IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written.
FOURTH AMENDMENT OF LEASE
AMENDMENT made and entered as of the 22 day of September, 2005, by and between TOWER PLACE, L.P., a Georgia limited partnership having an office at 3348 Peachtree Road, N.E., Atlanta, Georgia (“Landlord”) and QUALITY SYSTEMS, INC., a California corporation having an office at 3340 Peachtree Road, N.E., Atlanta, Georgia (“Tenant”).
RECITAL
Landlord and Tenant entered into a lease agreement dated as of November 15, 2000, as amended by First Amendment of Lease dated as of August 12, 2003, by Second Amendment of Lease dated as of October 1, 2003, and by Third Amendment of Lease dated as of June 9, 2004 (said lease, as amended, is herein referred to as the “Lease”), covering certain premises (the “Premises”) located on the 4th floor at Tower Place 100, at 3340 Peachtree Road, N.E., Atlanta, Georgia, which Premises are more particularly described in the Lease.
Landlord and Tenant desire to modify the Lease in order to relocate the Premises to expanded space on the 27th floor at Tower Place 100, and make appropriate modifications and adjustments thereto.
For and in consideration of the sum of $10.00 paid by each party to the other and for mutual promises herein contained, the parties agree as follows:
1.
The Lease is hereby amended so that upon the substantial completion (the “Relocation Date”) of the Relocation Space, as hereinafter defined, the Premises shall become 24,112 rentable square feet of space located on the 27th floor of the Building (the “Relocation Space”), known as Suite 2700, as more fully described in the attached Exhibit “A-3”, which is attached hereto and incorporated by reference herein.
2.
Effective on the Relocation Date, Tenant shall vacate and surrender its 4th floor space and occupy the Relocation Space, and the Relocation Space shall be deemed, for all purposes under this Lease, as the Premises.
3.
Landlord agrees to improve the Relocation Space, at Landlord’s expense, in accordance with the pricing plan dated July 14, 2005, submitted by Loia Budde & Associates, excluding $103,545.00 of such improvements based on the value engineering summary dated August 11, 2005, a copy of which is attached hereto as Exhibit “B” and incorporated herein by reference.
4.
The Relocation Space shall be deemed substantially complete when the agreed upon improvements have been sufficiently made so that Tenant may occupy and use the Relocation Space for normal business purposes and any required certificate of occupancy has been obtained.
5.
The Lease is further amended so that as of the Relocation Date, the Base Rental [as defined in Section 1.1(g) of the Lease] shall become $578,688.00 per year, payable in equal monthly installments of $48,224.00. On each anniversary of the Relocation Date, Base Rental shall be increased by an amount equal to three percent (3%) above the Base Rental in effect immediately prior to each such adjustment.
6.
Tenant shall not be required to pay the first six (6) monthly installments of Base Rental following the Relocation Date. Full payment of Base Rental shall commence as of the first day of the seventh month following the Relocation Date.
7.
The Lease is further amended so that the Expiration Date [as defined in Section 1.1(m) of the Lease] shall be extended to become the date which is sixty-six (66) months following the Relocation Date.
8.
The Lease is further amended as of the Relocation Date to reflect that Tenant’s Share [as defined in Section 1.1(k) of the Lease] for determining Operating Expense increases shall become 3.94%.
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9.
The Lease is further amended as of the Relocation Date to reflect that the Base Year [as defined in Section 1.1(j) of the Lease] shall become the calendar year 2006.
10.
Effective on the Relocation Date, the Maximum Number of Parking Spaces Available to Tenant [as defined in Section 1.1(r) of the Lease] shall be increased from “36” to “72” spaces.
11.
The Lease is further amended so that effective as of the Relocation Date, the remaining obligation of Tenant to reimburse Landlord for excess improvement costs, as more fully set forth in the Second Amendment of Lease, shall be forgiven, and Tenant shall not be required to make any additional payments toward same.
12.
The parties acknowledge that CB Richard Ellis has served as agent for Landlord in the negotiation and procurement of this Amendment and Kern Olsen Real Estate Services has served as agent for Tenant in the negotiation and procurement of this Amendment. The parties agree to indemnify the other against the claims of any third parties claimed by and through them for commission. Landlord agrees to pay both agents a commission pursuant to a separate written agreement.
13.
Landlord acknowledges and agrees to continue honoring the Recognition Agreement dated February 23, 2001, as modified on November 21, 2002, wherein NextGen Healthcare Information Systems, Inc. is recognized as a subsidiary of Tenant and is permitted to operate within the Premises.
14.
The Lease is further amended by deleting Section 4.6 (e) in its entirety, and substituting in lieu thereof the following:
“4.6 (e)INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant hereby waives all claims against them for any damage to any property or any injury to any person in or about the Premises or the Building by or from any cause
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whatsoever (including without limiting the foregoing, rain or water leakage of any character from the roof, windows, walls, basement, pipes, plumbing works or appliances, the Building not being in good condition or repair, gas, fire, oil, electricity or theft), except to the extent caused by or arising from the gross negligence or willful misconduct of Landlord or its agents, employees or contractors. Tenant shall protect, indemnify and hold the Landlord Entities harmless from and against any and all loss, claims, liability or costs (including court costs and attorney’s fees) incurred by reason of (a) any damage to any property (including but not limited to property of any Landlord Entity) or any injury (including but not limited to death) to any person occurring in, on or about the Premises or the Building to the extent that such injury or damage shall be caused by or arise from any actual or alleged act, neglect, fault, or omission by or of Tenant or any Tenant Entity to meet any standards imposed by any duty with respect to the injury or damage; (b) the conduct or management of any work or thing whatsoever done by the Tenant in or about the Premises or from transactions of the Tenant concerning the Premises; (c) Tenant’s failure to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Premises or its occupancy; or (d) any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of the Tenant to be performed pursuant to this Lease. The provisions of this Article shall survive the termination of this Lease with respect to any claims or liability accruing prior to such termination. As used herein, the term ‘Landlord Entities’ shad mean and include Landlord, Landlord’s investment manager, and the trustees, boards of directors, officers, general partners, beneficiaries, stockholders, employees and agents of each of them.”
15.
The Lease is further amended by deleting Section 8.20 in its entirety, and substituting in lieu thereof the following:
“8.20LIMITATION OF LANDLORD’S LIABILITY.Redress for any claim against Landlord under this Lease shall be limited to and enforceable only against and to the extent of Landlord’s interest in the Building. The obligations of Landlord under this Lease are not intended to be and shall not be personally binding on, nor shall any resort be had
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to the private properties of, any of its or its investment manager’s trustees, directors, officers, partners, beneficiaries, members, stockholders, employees, or agents, and in no case shall Landlord be liable to Tenant hereunder for any lost profits, damage to business, or any form of special, indirect or consequential damages.”
16.
The Lease is further amended by deleting Section 8.29 in its entirety, and substituting in lieu thereof the following:
“8.29TENANT’S AUTHORITY. If Tenant signs as a corporation, partnership, trust or other legal entity each of the persons executing this Lease on behalf of Tenant represents and warrants that Tenant has been and is qualified to do business in the state in which the Building is located, that the entity has full right and authority to enter into this Lease, and that all persons signing on behalf of the entity were authorized to do so by appropriate actions. Tenant agrees to deliver to Landlord, simultaneously with the delivery of this Lease, a corporate resolution, proof of due authorization by partners, opinion of counsel or other appropriate documentation reasonably acceptable to Landlord evidencing the due authorization of Tenant to enter into this Lease.”
17.
Except as modified by this Amendment, the Lease shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the day and year first above written.
SIGNATURES CONTINUED ON FOLLOWING PAGE
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| | | | |
| | | LANDLORD: |
| | |
TOWER PLACE, L.P.
|
| | | a Georgia Limited Partnership |
| | | | |
| | | By: | RREEF America REIT III Corp. O, |
| | | | a Maryland corporation, general partner |
| | | | |
| | | By: | RREEF Management Company, |
| | | | a Delaware corporation, Authorized Agent |
| | | | |
Attest: | | | By: | 
|
|
| | |
|
| | | | |
| | | | Faye Phillips |
Name: | | | Title: | Vice President-District Manager |
|
| | | |
Title: | | | | 9/26/05 |
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| | | |
| | | TENANT: |
| | | | |
| | | QUALITY SYSTEMS, INC. |
| | | a California corporation |
| | | | |
Attest: | 
| | By: | 
|
|
| |
|
Name: | Signatory | | Name: | Paul Holt |
Title: Signatory | | Title: CFO |
| | | | |
(CORPORATE SEAL) | | | |
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Exhibit “A-3” Page 1
Exhibit “A-3” Page 2
Exhibit “A-3” Page 3
Exhibit “A-3” Page 4
Exhibit “A-3” Page 5
Exhibit “B”
| | | | | | | | | | |
NextGen - Value Engineering Summary - August 11, 2005 | |
|
Item | | Cost | | PSF | | Status | |
|
Keypad entry devices | | $ | 18,000.00 | | | 0.75 | | | Cut accepted, tenant to provide | |
47 Glass sidelights | | $ | 0.00 | | | 0.00 | | | Cut not accepted | |
340 s.f. of stone flooring | | $ | 15,829.00 | | | 0.66 | | | Cut accepted, deduct includes adding back std. carpet | |
Downgrade the carpet tile to a building standard product | | $ | 16,000.00 | | | 0.66 | | | Cut accepted | |
Delete 3 projections screens and add back cost to relocate one | | $ | 5,100.00 | | | 0.21 | | | Cut accepted, tenant may add two screens at their cost. | |
Lower the specification grade of the movable wall | | $ | 0.00 | | | 0.00 | | | Cut not accepted | |
Delete 2 ton HVAC Liebert Unit for server room | | $ | 18,000.00 | | | 0.75 | | | Cut accepted, tenant may furnish a spot cooler at their cost. | |
Change 3 zone fan-coil units to 2 zone plus z-com diffusers per pricing drawings | | $ | 7,883.00 | | | 0.33 | | | Change accepted, deduct includes minor electrical. | |
Remove 56 downlights | | $ | 7,000.00 | | | 0.29 | | | Cut accepted per quantity noted. | |
Remove 24 accent wall washer lights | | $ | 3,240.00 | | | 0.13 | | | Cut accepted per quantity noted. | |
Remove bathroom fixtures, Plumbing, accessories, Lights and ceramic tile. | | $ | 0.00 | | | 0.00 | | | Cut not accepted | |
Delete custom reception desk | | $ | 0.00 | | | 0.00 | | | Cut not accepted | |
Change wood base & crown from custom profile to standard traditional profile. | | $ | 3,600.00 | | | 0.15 | | | Change accepted. | |
Delete 3 pendant lights at reception. | | $ | 2,250.00 | | | 0.09 | | | Cut accepted. | |
Delete one coat closet | | $ | 808.00 | | | 0.03 | | | Cut accepted. | |
Delete 9 LF of base and wall cabinets in main break room | | $ | 2,160.00 | | | 0.09 | | | Cut accepted. | |
Delete 49 LF of 5-high adjustable melamine shelving. | | $ | 3,675.00 | | | 0.15 | | | Cut accepted. | |
| | | | | | | | | | |
Total of Deletions & Changes | | $ | 103,545.00 | | | | | | | |
Note: Total deductions shall include relative reduction in Construction Management fee and General Contractor’s Fee.
