EXHIBIT 10.21
LEASE AGREEMENT
between
NORTH HILLS PROPERTIES, INC.
Landlord
And
ENACT HEALTH MANAGEMENT SYSTEMS
Tenant
MacGregor Village
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Dated:
STATE OF NORTH CAROLINA LEASE AGREEMENT
COUNTY OF WAKE
THIS LEASE AGREEMENT is made, entered into and effective as of October
23, 1995 by and between NORTH HILLS PROPERTIES, INC., a North Carolina
corporation ("Landlord"), and ENACT Health Management Systems, a California
corporation, ("Tenant").
WITNESETH:
1. PREMISES. The Landlord hereby leases to Tenant and Tenant hereby
hires and takes from Landlord that space shown on the floor plan attached to
this Lease as Exhibit A (hereinafter called the "premises"), consisting of
approximately 1935 square feet of net rentable area on the second floor of the
building Suite 203 constructed or to be constructed by the Landlord (hereinafter
called the "building") on the parcel of land described on attached Exhibit B
(hereinafter called the "land"), located in the City of Cary, state of North
Carolina, together with the right to the use of and benefit from, in common with
others, the areas of the building intended for the general common use and
benefit of all tenants of the building (hereinafter called the "common area").
2. USE. The premises shall be used and occupied by Tenant solely for the
purpose of general office use and all other uses incidental and related thereto.
Tenant shall occupy the premises and conduct its business in a lawful manner and
will not create any nuisance or otherwise interfere with, annoy or disturb any
other Tenant in its normal business operations or the Landlord in its management
of the building. Tenant shall not use the building in any manner which could
cause an increase in the insurance cost on the building. Tenant shall abide by
and observe all rules and regulations promulgated from time to time by Landlord
for the operation, safety, security and maintenance of the building.
3. LEASE TERM. The term of this Lease shall be three (3) years, and
shall commence on the date ("commencement date") which shall be the earlier of
(i) the date the premises are ready for occupancy as determined under paragraph
4 of this Lease or (ii) the date upon which Tenant or anyone claiming under or
through the Tenant first occupies any part of the premises for any purpose other
than preparing the premises for Tenant's initial occupancy.
4. PREPARATION FOR OCCUPANCY. Prior to commencement of the term
Landlord, at its own cost and expense, shall prepare the premises for occupancy
by Tenant by performing the work described on attached Exhibit C (hereinafter
called "Landlord's Work"). Landlord's Work shall be completed in a good and
workmanlike manner and shall comply with federal, state and local laws. Upon
substantial completion of Landlord's Work (or delivery of a certificate of
occupancy), Tenant agrees to accept the premises and execute an appropriate
amendment to this Lease setting forth the commencement date of the term hereof.
Landlord will use its best efforts to make premises available for occupancy on
November 1, 1995.
5. RENT.
(a) Basic Rent. Tenant shall pay to Landlord, without any deduction or
set-off whatsoever, an annual rental ("basic rent") at the rate of $25,155.00
($2,096.25/month) per annum, payable in twelve equal monthly installments in
advance on the first day of each calendar month, beginning with the first day of
the calendar month immediately following the commencement date. Basic rent for
any period less than one calendar month shall be apportioned on the basis of the
number of days in that month. Basic rent for the period from the commencement
date to the first day of the next succeeding calendar month shall be paid on the
commencement date. In addition to such remedies as may be available to Landlord
at law or under this Lease, the Landlord shall be entitled to a late charge of
five percent (5%) of the amount of the monthly installment of basic rent if not
received by Landlord by the fifth day of the month.
(b) Increase in Basic Rent. Basic Rent for subsequent lease years shall be
payable as follows:
Lease Year 2: $26,122.50 per annum; $2,176.85 per month
Lease Year 3: $27,090.60 per annum; $2,257.50 per month
6. TAXES. Landlord shall pay all real estate taxes, assessments and
other governmental charges which shall be levied or assessed or which become
liens upon the land or building.
8. MAINTENANCE AND REPAIRS. Tenant shall, at its sole cost and expense,
take good care of the premises and Landlord's fixtures and appurtenances
therein. Tenant shall be responsible for any damage to the premises caused by
Tenant's occupation thereof, normal wear expected. Landlord shall perform all
maintenance and make all repairs and replacements to the parking facility,
common areas of the building and building service systems of every kind and
nature now or hereafter attached to or used in connection with the operation of
the building, including but not limited to, plumbing, sprinkler, HVAC, and
elevators.
9. LANDLORD'S SERVICES. Landlord shall, at its sole cost and expense,
subject to section 5 (c) herein, furnish to Tenant the following services,
supplies and facilities:
(a) Elevator service (if applicable).
(d) Vermin extermination and repair and replacement of any property
damaged by vermin.
(e) General security for the building not including security personnel or
a building security system other than non-electric door key locks.
10. ALTERATIONS AND IMPROVEMENTS. Tenant shall not make or allow to be
made any alterations or physical addition in or to the premises without the
prior written consent of Landlord. Any alterations, physical additions or
improvements to the premises made by the Tenant shall at once become the
property of the Landlord and shall be surrendered to Landlord upon termination
of this Lease. Landlord, at its option, may require Tenant to remove any
physical additions and/or repair any alterations in order to restore the
premises to the condition existing at the time Tenant took possession, all costs
of removal and/or alterations to be borne by Tenant. Upon the expiration or
earlier termination of this Lease, Tenant will peaceably yield up to Landlord
the premises in good order and condition, ordinary wear and tear excepted.
Tenant shall repair all damage to the premises and to the building caused by
removal of its furniture, equipment and machinery.
11. UTILITIES/JANITORIAL SERVICES. Tenant shall be responsible for
arranging, and shall be responsible for direct payment, of all utilities to the
premises and the interior and exterior glass and window cleaning, and janitorial
services for the premises.
12. INSPECTION. The Landlord shall, upon advance oral notice to the
Tenant (except in an emergency), have the right at all reasonable times during
business hours to inspect the premises and show the same to prospective
mortgagees and/or to prospective tenants and, at all times to make repairs or
replacements as required by this Lease or as may be necessary.
13. CASUALTY. If any portion of the premises or common areas is damaged
by fire or other casualty, and the damaged property can, in the Landlord's
opinion, be repaired within ninety (90) days from the date of damage, the
Landlord shall proceed to repair the damage. This Lease shall not terminate,
but Tenant shall be entitled to a proportionate abatement of rent and additional
rents payable during the period commencing on the date of the damage and ending
on the date the damaged property is repaired and the premises are delivered to
Tenant. For purposes of this paragraph, rental abatement shall be based upon
the portion of the premises rendered untenantable during the period Landlord is
making repairs. If in the Landlord's opinion the damaged property cannot be
repaired within ninety (90) days from the date of the damage, either party may
terminate this Lease (by notice to the other within twenty (20) days form the
date on which the Landlord's opinion is delivered to Tenant. In the event of
termination under this paragraph, this lease and the term hereof shall terminate
on the date of the notice and rent and additional rents shall be apportioned as
of the date of the damage.)
14. INSURANCE. Landlord shall at all times during the term of this Lease
maintain a policy or policies of fire, extended coverage or similar casualty
insurance covering the building against loss, damage or destruction in an amount
equal to ninety percent (90%) of the full replacement cost of the building
structure and its improvements as of the date of loss (exclusive of
architectural and engineering fees, excavation, footings and foundations);
provided, that Landlord shall not be required in any way or manner to insure any
personal property of Tenant or which Tenant may have upon or within the Premises
or any fixtures installed by or paid for by Tenant upon or within the premises.
Landlord and Tenant each hereby waives its right of recovery against the other
and each releases the other from any claim arising out of loss, damage or
destruction to the building, premises or contents tehreon or therein, to the
extent its respective property is covered by a policy of insurance, whether such
loss, damage or distruction may be attributable to the negligence of either
party or its respective agent, visitor, contractor, servant or employee. Each
policy shall include a waiver of the insurer's rights of subrogation against the
party thereto who is not the insured under said policy.
Tenant shall at al times during the term hereof maintain general public
liability insurance covering injury to persons or damage to property in or about
the Premises, insuring Landlord and Tenant, in coverage amounts not less than
$1,000,000 for bodily injury or death and not less than $100,000 for property
damage. The foregoing notwithstanding, Tenant agrees to indemnify and hold
harmless Landlord from and against any loss or liability resulting from Tenant's
use and occupancy of the premises during the term hereof.
15. CONDEMNATION. If at any time during the term hereof the entire
building shall be taken for any public or quasi-public use, under any statute,
or by right of eminent domain, this Lease shall terminate on the date title to
the building is transferred to the applicable governmental authority. If less
than all of the building shall be taken and the portion taken does not include
all of the premises, this Lease shall remain unaffected, except that the Tenant
shall be entitled to a pro rata abatement of rent and additional rents based on
the proportion which the area of the premises taken bears to the area of the
premises immediately prior to the taking. Landlord shall be entitled to receive
the entire award or awards in any condemnation proceeding without deduction for
any estate vested in the tenant and the Tenant shall
receive no part of any award or awards from Landlord or in the condemnation
proceedings.
16. SIGNS. Tenant shall not place any signs on the land or exterior of
the building. Tenant's name and the location in the building shall be affixed
to a directory board provided by the Landlord at Landlord's expense. Tenant may
place a sign on the inside of the windows in their premises after Tenant has
received written approval from the Landlord for the sign size, color, and style.
17. DEFAULT. If Tenant shall fail to pay basic rent or any additional
rent on the due date therefor or within five (5) days thereafter or if Tenant
defaults in the performance of any of its other obligations under this Lease and
fails to cure the default within thirty (30) days after receipt of written
notice from Landlord, then Landlord may:
(a) Cure any such default and any costs and expenses incurred by Landlord
therefor shall be deemed additional rent to be paid by Tenant hereunder.
(b) Enter and take possession of the premises without terminating this
Lease and sublease the premises for the account of Tenant. Tenant shall be
liable for the difference between the rent and other amounts paid by the
sublessee and the rent and other amounts payable by Tenant hereunder and all
reasonable expenses incurred in entering the premises and preparing it for such
sublease.
(c) Terminate this Lease without further notice and reenter the premises
and remove all persons and any property therefrom, either by summary
proceedings, ejectment or otherwise, and repossess the premises together with
all additions, alterations, improvements and personal property, now or hereafter
erected, maintained or located thereon. The Landlord shall have the right to
take such action without being guilty of trespass. At any time and from time to
time after such termination, Landlord may, at its option relet the premises or
any part thereof, without notice to Tenant, upon such terms and conditions as
landlord, in its sole discretion, deems advisable, and receive and collect the
rents therefor, applying the same first to payment of all costs and expenses of
reletting and then to payment of damages in amounts equal to the rental due
hereunder and to the cost and expense of performing the other covenants of
Tenant. Tenant agrees to pay Landlord the rent, additional rent and all other
charges required to be paid by Tenant up to the time of termination of this
lease. Thereafter, Tenant agrees to pay Landlord during the remainder of the
term of this Lease, all rent and additional rent and all other charges required
to be paid by Tenant under this Lease, less the net proceeds, if any, received
from the reletting of the premises.
No remedy set forth in this paragraph 16 is intended to be exclusive of any
other remedy, and every remedy shall be cumulative and in addition to every
other remedy herein or now or hereafter existing at law, in equity or by
statute. No delay or failure to exercise any right or power accruing upon a
default under this Lease shall impair any such right or power accruing upon a
default under this Lease shall impair any such right or power or shall be
construed to be a waiver thereof.
18. HOLDOVER. If Tenant remains in the premises beyond the expiration or
earlier termination of the term of this Lease, the holding over shall not
constitute
a renewal or extension of this Lease. Any holding over by Tenant hereunder shall
constitute a tenancy at will.
19. NOTICES AND PAYMENTS. Any notice, document or payment required or
permitted to be delivered or remitted hereunder or by law shall be deemed to be
delivered or remitted, whether actually received or not, when deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, addressed to the parties hereto at the respective addresses set out
below, or at such other address as they shall have specified by written notice
delivered in accordance with the terms of this Lease:
LANDLORD: TENANT:
NORTH HILLS PROPERTIES, INC. ENACT Health Management Systems
Xxxx Xxxxxx Xxx 00000 000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000 Xxxx Xxxx, XX 00000
20. ASSIGNMENT AND SUBLETTING. Tenant shall not, by operation of law or
otherwise, assign, mortgage, pledge, encumber or otherwise transfer any interest
in this Lease, or sublet the premises or any part thereof, without the prior
written consent of Landlord. Any assignment, sublease, mortgage, pledge,
encumbrance or transfer by Tenant in contravention of this paragraph shall be
void. The consent by Landlord to an assignment or subletting shall not in any
way be construed to relieve Tenant from obtaining the express consent of the
Landlord to any further assignment or subletting. Landlord shall be reasonable
in providing its consent for such assignment or subletting.
21. QUIET ENJOYMENT. Tenant shall have the peaceable and quiet possession
of the premises for the term of this Lease provided the Tenant pays the rent and
performs and observes the other covenants to be performed and kept by the Tenant
hereunder. Tenant acknowledges that its peaceable and quiet possession of the
premises may be disturbed by Landlord's up-fitting of certain areas of the
building and Tenant hereby agrees that the Landlord's up-fitting work shall not
constitute a breach of the covenants contained in this lease.
22. SUBORDINATION. This Lease shall be subordinate and subject to all
ground or underlying leases and all mortgages thereon and to all mortgages
covering the fee of the building, or land, that now or may hereafter affect the
building, or land, and to all renewals, modifications or replacements thereof.
If the ground or underlying lessor and/or mortgagee or any successor in interest
shall succeed to the rights of the Landlord under this Lease, whether through
possession, surrender, assignment, subletting, judicial or foreclosure action,
or delivery of a deed or otherwise, Tenant will attorn to and recognize the
successor-landlord as Tenant's landlord and the successor-landlord will accept
such attornment and recognize Tenant's rights of possession and use of the
premises in accordance with the provisions of this Lease. This clause shall be
self-operative and no further instrument of subordination shall be required.
23. ESTOPPEL CERTIFICATE. Tenant agrees that upon occupancy and from time
to time thereafter during the term of this Lease, Tenant will execute,
acknowledge and deliver to Landlord a statement in writing (i) certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications that this Lease is in full force and effect as modified and
stating the modifications); (ii) stating the dates to which the rent and other
charges hereunder have been paid by Tenant; (iii) stating whether Tenant has
knowledge that Landlord is in default in the performance of any covenant,
agreement or condition contained in this lease, and, if the Tenant has knowledge
of such a default, specifying each default and (iv) stating the address to which
notices to Tenant shall be sent.
24. MEMORANDUM OF LEASE. The parties shall, if requested by either,
execute a memorandum of this Lease for recording purposes. The requesting party
shall pay all costs of recording.
25. BINDING AGREEMENT. This Lease shall bind and inure to the benefit of
the parties hereto and their respective executors, distributees, heirs,
representatives, successors and assigns.
26. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of North Carolina.
27. SEVERABILITY. If for any reason any provision of this Agreement is
determined to be invalid, such invalidity shall not impair the operation of or
effect those portions of this Agreement which are valid.
28. SECURITY DEPOSIT. Upon the execution of this Lease, Tenant agrees to
deposit with the Landlord the sum of $1,677.08 as security for Tenant's faithful
performance of its obligations under this Lease (the "security deposit"). If
Tenant defaults in the performance of any of the terms of this Lease, including
the payment of basic rent or additional rent, Landlord may use, apply or retain
the whole or any part of the security deposit to the extent required for the
payment of any rent or additional rent or for any sum which Landlord may expend
or may be required to expend by reason of Tenant's default in respect to any of
the terms of this Lease.
29. RELOCATION. Landlord hereby retains the right and power to relocate
Tenant to a space in the building of comparable size to the premises upon thirty
(30) sixty (60) days prior written notice to the Tenant. All reasonable costs
incurred by Tenant as a result of relocation under this paragraph 29 shall be
paid by the Landlord. If Tenant does not wish to move to the Relocation
Premises designated by Landlord, Tenant may terminate this Lease upon notice to
Landlord within ten (10) days after Tenant receives relocation notice, and this
Lease shall terminate sixty (60) days after receipt by Landlord of Tenant's
election to terminate this Lease.
30. ENTIRE AGREEMENT. This Lease contains the entire agreement of the
parties and may not be modified except by an instrument in writing which is
signed by both parties.
IN WITNESS WHEREOF, this Lease has been duly executed by the parties hereto
as of the day and year first above written.
ATTEST: LANDLORD:
NORTH HILLS PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxx
________________________________ ---------------------------------------
Xxxxx ter Wee, Secretary Xxxxx X. Xxxxxx, President
[CORPORATE SEAL} Address: 0000 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Date:
---------------------------------------
WITNESS: TENANT:
ENACT HEALTH MANAGEMENT SYSTEMS
By: /s/ Xxxxxxx Xxxxxxx
________________________________ ---------------------------------------
CFO Xxxxxxx Xxxxxxx, President and CEO
Address for notice prior to
commencement date:
000 Xxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Date: [10/23/95]
----------------------------------
EXHIBIT "A"
Floor Plan
Lease Agreement between North Hills Properties, Inc., as Landlord and Enact
Health Management Systems, Tenant.
EXHIBIT "B"
LEGAL DESCRIPTION
Being a tract of land within MacGregor Park which tract contains 21.0759 acres
as fully shown and described on a map of same dated March 29, 1983, revised
April 7, 1983 and entitled "Boundary Xxxxxx-XxxXxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxx,
Xxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxxx: which map is recorded in the Office of the
Register of Deeds of Wake County, North Carolina in Book of Maps 1983 Page 564
and being the same property as shown and fully described on a map dated May 6,
1983 by Runa X. Xxxxxx, Land Surveyors, Cary, North Carolina which map is
entitled "Property of North Hills Properties, Inc., Cary Wake County, North
Carolina."
Lease Agreement between North Hills Properties, Inc., as Landlord and Enact
Health Management Systems, Tenant.
EXHIBIT "C"
Landlord's Work
LANDLORD'S WORK:
1. Landlord will paint and re-carpet the premises at its expense. Tenant may
select paint color and carpet from selections available from Landlord.
2. Landlord will provide Tenant two (2) gallons of paint for future use.
3. Landlord will leave the two (2) three (3) existing easel boards in the
premises.
TENANT'S WORK:
1. Tenant will be responsible for their phone and phone lines, computer
equipment and any computer cabling or wiring, and the installation of such
equipment. In addition, Tenant shall be responsible for movable partitions,
office furniture and any or all trade fixtures.
2. Tenant will construct two walls and install a door per plan shown on
Exhibit A, and install a vanity cabinet in the restroom. All of Tenant's work
shall be at Tenant's cost and expense.
3. Tenant will not be required to return premises to original configuration at
end of lease term, but Tenant will be required to return premises to the
condition as indicated on Exhibit A, page 12 of this Lease.
Lease Agreement between North Hills Properties, Inc., as Landlord and Enact
Health Management Systems, Tenant.
EXHIBIT D
Rules and Regulations
1. The entrances, corridors, passages, stairways, and elevators shall be
under the exclusive control of the Landlord and shall not be obstructed, nor
used by the Tenant for any purpose other than ingress and egress to and from the
leased premises.
2. The Tenant shall neither place nor permit to be placed any signs,
advertisements, notices in or upon any part of the building, except on the doors
of the premises leased, or as approved in writing by Landlord and all such
doorway signs shall be approved by the Landlord. All signs not approved in
writing by the Landlord shall be subject to removal without notice.
3. The Tenant shall not put up, nor operate, any engine, boiler, -dynamo
of machinery of any kind nor carry any kind nor carry on any mechanical business
in said premises, nor place any explosive therein, nor use any kerosene, oils,
or burning fluids in said premises without first obtaining the written consent
of the Landlord.
4. If any tenant shall desire an iron safe for depositing valuables and
securities, the Landlord shall have the right to prescribe its weight, size and
proper position.
5. No nails are to be driven, and premises are not to be defaced in any
way, and no boring or cutting for wires or other purpose is to be done, and no
change in electric fixtures or other appurtenances of premises is to be made
without the written consent of the Landlord.
6. If the Tenant desires telephonic or telegraphic connections, the
Landlord will direct the electricians as to where and how the wires are to be
introduced, and without such written directions, no boring for wires will be
permitted.
7. The leased premises shall not be used for the purpose of lodging or
sleeping rooms, nor in any way to damage the reputation of the building and the
Tenant shall not disturb, nor permit the disturbance of other tenants, by the
use of musical instruments or any unseemly noises, nor by any interference
whatever, and nothing shall be placed or permitted upon the outside window
xxxxx.
8. No person or persons, other than employees of the building, shall be
employed by the Tenant for the purpose of cleaning or taking care of said
premises without the written consent of the Landlord. Any person or persons so
employed by Tenant (with the written consent of the Landlord) shall be subject
to, and under the control and direction of, the Landlord in the use of the
building and its facilities.
9. the Landlord shall have the right to exclude or eject from the
building animals of every kind, birds, bicycles, and all canvassers and other
persons who conduct themselves in such manner as to be, in the judgment of the
Landlord, an annoyance to the tenants or a detriment to the building.
EXHIBIT "E"
SIGN CRITERIA
I. It is the responsibility of the Tenant at his expense to provide the Leased
Premises with an identification sign prior to opening for business.
II. Tenant will, prior to fabrication and installation of proposed sign, submit
shop drawings to the Landlord for his approval.
NORTH HILLS, INC.
0000 XXX XXXXX XX
XX XXX 00000, XXXXXXX XX 00000
(000)000-0000 FAX (000)000-0000
October 12, 1995
Mr. Xxxxxxx Xxxxxxx
President and CEO
ENACT Health Management Systems
000 Xxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
RE: New Office Lease for MacGregor Village, Cary, North Carolina
Dear Xx. Xxxxxxx:
I am providing the following leases for your new office in Cary, North Carolina
along with some instructions for expediting the documents:
1. Three (3) sets of originals are enclosed. I have added a new signature
page, page 11. Please sign where indicated by the signature tab and have
the Lease attested and sealed.
2. I have provided for you the original signature pages. You can destroy
these.
3. Is ENACT Health Management Systems, Inc. a California corporation?
4. I made a minor addition to the language on page 14; "But Tenant will be
required to return premises to the condition as indicated on Exhibit A,
page 12 of this lease." Please initial this change where indicated.
5. I have enclosed a pre-addressed overnight envelope for your convenience.
Once you have signed, attested and sealed the leases and initialed page 14,
please return to me.
I have already released our construction personnel to start the painting and
carpeting work We look forward to having ENACT join us at MacGregor Village.
Mr. Xxxxxxx Xxxxxxx
ENACT Health Management Systems
October 12, 195
Page Two
Please do not hesitate to contact me if you have any questions.
Sincerely,
NORTH HILLS, INC.
/s/ Xxx Xxxxxx
------------------------
Xxx Xxxxxx
Vice President
Leasing
dmr
Enclosures
cc: Xx. Xxx Xxxx, w/o enclosure
Xx. Xxxxxxx Xxxx, w/o enclosure
