cash and Cash Equivalents. Cash and cash equivalents generally consist of
cash and money market funds. The Company invests its excess cash in a money
market fund which invests in only investment grade money market instruments from
a variety of industries, and therefore bears minimal risk. The average maturity
of the investments owned by the money market fund is approximately two months.
Short-Term Investments. The Company classifies its short-term investments
into one of the following categories:
o Held to maturity - Debt securities for which the Company has the
intent and the ability to hold to maturity.
o Trading - Debt securities that do not meet the "intent-to-hold"
criteria and equity securities, both of which are bought and held
principally for the purpose of being sold in the near term.
F-5
<PAGE>
o Available-for-sale - Debt securities that do not meet the
"intent-to-hold" criteria and which are not classified as trading
securities, as well as all equity securities not otherwise
classified as trading securities.
Held to maturity securities are carried in the balance sheet at cost
(unless there are declines in the values of individual securities that are not
due to temporary declines), and realized gains and losses are recorded in the
statement of operations in the period that they are earned or incurred. Trading
securities are carried in the balance sheet at fair market value and unrealized
gains and losses are recorded in the statement of operations. Available-for-sale
securities are carried in the balance sheet at fair market value; realized gains
and losses are recorded in the statement of operations when they are earned or
incurred, and unrealized gains and losses, net of tax effect, are recognized as
a component of shareholders' equity. Realized gains and losses from investment
transactions are determined on a first-in, first-out basis.
Accounts Receivable. The Company provides credit terms typically ranging
from thirty days to twelve months for most system and maintenance contract sales
and generally does not require collateral. The Company performs ongoing credit
evaluations of its customers and maintains reserves for potential credit losses.
Inventories. Inventories are valued at lower of cost (first-in, first-out)
or market. Certain inventories are maintained for customer support pursuant to
service agreements and are amortized over a five-year period using the
straight-line method.
Equipment and Improvements. Equipment and improvements are stated at cost
less accumulated depreciation and amortization. Depreciation and amortization of
equipment and improvements are provided over the estimated useful lives of the
assets, or the related lease terms if shorter, by the straight-line method.
Useful lives range from three to seven years.
Software Development Costs. Development costs incurred in the research and
development of new software products and enhancements to existing software
products are expensed as incurred until technological feasibility has been
established. After technological feasibility is established, any additional
development costs are capitalized in accordance with Statement of Financial
Accounting Standards ("SFAS") No. 86, "Accounting for the Costs of Computer
Software to be Sold, Leased or Otherwise Marketed." Such costs are amortized on
a straight line basis over the estimated economic life of the related product,
generally three years. The Company performs a periodic review of the
recoverability of such capitalized software costs. At the time a determination
is made that capitalized amounts are not recoverable based on the estimated cash
flows to be generated from the applicable software, any remaining capitalized
amounts are written off.
Goodwill and Intangible Assets. Goodwill and intangible assets are being
amortized using the straight-line method over ten years and five years,
respectively. The Company performs a periodic review of the recoverability of
such unamortized amounts. At the time a determination is made that any portion
of such unamortized amounts are not recoverable based on the estimated cash
flows to be generated, the excess amount is written off pursuant to APB Opinion
No. 17, "Intangible Assets". The recoverability of intangible assets is measured
based upon SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and
for Long-Lived Assets to Be Disposed Of" ("SFAS No. 121").
Long Lived Assets. The Company accounts for the impairment and disposition
of long-lived assets in accordance with SFAS No. 121. In accordance with SFAS
No. 121, long-lived assets to be held are reviewed for events or changes in
circumstances which indicate that their carrying value may not be recoverable.
The Company periodically reviews the carrying value of long-lived assets to
determine whether or not an impairment to such value has occurred and has
determined that there was no impairment at March 31, 2001.
Income Taxes. Income taxes are provided for the tax effects of
transactions reported in the financial statements and consist of taxes currently
due plus deferred taxes related primarily to differences between the basis of
assets and liabilities for financial and tax reporting. The deferred tax assets
and liabilities represent the future tax return consequences of those
differences, which will either be taxable or deductible when the assets and
liabilities are recovered or settled. Deferred taxes also are recognized for
F-6
<PAGE>
operating losses that are available to offset future taxable income and tax
credits that are available to offset future income taxes. Valuation allowances
are established as a reduction of net deferred tax assets when management cannot
determine that it is now more likely than not that the deferred assets will be
realized.
Earnings per Share. Pursuant to SFAS No. 128, "Earnings Per Share," the
Company provides dual presentation of "basic" and "diluted" earnings per share
("EPS").
Basic EPS excludes dilution from Common Stock equivalents and is computed
by dividing income available to common stockholders by the weighted average
number of common shares outstanding for the period. Diluted EPS reflects the
potential dilution from Common Stock equivalents.
The following table reconciles the weighted average shares outstanding for
basic and diluted net income per share for the periods presented.
<TABLE>
<CAPTION>
-------------------------------------------------------
(in thousands except per share amounts) Year Ended March 31,
2001 2000 1999
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net income $ 3,509 $ 2,504 $ 584
-------------------------------------------------------
Basic net income per common share:
Weighted average of common shares outstanding 6,130 6,208 6,176
-------------------------------------------------------
Basic net income per common share $ 0.57 $ 0.40 $ 0.09
=======================================================
Diluted net income per share:
Weighted average of common shares outstanding 6,130 6,208 6,176
Weighted average of common shares equivalents-
Weighted average options outstanding 73 53 9
-------------------------------------------------------
Weighted average number of common and 6,203 6,261 6,185
common equivalent shares
-------------------------------------------------------
Diluted net income per common share $ 0.57 $ 0.40 $ 0.09
=======================================================
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Stock-Based Compensation. The Company accounts for stock-based awards to
employees using the intrinsic value method in accordance with APB Opinion No.
25, "Accounting for Stock Issued to Employees" ("APB Opinion No. 25"), as
amended.
Comprehensive Income. In fiscal 1999, the Company adopted SFAS No. 130,
"Reporting Comprehensive Income" ("SFAS No. 130"). This statement establishes
standards for the reporting of comprehensive income and its components.
Comprehensive income, as defined, includes all changes in equity (net assets)
during a period, from non-owner sources. For the years ended, March 31, 2001,
2000, and 1999, there were no significant differences between net income and
comprehensive income.
Segment Disclosures. In fiscal 1999, the Company adopted SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information" ("SFAS No.
131"). The Company adopted SFAS No. 131 effective with the fiscal year ended
March 31, 1999. SFAS No. 131 establishes standards for reporting information
regarding operating segments in annual financial statements and requires
selected information for those segments to be presented in interim financial
reports issued to shareholders. SFAS No. 131 also establishes standards for
related disclosures about major customers, products and services, and geographic
areas. Operating segments are identified as components of an enterprise about
which separate discrete financial information is available for evaluation by the
chief operating decision maker, or decision making group, in making decisions on
how to allocate resources and assess performance.
The Company has prepared operating segment information in accordance with
SFAS No. 131 in Note 11.
Use of Estimates. The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
F-7
<PAGE>
New Accounting Pronouncements. In June 1998 the FASB issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities" ("SFAS No. 133").
SFAS No. 133 establishes accounting and reporting standards for derivative
instruments and for hedging activities. In July 1999 the FASB issued SFAS No.
137, "Accounting for Derivative Instruments and Hedging Activities--Deferral of
the Effective Date of FASB Statement No. 133," which delays the effective date
of SFAS No. 133 to fiscal years beginning after June 15, 2000. The Company
adopted SFAS No. 133 effective April 1, 2001. The adoption of SFAS No. 133 did
not have a material effect on the Company's consolidated results of operations
or financial condition.
3. Cash Equivalents and Short-Term Investments
At March 31, 2001 and 2000, the Company had cash equivalents of $18.5
million and $15.9 million, respectively, invested in a major national brokerage
firm's institutional fund that specializes in U.S. government securities and
commercial paper with high credit ratings.
At March 31, 2001 and 2000, all short-term investments consist of trading
securities. The Company bears no off-balance sheet risk on its investments.
Investment income for each of the three years ended March 31, 2001
consists of the following:
<TABLE>
<CAPTION>
------------------------------------------------------
(in thousands) Year Ended March 31,
2001 2000 1999
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Interest Income $ 1,012 $ 783 $ 674
Net Gains (Losses) on Short-Term Investments -
Realized 0 0 (220)
Unrealized 15 (24) (38)
Other 5 0 (3)
------------------------------------------------------
$ 1,032 $ 759 $ 413
======================================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4. Capitalized Software Costs
Capitalized software costs at March 31, 2001 and 2000 were net of
accumulated amortization of $4.3 million and $3.3 million, respectively.
Information related to net capitalized software costs is as follows:
<TABLE>
<CAPTION>
------------------------------------------------------
(in thousands) Year Ended March 31,
2001 2000 1999
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Beginning of year $ 1,984 $ 2,144 $ 2,183
Capitalized 1,063 1,130 1,204
Amortization (1,278) (1,290) (1,243)
------------------------------------------------------
End of year $ 1,769 $ 1,984 $ 2,144
======================================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
F-8
<PAGE>
5. Composition of Certain Financial Statement Captions
<TABLE>
<CAPTION>
-------------------------------------------
(in thousands) Year Ended March 31,
2001 2000
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Inventories:
Computer systems and components $ 679 $ 785
Replacement parts for certain client systems, net of accumulated
amortization of $633 and $594, respectively 309 188
Miscellaneous parts and supplies 42 37
-------------------------------------------
$ 1,030 $ 1,010
===========================================
EQUIPMENT AND IMPROVEMENTS:
Computers and electronic test equipment $ 3,764 $ 3,175
Furniture and fixtures 1,092 964
Vehicles 8 72
Leasehold improvements 139 133
-------------------------------------------
5,003 4,344
Accumulated depreciation and amortization (3,184) (2,547)
-------------------------------------------
$ 1,819 $ 1,797
===========================================
OTHER ASSETS:
Intangible assets, net of accumulated amortization of $1,550
and $1,196, respectively $ 220 $ 574
Other 1,151 1,242
-------------------------------------------
$ 1,371 $ 1,816
===========================================
OTHER CURRENT LIABILITIES:
Accrued payroll and related expenses $ 1,373 $ 1,322
Deferred compensation 967 1,021
Income taxes payable 380 1,445
Other accrued expenses 852 1,328
-------------------------------------------
$ 3,572 $ 5,116
===========================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6. Income Taxes
The income tax provision consists of the following components:
<TABLE>
<CAPTION>
------------------------------------------------------
(in thousands) Year Ended March 31,
2001 2000 1999
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Federal:
Current taxes $ 1,823 $ 2,308 $ 1,095
Deferred taxes 500 (808) (473)
------------------------------------------------------
$ 2,323 $ 1,500 $ 622
------------------------------------------------------
State:
Current taxes 105 642 210
Deferred taxes 82 (280) (119)
------------------------------------------------------
187 362 91
------------------------------------------------------
$ 2,510 $ 1,862 $ 713
======================================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
F-9
<PAGE>
The income tax provision differs from an amount computed at the Federal
statutory rate as follows:
<TABLE>
<CAPTION>
------------------------------------------------------
(in thousands) Year Ended March 31,
2001 2000 1999
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Federal income tax provision at statutory rate (34%) $ 2,046 $ 1,485 $ 441
Increases (decreases) resulting from:
Non-deductible amortization of Goodwill 167 160 161
State income taxes 262 222 96
Other 35 (5) 15
------------------------------------------------------
$ 2,510 $ 1,862 $ 713
======================================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The net deferred tax assets in the accompanying consolidated balance
sheets include the following components:
<TABLE>
<CAPTION>
-------------------------------------------
(in thousands) Year Ended March 31,
2001 2000
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Deferred tax assets:
Short-term investments $ 6 $ 14
Accounts receivable 1,062 1,459
Inventories 80 70
Purchased in-process research and development 2,872 3,130
Intangible assets 173 128
Accrued compensation 275 291
Accrued liability for deferred compensation 348 348
Other accrued liabilities 4 12
Deferred revenue 79 109
State income taxes 77 139
-------------------------------------------
$ 4,976 $ 5,700
===========================================
Deferred tax liabilities:
Inventories $ (17) $ (18)
Equipment and improvements (12) (12)
Accumulated depreciation (52) (57)
Capitalized software (369) (495)
Deferred revenue -- (10)
-------------------------------------------
(450) (592)
-------------------------------------------
$ 4,526 $ 5,108
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The deferred tax assets and liabilities have been shown net in the
accompanying balance sheets based on the long-term or short-term nature of the
items which give rise to the deferred amount.
7. Employee Benefit Plans
QSI and MicroMed each have a profit sharing and retirement plan
(collectively, the "Retirement Plans") for the benefit of substantially all of
their employees. Participating employees may defer up to 15% of their
compensation per year. The Company's annual contribution is determined by the
Company's Board of Directors and the Retirement Plans may be amended or
discontinued at the discretion of the Board of Directors. Contributions of
$77,000, $73,000 and $53,000 were made to the Retirement Plans for the fiscal
years ended March 31, 2001, 2000 and 1999, respectively.
During the fiscal year ended March 31, 1994, QSI initiated a deferred
compensation plan (the "Deferral Plan") for the benefit of officers and key
employees. Participating employees may defer all or a portion of their
compensation for a Deferral Plan year. In addition, the Company may, but is not
required to, make contributions into the Deferral Plan on behalf of
participating employees. Each participating employee's deferred compensation and
share of Company contributions has been invested in a life insurance policy
which has death benefit and mutual fund features. Investment decisions are made
by each participating employee from a family of mutual funds. The Company is the
owner and beneficiary of
F-10
<PAGE>
the life insurance policies and has an obligation to pay the greater of the
death benefit or the net cash surrender value upon each employee's death or
termination. The net cash surrender value of the life insurance policies and the
related Company obligation for deferred compensation was $967,000 and $1,021,000
at March 31, 2001 and 2000, respectively. The Company made contributions of
$11,000, $10,000 and $8,000 to the Deferral Plan for the fiscal years ended
March 31, 2001, 2000 and 1999, respectively.
8. Employee Stock Option Plans
During fiscal 1990, the Company's shareholders approved a stock option
plan (the "1989 Plan") under which 1,000,000 shares of Common Stock have been
reserved for the issuance of options. The 1989 Plan provides that salaried
officers, key employees and non-employee directors of the Company may, at the
discretion of the Board of Directors, be granted options to purchase shares of
Common Stock at an exercise price not less than 85% of their fair market value
on the option grant date. Upon an acquisition of the Company by merger or asset
sale, each outstanding option will be subject to accelerated vesting under
certain circumstances. The 1989 Plan terminated on June 30, 1999, however there
remain 212,238 outstanding options under the 1989 plan which remain eligible for
exercise until the expiration of their respective terms.
In September 1998, the Company's shareholders approved a stock option plan
(the "1998 Plan") under which 1,000,000 shares of Common Stock have been
reserved for the issuance of options. The 1998 Plan provides that employees,
directors and consultants of the Company, at the discretion of the Board of
Directors, be granted options to purchase shares of Common Stock. The exercise
price of each option granted shall be determined by the Company's Board of
Directors at the date of grant. Upon an acquisition of the Company by merger or
asset sale, each outstanding option will be subject to accelerated vesting under
certain circumstances. The 1998 Plan terminates on December 31, 2007, unless
sooner terminated by the Board. At March 31, 2001, 716,240 shares were available
for future grant under the 1998 Plan.
A summary of option transactions under the 1989 & 1998 Plans for the three
years ended March 31, 2001 is as follows:
<TABLE>
<CAPTION>
---------------------------------------------------------
(in thousands) Weighted Average
Number of Shares Exercise Price
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Outstanding, March 31, 1998 (50,500 exercisable at a
weighted average price of $3.45) 219,532 6.31
Granted (weighted average fair value of $2.05) 60,000 7.26
Exercised (33,000) 1.50
Cancelled (66,250) 7.56
------------------------------
Outstanding, March 31, 1999 (53,821 exercisable at a
weighted average price of $7.09) 180,282 7.04
Granted (weighted average fair value of $3.51) 220,250 6.58
Exercised (4,625) 5.52
Cancelled (23,048) 6.86
------------------------------
Outstanding, March 31, 2000 (107,867 exercisable at a
weighted average price of $7.11) 372,859 $ 6.80
Granted (weighted average fair value of $2.57) 179,010 7.97
Exercised (22,512) 6.73
Cancelled (50,859) 7.73
------------------------------
Outstanding, March 31, 2001 (143,429 exercisable at a
weighted average price of $6.76) 478,498 $ 7.16
=========================================================
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
F-11
<PAGE>
The outstanding stock options vest ratably over a four-year period
commencing from the respective option grant dates. Stock options outstanding at
March 31, 2001 are summarized as follows:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------
Number
Outstanding at Weighted Avg. Remaining Weighted Average
(in thousands) Range of Exercise Prices March 31, 2001 Contractual Life (Yrs.) Exercise Price
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Options Outstanding $ 3.69 - $ 6.25 89,750 3.1 $ 6.04
$ 6.38 - $ 8.13 358,248 3.1 $ 7.26
$ 9.13 - $ 10.06 30,500 4.3 $ 9.37
-------
478,498 3.2 $ 7.16
=======
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------
Number
Exercisable at Weighted Average
(in thousands) Range of Exercise Prices March 31, 2000 Exercise Price
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Options Exercisable $ 3.69 - $ 6.25 24,750 $ 5.86
$ 6.38 - $ 8.13 116,429 $ 6.90
$ 9.13 - $ 10.06 2,250 $ 12.82
-------
143,429 $ 6.76
=======
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The Company continues to account for its stock-based awards using the
intrinsic value method in accordance with APB Opinion No. 25. Accordingly, no
compensation expense has been recognized in the financial statements for
employee stock option grants all of which had market value exercise prices at
the date of grant. SFAS No. 123, "Accounting for Stock-Based Compensation"
("SFAS No. 123") requires the disclosure of pro forma net income and pro forma
net income per share had the Company adopted the fair value method. Under SFAS
No. 123, the fair value of stock-based awards to employees is calculated through
the use of option pricing models, even though such models were developed to
estimate the fair value of freely tradable, fully transferable options without
vesting restrictions, which significantly differ from the Company's stock option
awards. These models also require subjective assumptions, including future stock
price volatility and expected time to exercise, which greatly affect the
calculated values.
The Company's calculations were made using the Black-Scholes option
pricing model with the following assumptions: expected life - twelve months
following full vesting or approximately 60 months from the date of the grant;
stock volatility - ranging from 50% to 60% in fiscal 2001 and 2000, and ranging
from 44% to 81% in fiscal 1999, risk free interest rates - 5.0% in fiscal 2001,
6.0% in fiscal 2000, and 5.5% in fiscal 1999; and, no dividends during the
expected term. The Company's calculations are based on a single option valuation
approach and forfeitures are recognized as they occur. If the computed fair
values of awards had been amortized to expense over the vesting period of the
awards, pro forma net income would have been $3,169,000 or $0.52 per share in
fiscal 2001, $2,111,000 or $0.34 per share in fiscal 2000, and $410,000 or $.06
per share in fiscal 1999. These amounts are based on calculated values for
option awards in fiscal 2001, 2000 and 1999 of $461,000, $775,000 and $123,000,
respectively.
9. Commitments and Contingencies
Litigation. On April 22, 1997, a purported class action entitled JOHN P.
CAVENY v. QUALITY SYSTEMS, INC., ET AL. was filed in the Superior Court of the
State of California for the County of Orange, in which Mr. Caveny, on behalf of
himself and all others who purchased the Company's Common Stock between June 26,
1995 and July 3, 1996, alleges that the Company, and Sheldon Razin, Robert J.
Beck, Gregory S. Flynn, Abe C. LaLande, Donn Neufeld, Irma G. Carmona, John A.
Bowers, Graeme H. Frehner, and Gordon L. Setran (all of the foregoing
individuals were either officers, directors or both during the period from June
26, 1995 through July 3, 1996), as well as other defendants not affiliated with
the Company, violated California Corporations Code Sections 25400 and 25500,
California Civil Code Sections 1709 and 1710, and California Business and
Professions Code Sections 17200 et. seq., by issuing positive statements about
the Company that allegedly were knowingly false, in part, in
F-12
<PAGE>
order to assist the Company and the individual defendants in selling Common
Stock at an inflated price in the Company's March 5, 1996 public offering and at
other points during the class period. The complaint seeks compensatory and
punitive damages in unspecified amounts, disgorgement, declaratory and
injunctive relief, and attorneys' fees.
The Company and the other named defendants successfully demurred to the
plaintiffs' claim under California Civil Code Sections 1709 and 1710, and that
claim, which served as the only basis for plaintiffs' request for punitive
damages, has been dismissed from both actions.
On January 25, 1999, the court denied plaintiffs' motion to certify the
class representative and class legal counsel. Plaintiffs appealed that decision
as to class legal counsel. On February 25, 2000, the Fourth District Court of
Appeals affirmed the order disqualifying the class legal counsel. On May 9,
2000, the Court of Appeals issued its Remittur certifying its decision as final.
In May 2000, plaintiffs associated in additional class legal counsel, and
moved for approval by the court. Upon defendants' objection, the court on August
17, 2000, denied plaintiffs' motion, and ordered plaintiffs to retain new class
counsel.
At the end of November 2000, the plaintiffs retained new class counsel who
substituted in for plaintiffs' previous class counsel. The Company and the other
named defendants did not oppose plaintiffs' motion for approval of the new class
counsel. On January 24, 2001, the court granted the motion to certify class
legal counsel.
On March 27, 2001, the court approved a notice of class certification to
be mailed to shareholders who are potential class members. Between April 9, 2001
and May 9, 2001, class notice was mailed to potential class members.
Merits-related discovery in the action had been stayed pending the
appointment of class counsel. In March 2001, the plaintiffs requested that
documents be produced informally. The defendants have produced documents
informally for plaintiffs' review. The court has entered a stipulated protective
order governing discovery in the action. Counsel for plaintiffs and defendants
intend to meet to discuss the plaintiffs' review of the informal document
production at or around the time that the parties appear in court for the next
status conference on July 30, 2001.
In Management's opinion the outcome of this case is uncertain, and
therefore no accrual has been made to the financial statements.
On May 14, 1997, a second purported class action entitled WENDY WOO v.
QUALITY SYSTEMS, INC., ET AL. was filed in the same court, essentially repeating
the allegations in the Caveny lawsuit and seeking identical relief. This action
has for all purposes been consolidated with the Caveny action.
On March 23, 1999, a purported class action and derivative complaint
entitled IRVING ROSENZWEIG v. SHELDON RAZIN, ET AL. was filed in the Superior
Court of the State of California for the County of Orange, in which Mr.
Rosenzweig, on behalf of himself and all non-director shareholders, and
derivatively on behalf of the Company, alleges that Sheldon Razin, John Bowers,
William Bowers, Patrick Cline, Janet Razin and Gordon Setran (all of the
foregoing individuals were directors of the Company) breached their fiduciary
duties by allegedly entrenching themselves in their positions of control,
failing to ensure that third party offers involving the Company were fully and
fairly considered, and/or failing to conduct a reasonable inquiry to assure the
maximization of shareholder value. The complaint sought declaratory and
injunctive relief, an accounting of monetary damages allegedly suffered by
plaintiff and the purported class, and attorneys' fees. Defendants demurred to
each of the causes of action alleged in the complaint and the court sustained
those demurrers with leave to amend in December 1999. Rather than file an
amended complaint, plaintiff filed a motion for attorney's fees. Defendants, in
turn, filed a motion to dismiss the action for failure to file an amended
pleading within the time limit specified by the court.
The parties agreed to a settlement of action and stipulated to a final
judgment and order which was entered by the court on May 15, 2000, at which time
the action was dismissed. The final judgment and order provided for a dismissal
of the action with prejudice, releases given to each of the defendants, and
F-13
<PAGE>
payment of the nominal sum of $100,000 (paid by the Company's directors and
officers liability insurance company) in full settlement of plaintiff's motion
for attorney's fees.
The settlement further expressly provided that it did not constitute an
admission of any liability of defendants, which defendants continue to
vigorously deny.
The Company is a party to various other legal proceedings incidental to
its business, none of which are considered by the Company to be material.
Rental Commitments. The Company leases its facilities and offices under
non-cancelable operating lease agreements expiring at various dates through
February 2006. The Company has rental commitments under these agreements in
fiscal 2002, 2003, 2004, 2005 and 2006 of $674,000, $203,000, $203,000, $189,000
and $173,000, respectively. Total rental expense for all operating leases was
$914,000, $901,000 and $807,000 for the years ended March 31, 2001, 2000 and
1999, respectively.
10. Stock Repurchase Plan
In February 1997, the Company's Board of Directors authorized the
repurchase on the open market of up to 10% of the shares of the Company's
outstanding Common Stock, subject to compliance with applicable laws and
regulations. This authorization has been renewed annually and currently expires
on June 7, 2001. As of March 31, 2001, the Company has repurchased 345,800
shares at a cash cost of $2,494,000. The Company's management could, in the
exercise of its judgment, decide not to effect any additional repurchases, or to
repurchase fewer shares than authorized.
11. Operating Segment Information
The Company has prepared operating segment information in accordance with
SFAS No. 131 "Disclosures About Segments of an Enterprise and Related
Information" to report components that are evaluated regularly by the Company's
chief operating decision maker, or decision making group in deciding how to
allocate resources and in assessing performance.
The Company's reportable operating segments include its MicroMed Division
and the QSI Division.
The accounting policies of the Company's operating segments are the same
as those described in Note 2 - Summary of Significant Accounting Policies -
except that the disaggregated financial results of the segments reflect
allocation of certain functional expense categories consistent with the basis
and manner in which Company management internally disaggregates financial
information for the purpose of assisting in making internal operating decisions.
Certain corporate overhead costs are not allocated to the individual segments by
Management. The Company evaluates performance based on stand-alone segment
operating income. Because the Company does not evaluate performance based on
return on assets at the operating segment level, assets are not tracked
internally by segment. Therefore, segment asset information is not presented.
Operating segment data for the three years ended March 31, was as follows:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
(in thousands) Unallocated
QSI Division MicroMed Division Corporate Expenses Consolidated
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Year Ended March 31, 2001
Revenue $ 17,225 $ 22,711 -- $ 39,936
Operating Income (Loss) $ 3,231 $ 3,662 $ (1,906) $ 4,987
Assets -- -- -- $ 44,883
Year Ended March 31, 2000
Revenue $ 18,955 $ 17,418 -- $ 36,373
Operating Income (Loss) $ 3,230 $ 2,346 $ (1,969) $ 3,607
Assets -- -- -- $ 44,136
Year Ended March 31, 1999
Revenue $ 19,396 $ 14,420 -- $ 33,816
Operating Income (Loss) $ 3,814 $ (1,339) $ (1,591) $ 884
Assets -- -- -- $ 40,218
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
F-14
<PAGE>
In fiscal 2001 management adopted certain internal allocation conventions
for use in the evaluating the performance of individual operating divisions on a
go-forward basis. Although these conventions were not applied during the fiscal
years 2000 and 1999, management has estimated the segment disclosures and
related corporate costs for the respective periods.
12. Selected Quarterly Operating Results
The following table presents quarterly unaudited consolidated financial
information for the eight quarters in the period ended March 31, 2001. Such
information is presented on the same basis as the annual information presented
in other sections of this report. In management's opinion, this information
reflects all adjustments, all of which are of a normal recurring nature, that
are necessary for a fair presentation of the results for these periods.
COMPARISON BY QUARTER
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------
(in thousands) Quarter Ended (Unaudited)
- ------------------------------------------------------------------------------------------------------------------------------------
6/30/99 9/30/99 12/31/99 3/31/00 6/30/00 9/30/00 12/31/00 3/31/01
--------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Systems, upgrades and supplies sales $ 5,116 $ 5,633 $ 4,435 $ 4,063 $ 4,395 $ 4,794 $ 5,230 $ 5,516
Maintenance and other $ 3,986 $ 4,076 $ 4,373 $ 4,691 $ 4,867 $ 4,869 $ 5,103 $ 5,162
--------------------------------------------------------------------------------------------
$ 9,102 $ 9,709 $ 8,808 $ 8,754 $ 9,262 $ 9,663 $ 10,333 $ 10,678
Costs of products and services $ 4,058 $ 4,466 $ 4,023 $ 3,848 $ 4,032 $ 4,363 $ 4,459 $ 4,429
--------------------------------------------------------------------------------------------
$ 5,044 $ 5,243 $ 4,785 $ 4,906 $ 5,230 $ 5,300 $ 5,874 $ 6,249
Selling, General, & Administrative $ 3,040 $ 3,138 $ 3,166 $ 3,301 $ 3,365 $ 3,244 $ 3,451 $ 3,525
Research & Development $ 892 $ 965 $ 962 $ 907 $ 1,005 $ 974 $ 1,010 $ 1,092
--------------------------------------------------------------------------------------------
$ 1,112 $ 1,140 $ 657 $ 698 $ 860 $ 1,082 $ 1,413 $ 1,632
Investment Income $ 166 $ 182 $ 183 $ 228 $ 246 $ 251 $ 261 $ 274
--------------------------------------------------------------------------------------------
$ 1,278 $ 1,322 $ 840 $ 926 $ 1,106 $ 1,333 $ 1,674 $ 1,906
Provision for Income Taxes $ 536 $ 584 $ 365 $ 377 $ 481 $ 589 $ 708 $ 732
--------------------------------------------------------------------------------------------
Net Income $ 742 $ 738 $ 475 $ 549 $ 625 $ 744 $ 966 $ 1,174
--------------------------------------------------------------------------------------------
Net Income per share - Basic $ .12 $ .12 $ .08 $ .09 $ .10 $ .12 $ .16 $ .20
Net Income per share - Diluted $ .12 $ .12 $ .08 $ .09 $ .10 $ .12 $ .16 $ .19
Weighted Average Shares
Outstanding - Basic 6,215 6,215 6,208 6,199 6,209 6,209 6,119 5,983
Weighted Average Shares
Outstanding - Diluted 6,218 6,241 6,218 6,355 6,297 6,273 6,162 6,099
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Schedule II
ALLOWANCE FOR DOUBTFUL ACCOUNTS
(in thousands)
<TABLE>
<CAPTION>
Additions
Balance at ---------------------------------------------
beginning of Charged to costs and Charged to other Balance at
Description period expenses accounts Deductions End of Period
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
For the year ended:
March 31, 2001 $ 1,121 $ 1,272 $ -- $ (1,058) $ 1,335
March 31, 2000 $ 754 $ 529 $ -- $ (162) $ 1,121
March 31, 1999 $ 521 $ 954 $ -- $ (721) $ 754
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
F-15
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.14
<SEQUENCE>2
<FILENAME>0002.txt
<DESCRIPTION>LEASE AGREEMENT BETWEEN COMPANY AND TOWER PLACE
<TEXT>
Quality Systems, Inc.
Form 10-K
Exhibit 10.14
Lease Agreement between Company and Tower Place, L.P. dated November
15, 2000, commencing February 5, 2001.
<PAGE>
TOWER PLACE OFFICE LEASE
by and between
TOWER PLACE, L.P.
a Georgia Limited Partnership
and
QUALITY SYSTEMS, INC.
a California corporation
November 15, 2000
Atlanta, Georgia
<PAGE>
TABLE OF CONTENTS
ARTICLE I FUNDAMENTAL PROVISIONS, EXHIBITS AND DEFINITIONS ......... 4
1.1 FUNDAMENTAL PROVISIONS .................................... 4
1.2 EXHIBITS .................................................. 5
1.3 DEFINITIONS ............................................... 5
ARTICLE II GRANT AND TERM .......................................... 7
2.1 PREMISES .................................................. 7
2.2 TERM ...................................................... 7
ARTICLE III RENT ................................................... 7
3.1 BASE RENTAL ............................................... 7
3.2 BASE RENTAL ADJUSTMENT .................................... 7
3.3 OPERATING EXPENSES INCREASE ............................... 7
3.4 GENERAL PROVISIONS REGARDING RENT ......................... 8
3.5 INITIAL INSTALLMENT ....................................... 9
3.6 SECURITY DEPOSIT .......................................... 9
3.7 LANDLORD'S SECURITY INTEREST .............................. 9
ARTICLE IV RIGHTS AND DUTIES DURING LEASE TERM ..................... 9
4.1 PREPARATION OF THE PREMISES ............................... 9
4.2 SERVICES .................................................. 10
4.3 LIABILITY OF LANDLORD ..................................... 10
4.4 REPAIRS BY LANDLORD ....................................... 10
4.5 RIGHTS OF LANDLORD TO ENTER PREMISES ...................... 10
4.6 AGREEMENTS OF TENANT ...................................... 11
4.7 SIGNS ..................................................... 11
4.8 BUILDING NAME ............................................. 12
4.9 HAZARDOUS MATERIALS ....................................... 12
4.10 INSURANCE ................................................. 12
4.11 LIENS ..................................................... 13
ARTICLE V ASSIGNMENT AND SUBLETTING ................................ 13
5.1 ASSIGNMENT AND SUBLETTING ................................. 13
ARTICLE VI DEFAULT AND REMEDIES .................................... 14
6.1 EVENTS OF DEFAULT ......................................... 14
6.2 REMEDIES .................................................. 14
ARTICLE VII DESTRUCTION OR DAMAGE; CONDEMNATION .................... 15
7.1 DESTRUCTION OF OR DAMAGE TO PREMISES ...................... 15
7.2 EMINENT DOMAIN ............................................ 15
7.3 DETERMINATION OF TIME REQUIRED TO REBUILD ................. 15
7.4 PARTIAL DESTRUCTION OR TAKING ............................. 16
ARTICLE VIII ADDITIONAL PROVISIONS ................................. 16
8.1 ADDRESSES - NOTICES ....................................... 16
8.2 MANAGER ................................................... 17
8.3 SURRENDER OF PREMISES ..................................... 17
8.4 HOLDING OVER .............................................. 17
8.5 BROKER .................................................... 17
8.6 WAIVER OF RIGHTS .......................................... 17
8.7 WAIVER OF HOMESTEAD AND EXEMPTION; BANKRUPTCY OF TENANT ... 17
8.8 NO ESTATE IN LAND; RELATIONSHIP OF THE PARTIES ............ 18
8.9 RECORDING ................................................. 18
8.10 GOVERNMENTAL REGULATIONS .................................. 18
8.11 SUBORDINATION AND ATTORNMENT: ............................. 19
8.12 ESTOPPEL CERTIFICATION .................................... 19
8.13 SEVERABILITY .............................................. 19
8.14 CAPTIONS .................................................. 20
8.15 SUCCESSORS AND ASSIGNS .................................... 20
8.16 SALE OF BUILDING .......................................... 20
8.17 TRANSFER OF TENANTS ....................................... 20
8.18 GOVERNING LAW ............................................. 20
8.19 TIME IS OF ESSENCE ........................................ 20
8.20 LIMITATION OF LIABILITY ................................... 20
8.21 EXECUTION ................................................. 20
8.22 MULTIPLE TENANTS .......................................... 20
8.23 FORCE MAJEURE ............................................. 20
8.24 QUIET ENJOYMENT ........................................... 20
8.25 ATTORNEYS' FEES ........................................... 20
8.26 ALTERATIONS IN COMPOSITION OF COMMON AREAS ................ 20
8.27 PARKING ................................................... 21
8.28 SPECIAL STIPULATIONS ...................................... 21
8.29 AUTHORIZATION ............................................. 21
<PAGE>
TOWER PLACE OFFICE LEASE
THIS TOWER PLACE OFFICE LEASE (this "Lease") is made as of this 15th
day of Nov., 2000 by and between TOWER PLACE, L.P., a Georgia Limited
Partnership (herein called "Landlord"), and Quality Systems, Inc., a California
Corporation (herein called "Tenant").
ARTICLE I
FUNDAMENTAL PROVISIONS. EXHIBITS AND DEFINITIONS
1.1 FUNDAMENTAL PROVISIONS: The following is a summary of certain
fundamental provisions of the Lease:
<TABLE>
<S> <C>
(a) Landlord: Tower Place, L.P., a Georgia Limited Partnership;
(b) Tenant: Quality Systems, Inc., a California Corporation
(c) Premises: Suite 450
(d) Building: 3340 Peachtree Road N.E., Tower Place, Atlanta, Georgia;
(e) Stipulated Square Footage (Premises): Approximately 7,720 rentable square feet;
(t) Stipulated Square Footage (Building): 609,882 rentable square feet;
(g) Base Rental: Subject to adjustment in accordance with the provisions
of Section 3.2 hereof, One Hundred Eighty Nine One
Hundred Forty, 00/100 DOLLARS ($189,140.00) per annum,
payable monthly in advance in equal installments of
Fifteen Thousand Seven Hundred Sixty One, 67/100 DOLLARS
($15,761.67) per month;
(h) Initial Installment: Fifteen Thousand Seven Hundred Sixty One, 67/100 DOLLARS ($15,761.67);
(i) Security Deposit: $0;
(j) Base Year: Calendar year 2001;
(k) Tenant's Share: 1.27 percent (1.27%);
(l) Anticipated Commencement Date: February 1, 2001; the actual Commencement Date shall be
determined in accordance with the provisions of Section
2.2 and confirmed in the Commencement Date Agreement;
(m) Expiration Date: Five (5) years and (0) months after the Commencement
Date (unless the Commencement Date occurs on other than
the first day of a calendar month, in which case the
Expiration Date shall be the last day of the calendar
month in which foregoing date occurs);
(n) Tenant's Address for Notices: Prior to Commencement Date:
17822 E. 17th Street
Suite 210
Tustin, California 92780
Following Commencement Date:
Tower Place
Suite 450
3340 Peachtree Road, NE
Atlanta, Georgia 30326
Attn:
(0) Manager: Regent Partners, Inc., a Georgia Corporation;
(p) Landlord's Broker: Regent Partners, Inc., a Georgia Corporation;
(q) Tenant's Broker: The Brannen Goddard Company, a Georgia Corporation and
(r) Maximum Number of Parking Spaces Available
to Tenant as of the Commencement Date: Twenty Four (24).
</TABLE>
<PAGE>
It is understood that the foregoing is intended as a summary of certain portions
of the Lease and is intended for convenience only. If there is a conflict
between the above summary and any provisions of this Lease hereafter set forth,
the latter shall govern and control.
1.2 EXHIBITS: The following exhibits are attached to this Lease, are by
this reference incorporated into the Lease and made a part hereof and are to be
construed as part of this Lease:
Special Stipulations
EXHIBIT "A" - Floor Plan(s) of Premises;
EXHIBIT "B" - Legal Description - Tower Place Complex;
EXHIBIT "C" - Commencement Date Agreement (form);
EXHIBIT "D" - Operating Expenses;
EXHIBIT "E" - Work Schedule;
EXHIBIT "F" - Rules and Regulations; and
EXHIBIT "G" - Estoppel Certificate
1.3 DEFINITIONS: The following terms, as defined below, are used generally
in this Lease, in addition to other terms defined herein:
(a) Base Rental means the annual rental provided in Section 1.1
(g) above which is payable pursuant to Section 3.1 and as same may be adjusted
in accordance with the provisions of Section 3.2;
(b) Base Year means the calendar year stipulated in Section 1.1
(j);
(c) Building means the 29-story office building located in the Tower
Place Complex and having a street address of 3340 Peachtree Road N.E., Atlanta,
Georgia, together with any additions, replacements or alterations to same;
(d) Commencement Date means the date on which the Lease Term begins
as determined in accordance with the provisions of Section 2.2 and as
memorialized by Landlord and Tenant in the Commencement Date Agreement. The
Anticipated Commencement Date is as set forth in Section 1.1(1) above;
(e) Commencement Date Agreement means the agreement to be executed
by Landlord and Tenant to memorialize the Commencement Date. The Commencement
Date Agreement shall be in the form attached as Exhibit "C", with the blanks
appearing thereon completed in accordance with the provisions hereof;
(f) Common Area or Common Areas means all areas, whether improved or
unimproved, within the exterior boundaries of the Tower Place Complex which are
now or hereafter made available for the nonexclusive use, convenience and
benefit of Landlord and Tenant and other tenants of the Tower Place Complex,
their employees, agents, customers, invitees and licensees, including, without
limiting the generality of the foregoing, malls, walkways, driveways, curbs,
gutters, sidewalks, corridors, loading zones, service areas, signs, courts,
paving, lighting and landscaped and planted areas. The meaning of "Common Area"
or "Common Areas" may be expanded, contracted or otherwise altered in accordance
with the provisions of Section 8.26;
(g) *
(h) Estimated Operating Expense Increase means Landlord's estimate
of (a) the amount by which the Operating Expenses for an Expense Increase Year
will be in excess of the Operating Expense Base multiplied by (b) Tenant's
Share;
(i) Estimated Operating Statement means a statement rendered to
Tenant setting forth: (A) Landlord's reasonable estimate of the projected
Operating Expenses for the then-current Expense Increase Year, (B) a computation
of the Estimated Operating Expense Increase due for the then-current Expense
Increase Year, (C) a computation of the monthly Estimated Operating Expense
Increase installments to be paid by Tenant pursuant to the Estimated Operating
Statement, being one-twelfth (1/12) of the amount determined pursuant to clause
(B) above, and (D) a computation of the amount due Landlord, or credit due
Tenant, in respect of the lapsed months of the then-current Expense Increase
Year;
(j) Expense Increase Year means each calendar year, commencing with
the calendar year following the Base Year, falling, in whole or in part, within
the Lease Term;
(k) Expiration Date means the date provided or determined as set
forth in Section 1.1(m) above;
(l) Initial Installment means the amount stipulated in Section
1.1(h), equal to one monthly installment of the initial Base Rental, which has
been paid by Tenant to Landlord under the provisions of Section 3.5;
(m) Landlord's Broker means the entity designated in Section 1.1(p);
----------------
LANDLORD
Initials
----------------
TENANT
Initials
----------------
<PAGE>
(n) Landlord's Mortgage means any or all mortgages, deeds to secure
debt, deeds of trust or other instruments in the nature thereof which may now or
hereafter affect or encumber Landlord's title to the Tower Place Complex, the
Building or the Premises, and all modifications, renewals, consolidations,
extensions or replacements thereof;
(o) Lease Term means that period of time beginning on the
Commencement Date and ending on the Expiration Date, as same may be extended or
renewed in accordance with any renewal or extension option expressly provided by
this Lease;
(p) Manager means any entity appointed by Landlord to manage the
Building and/or perform all or certain of Landlord's obligations under this
Lease. The Manager as of the date hereof is stated in Section 1.1 (0);
(q) Operating Expense Base means, subject to Section 3.3(d) hereof,
Operating Expenses for the Building for the Base Year;
(r) Operating Expense Increase means the payments to be made by
Tenant to Landlord in the amounts, at the times and in the manner provided for
by Section 3.3;
(s) Operating Expenses are defined in Exhibit "D", which is attached
hereto, and are subject to Section 3.3(d) hereof;
(t) Operating Statement means a statement setting forth (1) the
Operating Expenses for an Expense Increase Year, (2) a computation of the total
Operating Expense Increase payable by Tenant for such Expense Increase Year, (3)
an accounting for Estimated Operating Expense Increase payments, if any, made
during such Expense Increase Year and (4) the amount of Operating Expense
Increase then payable to Landlord, or the credit in respect thereof to which
Tenant is entitled, for such Expense Increase Year, taking into account (with
respect to any such credit) any increase in Estimated Operating Expense Increase
payments due Landlord pursuant to any Estimated Operating Statement also
rendered with respect to the then-current Expense Increase Year;
(u) *
(v) Premises means that space in the Building described in Section
1.1(c) and more particularly identified by diagonal lines or shaded area on the
floor plan(s) attached as Exhibit "A" to this Lease;
(w) Rules and Regulations mean the agreements of Tenant concerning
the operation and/or use of the Building and/or the Tower Place Complex
contained in the attached Exhibit "F", as same may be modified or replaced from
time to time by Landlord in its sole, but reasonable, discretion;
(x) Security Deposit means the amount stipulated in Section 1.1(i),
which sum has been deposited by Tenant with Landlord under the provisions of
Section 3.6;
(y) Tenant's Broker means the entity, if any, designated in Section
1.1 (q);
(z) Tenant's Share means that number, stated as a percentage,
determined by dividing the number of rentable square feet in the Premises
(which, for purposes of this provision, Landlord and Tenant stipulate to be as
set forth in Section 1.1 (e) as of the date hereof) by the number of rentable
square feet in the Building (which, for purposes of this provision, Landlord and
Tenant stipulate so be as set forth in Section 1.1(f) as of the date hereof).
Therefore, Tenant's Share shall be as stated in Section 1. 1(k) as of the date
hereof;
(aa) Total Rent means, collectively, the Base Rental and the
Operating Expense Increase;
(bb) Tower Place Complex means that certain mixed-use development
situated on the property more particularly described in Exhibit "B" attached
hereto, which development includes, without limitation, a twenty-nine (29)-story
office building, a five (5)-story office building, retail facilities, a six
(6)-story hotel, surface and deck parking and associated plazas, plazas,
sidewalks and other Common Areas, facilities and improvements, as same may be
altered, enlarged or reconfigured from time to time. The Building is a portion
of the Tower Place Complex; and
(cc) Work Schedule means Exhibit "E" which is attached to this
Lease.
ARTICLE II
GRANT AND TERM
2.1 PREMISES: Landlord, for and in consideration of the rents, covenants,
agreements and stipulations herein contained to be paid, kept and performed by
Tenant, has leased and rented, and by these presents leases and rents the
Premises to Tenant, and Tenant hereby leases the Premises from Landlord upon all
the terms and conditions hereof. No easement for light or air is included in the
Premises or given by this Lease. The Premises shall be used for the purpose of
general office use and for no other purposes.
2.2 TERM: Tenant takes and accepts the Premises from Landlord upon the
terms and conditions herein contained, to have and to hold the same for the
Lease Term, unless this Lease terminates earlier. The Lease Term shall begin on
the Commencement Date, which shall be, subject to the provisions of the Work
Schedule, the later of the Anticipated Commencement Date or the date upon which
initial improvements to the Premises, if any, to be made by Landlord in
accordance with the Work Schedule have been substantially completed. To the
extent any improvements are to be made by
----------------
LANDLORD
Initials
----------------
TENANT
Initials
----------------
<PAGE>
Landlord in the Premises in accordance with the Work Schedule, such improvements
shall be deemed so be "substantially completed" when Landlord, in its reasonable
judgment and in consultation with its architects and/or contractors, certifies
to Tenant that (i) such improvements have been substantially completed and (ii)
any certificate of occupancy necessary for Tenant's occupancy of the Premises in
accordance with the provisions of this Lease has been duly issued.
ARTICLE III
RENT
3.1 BASE RENTAL: Tenant covenants and agrees to pay to Landlord the Base
Rental stipulated in Section 1.1(g), as same may be adjusted in accordance with
Section 3.2 below. The Base Rental (as so adjusted from time to time) shall be
payable monthly in advance in equal installments (initially as set out in
Section 1.1 (g), but as hereafter adjusted in accordance with Section 3.2) on
the first (1st) day of every calendar month during the Lease Term, prorated as
appropriate for partial months. If the Lease Term commences on other than the
first day of any calendar month, the first installment of Base Rental shall be a
prorated amount based upon the actual number of days in such month and shall be
due and payable on the Commencement Date.
3.2 * See Sepcial Stipulations #1.
3.3 OPERATING EXPENSE INCREASE:
(a) Tenant covenants and agrees to pay to Landlord, as Operating
Expense Increase for each Expense Increase Year during the Lease Term, a sum
computed by subtracting the Operating Expense Base from the Operating Expenses
shown on the Operating Statement for the Expense Increase Year in question, and
multiplying the result by Tenant's Share. Under no circumstances shall Tenant be
entitled to any refund of or credit against Operating Expenses for any Expense
Increase Year should Operating Expenses ever be less than the Operating Expense
Base. Within one hundred twenty (120) days after the expiration of each Expense
Increase Year, Landlord shall furnish Tenant with an Operating Statement. The
Operating Expense Increase shall, except as provided in paragraph (b) of this
Section 3.3, be due from Tenant thirty (30) days after the rendering of the
Operating Statement for such Expense Increase Year.
(b) Landlord may render an Estimated Operating Statement for any
Expense Increase Year. If and when so rendered from time to time, Tenant shall
pay to Landlord in advance on the first day of each calendar month the monthly
Estimated Operating Expense Increase installments provided for in such Estimated
Operating Statement, such payments to continue until another Estimated Operating
Statement is rendered. Upon the rendering of an Operating Statement for any
Expense Increase Year for which Estimated Operating Expense Increase
installments were paid by Tenant, Tenant shall, within thirty (30) days
thereafter, pay to Landlord the sum of (x) the excess, if any, of the Operating
Expense Increase due for such Expense Increase Year over the monthly Estimated
Operating Expense Increase installments paid by Tenant in respect of such
Expense Increase Year and (y) the excess, if any, of the Estimated Operating
Expense Increase installments due for the current Expense Increase Year, as
shown on the current Estimated Operating Statement, over the Estimated Operating
Expense Increase installments then being paid by Tenant multiplied by the number
of months which shall have elapsed, in whole or in part, since the commencement
of the current Expense Increase Year. If Tenant's Estimated Operating Expense
Increase installments for the prior or current Expense Increase Year shall
exceed the Operating Expense Increase due for the prior Expense Increase Year or
the Estimated Operating Expense Increase due for the current Expense Increase
Year, respectively, such excess shall first be credited against any amounts
shown due on the Operating Statement and the Estimated Operating Statement and
the balance, if any, shall be credited against the next succeeding installment
or installments of Operating Expense Increase or Estimated Operating Expense
Increase becoming due hereunder; provided, however, that if the Lease Term shall
expire or this Lease shall terminate prior to full application of such credit,
any balance due Tenant shall be refunded to Tenant by Landlord if Tenant is not
in default under this Lease (and, if Tenant is in default hereunder, such
balance shall be held as additional security for Tenant's performance, may be
applied by Landlord toward the cure of any such default and shall not be
refunded until any such default is completely cured by Tenant).
(c) Operating Expense Increase shall be prorated on a daily basis
for any Expense Increase Year not wholly failing within the Lease Term.
(d) Tenant acknowledges that certain Operating Expenses will vary
depending on overall occupancy levels in the Building. If the average occupancy
level of the Building was less than ninety-five percent (95%) of the total
rentable square footage of the Building during the Base Year or any Expense
Increase Year, the actual Operating Expenses for the Base Year or Expense
Increase Year in question, as applicable, shall be adjusted to equal Landlord's
reasonable estimate of Operating Expenses had ninety-five percent (95%) of the
total rentable square footage of the Building been occupied. Landlord and Tenant
further acknowledge that the Building is part of the larger Tower Place Complex,
and that certain of the costs of management, operation, maintenance, repair and
security of the Tower Place Complex from time to time shall be allocated among
and shared by two or more of the improvements in the Tower Place Complex
(including the Building). It is also understood that certain costs incurred with
respect to various facilities surrounding the Building may, from time to time,
be allocated (if appropriate) entirely to the Building. The determination of all
such costs and their allocation shall be made by
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Landlord in accordance with sound accounting principles. Accordingly, the term
"Operating Expenses", as used in this Lease with respect to the Building, shall
from time to time include some of the costs, expenses, and taxes enumerated in
Exhibit "D" to this Lease which were incurred with respect to and allocated to
or shared by the Building in accordance with the foregoing. Notwithstanding the
foregoing or anything else contained in this Lease to the contrary, Tenant
understands and agrees that its rights to use other portions of the Tower Place
Complex of which the Building is a part (including the Common Areas) are those
available to the general public and that this Lease does not grant to it
additional rights of use. Specifically, but without limitation, nothing in this
Lease affords Tenant any rights of parking within the Tower Place Complex except
as may be expressly provided in Section 8.27 hereof.
3.4 GENERAL PROVISIONS REGARDING RENT:
(a) The provisions of this Article concerning the payment of
Operating Expense Increase shall survive the expiration or earlier termination
of the Lease Term as to any and all sums due Landlord up to the date thereof,
including Operating Expense Increase due for the last Expense Increase Year, or
portion thereof, falling within the Lease Term, which sum shall be paid promptly
by Tenant in accordance with the terms of this Article III. Within one hundred
twenty (120) days following the expiration or earlier termination of the Lease
Term, Landlord shall render a final Operating Statement, certified by Landlord,
and Landlord and Tenant shall adjust the Operating Expense Increase payment or
credit due Landlord or Tenant, as the case may be, for the last Expense Increase
Year of the Lease Term, all in accordance with the foregoing provisions of
Section 3.3.
(b) It is understood and agreed that Tenant's payments of Operating
Expense Increase shall not be deemed payments of rental as that term is
construed in relation to governmental wage and price control or analogous
governmental actions affecting the amount of rental which Landlord may charge
Tenant. Notwithstanding the foregoing, in the event that such governmental
actions or controls prevent the application of all or any part of the provisions
of this Article III regarding the payment of Operating Expense Increase, Tenant
hereby agrees to pay as monthly rent hereunder the monthly Base Rental plus
one-twelfth (1/12) of the Operating Expense Increase which was due for the
Expense Increase Year preceding the year of the institution of such actions or
controls, but in no case to exceed the maximum rent permitted by such actions or
controls.
(c) Tenant covenants and agrees to be liable for and to pay in a
timely manner all taxes and assessments levied or assessed against personal
property, furniture and fixtures placed by Tenant in the Premises. Further, and
in addition to the Base Rental and Operating Expense Increase, Tenant shall
reimburse Landlord, within the thirty (30) days after written demand, for any
and all taxes payable by Landlord (other than net income taxes), whether or not
now customary or within the contemplation of the parties hereto, (i) upon,
measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures, or personal property located in the Premises, or
any leasehold improvements made in or to the Premises by or for Tenant,
regardless of whether such improvements were constructed by Landlord or Tenant
and regardless of whether title to such improvements shall be in the name of
Landlord or Tenant; (ii) upon, measured by or reasonably attributable to the
Total Rent payable hereunder, or any component thereof, levied by any
governmental body with respect to the receipt of such Total Rent; (iii) upon or
with respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof; and, (iv) upon this transaction or any document to which Tenant is a
party creating or transferring rights, an interest or an estate in the Premises.
In the event that it shall not be lawful for Tenant so to reimburse Landlord,
the monthly Base Rental payable to Landlord under this Lease shall, to the
maximum extent permitted by law, be revised to net Landlord the same net Base
Rental after imposition of any such tax upon Landlord as would have been payable
to Landlord prior to the imposition of any such tax. Tenant shall also be solely
liable for any taxes, including rental, sales and use taxes, assessed directly
against Tenant by any governmental authority.
(d) It is understood and agreed that Base Rental and Operating
Expense Increase shall be due and payable as provided herein, without set off or
deduction whatsoever. Base Rental, Operating Expense Increase and each and every
other charge, fee, cost or expense which Tenant is obligated or liable to pay
to, refund to or reimburse Landlord shall, for the purposes of the default
provisions of this Lease, be deemed additional rental due from Tenant, and
Tenant's failure to so pay, refund or reimburse when due shall entitle Landlord
to all the remedies provided for herein and at law or in equity on account of
failure to pay rent.
(e) Base Rental, Operating Expense Increase and other sums due
hereunder shall be paid in legal tender at Manager's address set forth in
Section 8.1, or to such other address as may be specified by Landlord by notice
given from time to time as provided in such Section 8.1. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of Base
Rental or any other component of Total Rent due under this Lease shall be deemed
to be other than on account of the earliest Base Rental or other such component
of Total Rent due hereunder, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment of Total Rent (or any portion
thereof) be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such Total Rent or to pursue any other remedy provided in this Lease or under
applicable law.
(f) Delay by Landlord in providing Tenant with any statements
regarding Operating Expense Increase shall not relieve Tenant from the
obligation to pay Operating Expense Increase upon the rendering of such
statements.
3.5 INITIAL INSTALLMENT: Simultaneously with the execution of this Lease,
Tenant has paid to Landlord, and Landlord hereby acknowledges the receipt of,
the Initial Installment. Such sum shall be applied by Landlord to the first
monthly installment(s) of Base Rental as they become due hereunder. In the event
Tenant fails to take possession of the Premises in accordance with all the terms
hereof, such sum shall be retained by Landlord for application in reduction, but
not in satisfaction, of damages suffered by Landlord as a result of such breach
by Tenant.
3.6 *
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*
3.7 LANDLORD'S SECURITY INTEREST: In addition to any landlord's lien
arising at law or by statute, Landlord shall have, at all times, and Tenant
hereby grants to Landlord a valid security interest, to secure payment of Total
Rent and other sums of money becoming due hereunder from Tenant, and to secure
performance by Tenant of any covenant, agreement or condition contained herein,
in and upon all goods, wares, equipment, fixtures, furniture, improvements and
other personal property of Tenant presently or which may hereinafter be situated
in the Premises, and all proceeds therefrom, and such property shall not be
removed therefrom without the consent of Landlord until all arranges in Total
Rent as well as any and all other sums of money then due to Landlord hereunder
shall first have been paid and discharged and all of the covenants, agreements,
and conditions hereof have been fully complied with and performed by Tenant.
This provision shall be considered a security agreement and, in consideration of
this Lease, upon the occurrence of an Event of Default by Tenant, Landlord may,
in addition to any other remedies provided herein, exercise all remedies granted
a "Secured Party" under the Uniform Commercial Code in force in the State of
Georgia. Without limitation, Landlord may enter upon the Premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvements, and other personal property of Tenant situated on or in the
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, for cash or on credit, or
for such price and terms as Landlord deems best, at which sale the Landlord or
its assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in Section 8.1 of this Lease at
least five (5) days before the time of sale. Landlord may also, at its option,
foreclose the lien created hereby in the manner and form provided for the
foreclosure of security instruments or in any other manner permitted by law. The
proceeds from any such disposition, less any and all expenses connected with the
taking of possession, holding and selling of the property (including reasonable
attorneys' fees and other expenses), shall be applied as a credit against the
indebtedness secured by the security interest granted in this Section 3.7. Any
surplus shall be paid to Tenant or as otherwise required by law, and Tenant
shall pay any deficiencies forthwith. Upon request by Landlord, Tenant agrees to
execute and deliver to Landlord a financing statement or statements (and
continuation statements as necessary) in form sufficient to perfect the security
interest of Landlord in the aforementioned property and proceeds thereof under
the provisions of the Uniform Commercial Code in force in the State of Georgia.
Any statutory or common law lien for rent is not hereby waived, the security
interest herein granted being in addition and supplementary thereto.
ARTICLE IV
RIGHTS AND DUTIES DURING LEASE TERM
4.1 PREPARATION OF THE PREMISES:
(a) Tenant acknowledges that it has inspected the Premises, that
Landlord has made no representations or warranties whatsoever respecting the
condition thereof or otherwise and that, except as may be expressly provided to
the contrary in the Work Schedule, Landlord has no obligation or duty to make
any alterations, improvements or repairs whatsoever in and to the Premises to
make same ready for Tenant's use and occupancy and Tenant takes and accepts the
Premises in their present "as is" condition. By occupying the Premises, Tenant
shall be deemed conclusively to have accepted the Premises as complying fully
with Landlord's covenants and obligations.
(b) Initial improvements to the Premises, if any, shall be governed
by the Work Schedule.
(c) If the installation of improvements in the Premises causes an
increase in the ad valorem taxes levied or assessed on the Building, Tenant
shall reimburse any such increase to Landlord within thirty (30) days following
written demand by Landlord as contemplated by Section 3.4(c).
(d) Within thirty (30) days after the Commencement Date, Tenant will
execute and deliver to Landlord the Commencement Date Agreement.
4.2 SERVICES: Landlord agrees to provide to Tenant, as Landlord deems
reasonably necessary, the following services (the cost of which, unless
specifically required to be paid for directly by Tenant, shall be included
within Operating Expenses):
(a) General cleaning and janitorial service during the times and in
the manner such janitorial service is customarily furnished in similar office
buildings in the metropolitan Atlanta, Georgia, area;
(b) Heating, air-conditioning and elevator service daily on Mondays
through Fridays, inclusive, from 8:00 A.M. to 6:00 P.M. and on Saturdays from
8:00 AM. to 1:00 P.M., with New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Christmas Day and other days observed generally as
holidays by a majority of the privately-owned businesses in Atlanta, Georgia
excepted. At least one elevator per elevator bank shall be operated at all other
hours and on all other days. Should Tenant desire either heating or air
conditioning at other times, Landlord agrees to provide same upon written
request by Tenant delivered to the Building's Manager during normal business
hours at least twenty-four (24) hours prior to the time when such service is
desired. Any additional service so provided shall be at Tenants expense at such
hourly rates as may be determined from time to time by Landlord, which charge
Tenant shall promptly pay upon being
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billed therefore. Landlord reserves the right to prohibit the use of heat
generating machines and equipment unless and until Tenant makes arrangements,
acceptable to Landlord, to install and maintain supplementary air-conditioning
equipment in the Premises at Tenant's cost and expense, and the costs of
operation of such shall be paid by Tenant on the Base Rental payment dates at
such rates as are established by Landlord; provided, however, that the
maintenance of such supplementary air-conditioning equipment shall be solely
Tenant's, and not Landlord's, duty and responsibility;
(c) 110 volt electric current for lighting and for usual and normal
electric power for office space, all from existing electric circuits designated
by Landlord for Tenant's use. Landlord reserves the right to meter the Premises
or any portion thereof separately, and if the Premises (or any portions thereof)
are so separately metered, Tenant shall pay for all electricity furnished to the
Premises which is so separately metered. Tenant shall not, without Landlord's
prior written consent, use any equipment, including, without limitation,
electronic data processing machines, punch card machines, duplicating machines,
main frame computers, photocopiers, printers or any other machines which use
electric current in excess of 110 volts, which will increase the amount of
electricity ordinarily furnished for the use of the Premises as general office
space or which require clean circuits or other special distribution circuits. If
Tenant desires additional 110 volt electrical power beyond that supplied by
Landlord as provided above, electric current in excess of 110 volts, or other
special power requirements or circuits, then Tenant may request Landlord to
provide such supplemental power to the Premises, which request Landlord may
grant or withhold in its reasonable discretion. If Landlord furnishes such power
or circuits, Tenant shall pay Landlord, on demand, the cost of the design,
installation, and maintenance of the facilities required to provide such
additional or special electric power or circuits and the cost of all electric
current so provided at a rate not to exceed the actual cost to Landlord for such
current. Landlord may require separate electrical metering of such supplemental
electrical power or circuits to the Premises, and Tenant shall pay, on demand,
the cost of the design, installation, and maintenance of such metering
facilities. In no event shall Tenant have access to any electrical closets in
the Building, it being agreed that any electrical engineering design or contract
work shall be performed by Landlord or an electrical engineer and/or electrical
contractor designated by Landlord at Tenant's expense; See Special Stipulation
#2
(d) Common use restrooms and toilets with hot and cold running
water; and
(e) Drinking water available on each floor of the Building.
4.3 LIABILITY OF LANDLORD: Landlord shall not be liable to Tenant in any
manner whatsoever for failure to furnish or delay in furnishing any service or
services provided for in this Lease and no such failure or delay shall
constitute actual or constructive eviction of Tenant or operate to relieve
Tenant from the prompt and punctual performance of each and all the covenants to
be performed herein by Tenant. Except in the case of Landlord's negligence,
Landlord shall also not be liable to Tenant for damage to person or property
caused by defects in, or repairs to, the cooling, heating, electric, water,
elevator or other apparatus or systems or by water discharged from sprinkler
systems, if any, in the Building; likewise, Landlord shall not be liable to
Tenant for the theft, mysterious disappearance, or loss of any property of
Tenant whether from the Premises or any part of the Building or Tower Place
Complex. Landlord agrees to make reasonable efforts to protect Tenant from
interference or disturbance by third persons, including other tenants; however
except in the case of Landlord's negligence, Landlord shall not be liable, and
Tenant shall not be relieved from its obligations hereunder, for any such
interference or disturbance, whether caused by another tenant or tenants of
Landlord, or by other persons.
4.4 REPAIRS BY LANDLORD: Landlord shall have no duty to make any repairs
or improvements to the Premises except structural repairs and repairs to the
Building's base electrical, mechanical and plumbing systems necessary for safety
and tenantability, the necessity for which (i) Landlord is notified in writing
by Tenant, and (ii) is not brought about by any act or neglect of Tenant, its
agents, employees or visitors. Landlord shall not be liable for any failure to
make repairs or to perform any maintenance required hereunder unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant in accordance with
Section 8.1 of this Lease. Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now, or hereafter in effect.
4.5 RIGHTS OF LANDLORD TO ENTER PREMISES: Tenant shall not change the
locks on any entrance to the Premises. Upon Tenant's written request to
Landlord, Landlord agrees to make a reasonable change of locks on behalf of
Tenant and at Tenant's sole cost and expense. Landlord and its agents, employees
and contractors may enter the Premises at such times as Landlord deems
reasonably necessary or desirable to inspect and examine same, to make such
repairs, additions, alterations, and improvements as Landlord desires to make to
the Building, including, without limitation, the erection, use and maintenance
of pipes and conduits, to supply janitorial service and any other service to be
provided by Landlord to Tenant hereunder, and to exhibit the Premises to
prospective purchasers or tenants. In the event of emergency, or if otherwise
necessary to prevent injury to persons or damage to property, such entry to the
Premises may be made by force without any liability whatsoever on the part of
Landlord for any resulting damage. Landlord may also take any and all needed
materials into and through the Premises that may be required to make such
repairs, additions, alterations, and improvements, all without being liable to
Tenant in any manner whatsoever. During such time as such work is being carried
on, provided such work is carried out in a manner so as not unreasonably to
interfere with the use and occupancy of the Premises by Tenant, Total Rent (nor
any portion thereof) shall in no way abate, and, regardless of Landlord's fault,
Tenant waives any claim and cause of action against Landlord for damages by
reason of loss or interruption to Tenant's business and profits therefrom
because of the prosecution of any such work.
4.6 AGREEMENTS OF TENANT: Tenant agrees that it shall:
(a) at its own expense and except for the obligations of Landlord
expressly stated in Section 4.4 of this Lease, keep the Premises in good repair
and tenantable condition and indemnify Landlord against any loss, damage, or
expense arising by any failure of Tenant so to do or due to any act or neglect
of Tenant, its employees, agents or visitors;
(b) make no alterations or additions of any kind in or to the
Premises or the Building without first obtaining Landlord's written consent
which shall not be unreasonably withheld; all such work, including additions,
fixtures and leasehold improvements (but not including moveable office furniture
and equipment and other personal property of Tenant), made or placed in or upon
the Premises or the Building either by Tenant or Landlord shall be and become
Landlord's property at the end of the Lease Term, all without compensation or
payment to Tenant, and shall remain upon and in the Premises, during and at the
termination of the Lease Term;
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(c) not use the Premises for any illegal purpose or violate any
statute, regulation, rule or order of any governmental body, nor create or allow
to exist any nuisances or trespasses, nor do any act in or about the Premises or
bring anything onto or into the Premises which will in any way increase the rate
of insurance on the Premises or reduce the value of the Building or its
attractiveness to other tenants, nor will Tenant deface or injure the Premises
or commit or allow waste to be committed on any portion thereof or overload any
floor of the Premises;
(d) at its sole expense comply, as to its use of the Premises, with
all statutes, regulations, rules, ordinances and orders of any governmental
body, department or agency thereof, and abide by and observe the Rules and
Regulations;
(e) indemnify and hold Landlord harmless from and against any and
all loss, cost, damage, expense, or liability whatsoever, including, without
limitation, court costs and reasonable attorneys' fees, imposed on Landlord by
any person whomsoever, caused in whole or in part by an act or omission of
Tenant or its agents, employees, invitees, licensees, contractors, subtenants or
assignees (the provisions of this Subsection to survive expiration or
termination of this Lease with respect to any act or omission occurring prior to
such expiration or termination);
(f) report immediately in writing to Landlord any defective
condition in or about the Premises known to Tenant, and a failure so to report
shall make Tenant liable to Landlord for any expense or damage to Landlord
resulting from such defective condition;
(g) pay interest to Landlord on demand, at the rate of one and
one-half percent (1 1/2%) per month or the maximum rate permitted by law,
whichever is lower, on any installment of Total Rent not paid when due, accruing
from the due date until paid;
(h) pay to Landlord on demand, in the event that Landlord elects to
accept a payment of any part of the Total Rent which is not received by Landlord
within seven (7) days of its due date, a late charge in an amount equal to the
greater of Fifty Dollars ($50.00) or five percent (5%) of the total outstanding
amount due (which late charge represents an agreed upon charge for Landlord's
administrative expenses in processing late payments, and is not a payment for
the use of money or a penalty); provided, however, nothing contained herein
shall be deemed to require Landlord to accept any payment of Total Rent received
by Landlord after the due date;
(i) pay to Landlord a processing and handling fee of Fifty Dollars
($50.00) for any check of Tenant's which is returned to Landlord because of
insufficient funds, as liquidated damages to compensate Landlord for its
additional administrative costs and expenses in handling such items, it being
agreed that the exact amount thereof would be difficult or impossible to
ascertain;
(j) cooperate with Landlord in complying with all regulations of the
United States Department of Energy and of any governmental agency having
jurisdiction of the Building and/or Tower Place Complex, relating to the
conservation of energy, including, without limitation, any regulations requiring
the production of information regarding the consumption of energy within the
Building and/or Tower Place Complex, and Tenant shall indemnify and hold
Landlord harmless from and against any loss, cost, damage, or liability arising
out of any violation of any such regulations by Tenant, its employees, agents,
contractors, invitees, licensees, subtenants and assignees; and
(k) install telephone service to the Premises only from the
telephone circuits designated by Landlord in writing as those serving the
Premises; if Tenant requires additional telephone service capacity for the
Premises, such capacity must be provided by a telecommunications provider
approved by Landlord, at no cost to Landlord, and the design and installation of
such supplemental capacity shall be subject to the reasonable approval of
Landlord.
4.7 SIGNS: Tenant shall obtain the written approval of Landlord prior to
placing and maintaining, or causing or permitting to be placed and maintained,
any sign, advertising matter or other thing of any kind, on the exterior of the
Premises, or any decorating, lettering or advertising matter on any exterior
door to the Premises. Tenant shall not affix or attach anything to windows in
the Premises or, without Landlord's prior written consent in each instance
(which may be given on such condition as Landlord may reasonably elect), place
signs or similar matter on the Premises which will be visible from outside the
Premises. All exterior and elevator lobby signs shall, unless Landlord otherwise
specifically consents in writing, conform to uniform Building sign
specifications promulgated by Landlord and Landlord shall provide and install
same at Tenant's cost and expense.
4.8 BUILDING NAME: Tenant acknowledges that the Building is part of the
Tower Place Complex known generally as "Tower Place." Tenant covenants and
agrees to cause all directory listings, advertising and all other printed or
written material containing Tenant's address at the Premises accurately to refer
to "Tower Place" or any other name given the Building and/or Tower Place Complex
by Landlord in accordance herewith; however, Tenant shall not, without the prior
written consent of Landlord, use the name Tower Place or any other name given
the Building or Tower Place Complex, or any other deceptively similar name, or
any associated service mark or logo of the Building and/or Tower Place Complex
for any purpose other than Tenant's business address and Tenant, under no
circumstances, shall use the word "Courtyard" in any signage or advertisement.
Upon written notice to Tenant, Landlord reserves the right, from time to time
and at its sole option, to name or change the name of the Building and/or Tower
Place Complex and to change the street address of the Building.
4.9 HAZARDOUS MATERIALS:
(a) Tenant hereby covenants that, from and after the date hereof and
thereafter during the Lease Term, Tenant shall not cause or permit any
"Hazardous Substances" (as hereinafter defined) to be placed, held, located or
disposed of in or about the Premises or the Tower Place Complex or any part of
either and that neither the Premises nor the Tower Place Complex, nor any part
of either, shall ever be used by Tenant or persons claiming under Tenant as a
storage site (whether permanent or temporary) for any Hazardous Substances. For
purposes of this Section 4.9, "Hazardous Substances" shall mean and include
those elements or compounds which are contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency (EPA) or
the list of toxic pollutants designated by Congress or the EPA or which are
defined as hazardous, toxic, pollutant, infectious or radioactive by any other
federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to or imposing liability (including, without
limitation, strict liability) or
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standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect (collectively
"Environmental Laws").
(b) Tenant hereby agrees to comply with all Environmental Laws with
regard to its use and occupancy of the Premises and to indemnify Landlord and
hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of any settlement or judgment and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by
any person, entity or governmental agency for, with respect to, or as a direct
or indirect result of Tenant's failure so to comply or the presence in, or the
escape, leakage, spillage, discharge, emission, or release from, the Premises of
any Hazardous Substance (including, without limitation, any losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of any settlement or judgment or claims asserted or
arising under the Comprehensive Environmental Response, Compensation and
Liability Act, any so-called federal, State or local "Superfund" or "Superlien"
laws or any other Environmental Law); provided, however, that the foregoing
indemnity is limited to matters arising solely from Tenant's violation of the
covenant contained in Subsection 4.9(a) above.
(c) In the event Landlord suspects, in its reasonable opinion, that
Tenant has violated any of the covenants contained in this Section 4.9, or that
the Premises, Retail Complex or Tower Place Complex are not in compliance with
the Environmental Laws for any reason as to which Tenant is responsible
hereunder, or that the Premises, Retail Complex or Tower Place Complex are not
free of Hazardous Substances for any reason as to which Tenant is responsible
hereunder, Tenant shall take such steps as Landlord requires by written notice
to Tenant in order to confirm or deny such occurrences, including, without
limitation, the preparation of environmental studies, audits, surveys or
reports. In the event that Tenant fails to take such action, Landlord may take
such action and shall have such access to the Premises as Landlord deems
necessary, and the costs and expenses of all such actions taken by Landlord,
including, without limitation, Landlord's attorneys' fees, shall be due and
payable by Tenant upon demand therefor from Landlord as additional rent
hereunder. If any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of hazardous materials, then
the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon
demand as additional charges if such requirement applies to the Premises. In
addition, Tenant shall execute affidavits, representations and the like from
time to time at Landlord's request concerning Tenant's best knowledge and belief
concerning the presence of hazardous substances or materials on the Premises.
Further, Landlord reserves the right at any time and from time to time to enter
the Premises following reasonable advance notice thereof to Tenant (except in
cases of emergency) in order to perform periodic environmental studies, audits,
surveys and reports and in order to determine whether Tenant is in compliance
with the terms of this Section 4.9.
(d) The obligations and liabilities of Tenant under this Section 4.9
shall survive the expiration or earlier termination of this Lease or other
enforcement of Landlord's remedies under this Lease.
4.10 INSURANCE:
(a) Tenant agrees that it shall carry fire and extended coverage
insurance insuring Tenant's interest in its improvements and betterments to the
Premises and any and all furniture, equipment, supplies, and other property
owned, leased, held or possessed by it and contained therein, in an amount equal
to the full insurable values thereof (it being understood that no lack of
inadequacy of insurance by Tenant shall in any event make Landlord subject to
any claim by virtue of any theft of or loss or damage to any uninsured or
inadequacy insured property).
(b) Tenant shall also procure and maintain throughout the Lease Term
business interruption insurance in an amount that will reimburse Tenant for
direct or indirect loss of earnings attributable to all perils insured against
under this Section or attributable to the prevention of access to the Premises
by civil authority, and sufficient to reimburse Tenant for Total Rent in the
event of a casualty to, or temporary taking of, the Building or the Premises.
(c) Tenant shall also procure and maintain throughout the Lease Term
a policy or policies of insurance, insuring Tenant, Landlord, Manager and any
other persons designated by Landlord, against any and all liability for injury
to or death of a person or persons and for damage to property occasioned by or
arising out of any construction work being done on the Premises, or arising out
of the condition, use, or occupancy of the Premises, or in any way occasioned by
or arising out of the activities of Tenant, its agents, employees, or licensees
in the Premises, or other portions of the Building or Tower Place Complex, in
amounts not less than $1,000,000 with respect to injuries to or death of any one
person, $1,000,000 with respect to any one casualty or occurrence and $1,000,000
with respect to property damage, or such higher annual policy aggregate limits
as Landlord may reasonably require from time to time during the Lease Term.
Tenant shall also carry or procure any other form or forms of insurance or any
changes or endorsements to the insurance required herein as Landlord or any
Mortgagee (as hereinafter defined) or lessor of Landlord may reasonably require,
from time to time, in form or in amounts.
(d) Landlord and Tenant shall each have included in all policies of
insurance respectively obtained by them with respect to the Building and/or the
Premises a waiver by the insurer of all right of subrogation against the other
in connection with any loss or damage thereby insured against. So long as both
Landlord's and Tenant's policies then in force include such mutual waiver of
subrogation, Landlord and Tenant, to the fullest extent permitted by law, each
waive all right of recovery against the other for and agree to release the other
from liability for, loss or damage to the extent such loss or damage is covered
by valid and collectible insurance in effect at the time of such loss or damage.
If such waiver of subrogation shall not be obtainable or shall be obtainable
only at a premium over that chargeable without such waiver, the party seeking
such waiver shall notify the other thereof in writing, and the latter shall have
ten (10) days in which either (i) to procure on behalf of the notifying party
insurance with such waiver from a company or companies reasonably satisfactory
to the notifying party or (ii) to agree to pay such additional premium (in
Tenant's case, in the proportion which the rentable area of the Premises bears
to the area covered by the insurance policy of Landlord in question).
(e) All insurance policies procured and maintained by Tenant
pursuant to this Subsection 4.10 shall be carried with companies licensed to do
business in the State of Georgia reasonably satisfactory to Landlord and shall
be noncancelable except after thirty (30) days' written notice to Landlord and
any designees of Landlord. Such policies or duly executed certificates of
insurance with respect thereto shall be delivered to Landlord prior to the date
that Tenant takes possession of the Premises, and renewals thereof as required
shall be delivered to Landlord at least thirty (30) days prior to the expiration
of each respective policy term. If Tenant shall fail to procure or maintain any
insurance required of Tenant
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hereunder, Landlord may, at its sole option, but shall not be required to,
procure and maintain the same at the cost and expense of Tenant, and Tenant
agrees to reimburse Landlord for same as additional rent due hereunder within
fifteen (15) days after receiving notice of the amount thereof from Landlord.
4.11 LIENS: No work performed by Tenant in the Premises, whether pursuant
to this Lease or otherwise, whether in the nature of erection, construction,
alteration, addition, improvement, remodeling or repair, shall be deemed to be
for the immediate use and benefit of Landlord, and no mechanic's, materialman's
or other lien shall be allowed against the estate of Landlord by reason of any
consent given by Landlord to Tenant to improve the Premises. Tenant shall pay
promptly all persons furnishing labor or materials with respect to any work
performed by Tenant or its contractor on or about the Premises and Tenant shall
discharge of record within twenty (20) days following the filing thereof, by
payment or bonding, any mechanic's lien filed against the Premises, the Building
or the Tower Place Complex for work or materials claimed to have been furnished
to Tenant.
ARTICLE V
ASSIGNMENT AND SUBLETTING
5.1 ASSIGNMENT AND SUBLETTING:
(a) Tenant shall not, without the prior written consent of Landlord,
which shall not be unreasonably withheld, assign, hypothecate, or otherwise
transfer this Lease or any interest hereunder, or sublet the Premises or any
part thereof, or permit the use of the Premises by any party other than Tenant.
Landlord's consent or refusal to consent to a proposed assignment or sublease
must be an action which is taken reasonably and in good faith. For the purposes
of the immediately preceding sentence, Landlord shall be deemed to be acting
reasonably and in good faith in determining whether to consent to a proposed
assignment or sublease when Landlord considers such factors as, without
limitation, the identity and business reputation of the proposed assignee or
subtenant, the relationship of the proposed assignee or subtenant to the tenant
mix in the Building and/or the Tower Place Complex, the type or nature of the
proposed assignee's or subtenant's business, the creditworthiness of the
proposed assignee or subtenant, and any agreement or leasing restrictions with
existing tenants or other third parties that prohibit or restrict Landlord from
leasing to the proposed assignee or subtenant. Tenant agrees to pay to Landlord
as additional rental, on demand, a Five Hundred Dollar ($500.00) administrative
processing fee in connection with any request by Tenant for consent to a
proposed assignment or subletting and, in addition, reasonable out-of-pocket
costs incurred by Landlord (including, without limitation, attorneys' fees) in
connection with any request by Tenant for Landlord to consent to any assignment
or subletting by Tenant. All monies so paid shall be non-refundable in any
event, regardless of whether Landlord consents to the proposed assignment or
subletting. Any assignment or sublease shall not nullify these provisions, and
all later assignments or subleases shall be made likewise only after the prior
written consent of Landlord is obtained in each instance.
(b) No sublease or assignment by Tenant shall relieve Tenant of any
liability hereunder. Without limiting the foregoing, if, with the consent of
Landlord, this Lease is assigned or the Premises or any part thereof is sublet
or occupied by any party other than Tenant, Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant, and apply the net
amount collected to the Total Rent herein reserved, but no such assignment,
subletting, occupancy, or collection shall be deemed (i) a waiver of any of
Tenant's covenants contained in this Lease, (ii) the acceptance by Landlord of
the assignee, subtenant, or occupancy as Tenant hereunder, or (iii) the release
of Tenant from further performance by Tenant of its covenants under this Lease.
(c) The occupancy of the Premises by any successor firm or entity of
the Tenant or by any firm or entity into which or with which the Tenant may
become merged or consolidated shall be deemed an assignment of this Lease
requiring the prior written consent of Landlord.
(d) Notwithstanding the giving by Landlord of its consent to any
assignment or sublease with respect to the Premises, no such assignee or
sublessee may exercise any expansion option, right of first refusal option, or
renewal option under this Lease, nor shall any such party have the benefit of
any specific signage or other similar privileges or rights which may be provided
to Tenant under this Lease except in accordance with a separate written
agreement entered into directly between such assignee or sublessee and Landlord.
After a permitted assignment or subletting, the original Tenant shall have no
right to exercise on behalf of a permitted assignee or sublessee as to the space
assigned or sublet any expansion option, right of first refusal option or
renewal or extension option.
(e) Should Landlord permit any assignment or subletting by Tenant
and should the monies received as a result of such assignment or subletting
(when compared to the monies still payable by Tenant to Landlord) be greater
than Landlord would have received hereunder had not Landlord permitted such
assignment or subletting, then fifty percent (50%) of the "Gross Profit", shall
be payable by Tenant to Landlord, it being the parties' intention that Landlord,
in consideration of Landlord's permitting such assignment or subletting, shall
receive fifty percent (50%) of any Gross Profit from any such assignment or
subletting. Further, should the assignment or subletting giving rise to the
Gross Profit be arranged by Landlord (or its Manager) on Tenant's behalf (it
being understood that neither Landlord nor its Manager shall have any obligation
to arrange for same), one hundred percent (100%) of the Gross Profit shall be
paid to Landlord.
ARTICLE VI
DEFAULT AND REMEDIES
6.1 EVENTS OF DEFAULT: The occurrence of any of the following shall
constitute "Events of Default" (each an "Event of Default"):
(a) Any part, portion or component of the Total Rent, or any other
sums payable under this Lease, or otherwise, not received when due;
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(b) The Premises are deserted, vacated, or not used as regularly or
consistently as would normally be expected for similar premises put to the same
or similar purposes as set forth in Section 2.1, even though Tenant continues to
pay Total Rent;
(c) Any petition is filed by or against Tenant under any section or
chapter of the Federal Bankruptcy Code, and, in the case of a petition filed
against Tenant, such petition is not dismissed within sixty (60) days after the
date of such filing;
(d) Tenant becomes insolvent or transfers property in fraud of
creditors;
(e) Tenant makes an assignment for the benefit of creditors;
(f) A receiver is appointed for any of the Tenants assets; or
(g) Tenant breaches or fails to comply with any term, provision,
condition or covenant of this Lease, other than the payment of Total Rent, or
any of the Rules and Regulations, excepting Tenant shall not be deemed in
default if it commences to cure said default in a timely manner and diligently
proceeds to cure said default expeditiously.
6.2 REMEDIES:
(a) Upon the occurrence of an event of default, Landlord shall have
the option to do and perform any one or more of the following, in addition to,
and not in limitation of, any other right or remedy available to Landlord at law
or in equity or elsewhere under this Lease if the events of default described in
Subsections 6.1(a) or (b) are not cured within five (5) days after written
notice by Landlord of such default, if the events described in Subsection 6.1(g)
are not cured within twenty (20) days after written notice of such default
(unless such default gives rise to immediate threat to person or property, in
which case such event of default shall immediately entitle Landlord to its
rights and remedies) or if any of the other events of default are not cured
immediately:
(i) terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, but if Tenant shall fail to do
so, Landlord may, without further notice and without prejudice so any other
remedy Landlord may have for possession or arrearages in Total Rent, enter upon
the Premises and expel or remove Tenant and Tenant's effects, by force if
necessary, without being subject to prosecution or liable for any claim for
damages therefore; and Tenant agrees to indemnify Landlord for all loss and
damage which Landlord may suffer by reason of such termination, whether through
inability to relet the Premises, or through decrease in rent, or otherwise (such
agreement to survive any such termination of this Lease); and/or
(ii) terminate Tenant's right of possession of the Premises
without terminating this Lease, and enter the Premises as the agent of Tenant,
by force if necessary, without being subject to prosecution or liable for any
claim for damages therefore, and relet the Premises as the agent of Tenant
without advertisement and by private negotiations and or any term Landlord deems
proper, and receive the rent therefor, and Tenant shall pay Landlord upon demand
any deficiency that may arise by reason of such reletting, but Tenant shall not
be entitled to any surplus funds generated by such reletting; Tenant shall
reimburse Landlord for all costs of reletting the Premises, including, but not
limited to, advertising expenses, commissions, and the cost of improvements
reasonably required in order to relet the Premises; and/or
(iii) as agent of Tenant, do whatever Tenant is obligated to
do by the provisions of this Lease and enter the Premises, by force if
necessary, without being subject to prosecution or liable for any claims for
damages therefor, in order to accomplish this purpose; Tenant agrees to
reimburse Landlord immediately upon demand for any expenses which Landlord may
incur in thus effecting compliance with this Lease on behalf of Tenant, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by the negligence of
Landlord or otherwise; and/or
(iv) collect as liquidated damages and not as a penalty, and
in addition so all Total Rent and other amounts previously due and unpaid under
the terms and conditions of the Lease, the accelerated present value of the
Total Rent, and all other sums provided herein to be paid by Tenant during the
remainder of the Lease Term (the "Rent Balance"), less the Net Rental Value of
the Premises, as hereinafter defined; the term "Net Rental Value" shall mean the
fair rental value of the Premises for the remainder of the Lease Term reduced to
present value, less the Landlord's costs, expenses and attorneys' fees in
connection with the preparation of the Premises for reletting and for the
reletting itself; provided, however, the parties agree that in no event shall
the Net Rental Value exceed the Rent Balance; the parties further agree that the
damages caused by the Tenant's default would be difficult or impossible
accurately to estimate and that this measure of damages is a reasonable
pre-estimate of the Landlord's probable loss resulting from Tenant's breach; the
acceptance of the liquidated damages set forth in this paragraph shall not
constitute a waiver of any failure of Tenant thereafter occurring to comply with
any term, provision, condition or covenant of this Lease.
(b) If Landlord exercises any of the remedies set forth in Section
6.2(a) or under Georgia law, in addition to all other costs and expenses
Landlord shall be entitled to recover under this Lease, Landlord shall also be
entitled to recover:
(i) the cost of performing any other covenants which would
have otherwise been performed by Tenant;
(ii) the amount of any rental abatement or other rental
concession provided by Landlord to Tenant; provided, however, that in no event
shall Tenant's liability hereunder exceed the Total Rent due under this Lease;
(iii) all sums expended by Landlord, and not previously
reimbursed to Landlord by Tenant, in connection with improving or repairing the
Premises to Tenant's specifications; and
(iv) all costs and expenses incurred by Landlord in connection
with the termination of this Lease and eviction of Tenant.
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ARTICLE VII
DESTRUCTION OR DAMAGE: CONDEMNATION
7.1 DESTRUCTION OF OR DAMAGE TO PREMISES: If because of fire, the
elements, or Act of God, the Premises or the Building is either destroyed or
damaged so as to render the Premises wholly unfit for occupancy, or if, in the
judgment of Landlord, the damage resulting cannot be repaired within sixty (60)
days from such damage, then at the option of Landlord to be exercised by giving
written notice to Tenant within sixty (60) days following the date of such
damage, this Lease shall terminate on the date of such election, and Tenant
shall immediately surrender the Premises to Landlord. In such event, and
regardless of whether Landlord elects to terminate this Lease, Tenant shall
continue to owe and pay Total Rent up to but not beyond the time of such
surrender, but Total Rent shall abate in proportion to the number of square feet
of rentable area of the Premises rendered unusable by such damage. Under no
circumstances shall Landlord be liable to Tenant for inconvenience, annoyance,
loss of profits, expenses, or any other type of injury or damage resulting from
the repair of any such damage, or from any repair, modification, arranging, or
rearranging of any portion of the Premises or any part or all of the Building or
for termination of this Lease as provided above. Tenant assumes the risks of any
and all damage to its personal property in or on the Premises and from any
casualty whatsoever.
7.2 EMINENT DOMAIN: If all of the Premises or the Building is taken, or if
such a part of either is taken so as to render the remainder thereof unsuitable
for Landlord's or Tenant's purposes, for any public or quasi-public use by
eminent domain or by private purchase in lieu thereof, this Lease shall
terminate at the option of either Landlord or Tenant on the date that the
condemning authority actually takes possession of the part condemned. If this
Lease is not so terminated, or upon a taking not within the scope of the
foregoing, Total Rent shall abate for the period of such taking in proportion to
the area of the Premises taken. In no event shall Tenant have any right or claim
to any part of any award made to or received by Landlord for such taking, or
against Landlord or the condemning authority for the value of any unexpired term
of this Lease, and Tenant hereby assigns any such claim to Landlord. Nothing
herein contained, however, shall preclude Tenant from claiming, proving and
receiving from the condemning authority a separate award for the value of any of
Tenant's personal property taken which Tenant could have rightfully removed from
the Premises hereunder and for relocation and moving expenses, so long as the
Landlord's award is not thereby reduced.
7.3 DETERMINATION OF TIME REQUIRED TO REBUILD: Within ten (10) business
days following any casualty described in Section 7.1, or any taking described in
Section 7.2, Landlord shall give Tenant a notice stating (a) Landlord's estimate
of the portion of the Premises rendered untenable as a result of such casualty
or taking and (b) Landlord's estimate of the time required for restoration. If
Landlord and Tenant do not agree within ten (10) days after the casualty or
taking as to the length of time which would be required for restoration, the
issue shall be submitted, promptly, by both parties, or either party, to the
president or principal officer of the Atlanta, Georgia, Chapter of the American
Institute of Architects (or successor thereto) whose determination shall be
binding upon the parties. Landlord and Tenant shall share equally in the cost of
obtaining the opinion of said person.
7.4 PARTIAL DESTRUCTION OR TAKING: If the Premises are damaged as a
result of a casualty described in Section 7.1 or a taking described in Section
7.2 but this Lease is not terminated as a result of such casualty or taking, all
rental shall abate in proportion to the amount of the Premises which shall have
been rendered unusable; provided, however, that Tenant's obligation to pay Total
Rent shall not cease or abate if the damage to the Premises or the Building was
caused through the negligence or willful misconduct of Tenant, its agents,
employees, contractors, invitees, licensees, subtenants, or assignees. Further,
in such a case, Landlord will promptly, at its sole cost and expense, restore,
replace or rebuild the same as nearly as possible to the structural and
architectural condition existing immediately prior to such casualty or taking
and as expeditiously as practicable but within a period beginning on the
earliest date upon which the time required for restoration has been determined
and any options of Landlord or Tenant to terminate this Lease, if any, have
expired, and having a length not exceeding one hundred twenty-five percent
(125%) of the length of time required to rebuild as determined pursuant to
Section 7.3 as the same may be extended pursuant to Section 8.23, whereupon full
rental shall recommence. If the damage or seizure affects more than twenty-five
percent (25%) of the area of the Premises, or such a fraction that would leave
the remainder of the Premises untenable and Landlord fails to complete such
restoration, replacement or rebuilding within such period, Tenant shall be
entitled at any time up to the earlier often (10) days following the expiration
of the time permitted for restoration or the actual date of completion of
restoration, replacement or rebuilding, by notice to Landlord, to terminate this
Lease as of a date not more than sixty (60) days following the date of such
notice. Notwithstanding anything herein contained to the contrary, Landlord
shall have no obligation to repair any improvements to the Premises constructed
by Tenant or Tenant's agents or contractors or, if constructed or installed by
Landlord, any improvements required to be insured by Tenant in accordance with
the provisions of this Lease (unless insurance proceeds for repair are made
available to Landlord) and Tenant shall, upon substantial completion by Landlord
of its repairs required hereunder, promptly and diligently and at its sole cost
and expense, repair and restore any improvements to the Premises made by Tenant,
as well as Tenant's contents, to the condition thereof prior to such destruction
or damage.
See Special Stipulation #3
ARTICLE VIII
ADDITIONAL PROVISIONS
8.1 ADDRESSES-NOTICES:
(a) Except for legal process which may also be served as provided by
law, all notices required or desired to be given with respect to this Lease
shall be in writing and shall be delivered (a) by certified or registered mail,
return receipt requested, with proper postage prepaid and addressed to the party
as set out below, or (b) by hand delivery to the address set out below. Any such
notice or demand shall be effective and deemed delivered and received on the
date given by hand delivery, or on the date of deposit with the United States
mail in the manner aforesaid for notices given by registered or
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certified mail; provided that the period of time in which a response to a mailed
notice must be given or taken shall run from the date of receipt as indicated on
the return postal receipt. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed receipt of the notice, demand or request sent. Any party may change its
address for notices to any other location within the continental United States
by notifying the other parties of the new address in the manner provided herein
for the giving of notices, with such change to become effective ten (10) days
after notice of the change of address is given. For the purposes hereof, notices
to Tenant shall be sent to the addresses set out in Section 1.1(n). Notices to
Landlord and Manager shall be sent to the following addresses:
(i) To Landlord:
Tower Place, L.P.
c/o Regent Partners, Inc.
3348 Peachtree Road, NE
Suite 1000
Atlanta, Georgia 30326
Attn: Debra Cobbs
(With a copy of any notice sent to Landlord sent also to
Manager at Manager's address set forth as provided herein); and
(ii) To Manager:
Regent Partners, Inc.
Tower Place
3348 Peachtree Road, NE
Suite 1000
Atlanta, Georgia 30326
Attn: Property Manager
(b) Tenant hereby designates and appoints as its agent to receive
notice of all dispossessory or distraint proceedings the person in charge of or
occupying the Premises at the time such notice is given, or, if there is no such
person, then such service of notice may be made by attaching it on the main
entrance of the Premises.
(c) In the event that Landlord gives notice to Tenant of the name
and address of any holder of a Landlord's Mortgage (such holder being herein
referred to as a "Mortgagee"), Tenant agrees to send to any such Mortgagee, by
certified mail, a copy of any notice of default given by Tenant to Landlord.
Tenant further agrees that if such default is not cured by Landlord, the
Mortgagee shall be allowed thirty (30) days in which to cure the default or, if
the default cannot be cured within the thirty (30)-day period, to begin
diligently pursuing such cure. Nothing herein contained shall in any way
obligate the Mortgagee to cure or pursue the cure of any such default.
8.2 MANAGER: Landlord shall have the right to delegate any and all of its
obligations under this Lease to an entity engaged in the operation and
management of office buildings in the metropolitan area of Atlanta, Georgia (any
such entity herein referred to as "Manager"). Such delegation shall not,
however, relieve Landlord of any such obligations. The initial Manager is as
stated in Section 1.1(o) and such Manager's address is set out in Section
8.1(a) above. Landlord may designate a replacement Manager at any time and from
time to time by notice to Tenant.
8.3 SURRENDER OF PREMISES: Upon the expiration or other termination of the
Lease Term, as the same may have been extended, Tenant shall promptly quit and
surrender to Landlord the Premises (and the keys thereto), together with all
improvements belonging to Landlord, free of debris, broom clean, ordinary wear
and tear excepted, and Tenant shall remove all of its personal property required
or permitted to be removed hereunder; provided, however, that Tenant shall not
be permitted to remove any movable furniture, personal property, or equipment
from the Premises at any time, including at the end of the Term or any renewal
thereof or other sooner termination of this Lease, if Tenant is then in material
default under this Lease. All such property not promptly removed by Tenant shall
be deemed abandoned by Tenant, and title to the same shall pass to Landlord
under this Lease as by a bill of sale.
8.4 HOLDING OVER: Should Tenant remain in possession of the Premises after
the expiration or other termination of the Lease Term, Tenant shall be a tenant
at sufferance (absent a written agreement to the contrary signed by Landlord) at
a rental rate equal to one hundred fifty percent (150%) of the Total Rent then
applicable hereunder, and otherwise on the same terms and conditions as herein
provided as applicable to a tenancy at sufferance. In addition, Tenant shall
indemnify and hold harmless Landlord from all loss or damage which may result
from Tenant's holding over. Without limiting the foregoing, Tenant shall
indemnify Landlord against all claims made by any other Tenant or prospective
Tenant against Landlord resulting from such delay by Landlord in delivering
possession of the Premises to such tenant or prospective Tenant. Nothing herein
shall be construed as constituting Landlord's consent or approval to any such
holdover, nor operate to preclude or inhibit the exercise by Landlord of all of
its rights and remedies hereunder or available under applicable law to
dispossess or evict Tenant. There shall be no renewal of this Lease by operation
of law.
8.5 BROKERS: Except with respect to Landlord's Broker (whose commission
Landlord shall pay) and Tenant's Broker, if any, (to whom Landlord's Broker is
obligated to pay a portion of such commission in accordance with a separate
written agreement between Landlord's Broker and Tenant's Broker), Tenant and
Landlord each represents and warrants to the other that no broker, agent,
commission salesman or other person has represented the warranting party in the
negotiations for and procurement of this Lease and of the Premises, and that no
commissions, fees or compensation of any kind are due and payable in connection
herewith to any such person or entity. The individual(s) executing this
Agreement on behalf of Tenant hereby swear to and for the benefit of Landlord,
any lender of Landlord holding a lien or security title interest in and to all
or any portion of the Building, any attorney certifying title to the Building
and any title insurance company insuring title to all or any portion of the
Building that (a) except for Tenant's Broker, if any, (i) all fees, commissions,
compensation or other amounts payable to any and all real estate brokers engaged
by Tenant in connection with the Lease have been paid in full, or (ii) the
rights of any and all real estate brokers engaged by Tenant to file any lien,
notice of lien or claim of lien under O.C.G.A. Section 44-14-600 et seq. have
been waived in writing by such broker, and (b) except for the commission payable
by
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Landlord to Tenant's Broker, in accordance with the separate written agreement
between Landlord's Broker and Tenant's Broker, if any, all fees, commissions,
compensation or other amounts payable to Tenant's Broker in connection with this
Agreement have been paid in full. Each party further warrants that any
compensation arrangement with the parties excepted from the foregoing warranty
has been reduced to writing in its entirety in a separate agreement signed
simultaneously with or before this Lease by the party against whom the
commission or compensation is charged. Each party agrees to indemnify and hold
the other harmless from and against any claim for any such commissions, fees, or
other form of compensation by any such third party claiming through the
indemnifying party, including, without limitation, any and all claims, causes of
action, damages, costs and expenses (including attorneys' fees) associated
therewith.
8.6 WAIVER OF RIGHTS: No failure or delay by Landlord to exercise any
right or power given it or to insist upon strict compliance by Tenant with any
obligation imposed on it, and no custom or practice of either party hereto at
variance with any term hereof shall constitute a waiver or a modification of the
terms hereof by Landlord or any right it has herein to demand strict compliance
with the terms hereof by Tenant. This Lease contains the sole and entire
Agreement of Landlord and Tenant and no prior or contemporaneous oral or written
representation or agreement between the parties and affecting the Premises shall
have legal effect. No representative, agent or employee of Landlord has or shall
have any authority to waive any provision of this Lease unless such waiver is
expressly made in writing and signed by an authorized representative of
Landlord.
8.7 WAIVER OF HOMESTEAD AND EXEMPTION: BANKRUPTCY OF TENANT:
(a) Tenant hereby waives and renounces all homestead or exemption
rights which Tenant may have under or by virtue of the Constitution and Laws of
the United States, Georgia, or any other State as against any debt Tenant may
owe Landlord under this Lease, and hereby transfers, conveys, and assigns to
Landlord all homestead or exemption rights which may be allowed or set apart to
Tenant, including such as may be set apart in any bankruptcy proceeding, to pay
any debt owing by Tenant to Landlord hereunder.
(b) Tenant acknowledges that this Lease is a lease of nonresidential
real property and therefore agrees that Tenant, as the debtor in possession, or
the trustee for Tenant (collectively, the "Trustee") in any proceeding under
Title 11 of the United States Bankruptcy Code, as amended (the "Bankruptcy
Code"), relating to bankruptcy, shall not seek or request any extension of time
to assume or reject this Lease or to perform any obligations of this Lease which
arise from or after the order of relief. Further, Tenant agrees as follows:
(i) If the Trustee proposes to assume or to assign this Lease
or sublet the Premises (or any portion thereof) to any person or entity which
shall have made a bona fide offer to accept an assignment of this Lease or a
subletting on terms acceptable to the Trustee, then the Trustee shall give
written notice to Landlord and any Mortgagee of which Tenant has notice, setting
forth the name and address of such person or entity and the terms and conditions
of such offer, no later than twenty (20) days after receipt of such offer, but
in any event no later than ten (10) days prior to the date on which the Trustee
makes application to the Bankruptcy Court for authority and approval to enter
into such assumption and assignment or subletting. Landlord shall have the prior
right and option, to be exercised by written notice to the Trustee given at any
time prior to the effective date of such proposed assignment or subletting, to
accept an assignment of this Lease or subletting of the Premises upon the same
terms and conditions and for the same consideration, if any, as the bonafide
offer made by such person or entity, less any brokerage commissions which may be
payable out of the consideration to be paid by such person or entity for the
assignment or subletting of this Lease.
(ii) The Trustee shall have the right to assume Tenant's
rights and obligations under this Lease only if the Trustee: (i) promptly cures
or provides adequate assurance that the Trustee will promptly cure any default
under the Lease; (ii) compensates or provides adequate assurance that the
Trustee will promptly compensate Landlord for any actual pecuniary loss incurred
by Landlord as a result of Tenant's default under this Lease; and, (iii)
provides adequate assurance of future performance under the Lease. Adequate
assurance of future performance by any proposed assignee or subtenant shall
include, at a minimum, assurance that: (a) any proposed assignee or subtenant
shall deliver to Landlord a security deposit in an amount equal to at least
three (3) months' Base Rental accruing under the Lease; (b) any proposed
assignee or subtenant shall provide to Landlord an audited financial statement,
dated no later than six (6) months prior to the effective date of such proposed
assignment or sublease with no material change therein as of the effective date,
which financial statement shall show the proposed assignee or subtenant to have
a net worth equal to at least twelve (12) months' Base Rental accruing under the
Lease, or, in the alternative, the proposed assignee or subtenant shall provide
a guarantor of such proposed assignee's or subtenant's obligations under the
Lease, which guarantor shall provide an audited financial statement meeting the
requirements of this subpart and shall execute and deliver to Landlord a
guaranty agreement in form and substance acceptable to Landlord; and, (c) any
proposed assignee or subtenant shall grant to Landlord a security interest in
favor of Landlord in all furniture, fixtures, and other personal property to be
used by such proposed assignee or subtenant in the Premises. All payments of
Total Rent required of Tenant under this Lease, whether or not expressly
denominated as such in this Lease, shall constitute rent for the purposes of
Title 11 of the Bankruptcy Code.
(iii) For the purposes of the Bankruptcy Code relating to (i)
the obligation of the Trustee to provide adequate assurance that the Trustee
will "promptly" cure defaults and compensate for actual pecuniary loss, the word
"promptly" shall mean that cure of defaults and compensation will occur no later
than sixty (60) days following the filing of any motion or application to assume
this Lease; and (ii) the obligation of the Trustee to compensate or to provide
adequate assurance that the Trustee will promptly compensate Landlord for
"actual pecuniary loss" shall mean Landlord's damages upon default, including
but not limited to payments of past due Total Rent, including (without
limitation) interest at the rate provided for in Section 4.6(g), all attorneys'
fees, and all related costs and expenses of Landlord incurred in connection with
any default of Tenant and in connection with Tenant's bankruptcy proceedings.
(iv) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed, without
further act or deed, to have assumed all of the obligations arising under this
Lease and each of the conditions and provisions hereof on and after the date of
such assignment. Any such assignee shall, upon the request of Landlord,
forthwith execute and deliver to Landlord an instrument, in form and substance
acceptable to Landlord, confirming such assumption.
8.8 NO ESTATE IN LAND: RELATIONSHIP OF THE PARTIES: This Lease creates the
relationship of landlord and tenant between Landlord and Tenant. No estate shall
pass out of Landlord, and Tenant has only a usufruct which
<PAGE>
is not subject to levy and sale. Further, nothing contained herein shall be
deemed or construed by the parties hereto, or by any third party, as creating
the relationship of principal and agent, or of partnership, or of joint venture,
between the parties hereto, it being understood and agreed that no provision
contained herein, nor any acts of the parties hereto, shall be deemed to create
any relationship between such parties other than the relationship of landlord
and tenant.
8.9 RECORDING: This Lease shall not be recorded by Tenant without
Landlord's consent endorsed hereon.
8.10 GOVERNMENTAL REGULATIONS:
(a) Tenant waives the benefits of all existing and future rent
control legislation and statutes and similar governmental rules and regulations,
whether in time of war or not, to the full extent permitted by law.
(b) Except as provided in paragraph (c) of this Section 8.10, if, in
order to maintain the Building as an office building, or otherwise, or the
Premises for the use stipulated in Section 2.1, Landlord shall be required by
any governmental authority to repair, alter, remove, construct, reconstruct, or
improve any part or all of the Premises or the building, such action shall be
performed by Landlord but shall in no way affect Tenant's obligations under this
Lease. Tenant waives all claim for injury, damage or abatement of rent because
of such repair, alteration, removal, construction, reconstruction, or
improvement; provided, however, that if such action by Landlord renders the
Premises untenable, or if Landlord cannot reasonably complete such acts within
sixty (60) days after notice to it to perform such acts by the governmental
authority, either Landlord or Tenant, by written notice to the other delivered
not later than seventy (70) days after the date of notice to Landlord by such
governmental authority, may terminate this Lease, in which event Total Rent
shall be apportioned and paid up to and including the date the Premises become
untenable if terminated by Landlord, but up to and including the date of
termination if terminated by Tenant.
(c) Without limiting the provisions of Section 4.6(d), Tenant shall,
at Tenant's sole cost and expense but subject to Landlord's prior written
approval, which approval shall not be unreasonably withheld, make each and every
alteration or addition to the Premises required to bring the Premises into
compliance with the requirements imposed by the Americans with Disabilities Act,
(42 U.S.C. Section 12101 et~q,) and any regulations promulgated pursuant
thereto ("ADA Requirements") effective from time to time during the Lease Term,
and any period of holding over by Tenant if:
(i) the requirement for such alteration or addition arises as
a result of:
(1) any alteration or addition by Tenant; or
(2) any violation by Tenant of any ADA Requirements;
or
(3) a special use of the Premises or any part thereof
by Tenant or any assignee or subtenant of Tenant
(including, but not limited to, use for a facility
which constitutes, or, if open to the public
generally, would constitute, a "place of public
accommodation" under the ADA Requirements); or
(4) the special needs of the employee(s) of Tenant or
any assignee or subtenant of Tenant; or
(ii) the ADA Requirements would otherwise make Tenant, rather
than Landlord, primarily responsible for making such alteration or addition.
8.11 SUBORDINATION AND ATTORNMENT:
(a) Except as provided in Subsection (c) below and subject to the
provisions of subsection (d) below, this Lease and all rights of Tenant
hereunder are and shall be subject and subordinate to the lien of Landlord's
Mortgage.
(b) While Subsection (a) of this Section 8.11 is self-operative, and
no further instrument of subordination shall be necessary, Tenant shall, in
confirmation of such subordination, upon demand, at any time or times, execute,
acknowledge and deliver to Landlord or a holder of Landlord's Mortgage any and
all instruments requested by either of them to evidence such subordination.
(c) Tenant shall, upon demand, at any time or times, execute,
acknowledge, and deliver to Landlord or to a holder of Landlord's Mortgage,
without expense, any and all instruments that may be necessary to make this
Lease superior to the lien of Landlord's Mortgage.
(d) Tenant shall, at the option of any holder of Landlord's Mortgage
or any other purchaser at a foreclosure sale who shall hereafter succeed to the
rights of Landlord under this Lease (the "Purchaser"), attorn to and recognize
such Purchaser as Tenant's landlord under this Lease from and after the
foreclosure and for the balance of the Lease Term and shall promptly execute and
deliver any instrument that may be necessary to evidence such attornment. Upon
such attornment, this Lease shall continue in full force and effect as a direct
lease between such Purchaser and Tenant, subject to all of the terms, covenants
and conditions of this Lease; provided, however, that the Purchaser (including
its successors and assigns) shall not be (i) liable for any act or omission of
any prior Landlord under the Lease, (ii) subject to any offsets or defenses
which Tenant might have against any prior Landlord under the Lease, (iii) bound
by any Base Rental or other payments which Tenant might have paid for more than
the current month to any prior Landlord under the Lease, or (iv) bound by any
amendment or modification of the Lease made after the date of the foreclosed
Landlord's Mortgage without the prior written consent of the Mortgagee
thereunder. The provisions of this subsection (d) shall survive any termination
of this Lease resulting from a foreclosure of Landlord's Mortgage.
(e) If Tenant fails at any time to execute, acknowledge and deliver
any of the instruments provided for by Subsections 8.11(b), (c) and (d) above
within ten (10) days after Landlord's demand so to do, Landlord, in addition to
the
<PAGE>
remedies allowed by Article VI, may execute, acknowledge and deliver any and all
of such instruments as the attorney-in-fact of Tenant and in its name, place and
stead, and Tenant hereby irrevocably appoints Landlord, its successors and
assigns, as such attorney-in-fact.
8.12 ESTOPPEL CERTIFICATE: At any time and from time to time, Tenant, on
or before the date specified in a request therefor made by Landlord, which date
shall not be earlier than ten (10) days from the making of such request, shall
execute, acknowledge and deliver to Landlord a certificate in substantially the
same form as the Estoppel Certificate which is attached hereto as Exhibit "G"
and incorporated herein by reference. Each certificate delivered pursuant to
this Section may be relied on by any prospective purchaser or transferee of
Landlord's interest hereunder or of any part of Landlord's property or by any
holder or prospective holder of Landlord's Mortgage, or a mortgage or
prospective mortgage of any part of Landlord's other property.
8.13 SEVERABILITY: Each clause and provision of this Lease shall be valid
and enforced to the fullest extent permitted by applicable law; however, if any
clause or provision of this Lease is or becomes illegal, invalid, or
unenforceable because of present or future laws or any rule or regulation of any
governmental body or entity, effective during its term, the intention of the
parties hereto is that the remaining parts of this Lease and the application of
such clause or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, unless
the amount of Total Rent payable hereunder is thereby decreased, in which event
Landlord may terminate this Lease. Should any of the provisions of this Lease
require judicial interpretation, it is agreed that the court interpreting or
construing the same shall not apply a presumption that the terms of any such
provision shall be more strictly construed against one party by reason of any
rule of construction that a document is to be construed most strictly against
the party who itself or through its agent prepared the same, it being agreed
that the agents of all parties have participated in the negotiation and
preparation of this Lease.
8.14 CAPTIONS: The captions used in this Lease are for convenience only
and do not in any way limit or amplify the terms and provisions hereof.
8.15 SUCCESSORS AND ASSIGNS: The provisions of this Lease shall inure to
the benefit of and be binding upon Landlord and Tenant, and their respective
successors, heirs, legal representatives and assigns, subject, however, in the
case of Tenant, to the provisions of Article V.
8.16 SALE OF BUILDING: In the event of any sale or sales of the Building
(and the property on which same is situated) or of any lease thereof, the
Landlord named herein above shall be and hereby is entirely freed and relieved
of all covenants and obligations of Landlord hereunder accruing thereafter, and
it shall be deemed without further agreement that the purchaser, or the lessee,
as the case may be, has assumed and agreed to carry out any and all covenants
and obligations of Landlord hereunder during the period such party has
possession of the Building. Should the entire Building and the property on which
same is situated be severed as to ownership by sale and/or lease, then the owner
of the entire Building or the lessee of the entire Building that has the right
to lease space in the Building to tenants shall be deemed the "Landlord". Tenant
shall be bound to any succeeding Landlord for all the terms, covenants and
conditions hereof and shall execute any attornment agreement not in conflict
herewith at the request of any succeeding Landlord. The provisions of this
Section 8.16 shall apply to each and every sale, lease or other transfer of the
Building or the property on which same is situated, or both, during the Lease
Term.
8.17 TRANSFER OF TENANTS: This Section 8.17 shall only be effective at
such times and from time to time as the Premises contain a rentable area of
3,000 square feet or less. Landlord hereby reserves the right, at its sole
option and upon giving at least sixty (60) calendar days written notice in
advance to Tenant, to transfer and remove Tenant from the Premises from time to
time to any other available space in the Tower Place Complex of substantially
equal area, which space shall, once Tenant has been relocated therein, be deemed
the "Premises" for purposes of this Lease. Landlord hereby agrees to bear the
expense of such transfer and removal, as well as the expense of any renovations
or alterations which are necessary to make the new space conform substantially
in layout and appointment with the Premises. Failure of Tenant to cooperate with
Landlord pursuant to this provision and to remove itself from the Premises shall
permit Landlord to enter the Premises and to remove Tenant and its property
therefrom and to relocate Tenant and its property in the new space provided by
Landlord pursuant to this provision, all without being liable to Tenant in any
manner whatsoever for such acts, except for the expenses which are expressly
provided in this Section 8.17 to be paid by Landlord.
8.18 GOVERNING LAW: The laws of the State of Georgia shall govern the
interpretation, validity, performance and enforcement of this Lease.
8.19 TIME IS OF THE ESSENCE: Except as otherwise specifically provided
herein, time is of the essence of this Lease.
8.20 LIMITATION OF LIABILITY: Landlords obligations and liability to
Tenant with respect to this Lease shall be limited solely to Landlord's interest
in the Building, and Tenant shall look solely to Landlord's interest in the
Building for satisfaction of Tenant's remedies. Neither Landlord nor any
partner, officer, director, or shareholder of Landlord or of any partner of
Landlord shall have any personal liability whatsoever with respect to this
Lease.
8.21 EXECUTION: This Lease may be executed in any number of counterparts,
each of which shall be deemed an original and any of which shall be deemed to be
complete in itself and shall be admissible into evidence or used for any purpose
without the production of the other counterparts.
8.22 MULTIPLE/TENANTS: If Tenant is composed of more than one individual
or entity, then all are jointly and severally liable for the due and proper
performance of Tenant's duties and obligations arising under or in connection
with this Lease.
8.23 FORCE MAJEURE: Landlord shall be excused from the performance of any
of its obligations for the period of any delay resulting from any cause beyond
its control, including, without limitation, all labor disputes, governmental
regulations or controls, fires or other casualties, inability to obtain any
material or services, or acts of God.
8.24 QUIET ENJOYMENT: Provided that Tenant fully and timely performs all
the terms of this Lease on Tenant's part to be performed, including payment by
Tenant of all Total Rent, Tenant shall have, hold and enjoy the Premises
<PAGE>
during the Lease Term without hindrance or disturbance from or by Landlord;
subject, however, to all of the terms, conditions and provisions of this Lease,
Landlord's Mortgage and any and all ground leases, restrictive covenants,
easements, and other encumbrances now or hereafter affecting the Premises, the
Building or the Tower Place Complex (if applicable).
8.25 ATTORNEYS' FEES: If any rent or other amount owing by Tenant to
Landlord under this Lease is collected by or through an attorney at law, Tenant
agrees so pay an additional amount equal to fifteen percent (15%) of such sum as
attorneys' fees.
8.26 ALTERATIONS IN COMPOSITION OF COMMON AREAS: Landlord reserves the
right in its sole discretion to redesign, change, rearrange, alter, reconstruct,
modify, expand, reduce or supplement any and all of the facilities designed for
the common use and convenience of all tenants of the Tower Place Complex and/or
the Building, including, without limitation, parking areas, driveways and other
the Common Areas, so long as access to the Premises is not materially adversely
affected thereby. In furtherance, and not in limitation, of the foregoing,
Landlord shall have the right to erect additional stores or other structures in
the Tower Place Complex, or to add to or otherwise modify buildings and
facilities now or hereafter existing in the Tower Place Complex, and, in
connection with any such activity and construction, to erect temporary scaffolds
and other aids to construction on the exterior of the Premises, provided that
access to the Premises shall not be denied Tenant and that there shall be no
encroachment upon the interior of the Premises. Landlord shall have the right to
close the Common Areas or any portion thereof (including, without limitation,
all roadways, driveways, accessways, sidewalks and parking areas and facilities
now or hereafter within the Tower Place Complex) at such time and in such manner
as is necessary or appropriate, in Landlord's sole opinion, to prevent their
deduction as public rights-of-way or streets, and to do and perform such other
acts in, to and with respect to the Common Areas as at the time in question
accord with good and generally accepted standards of operation of mixed-use,
high-rise developments.
8.27 PARKING: Tenant shall have the right on the Commencement Date to
lease parking spaces in the parking facilities of the Tower Place Complex
available to tenants therein (as same may be modified from time to time) up to
the maximum number of parking spaces stipulated in Section 1.1(r). All of such
spaces shall be unassigned and shall be leased at the posted monthly rental
rates in effect therefor from time to time. * Landlord and Tenant agree and
Tenant acknowledges that rates for spaces in the parking facilities of the Tower
Place Complex may vary according to the location of spaces in the facilities and
according to whether or not spaces are reserved or unreserved. Tenant further
acknowledges and agrees that Landlord may designate certain spaces within the
parking facilities of the Tower Place Complex as reserved or assigned spaces for
the benefit of Landlord, visitors to the project or tenants therein, other
tenants, couriers and delivery services and other persons. Tenant shall comply
and cause its employees to complete and sign the Tower Place Parking
Application. Tenant must comply with all rules and regulations established by
Landlord and/or the operator of the parking facilities as provided in the Tower
Place Parking Rules and Regulations, including, without limitation, any card,
sticker or other identification system, whether now or hereafter in effect, and
agrees to pay to Landlord a fifteen dollar ($15.00) or as modified from time to
time deposit for each parking card issued. All parking privileges granted
pursuant to this Section 8.27 are non-assignable and nontransferable by Tenant;
provided however, that parking privileges may be assigned or transferred by
Tenant in conjunction with a transfer, assignment or subletting allowed by
Article V of this Lease. Tenant agrees to pay, as additional rent, the sum of
$15.00 for any parking cards which become lost, mutilated or destroyed.
8.28 SPECIAL STIPULATIONS: The Special Stipulations, if any, attached
hereto are made a part hereof by this reference, and to the extent they conflict
with any of the foregoing provisions, they shall control.
8.29 AUTHORIZATION: As a material inducement to Landlord to enter into
this Lease, Tenant, and each party executing this Lease on behalf of Tenant,
intending that Landlord rely on each such representation and warranty,
represents and warrants to Landlord that:
(a) the execution, delivery and full performance of this Lease by
Tenant do not and shall not constitute a violation of any contract, agreement,
undertaking, judgment, statute, regulation, governmental or court order or other
restriction of any kind to which Tenant is a party or by which Tenant is or may
be bound;
(b) Tenant has executed and entered into this Lease free from fraud,
undue influence, duress, coercion or other defenses to the execution of this
Lease;
(c) this Lease constitutes a valid and binding obligation of Tenant,
enforceable against Tenant in accordance with the terms of this Lease;
(d) Tenant is duly organized, validly existing and in good standing
under the laws of the state of Tenant's organization and has full power and
authority to enter into this Lease, to perform Tenant's obligations under this
Lease in accordance with the terms hereof, and to transact business in the State
of Georgia; and
(e) the execution and delivery of this Lease by the individual or
individuals executing this Lease on behalf of Tenant, and Tenant's performance
of its obligations under this Lease, have been duly authorized and approved by
all necessary corporate or partnership action, as the case may be, and Tenant's
execution, delivery and performance of this Lease are not in conflict with
Tenant's bylaws or articles of incorporation (if a corporation), agreement of
partnership (if a partnership), or other charters, agreements, rules or
regulations governing Tenant's business, as any of the foregoing may have been
supplemented, modified, amended, or altered in any manner.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
----------------
LANDLORD
Initials
----------------
TENANT
Initials
----------------
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed
under seal as of the date first above written.
LANDLORD:
TOWER PLACE, L.P.
a Georgia Limited Partnership
By: REGENT PEACHTREE HOLDINGS, INC.
a Georgia Corporation, its sole General Partner
By: /s/ David B. Allman
------------------------------------------------
Name: David B. AlIman
Its: President
Attest: /s/ Terry L. Woolard
--------------------------------------------
Name: Terry L. Woolard
Its: Secretary
(CORPORATE SEAL)
TENANT:
QUALITY SYSTEM, INC.
a California Corporation
By: /s/ Lou Silverman
------------------------------------------------
Name: Lou Silverman
Its: PRESIDENT
Attest: /s/ Paul Holt
--------------------------------------------
Name: Paul Holt
Its: Interim Chief Financial Officer
(CORPORATE SEAL)
<PAGE>
SPECIAL STIPULATIONS
These Special Stipulations are attached to and by this reference made a part of
that certain Tower Place Office Lease (the "Lease") between Tower Place, L.P.
and Quality Systems, Inc. In the event that these Special Stipulations conflict
with any of the provisions contained in the Lease, the Special Stipulations
shall govern and control.
1. Base Rental Adjustment:
Notwithstanding anything contained within the Lease to the contrary, Base
Rental shall be increased on each anniversary of the Commencement Date to
become an amount equal to three percent (3%) greater than the amount in
effect immediately prior to such adjustments as outlined below:
Year Annual Rent Monthly Rent
---- ----------- ------------
1 $189,140.00 $15,761.67
2 $194,814.20 $16,234.52
3 $200,658.63 $16,721.55
4 $206,678.39 $17,223.20
5 $212,878.74 $17,739.90
2. Notwithstanding anything contained in Section 4.2(c) of this Lease to the
contrary, if a separate electrical meter is utilized for the Premises,
Tenant shall only be required to pay for the electrical usage in excess of
the usual and normal amount of electric power included in the Operating
Expenses of the Building.
3. Notwithstanding anything contained in Article VII of this Lease to the
contrary, in the event that any damage to the Building or Premises cannot
be repaired and renders the Premises untenable, or should such damage
occur during the last twelve months of the term of the Lease, Tenant may,
with written notice to Landlord, terminate this Lease.
<PAGE>
EXHIBIT "A"
FLOOR PLAN
April 27, 2000
Tower Place 100
[FLOOR PLAN GRAPHIC OMITTED]
[LOGO] REGENT PARTNERS
4th Floor 3348 Peachtree Road, N.E. Suite 1000
Suite 450 Atlanta, Georgia 30326
(404) 364-1400 Fax (404) 364-1420
<PAGE>
EXHIBIT "B"
TOWER PLACE COMPLEX
(legal description)
All that tract or parcel of land situated, lying and being in Land Lot 62 of the
17th District of Fulton County, Georgia and being more particularly described as
follows:
To find the point of beginning commence at the intersection of the northeastern
right-of-way of Piedmont Road (variable width right-of-way) with the
northwestern right-of-way of Peachtree Road (variable width right-of-way) if
said intersections were extended to form an angle and running thence along the
extension of the northeast right-of-way of Piedmont Road North 24(degrees) 31'
46" West 74.12 feet to a point on said northeastern right-of-way, continue
thence along said northeastern right-of-way the following courses and distances:
North 24(degrees) 31' 46" West 316.17 feet to a point, along the arc of an
8,044.51 foot radius curve to the left an arc distance of 319.54 feet (said arc
being subtended by a chord lying to the southwest having a bearing of North 23
(degrees) 23' 29" West and being 319.52 feet in length) to a point, along the
arc of an 8,044.51 foot radius curve to the left an arc distance of 108.97 feet
(said arc being subtended by chord lying to the southwest having a bearing of
North 21(degrees) 51' 55" West and being 108.97 feet in length) to a point,
North 20(degrees) 44' 09" West 15.30 feet to a point, and South 60(degrees) 08'
35" West 6.34 feet to the TRUE POINT OF BEGINNING. From said TRUE POINT OF
BEGINNING as thus established continue thence along said northeast right-of-way
of Piedmont Road North 21(degrees) 31' 42" West 621.62 feet to a point; thence
leaving said right-of-way run North 62(degrees) 57' 37" East 483.73 feet to an
iron pin found; thence North 74(degrees) 29' 39" West 377.00 feet to an iron pin
found; thence North 32(degrees) 26' 16" East 442.09 feet to a point; thence
South 61(degrees) 46' 10" East 546.06 feet to a point; thence North 45(degrees)
05' 49" East 100.19 feet to an iron pin found; thence South 46(degrees) 12' 40"
East 982.48 feet to a brass cap found on the northwest right-of-way of Peachtree
Road; thence along said northwest right-of-way the following courses and
distances: South 30(degrees) 16' 14" West 43.28 feet to a point, South
28(degrees) 24' 49" West 51.91 feet to a point, South 26(degrees) 11' 30" West
51.83 feet to a point, South 23(degrees) 50' 08" West 53.86 feet to a point,
South 14(degrees) 34' 59" West 46.56 feet to a point, South 14(degrees) 34' 59"
West 150.54 feet to a point, and South 13(degrees) 38' 47" West 125.00 feet to a
point; thence leaving said right-of-way run North 58(degrees) 01' 45" West
475.62 feet to an iron pin set; thence North 58(degrees) 01' 43" West 207.34
feet to an iron pin set; thence North 13(degrees) 17' 54" East 70.94 feet to a
point; thence South 60(degrees) 31' 38" West 363.50 feet to an iron pin found;
thence South 60(degrees) 08' 35" West 332.23 feet to the TRUE POINT OF
BEGINNING.
Said property being more particularly shown as Parcels A, B, C, D, E-1, E-2, F,
G, H and the Marriott Tract containing 26.24 acres on that certain ALTA/ACSM
Land Title Survey prepared for Regent Tower Holdings, Inc., Tower Place, L.P.,
Buckhead Hotel Associates, LLC, First Union National Bank, Teachers Insurance
and Annuity Association of America and Chicago Title Insurance Company by Mayes,
Sudderth & Etheredge, Inc. bearing the seal and certification of George T.
White, G.R.L.S. No. 1929 dated March 5, 1999, last revised September 16, 1999.
Said Survey being incorporated herein by this reference.
<PAGE>
EXH1BIT "C"
COMMENCEMENT DATE AGREEMENT
Agreement made this _____ day of ______,200 , between Tower Place, L.P.
(hereinafter referred to as "Landlord") and (hereinafter referred to as
"Tenant").
WHEREAS, Landlord and Tenant entered into a lease dated __________,200__
(hereinafter referred to as the "Lease"), for space on the __ Floor(s) in the
Building having an address at 3340 Peachtree Road, Atlanta, Georgia;
NOW, THEREFORE, pursuant to the provisions of Subsection 4. 1(d) of the
Lease, Landlord and Tenant mutually agree as follows:
1. Tenant is in possession of, and has accepted, the Premises demised by
the Lease. Tenant further certifies that all conditions of the Lease required of
Landlord as of this date have been fulfilled and there are no defenses or
offsets against the enforcement of the Lease by Landlord.
2. The Commencement Date of the Lease Term is ________,200_, and the
Expiration Date of the Lease Term is ___________, ______.
3. Terms used herein are defined in the Lease.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement, the____day of______________, 200_.
LANDLORD: TENANT:
TOWER PLACE, L.P.
A Georgia Limited Partnership a__________corporation
By: REGENT PEACHTREE HOLDINGS, INC.
A Georgia Corporation, its sole
General Partner
By: By:
-------------------------------------- -----------------------------
Name: David B. Allman Name:
Its:
Attest: Attest:
---------------------------------- -------------------------
Name Name
Its: Its:
[CORPORATE SEAL] [CORPORATE SEAL]
<PAGE>
EXHIBIT "D"
OPERATING EXPENSES
"Operating Expenses" shall mean the costs and expenses of operating, servicing,
managing, maintaining and repairing the Building, the Common Areas and portions
of the Tower Place Complex, including without limitation, amounts payable by the
Owner of the Building under various easement agreements which now or hereafter
may benefit the Building and the property on which it is located as determined
by Landlord, in a manner consistent with first class office buildings in the
Atlanta, Georgia area, including without, limitation, the following:
1. Reasonable and customary costs and expenses paid or incurred by
Landlord for the maintenance and repair of the Building and the personal
property used in connection therewith, including but not limited to (i) the
heating, ventilating and air conditioning equipment, (ii) plumbing and
electrical systems and equipment, (iii) light bulbs and broken glass, including
replacement thereof, and (iv) elevators and escalators;
2. Cleaning and janitorial costs and expenses, including window cleaning
expenses, for the Building;
3. Landscaping and grounds maintenance costs and expenses;
4. Utility costs and expenses including, but not limited to, those for
electricity, gas, steam, other fuels and forms of power or energy, water
charges, sewer and waste disposal, heating and air-conditioning;
5. Costs and expenses of redecorating, painting and carpeting the common
areas of the Building;
6. Costs of all repairs, alterations, additions, changes, replacements and
other items required by any law or governmental regulation imposed after the
date of construction of the Building, regardless of whether such costs, when
incurred, are classified as capital expenditures;
7. Cost of wages and salaries of all persons engaged in the operation,
maintenance, repair and security of the Building, and so-called fringe benefits,
including social security taxes, unemployment insurance taxes, costs for
providing coverage for disability benefits, cost of any pensions,
hospitalization, welfare or retirement plans, or any other similar or like
expense incurred under the provisions of any collective bargaining agreement,
costs of uniforms, and all other costs or expenses that the Landlord pays to or
on behalf of employees engaged in the operation, maintenance, repair and
security of the Building;
8. Charges of any independent contractor who, under contract with the
Landlord or its manager or representatives, does any of the work of operating,
maintaining, or repairing the Building;
9. Legal and accounting expenses, including, but not limited to, such
expenses as relate to seeking or obtaining reductions in and/or refunds of real
estate taxes;
10. Amortization, with interest, of capital expenditures for capital
improvements made by Landlord after completion of the Building where such
capital improvements are for the purpose of, or result in, reducing Operating
Expenses;
11. Landlord's insurance costs and expenses for all types of insurance
carried by Landlord with respect to the Building;
12. Security service costs and expenses;
13. Management fees and expenses;
14. The cost of "Muzak" services, or similar type services, if any;
15. Expenses incurred in the purchase or acquisition of materials and
supplies in connection with all of the foregoing expenses;
16. Taxes, which shall mean (i) personal property taxes (attributable to
the year in which paid) imposed upon the furniture, fixtures, machinery,
equipment, apparatus, systems, and appurtenances used in connection with the
Building for the operation thereof, and (ii) real estate taxes, assessments,
sewer rents, rates and charges, transit taxes, taxes based upon the receipt of
rent and any other federal, state, or local governmental charge, general,
special, ordinary, or extraordinary (but not including income or franchise taxes
or any other taxes imposed upon or measured by Landlord's income or profits,
unless the same shall be imposed in lieu of real estate taxes) which may now or
hereafter be levied or assessed against the Building, the property on which same
is situated, any other improvements hereinafter constructed on such property, or
the rents derived from such property, the Building and such other improvements
(in the case of special taxes or assessments which may be payable in
installments, only the amount of each installment paid during a calendar year
shall be included in the Taxes for that year); and
17. Such other expenses paid by Landlord, from time to time, in connection
with the operation and maintenance of the Building and the property on which
same is situated as would be expected to be paid by a reasonable and prudent
operator and manager of a building and site comparable to the Building and such
property.
All costs of special services rendered to particular tenants of the Building,
which are paid by such tenants, shall not be included in Operating Expenses.
Payments by Landlord of interest and principal on any mortgage or similar
instrument secured by the Building or the property on which same is situated
shall not be included in Operating Expenses. Except as specified in items 5, 6
and 10 hereof, the cost of structural changes to the Building which should be
capitalized in accordance with sound accounting principles shall not be
allocated or charged to the Premises without Tenant's approval.
<PAGE>
EXHIBIT "E"
WORK SCHEDULE
TO
TOWER PLACE OFFICE LEASE
by and between
TOWER PLACE, L.P.
and
QUALITY SYSTEMS, INC.
1. Premises Leased "As Is". Tenant and Landlord agree and Tenant
acknowledges that the Premises are in all respects being leased by Landlord to
Tenant, and shall be accepted by Tenant, in their current "AS IS/WHERE IS"
condition and that Landlord has and shall have no obligation or duty whatsoever
to make any alterations, repairs or improvements of any kind or nature in or to
the Premises in order to prepare same for Tenant's occupancy, except for such
alterations, repairs or improvements, if any, as may be expressly provided in
Paragraph 2 below.
2. Landlord's Work. Landlord, at its sole cost and expense, agrees to make
the following modifications to the Premises in accordance with Exhibit "E-1".
3. Delays in Occupancy. If for any reason, other than Tenant delay as
described in Paragraph 4 below, Landlord cannot or is unable to deliver
possession of the Premises to Tenant on or before the Anticipated Commencement
Date in accordance with and in the condition required by this Work Schedule and
the Lease, the Lease shall not be void or voidable except as provided in the
following sentence, and Landlord shall not be liable to Tenant for any loss or
damage resulting from Landlord's failure or delay in so delivering possession of
the Premises, but in such case (and subject to Paragraph 4 below) the
Commencement Date shall not occur until Landlord is able to deliver the Premises
in the condition required by this Lease; the Expiration Date, however, shall not
otherwise be affected by such delay. Further, if for any reason other than
strikes, casualties, Tenant delay, or other causes beyond the control of
Landlord, possession of the Premises is not delivered to Tenant within ninety
(90) days after the Anticipated Commencement Date, or if possession is not so
delivered for any reason whatsoever other than Tenant delay on or before six (6)
months following the Anticipated Commencement Date, then this Lease shall be
voidable by either party upon thirty (30) days' written notice to the other
given at any time prior to delivery of possession in accordance with this Work
Schedule and the Lease, provided that such notice shall be void if possession is
delivered within said thirty (30) day period. If the Lease is voided pursuant to
this provision, then any monies advanced by Tenant to Landlord shall be returned
and the parties hereto shall have no further rights, claims or obligations under
the Lease.
4. Tenant Delays. If on the Anticipated Commencement Date Landlord is
unable to deliver the Premises to Tenant in accordance with and in the condition
required by this Work Schedule and the Lease due to omission, delay or default
by Tenant or anyone acting under or for Tenant ("Tenant delay"), then Tenant's
obligations under this Lease (including, without limitation, the obligation to
pay Total Rent) shall nonetheless commence as of the Anticipated Commencement
Date (which shall in such case be the Commencement Date), except that, in the
event that Landlord cannot deliver possession of the Premises to Tenant on the
Anticipated Commencement Date because of Tenant delay, this Lease shall be
voidable at the sole option of Landlord at any time prior to Tenant's
performance of such obligations or payment of the Total Rent due under this
Lease; and, should Landlord so elect to void this Lease, all monies advanced by
Tenant to Landlord shall be retained by Landlord as liquidated damages (the
parties hereto recognizing and acknowledging the difficulty of determining
such damages), and thereafter the parties hereto shall have no further rights,
claims, or obligations under this Lease, except for such matters which by the
express terms of the Lease survive expiration or termination thereof.
<PAGE>
[DOOR SCHEDULE GRAPHIC OMITTED]
Exhibit "E-1"
Partition/Demo
<TABLE>
<S> <C> <C>
[LOGO] Loia o Budde
& ASSOCIATES Quality Systems, Inc. ----------------
------------------------- ------------------------------------------- CAD FILE NUMBER
5076 Winters Chapel Road 4th Floor Suite 450 Tower Place 100
Atlanta, Georgia 30360 3340 Peachtree Road Atlanta, Georgia 30326 00427C
(770) 396-3207 Fax 396-9597 ----------------
DRAWN
CMM
----------------
DATE
11/1/00
----------------
DRAWING NUMBER
A1
1 OF 4
----------------
</TABLE>
<PAGE>
[UTILITY LEGEND GRAPHIC OMITTED]
Exhibit "E-1"
Utility Plan
<TABLE>
<S> <C> <C>
[LOGO] Loia o Budde
& ASSOCIATES Quality Systems, Inc. ----------------
------------------------- ------------------------------------------- CAD FILE NUMBER
5076 Winters Chapel Road 4th Floor Suite 450 Tower Place 100
Atlanta, Georgia 30360 3340 Peachtree Road Atlanta, Georgia 30326 00427C
(770) 396-3207 Fax 396-9597 ----------------
DRAWN
CMM
----------------
DATE
11/1/00
----------------
DRAWING NUMBER
A2
2 OF 4
----------------
</TABLE>
<PAGE>
[CEILING PRICING NOTES GRAPHIC OMITTED]
Exhibit "E-1"
Ceiling Plan
<TABLE>
<S> <C> <C>
[LOGO] Loia o Budde
& ASSOCIATES Quality Systems, Inc. ----------------
------------------------- ------------------------------------------- CAD FILE NUMBER
5076 WInters Chapel Road 4th Floor Suite 450 Tower Place 100
Atlanta, Georgia 30360 3340 Peachtree Road Atlanta, Georgia 30326 00427C
(770) 396-3207 Fax 396-9597 ----------------
DRAWN
CMM
----------------
DATE
11/1/00
----------------
DRAWING NUMBER
A3
3 OF 4
----------------
</TABLE>
<PAGE>
[FINISH SCHEDULE GRAPHIC OMITTED]
Exhibit "E-1"
Finish Plan
<TABLE>
<S> <C> <C>
[LOGO] Loia o Budde
& ASSOCIATES Quality Systems, Inc. ----------------
------------------------- ------------------------------------------- CAD FILE NUMBER
5076 WInters Chapel Road 4th Floor Suite 450 Tower Place 100
Atlanta, Georgia 30360 3340 Peachtree Road Atlanta, Georgia 30326 00427C
(770) 396-3207 Fax 396-9597 ----------------
DRAWN
CMM
----------------
DATE
11/1/00
----------------
DRAWING NUMBER
A3
3 OF 4
----------------
</TABLE>
<PAGE>
EXHIBIT "F"
RULES AND REGULATIONS
1. The sidewalks, and public portions of the Building, such as entrances,
passages, courts, elevators, vestibules, stairways, corridors or halls shall not
be obstructed or encumbered by Tenant or used for any purpose other than ingress
and egress to and from the Premises.
2. No awnings or other projections shall be attached to the outside wails
of the Building. No curtains, blinds, shades, louvered openings or screens shall
be attached to or hung in, or used in connection with, any window or door of the
Premises, without the prior written consent of Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building or on corridor walls. Signs on entrance door or doors shall
conform to building standard signs, samples of which are on display in
Landlord's rental office. Signs on doors shall, at Tenant's expense, be
inscribed, painted or affixed for each tenant by sign makers approved by
Landlord. In the event of the violation of the foregoing by Tenant, Landlord may
remove same without any liability, and may charge the expense incurred by such
removal to Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating and
air conditioning vents and doors that reflect or admit light and air into the
halls, passageways or other public places in the Building shall not be covered
or obstructed by Tenant, nor shall any bottles, parcels, or other articles be
placed on the window sills.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the public halls,
corridors or vestibules without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant, if
caused by it or its agents, employees, contractors, licensees or invitees.
7. Tenant shall not in any way deface any part of the Premises or the
Building.
8. No bicycles, vehicles or animals (except seeing eye dogs) of any kind
shall be brought into or kept in or about the Premises. No cooking shall be done
or permitted by Tenant on the Premises except in conformity with law and then
only in the utility kitchen, if any, as set forth in Tenant's layout, which is
to be primarily used by Tenant's employees for heating beverages and light
snacks. Tenant shall not cause or permit any unusual or objectionable odors to
be produced upon or permeate from the Premises.
9. No space in the Building shall be used for manufacturing, distribution
or storage of merchandise, or for the sale of merchandise, goods or property of
any kind at auction.
10. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Building or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. Tenant shall not throw anything out of
the doors, windows or skylights or down the passageways.
11. Neither Tenant, nor any of Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, or chemical substance, other than
reasonable amounts of cleaning fluids or solvents required in the normal
operation of Tenant's business offices.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing locks
or the mechanism thereof, without the prior written approval of Landlord and
unless and until a duplicate key is delivered to Landlord. Tenant shall, upon
termination of its tenancy, restore to Landlord all keys of stores, offices and
toilet rooms, either furnished to, or otherwise procured by, Tenant, and in the
event of the loss of any keys so furnished, Tenant shall pay to Landlord the
cost thereof.
13. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which Landlord or its agent may determine from time to time. Landlord reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
14. Tenant shall be restricted in the use of the Premises as provided in
the Lease, but the Premises shall never be used for any of the following: (a)
public stenographic or typing services, (b) storage, manufacture or sale of
liquor, narcotics, tobacco or other restricted or regulated substances, except
where no license or permit is required and such business is conducted solely
with Tenant's employees or social quests, (c) public employment bureau or
agency, or (d) employment or payroll office, except as related to Tenant's
employees actually working on the Premises.
15. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Building at all times
other than business hours all persons who do not present a pass to the Building
signed by Tenant. Tenant shall be responsible for all persons for whom it issues
such a pass and shall be liable to Landlord for all acts of such persons.
17. Tenant agrees to purchase from Landlord or its agents all non-building
standard lamps.
<PAGE>
18. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
19. The requirements of Tenant will be attended to only upon application
at the office of the Building. Building employees shall not perform any work or
do anything outside of their regular duties, unless under special instructions
from the office of Landlord.
20. Canvassing, soliciting and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
21. There shall not be used in any space, or in the public halls of any
building, either by Tenant or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. No hand trucks shall be used in passenger elevators.
22. Tenant, in order to obtain maximum effectiveness of the cooling
system, shall lower and/or close venetian or vertical blinds or drapes where sun
rays fall directly on windows of Premises.
23. All paneling, or other wood products not considered furniture shall be
of fire retardant materials. Before installation of such materials,
certification of the materials' fire retardant characteristics shall be
submitted to Landlord or its agents, in a manner satisfactory to Landlord.
24. All tenants must abide by the Fulton County Clean Indoor Air
Ordinance, effective June 21, 1993, which states that smoking is not allowed
within public facilities or places of employment. Tower Place has provided a
designated smoking area outside of the building which is the only approved area
for this activity.
25. The parking access cards issued to tenants of Tower Place office
buildings also operate the building access system for the building in which the
leased premises are located. The card grants 24 hour, 7 day a week access to the
parking decks and to the common area of the aforementioned building. The access
card should not be considered a sole method of security to the leased premises.
<PAGE>
COMMENCEMENT DATE AGREEMENT
Agreement made this 6 day of February, 2001 between TOWER PLACE, L.P.
(hereinafter referred to as "Landlord") and QUALITY SYSTEMS, INC. (hereinafter
referred to as "Tenant")
WHEREAS, Landlord and Tenant entered into this LEASE AGREEMENT DATED NOVEMBER
15, 2000 (hereinafter referred to as the "Lease"), for space located at Suite
450, 3340 Peachtree Road, N.E., Atlanta, Georgia;
NOW, THEREFORE, pursuant to the provisions of Section 4.1 of the Lease
Agreement, Landlord and Tenant mutually agree as follows:
1. Tenant is in possession of, and has accepted, the Premises demised
by the Lease. Tenant further certifies that all conditions of the
Lease required of Landlord as of this date have been fulfilled and
there are no defenses or offsets against the enforcement of the
Lease by Landlord.
2. The Commencement Date of the above referenced lease agreement is
February 5, 2001 and the Expiration Date is February 28, 2006.
3. Terms used herein are defined in the Lease.
4. Suite 450 is comprised of 7,720 rentable square feet
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Agreement, as
of the day and year first written above.
LANDLORD: TENANT
TOWER PLACE, L.P. QUALITY SYSTEMS, INC.
A Georgia Limited Partnership a California Corporation
By: REGENT PEACHTREE HOLDINGS, INC. By: /s/ Paul Holt
A Georgia Corporation, Its Sole -----------------------------
General Partner Name: Paul Holt
Its: Chief Financial Officer
By: /s/ David B. Allman
--------------------------------------
David B. Allman
President
Attest: /s/ Terry L. Woolard Attest:
---------------------------------- --------------------------
Terry L. Woolard Name
Secretary Its:
Date: February 21, 2001 Date:
------------------------------------ ---------------------------
[CORPORATE SEAL] [CORPORATE SEAL]
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.15
<SEQUENCE>3
<FILENAME>0003.txt
<DESCRIPTION>LEASE AGREEMENT BETWEEN COMPANY AND ORANGEWOOD
<TEXT>
Quality Systems, Inc.
Form 10-K
Exhibit 10.15
Lease Agreement between Company and Orangewood Business
Center Inc. dated April 3, 2000, amended February 22, 2001.
<PAGE>
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE--MODIFIED NET
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
[GRAPHIC OMITTED]
Duplicate
Original
1. Basic Provisions ("Basic Provisions").
1.1 Parties: This Lease ("Lease"), dated for reference purposes only,
APRIL 3, 2000, is made by and between ORANGEWOOD BUSINESS CENTER, INC., a
California corporation ("Lessor") and QUALITY SYSTEMS, INC., a California
corporation ("Lessee"), (collectively the "Parties," or individually a "Party").
1.2(a) Premises: That certain portion of the Building, including all
improvements therein or to be provided by Lessor under the terms of this Lease,
commonly known by the street address of 1701 E. Edinger Ave., Suite 5 - 8,
located in the City of Santa Ana County of Orange, State of California, with zip
code 92705, as outlined on Exhibit "A" attached hereto ("Premises"). The
"Building" is that certain building containing the Premises and generally
described as (describe briefly the nature of the Building): Approximately 13,244
square feet of office and warehouse space that is part of a larger,
multi-tenant, industrial building. In addition to Lessees rights to use and
occupy the Premises as hereinafter specified, Lessee shall have non-exclusive
rights to the Common Areas (as defined in Paragraph 2.7 below) as hereinafter
specified, but shall not have any rights to the roof, exterior walls or utility
raceways of the Building or to any other buildings in the Industrial Center. The
Premises, the Building, the Common Areas, the land upon which they are located,
along with all other buildings and improvements thereon, are herein collectively
referred to as the "Industrial Center." (Also see Paragraph 2.)
1.2(b) Parking: N/A unreserved vehicle parking spaces ("Unreserved Parking
Spaces"); and N/A reserved vehicle parking spaces ("Reserved Parking Spaces").
(Also see Paragraph 2.6.)
1.3 Term: One (1) years and No months ("Original Term") commencing April
1, 2000 ("Commencement Date") and ending March 31, 2001 ("Expiration Date").
(Also see Paragraph 3.)
1.4 Early Possession: N/A ("Early Possession Date"). (Also see Paragraphs
3.2 and 3.3.)
1.5 Base Rent: $8,595.60 per month ("Base Rent"), payable on the First
(1st) day of each month commencing April 1, 2000 (Also see Paragraph 4.)
|_| If this box is checked, this Lease provides for the Base Rent to be
adjusted per Addendum ______, attached hereto.
1.6(a) Base Rent Paid Upon Execution: $8595.60 as Base Rent for the period
April 1 - 30, 2000.
1.6(b) Lessee's Share of Common Area Operating Expenses: 1.8% percent
(1.8%) ("Lessee's Share") as determined by |_| pro rata square footage of the
Premises as compared to the total square footage of the Building or |X| other
criteria as described in PP.4.2
1.7 Security Deposit: $ See Addendum Pp.51 ("Security Deposit"). (Also see
Paragraph 5.)
1.8 Permitted Use: General office for sales, repair, and warehousing of
information processing systems and related purposes. ("Permitted Use") (Also see
Paragraph 6.)
1.9 Insuring Party. Lessor is the "Insuring Party." (Also see Paragraph
8.)
*
Initials [ILLEGIBLE]
1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 49 through 52, and Exhibits "A" through "D", all of
which constitute a part of this Lease.
2. Premises, Parking and Common Areas.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Premises, for the term, at the rental, and upon all of the terms,
[ILLEGIBLE] and conditions set forth in this Lease. Unless otherwise provided
herein, any statement of square footage set forth in this Lease, or that may
have been in [ILLEGIBLE] calculating rental and/or Common Area Operating
Expenses, is an approximation which Lessor and Lessee agree is reasonable and
the rental and Lessee's Share (as defined in Paragraph 1.6(b)) based thereon is
not subject to revision whether or not the actual square footage is more or
less.
2.2 Condition. Lessor shall deliver the Premises to Lessee dean and free
of debris on the Commencement Date and warrants to Lessee that the existing
plumbing, electrical systems, fire sprinkler system, lighting, air conditioning
and heating systems and loading doors, if any, in the Premises, other then those
constructed by Lessee, shall be in good operating condition on the Commencement
Date. If a non-compliance with said warranty exists as of the Commencement Date,
Lessor shall, except as otherwise provided in this Lease, promptly after receipt
of written notice from Lessee setting forth with specificity the nature and
extent of such non-compliance, rectify same at Lessor's expense. If Lessee does
not give Lessor written notice of a non-compliance with this warranty within
thirty (30) days after the Commencement Date, correction of that non-compliance
shall be the obligation of Lessee at Lessee's sole cost and expense.
2.3 Compliance with Covenants, Restrictions and Building Code. Lessor
warrants that any improvements (other than those constructed by Lessee or at
Lessee's direction) on or in the Premises which have been constructed or
installed by Lessor or with Lessor's consent or at Lessor's direction shall
comply with all applicable covenants or restrictions of record and applicable
building codes, regulations and ordinances in effect on the Commencement Date.
Lessor further warrants to Lessee that Lessor has no knowledge of any claim
having been made by any governmental agency that a violation or violations of
applicable building codes, regulations, or ordinances exist with regard to the
Premises as of the Commencement Date. Said warranties shall not apply to any
Alterations or Utility installations (defined in Paragraph 7.3(a)) made or to be
made by Lessee. If the Premises do not comply with said warranties, Lessor
shall, except as otherwise provided in this Lease, promptly after receipt of
written notice from Lessee given within six (6) months following the
Commencement Date and setting forth with specificity the nature and extent of
such non-compliance, take such action, at Lessor's expense, as may be reasonable
or appropriate to rectify the non-compliance. Lessor makes no warranty that the
Permitted Use in Paragraph 1.8 is permitted for the Premises under Applicable
Laws (as defined in Paragraph 2.4).
2.4 Acceptance of Premises. Lessee hereby acknowledges: (a) that it has
been advised by the Broker(s) to satisfy itself with respect to the condition
[ILLEGIBLE] Premises (including but not limited to the electrical and fire
sprinkler systems, security, environmental aspects, seismic and earthquake
requirements, and compliance with the Americans with Disabilities Act and
applicable zoning, municipal, county, state and federal laws, ordinances and
regulations and any [ILLEGIBLE] or restrictions of record (collectively,
"Applicable Laws") and the present and future suitability of the Premises for
Lessee's intended use; (b) that Lessee has made such investigation as it deems
necessary with reference to such matters, is satisfied with reference thereto,
and assumes all responsibility therefore as the same relate to Lessee's
occupancy of the Premises and/or the terms of this Lease; and (c) that neither
Lessor, nor any of Lessor's agents, has made any oral or written representations
or warranties with respect to said matters other than as set forth in this
Lease.
2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in this
Paragraph 2 shall be of no force or effect if immediately prior to the date set
forth in Paragraph 1.1 Lessee was the owner or occupant of the Premises. In such
event, Lessee shall, at Lessee's sole cost and expense, correct any
non-compliance of the Premises with said warranties.
Initials: [ILLEGIBLE]
<PAGE>
2.6 Vehicle Parking. Lessee shall be entitled to use the number of
Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas designated from time to time by
Lessor for parking. Lessee shall not use more parking spaces than said number.
Said Parking spaces shall be used for parking by vehicles no larger than
full-size passenger automobiles or pick-up trucks, herein called "Permitted Size
Vehicles." Vehicles other than Permitted Size Vehicles shall be parked and
loaded or unloaded as directed by Lessor in the Rules and Regulations (as
defined in Paragraph 40) issued by Lessor. (Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Lessor for such activities.
(b) If Lessee permits or allows any of the prohibited activities
described in this Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away the vehicle involved and charge the cost to Lessee, which
cost shall be immediately payable upon demand by Lessor.
(c) Lessor shall at the Commencement Date of this Lease, provide the
parking facilities required by Applicable Law.
2.7 Common Areas - Definition. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Industrial Center and interior utility raceways within the Premises that
are provided and designated by the Lessor from time to time for the general
non-exclusive use of Lessor, Lessee and other lessees of the Industrial Center
and their respective employees, suppliers, shippers, customers, contractors and
invitees, including parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways and landscaped area.
2.8 Common Areas - Lessee's Rights. Lessor hereby grants to Lessee, for
the benefit of Lessee and its employees, suppliers, shippers, contractors,
customers and invitees, during the term of this Lease, the non-exclusive right
to use, in common with others entitled to such use, the Common Areas as they
exist from time to time, subject to any rights, powers, and privileges reserved
by Lessor under the terms hereof or under the terms of any rules and regulations
or restrictions governing the use of the Industrial Center. Under no
circumstances shall the right herein granted to use the Common Areas be deemed
to include the right to store any property, temporarily or permanently, in the
Common Areas. Any such storage shall be permitted only by the prior written
consent of Lessor or Lessor's designated agent, which consent may be revoked at
any time. In the event that any unauthorized storage shall occur then Lessor
shall have the right, without notice, in addition to such other rights and
remedies that it may have, to remove the property and charge the cost to Lessee,
which cost shall be immediately payable upon demand by Lessor.
2.9 Common Areas - Rules and Regulations. Lessor or such other person(s)
as Lessor may appoint shall have the exclusive control and management of the
Common Areas and shall have the right, from time to time, to establish, modify,
amend and enforce reasonable Rules and Regulations with respect thereto in
accordance with Paragraph 40. Lessee agrees to abide by and conform to all such
Rules and Regulations, and to cause its employees, suppliers, shippers,
customers, contractors and invitees to so abide and conform. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees of the Industrial Center.
2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole
discretion, from time to time:
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(c) To designate other land outside the boundaries of the Industrial
Center to be a part of the Common Areas;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or any portion
thereof; and
(f) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Industrial Center as Lessor may,
in the exercise of sound business judgment, deem to be appropriate.
3. Term.
Term. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. If an Early Possession Date is specified in
Paragraph 1.4 and if Lessee totally or partially occupies the Premises after the
Early Possession Date but prior to the Commencement Date, the obligation to pay
Base Rent shall be abated for the period of such early occupancy. All other
terms of this Lease, however, (including but not limited to the obligations to
pay Lessee's Share Of Common Area Operating Expenses and to carry the Insurance
required by Paragraph 8) shall be in effect during such period. Any such early
possession shall not affect nor advance the Expiration Date of the Original
Term.
3.3 Delay In Possession. If for any reason Lessor cannot deliver
possession of the Premises to Lessee by the Early Possession Date, if one is
specified in Paragraph 1.4, or if no Early Possession Date is specified, by the
Commencement Date, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease, or the obligations of
Lessee hereunder, or extend the term hereof, but in such case, Lessee shall not,
except as otherwise provided herein, be obligated to pay rent or perform any
other obligation of Lessee under the terms of this Lease until Lessor delivers
possession of the Premises to Lessee. If possession of the Premises is not
delivered to Lessee within sixty (60) days after the Commencement Date, Lessee
may, at its option, by notice in writing to Lessor within ten (10) days after
the end of said sixty (60) day period, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided further,
however, that if such written notice of Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect. Except as may be otherwise
provided, and regardless of when the Original Term actually commences, if
possession is not tendered to Lessee when required by this Lease and Lessee does
not terminate this Lease, as aforesaid, the period free of the obligation to pay
Base Rent, if any, that Lessee would otherwise have enjoyed shall run from the
date of delivery of possession and continue for a period equal to the period
during which the Lessee would have otherwise enjoyed under the terms hereof, but
minus any days of delay caused by the acts, changes or omissions of Lessee.
4. Rent.
4.1 Base Rent. Lessee shall pay Base Rent and other rent or charges, as
the same may be adjusted from time to time, to Lessor in lawful money of the
United States, without offset or deduction, on or before the day on which it is
due under the terms of this Lease. Base Rent and all other rent and charges for
any period during the term hereof which is for less than one full month shall be
prorated based upon the actual number of days of the month involved. Payment of
Base Rent and other charges shall be made to Lessor at its address stated herein
or to such other persons or at such other addresses as Lessor may from time to
time designate in writing to Lessee.
*4.2 Common Area Operating Expenses. Lessee shall pay to Lessor during the
term hereof, in addition to the Base Rent, Lessee's Share (as specified in
Paragraph 1.6(b)) of all Common Area Operating Expenses, as hereinafter defined,
during each calendar year of the term of this Lease, in accordance with the
following provisions: * Common Area Operating Expense cost shall be $0.05 per
square foot per month.
Initials [ILLEGIBLE]
(a) "Common Area Operating Expenses" are defined, for purposes of
this Lease, as all costs incurred by Lessor relating to the ownership and
operation of the industrial Center, including, but not limited to, the
following:
(i) The operation, repair and maintenance, in neat, clean,
good order and condition, of the following:
(aa) The Common Areas, including parking areas, loading
and unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems, Common Area
lighting facilities, fences and gates, elevators and roof.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and telephone to
service the Common Areas.
(iii) Trash disposal, property management and security
services and the costs of any environmental inspections.
(iv) Reserves set aside for maintenance and repair of Common
Areas.
(v) Real Property Taxes (as defined in Paragraph 10.2) to be
paid by Lessor for the Building and the Common Areas under Paragraph 10 hereof.
(vi) The cost of the premiums for the insurance policies
maintained by Lessor under Paragraph 8 hereof.
(vii) Any deductible portion of an insured loss concerning the
Building or the Common Areas.
(viii) Any other services to be provided by Lessor that are
stated elsewhere in this Lease to be a Common Area Operating Expense.
(b) Any Common Area Operating Expenses and Real Property Taxes that
are specifically attributable to the Building or to any other building in the
Industrial Center or to the operation, repair and maintenance thereof, shall be
allocated entirely to the Building or to such other building. However, any
Common Area Operating Expenses and Real Property Taxes that are not specifically
attributable to the Building or to any other building or to the operation,
repair and maintenance thereof, shall be equitably allocated by Lessor to all
buildings in the Industrial Center.
(c) The inclusion of the Improvements, facilities and services set
forth in Subparagraph 4.2(a) shall not be deemed to impose an obligation upon
[ILLEGIBLE] to either have said improvements or facilities or to provide those
services unless the Industrial Center already has the same, Lessor already
provides the [ILLEGIBLE] or Lessor has agreed elsewhere in this Lease to provide
the same or some of them.
(d) Lessee's Share of Common Area Operating Expenses shall be
payable by Lessee within ten (10) days after a reasonably detailed statement of
[ILLEGIBLE] expenses is presented to Lessee by Lessor. At Lessor's option,
however, an amount may be estimated by Lessor from time to time of Lessee's
Share of [ILLEGIBLE] Common Area Operating Expenses and the same shall be
payable monthly or quarterly, as Lessor shall designate, during each 12-month
period of the [ILLEGIBLE], on the same day as the Base Rent is due hereunder.
Lessor shall deliver to Lessee within sixty (60) days after the expiration of
each calendar year a reasonably detailed statement showing Lessee's Share of the
actual Common Area Operating Expenses incurred dining the preceding year. If
Lessee's payments under this Paragraph 4.2(d) during said preceding year exceed
Lessee's Share as indicated on said statement, Lessor shall be credited the
amount of such over-
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Initials: [ILLEGIBLE]
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payment against Lessee's Share of Common Area Operating Expenses next becoming
due. If Lessee's payments under this Paragraph 4.2(d) during said preceding year
were less than Lessee's Share as indicated on said statement, Lessee shall pay
to Lessor the amount of the deficiency within ten (10) days after delivery by
Lessor to Lessee of said statement.
5. Security Deposit. Lessee shall deposit with Lessor upon Lessee's execution
hereof the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee fails
to pay Base Rent or other rent or charges due hereunder, or otherwise Defaults
under this Lease (as defined in Paragraph 13.1). Lessor may use, apply or retain
all or any portion of said Security Deposit for the payment of any amount due
Lessor or to reimburse or compensate Lessor for any liability, cost, expense,
loss or damage (including attorneys' fees) which Lessor may suffer of incur by
reason thereof. If [ILLEGIBLE] uses or applies all or any portion of said
Security Deposit, Lessee shall within ten (10) days after written request
therefore deposit monies with Lessor sufficient to restore said Security Deposit
to the full amount required by this Lease. Lessor shall not be required to keep
all or any part of the Security Deposit separate from its general accounts.
Lessor shall, at the expiration or earlier termination of the term hereof and
after Lessee has vacated the Premises, return to Lessee (or, at Lessor's option,
to the last assignee, if any, of Lessee's interest herein), that portion of the
Security Deposit not used or applied by Lessor. Unless otherwise expressly
agreed in writing by Lessor, no part of the Security Deposit shall be considered
to be held in trust, to bear interest or other Increment for its use, or to be
prepayment for any monies to be paid by Lessee under this Lease.
Initials: [ILLEGIBLE]
6. Use.
6.1 Permitted Use.
(a) Lessee shall use and occupy the Premises only for the Permitted
Use set forth in Paragraph 1.8, or any other legal use which is reasonably
comparable thereto, and for no other purpose. Lessee shall not use or permit the
use of the Premises in a manner that is unlawful, creates waste or a nuisance,
or that disturbs owners and/or occupants of, or causes damage to the Premises or
neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay its
consent to any written request by Lessee. Lessee's assignees or subtenants, and
by prospective assignees and subtenants of Lessee, its assignees and subtenants,
for a modification of said Permitted Use, so long as the same will not impair
the structural integrity of the improvements on the Premises or in the Building
or the mechanical or electrical systems therein, does not conflict with uses by
other lessees, is not significantly more burdensome to the Premises or the
Building and the improvements thereon, and is otherwise permissible pursuant to
this Paragraph 6. If Lessor elects to withhold such consent, Lessor shall within
five (5) business days after such request give a written notification of same,
which notice shall include an explanation of Lessor's reasonable objections to
the change in use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance"
as used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment, or the Premises; (ii) regulated or monitored by any governmental
authority; or (iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil or any products or by-products thereof. Lessee
shall not engage in any activity in or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Lessor and compliance in a timely manner (at
Lessee's sole cost and expense) with all Applicable Requirements (as defined in
Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any
above or below ground storage tank, (ii) the generation, possession, storage,
use, transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority, and (iii) the presence
in, on or about the Premises of a Hazardous Substance with respect to which any
Applicable Laws require that a notice be given to persons entering or occupying
the Premises or neighboring properties. Notwithstanding the foregoing, Lessee
may, without Lessor's prior consent, but in compliance with all Applicable
Requirements, use any ordinary and customary materials reasonably required to be
used by Lessee in the normal course of the Permitted Use, so long as such use is
not a Reportable Use and does not expose the Premises or neighboring properties
to any meaningful risk of contamination or damage or expose Lessor to any
liability therefor. In addition, Lessor [ILLEGIBLE] without any obligation to do
so) condition its consent to any Reportable Use of any Hazardous Substance by
Lessee upon Lessee's giving Lessor such [ILLEGIBLE] assurances as Lessor, in its
reasonable discretion, deems necessary to protect itself, the public, the
Premises and the environment against damage, contamination or injury and/or
liability therefor, including but not limited to the installation (and, at
Lessor's option, removal on or before Lease expiration or earlier termination)
of reasonably necessary protective modifications to the Premises (such as
concrete encasements) and/or the deposit of an additional Security Deposit under
Paragraph 5 hereof.
Initials: [ILLEGIBLE]
(b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause
to believe, that a Hazardous Substance has come to be located in, on, under or
about the Premises or the Building, other than as previously consented to by
Lessor, Lessee shall immediately give Lessor written notice thereof, together
with a copy of any statement, report, notice, registration, application, permit,
business plan, license, claim, action, or proceeding given to, or received from,
any governmental authority or private party concerning the presence, spill,
release, discharge of, or exposure to, such Hazardous Substance including but
not limited to all such documents as may be involved in any Reportable Use
involving the Premises. Lessee shall not cause or permit any Hazardous Substance
to be spilled or released in, on, under or about the Premises (including,
without limitation, through the plumbing or sanitary sewer system).
(c) Indemnification. Lessee shall indemnify, protect, defend and
hold Lessor, its agents, employees, lenders and ground lessor, if any, and the
Premises, harmless from and against any and all damages, liabilities, judgments,
costs, claims, liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees arising out of or involving any Hazardous Substance brought
onto the Premises by or for Lessee or by anyone under Lessee's control. Lessee's
obligations under this Paragraph 6.2(c) shall include, but not be limited to,
the effects of any contamination or injury to person, property or the
environment created or suffered by Lessee, and the cost of Investigation
(including consultants' and attorneys' fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved,
and shall survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by Lessor and Lessee
shall release Lessee from its obligations under this Lease with respect to
Hazardous Substances, unless specifically so agreed by Lessor in writing at the
time of such agreement.
6.3 Lessee's Compliance with Requirements. Lessee shall, at Lessee's
sole cost and expense, fully, diligently and in a timely manner, comply with all
"Applicable Requirements," which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the Premises (including
but not limited to matters pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including soil and
groundwater conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill, or release
of any Hazardous Substance), now in effect or which may hereafter come into
effect. Lessee shall, within five (5) days after receipt of Lessor's written
request, provide Lessor with copies of all documents and information, including
but not limited to permits, registrations, manifests, applications, reports and
certificates, evidencing Lessee's compliance with any Applicable Requirements
specified by Lessor, and shall immediately upon receipt, notify Lessor in
writing (with copies of any documents involved) of any threatened or actual
claim, notice, citation, warning, complaint or report pertaining to or involving
failure by Lessee or the Premises to comply with any Applicable Requirements.
6.4 Inspection; Compliance with Law. Lessor, Lessor's agents,
employees, contractors and designated representatives, and the holders of any
mortgages, deeds of trust or ground leases on the Premises ("Lenders") shall
have the right to enter the Premises at any time in the case of an emergency,
and otherwise at reasonable times, for the purpose of inspecting the condition
of the Premises and for verifying compliance by Lessee with this Lease and all
Applicable Requirements (as defined in Paragraph 6.3), and Lessor shall be
entitled to employ experts and/or consultants in connection therewith to advise
Lessor with respect to Lessee's activities, including but not limited to
Lessee's installation, operation, use, monitoring, maintenance, or removal of
any Hazardous Substance on or from the Premises. The costs and expenses of any
such inspections shall be paid by the party requesting same, unless a Default or
Breach of this Lease by Lessee or a violation of Applicable Requirements or a
contamination, caused or materially contributed to by Lessee, is found to exist
or to be imminent, or unless [ILLEGIBLE] is requested or ordered by a
governmental authority as the result of any such existing or imminent violation
or contamination. In such case, Lessee [ILLEGIBLE] request reimburse Lessor or
Lessor's Lender, as the case may be, for the costs and expenses of such
inspections.
7. Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations.
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at
Lessee's sole cost and expense and at all times, keep the Premises and every
part thereof in good order, condition and repair (whether or not such portion of
the Premises requiring repair, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the need for such
repairs occurs as a result of Lessee's use, any prior use, the elements or the
age of such portion of the Premises), including, without limiting the generality
of the foregoing, all equipment or facilities specifically serving the Premises,
such as plumbing, heating, air conditioning, ventilating, electrical, lighting
facilities, boilers, fired or unfired pressure vessels, fire hose connections if
within the Premises, fixtures, interior walls, interior surfaces of exterior
walls, ceilings, floors, windows, doors, plate glass, and skylights, but
excluding any items which are the responsibility of Lessor pursuant to Paragraph
7.2 below. Lessee, in keeping the Premises in good order, condition and repair,
shall exercise and perform good maintenance practices. Lessee's obligations
shall include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order, condition
and state of repair.
(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain a contract, with copies to Lessor, in customary form and substance for
and with a contractor specializing and experienced in the inspection,
maintenance and service of the heating, air conditioning and ventilation system
for the Premises. However, Lessor reserves the right, upon notice to Lessee, to
procure and maintain the contract for the heating, air conditioning and
ventilating systems. [ILLEGIBLE] Lessor so elects, Lessee shall reimburse
Lessor, upon demand, for the cost thereof.
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after ten (10) days' prior
written notice to Lessee (except in the case of an emergency, in which case no
notice shall be required), perform such obligations on Lessee's behalf, and put
the [ILLEGIBLE] in good order, condition and repair, in accordance with
Paragraph 13.2 below.
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance with Covenants, Restrictions and Building Code),
4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9
(Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement
pursuant to Paragraph 4.2, shall keep in good order, condition and repair the
foundations, exterior walls, structural condition of interior bearing walls,
exterior roof, fire sprinkler and/or standpipe and hose (if located in the
Common Areas) or other automatic fire extinguishing system including fire alarm
and/or smoke
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detection systems and equipment, fire hydrants, parking lots, walkways,
parkways, driveways, landscaping, fences, signs and utility systems serving the
Common Areas and all parts thereof, as well as providing the services for which
there is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall
not be obligated to paint the exterior or interior surfaces of exterior walls
nor shall Lessor be obligated to maintain, repair or replace windows, doors or
plate glass of the Premises. Lessee expressly waives the benefit of any statute
now or hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Building, Industrial Center or Common Areas in good order,
condition and repair.
7.3 Utility Installations, Trade Fixtures, Alterations.
(a) Definitions; Consent Required. The term "Utility Installations"
is used in this Lease to refer to all air lines, power panels, electrical
[ILLEGIBLE] security, fire protection systems, communications systems, lighting
fixtures, heating, ventilating and air conditioning equipment, plumbing, and
fencing in, on, or about the Premises. The term "Trade Fixtures" shall mean
Lessee's machinery and equipment which can be removed without doing material
damage to the Premises. The term "Alterations" shall mean any modification of
the improvements on the Premises which are provided by Lessor under the terms of
this Lease, other than Utility Installations or Trade Fixtures. "Leases-Owned
Alterations and/or Utility Installations" are defined as Alterations and/or
Utility Installations made by Lessee that are not yet owned by Lessor pursuant
to Paragraph 7.4(a). Lessee shall not make nor cause to be made any Alterations
or Utility Installations in, on, under or about the Premises without Lessor's
prior written consent. Lessee may, however, make non-structural Utility
Installations to the interior of the Premises (excluding the roof) without
Lessor's consent but upon notice to Lessor, so long as they are not visible from
the outside of the Premises, do involve puncturing, relocating or removing the
roof or any existing walls, or changing or interfering with the fire sprinkler
or fire detection systems and the cumulative cost thereof during the term of
this Lease as extended does not exceed $25,000
Initials [ILLEGIBLE]
(b) Consent. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with detailed plans. All consents given by
Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent specific consent,
shall be deemed conditioned upon: (i) Lessee's acquiring all applicable permits
required by governmental authorities; (ii) the furnishing of copies of such
permits together with a copy of the plans and specifications for the Alteration
or Utility Installation to Lessor prior to commencement of the work thereon; and
(iii) the compliance by Lessee with all conditions of said permits in a prompt
and expeditious manner. Any Alterations or Utility Installations by Lessee
during the term of this Lease shall be done in a good and workmanlike manner,
with good and sufficient materials, and be in compliance with all Applicable
Requirements. Lessee shall promptly upon completion thereof furnish Lessor with
as-built plans and specifications therefor. Lessor may, (but without obligation
to do so) condition its consent to any requested Alteration or Utility
installation that costs $25,000 or more upon Lessee's providing Lessor with a
lien and completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility Installation.
(c) Lien Protection. Lessee shall pay when due all claims for labor
or materials furnished or alleged to have been furnished to or for Lessee or for
use on the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of any
work in, on, or about the Premises, and Lessor shall have the right to post
notices of non-responsibility in or on the Premises as provided by law. If
Lessee shall, in good faith, contest the validity of any such lien, claim or
demand, then Lessee shall, at its sole expense, defend and protect itself,
Lessor and the Premises against the same and shall pay and satisfy any such
adverse judgment that may be rendered thereon before the enforcement thereof
against the Lessor or the Premises. If Lessor shall require, Lessee shall
furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to one
and one-half times the amount of such contested lien claim or demand,
indemnifying Lessor against liability for the same, as required by law for the
holding of the Premises free from the effect of such lien or claim. In addition,
Lessor may require Lessee to pay Lessor's reasonable attorneys' fees and costs
in participating in such action if Lessor shall decide it is to its best
interest to do so.
Initials [ILLEGIBLE]
7.4 Ownership, Removal, Surrender, and Restoration.
(a) Ownership. Subject to Lessor's right to require their removal
and to cause Lessee to become the owner thereof as hereinafter provided in this
Paragraph 7.4, all Alterations and Utility Installations made to the Premises by
Lessee shall be the property of and owned by Lessee, but considered a part of
the Premises. Lessor may, at any time and at its option, elect in writing to
Lessee to be the owner of all or any specified part of the Lessee-Owned
Alterations and Utility Installations. Unless otherwise instructed per
Subparagraph 7.4(b) hereof, all Lessee-Owned Alterations and Utility
Installations shall, at the expiration or earlier termination of this Lease,
become the property of Lessor and remain upon the Premises and be surrendered
with the Premises by Lessee
(b) Removal. Unless otherwise agreed in writing, Lessor may require
that any or all Lessee-Owned Alterations or Utility Installations be removed by
the expiration or earlier termination of this Lease, notwithstanding that their
Installation may have been consented to by Lessor. Lessor may require the
removal [ILLEGIBLE] time of all or any part of any Alterations or Utility
Installations made without the required consent of Lessor.
(c) Surrender/Restoration. Lessee shall surrender the Premises by
the end of the last day of the Lease term or any earlier termination date, clean
and free of debris and in good operating order, condition and state of repair,
ordinary wear and tear excepted. Ordinary wear and tear shall not include any
damage or deterioration that would have been prevented by good maintenance
practice or by Lessee performing all of its obligations under this Lease. Except
as otherwise agreed or specified herein, the Premises, as surrendered, shall
include the Alterations and Utility Installations. The obligation of Lessee
shall include the repair of any damage occasioned by the installation,
maintenance or removal of Lessee's Trade Fixtures, furnishings, equipment, and
Lessee-Owned Alterations and Utility Installations, as well as the removal of
any storage tank installed by or for Lessee, and the removal, replacement, or
remediation of any soil, material or ground water contaminated by Lessee, all as
may then be required by Applicable Requirements and/or good practice. Lessee's
Trade Fixtures shall remain the property of Lessee and shall be removed by
Lessee subject to its obligation to repair and restore the Premises per this
Lease.
8. Insurance; Indemnity.
8.1 Payment of Premiums. The cost of the premiums for the insurance
policies maintained by Lessor under this Paragraph 8 shall be a Common Area
Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for policy periods
commencing prior to, or extending beyond, the term of this Lease shall be
prorated to coincide with the corresponding Commencement Date or Expiration
Date.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force during
the term of this Lease a Commercial General Liability policy of insurance
protecting Lessee, Lessor and any Lender(s) whose names have been provided to
Lessee in writing (as additional insureds) against claims for bodily injury,
personal injury and property damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than $1,000,000 per occurrence with
an "Additional Insured-Managers or Lessors of Premises" endorsement and contain
the "Amendment of the Pollution Exclusion" endorsement for damage caused by
heat, smoke or fumes from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or organizations, but shall
include coverage for liability assumed under this Lease as an "Insured contract"
for the performance of Lessee's indemnity obligations under this Lease. The
limits of said insurance required by this Lease or as carried by Lessee shall
not, however, limit the liability of Lessee nor relieve Lessee of any obligation
hereunder. All insurance to be carried by Lessee shall be primary to and not
contributory with any similar insurance carried by Lessor, whose insurance shall
be considered excess insurance only.
(b) Carried by Lessor. Lessor shall also maintain liability
insurance described in Paragraph 8.2(a) above, in addition to and not in lieu
of, the insurance required to be maintained by Lessee. Lessee shall not be named
as an additional insured therein.
8.3 Property Insurance-Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies in the name of Lessor, with
loss payable to Lessor and to any Lender(s), insuring against loss or damage to
the Premises. Such insurance shall be for full replacement cost, as the same
shall exist from time to time, or the amount required by any Lender(s), but in
no event more than the commercially reasonable and available insurable value
thereof if, by reason of the unique nature or age of the improvements involved,
such latter amount is less than full replacement cost. Lessee-Owned Alterations
and Utility Installations, Trade Fixtures and Lessee's personal property shall
be insured by Lessee pursuant to Paragraph 8.4. If the coverage is available and
commercially appropriate, Lessor's policy or policies shall insure against all
risks of direct physical loss or damage (except the perils of flood and/or
earthquake unless required by a Lender), including coverage for any additional
costs resulting from debris removal and reasonable amounts of coverage for the
enforcement of any ordinance or law regulating the reconstruction or replacement
of any undamaged sections of the Building required to be demolished or removed
by reason of the [ILLEGIBLE] cement of any building, zoning, safety or land use
laws as the result of a covered loss, but not including plate glass insurance.
Said policy or policies shall [ILLEGIBLE] contain an agreed valuation provision
in lieu of any co-insurance clause, waiver of subrogation, and inflation guard
protection causing an increase in the annual property insurance coverage amount
by a factor of not less than the adjusted U.S. Department of Labor Consumer
Price Index for All Urban Consumers for the city nearest to where the Premises
are located.
(b) Rental Value. Lessor shall also obtain and keep in force during
the term of this Lease a policy or policies in the name of Lessor, with loss
payable to Lessor and any Lender(s), insuring the loss of the full rental and
other charges payable by all lessees of the Building to Lessor for one year
(including all Real Property Taxes, insurance costs, all Common Area Operating
Expenses and any scheduled rental increases). Said insurance may provide that in
the event the Lease is terminated by reason of an insured loss, the period of
indemnity for such coverage shall be extended beyond the date of the completion
of repairs or replacement of the Premises, to provide for one full year's loss
of rental revenues from the date of any such loss. Said insurance shall contain
an agreed valuation provision in lieu of any co-insurance clause, and the amount
of coverage shall be adjusted annually to reflect the projected rental income,
Real Property Taxes, insurance premium costs and other expenses, if any,
otherwise payable, for the next 12-month period. Common Area Operating Expenses
shall include any deductible amount in the event of such loss.
(c) Adjacent Premises. Lessee shall pay for any increase in the
premiums for the property insurance of the Building and for the Common Areas or
other buildings in the Industrial Center if said increase is caused by Lessee's
acts, omissions, use or occupancy of the Premises.
(d) Lessee's Improvements. Since Lessor is the Insuring Party,
Lessor shall not be required to insure Lessee-Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this Lease.
8.4 Lessee's Property Insurance. Subject to the requirements of Paragraph
8.5, Lessee at its cost shall either by separate policy or, at Lessor's
[ILLEGIBLE] by endorsement to a policy already carried, maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures and Lessee-Owned
[ILLEGIBLE] and Utility Installations in, on, or about the Premises similar in
coverage to that carried by Lessor as the Insuring Party under Paragraph 8.3(a).
Such insurance shall be full replacement cost coverage with a deductible not to
exceed * * per occurrence. The proceeds from any such insurance shall be used by
Lessee for the replacement of personal property and the restoration of Trade
Fixtures and Lessee-Owned Alterations and Utility Installations. Upon request
from [ILLEGIBLE], Lessee shall provide Lessor with written evidence that such
insurance is in force. * *-$10,000
8.5 Insurance Policies. Insurance required hereunder shall be in companies
duly licensed to transact business in the state where the Premises are located,
and maintaining during the policy term a "General Policyholders Rating" of at
least B+, V, or such other rating as may be required by a Lender, as [ILLEGIBLE]
in the most current Issue of "Best's Insurance Guide". Lessee shall not do or
permit to be done anything which shall invalidate the insurance policies
referred to in
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this Paragraph 8. Lessee shall cause to be delivered to Lessor, within seven (7)
days after the earlier of the Early Possession Date or the Commencement Date,
certified copies of, or certificates evidencing the existence and amounts of,
the insurance required under Paragraph 8.2(a) and 8.4. No such policy shall be
cancelable or subject to modification except after thirty (30) days' prior
written notice to Lessor. Lessee shall at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand.
8.6 Waiver of Subrogation. Without affecting any other rights or remedies,
Lessee and Lessor each hereby release and relieve the other, and waive their
entire right to recover damages (whether in contract or in tort) against the
other, for loss or damage to their property arising out of or incident to the
perils required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance companies
issuing property damage insurance waive any right to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessor's negligence and/or breach of express
warranties, Lessee shall indemnity, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground lessor, partners and
Lenders, from and against any and all claims, loss of rents and/or damages,
costs, liens, judgments, penalties, loss of permits, attorneys' and consultants'
fees, expenses and/or liabilities arising out of, involving, or in connection
with, the occupancy of the Premises by Lessee, the conduct of Lessee's business,
any act, omission or neglect of Lessee, its agents. contractors, employees or
invitees, and out of any Default or Breach by Lessee in the performance in a
timely manner of any obligation on Lessee's part to be performed under this
Lease. The foregoing shall include, but not be limited to, the defense or
pursuit of any claim or any action or proceeding involved therein, and whether
or not (in the case of claims made against Lessor) litigated and/or reduced to
judgment. In case any action or proceeding be brought against Lessor by reason
of any of the foregoing matters, Lessee upon notice from Lessor shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid any
such claim in order to be so indemnified.
8.8 Exemption of Lessor from Liability. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, fire sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether said injury or damage results from conditions arising upon the
Premises or upon other portions of the Building of which the Premises are a
part, from other sources or places, and regardless of whether the cause of such
damage or injury or the means of repairing the same is accessible or not. Lessor
shall not be liable for any damages arising from any act or neglect of any other
lessee of Lessor nor from the failure by Lessor to enforce the provisions of any
other lease in the Industrial Center. Notwithstanding Lessor's negligence or
breach of this Lease, Lessor shall under no circumstances be liable for injury
to Lessee's business or for any loss of income or profit therefrom.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to
the Premises, other than Lessee-Owned Alterations and Utility Installations, the
repair cost of which damage or destruction is less than fifty percent (50%) of
the then Replacement Cost (as defined in Paragraph 9.1(d)) of the Premises
(excluding Lessee-Owned Alterations and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction.
(b) "Premises Total Destruction" shall mean damage or destruction to
the Premises, other than Lessee-Owned Alterations and Utility Installations, the
repair cost of which damage or destruction is fifty percent (50%) or more of the
then Replacement Cost of the Premises (excluding Lessee-Owned Alterations and
Utility Installations and Trade Fixtures) immediately prior to such damage or
destruction. In addition, damage or destruction to the Building, other than
Lessee-Owned Alterations and Utility Installations and Trade Fixtures of any
lessees of the Building, the cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Cost (excluding Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any lessees of the
Building) of the Building shall, at the option of Lessor, be deemed to be
Premises Total Destruction.
(c) "Insured Loss" shall mean damage or destruction to the Premises,
other than Lessee-Owned Alterations and Utility Installations and Trade
Fixtures, which was caused by an event required to be covered by the insurance
described in Paragraph 8.3(a) irrespective of any deductible amounts or coverage
[ILLEGIBLE] involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances or
laws, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 Premises Partial Damage - Insured Loss. If Premises Partial Damage
that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair
such damage (but not Lessee's Trade Fixtures or Lessee-Owned Alterations and
Utility Installations) as soon as reasonably possible and this Lease shall
continue in full force and effect. In the event, however, that there is a
shortage of insurance proceeds and such shortage is due to the fact that, by
reason of the unique nature of the improvements in the Premises, full
replacement cost insurance coverage was not commercially reasonable and
available, Lessor shall have no obligation to pay for the shortage in insurance
proceeds or to fully restore the unique aspects of the Premises unless Lessee
provides Lessor with the funds to cover same, or adequate assurance thereof,
within ten (10) days following receipt of written notice of such shortage and
request therefor. If Lessor receives said funds or adequate assurance thereof
within said ten (10) day period, Lessor shall complete them as soon as
reasonably possible and this Lease shall remain in full force and effect. If
Lessor does not receive such funds or assurance within said period, Lessor may
nevertheless elect by written notice to Lessee within ten (10) days thereafter
to make such restoration and repair as is commercially reasonable with Lessor
paying any shortage in proceeds, in which case this Lease shall remain in full
force and effect. If Lessor does not receive such funds or assurance within such
ten (10) day period, and if Lessor does not so elect to restore and repair, then
this Lease shall terminate sixty (60) days following the occurrence of the
damage or destruction. Unless otherwise agreed, Lessee shall in no event have
any right to reimbursement from Lessor for any funds contributed by Lessee to
repair any such damage or destruction. Premises Partial Damage clue to flood or
earthquake shall be subject to Paragraph 9.3 rather than Paragraph 9.2,
notwithstanding that there may be some insurance coverage, but the net proceeds
of any such insurance shall be made available for the repairs if made by either
Party.
9.3 Partial Damage - Uninsured Loss. If Premises Partial Damage that is
not an Insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense and
this Lease shall continue in full force and effect), Lessor may at Lessor's
option, either (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and effect, or
(ii) give written notice to Lessee within thirty (30) days after receipt by
Lessor of knowledge of the occurrence of such damage of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the repair of such damage totally at Lessee's expense and without
reimbursement from Lessor. Lessee shall provide Lessor with the required funds
or satisfactory assurance thereof within thirty (30) days following such
commitment from Lessee. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not give such
notice and provide the funds or assurance thereof within the times specified
above, this Lease shall terminate as of the date specified in Lessor's notice of
termination.
9.4 Total Destruction. Notwithstanding any other provision hereof, if
Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an Insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall have the right to recover Lessor's damages from Lessee
except as released and waived in Paragraph 9.7.
9.5 Damage Near End of Term. If at any time during the last six (6) months
of the term of this Lease there is damage for which the cost to repair
[ILLEGIBLE] one month's Base Rent, whether or not an Insured Loss, Lessor may,
at Lessor's option, terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by (a) exercising such option, and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the repairs
on or before the earlier of (i) the date which is ten (10) days after Lessee's
receipt of Lessor's written notice purporting to terminate this Lease, or (ii)
the day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds (or
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall, at Lessor's expense repair such damage as soon as reasonably possible and
this Lease shall continue in full force and effect. If Lessee fails to exercise
such option and provide such funds or assurance during such period, then this
Lease shall terminate as of the date set forth in the first sentence of this
Paragraph 9.5.
9.6 Abatement of Rent; Lessee's Remedies.
(a) In the event of (i) Premises Partial Damage or (ii) Hazardous
Substance Condition for which Lessee is not legally responsible, the Base Rent,
Common Area Operating Expenses and other charges, if any, payable by Lessee
hereunder for the period during which such damage or condition, its repair,
remediation or restoration continues, shall be abated in proportion to the
degree to which Lessee's use of the Premises is impaired, but not in excess of
proceeds from insurance required to be carried under Paragraph 8.3(b). Except
for abatement of Base Rent, Common Area Operating Expenses and other charges, if
any, as aforesaid, all other obligations of Lessee hereunder shall be performed
by Lessee, and Lessee shall have no claim against Lessor for any damage suffered
by reason of any such damage, destruction, repair, remediation or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises within
ninety (90) days after such obligation shall accrue, Lessee may, at any time
prior to the commencement of such repair or restoration, give written notice to
Lessor and to any Lenders of which Lessee has actual notice of Lessee's election
to terminate [ILLEGIBLE] on a date not less than sixty (60) days following the
giving of such notice. If Lessee gives such notice to Lessor and such Lenders
and such repair or [ILLEGIBLE] is not commenced within thirty (30) days after
receipt of such notice, this Lease shall terminate as of the date specified in
said notice. If Lessor or a [ILLEGIBLE] commences the repair or restoration of
the Premises within thirty (30) days after the receipt of such notice, this
Lease shall continue in full force and effect. "Commence" as used in this
Paragraph 9.6 shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual work on the
Premises, whichever occurs first.
9.7 Hazardous Substance Conditions. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable
Requirements and this Lease shall continue in full force and effect, but subject
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to Lessor's rights under Paragraph 6.2(c) and Paragraph 13), Lessor may at
Lessor's option either (i) investigate and remediate such Hazardous Substance
Condition, if required, as soon as reasonably possible at Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) if the
estimated cost to investigate and remediate such condition exceeds twelve (12)
times the then monthly Base Rent or $100,000 whichever is greater, give written
notice to Lessee within thirty (30) days after receipt by Lessor of knowledge of
the occurrence of such Hazardous Substance Condition of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the excess costs of (a) investigation and remediation of such
Hazardous Substance Condition to the extent required by Applicable Requirements,
over (b) an equal amount equal to twelve (12) times the then monthly Base Rent
or $100,000, whichever is greater. Lessee shall provide Lessor with the funds
required of Lessee or satisfactory [ILLEGIBLE] thereof within thirty (30) days
following said commitment by Lessee. In such event this Lease shall continue in
full force and effect, and Lessor shall [ILLEGIBLE] make such investigation and
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required funds or
assurance thereof within the time period specified above, this Lease shall
terminate as of the date specified in Lessor's notice of termination.
9.8 Termination, Advance Payments. Upon termination of this Lease pursuant
to this Paragraph 9. Lessor shall return to Lessee any advance payment made by
Lessee to Lessor and so much of Lessee's Security Deposit as has not been, or is
not then required to be, used by Lessor under the terms of this Lease.
9.9 Waiver of Statutes. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
and the Building with respect to the termination of this Lease and hereby waive
the provisions of any present or future statute to the extent it is inconsistent
herewith.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Industrial Center, and except as
otherwise provided in Paragraph 10.3, any such amounts shall be included in the
calculation of Common Area Operating Expenses in accordance with the provisions
of Paragraph 4.2.
10.2 Real Property Tax Definition. As used herein, the term "Real Property
Taxes" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed upon the Industrial Center by any authority having the
direct or indirect power to tax, including any city, state or federal
government, or any school, agricultural, sanitary, fire, street, drainage, or
other improvement district thereof, levied against any legal or equitable
interest of Lessor in the Industrial Center or any portion thereof, Lessor's
right to rent or other income therefrom, and/or Lessor's business of leasing the
Premises. The term "Real Property Taxes" shall also include any tax, fee, levy,
assessment or charge, or any increase therein, imposed by reason of events
occurring, or changes in Applicable Law taking effect, during the term of this
Lease, including but not limited to a change in the ownership of the Industrial
Center or in the improvements thereon, the execution of this Lease, or any
modification, amendment or transfer thereof, and whether or not contemplated by
the Parties. In calculating Real Property Taxes for any calendar year, the Real
Property Taxes for any real estate tax year shall be included in the calculation
of Real Property Taxes for such calendar year based upon the number of days
which such calendar year and tax year have in common.
10.3 Additional Improvements. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the industrial
Center by other lessees or by Lessor for the exclusive enjoyment of such other
lessees. Notwithstanding Paragraph 10.1 hereof, Lessee shall, however, pay to
Lessor at the time Common Area Operating Expenses are payable under Paragraph
4.2, the entirety of any increase in Real Property Taxes if assessed solely by
reason of Alterations, Trade Fixtures or Utility Installations placed upon the
Premises by Lessee or at Lessee's request.
10.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Lesser from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available. Lessor's reasonable determination thereof, in good
faith, shall be conclusive.
10.5 Lessee's Property Taxes. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee-Owned Alterations and Utility
installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises or stored within the Industrial Center. When
[ILLEGIBLE], Lessee shall cause its Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal
property to be [ILLEGIBLE] and billed separately from the real property of
Lessor. If any of Lessee's said property shall be assessed with Lessor's real
property, Lessee shall pay Lessor the taxes attributable to Lessee's property
within ten (10) days after receipt of a written statement setting forth the
taxes applicable to Lessee's property.
11. Utilities. Lessee shall pay directly for all utilities and services supplied
to the Premises, including but not limited to electricity, telephone, security,
gas and cleaning of the Premises, together with any taxes thereon. If any such
utilities or services are not separately metered to the Premises or separately
billed to the Premises, Lessee shall pay to Lessor a reasonable proportion to be
determined by Lessor of all such charges jointly metered or billed with other
premises in the Building, in the manner and within the time periods set forth in
Paragraph 4.2(d).
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively, "assign") or
sublet all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent given under and subject to the terms of
Paragraph 36.
(b) A change in the control of Lessee shall constitute an assignment
requiring Lessor's consent. The transfer, on a cumulative basis, of twenty-five
percent (25%) or more of the voting control of Lessee shall constitute a change
in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or
series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a formal
assignment or hypothecation of this Lease or Lessee's assets occurs, which
results or will result in a reduction of the Net Worth of Lessee, as hereinafter
defined, by an amount equal to or greater than twenty-five percent (25%) of such
Net Worth of Lessee as it was represented to Lessor at the time of full
execution and delivery of this Lease or at the time of the most recent
assignment to which Lessor has consented, or as it exists immediately prior to
said transaction or transactions constituting such reduction, at whichever time
said Net Worth of Lessee was or is greater, shall be considered an assignment of
this Lease by Lessee to which Lessor may reasonably withhold its consent. "Net
Worth of Lessee" for purposes of this Lease shall be the net worth of Lessee
(excluding any Guarantors) established under generally accepted accounting
principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this Lease
without Lessor's specific prior written consent shall, at Lessor's option, be a
Default curable after notice per Paragraph 13.1, or a non-curable Breach without
the necessity of any notice and grace period. If Lessor elects to treat such
unconsented to assignment or subletting as a non-curable Breach, Lessor shall
have the right to either: (i) terminate this Lease, or (ii) upon thirty (30)
days, written notice ("Lessor's Notice"), increase the monthly Base Rent for the
Premises to the greater of the then fair market rental value of the Premises, as
reasonably determined by Lessor, or one hundred ten percent (110%) of the Base
Rent then in effect, Pending determination of the new fair market rental value,
if disputed by Lessee, Lessee shall pay the amount set forth in Lessor's Notice,
with any overpayment credited against the next installment(s) of Base Rent
coming due, and any underpayment for the period retroactively to the effective
date of the adjustment being due and payable immediately upon the determination
thereof. Further, in the event of such Breach and rental adjustment, (i) the
purchase price of any option to purchase the Premises held by Lessee shall be
subject to similar adjustment to the then fair market value as reasonably
determined by Lessor (without the Lease being considered an encumbrance or any
deduction for depreciation or obsolescence, and considering the Premises at its
highest and best use and in good condition) or one hundred ten percent (110%) of
the price previously in effect, (ii) any index-oriented rental or price
adjustment formulas contained in this Lease shall be adjusted to require that
the base index be determined with reference to the index applicable to the time
of such adjustment, and (iii) any fixed rental adjustments scheduled during the
remainder of the Lease term shall be increased in the same ratio as the new
rental bears to the Base Rent in effect immediately prior to the adjustment
specified in Lessor's Notice.
(e) Lessee's remedy for any beach of this Paragraph 12.1 by Lessor
shall be limited to compensatory damages and/or injunctive relief.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not (i) be effective without the express written assumption by such
assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, nor (iii) alter the primary
liability of Lessee for the payment of Base Rent and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of any rent for performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for the Default or Breach by
Lessee of any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the assignee or
sublessee. However, Lessor may consent to subsequent sublettings and assignments
of the sublease or any amendments or modifications thereto without notifying
Lessee or anyone else liable under this Lease or the sublease and without
obtaining their consent, and such action shall not relieve such persons from
liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's obligation
under this Lease, Lessor may proceed directly against Lessee, any Guarantors or
anyone else responsible for the performance of the Lessee's obligations under
this Lease, including any sublessee, without first exhausting Lessor's remedies
against any other person or entity responsible therefor to Lessor, or any
security held by Lessor.
(e) Each request for consent to an assignment or subletting shall be
in writing, accompanied by information relevant to Lessor's determination as to
the financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including but not limited to the intended use and/or
[ILLEGIBLE] modification of the Premises, if any, together with a non-refundable
deposit of $1,000 or ten percent (10%) of the monthly Base Rent applicable to
the [ILLEGIBLE] the Premises which is the subject of the proposed assignment or
sublease, whichever is greater, as reasonable consideration for Lessor's
considering and [ILLEGIBLE] the request for consent. Lessee agrees to provide
Lessor with such other or additional information and/or documentation as may be
reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed,
[ILLEGIBLE] benefit of Lessor, to have assumed and agreed to conform and comply
with each and every term, covenant, condition and obligation herein to be
observed or performed by Lessee during the term of said assignment or sublease,
other than such obligations as are contrary to or inconsistent with provisions
of an assignment or sublease to which Lessor has specifically consented in
writing.
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(g) The occurrence of a transaction described in Paragraph 12.2(c)
shall give Lessor the right (but not the obligation) to require that the
Security Deposit be increased by an amount equal to six (6) times the then
monthly Base Rent, and Lessor may make the actual receipt by Lessor of the
Security Deposit Increase a condition to Lessor's consent to such transaction.
(h) Lessor, as a condition to giving its consent to any assignment
or subletting, may require that the amount and adjustment schedule of the rent
payable under this Lease be adjusted to what is then the market value and/or
adjustment schedule for property similar to the Premises as then constituted, as
determined by Lessor.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee of all or
[ILLEGIBLE] of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a portion
of the Premises heretofore or hereafter made by Lessee, and Lessor may collect
such rent and income and apply same toward Lessee's obligations under this
Lease; provided, however, that until a Breach (as defined in Paragraph 13.1)
shall occur in the performance of Lessee's obligations under this Lease. Lessee
may, except as otherwise provided in this Lease, receive, collect and enjoy the
rents accruing under such sublease. Lessor shall not, by reason of the foregoing
provision or any other assignment of such sublease to Lessor, nor by reason of
the collection of the rents from a sublessee, be deemed liable to the sublessee
for any failure of Lessee to perform and comply with any of Lessee's obligations
to such sublessee under such Sublease. Lessee hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Lessor stating
that a Breach exists in the performance of Lessee's obligations under this
Lease, to pay to Lessor the rents and other charges due and to become due under
the sublease. Sublessee shall rely upon any such statement and request from
Lessor and shall pay such rents and other charges to Lessor without any
obligation or right to inquire as to whether such Breach exists and
notwithstanding any notice from or claim from Lessee to the contrary. Lessee
shall have no right or claim against such sublessee, or, until the Breach has
been cured, against Lessor, for any such rents and other charges so paid by said
sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other prior defaults
or breaches of such sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor under
a sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall further
assign or sublet all or any part of the Premises without Lessor's prior written
consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach
by Lessee to the sublessee, who shall have the right to cure the Default of
Lessee within the grace period, if any, specified in such notice. The sublessee
shall have a right of reimbursement and offset from and against Lessee for any
such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Lessor may include the cost of such services and costs in said
notice as rent due and payable to cure said default. A "Default" by Lessee is
defined as a failure by Lessee to observe, comply with or perform any of the
terms, covenants, conditions or rules applicable to Lessee under this Lease. A
"Breach" by Lessee is defined as the occurrence of any one or more of the
following Defaults, and, where a grace period for cure after notice is specified
herein, the failure by Lessee to cure such Default prior to the expiration of
the applicable grace period, and shall entitle Lessor to pursue the remedies set
forth in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to reoccupy
same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the
failure by Lessee to make any payment of Base Rent, Lessee's Share of Common
Area Operating Expenses, or any other monetary payment required to be made by
Lessee hereunder as and when due, the failure by Lessee to provide Lessor
[ILLEGIBLE] evidence of insurance or surety bond required under this Lease, or
the failure of Lessee to fulfill any obligation under this Lease which endangers
[ILLEGIBLE] life or property, where such failure continues for a period of three
(3) days following written notice thereof by or on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence (in duty
executed original form, if applicable) of (i) compliance with Applicable
Requirements per Paragraph 6.3, (ii) the inspection, maintenance and service
contracts required under Paragraph 7.1(b), (iii) the rescission of an
unauthorized assignment or subletting per Paragraph 12.1, (iv) a Tenancy
Statement per Paragraphs 16 or 37, (v) the subordination or non-subordination of
this Lease per Paragraph 30, (vi) the guaranty of the performance of Lessee's
obligations under this Lease if required under Paragraphs 1.11 and 37, (vii) the
execution of any document requested under Paragraph 42 (easements), or (viii)
any other documentation or information which Lessor may reasonably require of
Lessee under the terms of this lease, where any such failure continues for a
period of ten (10) days following written notice by or on behalf of Lessor to
Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof that
are to be observed, complied with or performed by Lessee, other than those
described in Subparagraphs 13.1(a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written notice thereof by or on
behalf of Lessor to Lessee; provided, however, that if the nature of Lessee's
Default is such that more than thirty (30) days are reasonably required for its
cure, then it shall not be deemed to be a Breach of this Lease by Lessee if
Lessee commences such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making by
Lessee of any general arrangement or assignment for the benefit of creditors;
(ii) Lessee's becoming a "debtor" as defined in 11 U.S. Code Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within thirty (30) days: or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this Subparagraph 13.1(e) is contrary to any
applicable law, such provision shall be of no force or effect, and shall not
affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement of Lessee
or of any Guarantor, given to Lessor by Lessee or any Guarantor, was materially
false.
(g) If the performance of Lessee's obligations under this Lease is
guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's
liability with respect to this Lease other than in accordance with the terms of
such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a
bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v) a
Guarantor's breach of its guaranty obligation on an anticipatory breach basis,
and Lessee's failure, within sixty (60) days following written notice by or on
behalf of Lessor to Lessee of any such event, to provide Lessor with written
alternative assurances of security, which, when coupled with the then existing
resources of Lessee, equals or exceeds the combined financial resources of
Lessee and the Guarantors that existed at the time of execution of this Lease.
13.2 Remedies. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written notice
to Lessee (or in case of an emergency, without notice), Lessor may at its option
(but without obligation to do so), perform such duty or obligation on Lessee's
behalf, including but not limited to the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The costs
and expenses of any such performance by Lessor shall be due and payable by
Lessee to Lessor upon invoice therefor. If any check given to Lessor by Lessee
shall not be honored by the bank upon which it is drawn, Lessor, at its own
option, may require all future payments to be made under this Lease by Lessee to
be made only by cashier's check. In the event of a Breach of this Lease by
Lessee (as defined in Paragraph 13.1), with or without further notice or demand,
and without limiting Lessor in the [ILLEGIBLE] of any right or remedy which
Lessor may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In such
event Lessor shall be entitled to recover from Lessee: (i) the worth at the time
of the award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the Lessee proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco or the Federal Reserve Bank District
in which the Premises are located at the time of award plus one percent (1%).
Efforts by Lessor to mitigate damages caused by Lessee's Default or Breach of
this Lease shall not waive Lessor's right to recover damages under this
Paragraph 13.2. If termination of this Lease is obtained through the provisional
remedy of unlawful detainer, Lessor shall have the right to recover in such
proceeding the unpaid rent and damages as are recoverable therein, or Lessor may
reserve the right to recover all or any part thereof in a separate suit for such
rent and/or damages. If a notice and grace period required under Subparagraph
13.1(b), (c) or (d) was not previously given, a notice to pay rent or quit, or
to perform or quit, as the case may be, given to Lessee under any statute
authorizing the forfeiture of leases for unlawful detainer shall also constitute
the applicable notice for grace period purposes required by Subparagraph
13.1(b), (c) or (d). In such case, the applicable grace period under the
unlawful detainer statue shall run concurrently after the one such statutory
notice, and the failure of Lessee to cure the Default within the greater of the
two (2) such grace periods shall constitute both an [ILLEGIBLE] detainer and a
Breach of this Lease entitling Lessor to the remedies provided for in this Lease
and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect
(in California under California Civil Code Section 1951.4) after Lessee's Breach
and recover the rent as it becomes due, provided Lessee has the right to sublet
or assign, subject only to reasonable limitations. Lessor and Lessee agree
[ILLEGIBLE] the limitations on assignment and subletting in this Lease are
reasonable. Acts of maintenance or preservation, efforts to relet the Premises,
or the appointment of a receiver to protect the Lessor's interest under this
Lease, shall not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premise are
located.
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(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term hereof or by reason of Lessee's occupancy of the
Premises.
13.3 inducement Recapture In Event of Breach. Any agreement by Lessor for
free or abated rent or other charges applicable to the Premises, or for the
giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of which
concessions are hereinafter referred to as "Inducement Provisions" shall be
deemed conditioned upon Lessee's full and faithful performance of all of the
terms, covenants and conditions of this Lease to be performed or observed by
Lessee during the term hereof as the same may be extended. Upon the occurrence
of a Breach (as defined in Paragraph 13,1) of this Lease by Lessee, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no [ILLEGIBLE] force or effect, and any rent, other charge, bonus, inducement
or consideration theretofore abated, given or paid by Lessor under such an
Inducement [ILLEGIBLE] shall be immediately due and payable by Lessee to Lessor,
and recoverable by Lessor, as additional rent due under this Lease,
notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by
Lessor of rent or the cure of the Breach which Initiated the operation of this
Paragraph 13.3 shall not be deemed a waiver by Lessor of the provisions of this
Paragraph 13.3 unless specifically so stated in writing by Lessor at the time of
such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed upon Lessor by the
terms of any ground lease, mortgage or deed of trust covering the Premises.
Accordingly, if any installment of rent or other sum due from Lessee shall not
be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee, Lessee
shall pay to Lessor a late charge equal to six percent (6%) of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment by
Lessee Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder, whether or not
collected, for three (3) consecutive installments of Base Rent, then
notwithstanding Paragraph 4,1 or any other provision of this Lease to the
contrary, Base Rent shall, at Lessor's option, become due and payable quarterly
in advance.
13.5 Breach by Lessor. Lessor shall not be deemed in breach of this Lease
unless Lessor fails within a reasonable time to perform an obligation required
to be performed by Lessor. For purposes of this Paragraph 13.5, a reasonable
time shall in no event be less than thirty (30) days after receipt by Lessor,
and by any Lender(s) whose name and address shall have been furnished to Lessee
in writing for such purpose, of written notice specifying wherein such
obligation of Lessor has not been performed; provided, however, that if the
nature of Lessor's obligation is such that more than thirty (30) days after such
notice are reasonably required for its performance, then Lessor shall not be in
breach of this Lease if performance is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
14. Condemnation. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than ten percent (10%) of
the floor area of the Premises, or more than twenty-five percent (25%) of the
portion of the Common Areas designated for Lessee's parking, is taken by
condemnation, Lessee may, at Lessee's option, to be exercised in writing within
ten (10) days after Lessor shall have given Lessee written notice of such taking
(or in the absence of such notice, within ten (10) days after the condemning
authority shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. If Lessee does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force
and effect as to the portion of the Premises remaining, except that the Base
Rent shall be reduced in the same proportion as the rentable floor area of the
Premises taken bears to the total rentable floor area of the Premises. No
reduction of Base Rent shall occur if the condemnation does not apply to any
portion of the Premises. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution of value of the leasehold or for
the taking of the fee, or as severance damages: provided, however, that Lessee
shall be entitled to any compensation, separately awarded to Lessee for Lessee's
relocation expenses and/or loss of Lessee's Trade Fixtures. In the event that
this Lease is not terminated by reason of such condemnation, Lessor shall to the
extent of its net severance damages received, over and above Lessee's Share of
the legal and other expenses incurred by Lessor in the condemnation matter,
repair any damage to the Premises caused by such condemnation authority. Lessee
shall be responsible for the payment of any amount in excess of such net
severance damages required to complete such repair.
15. Brokers' Fees.
15.1 Procuring Cause. The Broker(s) named in Paragraph 1.10 is/are the
procuring cause of this Lease.
15.2 Additional Terms. Unless Lessor and Broker(s) have otherwise agreed
in writing, Lessor agrees that: (a) if Lessee exercises any Option (as defined
in Paragraph 39.1) granted under this Lease or any Option subsequently granted,
or (b) if Lessee acquires any rights to the Premises or other premises in which
Lessor has an interest, or (c) if Lessee remains in possession of the Premises
with the consent of Lessor after the expiration of the term of this Lease after
having failed to exercise an Option, or (d) if said Brokers are the procuring
cause of any other lease or sale entered into between the Parties pertaining to
the Premises and/or any adjacent property in which Lessor has an interest, or
(e) if Base Rent is increased, whether by agreement or operation of an
escalation clause herein, then as to any of said transactions, Lessor shall pay
said Broker(s) a fee in accordance with the schedule of said Broker(s) in effect
at the time of the execution of this Lease.
15.3 Assumption of Obligations. Any buyer or transferee of Lessor's
interest in this Lease. whether such transfer is by agreement or by operation of
law, shall be deemed to have assumed Lessor's obligation under this Paragraph
15. Each Broker shall be an intended third party beneficiary of the provisions
of Paragraph 1,10 and of this Paragraph 15 to the extent of its interest in any
commission arising from this Lease and may enforce that right directly against
Lessor and its successors.
15.4 Representations and Warranties. Lessee and Lessor each represent and
warrant to the other that it has had no dealings with any person, firm, broker
or finder other than as named in Paragraph 1.10(a) in connection with the
negotiation of this Lease and/or the consummation of the transaction
contemplated hereby, and that no broker or other person, firm or entity other
than said named Broker(s) is entitled to any commission or finder's fee in
connection with said transaction. Lessee and Lessor do each hereby agree to
indemnify, protect, defend and hold the other harmless from and against
liability for compensation or charges which may be claimed by any such unnamed
broker, finder or other similar party by reason of any dealings or actions of
the indemnifying Party, including any costs, expenses, and/or attorneys' fees
reasonably incurred with respect thereto.
16. Tenancy and Financial Statements.
16.1 Tenancy Statement. Each Party (as "Responding Party") shall within
ten (10) days after written notice from the other Party (the "Requesting Party")
execute, acknowledge and deliver to the Requesting Party a statement in writing
in a form similar to the then most current "Tenancy Statement" form published by
the American Industrial Real Estate Association, plus such additional
information, confirmation and/or statements as may be reasonably requested by
the Requesting Party.
16.2 Financial Statement. If Lessor desires to finance, refinance, or sell
the Premises or the Building, or any part thereof, Lessee and all Guarantors
shall deliver to any potential lender or purchaser designated by Lessor such
financial statements of Lessee and such Guarantors as may be reasonably required
by such lender or purchaser, including but not limited to Lessee's financial
statements for the past three (3) years. All such financial statements shall be
received by Lessor and such lender or purchaser in confidence and shall be used
only for the purposes herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises. In the event of
a transfer of Lessor's title or interest in the Premises or in this Lease,
Lessor shall deliver to the transferee or assignee (in cash or by credit) any
unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 15.3, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor
shall be relieved of all liability with respect to the obligations and/or
covenants under this Lease thereafter to be performed by the Lessor. Subject to
the foregoing, the obligations and/or covenants in this Lease to be performed by
the Lessor shall be binding only upon the Lessor as hereinabove defined.
Severability. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-Due Obligations. Any monetary payment due Lessor hereunder,
other than late charges, not received by Lessor within ten (10) days following
the date on which it was due, shall bear interest from the date due at the prime
rate charged by the largest state chartered bank in the state in which the
Premises are located plus four percent (4%) per annum, but not exceeding the
maximum rate allowed by law, in addition to the potential late charge provided
for in Paragraph 13.4.
20. Time of Essence. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
21. Rent Defined. All monetary obligations of Lessee to Lessor under the terms
of this Lease are deemed to be rent.
22. No Prior or other Agreements; Broker Disclaimer. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein and
no other prior or contemporaneous agreement or understanding shall be effective.
[ILLEGIBLE]
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by messenger or
courier service) or may be sent by regular, certified or registered mail or U.S.
Postal Service Express Mail, with postage prepaid, or by facsimile transmission
during normal business hours, and shall be deemed sufficiently given if served
in a manner specified in this Paragraph 23. The addresses noted adjacent to a
Party's signature on this Lease shall be that Party's address for delivery or
mailing of notice purposes. Either Party may by written notice to the other
specify a different address for notice purposes, except that upon Lessee's
taking possession of the Premises, the Premises shall constitute Lessee's
address for the purpose of mailing or delivering notices to Lessee. A copy of
all notices required or permitted to be given to Lessor hereunder shall be
concurrently transmitted to such Party or parties at such addresses as Lessor
may from time to time hereafter designate by written notice to Lessee.
23.2 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon, If sent
by regular mail, the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day
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delivery shall be deemed given twenty-four (24) hours after delivery of the same
to the United States Postal Service or courier. if any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon telephone or facsimile confirmation of receipt of the
transmission thereof, provided a copy is also delivered via delivery or mail. If
notice is received on a Saturday or a Sunday or a legal holiday, it shall be
deemed received on the next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
of the same or any other term, covenant or condition hereof. Lessor's consent
to, or approval of, any such act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by [ILLEGIBLE] or be construed as the basis of an estoppel to enforce the
provision or provisions of this Lease requiring such consent. Regardless of
Lessor's knowledge of a Default or Breach at the time of accepting rent, the
acceptance of rent by Lessor shall not be a waiver of any Default or Breach by
Lessee of any provision hereof. Any payment given Lessor by Lessee may be
accepted by Lessor on account of moneys or damages due Lessor, notwithstanding
any qualifying statements or conditions made by Lessee in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Lessor at or before the
time of deposit of such payment.
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. No Right To Holdover. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this Paragraph
26 then the Base Rent payable from and after the time of the expiration or
earlier termination of this Lease shall be increased to two hundred percent
(200%) of the Base Rent applicable during the month immediately preceding such
expiration or earlier termination. Nothing contained herein shall be construed
as a consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the Parties,
their personal representatives, successors and assigns and be governed by the
laws of the State in which the Premises are located. Any litigation between the
Parties hereto concerning this Lease shall be initiated in the county in which
the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage. deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty
liability or obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default pursuant
to Paragraph 13.5. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device and shall give
written notice thereof to Lessee, this Lease and such Options shall be deemed
prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device, and
that in the event of such foreclosure, such new owner shall not: (i) be liable
for any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership, (ii) be subject to any offsets or defenses
which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance agreement") from the
Lender that Lessee's possession and this Lease, including any options to extend
[ILLEGIBLE] hereof, will not be disturbed so long as Lessee is not in Breach
hereof and attorns to the record owner of the Premises.
30.4 Self-Executing. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided, however,
that upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any such
subordination or non-subordination, attornment and/or non-disturbance agreement
as is provided for herein.
31. Attorneys' Fees. If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) in any such proceeding, action, or appeal thereon, shall be
entitled to reasonable attorneys' fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment. The term "Prevailing Party" shall include,
without limitation, a Party or Broker who substantially obtains or defeats the
relief sought, as the case may be, whether by compromise, settlement, judgment,
or the abandonment by the other Party or Broker of its claim or defense. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees reasonably
incurred. Lessor shall be entitled to attorneys' fees, costs and expenses
incurred in preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting Breach. Broker(s) shall be intended
third party beneficiaries of this Paragraph 31.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times for the purpose of showing the same to
prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the Building, as Lessor
may reasonably deem necessary. Lessor may at any time place on or about the'
Premises or Building any ordinary "For Sale" signs and Lessor may at any time
during the last one hundred eighty (180) days of the term hereof place on or the
Premises any ordinary "For Lease" signs. All such activities of Lessor shall be
without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any new sign upon the exterior of the Premises
or the Building, except that Lessee may, with Lessor's prior written consent,
install (but not on the roof) such signs as are reasonably required to advertise
Lessee's own business so long as such signs are in a location designated by
Lessor and comply with Applicable Requirements and the signage criteria
established for the Industrial Center by Lessor. Lessor hereby approves Lessee's
existing signs irrespective of the requirements of Exhibit D herein. The
[ILLEGIBLE] installation of any sign on the Premises by or for Lessee shall be
subject to the provisions of Paragraph 7 (Maintenance, Repairs, Utility
Installations, Trade Fixtures and Alterations). Unless otherwise expressly
agreed herein, Lessor reserves all rights to the use of the roof of the
Building, and the right to install advertising signs on the Building, including
the roof, which do not unreasonably interfere with the conduct of Lessee's
business; Lessor shall be entitled to all revenues from such advertising signs.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. Consents.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise
provided herein, wherever in this Lease the consent of a Party is required to an
[ILLEGIBLE] or for the other Party, such consent shall not be unreasonably
withheld or delayed. Lessor's actual reasonable costs and expenses (including
but not limited to architects', attorneys', engineers' and other consultants'
fees) incurred in the consideration of, or response to, a request by Lessee for
any Lessor consent pertaining to this Lease or the Premises, including but not
limited to consents to an assignment a subletting or the presence or use of a
Hazardous Substance, shall be paid by Lessee to Lessor upon receipt of an
invoice and supporting documentation therefor. In addition to the deposit
described In Paragraph 12.2(e), Lessor may, as a condition to considering any
such request by Lessee, require that Lessee deposit with Lessor an amount of
money (in addition to the Security Deposit held under Paragraph 5) reasonably
calculated by Lessor to represent the cost Lessor will incur in considering and
responding to Lessee's request. Any unused portion of said deposit shall be
refunded to Lessee without interest. Lessor's consent to any act, assignment of
this Lease or subletting of the Premises by Lessee shall not constitute an
acknowledgment that no Default or Breach by Lessee of this Lease exists, nor
shall such consent be deemed a waiver of any then existing Default or Breach,
except as may be otherwise specifically stated in writing by Lessor at the time
of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the impositions by
Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given.
37. Guarantor.
[ILLEGIBLE]
Quiet Possession. Upon payment by Lessee of the rent for the Premises and
the performance of all of the covenants, conditions and provisions on Lessee's
part to be observed and performed under this Lease, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease.
MULTI-TENANT--MODIFIED NET
(C) American Industrial Real Estate Association 1993
-9-
Initials: [ILLEGIBLE]
<PAGE>
39. Options.
39.1 Definition. As used in this Lease, the word "Option" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property of
Lessor; (b) the right of first refusal to lease the Premises or the right of
first offer to lease the Premises or the right of first refusal to lease other
property of Lessor or the right of first offer to lease other property of
Lessor; (c) the right to purchase the Premises, or the right of first refusal to
purchase the Premises, or the right of first offer to purchase the Premises, or
the right to purchase other property of Lessor, or the right of first refusal to
purchase other property of Lessor, or the right of first offer to purchase other
property of Lessor.
39.2 Options Personal to Original Lessee. Each Option granted to Lessee in
this Lease is personal to the original Lessee named Paragraph 1.1[ILLEGIBLE],
and cannot be voluntarily or involuntarily assigned or exercised by any person
or entity other than said original Lessee while the original Lessee is in full
and actual possession of the Premises and without the intention of thereafter
assigning or subletting. The Options, if any, herein granted to Lessee are not
assignable, either as a part of an assignment of this Lease or separately or
apart therefrom, and no Option may be separated from this Lease in any manner,
by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later option cannot be exercised unless the
prior Options to extend or renew this Lease have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i) during
the period commencing with the giving of any notice of Default under Paragraph
13.1 and continuing until the noticed Default is cured, or (ii) during the
period of time any monetary obligation due Lessor from Lessee is unpaid (without
regard to whether notice thereof is given Lessee), or (iii) during the time
Lessee is in Breach of this Lease, or (iv) in the event that Lessor has given to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during the twelve (12) month period immediately preceding the exercise of the
Option, whether or not the Defaults are cured.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a)
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessor gives to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during any twelve (12) month period, whether or not the Defaults are cured, or
(iii) if Lessee commits a Breach of this Lease.
40. Rules and Regulations. Lessee agrees that it will abide by, and keep and
observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Industrial Center and their invitees.
41. Security Measures. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises. Lessee,
its agents and invitees and their property from the acts of third parties.
42. Reservations. Lessor reserves the right, from time to time, to grant,
without the consent or joinder of Lessee, such easements, rights of way, utility
raceways, and dedications that Lessor deems necessary, and to cause the
recordation of parcel maps and restrictions, so long as such easements, rights
of way, utility raceways, dedications, maps and restrictions do not reasonably
interfere with the use of the Premises by Lessee. Lessee agrees to sign any
documents reasonably requested by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
43. Performance Under Protest. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that [ILLEGIBLE] was no legal obligation on the part of said Party to pay such
sum or any part thereof, said Party shall be entitled to recover such sum or so
much thereof as it [ILLEGIBLE] legally required to pay under the provisions of
this Lease.
44. Authority. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on its behalf. if Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. Conflict. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the typewritten or
handwritten provisions.
46. Otter. Preparation of this Lease by either Lessor or Lessee or Lessor's
agent or Lessee's agent and submission of same to Lessee or Lessor shall not be
deemed an offer to lease. This Lease is not intended to be binding until
executed and delivered by all Parties hereto.
47. Amendments. This Lease may be modified only In writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to lime to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. Multiple Parties. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
MULTI-TENANT--MODIFIED NET
(C) American Industrial Real Estate Association 1993
-10-
Initials: [ILLEGIBLE]
<PAGE>
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR ATTORNEY'S
REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE
CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF ASBESTOS,
UNDERGROUND STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
OR BY THE REAL ESTATE BROKERS OR THEIR CONTRACTORS, AGENTS OR EMPLOYEES AS
TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE
OR THE TRANSACTION TO WHICH IT RELATES; THE PARTIES SHALL RELY SOLELY UPON
THE ADVICE OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF
THIS LEASE. IF THE SUBJECT PROPERTY IS IN A STATE OTHER THAN CALIFORNIA.
AN ATTORNEY FROM THE STATE WHERE THE PROPERTY IS LOCATED SHOULD BE
CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
<TABLE>
<S> <C>
Executed at: Newport Beach, Ca Executed at:
--------------------------------- ---------------------------------
on: August 30, 2000 on:
------------------------------------------ ------------------------------------------
By LESSOR: By LESSEE:
ORANGEEWOOD BUSINESS CENTER, INC., QUALITY SYSTEMS INC.,
- ---------------------------------------------- ----------------------------------------------
a California corporation a California corporation
- ---------------------------------------------- ----------------------------------------------
By: /s/ Mark R. Poochigian By: /s/ Gregory S. Flynn
------------------------------------------- -------------------------------------------
Name Printed: Mark R. Poochigian Name Printed: Gregory S. Flynn
--------------------------------- ---------------------------------
Title: Its President Title: Executive Vice President & Gnrl Mgr
---------------------------------------- ----------------------------------------
By: /s/ Diane Whitt By:
------------------------------------------- ------------------------------------------
Name Printed: Diane Whitt Name Printed:
--------------------------------- ---------------------------------
Title: Its Vice President Title:
---------------------------------------- ----------------------------------------
Address: 5000 Birch St., West Tower, Suite 9500 Address: 17822 E. 17th Street, Suite 210
-------------------------------------- --------------------------------------
Newport Beach, CA 92660 Tustin, CA 92680
- ---------------------------------------------- ----------------------------------------------
Telephone: (949) 476-1974 Telephone: (714) 731-7171
------------------------------------ ------------------------------------
Facsimile: (949) 476-1171 Facsimile: (714) 544-0355
------------------------------------ ------------------------------------
BROKER: BROKER:
Executed at: Executed at:
--------------------------------- ---------------------------------
on: on:
------------------------------------------ ------------------------------------------
By: By:
------------------------------------------- ------------------------------------------
Name Printed: Name Printed:
--------------------------------- ---------------------------------
Title: Title:
---------------------------------------- ----------------------------------------
Address: Address:
-------------------------------------- --------------------------------------
- ---------------------------------------------- ----------------------------------------------
Telephone: ( ) Telephone: ( )
------------------------------------ ------------------------------------
Facsimile: ( ) Facsimile: ( )
------------------------------------ ------------------------------------
</TABLE>
NOTE: These forms are often modified to meet changing requirements of law
and needs of the industry. Always write or call to make sure you are
utilizing the most current form: AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION, 345 So. Figueroa St., M-1, Los Angeles, CA 90071. (213)
687-8777.
MULTI-TENANT -- MODIFIED NET
(C) American Industrial Real Estate Association 1993
-11-
Initials: [ILLEGIBLE]
<PAGE>
ADDENDA TO LEASE AGREEMENT
THIS ADDENDA is attached to and, by this reference, made a part of the Lease
Agreement dated April 3, 2000 made by and between ORANGEWOOD BUSINESS CENTER,
INC., a California corporation, as Lessor and Quality Systems, Inc. a California
corporation, as Lessee for the Premises located at 1701 E. Edinger Avenue, Bldg.
E, Units 5 - 8, Santa Ana, California.
49. COMPLIANCE WITH LAW
- --------------------------------------------------------------------------------
49.1 Compliance with Law.
Lessee, at Lessee's expense, shall comply with all laws, rules,
orders, ordinances, directions, regulations and requirements of federal, state,
county and municipal authorities pertaining to Lessee's use of the Premises and
with the recorded covenants, conditions and restriction, regardless of when they
become effective, including, with limitation, all applicable federal, state and
local laws, regulations or ordinances pertaining to air and water quality,
Hazardous Materials (as hereinafter defined), waste disposal, air emissions and
other environmental matters, all zoning and other land use matters, and utility
availability, and with any direction of any public officer or officers, pursuant
to law, which shall impose any duty upon Lessor or Lessee with respect to the
use or occupation of the Premises.
49.2 Use of Hazardous Materials.
(1) Lessee shall (i) not cause or permit any Hazardous Material to
be brought upon, kept or used in or about the Premises or the Project by Lessee,
its agents, employees, contractors or invitees without the prior written consent
of Lessor, which Lessor shall not reasonable withhold as long as Lessee
demonstrates to Lessor's reasonable satisfaction that such Hazardous Material is
necessary or useful to Lessee's business and will be used, kept and stored in a
manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the premises. If Lessee breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Premises or the Project caused or permitted by Lessee results in
contamination of the Premises or the Project, or if contamination of the
Premises or the Project by Hazardous Material otherwise occurs for which Lessee
is legally liable to Lessor for damage resulting therefrom, then Lessee shall
indemnify, defend and hold Lessor harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises or the Project, damages for the
loss or restriction on use of rentable or usable space or of any amenity of the
Premises or the Project, damages arising from any adverse impact on marketing of
space, and sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which arise during or after the Lease term as a result of such
contamination.
This indemnification of Lessor by Lessee includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal, state
or local governmental agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the Premises or the
Project. Without limiting the foregoing, if the presence of any Hazardous
Material on the Premises or the Project caused or permitted by Lessee results in
any contamination of the Premises or the Project, Lessee shall promptly take all
actions at its sole expense as are necessary to return the Premises and the
Project to the condition existing prior to the introduction of any such
Hazardous Material to the Premises or the Project; provided that Lessor's
approval of such actions shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Premises or the Project.
The foregoing indemnity shall survive the expiration or earlier termination of
this Lease.
(2) Definition of "Hazardous Material". As used herein, the term
"Hazardous Material" means any hazardous or toxic substance, material or waste,
including, but not limited to, those substances, materials, and wastes listed in
the United States Department of Transportation Hazardous Materials Table (49 CFR
172.101) or by the Environmental Protection Agency as hazardous substances (40
CFR Part 302) and amendments thereto, or such substances, materials and wastes
that are or become regulated under any applicable local, state or federal law.
(3) Disclosure. At the commencement of this Lease, and on January 1
of each year thereafter (each such date being hereafter called "Disclosure
Dates"), including January 1 of the year after the termination of this Lease,
Lessee shall disclose to Lessor the names and amounts of all Hazardous
Materials, or any combination thereof, which were stored, used or disposed of on
or about the Premises, or which Lessee intends to store, use or dispose of on or
about the Premises.
(4) Inspection. Lessor and its agents shall have the right, but not
the duty, to inspect the premises and the Project at any time to determine
whether Lessee is complying with the terms of this Lease. If Lessee is not in
compliance with this Lease, Lessor shall have the right to immediately enter
upon the Premises and the Project to remedy any contamination caused by Lessee's
failure to comply notwithstanding any other provision of this Lease. Lessor
shall
ADDENDA PAGE ONE OF TWO PAGES
Initials: [ILLEGIBLE]
<PAGE>
PAGE 2 OF 2
ADDENDA TO LEASE DATED APRIL 3, 2000
Quality Systems, Inc., Lessee
1701 E. Edinger Avenue, Bldg. E, Units 5 - 8, Santa Ana, California, Premises
use its best efforts to minimize interference with Lessee's business but shall
not be liable for any interference caused hereby.
(5) Default. Any default under this Paragraph shall be a material
default enabling Lessor to exercise any of the remedies set forth in this Lease.
50. ACCEPTANCE OF PREMISES IN "AS IS" CONDITION
- --------------------------------------------------------------------------------
Upon delivery of possession of the demised premises to Lessee, Lessee
agrees to take the demised premises, the building in which the demised premises
are located, the common area including the parking areas, "as is". Lessee
acknowledges that the taking of possession of the demised premises by Lessee
shall be conclusive evidence that the demised premises, the building in which
the demised premises are located, the common area including the parking area,
are in a condition satisfactory to Lessee.
51. SECURITY DEPOSIT
- --------------------------------------------------------------------------------
Lessor currently holds a Security Deposit of $4,067.38 on the account of Lessee
from a lease agreement dated September 12, 1994 for the Premises at 1701 E.
Edinger Avenue, Bldg. E, Units 5 - 8, Santa Ana, California, same principles,
which shall be applied toward this Lease as Security Deposit as outlined in
Paragraph 5, dated April 3, 2000.
52. OPTION TO EXTEND THE TERM
- --------------------------------------------------------------------------------
Lessor hereby grants to Lessee an Option to Extend ("Option") the term of this
Lease for one (1) period of two (2) years commencing on April 1, 2001 and ending
on March 31, 2003 ("Option Period"). This Option is granted with the following
conditions:
a. Lessee shall not have defaulted or breached the Lease at any time
during its original term.
b. Lessee shall be in possession of the Premises at the time the
Option is exercised and shall continue to be in possession during
the Option Period.
c. Lessee shall give Lessor written notice that Lessee is exercising
the Option with such notice to be delivered to Lessor at least six
(6) months but not more than nine (9) months before the expiration
of the initial term of this Lease.
d. All the terms, conditions, covenants, restrictions and agreements
that are applicable to the original lease term shall also apply to
the Option except that the Base Rent for the first year shall be
$9,256.80 ($.70 per square foot). The Base Rent for the subsequent
years shall increase annually by $.05 per square foot.
e. THIS OPTION IS CONSIDERED PERSONAL TO THE LESSEE NAMED ABOVE AND
MAY NOT BE ASSIGNED TO THIRD PARTIES.
f. Should Lessee exercise their option, Lessor will provide at
Lessor's sole cost and expense the following improvements:
o Lessor to paint office area with building standard
paint.
o Lessor to provide building standard carpet throughout
office area.
o Lessor to provide building standard VCT as indicated.
LESSOR: LESSEE:
ORANGEWOOD BUSINESS CENTER, INC. QUALITY SYSTEMS, INC.
a California corporation a California corporation
By: /s/ Mark R. Poochigian By: /s/ Gregory S. Flynn
--------------------------------- -----------------------------------
Mark R. Poochigian Gregory S. Flynn
Its President Executive Vice President and
General Manager
By: /s/ Diane Whitt
---------------------------------
Diane Whitt
Its Vice President
Initials: [ILLEGIBLE]
<PAGE>
EXHIBIT "A"
SITE PLAN AND FLOOR PLAN
================================================================================
THIS EXHIBIT "A", Site Plan and Floor Plan, is hereby attached to and made a
part of the Lease Agreement dated April 3, 2000 made by and between ORANGEWOOD
BUSINESS CENTER, INC., a California corporation, as Lessor and Quality Systems,
Inc. a California corporation, as Lessee for the Premises located at 1701 E.
Edinger Avenue, Bldg. E, Units 5 - 8, Santa Ana, California.
================================================================================
SITE PLAN
[FLOOR PLAN OMITTED]
EXHIBIT "A" PAGE 1 OF 1
Initials: [ILLEGIBLE]
<PAGE>
EXHIBIT "C"
RULES AND REGULATIONS
================================================================================
THIS EXHIBIT "C", Rules and Regulations, is hereby attached to and made a part
of the Lease Agreement dated April 3, 2000 made by and between ORANGEWOOD
BUSINESS CENTER, INC., a California corporation, as Lessor and Quality Systems,
Inc. a California corporation, as Lessee for the Premises located at 1701 E.
Edinger Avenue, Bldg. E, Units 5 - 8, Santa Ana, California.
================================================================================
1. The sidewalks, entrances and public corridors shall remain unobstructed at
all times. Loitering in any part of the Business Park or obstruction of
any means of ingress or egress shall not be permitted. Doors and windows
shall not be covered or obstructed.
2. Plumbing fixtures shall not be used for any purposes other than those for
which they were constructed and no rubbish, newspapers, trash or other
cleaning substances of any kind shall be thrown into them.
3. Walls, floors, and ceilings shall not be defaced in any way and no one
shall be permitted to mark, drive nails, screw or drill into, paint, or in
any way mar any building surface, except that pictures, certificates,
licenses, and similar items normally used in Lessee's business may be
carefully attached to the walls. Upon removal of such items by Lessee, any
damage to the walls or other surfaces shall be repaired by Lessee. Lessee
shall not be responsible for any damage resulting from normal wear and
tear, or any damage previously agreed upon in writing.
4. No improper noises, vibrations, or odors will be permitted in the Business
Park, nor shall any person be permitted to interfere in any way with
Lessee or those having business with them. No person will be permitted to
bring or keep within the Business Park any animal.
5. Owner reserves the right to exclude or expel from the Business Park any
person who in the judgment of the Owner is intoxicated or under the
influence of liquor or drugs or who shall in any matter do any act in
violation of the rules and regulations of said Business Park.
6. The requirements of Lessee will be attended to only upon application at
the Office of the Park's Management of such other place that Owner may
elect. Owner's employees shall not perform any work or do anything outside
of their regular duties unless under special instructions from Management.
7. No washing of cars, trucks or equipment in any part of the Business Park
shall be allowed. No washing down of painting materials or other matter
which will stain the paving or leave permanent markings. Damage will be
repaired at Lessee's expense.
8. Lessee agrees all trash and debris is to be deposited in receptacles
within the complex and all bins shall remain inside trash enclosure areas.
Where your business necessitates the handling of other large quantities or
types of disposable materials such as packing boxes, pallets, containers,
etc., you may store same outside your premises against an exterior wall
next to your overhead door on the days you are scheduled for special
pick-up of these materials only. At all other times, your disposable trash
and debris is to be stored inside your unit unless it can be broken down
and placed in a trash receptacle.
9. Lessee agrees there is to be no outside work activity or storage of any
kind outside on the premises. All paved areas, including parking spaces,
driveways, and alleys are to be kept clean and clear at all times except
for legitimate parking of vehicles as allowed by your lease or for
temporary loading as required by your business.
10. Lessee at its sole cost and expense shall be required to place, construct,
and maintain on the Premises one sign, as approved by Owner, and other
signs or advertising material shall be permitted. Such signs shall be
typical in size, material, location and color as presently existing in the
park as stated in your Lease.
11. Lessee shall not conduct or permit to be conducted on the Premises any
auction without the written consent of Owner.
12. All construction or work of any kind done in Lessee's suite may only be
performed by a California contractor and upon receipt and written
approval, prior to commencement of work, by Owner, which shall include but
not limited to the following: working drawings, copies of all necessary
permits, contractors agreements, completion bonds, and certificates of
insurance. Owner agrees not to unreasonably withhold its consent.
13. The cost of repairing any damage of any kind caused by any Lessee, its
employees, guests, agents or invitees whether by negligence, carelessness
or for any other reason shall be paid by Lessee.
EXHIBIT "C" PAGE 1 OF 2
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EXHIBIT "C"
PAGE 2 OF 2
14. Owner reserves the right at any time to change or rescind any one or more
of these rules or regulations or to make such other and further reasonable
rules and regulation as in Owner's judgment may from time to time be
necessary for the management, safety, care and cleanliness of the
Premises, and for the preservation of good order therein, as well as for
the convenience of other occupants and Lessees therein. Owner shall not be
responsible to Lessee herein or to any other person for the non-observance
or violation of the rules and regulations by any other Lessee herein or to
any other person for the non-observance or violation of the rules and
regulations by any other Lessee or other person. Lessee shall be deemed to
have read these rules and to have agreed to abide by them as a condition
to his occupancy of the space herein Leased.
15. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the
outside of the building without the written consent of Lessor and, in the
absence of such written consent, Lessor shall have the right to remove any
such sign, placard, picture, advertisement, name or notice without notice
to and at the expense of Lessee.
16. All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Lessee by a person approved of by
Lessor.
17. Lessee shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises, provided, however, that Lessor may furnish and
install building standard window coverings at all exterior windows. Lessee
shall not, without prior written consent of Lessor, sunscreen any window.
18. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to the
Lessor or other occupants of the Building by reason of excessive noise,
odors and/or vibrations, or interfere in any way with other Lessees or
those having business therein, nor shall any animals or birds be brought
in or kept in or about the Premises of the Building. No Lessee shall make
or permit to be made any unseemly or disturbing noises or disturb or
interfere with occupants of this or neighboring Buildings or Premises or
those having business with them whether by the use of any musical
instrument, radio, phonograph, unusual noise, or in any other way. No
Lessee shall throw anything out of doors or down the driveways.
19. Lessee shall not use or keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material, unless approved
by appropriate fire department and the Lessor. Lessee shall see that the
doors of the Premises are closed and securely locked before leaving the
Building and must observe strict care and caution that all water faucets
or water apparatus are entirely shut off before Lessee or Lessee's
employees leave the building, and that all electricity shall likewise be
carefully shut off, so as to prevent waste or damage, and for any default
or carelessness Lessee shall make good all injuries sustained by other
Lessees or occupants of the Building or Lessee.
20. Lessee agrees that it shall comply with all fire and security regulations
that may be issued from time to time by Lessor or government entity.
21. Lessee shall dispose of trash into the trash dumpsters provided. Lessee
shall not leave trash inside the trash enclosure. Lessee shall not use the
trash containers to dispose of any trash or refuse from other locations
nor shall Lessee move the containers from the enclosures for any reason.
22. Lessee shall neither store nor permit to be stored any goods, machinery,
merchandise, equipment, or any other items whatsoever in the common Area
without the prior written consent of Lessor.
23. No overnight parking shall be allowed without the specific prior consent
of the Lessor.
24. All driveways and ingress and egress areas shall be kept clear at all
times for the common benefit of all Lessees.
25. Lessor reserves the right to make such other rules and regulations as it
deems necessary for the safety, care and cleanliness of the Premises,
Buildings and Common Areas and for the preservation of good order therein.
Lessee agrees to abide by all such rules and regulations when they are
adopted.
26. Lessor reserves the right by written notice to Lessee, to rescind, alter
or waive any rule or regulation at any time prescribed for the Building
when, in Lessor's judgment, it is necessary, desirable or proper for the
best interest of the building and its occupants.
Initials: [ILLEGIBLE]
<PAGE>
EXHIBIT "D"
SIGNAGE
================================================================================
THIS EXHIBIT "D", Signage, is hereby attached to and made a part of the Lease
Agreement dated April 3, 2000 made by and between ORANGEWOOD BUSINESS CENTER,
INC., a California corporation, as Lessor and Quality Systems, Inc. a California
corporation, as Lessee for the Premises located at 1701 E. Edinger Avenue, Bldg.
E, Units 5 - 8, Santa Ana, California.
================================================================================
I. INTRODUCTION
The intent of this sign criteria is to establish and maintain guidelines
consistent with the signage policies of the Lessor. Further, the purpose
is to assure a standard conformance for the design, size and materials
used for Lessee identification.
Overall harmony in design and location of signs is essential to maintain
aesthetic quality that benefits both the lessee and the industrial center.
II. GENERAL REQUIREMENTS
A. Each Lessee must submit a copy of the proposed signage for approval
by the Lessor and the City of Santa Ana. Approval or disapproval of
sign submittals based on aesthetics of design shall remain the sole
right of Lessor.
B. Lessee shall pay for all signs and their installation and
maintenance.
C. Lessees (or responsible representative) shall secure all necessary
City of Santa Ana sign permits and variances prior to fabrication
and installation of signage.
D. Signs installed without written approval of the Lessor may be
subject to removal and property reinstallation of Lessee's cost.
Damages may be assessed to cover cost of repairs to sign fascia or
removal of signage resulting from unapproved installations.
E. All exposed metal shall be primed and painted.
F. All penetrations of the building structure required for the sign
installation shall be neatly sealed in a watertight condition.
III. GENERAL SPECIFICATIONS
A. Lessee's sign contractor shall have C-45 license and be insured with
a total aggregate $1,000,000.
B. No audible, flashing or animated signs will be permitted.
C. No projection above or below the sign will be permitted. Sign must
be within dimensional letter limits as indicated in this sign
program.
D. Lessee shall be fully responsible for the operations of the Lessee's
sign contractor.
E. Lessee's sign contractor shall repair any damage caused by
installation.
IV. BUILDING SIGNAGE WALL SPECIFICATIONS
A. MATERIALS
1. Lessee signs shall be aluminum frame construction.
2. 1/8 inch Cyro acrylite plexiglass back with computer generated
vinyl graphics.
3. Frame paint shall be acrylic poly urethane; Vista color -
Cypress Blue #644A-1.
B. SIGN SIZE
1. BUILDINGS "C" AND "D":
24" high by 120" wide by 2" deep non illuminated can sign.
2. BUILDINGS "A, B, E, F, G, H, I, & J":
18" high by 96" wide by 2" deep non illuminated can sign.
C. SIGN AND LETTER COLORS
1. Color of sign face is Cyro #7328 white acrylite plexiglass.
2. Letter color is #5 blue Arlon vinyl.
3. Lessees with established trade logo styles may use a maximum
of three (3) colors for lettering.
D. LOGOS
EXHIBIT "D" PAGE 1 OF 2
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EXHIBIT "D"
PAGE 2 OF 2
Logos will be considered on a case-by-case basis, at the discretion
of the Lessor. Logos are to match company letterhead.
E. LETTER STYLE **
Lessee shall have their choice of letter style from the following
fonts:
1. Fritz Quardrata
2. Helvetica
3. Palatino
** Lessees with established trade logo styles may use their
standard font(s).
F. LETTER SIZE
1. Maximum letter and/or logo height is 18".
2. Minimum letter and/or logo height is 1".
3. Two lines of copy per sign insert only.
4. Copy area shall not exceed 17" x 108" of plexiglass insert for
buildings "C & D".
5. Copy area shall not exceed 12" x 86" of plexiglass insert for
buildings "A, B, E, F, G, H, I, J".
V. CONSTRUCTION REQUIREMENTS
A. Sign fastenings and clips are to be concealed.
B. Design, layout, and materials for Lessee's sign shall conform in all
respects with the sign design drawings included with this criteria.
The maximum height for letters in the body of this sign shall be as
indicated in this sign criteria.
C. All penetrations of the building structure required for sign
installation shall be sealed in a watertight condition and shall be
patched to match adjacent finish.
D. The interior of the letters shall be painted soft white.
E. Exposed lamps or tubing will not be permitted.
F. Raceways, crossovers, conductors, transformers and other equipment
shall be concealed.
G. All signs shall be affixed to the awnings/mansards above the suite
entrance.
VI. MAINTENANCE
A. Lessee shall maintain the sign in good order and repair to include
replacement of damaged letters or inserts at Lessee's sole cost and
expense. In the event Lessor notifies Lessee of an existing defect
and Lessee fails to cure said effect within the (10) days of
notification, Lessor may cause the defect to be repaired. Lessee
hereby agrees to reimburse Lessor for the cost of said repair within
five (5) days after receipt of an invoice setting forth the costs
incurred therewith.
B. Upon termination or expiration of this lease, at Lessor's sole
discretion, Lessee hereby agrees to remove the sign insert at
Lessee's sole cost and expense.
VII. MISCELLANEOUS REQUIREMENTS
A. Each occupant will be permitted temporary window advertising not to
exceed 25 percent of window area. Business information will be
allowed not to exceed two (2) inches height, indicating hours of
business, emergency telephone number and similar information.
B. It shall be unlawful for any person to exhibit, post or display,
cause to be exhibited, posted or displayed upon any sign, anything
of an obscene, indecent, or immoral nature or unlawful activity.
C. Signs on or affixed to trucks, automobiles, trailers, or their wide
vehicles which advertise, identify, or provide direction to a use or
activity not related to its lawful making of deliveries of sales or
merchandise or rendering of service from such vehicles, is
prohibited.
D. All paper signs, banners, balloons, streamers, placards, pennants,
or portable signs which direct, promote, attract, service, or which
are otherwise designed to attract attention are prohibited.
VIII. EXCEPTIONS
Exceptions to the above may be submitted for review to the Lessor and the City
of Santa Ana. Before submitted to the City, all changes must be approved by the
Lessor and project architect.
Initials: [ILLEGIBLE]
<PAGE>
AMENDMENT TO LEASE NO. 1
February 22, 2001
This Amendment to Lease No. 1 is executed as of February 22, 2001 between
ORANGEWOOD BUSINESS CENTER, INC., a California corporation ("Lessor") and
QUALITY SYSTEMS, INC., a California corporation ("Lessee") for the premises
located at 1701 E. Edinger Avenue, Building E, Units 5 - 8, Santa Ana,
California ("Premises").
RECITALS:
WHEREAS Lessor and Lessee being parties to the certain Lease dated April 3, 2000
("Lessee") as amended hereby express their mutual desire and intent to amend
said Lease as follows:
TERMS:
In consideration of the mutual agreements contained herein, the parties agree as
follows:
1.3 TERM:
The Lease is hereby extended for a period of one (1) year commencing on
April 1, 2001 and expiring March 31, 2002.
1.5 BASE RENT:
The Base Rent during this extended period shall be $9,918.00 per month,
all exclusive of Operating Expenses, Real Property Taxes, Insurance and
any other items of Additional Rent which may be due from Lessee under the
Lease.
EXCEPT as herein modified and amended, the Lease and all its terms, conditions,
covenants, restrictions and agreements hereof shall remain in full force and
effect.
WHEREAS the parties hereto have executed this Lease Amendment No. 1 as of the
date and year first written above.
LESSOR: LESSEE:
ORANGEWOOD BUSINESS CENTER, INC. QUALITY SYSTEMS, INC