Exhibit 10.22
SUBLEASE
THIS SUBLEASE (this "Sublease") is made this 4th day of March, 1997 by
and between MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Delaware corporation
("Sublandlord") and TomaHawk II, Inc. an Illinois corporation and TomaHawk
Corporation, incorporated in Alberta, Canada ("Subtenant"):
WITNESSETH:
1. RECITALS. This Sublease is made with reference to the following facts:
1 Century Park I Joint Venture ("Master Landlord") and Medaphis
Physician Services Corporation, as tenant, entered into a written lease dated
May 5, 1995, a copy of which is attached hereto as EXHIBIT A ("Master Lease")
covering the Premises (the "Master Premises") described in Article 3 of the
Master Lease.
2 The Master Lease was amended on July, 1995. Such amendment(s) are
included in the reference to Master Lease.
3 Subtenant desires to sublet a portion of the Master Premises
described in Article 3 of the Master Lease from Sublandlord on the terms and
conditions contained in this Sublease.
2. BASIC SUBLEASE PROVISIONS.
1 Building or Project Name: Century Park
Floors: Second Floor
Premises Address: 8315 Century Park Court
San Diego, CA 92123
The Sublease Premises (the "Premises") are more fully described on EXHIBIT B
annexed hereto.
2 Rentable Area of Premises: approximately 23,622 Square Feet.
Usuable Area of Premises: approximately 22,300 Square Feet.
3 Subtenant's Percentage Share: 36.4% of Master Premises Operating
Expenses
Subtenant's Percentage Share: 28.9% of Total Building Operating
Expenses
Subtenant's Percentage Share: 11.9% of Total Project Operating
Expenses
4 Commencement Date: Subtenant may have access to space March 1,
1997 for the purpose of fixturizing the space but under no circumstances shall
they be able to conduct regular business until April 1, 1997 or until the
substantial completion of the demising of the space by Sublandlord if later
than April 1, 1997. Subtenant will not interfere with Sublandlord contractors.
Any inconvenience to Subtenant is not a basis for a breach or default of
Sublandlord.
5 Expiration Date: July 31, 2000.
6 Basic Monthly Rent: See Below. At the execution of this lease by
Subtenant, Subtenant will pay the initial month's rent equal to $18,897.60 to
Sublandlord. If the sublandlord is not substantially finished with the
demising of the space by April 1, 1997, then the rent Commencement date will
be moved back until the space is turned over to the Subtenant. Sublandlord
will give notice to Subtenant when the space is substantially completed and
ready for occupancy. If the Premises are not ready within 90 days of the
suggested Commencement Date then
the Subtenant will have the option to terminate this lease. All rent shall be
paid monthly without demand, deduction, set-off or counter claim, in advance
of the first day of each calendar month during the term of this Sublease, and
in the event of a partial rental month, rent shall be prorated on the basis
of a thirty (30) day month.
3/1/97 - 3/3/97 $0.00
4/1/97 - 4/31/97 $18,897.60
5/1/97 - 5/31/97 $0.00
6/1/97 - 3/31/98 $18,897.60
4/1/98 - 3/31/99 $22,440.90
4/1/99 - 7/31/00 $23,622.00
7 Permitted Use: General Office.
8 Sublandlord will pay for all costs to demise the premises and provide
necessary fire rated corridors and access for the space to meet code and laws to
convert the second floor to facilitate Subtenant's lease of the Premises as
described herein, and are those plans, Exhibit B pages 2 and 3, but those items
bubbled on Exhibit B shall be constructed by Sublandlord at Subtenant's expense,
which such expense pertaining to subtenant's portion of the contract shall be
limited to amounts contained in Contractors bid as well as reasonable design and
Permitting charges, as mutually agreed upon by Sublandlord, Subtenants and if
necessary Landlord. Within Fourteen (14) days of Sublandlords written request
and following completion of the items bubbled, Subtenant shall reimburse
Sublandlord for the Costs of Construction and reasonable, design and permitting
fees. Should Subtenant not pay Sublandlord within Fourteen (14) days, Subtenant
shall be in default of the Sublease as described in the Sublease and Master
Lease. The Sublandlord will pay to make at Sublandlord's expense the ground
floor fire rated and will remodel entry, as shown on Page 3 Exhibit B.
9 Late Charges: The parties agree that late payments by Subtenant to
Sublandlord of rent will cause Sublandlord to incur costs not contemplated by
this Sublease, the amount of which is extremely difficult to ascertain.
Therefore, the parties agree that if any installment of rent is not received
by Sublandlord within ten (10) days after rent is due, Subtenant will pay to
Sublandlord a sum equal to 10% of the monthly rent as a late charge.
10 Electricity: Electricity will be separately submetered and paid
by subtenant from the commencement of the lease. Subtenant will pay
to Sublandlord $2,362.20 per month which will be an estimate. At
the end of each six (6) months of the sublease term, or as soon
thereafter as possible, Sublandlord will provide a reconciliation
of the utility costs and either owe a credit for the next month to
Subtenant or will invoice Subtenant for the shortage. This
paragraph will survive the expiration of the lease. If there is a
difference of over 15% between the $0.10 per foot per month and the
actual usage, the monthly utility amount paid with the basic rent
for the next 6 months shall be adjusted to the actual usage.
11 Options to Extend: Subject to (I) Sublandlord not terminating its
lease, (ii) approval of financials, (iii) no major default during
the term, and (iv) if necessary, Landlord's consent, subtenant may
extend the term of the sublease to be co-terminus with
sublandlord's lease and option to terminate per article 40 of the
main lease at market rents for the space currently subleased by
subtenant or any other premises that may be mutually agreed upon.
12 Rent for Option Period: Fair Market Rate is 100% of the then fair
annual market rental rate.
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13 Option Exercise Deadline: Sublandlord will give Subtenant six (6)
months notice if it plans on not exercising its option to Terminate and
Subtenant must give Sublandlord written notice of the exercise of the option
set forth in Paragraph 2.11 above Four (4) months prior to the date the
Sublease would terminate if such option were not exercised ("Option Exercise
Deadline").
14 Acceptance of Premises: Subject to the work to be performed by
Sublandlord for Subtenant pursuant to Paragraph 2.8, Subtenant agrees to
accept the Premises in an "as is" condition. Without limiting the foregoing,
Subtenant's rights in the Premises are subject to all local, state and
federal laws, regulations and ordinances governing and regulating the use and
occupancy of the Premises and subject to all matters now or hereafter of
record. Subtenant acknowledges that neither Sublandlord nor Sublandlord's
agent has made any representation or warranty as to:
(i) the present or future suitability of the Premises for
the conduct of Subtenant's business;
(ii) the physical condition of the Premises;
(iii) the expenses of operation of the Premises;
(iv) the safety of the Premises, whether for the use of
Subtenant or any other person, including Subtenant's employees, agents,
invitees or customers; or
(v) any other matter or thing affecting or related to the
Premises.
15 Subtenant acknowledges that no rights, easements or licenses are
acquired by Subtenant by implication or otherwise except as expressly set
forth herein. Subtenant shall, prior to delivery of possession of the
Premises, inspect the Premises and become thoroughly acquainted with their
condition, and acknowledges that the taking of possession of the Premises by
Subtenant shall be conclusive evidence that the Premises were in good and
satisfactory condition at the time such possession was so taken. Subtenant
specifically agrees that Sublandlord has no duty to make any disclosures
concerning the condition of the Building and the Premises and/or the fitness
of the Building and the Premises for Subtenant's intended use and Subtenant
expressly waives any duty which Sublandlord might have to make any such
disclosures. Subtenant further agrees that, in the event Subtenant subleases
all or any portion of the Premises, Subtenant will indemnify and defend
Sublandlord (in accordance with Paragraph 9 hereof) for, from and against any
matters which arise as a result of Subtenant's failure to disclose any
relevant information about the Building or the Premises to any subtenant or
assignee. Subtenant shall comply with all laws and regulations relating to
the use or occupancy of the Premises and to the common areas including,
without limitation, making structural alterations or providing auxiliary aids
and services to the Premises as required by the Americans with Disabilities
Act of 1990, 42 U.S.C. Section 12101 ET SEQ. (the "ADA"). Sublandlord will
let Subtenant know of any problems or major defects relating to the Premises
or Building before Subtenant moves into the building.
16 Base Year for Operating Expenses and Taxes: 1997. Any subsequent
calendar year increases over the 1997 expenses will be per the lease and payable
by Subtenant to Sublandlord per the lease based on Subtenant's pro rata share of
the Premises, however Subtenant shall pay no operating expenses in excess of the
1997 base year during the first 12 months of the lease term.
17 Parking: Subtenant shall be entitled to 36% of the 252 parking
spaces allotted to Sublandlord in the Master Lease, including their pro rata
share of covered and reserved spaces.
3
Signage: Subtenant may have exclusive use of the monument under the
terms outlined in the Master Lease. All costs associated with changes to the
monument shall be the expense of the Subtenant. Any signage will be subject
to Landlord's approval.
18 Address for payment of rent and notices:
Sublandlord:
Medaphis Physician Services Corporation
2700 Cumberland Parkway
Suite 300
Atlanta, GA 30339
ATT: Real Estate Department
Subtenant:
TomaHawk II
8315 Century Park Court
San Diego, CA 92123
19 Security Deposit: Subtenant shall deposit with Sublandlord upon
Subtenant's execution hereof Eighteen Thousand Eight Hundred Ninety-seven and
60/100 Dollars ($18,897.60) ("Deposit") as security for Subtenant's faithful
performance of Subtenant's obligations hereunder. If Subtenant fails to pay
rent or other charges due hereunder, or otherwise defaults with respect to
any provision of this Sublease, Sublandlord may use, apply or retain all or
any portion of the Deposit for the payment of any rent or other charge in
default or for the payment of any other sum which Sublandlord incurs by
reason of Subtenant's default, or to compensate Sublandlord for any loss or
damage which Sublandlord may suffer thereby. If Sublandlord uses or applies
all or any portion of the Deposit, Subtenant shall within ten (10) days after
written demand therefor deposit cash with Sublandlord in an amount sufficient
to restore the Deposit to its full amount and Subtenant's failure to do so
shall be a material breach of this Sublease. Sublandlord shall not be
required to keep the Deposit separate from its general accounts. If Subtenant
performs all of Subtenant's obligations hereunder, the Deposit, or so much
thereof as has not been used or applied by Sublandlord, shall be returned, to
Subtenant (or at Sublandlord's option, to the last assignee, if any, of
Subtenant's interest hereunder) at the expiration of the term hereof, and
after Subtenant has vacated the Premises. No trust relationship is created
herein between Sublandlord and Subtenant with respect to the Deposit. Any
deposit under the Master Lease which may be returned by the Master Landlord
shall be the property of Sublandlord.
19. Broker: John Burnham & Company and Grubb & Ellis.
3. INCORPORATION BY REFERENCE; ASSUMPTION. All of the Sections of the Master
Lease are incorporated into this Sublease as if fully set forth in this
Sublease except the following: 1.01, 3.01, 38, and 39.
1 If any provisions of this Sublease conflict with any portion of the
Master Lease as incorporated herein, the terms of this Sublease shall govern.
2 Subtenant shall assume and perform to Sublandlord the Tenant's
obligations under the Master Lease provisions to the extent that the
provisions are applicable to the Premises. Subtenant shall pay to Sublandlord
all taxes, utilities, common area charges and any other sums payable by
Sublandlord, applicable to subtenant's premises under the Master Lease not
later than ten (10) days prior to the date any such amounts are due and
payable by Sublandlord as per Paragraph 2.15.
3 Sublandlord does not assume the obligations of the Master Landlord
under the Master Lease.
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4 With respect to work, services, repairs, repainting, restoration, the
provision of utilities, elevator or HVAC services, or the performance of other
obligations required of Master Landlord under the Master Lease, Sublandlord's
sole obligation with respect thereto shall be to request the same, on request in
writing by Subtenant, and to use reasonable efforts to obtain the same from
Master Landlord. Subtenant shall cooperate with Sublandlord as may be required
to obtain from Master Landlord any such work, services, repairs, repainting
restoration, the provision of utilities, elevator or HVAC services, or the
performance of any of Master Landlord's other obligations under the Master
Lease.
4. SUBTENANT'S PERFORMANCE UNDER MASTER LEASE. At any time and on reasonable
prior notice to Subtenant, Sublandlord can elect to require Subtenant to perform
its obligations under this Sublease directly to Master Landlord, in which event
Subtenant shall send to Sublandlord from time to time copies of all notices and
other communications it shall send to and receive from Master Landlord.
5. COVENANT OF QUIET ENJOYMENT. Sublandlord represents that the Master Lease
is in full force and effect and that there are no defaults on Sublandlord's part
under it as of the Commencement Date set forth in Paragraph 2.4 above.
Sublandlord represents that if Subtenant performs all the provisions in this
Sublease to be performed by Subtenant, Subtenant shall have and enjoy throughout
the term of this Sublease the quiet and undisturbed possession of the Premises.
Sublandlord shall have the right to enter the Premises at any time, in the case
of an emergency, and otherwise at reasonable times with reasonable advance
notice, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Subtenant with this Sublease and the Master Lease and to
permit Sublandlord to perform its obligations under this Sublease and the Master
Lease.
6. Option to Expand: Should Sublandlord elect to market any additional space
at 8315 Century Park Court, they will first advise Subtenant of the availability
of the space. Providing Subtenant is not and has not been in major default of
the Sublease, and subject to review and approval of subtenant's new financials,
an amendment to the original Sublease shall be executed by both parties and be
subject to the Landlord's approval. Should subtenant elect to Sublease the
space it would be per the same terms as this sublease with any rental payable
after the period July 31, 2000, to be consistent with the Base rent negotiated
between sublandlord and subtenant as per Paragraph 2.11 of this sublease.
Should Subtenant not elect to Sublease the additional space within ten (10) days
of written notice, Sublandlord may lease the space to any third party.
7. MASTER LEASE.
1 Subtenant shall not do or permit to be done anything which would
constitute a violation or breach of any of the terms, conditions or provisions
of the Master Lease or which would cause the Master Lease to be terminated or
forfeited by virtue of any risks of termination or forfeiture reserved by or
vested in Master Landlord.
2 If the Master Lease terminates, this Sublease shall terminate and the
parties shall be relieved from all liabilities and obligations under this
Sublease: except that if this Sublease terminates as a result of a default of
one of the parties under this Sublease or the Master Lease, the defaulting party
shall be liable to the non-defaulting party for all damage suffered by the
non-defaulting party as a result of the termination.
3 Intentionally Deleted.
8. HAZARDOUS MATERIALS. For the purposes of this Sublease, the following
terms have the following meanings:
(a) "Hazardous Materials Laws" means any and all laws, statutes,
ordinances or regulations pertaining to health, industrial hygiene or the
environment including, without limitation, CERCLA
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(Comprehensive Environmental Response Compensation and Liability Act of
1980) and RCRA (Resources Conservation and Recovery Act of 1976).
(b) "Hazardous Materials" means asbestos or any substance, material
or waste which is or becomes designated, classified or regulated as being
"toxic" or "hazardous" or a "pollutant" or which is or becomes similarly
designated, classified or regulated under any federal, state or local law.
At its own expense, Subtenant will procure, maintain in effect and comply
with all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Subtenant's use of the Premises, including,
without limitation, discharge of appropriately treated materials or wastes into
or through any sanitary sewer serving the Premises. Except as discharged into
the sanitary sewer in strict accordance and conformity with all applicable
Hazardous Materials Laws, Subtenant will cause any and all Hazardous Materials
removed from the Premises to be removed and transported solely by duly licensed
haulers to duly licensed facilities for final disposal. Subtenant will, in all
respects, handle, treat, deal with and manage any and all Hazardous Materials
in, on, under or about the Premises in total conformity with all applicable
Hazardous Materials Laws and prudent industry practices regarding management of
such Hazardous Materials. Upon expiration or earlier termination of the term of
this Sublease, Subtenant will cause all Hazardous Materials placed on, under or
about the Premises by Subtenant or at Subtenant's direction to be removed and
transported for use, storage or disposal in accordance and compliance with all
applicable Hazardous Materials Laws. Subtenant will not take any remedial
action in response to the presence of any Hazardous Materials in or about the
Premises or any building, nor enter into any settlement agreement, consent
decree or other compromise in respect to any claims relating to any Hazardous
Materials in any way connected with the Premises without first notifying Master
Landlord and Sublandlord of Subtenant's intention to do so and affording Master
Landlord and Sublandlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Master Landlord's and Sublandlord's interests
with respect thereto. To the best of Sublandlord's knowledge there are no
Hazardous Materials on the Premises.
9. INDEMNITY. Subtenant will indemnify, defend (by counsel reasonably
acceptable to Sublandlord), protect and hold Sublandlord harmless from and
against any and all claims, demands, losses, damages, costs and expenses
(including attorneys' fees) arising out of or relating to (i) the death of or
injury to any person, or damage to any property whatsoever, on or about the
Premises; or (ii) Subtenant's breach or default under this Sublease (including,
without limitation, Subtenant's breach of Paragraph 7 above) or, to the extent
incorporated herein, the Master Lease.
10. ATTORNEYS' FEES. If there is any legal or arbitration action or
proceeding between Sublandlord and Subtenant to enforce any provision of this
Sublease or to protect or establish any right or remedy of either Sublandlord
or Subtenant hereunder, the unsuccessful party to such action or proceeding
will pay to the prevailing party all costs and expenses, including reasonable
attorneys' fees (including allocated costs of Sublandlord's in-house attorneys)
incurred by such prevailing party in such action or proceeding and in any
appearance in connection therewith, and if such prevailing party recovers a
judgment in any such action, proceeding or appeal, such costs, expenses and
attorney's fees will be determined by the court or arbitration panel handling
the proceeding and will be included in and as a part of such judgment.
11. NO ENCUMBRANCE. Subtenant shall not voluntarily or by operation of law
mortgage or otherwise encumber all or any part of Subtenant's interest in the
Sublease or the Premises.
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12. ASSIGNMENT AND SUBLETTING.
11.1 Subtenant shall not voluntarily or by operation of law assign this
Sublease or any interest therein and shall not sublet the Premises or any part
thereof, or any right or privilege appurtenant thereto, without first obtaining
the written consent of Sublandlord, which consent shall not be unreasonably
withheld. Determining whether or not to consent to the proposed assignment or
subletting, Sublandlord may consider among other factors:
(i) whether the proposed sublessee or assignee has a net worth equal
to or greater than Subtenant;
(ii) whether the proposed use of the Premises by the proposed
sublessee or assignee is consistent with Paragraph 2.7;
(iii) the experience and business reputation of the proposed
sublessee or assignee; and
(iv) whether Sublandlord's consent will result in a breach of any
other lease or agreement to which Sublandlord is a party affecting the Property
or Premises.
11.2 Any attempted assignment or subletting, without Sublandlord's
consent shall be null and void and of no effect. No permitted assignment or
subletting of Subtenant's interest in this Sublease, shall relieve Subtenant of
its obligations to pay the rent and to perform all the other obligations to be
performed by Subtenant hereunder. The acceptance of rent by Sublandlord from
any other person shall not be deemed to be a waiver by Sublandlord of any
provision of this Sublease or to be a consent to any subletting or assignment.
Consent to one sublease or assignment shall not be deemed to constitute consent
to any subsequent attempted subletting or assignment.
11.3 Within ten (10) days following the date received by Subtenant from
any assignee or sublessee, Subtenant shall pay to Sublandlord as additional
rent, one hundred percent (100%) of the amount by which the rent payable by
such assignee or sublessee to Subtenant exceeds the rent payable by Subtenant
to Sublandlord under this Sublease until the rent paid by Subtenant to
Sublandlord equals the amount paid by Sublandlord to Master Landlord under the
Master Lease and thereafter, fifty percent (50%) of the amount by which the
rent payable by such assignee or sublessee to Subtenant throughout the term
exceeds the rent paid by Subtenant to Sublandlord under this Sublease. By way
of example, if during a year of the term the annual rent under the Master Lease
is $12 per square foot, the rent under the Sublease is $10 per square foot, and
the rent under such subsublease is $14 per square foot, of the $14 per square
foot paid to Subtenant by its subsublessee, $13 per square foot will be paid by
Subtenant to Sublandlord hereunder. If Subtenant receives a lump sum payment in
connection with an assignment, such amount shall be allocated between Subtenant
and Sublandlord, in the same manner taking into account the total rents payable
during the remaining terms of the Master Lease and Sublease.
The foregoing is a freely negotiated arrangement between Subtenant and
Sublandlord respecting the allocation of appreciated rents. This covenant
shall survive the expiration of the term of this Sublease. Notwithstanding the
foregoing, Subtenant shall not be obligated to pay Sublandlord any portion of
such appreciated rentals until Subtenant has recovered any costs it has
reasonably incurred in connection with the subletting of the Premises to any
third party broker or for improvements to the Premises. Any such costs to be
deducted from appreciated rents shall be submitted to Sublandlord and shall be
subject to Sublandlord's reasonable approval.
13. ALTERATIONS.
1 ALTERATIONS AND IMPROVEMENTS BY SUBTENANT. As per the Article 8 of
the main lease.
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2 REMOVAL OF PERSONAL PROPERTY. All articles of personal property, and
all business and trade fixtures, machinery and equipment, cabinet work,
furniture and movable partitions, if any, owned or installed by Subtenant at
its expense in the Premises shall be and remain the property of Subtenant and
may be removed by Subtenant at any time, provided that Subtenant, at its
expense, shall repair any damage to the Premises caused by such removal or by
the original installation. Sublandlord may elect to require Subtenant to remove
all or any part of such property at the expiration or sooner termination of
this Sublease, in which event such removal shall be done at Subtenant's
expense, and Subtenant shall at its own expense repair any damage to the
Premises caused by such removal prior to the termination of this Sublease.
14. HOLDING OVER. Subtenant will, at the termination of the Sublease by lapse
of time or otherwise, yield up immediately possession of the Premises to
Sublandlord. If Subtenant retains possession of the Premises or any part
thereof after such termination, or if any of Subtenant's property remains, then
such holding over shall constitute a tenancy at sufferage, and the monthly
rental (or daily rental) shall, in addition to all other sums which are to be
paid by Subtenant hereunder, be equal to two hundred percent (200%) of the
rental being paid monthly to Subtenant under this Sublease immediately prior to
such termination of this sublease. Subtenant shall also pay to Sublandlord all
damages sustained by Sublandlord resulting from retention of possession by
Subtenant.
15. LIENS. Subtenant will keep the Premises and the Building free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by Subtenant. Sublandlord has the right to post and keep posted on
the Premises any notices that may be provided by law or which Sublandlord may
deem to be proper for the protection of Sublandlord, the Premises and the
Building from such liens.
16. MAINTENANCE AND REPAIRS. Subtenant acknowledges that the Premises are
in good order and repair. At all times during the term of this Sublease,
Subtenant, at its sole cost and expense, will maintain the Premises and every
part thereof as per the Master Lease. At the end of the term of this
Sublease, Subtenant will surrender the Premises in as good condition as
received, normal wear and tear excepted. Subtenant shall be responsible for
all repairs required to be performed by the Tenant under the Master Lease.
17. INSURANCE. At all times during the term of this Sublease, Subtenant shall,
at its sole expense, procure and maintain the following types of insurance
coverage:
1 Comprehensive general liability insurance against any and all damages
and liability, including attorneys' fees on account or arising out of injuries
to or the death of any person or damage to property, however occasioned, in, on
or about the Premises with at least a single combined liability and property
damage limit of $2,000,000.
2 Insurance on all plate or tempered glass to the extent required as per
the Master Lease.
3 Insurance adequate in amount to cover damage to the Premises including,
without limitation, leasehold improvements, trade fixtures, furnishings,
equipment, goods and inventory.
4 Rent insurance in an amount equal to all rent payable under this Lease
for a period of at least twelve (12) months commencing with the date of loss.
5 Employer's liability insurance and worker's compensation insurance as
required by applicable law.
6 All such insurance shall be in a form satisfactory to Sublandlord and
carried with companies admitted to do business in the state of California.
Subtenant shall provide Sublandlord with a certificate of insurance showing
Sublandlord as additional insured. The certificate shall provide for a
thirty-day written notice to Sublandlord in the event of cancellation or
material change of coverage.
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7 Sublandlord and Subtenant shall each obtain from their respective
insurers under all policies of fire, theft, public liability, workers'
compensation and other insurance maintained by either of them at any time
during the term hereof insuring or covering the Premises, a waiver of all
rights of subrogation which the insurer of one party might otherwise have, if
at all, against the other party.
18. EVENTS OF DEFAULT. If one or more of the following events ("Event of
Default") occurs, such occurrence constitutes a breach of this Sublease by
Subtenant:
1 Subtenant fails to pay any monthly Basic Monthly Rent or Operating
Expenses and Taxes, if applicable, as and when the same become due and
payable, and such failure continues for more than five (5) days after
Sublandlord gives written notice thereof to Subtenant; or
2 Subtenant fails to pay any other sum or charge payable by Subtenant
hereunder as and when the same becomes due and payable, and such failure
continues for more than ten (10) days after Sublandlord gives written notice
thereof to Subtenant; or
3 Subtenant fails to perform or observe any other agreement, covenant,
condition or provision of this Sublease to be performed or observed by
Subtenant as and when performance or observance is due, and such failure
continues for more than thirty (30) days after Sublandlord gives written
notice thereof to Subtenant, or if the default cannot be cured within said
thirty (30) day period and Subtenant fails within said period to commence
with due diligence and dispatch the curing of such default or, having so
commenced, thereafter fails to prosecute or complete with due diligence and
dispatch the curing of such default; or
4 Subtenant (a) files or consents by answer or otherwise to the filing
against it of a petition for relief or reorganization or arrangement or any
other petition in bankruptcy or liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction; (b) makes an assignment for
the benefit of its creditors; (c) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers of itself or of any
substantial part of its property; or (d) takes action for the purpose of any
of the foregoing; or
5 A court or governmental authority of competent jurisdiction, without
consent by Subtenant, enters an order appointing a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial power of its property, or constituting an order
for relief or approving a petition for relief or reorganization or any other
petition in bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding up or liquidation of Subtenant, or if any such petition
is filed against Subtenant and such petition is not dismissed within ninety
(90) days; or
6 This Sublease or any estate of Subtenant hereunder is levied upon
under any attachment or execution and such attachment or execution is not
vacated within ninety (90) days.
19. REMEDIES OF SUBLANDLORD ON DEFAULT.
1 In the event of any breach of this Sublease by Subtenant, Sublandlord
may, at its option, terminate the Sublease and recover from Subtenant (a) the
worth at the time of award of the unpaid rent which was earned at the time of
termination; (b) 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
the award exceeds the amount of such rental loss that the Subtenant proves
could have been reasonably avoided; (c) 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 Subtenant proves could be
reasonably avoided; and (d) any other amount necessary to compensate
Sublandlord for all detriment proximately caused by Subtenant's failure to
perform this obligations under the Lease or which in the ordinary course of
things would be likely to result therefrom.
9
2 Sublandlord may, in the alternative, continue this Sublease in
effect, as long as Sublandlord does not terminate Subtenant's right to
possession, and Sublandlord may enforce all his rights and remedies under the
Sublease, including the right to recover the rent as it becomes due under the
Sublease. If said breach of the Sublease continues, Sublandlord may, at any
time thereafter, elect to terminate the Sublease. Nothing contained herein
shall be deemed to limit any other rights or remedies which Sublandlord may
have.
20. ESTOPPEL CERTIFICATES.
1 Subtenant shall at any time upon not less than ten (10) days' prior
written notice from Sublandlord execute, acknowledge and deliver to
Sublandlord a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature
of such modification and certifying that this Sublease, as so modified, is in
full force and effect), the amount of any security deposit, and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Subtenant's knowledge, any uncured
defaults on the part of Sublandlord hereunder, or specifying such defaults if
any are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer to the Premises.
2 At Sublandlord's option, Subtenant's failure to deliver such
statement within such time shall be conclusive upon Subtenant (i) that this
Sublease is in full force and effect, without modification except as may be
represented by Sublandlord, (ii) that there are no uncured defaults in
Sublandlord's performance, and (iii) that not more than one month's rent has
been paid in advance, or such failure may be considered by Sublandlord as a
material default by Subtenant under this Sublease.
3 If the Master Landlord desires to finance, refinance, or sell the
Premises, or any part thereof, Subtenant hereby agrees to deliver to any
lender or purchaser designated by Master Landlord such financial statements
of Subtenant as may be reasonably required by such lender or purchaser. Such
statements shall include the past three years' financial statements of
Subtenant.
21. REAL ESTATE BROKERS. Each party warrants to the other that there are no
brokerage commissions or fees payable in connection with this Sublease except
to the broker set forth in Paragraph 2.19. Each party further agrees to
indemnify and hold the other party harmless, from any cost, liability and
expense (including attorney's fees) which the other party may incur as the
result of any breach of this Paragraph 21.
22. MASTER LANDLORD DEFAULT; CONSENTS The provisions of this Paragraph 22
shall apply to the resolution of disputes between Sublandlord and Subtenant
unless the Master Landlord is or may become a party to the dispute, in which
event the provisions of this Paragraph 22 shall apply only if the Master
Landlord agrees to settle the dispute pursuant to the terms hereof.
Notwithstanding any provision of this Sublease to the contrary, (a)
Sublandlord shall not be liable or responsible in any way for any loss,
damage, cost, expense, obligation or liability suffered by Subtenant by
reason or as the result of any breach, default or failure to perform by the
Master Landlord under the Master Lease, and (b) whenever the consent or
approval of Sublandlord and Master Landlord is required for a particular act,
event or transaction (i) any such consent or approval by Sublandlord shall be
subject to the consent or approval of Master Landlord, and (ii) should Master
Landlord refuse to grant such consent or approval, under all circumstances,
Sublandlord shall be released from any obligation to grant its consent or
approval.
23. NOTICES. All notices given under this Sublease must be in writing and
shall be effectively served upon delivery, or if mailed, upon the first to
occur of receipt or the expiration of forty-eight hours after deposit in
certified United States mail, postage prepaid, sent to the party at its
address set forth in Paragraph 2.17. Those addresses may be changed by either
party by notice to the other party.
10
24. MASTER LANDLORD'S CONSENT. This Sublease is expressly conditioned upon
receipt of the written consent of Master Landlord.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this
Sublease as of the day and year first above written.
SUBLANDLORD:
MEDAPHIS PHYSICIAN SERVICES CORPORATION
/s/ Jon Anderson
----------------------------------
By: Jon Anderson
------------------------------
Title: Vice President
---------------------------
SUBTENANT:
TOMAHAWK II, INC. AN ILLINOIS CORPORATION
/s/ Steven M. Caira
----------------------------------
Steven M. Caira
President
TOMAHAWK CORPORATION, INCORPORATED IN ALBERTA, CANADA
/s/ Steven M. Caira
----------------------------------
Steven M. Caira
President
11
Exhibit A
CONSENT TO SUBLETTING
CENTURY PARK I JOINT VENTURE, a Delaware joint venture, having an office
at 411 West Putnam Avenue, Greenwich, Connecticut 06830 ("LANDLORD"), hereby
consents to subletting (the "SUBLETTING"), by MEDAPHIS PHYSICIAN SERVICES
CORPORATION, a Georgia corporation, having an office at 2700 Cumberland
Parkway, Suite 100, Atlanta, Georgia 30339 ("TENANT"), to TOMAHAWK II, INC.,
an Illinois corporation and TOMAHAWK CORPORATION, incorporated in Alberta,
Canada, each having its principal office at 8315 CENTURY PARK COURT, #200,
SAN DIEGO * (collectively, "SUBTENANT"), pursuant to a sublease, dated March 4,
1997, (the "SUBLEASE"), of certain space (hereinafter referred to as
"SUBLET SPACE"), being a portion of the 2nd floor of the building
("BUILDING") known as Building 2 and located at 8315 Century Park Court, San
Diego, California 92123, which Sublet Space is a portion of the premises (the
"PREMISES") now leased and demised by Landlord to Tenant by a lease, dated as
of May 5, 1995, as amended by an amendment, dated July, 1995 (which lease, as
the same has been and may hereafter be modified and amended, is hereinafter
called the "LEASE"). The consent contained herein is subject to and upon the
following terms and conditions, to each of which Tenant and Subtenant
expressly agree:
* California, 92123
1. SUBLEASE SUBORDINATE TO LEASE, ETC.
(a) The Sublease shall be subject and subordinate at all times to
the Lease and to all of the provisions, covenants, agreements, terms and
conditions (collectively, "PROVISIONS") of the Lease (including, without
limitation, the Rules and Regulations which are a part thereof) and this
Consent, and Subtenant shall not do or permit anything to be done in
connection with Subtenant's occupancy of the Sublet Space which would violate
any of said provisions. Any breach or violation of any provision of the Lease
by Subtenant (whether by act or omission) beyond any applicable grace or cure
period as provided in the Lease shall be deemed to be and shall constitute a
default by Tenant in fulfilling such provision and, in such event, Landlord
shall have all of the rights, powers and remedies provided in the Lease or at
law or in equity or by statute or otherwise with respect to defaults.
(b) Nothing herein contained shall be construed to (i) modify,
waive, impair or affect any of the provisions contained in the Lease (except
as may be expressly provided herein), (ii) waive any present or future breach
of, or default under, the Lease or any rights of Landlord against any person,
firm, association or corporation liable or responsible for the performance
thereof or (iii) enlarge or increase Landlord's obligations or Tenant's
rights under the Lease or otherwise; and
all provisions of the Lease are hereby declared by Tenant to be in full force
and effect.
(c) Nothing herein contained shall be construed as a consent to or
approval or ratification by Landlord of any of the particular provisions of
the Sublease (except as may be herein expressly provided) or as a
representation or warranty by Landlord. Landlord has not, and will not,
review or pass upon any of the provisions of the Sublease and shall not be
bound or estopped in any way by the provisions of the Sublease.
(d) Tenant shall be and remain liable and responsible for the due
keeping, and full performance and observance, of all of the provisions of the
Lease on the part of Tenant to be kept, performed and observed, including,
without limitation, the payment of Fixed Rent and Additional Rent (as such
terms are defined in the Lease).
(e) In the event of any default by Tenant or Subtenant in the full
performance and observance of any of their respective obligations hereunder
beyond any applicable grace or cure period as provided in the Lease or in the
event any representation of Tenant or Subtenant contained herein should prove
to be untrue, such event may, at Landlord's option, be deemed to be a default
under the Lease, and Landlord shall have all of the rights, powers and
remedies provided for in the Lease or at law or in equity or by statute or
otherwise with respect to defaults.
(f) In case of any conflict between the provisions of (i) the Lease
and the Sublease, then the provisions of the Lease shall prevail, and
(ii) this Consent and the Lease, then the provisions of this Consent shall
prevail.
2. NO ASSIGNMENT
Neither this Consent nor any right created hereunder may be assigned by
Tenant or Subtenant.
3. NO FURTHER SUBLET, ETC.
This Consent is not, and shall not be construed as, a consent by
Landlord to, or as permitting, any other or further subletting by either
Tenant or Subtenant. Notwithstanding anything to the contrary contained in
the Lease or the Sublease, without the prior written consent of Landlord in
each instance: (a) the Sublease shall not be assigned, extended or renewed
(provided, however, that the Sublease may be renewed as expressly provided
for in the Sublease so long as (i) such renewal term does not extend beyond
the term of the Lease, (ii) no default by Tenant under the Lease or by Tenant
or Subtenant under this Consent beyond any applicable notice and cure period
shall have occurred and be continuing and (iii) thirty (30) days' prior
written notice of such renewal shall have been given to Landlord)
2
and (b) neither the Sublet Space nor any part thereof shall be further sublet
by Subtenant. Notwithstanding the foregoing, so long as there is no default
beyond any applicable notice and cure period under the Lease or this Consent,
Subtenant shall be permitted to have one or more individuals occupy portions
of the Sublet Space not to exceed 500 square feet in the aggregate if such
individuals are performing work related to the business of Subtenant in the
Sublet Space; provided, however, that (i) Landlord is given 10 days' prior
written notice of the name and amount of space to be occupied by each such
individual and (ii) such further information with respect to such occupant or
occupancy as Landlord shall reasonably request is delivered to Landlord
within 3 days after request therefor.
4. USE.
The Sublet Space and each part thereof shall be used by Subtenant solely
for general office purposes and for no other purpose. Neither Tenant nor
Subtenant shall use or permit the use of the Sublet Space or any part thereof
(a) in any way which would violate any of the provisions of the Lease,
(b) for any unlawful purpose or (c) in any unlawful manner.
5. TERMINATION OF LEASE, PRIME SUBLEASE.
(a) If, during the term of the Sublease, the term of the Lease shall
expire or the Lease shall sooner terminate, or Tenant shall surrender the
Lease to Landlord, on the tenth (10th) day (the "ATTORNMENT DAY") after
receipt of written notice given to Subtenant of such expiration, termination
or surrender, and without any additional or further agreement of any kind on
the part of Subtenant, subtenant shall attorn to Landlord on the terms and
conditions of the Lease and on such Attornment Day, the Sublease shall be
deemed to be terminated; provided that (i) Subtenant shall have delivered to
Landlord any security deposit which is required by the terms of the Lease and
a sum equal to the then Fixed Rent and Additional Rent under the Lease for
the month in which the Attornment Day occurs (prorated on a per diem basis if
the Attornment Day is not the first day of a calendar month) plus the next
succeeding months' Fixed Rent and Additional Rent under the Lease and
(ii) Subtenant shall have reimbursed Landlord for any costs that may be
incurred by Landlord in connection with such attornment, including, without
limitation, reasonable legal costs in connection with such attornment.
Subtenant, upon demand of Landlord, shall execute and deliver such instrument
or instruments as Landlord may reasonably request to evidence and confirm the
foregoing provisions of this Paragraph 5(a).
(b) In the event that (i) Subtenant does not elect to attorn to
Landlord pursuant to Paragraph 5(a) above, Subtenant shall give written
notice (the "NOTICE") thereof to Landlord, before the expiration of the ten
(10) day period (the "NOTICE
3
PERIOD") referred to in Paragraph 5(a) hereof, or (ii) Subtenant does not
make the payments to Landlord required by Paragraph 5(a) above, then, in
either such case, on or before the ninetieth (90th) day after the expiration
of the Notice Period, Subtenant shall vacate the Sublet Space. In case of the
failure of Subtenant to so vacate the Sublet Space, Landlord shall be
entitled to all of the rights and remedies which are available to a Landlord
against a tenant holding over after the expiration of a term and to such
other rights and remedies as may be provided for in the Lease, at law or in
equity, and Tenant and Subtenant, from and after the ninetieth (90th) day
after the expiration of the Notice Period, at Landlord's option, shall be
deemed to be occupying the Sublet Space as tenants from month to month, at a
monthly rental equal to the greater of (i) three times the Fixed Rent and
Additional Rent payable under the Lease with respect to the Sublet Space for
the calendar month immediately preceding the expiration, termination or
surrender of the Lease and (ii) three times the rent (including all
additional rent) payable under the Sublease with respect to the Sublet Space
for the calendar month immediately preceding the expiration, termination or
surrender of the Lease. If the Sublet Space is less than the Premises the
Fixed Rent and Additional Rent shall be adjusted on a square foot basis to
determine the amount payable under clause (i) above.
(c) Notwithstanding anything to the contrary contained in this
Paragraph (5) if Subtenant shall be in default under this Consent beyond any
applicable notice and cure period, the 10-day notice to be given by Landlord
pursuant to Paragraph 5(a) hereof may, at Landlord's option, demand that
Subtenant vacate the Sublet Space. In that event, Subtenant shall vacate the
Sublet Space on or before the ninetieth (90th) day after the Notice Period
and the provisions of Paragraph 5(b) above shall apply.
6. NO ALTERATIONS, ETC.
No alterations, additions (electrical or otherwise), or physical changes
shall be made in the Sublet Space, or any part thereof, without Landlord's
prior written consent in each instance except as may otherwise be provided in
the Lease. Landlord consents to the alterations delineated in the TomaHawk II,
Century Office Park Plans, Final Approved Floor Plan, date stamped 3/10/97
prepared by Facilities Solutions, subject to all other applicable provisions
of the Lease with respect to the performance of such alterations.
7. NO AMENDMENT.
Notwithstanding anything to the contrary contained in the Lease or the
Sublease, Tenant and Subtenant shall not, without the prior written consent
of Landlord in each instance, execute any amendment to or modification or
extension of the Sublease, and any amendment or modification or extension
entered into without such consent shall be void and of no force or effect;
4
provided, however, that the Sublease term may be renewed as provided in
Paragraph 3 hereof in compliance with Paragraph 3 hereof.
8. REPRESENTATION OF PRIME SUBTENANT AND SUBTENANT.
Tenant and Subtenant jointly and severally represent to and agree with
Landlord that: (a) the term of the Sublease, including any extension or
renewal thereof, will expire not later than the date set for the expiration
of the term of the Lease; (b) Subtenant is financially responsible, of good
reputation and engaged in a business which is in keeping with the standards
of Landlord in those respects for the Building and its occupancy and (c) other
than those payments provided for in the Sublease, Subtenant has not made, nor
is it obligated to make, any payments to Tenant in connection with the Sublease.
9. INDEMNITY.
Tenant and Subtenant warrant and represent to Landlord that they have
dealt with no broker or finder in connection with the Sublease other than
John Burnham & Company and Grubb & Ellis (collectively, the "BROKER"). Tenant
hereby indemnifies Landlord against, and agrees to hold Landlord harmless
from, any and all liability resulting from any claims that may be made
against Landlord by Subtenant or any brokers (including the Broker) or other
persons claiming a commission or similar compensation in connection with the
Sublease.
10. COLLATERAL ASSIGNMENT OF RENTS BY TENANT.
(a) Subject to the license granted in this Paragraph, Tenant hereby
unconditionally and irrevocably grants, transfers, assigns and sets over to
Landlord all of Tenant's interest in the rents, issues and profits of the
Sublease (collectively, the "RENTS") together with full power and authority,
in the name of Tenant, or otherwise, to demand, receive, enforce, collect or
receipt for any or all of the foregoing, to endorse or execute any checks or
other instruments or orders, to file to take any claims and to take any other
action which Landlord may deem necessary or advisable in connection
therewith; provided, that no exercise of such rights by Landlord shall
release Tenant or Subtenant from any of its obligations under the Lease, the
Sublease or this Consent. The parties intend that the assignment described in
this Paragraph 10 shall be a present, actual, absolute and unconditional
assignment; provided, however, that so long as no default by Tenant beyond
the expiration of any applicable grace or cure period shall have occurred and
be continuing under the Lease, Tenant shall have a license to collect the
Rents, but neither prior to accrual nor more than one month in advance
(except for security deposits and escalations provided for in the Sublease).
Upon the occurrence of any default by Tenant beyond the expiration of any
applicable grace
5
and cure period under the terms and conditions of the Lease, this Consent
shall constitute a direction to and full authority to Subtenant to pay all
Rents to Landlord without proof to the Subtenant of the default relied upon.
Tenant hereby irrevocably authorizes Subtenant to rely upon and comply with
any notice or demand by Landlord for the payment to Landlord of any Rents due
or to become due. Landlord will simultaneously give a copy of such notice and
demand to Tenant and Subtenant. Landlord shall be accountable only for the
Rents actually collected hereunder and not for the rental value of the Sublet
Space.
(b) Neither this Consent nor the assignment described in this Paragraph
10 nor any action or inaction on the part of Landlord shall constitute an
assumption on the part of Landlord of any duty or obligation under the Lease
or the Sublease, nor shall Landlord have any duty or obligation to make any
payment to be made by Tenant or Subtenant under the Lease or the Sublease, or
to present or file any claim, or to take any other action to collect or
enforce the payment of any amounts which have been assigned to Landlord or to
which it may be entitled hereunder at any time or times. The collection and
application of the Rents or other charges, or any other action taken by
Landlord in connection therewith, shall not (i) cure or waive any default
under the Lease, the Sublease or this Consent, (ii) waive or modify any
notice thereof theretofore given by Landlord, (iii) subject to Landlord's
option to require Subtenant to attorn to Landlord as provided in the Lease
and in Paragraph 5(a) hereof, create any direct tenancy between Landlord and
Subtenant or (iv) otherwise limit in any way the rights of Landlord hereunder
or under the Lease.
(c) Tenant, at its expense, will execute and deliver all such
instruments and take all such action as Landlord, from time to time, may
reasonably request in order to obtain the full benefits of the assignment
provided for in this Paragraph 10.
(d) Rents collected by Landlord (less the reasonable cost of collection)
under this Paragraph 10 will be applied against Tenant's obligations under
the Lease.
11. AGENT FOR SERVICE OF PROCESS.
(a) Subtenant acknowledges and agrees that all disputes arising,
directly or indirectly, out of or relating to the Lease, the Sublease or this
Consent may be dealt with and adjudicated in the state courts of California
or the federal courts sitting in California, and Subtenant hereby expressly
and irrevocably submits the person of Subtenant to the jurisdiction of such
courts in any suit, action or proceeding arising, directly or indirectly, out
of or relating to the Lease, the Sublease or this Consent. So far as is
permitted under the applicable law, this Consent to personal jurisdiction
shall be self-operative and no further instrument or action, other than
service of process in
6
one of the manners specified in this Consent, or as otherwise permitted by
law, shall be necessary in order to confer jurisdiction upon the person of
Subtenant in any such court.
(b) Subtenant hereby irrevocably designates and appoints Tomahawk II,
Inc., an Illinois corporation, having an office at the Sublet Space ("AGENT")
as its authorized agent to accept and acknowledge on its behalf service of
any and all process which may be served in any suit, action or proceeding of
the nature referred to in this Consent. Agent, by executing this Consent
irrevocably consents to and accepts its designation and appointment as agent
for service of process upon Subtenant. Said designation and appointment shall
be irrevocable until one year after the date upon which the term of the
Sublease, including any extension thereof, expires. Agent covenants and
agrees that it shall not cease so to act unless and until Subtenant shall
have irrevocably designated and appointed another such agent or agents
reasonably satisfactory to Landlord as agent and Subtenant shall have
delivered to Landlord or any of its successors or assigns evidence in writing
of such other agent's acceptance of such appointment. Any attempt by Agent to
cease to so act as agent shall be ineffective and without force or effect
unless the foregoing provisions of this sentence shall be complied with.
(c) Subtenant hereby consents to process being served in any suit,
action or proceeding of the nature referred to in this Consent by the mailing
of a copy thereof by registered or certified mail, postage prepaid, return
receipt requested, to Agent at the address for Agent set forth in Paragraph
11(b) of this Consent, with a copy to Subtenant at the address set forth on
page 1 of this Consent, or to any other address of which Subtenant shall have
given written notice to Landlord. Provided that service is made in accordance
with this Paragraph 11 or otherwise as permitted by law, Subtenant
irrevocably waives, to the fullest extent permitted by law, all claim of
error by reason of any such service and agrees that such service (a) shall be
deemed in every respect effective service of process upon Subtenant in any
such suit, action or proceeding, whether or not Agent gives notice thereof to
Subtenant and (b) shall, to the fullest extent permitted by law, be taken and
held to be valid personal service upon and personal delivery to Subtenant.
(d) Nothing in this Consent shall affect the right of Landlord to serve
process in any manner permitted by law or limit the right of Landlord or any
of its successors or assigns, to bring proceedings against Subtenant in the
courts of any jurisdiction or jurisdictions.
12. MISCELLANEOUS
(a) This Consent is conditioned upon (i) Subtenant's delivering to
Landlord, within 10 days he commencement of the term of the Sublease, notice
of such commencement and a true,
7
correct and complete copy of the Sublease and (ii) Tenant's payment to
Landlord of the reasonable costs (including attorneys' fees and disbursements
of Landlord's counsel) incurred by Landlord in connection with the Sublease.
(b) This Consent may not be altered, amended, modified or changed
orally, but only by an agreement in writing signed by the party against whom
enforcement of any such alteration, amendment, modification or change is
being sought.
(c) Captions are inserted for convenience only and will not affect the
construction hereof.
(d) Any bills, statements, notices, demands, requests, consents or other
communications given or required to be given under this Consent shall be
effective only if rendered or given in writing and delivered personally or
sent by mail (registered or certified, return receipt requested), postage
prepaid, addressed to the respective party at the address hereinabove set
forth or at such other address as such party may designate as its new address
for such purpose by notice in accordance with the provisions hereof, or, if
addressed to Subtenant after the date on which Subtenant first occupies the
Sublet Space, addressed to the Building; the same shall be deemed to have
been rendered or given on the date delivered, if delivered personally, or on
the third date after mailing, if mailed. Landlord shall not be required to
send any such notice to Tomahawk Corporation. All notices to Subtenant may be
sent to Tomahawk II, Inc. at the address set forth in this Paragraph 12(d)
and Landlord may rely upon any action, inaction or statement by Tomahawk II,
Inc. as binding Subtenant. The foregoing shall not be construed as relieving
Tomahawk Corporation of any obligation or liability under the Sublease or
this Consent.
(e) This Consent constitutes the entire agreement of the parties hereto
with respect to the matters stated herein.
(f) This Consent will for all purposes be construed in accordance with
and governed by the laws of the State of California applicable to agreements
made and to be performed wholly therein.
(g) This Consent shall not be effective until executed by all the
parties hereto and may be executed in several counterparts, each of which
will constitute an original instrument and all of which will together
constitute one and the same instrument.
(h) Each right and remedy of Landlord provided for in this Consent or in
the Lease shall be cumulative and shall be in addition to every other right
and remedy provided for herein or therein or now or hereafter existing at law
or in equity or by statute or otherwise, and the exercise or beginning of the
8
exercise by Landlord of any one or more of the rights or remedies so provided
for or existing shall not preclude the simultaneous or later exercise by
Landlord of any or all other rights or remedies so provided for or so
existing.
(i) The terms and provisions of this Consent shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns
except that no violation of the provisions of Paragraph 2 hereof shall operate
to vest any rights in any successor or assignee of Tenant or Subtenant.
(j) If any one or more of the provisions contained in this Consent shall
be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in
any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of March 26, 1997.
CENTURY PARK I JOINT VENTURE
By: Resources Supervising Management Corp,
as agent
By: /s/ Frederick Simon
------------------------------------
Print Name: Frederick Simon
----------------------------
Print Title: Vice President
---------------------------
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Jon Anderson
-----------------------------------
Print Name: Jon Anderson
---------------------------
Print Title: Vice President
--------------------------
(signatures continued on
following page)
9
TOMAHAWK II, INC.
By: /s/ Steve Caira
-----------------------------
Print Name: STEVE CAIRA
---------------------
Print Title: PRES. & CEO
--------------------
TOMAHAWK CORPORATION
By: /s/ Steve Caira
-----------------------------
Print Name: STEVE CAIRA
---------------------
Print Title: PRES. & CEO
--------------------
10