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EXHIBIT 10.12
EASTSIDE PHYSICIANS CENTER
LEASE SUMMARY
between
Eastside Physicians Center, LP (Landlord)
a Georgia limited partnership
and
Atlanta Ear, Nose & Throat Associates (Tenant)
Date of Execution July 14, 1994
Premises Floor 0, Xxxxx 000
Rentable Area of the premises 3,488 Square Feet (subject to adjustment
[Paragraph 1] pursuant to the final "Plans")
Commencement Date June 1, 1995 (subject to adjustment pursuant to
[Paragraph 2] the Tenant Improvement Agreement) Tenant may
select earlier Commencement Date, subject to
approval of Landlord
Expiration Date 60 months from the Commencement Date
[Paragraph 2]
Rental Commencement Date The Commencement Date, except as otherwise
provided in the Tenant Improvement Agreement
Base Rental $19.00 per annum per square foot of Rentable
[Paragraph 3] Area of Premises
Improvement Allowance $104,640 (based on rentable area of the
Premises). Tenant Allowance funds may be
applied to x-ray and audio installations to
extent funds are available
Use Medical Office
[Paragraph 6]
Xxxxxx's Address for Notices (Paragraph 22) Prior to Commencement Date
Suite 235
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Commencement Date and After
Suite 235
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxx's Address for Notices and Payment c/o Meadows & Xxxx, Inc.
of Rent [Paragraph 22] Suite 000
0000 Xxxxx Xx
Xxxxxxx, XX 00000
SCHEDULE OF EXHIBITS
Exhibit "A" Floor Plan
Exhibit "B" Tenant Acceptance Agreement
Exhibit "C" Tenant Improvement Agreement
Exhibit "D" Rules and Regulations
Exhibit "E" Building Moving Policy
Exhibit "F" Additional Amenities Lease
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STANDARD MEDICAL OFFICE LEASE (Rev. 11/93)
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made and entered into as of the date
specified in the Lease Summary, attached hereto, by and between the
undersigned Landlord and the undersigned Tenant.
1. DEFINITIONS. Each of the following defined terms, shall have the meaning
ascribed thereto by this paragraph 1.
A. "Building" means that certain medical office building known as EASTSIDE
PHYSICIANS CENTER, and located at 0000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000.
B. "Eastside Physicians Center" shall mean the Building together with the
following, as they may from time to time exist, common areas, a connecting
walkway to the Eastside Hospital, and a parking lot, together with all
alterations, additions and replacements thereto, and related amenities.
C. "Premises" shall mean that portion of the Building shown on the plan
attached hereto as Exhibit "A", as adjusted by the final "Plans", as that term
is defined in the Tenant Improvement Agreement attached hereto as Exhibit "C"
(the "Tenant Improvement Agreement").
D. "Rentable Area" of the Premises means the total of (1) the gross area
thereof (the "Premises Gross Area") as measured on the final Plans from and to
the inside glass surface of the exterior building walls, and from and to the
center of any partition walls which separate the Premises from adjoining tenant
and common areas; plus (2) the pro rata part of the common areas of the
Building (including all building corridors, entry areas, building bathrooms,
postal areas and all other facilities commonly available to all tenants). For
purposes of calculating such pro rata share, it is hereby agreed that the total
of the gross area for all Tenants of the Building constitutes 86% of the total
area of the Building, and that the total of all common areas of the Building
constitutes 14% of the total area of the Building. It is hereby further agreed
that the Rentable Area of the Premises is subject to adjustment based on the
final determination of the Premises Gross Area under the Plans.
2. PREMISES AND TERM. In consideration of the obligation of Tenant to pay Base
Rental and Additional Rental as herein provided, and in consideration of the
other terms, provisions and covenants hereof, Landlord hereby demises and
leases to Tenant, and Tenant hereby accepts and leases from Landlord the
Premises, with no easement for light or air included in the Premises, to have
and to hold the same for the term described below (the "Lease Term").
The Lease Term shall commence on the date specified in the Lease
Summary as the Commencement Date (the "Commencement Date"), which is the date
on which Landlord anticipates that the Premises will be substantially completed
in accordance with the Tenant Improvement Agreement (but which date is subject
to adjustment pursuant to the Tenant Improvement Agreement), and shall end at
6: p.m. E.S.T. on the date specified in the Lease Summary as the Expiration
Date (the "Expiration Date"). Except as provided in the Tenant Improvement
Agreement, the rental due hereunder from Tenant shall commence on the
Commencement Date. If, for any reason whatsoever, the Premises are not
substantially completed by the Commencement Date, or if Landlord, for any
reason whatsoever, cannot deliver possession of the Premises to Tenant on the
Commencement Date, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any resulting loss or damages. No delay in delivery of
possession shall operate to relieve Tenant of Tenant's obligations to Landlord,
except where such delay results in an adjustment of the Commencement Date and
the Rental Commencement Date pursuant to the Tenant Improvement Agreement.
Landlord shall be deemed to have delivered possession of the Premises for
Tenant's occupancy on the date on which Landlord has notified Tenant that the
"Work", as that term is defined in the Tenant Improvement Agreement, is
substantially complete, subject only to completion of items customarily
classified as "punchlist items" in the construction industry (such date
hereinafter referred to as the "Occupancy Date"). Within ten (10) days after
the Occupancy Date, Tenant shall execute and deliver to Landlord a Tenant
Acceptance Agreement in the form attached hereto as Exhibit "B" Tenant may
state in such Tenant Acceptance Agreement any defects in the Premises remaining
to be repaired or completed by Landlord ("Punchlist Items"), provided, however,
that acceptance by Landlord of the Tenant Acceptance Agreement with a
statement of Punchlist Items shall not constitute the agreement of Landlord to
repair or complete any Punchlist Items not included in the "Working Drawings,"
as that term is defined in the Tenant Improvement Agreement. Tenant shall have
waived objection to any defects not enumerated in a Tenant Acceptance
Agreement, except for latent defects not discoverable by reasonable diligence
of Tenant, and to any defects of any nature if a Tenant Acceptance Agreement is
not executed and delivered within said ten (10) day period.
3. BASE RENTAL.
X. Xxxxxx covenants and agrees to pay to Landlord during the Lease Term the
amounts specified in the Lease Summary (the "Base Rental") as rent for the
Premises. The Base Rental shall be paid in equal monthly installments in
advance, without demand, deduction or set off, on the first (1st) day of each
and every calendar month during the Lease Term. A prorated monthly installment
shall be paid in advance on the Commencement Date for any fraction of a month if
the Lease Term begins on any day other than the first day of any month and on
the first day of the final month of the Lease Term for any fraction of a month
if the Lease Term shall terminate on any day other than the last day of any
month. B. Commencing January 1, 1996, and on every January 1 thereafter, the
Base Rental shall be increased to an amount equal to the product of: (i) the
amount of Base Rental set forth in Paragraph 3A of this Lease (as increased from
time to time by earlier adjustments established by this Paragraph 3B) multiplied
by (ii) 1.02.
C. Tenant covenants and agrees to pay to Landlord during the Lease
Term such sums as are referred to herein as "Additional Rental" when due,
without demand, deduction or set off.
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4. ADDITIONAL RENTAL. Tenant shall pay, as Additional Rental, the amount,
if any, by which the number of square feet contained in the Rentable area of the
Premises under this Lease multiplied by $6.25 per square foot is less than
Tenant's Percentage Share, as hereinafter defined, of the Operating Expenses, as
hereinafter defined, for any calendar year "Tenant's Percentage Share" of the
Operating Expenses shall be an amount determined by multiplying the total
Operating Expenses of the Eastside Physicians Center for the year by a fraction,
the numerator of which shall be the Rentable Area of the Premises and the
denominator of which shall be the average of all rentable areas occupied by all
rent paying tenants in the Building for the year. The Additional Rental payable
pursuant to this paragraph shall be determined, and paid in accordance with the
following procedures:
(i) During each December of the Lease Term, or as soon thereafter as
practicable, Landlord shall give Tenant written notice of its estimate
of Additional Rental payable under this paragraph for the ensuing
calendar year. On or before the first day of each month during the
ensuing calendar year, Tenant shall pay to Landlord one-twelfth (1/12)
of such estimated amounts together with the Base Rental, provided that
if such notice is not given in December, Tenant shall continue to pay
such Additional Rental during the ensuing calendar year on the basis of
the amounts payable during the calendar year just ended, until the month
after such notice is given.
(ii) As soon as practicable after the close of each calendar year
during the Lease Term, Landlord shall deliver to Tenant a statement of
the adjustments to be made for the calendar year just ended. Such
statement shall be final and binding upon Landlord and Tenant absent
manifest error. If on the basis of such statement Tenant owes an amount
that is less than the estimated payments for the calendar year just
ended previously made by Tenant, Landlord shall credit such excess to
the next payments of Additional rental coming due. Tenant shall pay as
Additional Rental the deficiency to Landlord within thirty (30) days
after delivery of the statement.
(iii) If this Lease shall terminate on a day other than the last day
of a calendar year, the amount of Additional Rental payable shall be
prorated. The termination of this Lease shall not affect the obligations
of Landlord and Tenant to be performed after such termination, pursuant
to this paragraph 4.
"Operating Expenses" as used herein shall mean all actual costs and expenses of
operation, maintenance, repair, ad valorem taxes, management, and security of
the Building. Operating Expenses shall not include (i) depreciation on the
Building and personal property, (ii) Tenant Improvement Costs, (iii) payments
by Landlord of interest and principal on any mortgage secured by the Building,
(iv) the cost of special services rendered to a particular tenant of the
Building, which are paid or reimbursed by such tenant, and (v) leasing
commissions.
5. PREPARATION OF THE PREMISES.
A. Landlord shall construct or install in the Premises the Work (as
defined in the Tenant Improvement Agreement), pursuant to the provisions of the
Tenant Improvement Agreement. Xxxxxx agrees to comply with all of the terms and
provisions of the Tenant Improvement Agreement.
6. PERMITTED AND RESTRICTED USES, COMPLIANCE WITH LAWS AND PARKING.
A. Tenant shall use the Premises only for the purposes specified in the
Lease Summary. Tenant shall not use the Premises for any illegal purpose, nor
violate any statute, regulation, rule or order of any governmental body in its
use thereof, nor create or allow to exist any nuisances or trespasses, nor do
any act in or about the Building or the Premises or bring anything onto or unto
the Building or the Premises which will in any way materially increase the rate
of insurance on the Building or the Premises nor deface or injure the Building
or Premises or overload the floor of the Premises. Tenant shall comply, at its
own expense, with all statutes, regulations, rules, ordinances, and orders of
any governmental body, department, or agency thereof which apply to or result
from Tenant's use or occupancy of the Premises and shall abide by and observe
the Rules and Regulations attached to this Lease as Exhibit "D" and the
Building Moving Policy attached to this Lease as Exhibit "E" and also such
other rules and regulations for the use, occupancy, or operation of the
Building as may be hereafter be established in writing by Landlord.
B. Tenant shall not use and shall not permit the use of the Premises for
any business or activity that is in violation of those certain restrictive
covenants encumbering all or any portion of the Building by American Medicorp
Development Co. or its successor, and which restrictive covenants have been or
will be recorded in the real estate records for Gwinnett County, Georgia.
C. No rights to any parking spaces are granted under this Lease, however,
Tenant and Tenant's employees, trustees and licensees shall be entitled to use,
on a non-exclusive basis, the parking facilities located from time to time
adjacent to the Building and owned or leased by Landlord in common with other
tenants of the Building. Such use of the parking facilities shall be subject to
any and all rules and regulations established by Landlord with respect to
the parking facilities.
D. Anything to the contrary in this Lease notwithstanding, Landlord
reserves the right and privilege to, from time to time, alter the location,
structure and layout of the Eastside Physicians Center, including, but not
limited to, the parking areas, walkways and other common areas.
7. SERVICES. Landlord agrees to provide to Tenant the following services:
A. General cleaning and janitorial service required as a result of normal,
prudent use of the Premises and only on Mondays through Fridays, inclusive,
with New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day, and Christmas Day (herein collectively called the "Holidays") excepted;
B. Heating and air-conditioning service daily on Monday through Fridays,
inclusive, with Holidays excepted from 8:00 A.M. to 6:00 P.M. and on Saturdays,
if not a Holiday, from 8:00 A.M. to 1:00 P.M. Landlord reserves the right to
prohibit the use of machines and equipment that generate heat in their
operation. Should Tenant desire either heating or air-conditioning at times
when such services are not furnished by Landlord under the terms of this Lease,
Landlord will furnish such services as requested by Tenant upon not less than
24 hours notice from Tenant, at Xxxxxx's expense and at such
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hourly charge as is from time to time determined by Landlord. Payments for such
additional services shall be deemed Additional Rental due from Tenant and shall
be due and payable on demand;
C Elevator service daily on Mondays through Fridays, inclusive, with
Holidays excepted, from 8:00 .M. to 6:00 P.M. and on Saturdays, if not a
Holiday, from 8:00 A.M. to 1:00 P.M. At least one elevator shall be operative
at all other hours; and
D Electric current for lighting and reasonable facilities for furnishing
usual and normal electric power for office space. Tenant shall not, without
Xxxxxxxx's prior written consent, use any equipment, including, diagnostic
equipment, X-ray machines, or any other machines, which will increase the
amount of electricity ordinarily furnished for the use of the Premises as
general office space.
E Water shall be provided to the Premises in an amount sufficient for
private toilets and for hand washing. The cost of any water used in excess of
such amount shall be reimbursed to Landlord on demand as Additional Rental with
the amount and cost of such excess determined by Landlord in its reasonable
discretion.
8. LANDLORD'S REPAIRS AND OBLIGATIONS. Landlord shall maintain in good
order and repair, normal wear and tear, casualty and condemnation excepted, the
Eastside Physicians Center (excluding the Premises and other portions of the
Building leased to other tenants), including, without limitation, public areas,
the parking lot and landscaped areas, elevators, stairs, corridors, common
rest rooms, the mechanical, plumbing and electrical systems and the structure
itself (including the glass exterior surfaces of the Premises) as same may
exist from time to time, provided, however, the cost of any repairs or
maintenance necessitated by the intentional acts or omissions, or negligence of
Tenant, or its agents, employees, contractors, invitees, licensees, sub-tenants
or assignees, shall be reimbursed by Tenant to Landlord upon demand as
Additional Rental. Landlord shall have no duty to make any repairs or
improvements to the Premises except structural repairs necessary for safety and
tenantability, the necessity for which (i) Landlord is notified in writing by
Tenant, and (ii) is not brought about by any act or neglect of Tenant, its
agents, employees or contractors, licensees, or invitees. Tenant shall
immediately give Landlord written notice of any damage to, or defective
condition in or about the Premises or the Building known to Tenant. Landlord's
liability with respect to any defects, repairs or maintenance for which
Landlord is responsible under any of the provisions of this Lease shall be
limited to the cost of such repairs or maintenance or the curing of such
defect. Landlord shall not be liable to Tenant for damage to person or property
caused by any latent defects in the Building or the Premises, defects in the
cooling, heating, electric, water, elevator or other apparatus or systems or by
water discharged from sprinkler systems, if any, in the building or the
Premises, nor for the theft, mysterious disappearance, or loss of any property
of Tenant or Tenant's agents, employees, contractors, licensees or invitees,
whether from the Premises or any part of the Building. Landlord agrees to make
reasonable efforts to protect Tenant from interference or disturbance by third
persons, including other tenants; however, Landlord shall not be liable, and
Tenant shall not be relieved from its obligations hereunder, for any such
interference or disturbance, whether caused by another tenant or tenants of
Landlord, or by other persons.
9. TENANT'S REPAIRS AND OBLIGATIONS.
A Tenant shall at its own cost and expense keep and maintain the Premises
and all part thereof in good repair and tenantable condition and indemnify
Landlord against any loss, damage, or expense arising by reason of any failure
of Tenant so to keep the Premises in good repair and tenantable condition or
due to any act or negligent of Tenant, its agents, employees, contractors,
invitees, or licensees. If Tenant fails to perform, or cause to be performed,
such maintenance and repairs, then at the option of Landlord, in its sole
discretion, any such maintenance or repair may be performed or caused to be
performed by Landlord and the cost and expense thereof charged to tenant, and
Tenant shall pay the amount thereof to Landlord on demand as Additional Rental.
Tenant shall not install X-ray machines or other equipment which emits
radiation in the Premises without Landlord's approval, which approval shall not
be unreasonably withheld or delayed. Lessee hereby accepts the risks of and all
responsibility for any injury or damage which may result from the operation or
failure of operation of any such X-ray equipment or other equipment which emits
radiation. All such equipment owned or operated by Tenant must be installed and
protected in a manner satisfactory to Landlord and in compliance with all
governmental regulations.
B All repairs, replacements and clearing of stoppages from plumbing
fixtures within the Premises, as well as repair or replacement of special or
non-standard electrical fixtures, lights and light bulbs within the Premises
(other than standard 2X4 lights), and the furnishing of toilet paper and paper
towels to toilets and sinks located within the Premises shall be at Tenant's
expense.
10. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without first obtaining the prior written consent
of Landlord. All such work, including additions, fixtures, and leasehold
improvements (but excluding moveable office furniture, trade fixtures, cabinets
and counter tops which are not mounted on or attached to walls, equipment, and
other personal property of Tenant) made or placed in or upon the Premises by
either tenant or Landlord shall be and become Landlord's property at the
termination of this Lease by lapse of time or otherwise, all without
compensation or payment to Tenant, and shall remain upon and in the Premises;
but said property shall be and remain Tenant's property during the Lease Term.
Before the termination of this Lease Tenant shall remove from the Premises all
its personal property which this Lease allows Xxxxxx to remove and peaceably
surrender such Premises and the keys thereto to Landlord in the same condition
as at the Commencement Date, only normal wear and tear excepted. Such property
of Tenant as it fails to remove either from the Premises or the Building after
the termination of this Lease shall be considered as abandoned by Tenant and
may be disposed of by Landlord in any manner whatsoever without accounting to
Tenant for same or being liable in any way to Tenant for such disposition.
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11. SIGNS: Xxxxxx agrees to conform to Xxxxxxxx's signage program for the
Building; however, all costs and expenses for any sign, sign installation,
removal and repair shall be paid by Tenant. Tenant shall obtain the written
approval of Landlord prior to placing and maintaining, or causing or permitting
to be placed and maintained, any sign, advertising matter or other thing of any
kind, on the exterior of the Premises, or any decorating, lettering or
advertising matter on any exterior door to the Premises. tenant shall not affix
or attach anything to windows in the Premises.
12. INSPECTIONS AND RIGHT OF ENTRY. Tenant shall not change the locks on
any entrance to the Premises or install additional locks without Landlord's
prior written consent. Landlord and its agents, employees, and contractors
shall have the right to enter the Premises at such times as Landlord deems
reasonably necessary to make such repairs, additions, alterations, and
improvements as Landlord desires to make to the Building. During such time as
work is being carried on in or about the Premises, provided such work is
carried out in a manner so as not to interfere unreasonably with the conduct
of Xxxxxx's business therein, the rent provided herein shall in no wise xxxxx,
and Tenant waives any claim and cause of action against Landlord for damages by
reason of loss or interruption to Tenant's business and profits therefrom
Landlord and its agents, shall have the right to enter the Premises during
normal business hours, without interference with the conduct of Xxxxxx's
business therein, to inspect and examine the Premises and to exhibit the
Premises to prospective purchasers, tenants and lenders. Tenant shall give
written notice to Landlord at least thirty (30) days prior to vacating the
Premises and shall arrange to meet with Landlord for a joint inspection of the
Premises prior to vacating.
13. ASSIGNMENT AND SUBLETTING. Tenant shall not, without Xxxxxxxx's prior
written consent, (i) assign, convey, mortgage, pledge, encumber, or otherwise
transfer (whether voluntarily, by operation of law, or otherwise) this Lease
or any interest under it; (ii) allow any transfer thereof or any lien upon
Tenant's interest by operation of law; (iii) sublet the Premises or any part
thereof; or (iv) permit the use or occupancy of the Premises or any part
thereof by any one other than Tenant; and any attempt to consummate any of the
foregoing without Landlord's consent shall be void. Xxxxxxxx's consent shall
not be unreasonably withheld or delayed with respect to any assignment or
sublease with respect to the Premises; provided, however, Landlord shall be
permitted to consider all relevant factors in determining whether consent is to
be granted, including, without limitation, the creditworthiness, identity,
operating history, use of the Premises and reputation of the proposed subtenant
or assignee and whether the proposed assignment or sublease (or the use of the
Premises by the proposed subtenant or assignee) will violate or cause an event
of default or breach under any ground lease, mortgage, deed to secure debt or
other instrument affecting the Building or the land underlying the Building.
Unless otherwise expressly agreed to by Xxxxxxxx in writing, no sublease or
assignment by Xxxxxx shall relieve Tenant or any of the "Owners" (as defined in
Paragraph 23 hereof) of any liability hereunder. Xxxxxx agrees to pay, as
Additional Rental, to Landlord, on demand, all out of pocket expenses,
including all legal fees, incurred by Landlord in connection with any request
by Tenant for Landlord to consent to any assignment or subletting by Xxxxxx.
The sale or transfer of Tenant's voting stock (if a corporation) or partnership
(if a partnership) resulting in the transfer of control of a majority of such
stock or interest, or the occupancy of the Premises by any successor firm of
Tenant or by any firm into which or with which Tenant may become merged or
consolidated shall be deemed an assignment of this Lease requiring the prior
written consent of Landlord. This paragraph shall not apply to any assignment
or sublease to a member in good standing of the medical staff of the Eastside
Medical Center, provided that Tenant shall not be released from liability
hereunder.
14. FIRE AND CASUALTY DAMAGE.
A. If the Building or the Premises is damaged partially or wholly by fire,
the elements, act of God or other casualty, and if such damage cannot, in
Landlord's reasonable estimation, be materially restored within ninety (90)
days of such damage, then Landlord or Tenant may terminate this Lease as of the
date of such fire or casualty and the Lease Term shall end on such date as if
that date had been originally fixed in this Lease for the expiration of the
Lease Term. Landlord shall notify Tenant of its estimation as to the time
required for restoration within 30 days of the date of the damage. Election to
terminate must be delivered on or before the tenth day following receipt of
Landlord's estimation of time required for restoration if such estimate is
beyond the 90 days set out in this paragraph.
B. If this Lease is not terminated pursuant to subparagraph 14A above,
then Landlord shall proceed with all due diligence to repair and restore the
Building or the Premises, as the case may be (except that Landlord may elect
not to rebuild, and thus terminate this Lease, if such damage occurs during the
last year of the Lease Term). In the event that Landlord shall fail to complete
such repairs and material restoration within one hundred twenty (120) days
after the date of such damage and Tenant's use and enjoyment of the Premises is
then materially impaired by the uncompleted restoration, Tenant may at its
option terminate this Lease by delivering written notice to Landlord, whereupon
the Lease shall end on the date of such notice as if the date of such notice
were the date originally fixed in this Lease of the Expiration Date. In no
event shall Landlord be required to rebuild, repair, or replace any personal
property, equipment, or trade fixtures which belong to Tenant.
C. If the Lease is not terminated pursuant to this paragraph 14 and if the
Premises are unfit for occupancy in whole or in part following such damage, the
Base Rental and the Additional Rental payable pursuant to paragraph 4 payable
during the period in which the Premises are unfit for occupancy shall xxxxx and
Tenant's Percentage Share shall be reduced in proportion to the number of
square feet of Rentable Area of the Premises rendered unusable by such damage.
D. Any insurance which may be carried by Landlord or Tenant against loss
or damage to the Building or the Premises shall be for the sole benefit of the
party carrying such insurance.
E. If any such casualty stated in this paragraph 14 occurs, Landlord shall
not be liable to Tenant for inconvenience, annoyance, loss of profits,
expenses, or any other type of injury or damage resulting from the repair of
any such damage, or from any repair, modification, arranging, or rearranging of
any portion of the Premises or any part or all of the Building or for
termination of this Lease as provided in this paragraph 14.
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F. Anything in this Paragraph 14 to the contrary notwithstanding, for purposes
of this Paragraph 14, Landlord shall not be obligated to commence any repair or
restoration until insurance proceeds are actually recovered by Landlord, and
Landlord's restoration obligations shall be limited to the extent of the
insurance proceeds actually received by Landlord therefor (plus the amount of
any deductible or co-insurance payments applicable to such insurance) which
have not been required by the holder of any mortgage or deed to secure debt
encumbering any portion of the Building to be applied toward the reduction of
any indebtedness secured by the Building.
15. INSURANCE, LIABILITY AND INDEMNIFICATION.
A. Tenant shall carry and maintain throughout the Lease Term fire and extended
coverage insurance insuring Tenant's interest in its improvements and
betterments to the Premises and any and all furniture, equipment supplies, and
other property, owned, leased, held, or possessed by it and contained therein,
such insurance coverage to be in an amount equal to the full insurable value of
such improvements and property.
X. Xxxxxx also agrees to carry and maintain throughout the Lease Term a policy
or policies of worker's compensation and commercial general liability
insurance, including personal injury and property damage, with broad form and
contractual liability endorsements, in the amount of One Million Dollars
($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) annual
aggregate for property damage and personal injuries or deaths of persons
occurring in or about the Premises. Said policies shall: (i) name Landlord and
any other persons designated by Landlord as an additional insured(s), (ii) be
issued by an insurance company which is acceptable to Landlord and licensed to
do business in the State of Georgia, and (iii) provide that said insurance
shall not be canceled unless thirty (30) days prior written notice shall have
been given to Landlord and any designees of Landlord. Said policies, or
certificates thereof, shall be delivered to Landlord by Tenant upon
commencement of the term of the Lease and upon each renewal of said insurance.
C. Tenant shall obtain from its insurers under all policies of fire, theft,
public liability, workmen's compensation and other insurance maintained by it
at any time during the term of this Lease insuring or covering the Building or
any portion thereof or operations therein, a waiver of all rights of
subrogation which the insurer might have against Landlord, and Tenant shall
indemnify Landlord against any loss or expense, including reasonable attorney's
fees, resulting from the failure to obtain such waiver. In the event Xxxxxx's
waiver of subrogation is obtainable only at extra charge by the insurers,
Landlord shall have the option of either paying such charge or waiving this
requirement.
D. In addition to and without limiting any other indemnity and hold harmless
provision contained herein, Xxxxxx agrees to indemnify and hold Landlord
harmless from and defend Landlord against any and all claims or liability for
any injury or death to any person or damage to any property whatsoever: (i)
either (a) occurring in, on or about the Premises, or (b) occurring in, on, or
about any facilities the use of which Tenant may have in conjunction with other
tenants of the Building, when such injury, death or damage shall be caused by
the act, neglect or fault of, or omission of any duty with respect to the same,
by Tenant, its agents, employees, contractors, invitees, licensees, subtenants,
or assignees; (ii) arising from any work or thing whatsoever done by or
benefiting the Tenant in or about the Premises or from transactions of the
Tenant concerning the Premises; (iii) arising from any breach or event of
default on the part of the Tenant in the performance of any covenant or
agreement on the part of the Tenant to be performed pursuant to the terms of
this Lease; or (iv) otherwise arising from any act, omission or neglect of the
Tenant, or any of its agents, employees, contractors, invitees, licensees,
subtenants or assignees.
E. Landlord shall not be liable to Tenant or to any person, firm, corporation
or other business association claiming by, through or under Tenant, for failure
to furnish or for delay in furnishing any service or utility provided in this
Lease and no such failure or delay by Landlord shall be an actual or
constructive eviction of Tenant nor shall any such failure or delay operate to
relieve Tenant from the prompt and punctual performance of each and all the
covenants to be performed herein by Xxxxxx.
F. Anything in this Lease to the contrary notwithstanding, Landlord's
obligations and liability with respect to this Lease shall be limited solely
to Landlord's interest in the Eastside Physicians Center, as such interest is
constituted from time, and neither Landlord nor any officer, director,
shareholder, nor partner or joint venturer of Landlord, nor any partner of any
partner of Landlord, shall have any personal liability whatsoever with respect
to this Lease. In any action or proceeding brought to enforce this obligation
of Landlord to Tenant under this Lease, Landlord and Tenant agree that any
final judgment or decree shall be enforceable against Landlord only to the
extent of Landlord's interest in the Eastside Physicians Center, as aforesaid,
and any such judgment or decree shall not be capable of execution against, nor
be a lien on, any assets of Landlord other than its interest in the Eastside
Physicians Center, as aforesaid.
16. CONDEMNATION.
A. If all or any substantial part of the Building or the Premises should be
taken for any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the Premises for the purpose for which it is then being used, this Lease shall
terminate effective when the physical taking shall occur in the same manner as
if the date of such taking were the Expiration Date.
B. If part of the Building or the Premises is taken for any public or
quasi-public use under any governmental law, ordinance, or regulation, or by
rights of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided in subparagraph 16A above, this Lease shall
not terminate but the Base Rental and the Additional Rental payable hereunder
during the unexpired portion of this Lease shall be reduced to such extent, if
any, as may be fair and reasonable under all of the circumstances and Landlord
shall undertake to restore the Building and the Premises to a condition
suitable for Tenant's use, as near to the condition thereof immediately prior
to such taking as is reasonably feasible under all circumstances.
C. Tenant reserves to itself and does not assign to Landlord any damages or
claims for damages payable for Tenant's trade fixtures or for any fixtures or
equipment installed by Tenant, or any damages or claims for damages which are
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considered "special damages" including but not limited to such items as moving
expenses, and business losses resulting from such appropriation, reserving such
right as it may have, if any, to proceed for a separate award therefore, from
the condemning body.
17. HOLDING OVER. In no event shall there be any renewal of this Lease by
operation of law. If Tenant remains in possession of the Premises after the
termination of this Lease and without a new lease executed by Landlord and
Tenant, Tenant shall be deemed to be occupying the Premises as a
tenant-at-sufferance at an amount equal to one hundred fifty percent (150%) of
the (i) Base Rental and (ii) Additional Rental provided for in this Lease and
otherwise subject to all the covenants and provisions of this Lease, insofar as
the same are applicable.
18. EVENTS OF DEFAULT AND REMEDIES.
A. The occurrence of any of the following shall constitute an event of
default.
(i) The Base Rental, Additional Rental or any other sum of money
payable under this Lease is not paid when due;
(ii) Tenant's interest in the Lease or the Premises shall be subjected
to any attachment, levy, or sale pursuant to any order or decree
entered against Tenant in any legal proceeding and such order or
decree shall not be vacated within thirty (30) days of entry thereof;
(iii) Tenant breaches or fails to comply with any term, provision,
condition, or covenant of this Lease (other than the payment of Base
Rental, Additional Rental and any other sum due and payable hereunder)
or with any of the Rules and Regulations or Building Moving Policy now
or hereafter established from time to time by Landlord to govern the
operation of the Building;
(iv) Tenant fails to bond off or otherwise remove any lien filed
against the Premises or the Building by reason of Tenant's actions,
within three (3) days after Tenant has notice of the filing of such
lien;
(v) The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant or an assignment of Tenant
for the benefit of Creditors, or any action taken or suffered by Tenant
under any insolvency, bankruptcy, or reorganization act (other than a
petition of involuntary bankruptcy which is dismissed within thirty
(30) days of date of filing), shall, at Landlord's option, constitute
an event of default by Tenant; or
(vi) Tenant is liquidated or dissolved or its charter expires or is
revoked, or Tenant is dissolved or partitioned.
B. Upon the occurrence of an event of default and, in the case of an
event of default under subparagraph 18A(i) above, if such event of
default is not cured within five (5) days of the due date, and in the
case of an event of default under subparagraph 18A(ii) and A(iii)
above, if such event of default is not cured within fifteen (15) days
after written notice of such event of default is given by Landlord to
Tenant, Landlord shall have the option to do and perform any one or
more of the following in addition to, and not in limitation of, any
other remedy or right permitted it by law or in equity or by this
Lease;
(i) Landlord, with or without terminating this Lease, may re-enter the
Premises and perform, correct or repair any condition which shall
constitute a failure on Tenant's part to keep, observe, perform,
satisfy, or abide by any term, condition, covenant, agreement, or
obligation of this Lease or of the Rules and Regulations now in effect
hereafter adopted, and Tenant shall fully reimburse and compensate
Landlord on demand for all costs and expenses incurred by Landlord in
such performance, correction or repairing, including accrued interest
as provided in the next sentence. All sums so expended to cure Xxxxxx's
default shall accrue interest from the date of demand until date of
payment at a rate of interest per annum equal to the lesser of (a)
eighteen percent (18%), or (b) the highest rate permitted by law
(ii) Landlord, with or without terminating this Lease, may re-enter the
Premises and remove therefrom Tenant and all property belonging to or
placed on the Premises by, at the direction of, or with consent of
Tenant. Any such re-entry and removal by Landlord shall not of itself
constitute an acceptance by Landlord of a surrender of this Lease or of
the Premises by Xxxxxx and shall not of itself constitute a termination
of this Lease by Landlord.
(iii) Landlord, with or without terminating this Lease, may relet the
Premises or any part thereof for such time or times, at such rental or
rentals and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable, and Landlord may make any
alterations or repairs to the Premises which it may deem necessary or
proper to facilitate such reletting, and Tenant shall pay all costs of
such reletting including but not limited to the cost of any such
alterations and repairs to the Premises, attorneys' fees, and brokerage
commissions, and if this Lease shall not have been terminated, Tenant
shall continue to pay all rent and all other charges due under this
Lease up to and including the date of beginning of payment of rent by
any subsequent tenant of part or all of the Premises, and thereafter
Tenant shall pay monthly during the remainder of the Lease Term the
difference, if any, between the rent and other charges collected from
any such subsequent tenant or tenants and the rent and other charges
reserved in this Lease, but Tenant shall not be entitled to receive any
excess of any such rents collected over the rents reserved herein;
(iv) Landlord may terminate this Lease, and this Lease shall be deemed
to have been terminated upon written notice of such termination,
Landlord shall recover from Tenant all damages Landlord may suffer by
reason of such termination including, without limitation, unamortized
sums expended by Landlord for construction of tenant improvements, all
arrearage in rentals, costs, charges, additional rentals, and
reimbursements, the cost (including court costs and actual attorneys'
fees) of recovering possession of the Premises, the cost of any
alteration of or repair to the Premises which is necessary or proper to
prepare the same for re-letting and, in addition thereto, Landlord at
its election shall have and recover from Tenant either (a) an amount
equal to the excess, if any, of the total amount of all rents and other
charges to be paid by Tenant for the remainder of the Lease Term over
the then reasonably rental value of the Premises for the remainder of
the Lease Term discounted to the net present value as of the date paid
using a five (5) percent annum discount rate, or (b) the rents and
other
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charges which Xxxxxxxx would be entitled to receive from Tenant if the
Lease were not terminated
C. If Landlord re-enters the Premises or terminates this Lease pursuant to
any of the provisions of this Lease, Tenant hereby waives all claims for
damages which may be caused by such re-entry or termination by Landlord. Tenant
shall and does hereby agree to indemnify and hold Landlord harmless from any
loss, cost (including court costs and actual attorneys' fees), or damages
suffered by Landlord by reason of such re-entry or termination. No such
re-entry or termination shall be considered or construed to be a forcible entry.
D. No course of dealing between Landlord and Tenant or any failure or
delay on the part of Landlord in exercising any rights of Landlord under any
provisions of this Lease, nor shall any waiver of an event of default on one
occasion operate as a waiver of any subsequent event of default or of any other
event of default. All remedies provided for in this Lease are cumulative and
may, at the election of Landlord, be exercised alternatively, successively, or
in any other manner and are in addition to any other rights provided for or
allowed by law or in equity.
X. Xxxxxx shall pay, as a late charge in the event any installment of Base
Rental, Additional Rental, or other charge to be paid by Tenant hereunder is
not paid when due on demand, (i) a late fee of $10.00 per day for each and
every day past the due date of the payment, which late fee Tenant acknowledges
is an agreed upon reimbursement to Landlord for the administrative expense
incurred by Landlord as a result of Tenant's late payment and not a penalty;
and (ii) interest on the amount past due (excluding late fees) at a rate per
annum equal to the lesser of (a) eighteen percent (18%), or (b) the highest rate
permitted by law, from due date until paid. Should Tenant make a partial
payment of past due accounts, the amount of such partial payment shall be
applied first to late fees, second, to accrued but unpaid interest and third,
to reduce all other past due amounts, in the order of their maturity. In the
event Tenant's check is returned by the bank for non-payment, Xxxxxx agrees to
pay all expenses incurred by Landlord as a result thereof (with a minimum
charge being no less than $25.00). All checks are accepted subject to
collection. In the event checks are returned for non-payment, late fees and
interest shall be due as if no check had been received.
F. If any Base Rental, Additional Rental or other debt or amount owing by
Tenant to Landlord hereunder is collected by or through an attorney at law,
Xxxxxx agrees to pay actual attorneys fees incurred by Landlord as a result of
Landlord's exercise of any remedy or right permitted it by law or in equity or
by this Lease.
19. HAZARDOUS SUBSTANCES AND WASTE DISPOSAL.
A. Tenant hereby covenants that Tenant shall not cause or permit any
"Hazardous Substances" (as hereunder defined) to be placed, held, located or
disposed of, in, on, or at the Premises or any part thereof and neither the
Premises nor any part thereof shall ever be used as a dump site or storage site
(whether permanent or temporary) for any Hazardous Substances during the Lease
Term.
B. For purposes of this Lease, "Hazardous Substances" shall mean and
include those elements or compounds which are contained in any list of
hazardous substances adopted by the United States Environmental Protection
Agency (the "EPA") or the list of toxic pollutants designated by Congress or
the EPA or which are defined as hazardous, toxic, pollutant, infectious or
radioactive by any other Federal, state or local statute, law ordinance, code,
rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous toxic or dangerous
waste, substance or material, as now or at any time hereafter in effect.
C. All normal trash and waste (i.e. waste that does not require special
handling pursuant to subparagraph 19D below) shall be disposed of through the
janitorial service.
D. Tenant shall be responsible, at its sole cost and expense, for the
removal and disposal of any waste deemed by any governmental authority having
jurisdiction over the matter to be hazardous or infectious waste or waste
requiring special handling, such removal and disposal to be in accordance with
any and all applicable governmental rules, regulations, codes, orders or
requirements. Tenant hereby indemnifies and holds harmless Landlord from and
against any loss, claims, demands, damage or injury Landlord may suffer or
sustain as a result of Xxxxxx's failure to comply with the provisions of this
subparagraph 19D. This Paragraph shall survive cancellation, termination or
expiration of this Lease.
20. SUBORDINATION, ATTORNMENT AND FINANCIAL DISCLOSURES.
A. Except as provided in subparagraph 20C below, this Lease and all rights
of Tenant hereunder are and shall be subject and subordinate to (i) the lien of
any mortgage, deed to secure debt, deed of trust, or other instrument in the
nature thereof which may now or hereafter affect Landlord's estate or interest
in and to the Building and the land underlying the Building and to any other
instrument encumbering the fee title of the Premises and to any modifications,
renewals, consolidations, extensions, or replacements thereof, and (ii) all
ground leases which now or hereafter affect the Building or the Land underlying
the Building.
B. Tenant shall, upon demand, execute, and deliver to Landlord or the
holder or the holder of any such mortgage, deed to secure debt, deed or trust,
or other instrument or to the lessor under any such ground lease, any and all
instruments that may be requested by Landlord or such holder or such lessor to
evidence the subordination of this Lease and all rights hereunder to the lien
of any such mortgage, deed to secure debt, deed or trust, or other instrument,
or the grant of any such ground lease and each such renewal, modification,
consolidation, replacement, and extension thereof, and if Tenant shall fail at
any time, within ten (10) days following the giving of a written request
therefor, to execute, acknowledge, and deliver any such instrument, Landlord or
such holder of such lessor, in addition to any other remedies available to it
in consequence thereof, may execute, acknowledge, and deliver to same as the
attorney-in-fact of Tenant and in Tenant's name, place, and stead, and Tenant
hereby irrevocably makes, constitutes, and appoints Landlord or such holder or
such lessor, and their respective successors and assigns, such attorney-in-fact
for that purpose. Upon execution of such document by Xxxxxx, Landlord shall
make reasonable efforts to obtain a non-disturbance agreement from such party
to whom the document was delivered.
X. Xxxxxx shall, upon demand, at any time or times, execute, acknowledge,
and deliver to Landlord or to the holder of any mortgage, deed to secure debt,
deed of trust, or other instrument affecting or encumbering the Building of the
land
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underlying the Building or to the lessor under any ground lease affecting the
Building or the land underlying the Building, without expense, any and all
instruments that may be necessary to make this Lease superior to the lien of
any such mortgage, deed to secure debt, deed of trust or other instrument or
the grant of any such ground lease, and each renewal, consolidation,
replacement, and extension thereof, and, if Tenant shall fail at any time,
within ten (10) days following the giving of a written request therefor, to
execute, acknowledge, and deliver any such instrument, Landlord or such holder
or such lessor, in addition to any other remedies available to it in
consequence thereof, may execute, acknowledge, and deliver the same as the
attorney-in-fact of Tenant and in Xxxxxx's name, place, and stead, and Tenant
hereby irrevocably makes, constitutes, and appoints Landlord or such holder or
such lessor, and their respective successors and assigns, such attorney-in-fact
for that purpose.
X. Xxxxxx acknowledges that Xxxxxx's ability to perform its obligations
hereunder, including payment of all rents and performance of all other duties
set out herein, are substantial inducements to Landlord to enter into this Lease
and are key to Landlord's ability to secure financing for the property from
time to time. Accordingly, Xxxxxx and all guarantors agree to provide such
financial statements, as may be required by Xxxxxxxx's potential or then
current lender. All such data shall be submitted within (10) days of date of
request by Xxxxxxxx. Landlord agrees that all such data shall remain
confidential and shall be disclosed only to qualified lending institutions.
21. TENANT'S RIGHT TO TERMINATE.
Xxxxxxxx and tenant acknowledge that, as of the date of this Lease,
construction of the Eastside Physicians Center has not commenced. In the event
that construction of the Eastside Physicians Center has not commenced on or
before March 31, 1994, then Tenant shall have the option, which option shall be
exercised by written notice to Landlord given on or before April 15, 1994, to
terminate this Lease and receive a refund of the Rental Deposit. Failure by
Tenant to give such notice on or before April 15, 1994, shall constitute a
waiver of such option. For purposes of this Paragraph 21, construction of the
Eastside Physicians Center shall be deemed to have "commenced" upon the
beginning of work at the site of the Eastside Physicians Center to lay footings
and foundations.
22. MISCELLANEOUS.
X. Xxxxxx represents and warrants to Landlord that no broker, agent,
commission salesman, or other person has represented Tenant in the negotiations
for and procurement of this Lease and of the Premises and that no commissions,
fees, or compensation of any kind are due and payable in connection herewith to
any broker, agent, commission salesman, or other person. Xxxxxx agrees to
indemnify and hold Landlord harmless from all loss, cost and damage (including
reasonable attorneys' fees and court costs) suffered or incurred by Landlord as
a result of a breach by Tenant of the representation and warranty contained in
the immediately preceding sentence or as a result of Xxxxxx's failure to pay
commissions, fees or compensation due to any broker who represented Tenant,
whether or not disclosed. Spirit Realty, which is an affiliate of the General
Partner of Landlord, has represented Landlord and will receive compensation in
accordance with a separate agreement between Spirit Realty and Landlord.
B. Except for legal process which may also be served as by law provided or
as provided below, all notices required or desired to be given with respect to
this Lease in order to be effective shall be in writing and shall be deemed to
be given to and received by the party intended to receive such notice when hand
delivered or three (3) days after such notice shall have been deposited, postage
prepaid, to the United States mail, certified, return receipt requested,
properly addressed (i) if to Landlord, at Landlord's Address for Notices
specified in the Lease Summary, or (ii) if to Tenant, Xxxxxx's Address for
Notices specified in the Lease Summary. In the event of a change of address by
either party, such party shall give written notice thereof in accordance with
the foregoing. The Base Rental, Additional Rental and other sums due hereunder
shall be paid in legal tender at Landlord's Address for Notices, as same may be
changed by notice as herein provided from time to time. To the extent permitted
by law, Tenant hereby (i) appoints and designates the Premises as a proper place
for service of process upon Tenant, and agrees that service of process upon any
person apparently employed by Tenant upon the Premises or leaving process in a
conspicuous place within the Premises or by attaching it to the main entrance of
the Premises shall constitute personal service of such process upon Tenant.
C. This Lease constitutes and contains the sole and entire agreement of
Landlord and Tenant and no prior oral or written representation or agreement
between the parties and affecting the Premises shall have legal effect. No
modification or amendment of this Lease shall be binding upon the parties
unless such modification or amendment is in writing and signed by Landlord and
Tenant. The content of each and every exhibit, attachment and Lease Summary
which is referenced in this Lease as being attached hereto is incorporated into
this Lease as fully as if set forth in the body of this Lease.
D. At any time and from time to time, Tenant, on or before the date
specified in a request therefor made by Landlord, which date shall not be
earlier than ten (10) days from the making of such request, shall execute,
acknowledge, and deliver to Landlord a certificate evidencing whether or not
(i) this Lease is in full force and effect, (ii) this Lease has been amended in
any way, (iii) there are any existing events of default on the part of Landlord
hereunder to the knowledge of Tenant and specifying the nature of such events
of default, if any, and (iv) rent, and other amounts due hereunder, if any,
have been paid (and the date to which same have been paid). In addition, the
certificate shall state such other matters relating to the Lease as may be
requested by Landlord. Each certificate delivered pursuant to this subparagraph
may be relied on by any prospective purchaser or transferee or Xxxxxxxx's
interest hereunder or of any part of Landlord's property or by any mortgagee of
Landlord's interest hereunder or of any part of Landlord's property or by an
assignee of any such mortgagee or by any ground lessor of Landlord's interest
hereunder.
E. If any clause or provision of this Lease is or becomes illegal,
invalid, or unenforceable because of present or future laws or any rule or
regulation of any governmental body or entity, effective during its term, the
intention of the parties hereto is that the remaining parts of this Lease shall
not be affected thereby, unless such invalidity is, in the sole determination
of Landlord, essential to the rights of both parties in which event Landlord
has the right to terminate this Lease on written notice to Tenant.
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F. The captions used in this Lease are for convenience only and do not in any
way limit or amplify the terms and provisions hereof.
G. The words "Landlord" and "Tenant" as used herein shall include the
respective contracting party, whether singular or plural, and whether an
individual, masculine or feminine, or a partnership, joint venture, business
trust, or corporation. The provisions of this Lease shall inure to the benefit
of and be binding upon Landlord and Xxxxxx, and their respective successors,
heirs, legal representatives, and assigns, subject, however, in the case of
Tenant, to the provisions of paragraph 13. It is understood and agreed that the
interest of "Landlord" under this Lease may be assigned in whole or part, at any
time and from time to time, and the term "Landlord", as used in this Lease,
means only the owner(s), or the lessee(s), from time to time of the Building
and/or the land underlying the Building so that in the event of any sale or
sales of the Building and/or the land underlying the Building, or of any lease
thereof, the Landlord named herein shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder accruing
thereafter to the extent of such sale or lease, and it shall be deemed without
further agreement that the purchaser, or the lessee, as the case may be, has
assumed and agreed, to the same extent, to carry out any and all covenants and
obligations of Landlord hereunder during the period such party has possession of
all or such portion of the Building and/or the land underlying the Building
which it has purchased or leased.
H. The laws of the State of Georgia shall govern the interpretation, validity,
performance, and enforcement of this Lease.
I. Time is of the essence of this Lease. Unless specifically provided
otherwise, all references to terms of days or months shall be construed as
references to calendar days or calendar months, respectively. In the event that
any time period (other than the Lease Term) specified herein shall expire on a
weekend or a holiday, then such time period shall be automatically extended to
the next following business day.
J. This Lease may be executed in any number of counterparts, each of which
shall be deemed an original and any of which shall be deemed to be complete in
itself and may be introduced into evidence or used for any purpose without the
production of the other counterparts.
X. Xxxxxxxx shall be excused from the performance of any of its duties and
obligations under this Lease, for the period of delay caused by labor disputes,
governmental regulations, riots, war, insurrection, acts of God or other causes
beyond the control of Landlord.
L. If Tenant signs as a corporation, each of the persons executing this Lease
on behalf of Tenant do hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in Georgia, that the corporation has full right and authority to enter
into this Lease, that each and both of the persons executing this Lease on
behalf of the corporation are authorized to do so, and that such execution is
fully binding on the corporation. If Tenant signs as a partnership, joint
venture, or sole proprietorship (each being herein called "Entity") each of the
persons executing on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly authorized and existing Entity, that Tenant has full right and
authority to enter into this Lease, that all persons executing this Lease on
behalf of the Entity are authorized to do so, and that such execution is fully
binding on the entity and its partners, joint ventures, or principal, as the
case may be.
M. This Lease is not in recordable form, and Xxxxxx agrees not to record or
permit the recording of this Lease.
N. So long as Xxxxxx observes and performs the covenants and agreements
contained herein, it shall at all times during the Lease Term peacefully and
quietly have and enjoy possession of the Premises, but always subject to the
terms hereof.
O. When Xxxxxxxx's consent is required, by this Lease, such consent shall not
be unreasonably withheld or delayed.
P. When Xxxxxxxx's "costs" are referred to herein, "costs" shall be defined as
Landlord's actual costs.
23. GUARANTY
In the event Tenant is a corporation, partnership or any entity other than
an individual, in order to induce Landlord to execute the foregoing Lease, and
for other consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned parties (collectively, jointly and severally
referred to as the "Owners") do hereby absolutely and unconditionally, jointly
and severally, guarantee to Landlord, its successors and assigns, the full
performance and observance of all the covenants, conditions, and agreements
provided to be performed and observed by Tenant in this Lease, including,
without limitation, the prompt payment of the Rent and all other amounts
provided in said Lease to be paid by Xxxxxx.
The Owners hereby waive acceptance of this Guaranty, and notice of
non-payment, non performance or non-observance, and all other notices and all
proof or demands. Further, the Owners expressly agree that its obligations
hereunder shall in no way be terminated, affected or impaired by reason of the
granting by Landlord of any indulgences to tenant or by reason of the assertion
against Tenant of any of the rights or remedies reserved to Landlord pursuant to
the provisions of said Lease by operation of law or otherwise. The Owners
further covenant and agree that this guaranty shall remain and continue in full
force and effect as to any renewal, modification or extension of the lease
whether or not the Owners shall have received any notice of or consented to such
renewal, modification or extension. The Owners further agree that its liability
hereunder shall be primary, and that in any right of action which shall accrue
to the Landlord under the lease, the Landlord may, at its option, proceed
against the Tenant. It is agreed that the failure of the Landlord to insist in
any one or more instance upon strict performance or observance of any of the
terms, provisions, or covenants of the Lease or this Guaranty or to exercise any
right therein or herein contained shall not be construed or deemed to be a
waiver or relinquishment for the future of such term, provision, covenant or
right, but the same shall continue and remain in full force and effect. Receipt
by the Landlord of rent or other payments with knowledge of the breach of any
provisions of the Lease shall not be deemed a waiver of such breach or of this
Guaranty. This Guaranty shall be binding upon and inure to the benefit of the
parties and their respective heirs, administrators, executors, successors and
assigns.
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24. DEATH OR DISABILITY
In the event the Lessee is an individual (or a corporation solely owned by
an individual Physician) and Lessee (or its owner) should die, become physically
or mentally unable to perform one or more important duties associated with his
profession, such as to cause his withdrawal from the practice of medicine and
the withdrawal of privileges to practice at all licensed hospitals, then at the
option of the Lessee, his heirs, legal representatives or assigns, this Lease
shall terminate on the date on which Lessor receives written notice from Lessee
of such death or disability and the exercise by Xxxxxx of the option to
terminate granted herein, such election being valid only if accompanied by
payment for all amounts due and which would become due to Lessor by Xxxxxx
within the following six months.
25. OPTION TO RETAIN PREMISES
On or before ninety (90) days prior to the expiration date of this Lease,
Tenant may notify Landlord in writing of its desire to elect to remain as a
tenant in the Premises, which notice shall state the term Tenant has selected
(which may be any annual increment up to five (5) years). Landlord shall prepare
a lease on the form then used by Landlord for space in the building and at the
rental rate quoted by Landlord for comparable space in building and for a
comparable term. Tenant shall have ten (10) days from date such completed form
is presented by Landlord to execute and deliver the Lease to Landlord. In the
event Tenant should not give such notice to Landlord or fails to sign such Lease
within such period, Tenant shall have no rights hereunder and Landlord may
proceed to lease the Premises to others, effective upon the expiration of this
Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed and sealed this Lease
as of the date and year first above stated.
LANDLORD:
Eastside Physicians Center, L.P.
a Georgia limited partnership
By: Xxxxxxx & Xxxx, Inc.
General Partner
By: (Signature) (SEAL)
----------------------------
Title:
TENANT:
Atlanta Ear, Nose & Throat Associates
By: /s/ Xxxxx X. Xxxxx, PRESIDENT
-----------------------------
OWNER: (Name Printed) OWNER:
Xxxxxxx X. Xxxxxxxx, M.D. /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxx, M.D. /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx, M.D. /s/ Xxxxxx X. Xxxxx MD
----------------------------------
Xxxxx X. Xxxxxxx, M.D. /s/ Xxxxx X. Xxxxxxx
----------------------------------
12
24. DEATH OR DISABILITY
In the event the Lessee is an individual (or a corporation solely owned by
an individual Physician) and Lessee (or its owner) should die, become physically
or mentally unable to perform one or more important duties associated with his
profession, such as to cause his withdrawal from the practice of medicine and
the withdrawal of privileges to practice at all licensed hospitals, then at the
option of the Lessee, his heirs, legal representatives or assigns, this Lease
shall terminate on the date on which Lessor receives written notice from Lessee
of such death or disability and the exercise by Xxxxxx of the option to
terminate granted herein, such election being valid only if accompanied by
payment for all amounts due and which would become due to Lessor by Xxxxxx
within the following six months.
25. OPTION TO RETAIN PREMISES
On or before ninety (90) days prior to the expiration date of this Lease,
Tenant may notify Landlord in writing of its desire to elect to remain as a
tenant in the Premises, which notice shall state the term Tenant has selected
(which may be any annual increment up to five (5) years). Landlord shall prepare
a lease on the form then used by Landlord for space in the building and at the
rental rate quoted by Landlord for comparable space in building and for a
comparable term. Tenant shall have ten (10) days from date such completed form
is presented by Landlord to execute and deliver the Lease to Landlord. In the
event Tenant should not give such notice to Landlord or fails to sign such Lease
within such period, Tenant shall have no rights hereunder and Landlord may
proceed to lease the Premises to others, effective upon the expiration of this
Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed and sealed this Lease
as of the date and year first above stated.
LANDLORD:
Eastside Physicians Center, L.P.
a Georgia limited partnership
By: Xxxxxxx & Xxxx, Inc.
General Partner
By: (SEAL)
----------------------------
Title:
TENANT:
Atlanta Ear, Nose & Throat Associates
By: /s/ Xxxxx X. Xxxxx, PRESIDENT
-----------------------------
OWNER: (Name Printed) OWNER:
Xxxxxxx X. Xxxxxxxx, M.D.
----------------------------------
13
[FLOOR PLAN]
14
EXHIBIT A
EASTSIDE PHYSICIANS CENTER
FIRST FLOOR
-------------
[DIAGRAM]
SECOND FLOOR THIRD FLOOR
--------- --------
[DIAGRAM] [DIAGRAM]
FOURTH FLOOR
----------
[DIAGRAM]
15
EXHIBIT "B"
TENANT ACCEPTANCE AGREEMENT
This Agreement made this _____ day of _________ 19 ___ between Eastside
Physicians Center, L P, a Georgia limited partnership (hereinafter referred to
as "Landlord") and Atlanta Ear, Nose & Throat Associates (hereinafter referred
to as "Tenant").
W I T N E S S E T H
WHEREAS, Landlord and Xxxxxx entered into a Lease, dated ________ 19___,
(hereinafter referred to as the "Lease") for Suite 470 (hereinafter referred to
as the "Premises") in the building known as Eastside Physicians Center.
NOW, THEREFORE, pursuant to the provisions of the Lease, Landlord and
Tenant mutually agree as follows
1 Capitalized terms not defined herein shall have the meanings
set forth in the Lease
2 The Commencement Date of the Lease Term is March 15, 1995. The
Expiration Date of the Lease Term is February 15, 2000. The Rentable Area of
the Premises is 3,488.
3 Tenant is in possession of, and has accepted, the Premises
demised by the Lease, and acknowledges that all the work (including the Work)
to be performed by the Landlord in the Premises as required by the terms of the
Lease has been satisfactorily completed, except for the items set out on the
attached Exhibit B-1. Tenant further certifies that all conditions of the Lease
required of Landlord as of this date have been fulfilled and there are no
defenses or setoffs against the enforcement of the Lease by Landlord.
IN WITNESS WHEREOF, the parties hereto have duly executed and sealed
this Agreement, as of the date and year first above stated.
LANDLORD TENANT
Eastside Physicians Center, L P Atlanta Ear, Nose & Throat Associates
By ______________________ (SEAL) By _________________________________
Title
_____________________________________________________________________________
EXHIBIT "B-1"
As of this ______ day of _____________________ 19 ___ the following punchlist
(if "none", so state)
items remain to be completed
Tenant Name Initial
___________________________ ________________ Landlord
Suite Number ________________ Tenant
________________
16
EXHIBIT "C"
TENANT IMPROVEMENT AGREEMENT
THIS AGREEMENT made as of the _____ day of _______________ 19 ____ between
Eastside Physicians Center, L.P., a Georgia Limited Partnership ("Landlord")
and Atlantic Ear, Nose and Throat Associates ("Tenant").
Reference is made to the Lease Agreement dated _______________ 19 ___
(the "Lease") for premises as set out on Exhibit A of the Lease (the
"Premises"), located in the property known as Eastside Physicians Center (the
"Eastside Physicians Center"), which property is more particularly described in
the Lease.
The terms "Plans", "Work", "Space Plan", "Working Drawings", "Finish
Selections" and "Landlord's Space Planner" are defined in Section XIV, below.
Capitalized terms not defined in this Agreement shall have the meanings set
forth in the Lease.
1. BASIC TERMS
A. Space Planner: Chegwidden, Dorsey, Xxxxxx Architecture &
Planning Inc.
B. Date to Complete Planning: One Hundred Twenty calendar days
prior to the Commencement Date as shown on the Lease
Summary (including any Space Plan, Working Drawings and
Finish Selections).
X. Xxxx to Substantially Complete Work: Commencement Date under
the Lease, as adjusted pursuant to this Agreement.
D. Improvement Allowance Provided by Landlord: $30.00 per
square foot of Rentable Area of the Premises.
E. Number of Space Plan Revisions at Landlord's Cost: Two.
F. Number of Working Drawings Revisions at Landlord's Cost:
One.
II. BASIC AGREEMENT. On or before the "Date To Complete Planning"
described above, Tenant shall (a) provide Space Planner with all information
concerning Tenant's requirements in order for Space Planner to prepare the
Plans, and (b) arrange for Space Planner to prepare the Plans, and obtain
Landlord's written approval thereof. However, Tenant shall not be responsible
for delays caused by Landlord or Landlord's Space Planner, as further described
in Section III, below.
On or before the Commencement Date set forth in the Lease
Summary of the Lease, Landlord shall substantially complete the Work shown on
the final approved Plans. However, Landlord shall not be responsible for delays
caused by Tenant or Tenant's agents or employees and as further described in
Section IV, below.
Landlord shall bear the cost of the Plans (including any
engineering reports, or other studies or tests in connection therewith, but
excluding any furniture planning) up to the amounts specified above. Tenant
shall bear any costs of the Plans over the allowances set out above, all costs
in connection with designing non-building standard items, and all costs of
subsequent changes, additions, and modifications to the plans.
Landlord shall bear the cost of the Work (including the cost of
building permits and sales tax) up to the Improvement Allowances described
above (if any), and Tenant shall bear any costs over such amounts.
III. DELAYS IN PLANNING. The Commencement Date under the Lease
shall be postponed for each day that final Plans are not prepared and approved
by the "Date to Complete Planning" described above, including any revisions
reasonably required by Landlord pursuant to Section V and revisions by Tenant
to reduce Tenant's Cost pursuant to Section IX (collectively called "Delays in
Planning"). However, the Rental Commencement Date shall be postponed only to
the extent that substantial completion of the Work is delayed beyond the
Commencement Date set forth in the Lease Summary of the Lease as a result of
one or more of the following events (collectively called "Landlord Delays")
(a) Landlord takes more than five (5) working days to approve
or disapprove the Plans or revisions thereof after receiving the same (or such
longer time as may be reasonably required in order to obtain any engineering or
HVAC report or due to other special or unusual features of the Work or Plans);
(b) Landlord's Space Planner takes more than five (5) working
days to meet with Xxxxxx after receiving a written request for a meeting, or
takes more than seven (7) working days to prepare or revise the Plans after
meeting with Xxxxxx and receiving all information from Tenant required in order
to do so (provided this provision shall apply only if Tenant uses "Landlord's
Space Planner" as described in Section XIV below to prepare the Plans); or
(c) Landlord takes more than thirty (30) working days to
provide Tenant with cost estimates after receiving Plans sufficiently detailed
for such purposes (provided this provision (c) shall only apply if Landlord
elects to provide cost estimates under Section IX below).
C-1
17
IV. DELAYS IN CONSTRUCTION
A. The Commencement Date under the Lease shall be postponed for each day
that Landlord fails to substantially complete the Work thereby as a result of
strikes, acts of God, shortages of materials or labor, governmental approvals or
requirements, the various causes set forth below, or any other causes beyond
Landlord's reasonable control. The Work shall not be considered complete until
Landlord shall have obtained a temporary or final certificate of occupancy.
B. The Commencement Date, but not the Rental Commencement Date, shall
be postponed as a result of one or more of the following (collectively called
"Tenant Delays"):
(a) Delays in Planning as described above (except for
Landlord Delays):
(b) Tenant's requests for changes to the Work or Change
Orders under Section VIII, or
(c) Tenant's failure to furnish an amount equal to
Landlord's reasonable estimate of Xxxxxx's Cost (if any)
within 10 days, as described in Section IX (which shall
give Landlord the absolute right to postpone the Work
until such amount is furnished to Landlord);
(d) Tenant's requirement of any upgrades, special work or
other non-building standard items, or items not
customarily provided by Landlord to office tenants, to
the extent that the same involve longer lead times,
installation times, delays or difficulties in obtaining
building permits, requirements for any governmental
approval, permit or action beyond the issuance of normal
building permits (as described in Section VI), or other
delays not typically encountered in connection with
Landlord's standard office improvements;
(e) The performance by Tenant or Tenant's agents or
employees of any work at or about the Premises or
Eastside Physicians Center, or
(f) any act or omission of Tenant or Tenant's agents or
employees, or any breach by Tenant of any provision
contained in this Agreement or in the Lease, or any
failure of Tenant to cooperate with Landlord or
otherwise act in good faith in order to cause the Work
to be designed and performed in a timely manner.
V. LANDLORD'S APPROVAL OF PLANS. Landlord shall either approve
any Plans or revisions submitted pursuant to this Agreement or disapprove the
same with suggestions for making the same acceptable within the time required
under Section III. Except as otherwise provided herein, Landlord shall not
unreasonably withhold approval if the Plans provide for a customary office
layout, with finishes and materials generally conforming to building standard
finishes and materials currently being used by Landlord at the Eastside
Physicians Center, are compatible with the Eastside Physicians Center's shell
and core construction, and if no modifications will be required for the
Physician Center's electrical, heating, air-conditioning, ventilation, plumbing,
fire protection, life safety, or other systems or equipment, and will not
require any structural modifications to the Physician Center, whether required
by heavy loads or otherwise Landlord may request that Tenant approve Landlord's
suggested changes in writing (such approval not to be unreasonably withheld).
Xxxxxxxx's approval of the Plans shall not be deemed a warranty as to the
adequacy or legality of the design, and Landlord hereby disclaims any
responsibility or liability for the same. Anything to the contrary
notwithstanding, Landlord may in its absolute discretion elect to disapprove any
proposed Plans which show (i) the gross area of the Premises being more than ten
percent (10%) smaller than the Premises Gross Area, as defined in the Lease
Summary to the Lease; and (ii) any reduction in the gross area of the Premises
from the Premises Gross Area indicated in the Lease Summary where such reduction
results in a space remaining between Tenant's space and any other party wall,
exterior wall or corridor partition which, in the sole opinion of Landlord,
would leave an unusable or unleasable area due to its size, configuration or
location. Furthermore, in the event that the proposed Plans show a gross area of
the Premises greater than the Premises Gross Area as set forth in the Lease
Summary, Landlord may in its absolute discretion elect to disapprove such Plans
if the configuration of the Premises shown on such Plans infringes on any area
of the Eastside Physicians Center reserved for others, being designed for
others, or being constructed for others, or to the extent that such increase
leaves a remaining unleased area which, in the sole opinion of Landlord, would
be unleasable due to its location, size or configuration.
VI. GOVERNMENTAL APPROVAL OF PLANS. Landlord shall apply for any
normal building permits required for the Work which are issued pursuant to a
local building code as a ministerial matter. If the Plans must be revised in
order to obtain such building permits, Landlord shall promptly notify Tenant.
In such case, Tenant shall promptly arrange for the plans to be revised to
satisfy the building permit requirements and shall submit the revised Plans to
Landlord for approval as a Change Order under Section VIII. Landlord shall have
no obligation to apply for any zoning, parking or sign code amendments,
approvals, permits or variances, or any other governmental approval, permit or
action (except normal building permits as described above). If any such other
matters are required, Tenant shall promptly seek to satisfy such requirements
or revise the Plans to eliminate such requirements. Delays in substantially
completing the Work by the Commencement Date as a result of requirements for
building permits or other governmental approvals, permits or actions shall
affect the Commencement Date and the Rental Commencement Date to the extent
provided in Section IV.
- C-2 -
18
VII. CHANGES AFTER PLANS ARE APPROVED. If Tenant shall desire any
changes, alterations, or additions to the final Plans after they have been
approved by Landlord, Tenant shall submit a detailed written request or revised
Plans (the "Change Order") to Landlord for approval. If reasonable and
practicable and generally consistent with the Plans theretofor approved,
Landlord shall not unreasonably withhold approval, but all costs in connection
therewith, including without limitation construction costs, permit fees, and
any additional plans, drawing and engineering reports or other studies or
tests, or revisions of such existing items, shall be paid for by Tenant as a
Tenant's Cost under Section IX.
VIII. UNUSED IMPROVEMENT ALLOWANCE. If all or any portion of any
Improvement Allowance shall not be used, Tenant shall be entitled to the
savings and Tenant shall receive a credit therefor to Base Rental.
IX. TENANT'S COST.
A. Any amounts that Tenant is required to pay under this Agreement
shall be referred to as "Tenant's Costs" herein. Tenant's Cost shall be deemed
Additional Rental under the Lease. Tenant shall deposit the estimated amount of
such Additional Rental with Landlord within 10 days after requested by
Landlord. In connection with submitting any cost analysis to Tenant under this
Section, Landlord may request Xxxxxx's written approval of such analysis.
Tenant shall not unreasonably withhold such approval, and shall approve or
disapprove the same in writing within five (5) days after requested by
Landlord. If Tenant reasonably disapproves any such analysis, Tenant shall meet
with the Space Planner and eliminate or substitute items in order to reduce
Tenant's Cost.
B. Any cost analysis based on a Space Plan or so-called "pricing plan"
will be preliminary in nature to the extent that: (a) Tenant thereafter makes
changes in the Working Drawings or the Work, (b) overtime labor is required in
order to substantially complete the Work by the Work Completion Date, (c)
concealed conditions are encountered on the job site, (d) new legal
requirements become effective following preparation of the estimate, or (e)
there are strikes, acts of God, shortages of materials or labor, or other
causes beyond Landlord's reasonable control.
X. COMPLETION.
A. Landlord shall be deemed to have "substantially completed" the Work
for purposes hereof if Landlord has caused all of the Work to be completed
substantially except for Punchlist Items, and a temporary or final certificate
of occupancy shall have been issued.
B. Landlord reserved the right to substitute comparable or better
materials and items for those shown in the Plans, so long as they do not
materially and adversely affect the appearance or function of the Premises.
XI. WORK PERFORMED BY TENANT. Landlord, at Xxxxxxxx's
discretion, may permit Tenant and Xxxxxx's agents and contractors to enter the
Premises prior to completion of the Work in order to make the Premises ready
for Tenant's use and occupancy. If Landlord permits such entry prior to
completion of the Work, then such permission is conditioned upon Tenant and
Xxxxxx's agents, contractors, workmen, mechanics, suppliers and invitees
working in harmony and not interfering with Landlord and Xxxxxxxx's contractors
in doing the Work or with other tenants or occupants of the Building. If at any
time such entry shall cause or threaten to cause such disharmony or
interference, Landlord shall have the right to withdraw such permission upon
twenty-four (24) hours oral or written notice to Tenant. Tenant agrees that any
such entry onto the Premises shall be deemed to be under all of the terms,
covenants, conditions and provisions of the Lease (including, without
limitation, all insurance requirements), except as to the covenant to pay
Rental thereunder, and further agrees that Landlord shall not be liable in any
way for any injury, loss or damage which may occur to any items of work
constructed by Tenant or to other property of Tenant that may be placed in the
Premises prior to completion of the Work, the same being at Tenant's sole risk.
XII. LIABILITY. The parties acknowledge that Xxxxxxxx is not an
architect or engineer, and that the Work will be designed and performed by
independent architects, engineers and contractors. Accordingly, Landlord does
not guarantee or warrant that the Plans will be free from errors or omissions,
nor that the Work will be free from defects, and Landlord shall have no
liability therefor.
XIII. CERTAIN DEFINITIONS.
A. "Work" herein means the construction of the improvements shown on
the final approved Plans, and any demolition, preparation or other work
required in connection therewith, including without limitation, any work
required to be performed outside the Premises in order to obtain building
permits for the work to be performed within the Premises (if Landlord elects to
perform such work outside the Premises).
B. "Landlord's Space Planner" herein means the space planner (if any)
regularly used by Landlord and with whom Landlord has a written contractual
arrangement for space planning services at the Eastside Physicians Center.
C. "Finish Selections" herein means the type and color of floor and
wall coverings, wall paint and any other finishes.
- C-3 -
19
D "Plans" herein means, collectively, any Space Plan, Working
Drawings, or other plans, drawings or specifications, and Finish Selections
(and in the event of any inconsistency between any of the same, or revisions
thereto, the latest dated item approved by Landlord shall control). The Plans
shall be signed or initialed by Xxxxxx, if requested by Landlord.
E "Space Plan" herein means a preliminary floor plan, generally
showing demising walls, corridor doors, interior partition walls and interior
doors. The term "Space Plan" for purposes of this Agreement shall also refer to
any so-called "pricing plan", i.e. a more detailed Space Plan, drawn to scale,
showing: (1) any special walls, glass partitions or corridor doors, (2) any
restrooms, kitchens, computer rooms, file rooms and other special purpose
rooms, and any sinks or other plumbing facilities, or other special facilities
or equipment, (3) communications system, indicating telephone and computer
outlet locations, and (4) any other details or features reasonably required in
order to obtain preliminary cost estimate as described in Section IX above, or
otherwise reasonably requested by Landlord or Landlord's Space Planner.
F "Working Drawings" herein means fully dimensioned architectural
construction drawings and specifications, and any required engineering drawings
(including mechanical, electrical, plumbing, air conditioning, ventilation and
heating), and shall include any applicable items described above for the Space
plan, and if applicable, (1) electrical outlet locations, circuits and
anticipated usage therefor, (2) reflected ceiling plan, including lighting,
switching, and any special ceiling specifications, (3) duct locations for
heating, ventilating and air conditioning equipment, (4) details of all
millwork, (5) dimensions of all equipment and cabinets to be built in, (6)
furniture plan showing details of space occupancy, (7) keying schedule, (8)
lighting arrangement, (9) location of print machines, equipment in lunchrooms,
concentrated file and library loadings and any other equipment or systems (with
brand names wherever possible) which require special consideration relative to
air conditioning, ventilation, electrical, plumbing, structural, fire
protection, life-fire safety system, or mechanical systems, (10) special
heating, ventilating and air conditioning equipment and requirements, (11)
weight and location of heavy equipment, and anticipated loads for special usage
rooms, (12) demolition plan, (13) partition construction plan, (14) Finish
Selections, (15) cabinet work elevations, and any other details or features
reasonably required in order to obtain a more firm cost estimate as described
in Section IX, above, or otherwise reasonably requested by Landlord or
Landlord's Space Planner.
XIV. INCORPORATION INTO LEASE; DEFAULT. THE PARTIES AGREE THAT THE
PROVISIONS OF THIS AGREEMENT ARE HEREBY INCORPORATED BY THIS REFERENCE INTO THE
LEASE FULLY AS THOUGH SET FORTH THEREIN. In the event of any express
inconsistencies between the Lease and this Agreement, the latter shall govern
and control. Any default by a party hereunder shall constitute a default by
that party under the Lease and said party shall be subject to the remedies and
other provisions applicable thereto under the Lease.
LANDLORD: Eastside Physicians Center, L.P.
By: /s/ [illegible signature]
-----------------------------------------
TENANT: Atlanta Ear, Nose & Throat Associates
By: /s/ [illegible signature]
-----------------------------------------
C-4
20
EXHIBIT "D"
RULES AND REGULATIONS
EASTSIDE PHYSICIANS CENTER
1. The sidewalks, and public portions of the Building, such as
entrances, passages, lobbies, courts, elevators, vestibules, stairways,
corridors or halls, and the street, alleys or way surrounding or in the
vicinity of the Building shall not be obstructed, even temporarily, or
encumbered by the Tenant or used for any purpose other than ingress and egress
to and from the Premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building. No curtains, blinds, shades, louvered openings,
tinted coating, film or screens shall be attached to or hung in, or used in
connection with, any window, glass surface or door of the Premises, without the
prior written consent of Landlord, unless installed by Landlord.
3. No sign, advertisement, decorating, notice or other lettering
or other thing of any kind shall be exhibited, inscribed, painted or affixed by
Tenant on any part of the outside of the Premises or Building or on corridor
walls or windows or other glass surfaces (including without limitation glass
storefronts). Signs on entrance door or doors shall conform to building standard
signs, samples of which will be displayed by Landlord on request. Signs on doors
shall, at Tenant's expense, be inscribed, painted or affixed for each tenant by
sign makers approved by Landlord. In the event of the violation of the
foregoing by Xxxxxx, Landlord may remove same without any liability, and may
charge the expense incurred by such removal to Tenant.
4. The sashes, sash doors, skylights, windows, heating,
ventilating and air conditioning vents and doors that reflect or admit light
and air into the halls, passageways or other public places in the Building
shall not be covered or obstructed by Tenant, nor shall any bottles, parcels,
or other articles be placed on the window xxxxx.
5. No show cases, specimen containers, waste containers, or other
articles shall be put in front of or affixed to any part of the exterior of the
Building, nor placed in the public halls, corridors, or vestibules without the
prior written consent of Landlord.
6. The water closets and wash basins and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall be
borne by Xxxxxx.
7. Tenant shall not in any way deface any part of the Premises or
the Building.
8. No bicycles, vehicles, or animals of any kind shall be brought
into or kept in or about the Premises. No cooking shall be done or permitted by
Tenant on the premises except in conformity to law and then only in the utility
kitchen, if any, as set forth in Tenant's layout, which is to be primarily used
by Tenant's employees for heating beverages and light snacks. Tenant shall not
cause or permit any unusual or objectionable odors to be produced upon or
permeate from the Premises.
9. No space in the Building shall be used for manufacturing,
distribution, or for the storage of merchandise or for the sale of merchandise,
goods, or property of any kind at auction.
10. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the building or
neighboring buildings or premises or those having business with them, whether
by the use of any machinery or equipment, musical instruments, radio, talking
machine, unmusical noise, whistling, singing, or in any other way. Tenant
shall not throw anything out of the doors, windows or skylights or down the
passageways. Tenant shall not cause or permit any unseemly or disturbing
activity or conduct to be visible through any window, opening, doorway, or
other glass surface or any other means of visibility that disturbs or
interferes with (i) tenants or other occupants of the building or of their
licensees or invitees or (ii) neighboring buildings or premises or those having
business with them, including without limitation receptions, parties,
recreation and other activities of a social nature.
11. Neither Tenant, nor any of Tenant's servants, employees,
agents, visitors, or licensees, shall at any time bring or keep upon the
Premises any inflammable, combustible or explosive fluid, or chemical
substance, other than reasonable amounts of cleaning fluids or solvents
required in the normal operation of Tenant's business offices.
D-1
21
12. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanism thereof, without the prior written approval of Landlord
and unless and until a duplicate key is delivered to Landlord. Tenant shall,
upon the termination of its tenancy, restore to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by,
Tenant, and in the event of the loss of any keys so furnished. Tenant shall pay
to Landlord the cost thereof.
13. Tenant shall not overload any floor. Tenant shall obtain Landlord's
consent before bringing any safes, freight, furniture, or bulky articles into
the Building and Landlord can specify to Tenant the location for the placement
of such articles. All removals, or the carrying out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours
which Landlord or its agent may determine from time to time. Landlord reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
14. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
15. Landlord reserves the right to exclude all persons from the
Building between the hours of 6:00 p.m. and 7:00 a.m. and at all hours on
Sundays, legal holidays and after 1:00 p.m. on Saturdays. Landlord shall in no
case be liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. In the case of invasion, mob, riot,
public excitement or other circumstances rendering such action advisable in the
Landlord's opinion, Landlord reserves the right to prevent access to the
Building during the continuance of the same by such action as Landlord may deem
appropriate, including closing doors.
16. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose or for any other activity not appropriate, in
Landlord's sole discretion, to an office building of the quality and stature of
the Building.
17. The requirements of Tenant will be attended to only upon application
at the office of the Building. Building employees shall not perform any work or
do anything outside their regular duties, unless under special instructions
from the office of Landlord.
18. Canvassing, soliciting, and peddling in the Building are prohibited
and tenant shall cooperate to prevent the same.
19. There shall not be used in any space, or in the public halls of any
building, either by Tenant or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards. All deliveries shall be via the elevator designated for
such activities by Landlord.
20. Tenant, in order to obtain maximum effectiveness of the cooling
system, shall lower and/or close blinds or drapes when sun's rays fall directly
on windows of Premises. Tenant shall not remove the standard blinds installed
in the Premises.
21. All paneling, rounds or other wood products not considered
furniture shall be of fire retardant materials. Before installation of any such
materials, certification of the materials' fire retardant characteristics shall
be submitted to Landlord or its agents in a manner satisfactory to Landlord.
22. Tenant shall not install any vending machines in the Building or
Premises without Landlord's consent.
23. Neither Tenant, nor any of Tenant's servants, employees, agents,
visitors, patients, invitees, or licensees, shall at any time light, use or
smoke cigarettes, cigars, pipes, or other tobacco products in or about the
public portion of the Building, including, without limitation, parking areas,
entrances, passages, walkways, restrooms, lobbies, courts, elevators,
vestibules, stairways, corridors and halls. Landlord may take all appropriate
steps to enforce such "no smoking" policy, including the posting of no smoking
signs, demanding that persons who violate the "no smoking" policy cease and
desist from such violation and removing violators from the Building. Landlord
shall in no case be liable for damages in enforcing the "no smoking" policy.
Landlord agrees to make reasonable efforts to enforce the "no smoking" policy;
however, Landlord shall not be liable, and Tenant shall not be relieved from its
obligations hereunder, for any violation of the "no smoking" policy established
in this rule, whether caused by another tenant or tenants of Landlord or by
other persons.
D-2
22
EXHIBIT "E"
BUILDING MOVING POLICY
The following rules pertain to (i) moving Tenant's furniture, equipment
and supplies into or out of the Building, and (ii) the delivery of
substantial amounts of equipment, furniture or supplies to existing
tenants in the Building. Any movers that do not adhere to the following
rules will not be allowed to enter the Building or will be required to
discontinue the move.
1. No move into or out of the Building shall take place during normal
business hours of the Building. Moves must be scheduled after 5:30 p.m.
on weekdays or during weekends and holidays.
2. Building management must be notified at least ten (10) days prior to
your proposed moving date in order to coordinate dates and the details
of the move. A representative of the moving company must contact the
management office at least five (5) days prior to the proposed moving
date. The service elevator, which must be used for your move, will be
available only if the management office has been timely notified.
3. All moving company employees should be in uniform or wear some form of
identification. All moving company employees must be bonded.
4. There will be no smoking inside of the building by any employee of the
moving company.
5. Prior to the move, the moving company must submit a Certificate of
Insurance naming Landlord as an additional insured. The moving company
must carry insurance with a least the following coverage.
a. Worker's compensation insurance in the amount of $100,000.
b. Comprehensive General Liability insurance shall include coverage
for hazards on premises-operation, elevators, products and
completed operations and also personal injury coverage and
contractual liability coverage designating the assumption of
liability under performance of the act of moving. Such insurance
shall be in limits no less than $500,000 per person bodily; and
$500,000 per occurrence for property damage. Property damage
insurance shall be in broad form, including completed
operations.
c. An umbrella policy with a limit of $1,000,000 per occurrence.
Each moving company transporting supplies, furniture, and/or
equipment through the Building shall secure and present to the
building manager a certificate reflecting these coverages at
least twenty-four (24) hours before the move takes place. Please
make sure your moving company meets the above requirements so
they will be permitted to move your practice to the building.
6. The route to be followed in the Building during the move must be
approved by Landlord. The moving company must provide and install
adequate protective coverings on all vulnerable corners, walls, door
facings, elevator cabs and other areas along the route to be followed
during the move. These areas will be inspected for damage after the
move.
7. Clean masonite sections must be used as runners on all finished floor
areas here heavy furniture or equipment is being moved with wheel or
skid type dollies. The masonite must be at least one-fourth inch thick.
All sections of masonite should be taped to prevent sliding.
8. Do not stick duct tape onto the floors, walls, door jambs, or doors.
9. All vendor and moving company boxes and cartons are to be removed from
the premises by the vendor or moving company. They are not to be
disposed of in the dumpster.
10. It is the Tenant's responsibility to notify Landlord of items to be
moved which are unusually large or heavy (in excess of 3,500 pounds) or
which may require review by Landlord. Dimensions and weight may prohibit
the safe transport and placement within acceptable structural
guidelines. Any large items that cannot be placed in the service
elevator will require special hoisting arrangements which will be made
through the Landlord. Xxxxxx's moving company should include in the bid
price to the Tenant any additional charges required for extra services
which may need to be provided by the moving company to hoist large
items.
11. Access control personnel will be notified as to the move-in schedule and
will monitor the progress of the move. Any changes in the move-in
schedule must be reported to Landlord or Landlord's representative
immediately. An emergency phone number will be required by the access
control personnel for the moving company's supervisor and for the
Tenant's representative responsible for coordinating the move.
12. When ordering equipment, furniture, supplies, etc. at any time before or
after your move, please specify "Inside Delivery" to your suite, because
Landlord is not responsible for deliveries to your suite.
23
EXHIBIT "F"
ADDITIONAL AMENDMENTS LEASE
1. Xxxxxxxx agrees that tenant shall have the first right of refusal on
any adjoining space. Tenant will notify landlord in writing if there is a desire
to add the available space to the current lease. This option expires 1/3/95.
2. Landlord acknowledges that tenant will install an x-ray room within
their suite.
3. Landlord acknowledges that tenant may use improvement allowances
for fixtures and equipment including but not limited to x-ray equipment,
cabinets, and audiological equipment.
4. Xxxxxxxx agrees to notify tenant in writing ninety (90) days prior
to the expiration of the lease of the renewal options that are available.
LANDLORD:
Eastside Physicians Center, L.P.
a Georgia limited partnership
By: Xxxxxxx & Xxxx, Inc.
General Partner
By: /s/ [Illegible] (SEAL)
Title:
--------------------------
TENANT:
Atlanta Ear, Nose & Throat
Associates, P.C.
By: /s/ [Illegible]
--------------------------------
F-1
