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EXHIBIT 10.11
LEASE AGREEMENT
FOR
DULUTH PROFESSIONAL CENTER, L.P.
LESSOR: DULUTH PROFESSIONAL CENTER, L.P.
LESSEE: XXXXXXX X. XXXXXXXX, M.D.
SUITE NO.: 240 SQ.FT. 1614
TERM: Five (5) years
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STATE OF GEORGIA )
)
COUNTY OF GWINNETT )
LEASE AGREEMENT
THIS LEASE is made and entered into this ___ day of _________, 19__,
by and between DULUTH PROFESSIONAL CENTER, L.P., a Georgia limited
partnership, with its business office at Xxxxx 000, 000 Xxxxxxx Xxxxx Xxxx,
Xxxxxxx, Xxxxxxx, 00000, first party (hereinafter called "Landlord"); and
XXXXXXX X. XXXXXXXX, M.D. second party (hereinafter
called "Tenant").
W I T N E S S E T H
WHEREAS, Landlord is the owner of a certain real property located in
Land Xxx 000 xx xxx 0xx Xxxxxxxx xx Xxxxxxxx Xxxxxx, Xxxxxxx, as is more
particularly described in Exhibit "A" attached hereto and made a part hereof by
reference (hereinafter referred to as the "Property");
WHEREAS, Landlord intends to construct a two-story medical office
building (the "Building") on the Property; and
WHEREAS, Tenant desires to lease space in the Building, and Landlord
is willing to lease space in the Building to Tenant, upon the terms, conditions
and provisions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises hereof the mutual
benefits to be derived hereby, the payment by Tenant of the Rent reserved
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
PREMISES
1. Landlord does hereby rent and lease to Tenant and Tenant does
hereby rent and lease from Landlord for the practice of otolaryngology following
described space (hereinafter called the Premises"):
Approximately 2,500 square feet of usable space located on the ____
floor of the Building, said Premises to be located approximately as
shown on the drawing attached hereto as Exhibit "A-1" and made a
part hereof by
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reference. The Premises shall be prepared for Tenant's occupancy in
the manner and subject to the provisions of Exhibit "B" attached
hereto and made a part of hereof.
LEASE TERM
2. Tenant shall have and hold the Premises for a term commencing on
the date (the "Commencement Date") which is the earlier of (i) ten (10) days
after the date on which Landlord notifies Tenant that the Premises are
substantially complete or (ii) the date Tenant first occupies the Premises for
business, and shall terminate at noon on the last day (the "Expiration Date") of
the sixtieth (60) full calendar month following the Commencement Date, unless
sooner terminated or extended as hereinafter provided. Promptly following the
Commencement Date, Landlord and Tenant shall enter into a letter agreement in
the form attached hereto as Exhibit "C", specifying the Commencement Date, the
Expiration Date, the exact amount of space contained within the Premises and the
exact amount of the monthly Base Rent (as hereinafter defined) payable hereunder
from the Commencement Date through the first Lease Year, (as hereinafter
defined). The Term "Lease Year", as used herein, shall mean each and every
twelve (12) month period during the term of this Lease, with the first such
twelve (12) month period commencing on the Commencement Date, if the
Commencement Date is on the first day of calendar month; and, if not, the first
such twelve (12) month period shall commence on the first day of the calendar
month immediately following the Commencement Date.
RENT
3. Tenant shall pay to Landlord, at Suite, 530, 000 Xxxxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxx, 00000, or at such other place as Landlord shall
designate in writing to Tenant, an annual rental, initially in an amount equal
to $21.50 times the number of square feet of usable area contained within the
Premises, to the nearest square foot, payable in equal monthly installments
(hereinafter referred to as "Base Rent"), due on the first day of each calendar
month, in advance, in legal tender of the United States of America, without
abatement, demand, deduction or offset whatsoever, except as may be expressly
provided in this Lease. One full monthly installment of Base Rent shall be due
and payable on the date of execution of this Lease by Tenant for the first
month's Base Rent and a like monthly installment of Base Rent shall be due and
payable on or before the first day of the
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calendar month following the Commencement Date during the term hereof; provided,
that if the Commencement Date should be a date other than the first day of a
calendar month, the monthly Base Rent installment paid on the date of execution
of this Lease by Tenant shall be prorated to the end of that calendar month, and
the excess shall be applied as a credit against the next monthly Base Rent
installment. Tenant shall pay, as additional rent hereunder, all other sums due
from Tenant to Landlord under this Lease (hereinafter referred to as "Additional
Rent") (the term "Rent", as used herein, means all Base Rent and Additional Rent
payable hereunder from Tenant to Landlord).
BASE RENT ADJUSTMENT
4. Landlord and Tenant agree that the Base Rent set forth in
Paragraph 3 above shall be increased annually on the first day of each Lease
Year by an amount equal to three (3%) percent of the Base Rent payable hereunder
for the previous Lease Year.
LATE CHARGE
5. Other remedies from non-payment of Rent notwithstanding, if the
monthly Base Rent is not received by Landlord on or before the tenth (10th) day
of the month for which the Base Rent is due, or if any other payment due Lessor
by Tenant is not received by Landlord on or before the tenth (10th) day of the
month next following the month in which such payment is due as herein provided
or in which Tenant was invoiced, a late charge of five percent (5%) of such past
due amount for each month such amount is pastdue shall be due and payable as
Additional Rent in addition to such amounts owned under this Lease.
PARTIAL PAYMENT
6. No payment by Tenant or acceptance by Landlord of an amount less
than the Rent herein stipulated shall be deemed a waiver of any other Rent due.
No partial payment or endorsement on any check or any letter accompanying such
payment of Rent shall be deemed an accord and satisfaction, but Landlord may
accept such payment without prejudice to Landlord's right to collect the balance
of any Rent due under the terms of this Lease or any late charge assessed
against Tenant hereunder.
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CONSTRUCTION OF THIS AGREEMENT
7. No failure of Landlord to exercise any power given Landlord
hereunder, or to insist upon strict compliance by Tenant of his obligations
hereunder, and no custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. Time is of the essence of this Agreement.
USE OF PREMISES
8. Tenant shall use and occupy the Premises only as an office for
professional services associated with Tenant's practice of medicine or
dentistry, as aforesaid, and for no other purpose whatsoever, and such use shall
be performed in strict compliance with the Code of Ethics of such profession.
The Premises shall not be used for any unlawful purpose, nor shall Tenant cause,
maintain or allow any nuisance in the Premises or the Building nor use or allow
the use of the Premises for any purpose in violation of zoning requirements and
conditions applicable thereto or of any valid regulation of any governmental
body, nor in any manner to create any trespass or to vitiate the insurance or
increase the rate of insurance on the Premises or the Building. If Tenant, or
any physician practicing with Tenant, loses his license or is convicted of a
felonious criminal offense, Landlord shall have the right, at Landlord's
election, to terminate this Lease.
DEFINITIONS
9. "Landlord," as used in this Lease, shall include first party, its
representatives, assigns and successors in title to the Premises. "Tenant" shall
include second party, his heirs and representatives, and, if this Lease shall be
validly assigned or sublet, shall also include Tenant's assignees or sublessees,
as to the Premises, or portion thereof, covered by such assignment or sublease.
"Landlord" and "Tenant" include male and female, singular and plural,
corporation (and if a corporation, its officers, employees, agents or
attorneys), partnership or individual, as may fit the particular parties.
REPAIRS BY LANDLORD
10. Tenant, by taking possession of the Premises,
shall accept and shall be held to have accepted the Premises as
suitable for the use intended by this Lease. Landlord shall not
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be required, after possession of the Premises has been delivered to Tenant, to
make any repairs or improvement to the Premises, except, on written notice from
Tenant, repairs necessary for safety and tenantability, and customary office
building maintenance. Landlord shall be responsible for repair of exterior
walls, common areas and structural and mechanical repairs, provided such repairs
are not occasioned by Tenant, Tenant's invitees or anyone in the employ or
control of Tenant.
REPAIRS BY TENANT
11. Tenant shall, at its own cost and expense, maintain the Premises
in a neat and clean, first class condition, including all necessary repairs and
replacements. Tenant shall further, at his own cost and expense, repair or
restore any damage or injury to all or any part of the Building caused by Tenant
or Tenant's agents, employees, invitees, licensees, visitors or contractors,
including but not limited to any repairs or replacements necessitated by (i) the
construction or installation of improvements to the Premises by or on behalf of
Tenant, (ii) the installation, use or operation of Tenant's property, or (iii)
the moving of any property into or out of the Premises; provided, however, if
Tenant fails to make such repairs or replacements promptly, Landlord may, at its
option, make the repairs and replacements and the costs of such repairs or
replacements shall be charged to Tenant as Additional Rent and shall become due
and payable by Tenant with the monthly installment of Base Rent next due
hereunder.
ALTERATIONS AND IMPROVEMENTS
12. Tenant shall not make or allow to be made any alterations,
physical additions or improvements in or to the Premises without first obtaining
in writing Landlord's written consent for such alterations or additions, which
shall be at the sole discretion of Landlord. Any alterations, physical additions
or improvements shall at once become the property of Landlord; provided,
however, Landlord, at its option, may require Tenant to remove any physical
additions or improvements in or to restore the Premises to the condition
existing at the time Tenant took possession. All costs of alterations, additions
or improvements shall be borne by Tenant. Landlord shall, under no circumstances
during the term of this Lease, or any extensions or renewals thereof, be
required to carry any insurance on or to indemnify any party in case of any
damage or loss to said alterations, additions or improvements or to improvements
made by Landlord for
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the benefit of Tenant; and, provided further, that under no circumstances shall
Landlord be required to pay, during the term of this Lease and any extensions or
renewals thereof, any ad valorem or property tax on such alterations, additions
or improvements, Tenant hereby covenanting to pay all such taxes when they
become due. In the event any alterations, additions, improvements or repairs are
to be performed by contractors or workmen other than Landlord's contractors or
workmen, any such contractors or workmen must first be approved by Landlord.
Landlord agrees to assign to Tenant any rights it may have against the
contractor of the Premises with respect to any work performed by said contractor
in connection with improvements made by Landlord at the request of Tenant.
OPERATING EXPENSES
13. (a) Tenant agrees to reimburse Landlord, as Additional Rent
hereunder, and under any extensions or renewals of this Lease, for Tenant's
share of the annual Operating Expenses of the Building and related common areas,
including the parking areas, in excess of the amount of $5.50 per average
occupied usable square foot per year within the Building (hereinafter called the
"Base Rate"). The average occupied usable square feet within the Building shall
be determined for each calendar year by (i) adding the total usable square feet
occupied within the Building as of the first day of each calendar month of such
calendar year for each month of such calendar year; and (ii) dividing the sum
derived in (i) above by twelve (12). Tenant's share of the excess Operating
Expenses shall be determined by multiplying such excess amount per average
occupied usable square foot within the Building by the number of usable square
feet contained within the Premises (hereinafter called "Tenant's Share");
PROVIDED, HOWEVER, if Tenant has not occupied the Premises for a full calendar
year during the year in which the term of this Lease commences, Tenant's Share
shall be prorated based on the number of months and fractions thereof in which
Tenant has occupied the Premises during such year. Operating Expenses for the
first year in which any portion of the Building is occupied, if less than a full
calendar year, shall be determined by (i) dividing the total Operating Expenses
for such year by the number of months and fractions thereof during such first
year in which any portion of the Building is occupied; then (ii) dividing the
quotient derived in (i) above by the average amount of net usable square feet
occupied in the Building during such fractional year; and then (iii) multiplying
the quotient derived in (ii) above by twelve (12) months, as though the Building
were occupied and operating for a full calendar year.
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(b) Operating Expenses shall be all those expenses of
operating, servicing, managing and maintaining the Building and common areas,
including the parking facilities on the Property, in a manner deemed by Landlord
reasonable and appropriate and in the best interest of the tenants of the
Building. Operating Expenses include, without limitation, the following:
(1) All taxes and assessments, which shall include real and
personal property ad valorem taxes, and any and all costs and
expenses incurred by Landlord in seeking a reduction of any such
taxes and assessments. However, Tenant shall not be obligated for
taxes on the net income from the operation of the Building and
parking facilities, unless there is imposed in the future a tax on
rental income on the Building in lieu of the real property ad
valorem taxes, in which event such tax shall be deemed an Operating
Expense.
(2) Insurance, including, without limitation, liability and
comprehensive coverage.
(3) Utility charges, including, without limitation, water,
power, heating, lighting, ventilation, sanitary sewer and air
conditioning, but not including those utility charges actually paid
by Tenant.
(4) Janitorial and maintenance expenses, including:
(i) The wages, salaries and customary benefits of all
employees engaged in the operation and maintenance of the
Building and common areas, including the parking facilities;
any such service shall be at a competitive rate as established
in Metropolitan Atlanta, including the employer's social
security taxes and any other taxes which may be levied on such
wages and salaries.
(ii) Janitorial services and janitorial supplies and other
materials used in the operation and maintenance of the
Building.
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(iii) The cost of maintenance and service agreements on
equipment, window cleaning, grounds maintenance, pest control,
security, trash and snow removal, and other similar services
or agreements.
(5) Management expense, including, without limitation,
management fees and expenses paid pursuant to a negotiated
management contract, the terms and conditions of which shall be
customary and competitive in Metropolitan Atlanta.
(6) The costs, including interest, amortized over its useful
life, of any capital improvement made to the Building or common
areas, including the parking facilities, by or on behalf of Landlord
after the date of this Lease which is required under any
governmental law or regulation that was not applicable to the
Building or common areas, including the parking facilities, at the
time of its construction, and of the acquisition and installation of
any device or equipment designed to improve the operating efficiency
of any system within the Building or common areas, including the
parking facilities.
(7) All services, supplies, repairs, replacements or other
expenses directly and reasonably associated with servicing,
maintaining, managing and operating the Building and common areas
(including the parking facilities), including, but not limited to
lobby and other common use areas and vehicular and pedestrian
traffic areas.
(c) As soon as practicable after December 31 of each
year during the term of this Lease, Landlord shall furnish to Tenant
an itemized statement of such Operating Expenses per square foot of
average occupied usable area contained within the Building for the
calendar year then ended. Tenant may have access to Landlord's
records in order to audit or otherwise verify such expenses.
Tenant's Share of the net Operating Expenses over the Base Rate, if
any, shall be paid as follows:
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(i) For the first calendar year or portion thereof of the
term of this Lease, Tenant's share of any excess Operating Expenses
shall be payable within thirty (30) days after Tenant receives the
annual statement, and shall be prorated based on the number of
calendar days Tenant has occupied, or is obligated to occupy, the
Premises during such first calendar year if less than a full
calendar year.
(ii) Commencing with the first month immediately following
each calendar year during the term hereof, Tenant shall pay to
Landlord, together with his monthly Base Rent as provided in
Paragraph 3 hereinabove, as Additional Rent hereunder, an amount
equal to one-twelfth (1/12th) of Tenant's Share of any excess
Operating Expenses determined for the previous calendar year. In the
event at the end of any calendar year, Tenant has paid to Landlord
an amount in excess of Tenant's Share of any actual excess Operating
Expenses for such calendar year, Landlord shall reimburse to Tenant
any such excess amount (or shall apply any such excess amount to any
amount then owing to Landlord hereunder, and if none, to the next
due installment or installments of Rent due hereunder, at the option
of Landlord); and in the event at the end of any calendar year
Tenant has paid to Landlord less than Tenant's Share of any actual
excess Operating Expenses for such calendar year, Tenant shall pay
to Landlord any such deficiency within thirty (30) days after Tenant
receives the annual statement.
(iii) For the calendar year in which this Lease terminates and
is not extended or renewed, the provisions of this paragraph shall
apply, but Tenant's Share for such year shall be subject to a
prorata adjustment based upon the number of calendar days during
said calendar year which Tenant occupies the Premises and shall be
computed by using the Operating Expenses for the year ending on
December 31 immediately preceding the termination of Tenant's
occupancy of the Premises as the Operating Expenses for such last
calendar year. Tenant's Share for the final calendar year, if not
fully paid with Tenant's monthly Base Rent as provided in (ii)
above, shall be paid to Landlord by the latter of sixty (60) days
prior to the expiration of the term of this Lease, or any extension
or renewal
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thereof, or thirty (30) days after receipt of the applicable expense
statement.
LANDLORD'S FAILURE TO GIVE POSSESSION
14. Landlord shall not be liable for damages to Tenant for failure
to deliver possession of the Premises to Tenant at the commencement of the term
if such failure is due to no fault of Landlord, to the failure of any
construction or remodeling of the Premises by Tenant to be completed or to the
failure of any previous tenant to vacate the Premises. Landlord will use its
best efforts to give possession to the Tenant at the beginning of the Tenant's
term. If failure to do so is caused by the act of any previous tenant holding
over, Landlord agrees to transfer to Tenant the right to prosecute in his own
name any cause of action which Landlord may have against such tenant holding
over, Tenant to hold for himself any recovery in such action, except for any
amounts due Landlord as Rent hereunder.
ACCEPTANCE AND WAIVER
15. Landlord shall not be liable to the Tenant, his agents,
employees, guests or invitees (and, if Tenant is a corporation, its officers,
agents, employees, guests or invitees) for any damage caused to any of them due
to the Building or any part or appurtenances thereof being improperly
constructed or being or becoming out of repair, or arising from the leaking of
gas, water, sewer or steam pipes, or from electricity, but Tenant, by moving
into the Premises and taking possession thereof, shall accept, and shall be held
to have accepted the Premises as suitable for the purposes for which the same
are leased, and shall accept and shall be held to have accepted the Building and
every appurtenance thereof, and Tenant by said act waives any and all defects
therein; provided, however, that this paragraph shall not apply to any damages
or injury caused by or resulting from the negligence of Landlord.
SIGNS AND VENDING MACHINES
16. Tenant shall not paint or place signs, placards, or other
advertisement of any character upon the windows or inside walls of the Premises
except with the consent of Landlord, and Tenant shall place no signs upon the
outside walls, common areas or the roof of the Premises. Tenant shall not place
or maintain any coin operated vending machines within the Premises or the
Building without the written consent of Landlord; such
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consent shall not preclude Landlord from charging Tenant for utility costs
therefor under Paragraph 21 (b) hereof.
CARDING
17. Landlord may card the Premises "For Rent" or with any other
appropriate sign at any time within one hundred eighty (180) days prior to the
expiration, cancellation or termination of this Lease for any reason and during
such one hundred eighty (180) day period may exhibit the Premises to prospective
tenants.
REMOVAL OF FIXTURES
18. If not in default hereunder, Tenant may, prior to the expiration
of the term of this Lease, or any extension thereof, remove any fixtures and
equipment which he has placed in the Premises which can be removed without
significant damage to the Premises, provided Tenant repairs all damages to the
Premises caused by such removal.
ENTERING PREMISES
19. Landlord may enter the Premises at reasonable hours provided
that Landlord's entry shall not unreasonably interrupt Tenant's business
operations and that prior notice is given when case permits (and, if in the
opinion of Landlord any emergency exists, at any time and without notice): (a)
to make repairs, if any, which Landlord under the terms hereof must make to the
Premises, repairs to adjacent premises, or repairs to the Building; (b) to make
repairs to the Premises, adjacent premises, or the Building of which Tenant is
obligated to make and has failed to make; (c) to inspect the Premises to see
that Tenant is complying with all of the terms and conditions hereof and with
the rules and regulations hereof; (d) to remove from the Premises any articles
or signs kept or exhibited therein in violation of the terms hereof; and (e) to
exercise any other right or perform any other obligation that Landlord has under
this Lease. Landlord shall be allowed to take all material into and upon the
Premises that may be required to make any repairs, improvements and additions,
or any alterations, without in any way being deemed or held guilty of trespass
or any eviction of tenant. The Rent reserved herein shall in no wise xxxxx while
said repairs, alterations or additions are being made and Tenant shall not be
entitled to maintain a set-off or counterclaim for damages against Landlord by
reason of loss from interruption to the business of Tenant because of the
prosecution of any such work.
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All such repairs, decorations, additions and improvements shall be done during
ordinary business hours, or, if any such work is at the request of Tenant to be
done during any other hours, the Tenant shall pay all overtime and other extra
costs as additional Rent hereunder.
PLUMBING STOPPAGE
20. Tenant shall be responsible for stopped-up drains where such
stoppage is caused by the introduction of foreign objects not intended for
disposal in such drains; and, if Landlord shall repair such drains, Tenant shall
reimburse Landlord, as Additional Rent, for the cost of such repairs, together
with the cost of any repairs or damage to the Premises or the Building and the
property of other tenants which results from such stoppage.
SERVICES OF LANDLORD
21. (a) The normal business hours of the Building shall be from 8:00
A.M. to 6:00 P.M. on Monday through Friday, and 8:00 A.M. to 1:00 P.M. on
Saturday, exclusive of national holidays. Landlord shall furnish the following
services during the normal hours of operation of the Building except as noted:
(i) Elevator service for passenger and delivery needs.
(ii) Heat and air conditioning at a temperature of approximately 75
degrees Fahrenheit during summer operations and at a
temperature of approximately 70 degrees Fahrenheit during
winter operations, subject to governmental regulations.
(iii) Hot and cold running water for all restrooms and
lavatories.
(iv) Soap, paper towels, and toilet tissue for public
restrooms.
(v) Janitorial service, which includes sanitizing, dusting,
cleaning, mopping, vacuuming and removal of trash not
requiring special handling, Monday through Friday.
(vi) Custodial, electrical and mechanical maintenance
services are provided Monday through Friday.
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(vii) Electric power, for small desk top types of machines, or hand
held devices, such as type writers, adding machines and
recording machines.
(viii) Electric lighting, at a level of at least 80 foot candles at
desk height except in corridor or storage areas, and including
the replacement of lamps and ballasts as needed.
(ix) Repairs and maintenance, for maintaining in good order at all
times, the exterior walls, windows, doors and roof of the
Building; public corridors, stairs, elevators, storage rooms
and restrooms; the air conditioning, electric and plumbing
systems of the Building; and the walks paving and landscaping
surrounding the Building.
(x) General management, including supervision, inspections, record
keeping, accounting, leasing and related management functions.
(b) The services provided in subparagraph (a) herein, and the amount
of Rent prescribed herein are predicated on and are in anticipation of certain
usage of the Premises by Tenant as follows:
(i) Air conditioning design is based on sustained outside
temperatures being no higher than 92 degrees Fahrenheit and no
lower than 22 degrees Fahrenheit with sustained occupancy of
the Premises by no more than one person per 00 xxxxxx xxxx xx
xxxxx xxxx and heat generated by electrical lighting and
fixtures not to exceed 4.0 xxxxx per square foot.
(ii) For hours other than normal business hours, heating of the
building shall be held to a minimum temperature of
approximately 60 degrees Fahrenheit and cooling of the
Building shall be held to a maximum temperature of
approximately 80 degrees Fahrenheit.
(iii) Electrical power usage and consumption is based on lighting
of the Premises during normal business hours at a level of at
least
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80 foot candles at desk height, and power for small desk
top type machines and hand held devices using 100 volt,
20 amp circuits. Such heavier use items as electric
heaters, bookkeeping machines, data processing and
duplicating equipment, stoves, refrigerators, X-ray
machines, compressed air, and other heavy usage medical
equipment and the like shall not be used or installed
unless specified elsewhere herein, or by separate
written consent of Landlord.
(iv) If Tenant uses services in an amount or for a period in
excess of that provided for herein, then Landlord
reserves the right to charge Tenant as Additional Rent
hereunder a reasonable sum as reimbursement for the
direct cost of such added services. In the event of
disagreement as to the reasonableness of such charge,
the opinion of the appropriate local utility company or
an independent professional engineering firm shall
prevail.
(c) Landlord shall not be liable for any damages directly or
indirectly resulting from the installation, use or interruption of uses of any
equipment in connection with the furnishing of services referred to herein, and
particularly any interruption in services by any cause beyond the immediate
control of the Landlord; but Landlord shall exercise due care in furnishing
adequate and uninterrupted services.
X-RAY
22. Tenant shall not install X-ray machines in the Premises without
Landlord's approval, which approval shall not be unreasonably withheld. Tenant
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. All X-ray equipment owned or operated by Tenant must be installed and
protected in a manner satisfactory to Landlord and in compliance with all
governmental regulations.
COMPRESSED AIR
23. If Tenant is engaged in the dental profession, Tenant shall be
responsible for furnishing compressed air and
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shall install all compressed air units in a manner satisfactory to Landlord.
GENERAL LIABILITY OF TENANT
24. Tenant shall indemnify and save harmless Landlord against all
claims for damages to persons or property by reason of the use or occupancy of
the Premises, and all expenses incurred by Landlord because of Tenant's use and
occupancy, including attorney's fees and court costs. Tenant shall be liable for
and shall hold Landlord harmless in connection with damage or injury to
Landlord, the Premises and the property and persons of Landlord's other tenants,
or any one else, if due to neglect of Tenant, or of any one in his control or
employ.
INSURANCE AND WAIVER OF SUBROGATION
25. (a) Tenant shall keep in force at Tenant's expense as long as
this Lease remains in effect and during such other times as Tenant occupies the
Premises or any part thereof, a policy or policies of comprehensive general
public liability insurance, with the premiums thereon fully paid on or before
the due dates, issued by and binding upon a solvent insurance company authorized
to transact business in Georgia, for Tenant's own protection covering the
Premises and Tenant's use thereof. Such insurance shall afford minimum
protection (which may be effected by primary and/or excess coverage) of not less
than $2,000,000.00 for bodily injury or death in any one occurrence and of not
less than $500,000.00 for property damage in any one occurrence. Tenant shall
also keep in force as set forth above, fire, extended coverage and water damage
insurance of Tenant's personal property, including, but not confined to
inventory, trade fixtures, floor coverings, furniture and all other property of
Tenant whether removable or not at termination of this Lease, including
leasehold betterments and improvements; such insurance on leasehold betterments
and improvements shall be in amounts sufficient to cover the full replacement
cost of any repair or reconstruction from any such hazard during the entire term
of this Lease, such insurance naming the Landlord as an additional named insured
as its interest may appear.
(b) Landlord shall keep in force public liability, fire, extended
coverage and water damage insurance insuring Landlord's interest in the Building
and the Premises.
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(c) Tenant shall not do or suffer to be done, or keep or suffer to
be kept, anything in, upon or about the Premises which will contravene
Landlord's policies insuring against loss or damage by fire or other hazards,
including, but not limited to, public liability, or which will prevent Landlord
from securing such policies in companies acceptable to Landlord. If anything is
done, permitted to be done or suffered to be done by Tenant or kept in, upon and
about the Premises or Building which shall cause the rate of fire or other
insurance on the Premises or Building in companies acceptable to Landlord to be
increased beyond the minimum rate from time to time applicable to the Premises
or the Building for the permitted use or permitted uses made thereof, Tenant
shall pay, as Additional Rent hereunder, the amount of any such increase
promptly upon demand by Landlord and shall cease such action until such payment
is made.
(d) Tenant waives any rights of action against Landlord for loss or
damage to its improvements, fixtures and personal property in the Premises,
except damage caused by gross negligence or willful misconduct of Landlord, its
agents or employees.
(e) Anything in this Lease to the contrary notwithstanding, Landlord
and Tenant each hereby waives any and all rights of recovery, claim, action or
cause of action, against the other, its agents, servants, partners,
shareholders, officers or employees, for any loss or damage that may occur to
the Premises, the Building and common areas, or any improvements thereto or
thereon, or any personal property of such party therein or thereon, by reason of
fire, the elements or any other cause which is insured against under the terms
of the standard fire and extended coverage insurance policies referred to in
subparagraphs (a) and (b) above, regardless of cause or origin, including the
negligence of the other party hereto, its agents, officers, partners,
shareholders, servants or employees, and covenants that no insurer shall hold
any right of subrogation against such other party.
GOVERNMENTAL REQUIREMENTS
26. Tenant shall, at its own expense, promptly comply with all
requirements of any legally constituted governmental or public authority made
necessary by reason of Tenant's occupancy of the Premises.
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ABANDONMENT OF PREMISES
27. Tenant agrees not to abandon or vacate the Premises during the
term of the Lease and to use said Premises for the purpose herein leased until
the expiration hereof.
ASSIGNMENT AND SUBLETTING
28. Tenant may not, without the prior written consent of Landlord
endorsed hereon, which consent may be arbitrarily withheld, assign this Lease or
any interest hereunder, or sublet the Premises or any part thereof, or permit
the use of the Premises by any party other than Tenant. In the event that Tenant
is a corporation or some other entity other than an individual, any sale of a
majority or controlling interest in Tenant shall be considered an assignment for
purposes of this paragraph. Consent to one assignment or sublease shall not
destroy or waive this provision, and all later assignments and sub-leases shall
likewise be made only upon the prior written consent of Landlord. Subtenants or
Assignees shall become liable to Landlord for all obligations of Tenant
hereunder, without relieving Tenant's liability hereunder.
DEFAULT
29. The occurrence of any one or more of the following shall
constitute an Event of Default hereunder:
(i) If Tenant shall default in the payment of Rent herein
reserved when due; or
(ii) If Tenant shall be in default in performing any of the terms
or provisions of this Lease other than the provisions requiring the payment of
Rent, and fails to cure such default within fifteen (15) days after the date of
receipt of written notice of such default from Landlord; or
(iii) If Tenant is adjudicated a bankrupt; or if a permanent
receiver is appointed for Tenant's property and such receiver is not removed
within sixty (60) days after written notice from Landlord to Tenant to obtain
such removal; or if, whether voluntarily or involuntarily, Tenant takes
advantage of any debtor relief proceedings under any present or future law,
whereby the Rent or any part thereof, is, or is proposed to be, reduced or
payment thereof deferred; or if Tenant's effects should be levied upon or
attached under process against Tenant,
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not satisfied or dissolved within thirty (30) days after written notice from
Landlord to Tenant to obtain satisfaction thereof; or
(iv) The premises are deserted, vacated or not used as regularly
or consistently as would normally be expected for similar premises put to
medical office use, even though the Tenant continues to pay the stipulated Rent.
Any notice provided in this paragraph may be given by Landlord, Landlord's
Attorney or any Agent of Landlord.
LANDLORD'S REMEDIES
30. (a) Upon the occurrence of an Event of Default as defined in
Paragraph 29 above, 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 or allowed by law or in equity or by the provisions of
this Lease:
(i) Landlord, with or without terminating this Lease, may
immediately, or at any time thereafter, re-enter the Premises and 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 the Rules and Regulations now or hereafter
adopted or of any notice given tenant by Landlord pursuant to the terms of this
Lease, and tenant shall fully reimburse and compensate Landlord upon demand.
(ii) Landlord, with or without terminating this Lease, may
immediately, or at any time thereafter, demand in writing that Tenant vacate the
Premises, whereupon Tenant shall at once vacate the Premises and remove all of
Tenant's effects therefrom, within ten (10) days of receipt by Tenant of such
notice, and whereupon Landlord shall have the right to re-enter and repossess
itself thereof, and remove all persons and effects therefrom, using such force
as may be necessary, without being guilty of trespass, forcible entry, detainer
or other tort. Any such demand, re-entry and repossession of the Premises by
Landlord shall not of itself constitute an acceptance by Landlord of a surrender
of this Lease or of the Premises by Tenant and shall not of itself constitute a
termination of this Lease by Landlord.
(iii) Landlord, with out without terminating this Lease, may
immediately, or at any time thereafter, re-enter and re-let the Premises, or any
portion thereof, at such rental and upon such other terms and conditions as
Landlord in its sole
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discretion may deem advisable, and Landlord may clean the Premises and 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 cleaning, alterations or
repairs to the Premises, attorney's fees, leasing inducements and brokerage
commissions; and, if this Lease shall not have been terminated, Tenant shall
continue to pay all Rent due under this Lease up to and including the date of
beginning of payment of Rent by any substitute tenant of part or all of the
Premises, and thereafter Tenant shall pay monthly during the remainder of the
term of this Lease the difference between the Rent collected from any such
subsequent tenant or tenants and the Rent reserved in this Lease, but Tenant
shall not be entitled to receive any excess of any such Rent collected over the
Rent reserved herein.
(iv) Landlord may immediately, or at any time thereafter,
terminate this Lease, and this Lease shall be deemed to have been terminated
upon receipt by Tenant of written notice of such termination; upon 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's improvements, all arrearages
in Rent, the cost (including court costs and attorney's fees) of recovering
possession of the Premises, the cost of cleaning the Premises and the cost of
alterations of or repair to the Premises which is necessary or proper to prepare
the Premises for reletting and, in addition thereto, Landlord, at its election,
shall have and recover from Tenant either (1) an amount equal to the excess, if
any, of the total amount of all Rent to be paid by Tenant for the remainder of
the term of this Lease over the then reasonable rental value of the Premises for
the remainder of the term of this Lease, or (2) the Rent which Landlord would be
entitled to receive from Tenant pursuant to subparagraph (iii) above if the
Lease were not terminated. Such election shall be made by Landlord by serving
written notice upon Tenant of its choice of one or the two said alternatives
within thirty (30) days of the notice of termination.
(b) Landlord re-enters the Premises, or terminates this Lease, pursuant
to any of the provisions of this Lease, Tenant hereby waives all claims for
damage which may be caused by such re-entry or termination by Landlord. Tenant
shall and does hereby indemnify and hold harmless Landlord from any loss, cost
(including court costs and attorney's fees) or damages suffered by Landlord by
reason of such re-entry or termination. No such
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re-entry or termination shall be considered or construed to be a forcible entry.
(c) The exercise by Landlord of any one or more of the rights and remedies
provided in this Lease shall not prevent the subsequent exercise by Landlord of
any one or more of the other rights and remedies herein provided. 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.
EFFECT OF TERMINATION OF LEASE
31. Upon any termination of this Lease by Landlord, Lessee shall at
once surrender possession of the Premises to Lessor and remove all of Lessee's
effects therefrom. No termination of this Lease prior to the normal ending
thereof, by lapse of time or otherwise, shall affect Landlord's right to collect
Rent for any period prior to the termination hereof.
DESTRUCTION OR DAMAGE
32. If the Premises are totally destroyed (or so substantially
damaged as to be untenantable) by storm, fire, earthquake, or other casualty,
this Lease shall terminate as of the date of such destruction or damage, and
Rent shall be accounted for as between Landlord and Tenant as of that date. If
the Premises are damaged but not rendered wholly untenantable and restorable by
any such casualty or casualties, Rent shall xxxxx in such proportion as the use
of the Premises has been destroyed; and, if Landlord deems that restoration is
practicable and feasible, it shall restore the Premises to substantially
the-same condition as before damage as soon as practicable, whereupon full Rent
shall recommence. If Landlord determines that restoration of the Premises is not
practicable and feasible, Landlord shall notify Tenant in writing of such
determination within a reasonable time after such casualty, whereupon this Lease
shall terminate upon Tenant's receipt of such notice, and Rent shall be
accounted for as between Landlord and Tenant as of the date of such casualty.
EMINENT DOMAIN
33. If the whole of the Premises, or such portion thereof as will make the
Premises unusable in the reasonable judgment of Landlord for the purposes herein
leased, is condemned or taken by
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any legally constituted authority for any public use or purpose, then in either
of said events, the term hereby granted shall cease from that time when
possession thereof is taken by the condemning authorities, and Rent shall be
accounted for as between Landlord and Tenant as of that date. If only a portion
of the Premises is condemned or taken by any legally constituted authority for
any public use or purpose, and such partial taking shall not, in the reasonable
judgment of Landlord, render the remainder of the Premises unusable for the
purposes herein leased, this Lease shall remain in full force and effect as to
that portion of the Premises not so taken, and Rent shall be adjusted
proportionately based on the number of usable square feet remaining in the
Premises after such taking. Tenant shall have no right or claim to any part of
any award made to or received by Landlord for such condemnation or taking, and
all awards for such condemnation or taking shall be made solely to Landlord.
SERVICE OF NOTICE
34. Except as otherwise provided by law, Tenant hereby appoints as his
agent to receive the service of all dispossessory or distraint proceedings and
notices thereunder, and all notices required under this Lease, the person in
charge of or occupying the Premises at the time of such proceeding or notice;
and if no person be in charge or occupying the Premises, then such service of
notice may be made by attaching the same to the front entrance of the Premises.
A copy of all notices under this Lease shall also be mailed to Tenant's last
known address, if different from the Premises.
RIGHTS OF MORTGAGEES
35. Tenant agrees that this Lease shall be subject and subordinate (i) to
any loan deed or loan deeds now on the Premises and to all advances already
made, or which may be hereafter made on account of said loan deeds, to the full
extent of all debts and charges secured thereby and to all renewals or
extensions of any part thereof, and to any loan deed which any owner of the
Premises may hereafter, at any time, elect to place on the Premises; (ii) to any
Assignment of Landlord's interest in Lease covering the Lease which now exists
or which any owner of the Premises may hereafter, at any time, elect to place on
the Lease; and (iii) to any Uniform Commercial Code Financing Statement covering
the personal property rights of Landlord or any owner of the Premises which now
exists or any owner of the Premises may hereafter, at any time, elect to place
on the
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foregoing personal property (all of the foregoing instruments set forth in (i),
(ii) and (iii) above being hereafter collectively referred to as "Security
Documents"). Tenant agrees upon request of Lessor, or the holder of any Security
Documents ("Holder"), to hereafter execute such paper or papers which the
counsel for Landlord or Holder may deem necessary to evidence the subordination
of the Lease to the Security Documents. In default of Tenant so doing, Landlord
or Holder is hereby empowered to execute such paper or papers in the name of
Tenant evidencing such subordination, as the act and deed of Tenant, and this
authority is hereby declared to be coupled with an interest and not revocable.
In the event of a foreclosure pursuant to any Security Documents, Tenant
shall thereafter remain bound pursuant to the terms of this Lease as if a new
and identical Lease between such purchaser at foreclosure ("Purchaser"), as
Landlord, and Tenant, as Tenant, had been entered into for the remainder of the
term hereof, and Tenant shall attorn to Purchaser upon such foreclosure sale and
shall recognize such Purchaser as the Landlord under the Lease. Such attornment
shall be effective and self-operative without the execution of any further
instrument on the part of any of the parties hereto. Tenant agrees, however, to
execute and deliver at any time and from time to time, upon the request of
Landlord or of Holder or any Purchaser, any instrument or certificate that may
be necessary or appropriate in any such foreclosure proceeding or otherwise to
evidence such attornment.
If the Holder of any Loan Deed or the Purchaser upon the foreclosure of
any of the Security Documents shall succeed to the interest of Landlord under
the Lease, Holder or Purchaser, as the case may be, shall have the same
remedies, by entry, action or otherwise for the non-performance of any agreement
contained in the Lease, for the recovery of Rent or for any other default or
event of default hereunder that Landlord had or would have had if any such
Holder or Purchaser had not succeeded to the interest of Landlord. Any such
Holder or Purchaser which succeeds to the interest of Landlord hereunder, shall
not be (a) liable for any act or omission of any prior lessor (including
Landlord); or (b) subject to any offsets or defenses which Tenant might have
against any prior lessor (including Landlord); or (c) bound by any Rent or
Additional Rent which Tenant might have paid for more than the current month to
any prior lessor (including Landlord); or (d) bound by any amendment or
modification of the Lease made without its consent. Nothing herein contained
shall be construed to permit any Holder or Purchaser to terminate the enjoyment
by
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Tenant of the Premises so long as Tenant is not in default under this Lease,
provided the Holder of the Security Documents has approved the Lease.
Tenant hereby acknowledges that if the interest of Landlord hereunder is
covered by an Assignment of Landlord's Interest in Lease, Tenant shall pay all
Rent due and payable under this Lease directly to the Holder of the Assignment
of Landlord's Interest in Lease upon notification of the exercise of the rights
thereunder by the Holder thereof.
TENANT'S ESTOPPEL
36. Tenant shall, from time to time, upon not less than ten (10) days
prior written request by Landlord, execute, acknowledge and deliver to Landlord
a written statement certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), the dates to which the
rent and other charges have been paid, that Tenant is not in default hereunder
and has no off-sets or defenses against Landlord under this Lease, and whether
or not to the best of Tenant's knowledge Landlord is in default hereunder (and
if so, specifying the nature of the default), it being intended that any such
statement delivered pursuant to this paragraph may be relied upon by a
prospective purchaser of Landlord's interest or by a mortgagee of Landlord's
interest or assignee of any security deed upon Landlord's interest in the
Premises.
ATTORNEY'S FEES AND HOMESTEAD
37. If any rent owing under this Lease is collected by or through an
Attorney at Law, Tenant agrees to pay fifteen percent (15%) thereof as
attorney's fees. Tenant waives all homestead rights and exemptions which he may
have under any law against any obligations owing under this Lease and Tenant
hereby assigns to Landlord his homestead and exemption.
PARKING
38. No rights to any parking spaces are granted under this Lease; however,
Tenant and Tenant's patients and invitees shall be entitled to use the parking
facilities located on the Property in common with and on the same basis as the
other tenants in the Building. Landlord reserves the right to relocate, and to
make alterations or additions to such parking facilities, and to promulgate and
implement reasonable rules and regulations for the
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use of the parking facilities, including the right to impose in the future
uniform parking fees which are reasonable and customary in the current market,
at any time.
STORAGE
39. If Landlord makes available to Tenant any storage space outside the
Premises, anything stored therein shall be wholly at the risk of Tenant, and
Landlord shall have no responsibility of any character in respect thereto.
WASTE DISPOSAL
40. (a) All normal trash and waste (i.e., waste that does not require
special handling pursuant to subparagraph (b) below) shall be disposed of
through the janitorial service.
(b) Tenant shall be responsible 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 agrees to
separate and xxxx appropriately all waste to be removed and disposed of through
the janitorial service pursuant to (a) above and hazardous, infectious or
special waste to be removed and disposed of by Tenant pursuant to this
subparagraph (b). 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 Tenant's failure to comply with the provisions of this
subparagraph (b).
SURRENDER OF PREMISES
41. Whenever under the terms hereof Landlord is entitled to possession of
the Premises, Tenant at once shall surrender the Premises and the keys thereto
to Landlord in the same condition as at the commencement of the term hereof,
natural wear and tear only excepted, and Tenant shall remove all of his property
therefrom; and Landlord may forthwith re-enter the Premises and repossess itself
thereof and remove all persons and effects therefrom, using such force as may be
necessary without being guilty of forcible entry, detainer, trespass or other
tort. Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease. If the last day of
the term of this Lease or any renewal
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thereof falls on Sunday or a legal holiday, this Lease shall expire on the
business day immediately preceding.
CLEANING PREMISES
42. Upon vacating the Premises, Tenant agrees to clean the Premises
thoroughly or to pay Landlord for the cleaning necessary to restore the Premises
to their condition when Tenant's possession commenced, natural wear and tear
excepted, regardless of whether any security deposit has been forfeited.
NO ESTATE IN LAND
43. This contract shall create the relationship of landlord and tenant
between Landlord and Tenant; no estate shall pass out of Landlord; Tenant has
only a usufruct, not subject to levy or sale, and not assignable by Tenant
except with Landlord's consent.
CUMULATIVE RIGHTS
44. All rights, powers and privileges conferred hereunder upon the parties
hereto shall be cumulative but not restrictive to those given by law.
PARAGRAPH TITLES; SEVERABILITY
45. The paragraph titles used herein are not to be considered a
substantive part of this Lease, but merely descriptive aids to identify the
paragraph to which they refer. Use of the masculine gender includes the feminine
and neuter, and vice versa, where necessary to impart contextual continuity. If
any paragraph or provision herein is held invalid by a court of competent
jurisdiction, all other paragraphs or severable provisions of this Lease shall
not be affected thereby, but shall remain in full force and effect.
DAMAGE OR THEFT OF PERSONAL PROPERTY
46. All personal property brought into the Premises shall be at the risk
of the Tenant only and Landlord shall not be liable for theft thereof or any
damage thereto occasioned by any acts of co-tenants, or other occupants of the
Building, or any other person, except, with respect to damage to the Premises,
as may be occasioned by the negligent or willful act of the Landlord, its
employees and agents.
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HOLDING OVER
47. In the event Tenant remains in possession of the Premises after the
expiration of the term hereof, or of any renewal term, with Landlord's
acquiescence and without any express written agreement of the parties, Tenant
shall be a tenant at will and such tenancy shall be subject to all the
provisions hereof, except that the monthly Base Rent shall be an amount equal to
two hundred (200%) percent of the monthly Base Rent payable hereunder upon such
expiration of the term hereof, or of any renewal term, as the same would be
adjusted pursuant to the provisions of Paragraph 4 hereof. There shall be no
renewal of this Lease by operation of law or otherwise. Nothing in this
Paragraph shall be construed as a consent by Landlord to Tenant's continued
occupancy of the Premises after the expiration of the term hereof, or any
renewal term.
BUILDING ALLOWANCE AND TENANT FINISHES
49. (a) Landlord will provide to Tenant an allowance of $23.00 per usable
square foot contained within the Premises for building standard items and tenant
finishes. Tenant and Landlord agree that the cost for tenant finishes and
improvements in excess of such allowance which are requested by Tenant and
approved by Landlord shall be paid by Tenant to Landlord, as Additional Rent
hereunder, payable twenty-five (25%) percent of Tenant's estimated costs prior
to the commencement of construction and the balance of actual costs upon
completion and prior to occupancy. Should Tenant fail to pay for such excess
tenant finishes when due as herein provided, such amount due shall accrue
interest at the rate of one and one-half (l-l/2%) percent per month or fraction
thereof from the date such payment is due until paid (Annual Percentage
Rate-18%).
(b) The Work Letter attached hereto as Exhibit "B", and executed by
Landlord and Tenant, is hereby made a part of this Lease Agreement, the
provisions of which shall control in the event of a conflict with the provisions
contained in this Lease.
RULES AND REGULATIONS
50. The rules and regulations in regard to the Building, annexed hereto,
and all reasonable rules and regulations which Landlord may hereafter, from time
to time, adopt and promulgate for the government and management of the Building
and common areas, including the parking facilities, are hereby made a part of
this Lease and shall, during the term of this Lease, be in all
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things observed and performed by Tenant, his agents, employees or invitees.
QUIET ENJOYMENT
51. Tenant, upon payment in full of the required Rent and full performance
of the terms, conditions, covenants and agreements contained in this Lease,
shall peaceably and quietly have, hold and enjoy the Premises during the term
hereof. Landlord shall not be responsible for the acts or omissions of any other
tenant, lessee or third party that may interfere with Tenant's use and enjoyment
of the Premises.
ENTIRE AGREEMENT
52. This Lease contains the entire agreement of the parties and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force or effect.
LIMITATION OF LIABILITY
53. Landlord's obligations and liability with respect to this Lease shall
be limited solely to Landlord's interest in the Building, as such interest is
constituted from time to time, and neither Landlord nor any partner of Landlord,
or any officer, director, shareholder, or partner of any partner of Landlord,
shall have any personal liability whatsoever with respect to this Lease.
SUBMISSION OF AGREEMENT
54. Submission of this Lease to Tenant for signature does not constitute a
reservation of space or an option to acquire a right of entry. This Lease is not
binding or effective until execution by and delivery to both Landlord and
Tenant.
CORPORATE AUTHORITY
55. If Tenant executes this Lease as a corporation, each of the persons
executing this Lease on behalf of Tenant does hereby personally represent and
warrant that Tenant is a duly organized and validly existing corporation, that
Tenant is qualified to do business in the State of Georgia, that Tenant has full
right, power and authority to enter into this Lease, and that each person
signing on behalf of Tenant is authorized to do so. In the event any such
representation and warranty is false, all
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persons who execute this Lease shall be individually, jointly and severally,
liable as Tenant. Upon Landlord's request, Tenant shall provide Landlord with
evidence reasonably satisfactory to Tenant confirming the foregoing
representations and warranties.
SPECIAL STIPULATIONS
56. The following Special Stipulations, if conflicting with the above
provisions, shall control:
(a) Notwithstanding any provision contained herein to the contrary,
in the event Tenant is a Limited Partner of Landlord and Tenant shall transfer
and assign his limited partnership interest in Duluth Professional Center, L.P.,
in accordance with the provisions of its Partnership Agreement, Tenant shall
have the right to transfer and assign this Lease to such substituted limited
partner who assumes his obligations under this Lease, whereupon Tenant, if not
in default hereunder, shall thereafter be relieved of all obligations and
liabilities hereunder, provided the prior written consent of said transfer,
assignment and release is given by the Holder or Holders of any loan deed on the
Premises.
(b) Notwithstanding any provision contained herein to the contrary,
this Lease may be terminated by Tenant, or his personal representatives, upon
the death or disability of Tenant, or upon the death or disability of a majority
in interest of Tenant if Tenant is other than an individual, by written notice
being given to Landlord from Tenant or Tenant's personal representative, in the
event of a disability, or Tenant's personal representative, in the event of such
death, within three (3) months of said death or disability, in which event this
Lease shall terminate sixty (60) days after the date of such notice, or such
earlier date as may be agreed to by Landlord, whereupon the parties hereto shall
be relieved of all obligations and liabilities hereunder, except for those
obligations and liabilities which have accrued prior to such termination and
such obligations and liabilities which by the provisions of this Lease shall
survive any such termination. For the purposes of this Lease, the term
"disability" is hereby defined as the inability of Tenant, or a majority in
interest of Tenant, as the case may be, to fully perform the material duties of
the practice for which the Premises are leased as set forth in Paragraph 1 of
this Lease as a result of either (i) a bodily injury resulting directly from an
accident or (ii) a physical or mental illness or disease, which inability
continues for a period in excess of six (6) consecutive months. If Tenant is an
individual, in the event
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of the death of Tenant, or if tenant is an entity, in the event of the death of
all holders of any interest in Tenant, and Tenant's personal representatives
fail to terminate this Lease pursuant to the provisions set forth above, or to
transfer and assign this Lease to an assignee approved by Landlord within three
(3) months of such death, then Landlord shall have the right to terminate this
Lease upon sixty (60) days' prior written notice to Tenant's personal
representatives.
[ADDITIONAL SPECIAL STIPULATIONS, IF ANY, ARE SET FORTH ON EXHIBIT "D" ATTACHED
HERETO AND MADE A PART HEREOF BY REFERENCE.)
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, the day and year first above written.
LANDLORD:
DULUTH PROFESSIONAL CENTER, L.P., a
Georgia limited partnership
Signed, sealed and delivered By: DULUTH PROFESSIONAL ASSOCIATES
in the presence of: General Partner
________________________ By: ________________________
Witness a Managing Partner
________________________
Notary Public
TENANT:
Signed, sealed and delivered
in the presence of: ___________________________(SEAL)
XXXXXXX X. XXXXXXXX, M.D.
____________________________
Witness ___________________________(SEAL)
____________________________
Notary Public
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RULES AND REGULATIONS
(which are referred to in the within Lease and made a part thereof)
1. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by tenants or used by them for any purpose
other than those of ingress and egress. The floors, skylights and windows that
reflect or admit light into any place in said building shall not be covered or
obstructed by Tenants. The water closets and other water apparatus shall not be
used for any other purpose than those for which they were constructed and no
sweepings, rubbish or other obstructing substances shall be thrown therein.
2. No advertisement or other notice shall be inscribed, painted or affixed
on any part of the outside or inside of said building, except upon the doors,
and of such order, size and style, and at such places, as shall be designated by
Landlord. Interior signs on doors will be ordered for tenants by Landlord, the
cost thereof to be charged to and paid for by tenants.
3. No tenant shall do or permit to be done in his Premises, or bring or
keep anything therein, which shall in any way increase the rate of fire
insurance on the Building, or on property kept therein, or obstruct or interfere
with the rights of other tenants or in any way injure or annoy them, or conflict
with the laws relating to fires, or with the regulations of the Fire Department,
or any part thereof, or conflict with any of the rules and ordinances of the
Board of Health. Tenants, their clerks and servants, shall maintain order in the
Premises and the Building, shall not make or permit any improper noise in the
Premises or the Building or interfere in any way with other tenants or those
having business with them. Nothing shall be thrown by tenants, their clerks or
servants, out of the windows or doors, or down the passages or skylights of the
Building. No rooms shall be occupied or used as sleeping or lodging apartments
at any time. No part of the Building shall be used or in any way appropriated
for gambling, immoral or other unlawful practices, and no intoxicating liquor or
liquors shall be sold in the Building.
4. Tenants shall not employ any persons other than the janitors of
Landlord (who will be provided with pass-keys into the offices) for the purpose
of cleaning or taking charge of the Premises, except as may be specifically
provided otherwise in the Lease.
33
5. No animals, birds, bicycles or other vehicles shall be allowed in the
offices, halls, corridors, elevators or elsewhere in the Building, without the
approval of Landlord.
6. All tenants and occupants shall observe strict care not to leave their
windows open when it rains or snows and, for any fault or carelessness in any of
these respects, shall make good any injury sustained by other tenants and by
Landlord for damage to paint, plastering or other parts of the Building
resulting from such fault or carelessness. No painting shall be done, nor shall
any alterations he made to any part of the Building or the Premises by putting
up or changing any partitions, doors, or windows, nor shall there be any
nailing, boring or screwing into the woodwork or plastering, nor shall any
connection be made in the electric wires or gas or electric fixtures, without
the consent in writing on each occasion of Landlord. All glass, locks and
trimmings in or upon the doors and windows of the Building shall be kept whole
and, when any part thereof shall be broken by tenant, or tenant's agent, the
same shall be immediately replaced or repaired by tenant and put in order under
the direction and to the satisfaction of Landlord, or its agents, and shall be
kept whole and in good repair. Tenants shall not injure, overload, or deface the
Building, the woodwork or the walls of the Premises, nor carry on upon the
Premises any noxious, noisy or offensive business.
7. Two keys for each office (or the equivalent of approximately 400 square
feet) will be furnished tenants without charge. No additional locks or latches
shall be put upon any door without the written consent of Landlord. Tenants, at
the termination of their lease, shall return to Landlord all keys to doors in
the Building.
8. Landlord in all cases retains the power to prescribe the weight and
position of iron safes or other heavy articles. Tenants must make arrangements
with the superintendent of the Building when the elevator is required for the
purpose of the carrying of any kind of freight.
9. The use of burning fluid, camphene, benzine, kerosene or anything
except gas or electricity, for lighting the Premises, is prohibited. No
offensive gases or liquids will be permitted.
10. If Tenants desire blinds, coverings or drapes over the windows, they
must be of such shape, color and material as may be prescribed by Landlord, and
shall be erected only with Landlord's
2
34
consent and at the expense of the tenant desiring them. No awnings shall be
placed on the Building.
11. If tenants require wiring for a xxxx or buzz system, such wiring shall
be done by the electrician of the Building only, and no outside wiring men shall
be allowed to do work of this kind unless by the written permission of Landlord,
or its agent. If telegraphic or telephonic service is desired, the wiring for
same shall be done as directed by the electrician of the Building or by some
other employee of Landlord who may be instructed by the superintendent of the
Building to supervise same, and no boring or cutting for wiring shall be done
unless approved by Landlord or its representatives, as stated.
12. At Landlord's discretion, the Building may be in the charge of a night
watchman, and every person entering or leaving the Building may be questioned by
the watchman as to the visitor's business in the Building and shall sign his or
her name on a form provided by the Building for so registering such persons.
3
35
EXHIBIT "A"
All that tract or parcel of land lying and being in Land Xxx 000 xx xxx 0xx
Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx, being more particularly described as
follows:
BEGINNING at an iron pin set on the south right-of-way line of Duluth-Park Lane
(60-foot right-of-way), North 70 degrees 12 minutes 05 seconds East, 201.00 feet
as measured along the south right-of-way line of Duluth Park from an iron pin
set at its intersection with the east right-of-way line of Pleasant Hill Road
(150-foot right-of-way); running thence North 70 degrees 12 minutes 05 seconds
East along the south right-of-way line of Duluth Park Lane, 244.49 feet to an
iron pin found; thence South 19 degrees 47 minutes 55 seconds East, 518.39 feet
to an iron pin found on the north line of property now or formerly owned by
Gwinnett County, Georgia; thence South 89 degrees 28 minutes 40 seconds West
along the north line of said Gwinnett County property and the north line of
property now or formerly owned by the City of Duluth, 562.73 feet to an iron pin
set on the east right-of-way line of Pleasant Hill Road; thence northwesterly
along the east right-of-way line of Pleasant Hill Road and following its arc to
the left (which arc has a radius of 1198.92 feet; chord: North 04 degrees 03
minutes 44 seconds West, 149.08 feet), 149.18 feet to an iron pin set; thence
North 78 degrees 27 minutes 05 seconds East, 250.00 feet to an iron pin set;
thence North 20 degrees 05 minutes 30 seconds West, 225.00 feet to the point of
beginning; said tract containing 3.7681 acres according to plat of survey for
Duluth Professional Associates, prepared by Xxx X. Xxxxx, Georgia Registered
Land Surveyor No. 2196, of Xxxxx, Wood & Associates, Inc., dated June 6, 1989,
being the same property designated as Xxx 0 xx Xxxxx X xx Xxxxx Xxxx of Unit
One, Xxxxxx Station Commercial Center, prepared by Development Consultants
Group, dated November 2, 1987, last revised May 4, 1989, to be recorded in the
plat records of Gwinnett County, Georgia.
A-1
36
EXHIBIT "A-1"
THE EXACT LOCATION OF THE PREMISES WILL BE DETERMINED BY TENANT
AND LANDLORD AT A FUTURE DATE. UPON SUCH DETERMINATION, THE
PREMISES SHALL BE OUTLINED ON AN EXHIBIT "A-1" TO BE SUBSTITUTED
HEREFOR.
A-2
37
EXHIBIT "B" (WORK LETTER)
ATTACHED TO LEASE BETWEEN
DULUTH PROFESSIONAL CENTER, L.P. (LANDLORD)
AND
XXXXXXX X. XXXXXXXX, M.D. (TENANT)
To induce Tenant to enter into the Lease (to which this Exhibit "B" is
attached) and in consideration of the mutual covenants hereinafter contained,
Landlord and Tenant agree as follows:
1. Landlord shall construct, or cause to be constructed, the Premises (the
"Work") in accordance with the Plans (hereinafter defined). Landlord shall cause
a preliminary layout to be prepared with Tenant's cooperation and for Tenant's
approval. Tenant's failure to approve or disapprove the layout within ten days
of its submission shall be deemed an approval. Upon approval of the layout,
Landlord shall prepare, or cause to be prepared, working drawings for the
construction of the work, adequate in detail to perform the Work and shall have
mechanical (sprinkler, air conditioning, heating, electrical and plumbing)
drawings prepared by Landlord's mechanical engineer covering mechanical elements
of the Work (together with the preliminary layout, the drawings are referred to
as the "Plans"). The Plans (and any modifications thereof) shall comply with all
governmental standards, regulations and requirements and shall be subject to
Landlord's approval (which approval shall not be unreasonably withheld).
Tenant's failure to approve or disapprove the Plans within ten years of
submission shall be deemed an approval. Tenant shall not unreasonably withhold
its approval of the Plans or any part thereof.
2. Any other work desired by Tenant, and approved by Landlord (which
approval shall not be unreasonably withheld), shall be performed by Landlord or
Landlord's contractors, unless Landlord otherwise consents in writing. If Tenant
desires any work in addition to the Work described in Section 1 hereof
("Additional Work"), Tenant shall cause the necessary drawings, plans and
specifications for the Additional Work to be included on the Plans, or shall
submit to Landlord or Landlord's agent (at Tenant's sole cost and expense) the
necessary drawings, plans and specifications for the Additional Work within ten
days of submission of the Plans to Tenant for approval. Prior to commencing any
such Work or Additional Work requested by Tenant, Landlord or Landlord's agent
shall submit to Tenant a written estimate of the cost of such work and, if
applicable, Additional
B-1
38
Work. Such costs shall include a fee of five (5%) percent of Tenant's
construction costs to cover the cost of administration of the Work and
Additional Work. If Tenant shall fail to approve said estimate within ten days
from the receipt thereof, the same shall be deemed disapproved in all respects
by Tenant and Landlord shall not be authorized to proceed thereon. If Tenant
desires any changes in the Additional Work after having approved the initial
plans and cost estimate, Tenant shall be required to sign such field order
changes requested by Landlord or Landlord's contractors or agents to evidence
any such change desired by Tenant. Tenant acknowledges that no cost estimate
will be given for any changes in the Work or Additional Work after the initial
cost estimate has been approved by Tenant, and Tenant shall be responsible for
any and all costs associated with any such change.
3. (a) In addition to the building allowance provided in Paragraph 49 of
the Lease, which building allowance shall be applied toward the cost of the Work
and the excess, if any, toward the Additional Work, Landlord shall provide
Tenant a planning allowance of $1.35 per square foot of usable area contained
within the Premises ("planning allowance") to be applied toward the cost of
preparing the Plans, the cost of any changes to the Plans and any costs
necessary to file the plans with, and obtain the necessary permits and approvals
of, any governmental authority having jurisdiction thereof.
(b) Any costs in excess of said planning allowance shall be due and
payable by Tenant to Landlord within ten (10) days after receipt by Tenant of a
statement therefor. Any costs of the Work and Additional Work in excess of the
building allowance specified in the Lease shall be due and payable as provided
in the Lease.
4. Landlord, at Landlord's discretion, may permit Tenant and Tenant's
agents to enter the Premises prior to the commencement date of the term of the
Lease in order that Tenant may do such other work as may be required by Tenant
to make the Premises ready for Tenant's use and occupancy. If Landlord permits
such entry prior to such commencement date, such permission is conditioned upon
Tenant and its agents, contractors, employees and invitees working in harmony
and not interfering with Landlord and its agents, contractors and employees is
doing Landlord's Work in the Premises or for other tenants and occupants of the
building. If at any time such entry shall cause or threaten to cause disharmony
or interference, Landlord shall have the right to withdraw such permission upon
24 hours notice to Tenant. Tenant agrees that any such entry into
B-2
39
and occupation of the Premises shall be deemed to be under all of the terms,
covenants, conditions and provisions of the Lease except as to the covenant to
pay the rent, and further agrees Landlord shall not be liable in any way for any
injury, loss or damage which may occur to any of Tenant's work and installations
made in the Premises or to properties placed therein prior to the commencement
of the term of the Lease, the same being at Tenant's sole risk.
5. If the substantial completion of the Premises by Landlord is delayed
due to any act or omission of Tenant or Tenant's representatives, including any
delays by Tenant in the submission of plans, drawings, specifications or other
information or in approving any drawings or estimates or in giving any
authorization or approval, the Premises shall be deemed substantially completed
on the date when they would have been ready but for such delay.
TENANT: LANDLORD:
DULUTH PROFESSIONAL CENTER, L.P.
__________________________
XXXXXXX X. XXXXXXXX, M.D. By: DULUTH PROFESSIONAL ASSOCIATES
General Partner
__________________________
By:_______________________
a Managing Partner
B-3
40
EXHIBIT "C"
ACKNOWLEDGEMENT, ACCEPTANCE AND AMENDMENT
(TO BE ATTACHED TO AND MADE A PART OF
LEASE AGREEMENT BETWEEN DULUTH
PROFESSIONAL CENTER, L.P., LANDLORD, AND
XXXXXXX X. XXXXXXXX, M.D. (TENANT)
DATED_____________________.
Tenant hereby acknowledges that the Premises demised pursuant to the Lease
to which this Exhibit "C" is attached (the "Lease"), and all tenant finish items
to be completed by the Landlord, or Landlord's contractors, have been
satisfactorily completed in every respect, except for the punchlist items set
forth below, and Tenant hereby accepts said Premises as substantially complete
and ready for the uses intended as set forth in the Lease. Landlord shall
complete the punchlist items, if any, as soon as is reasonably possible.
Possession of the Premises is hereby delivered to Tenant, and any damages to
walls, ceilings, floors or existing work, except for any damages caused by
Landlord or Landlord's contractors in completing any punchlist items, shall be
the sole responsibility of Tenant.
If any improvements or tenant finishes are to be constructed or installed
by Tenant or Tenant's contractors, as previously approved by Landlord, Tenant
hereby agrees to indemnify and hold harmless Landlord from and against any
claims, demands, loss or damage Landlord may suffer or sustain as a result of
such work by Tenant or Tenant's contractors, including, without limitation, any
claim of lien which may be filed against the Premises or Landlord's property as
a result of such work by Tenant's contractors or representatives. In the event
any such claim of lien is filed against Landlord's property by any contractor,
laborer or materialman performing work on the Premises at Tenant's direction,
Tenant agrees to cause such lien to be discharged, by payment of the claim or
bond, within ten (10) days of receipt of demand by Landlord.
Tenant and Landlord hereby further acknowledge and agree as follows:
1. The Commencement Date (as defined in the lease) is ______________,
and the Expiration Date (as defined in the Lease) is
_________________________.
C-1
41
2. The exact usable square feet contained within the Premises is
_________ square feet; and if differing from Exhibit "A-1" attached
to the Lease, the Premises are as shown and outlined in red on
Exhibit "C-1" attached hereto.
3. The initial Base Rent payable under the Lease is $__________________
per month, payable as provided in the Lease.
4. Rent under the Lease will commence as of ________________.
5. Tenant intends to occupy the Premises on _____________________.
6. _______________ (No.) keys to the Premises have been delivered to
Tenant or Tenant's representative.
7. The following punch list items are all that remain to be completed
by Landlord or Landlord's contractor:
8. This Acknowledgement, Acceptance and Amendment, when executed by
Landlord and Tenant, shall be attached to and shall become a part of
the Lease. If any provision contained herein conflicts with any
provision of the Lease, the provisions hereof shall supersede and
control, and the Lease shall be deemed modified and amended to
conform with the provisions hereof.
9. Other agreements or modifications:
C-2
42
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands and
seals, this ___ day of _________________, 19__.
TENANT: LANDLORD:
DULUTH PROFESSIONAL CENTER, L.P.
_________________________ By: DULUTH PROFESSIONAL
XXXXXXX X. XXXXXXXX, M.D. ASSOCIATES
General Partner
_________________________ By:______________________________
a Managing Partner
C-3
43
STATE OF GEORGIA
SECOND AMENDMENT TO LEASE AGREEMENT
COUNTY OF GWINETT
THIS AMENDMENT, made and entered into this 14th day of February, 1995,
by and between DULUTH PROFESSIONAL CENTER, L.P., a Georgia limited partnership
whose General Partner is Duluth Professional Associates, with its principal
office at 000 Xxxxxxx Xxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx, first
party (hereinafter called "Landlord") and GWINNETT PULMONARY GROUP, P.C. and
ATLANTA EAR, NOSE & THROAT ASSOCIATES, P.C. (hereinafter collectively called
"Tenant");
WITNESSETH:
WHEREAS, Landlord and Xxxxxxx X. Xxxxxxxx, M.D. (the "Original Tenant")
entered into that certain Lease Agreement dated December 29, 1989, the Original
Tenant having transferred to Tenant a 50% interest in said Lease Agreement by
Transfer and Assignment of Lease dated August 16, 1990, as amended by
Acknowledgment, Acceptance and Amendment dated October 31, 1990, the remaining
interest of the Original Tenant having been transferred to Atlanta Ear, Nose &
Throat Associates, P.C. by Transfer and Assignment of Lease dated as of January
1, 1995, for the demise of certain premises containing 1,641 square feet of
usable space in a medical office building located at 0000 Xxxxxx Xxxx Xxxx,
Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx (hereinafter referred to as the "Lease"); and
WHEREAS, Landlord and Tenant desire to enter into this Amendment to
extend the term of the Lease;
NOW, THEREFORE, in consideration of the premises hereof, the mutual
benefits to be derived hereby, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant hereby agree as follows:
1. The term of the Lease is hereby extended and the Lease is hereby
modified and amended to provide that the term of the Lease shall expire at noon
on the 31st day of December, 1999.
2. Effective February 1, 1995, the annual Base Rate, as set forth in
Paragraph 13 of the Lease shall be increased from $5.50 per average occupied
usable square foot to $6.50 per average occupied usable square foot, for
purposes of calculating Tenant's Share of excess Operating Expenses.
3. Tenant hereby acknowledges that the current monthly Base Rent
payable under the Lease as of February 1, 1995, is $3,254.69, subject to annual
increase on October 1 of each year during the term of this Lease, commencing
October 1, 1995, in accordance with the provisions of Paragraph 4 of the Lease.
Notwithstanding the foregoing, Tenant shall not be
44
obligated for the payment of the monthly Base Rent for the one-half of the
month of February, 1995, in the amount of $1,627.35, Landlord hereby granting
to Tenant a one-half month's abatement of Base Rent.
4. Except as specifically modified and amended hereby, all other terms,
conditions and provisions of the lease shall otherwise remain unchanged and in
full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands
and seals, the day and year first above written.
LANDLORD:
Signed, sealed and delivered DULUTH PROFESSIONAL CENTER, L.P., a
in the presence of: Georgia limited partnership
By: DULUTH PROFESSIONAL
____________________________ ASSOCIATES, a Georgia general
Witness partnership
General Partner
____________________________ By:____________________________
Notary Public
a Managing Partner
Signed, sealed and delivered TENANT:
in the presence of:
GWINNETT PULMONOLOGY GROUP, P.C.
____________________________ By: ___________________________________
Witness
Title: ________________________________
____________________________ By: ___________________________________
Notary Public
Title: ________________________________
(CORPORATE SEAL)
-2-
45
ATLANTA EAR, NOSE & THROAT
ASSOCIATES, P.C.
Signed, sealed and delivered in the
presence of:
By:____________________________________
______________________________________ Title:_________________________________
Witness
By:____________________________________
______________________________________
Notary Public Title:_________________________________
(CORPORATE SEAL)
Notwithstanding the foregoing consent, any subsequent transfer and
assignment of the Lease shall require the consent and approval of the
undersigned, all as provided in Paragraph 25 of the Lease.
WITNESS the hand and seal of the undersigned, this 7th day of March,
1996.
DULUTH PROFESSIONAL CENTER, L.P.
By: DULUTH PROFESSIONAL
ASSOCIATES, General Partner
By:____________________________________
a Managing Partner
-3-
46
STATE OF GEORGIA )
) TRANSFER AND ASSIGNMENT OF LEASE
COUNTY OF GWINNETT )
FOR VALUE RECEIVED, the undersigned, XXXXXXX X. XXXXXXXX, M.D.
(hereinafter referred to as "Assignor"), does hereby transfer, assign, set over
and convey unto ATLANTA, EAR, NOSE & THROAT ASSOCIATES, P.C., a Georgia
professional corporation (hereinafter referred to as "Assignee") all of his
right, title and interest (being an undivided fifty (50%) percent interest),
in, to and under that certain Lease Agreement between Duluth Professional
Center, L.P., as Landlord, and Assignor, as Tenant, dated December 29, 1989,
Assignor having transferred to Tenant a 50% interest in said lease Agreement by
Transfer and Assignment of Lease dated August 16, 1990, as amended by
Acknowledgment, Acceptance and Amendment dated October 31,1990, for the demise
of 1,641 square feet of usable space in a medical office building located at
0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx (hereinafter referred
to as the "Lease").
By its execution hereof, Assignee does hereby assume and agree to
perform and discharge all obligations and liabilities of Assignor under this
Lease, in the same manner as if Assignee were the original signatory thereof as
a Tenant thereunder.
Assignor and Assignee have agreed that this Transfer and Assignment
shall be effective as of the 1st day of January, 1995.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals, this the 14th day of February, 1995.
ASSIGNOR: ASSIGNEE:
ATLANTA EAR NOSE & THROAT
ASSOCIATES, P.C.
__________________________(SEAL)
XXXXXXX X. XXXXXXXX, M.D.
By:__________________________________
Title:_______________________________
Attest:______________________________
Title:_______________________________
(CORPORATE SEAL)
-4-
47
CONSENT OF LANDLORD TO TRANSFER AND ASSIGNMENT
FOR AND IN CONSIDERATION of the assumption by the Assignee named in the
within and foregoing Transfer and Assignment of Lease of all of the obligations
and liabilities of the Assignor named therein under the Lease referred to
therein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord does hereby consent and
agree to the transfer and assignment by Assignor to Assignee of all of his
right, title and interest in, to and under said Lease.
-5-
48
STATE OF GEORGIA )
) THIRD AMENDMENT TO LEASE AGREEMENT
COUNTY OF GWINNETT )
THIS AMENDMENT, made and entered into this 21st day of September, 1995,
by and between DULUTH PROFESSIONAL CENTER, L.P., a Georgia limited partnership
whose General Partner is Duluth Professional Associates, with its principal
office at 000 Xxxxxxx Xxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx, first
party (hereinafter called "Landlord") and GWINNETT PULMONARY GROUP, P.C. and
ATLANTA EAR, NOSE & THROAT ASSOCIATES, P.C. (hereinafter called "Tenants"),
with Xxxxxxx X. Xxxxxxxx, M.D. (hereinafter called "Guarantor") joining in the
execution hereof for the purposes hereinafter set forth;
W I T N E S S E T H :
WHEREAS, Landlord and Xxxxxxx X. Xxxxxxxx, M.D. (the "Original Tenant")
entered into that certain Lease Agreement dated December 29, 1989, the Original
Tenant having transferred a 50% interest in said Lease Agreement to Gwinnett
Pulmonary Group, P.C. by Transfer and Assignment of Lease dated August 16, 1990
as amended by Acknowledgment, Acceptance and Amendment dated October 31, 1990,
the remaining 50% interest of the Original Tenant having been transferred to
Atlanta Ear, Nose & Throat Associates, P.C. by Transfer and Assignment of Lease
as of January 1, 1995, and as further amended by Second Amendment to Lease
Agreement dated February 14, 1995, for the demise of certain Premises
containing 1,641 square feet of usable space in a medical office building
located at 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx (hereinafter
referred to as the "Lease"); and
WHEREAS, Landlord and Tenant desire to enter into this Amendment to
extend the term of the Lease;
NOW, THEREFORE, in consideration of the premises hereof, the mutual
benefits to be derived hereby, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant hereby agree as follows:
1. The term of the Lease is hereby extended and the Lease is
hereby modified and amended to provide that the term of the Lease shall expire
at noon on the 30th day of September, 2000.
2. Except as specifically modified and amended hereby, all other
terms, conditions and provisions of the Lease shall otherwise remain unchanged
and in full force and effect.
3. Guarantor hereby joins in the execution of this Amendment to
guarantee the performance and discharge by Tenant of all obligations and
liabilities of Tenant under the Lease, as modified and amended hereby; and
Guarantor does hereby unconditionally guarantee the performance by Tenant of
all of its obligations and liabilities under the provisions of the Lease.
Guarantor hereby agrees that Landlord may bring suit against Guarantor with or
without first or contemporaneously suing Tenant or any other guarantor of
Tenant or otherwise seeking performance or proceeding to collect from Tenant or
any other guarantor of Tenant in the event of a default under the Lease; and
Guarantor further covenants with Landlord that, if default shall at any time be
made by Tenant in the payment of Rent or the performance of any other covenants
49
contained in the Lease, Guarantor will pay to Landlord, its successors and
assigns, the Rent or any arrears thereof, and all damages that may arise in
consequence of any default by Tenant under the Lease, upon receipt of written
notice of such default from Landlord, its successors or assigns. Until all
obligations of Tenant to Landlord under the Lease have been paid and performed
in full, Guarantor shall have no right of subrogation to Landlord against
Tenant and Guarantor hereby waives any rights to enforce any remedy which
Landlord may have against Tenant and any rights to participate in any security
for the Lease. This guaranty shall be a continuing guaranty, and the liability
of Guarantor hereunder shall be in no way affected or diminished by reason of
any extension, renewal, amendment or modification of the Lease, which
extension, renewal, amendment
IN WITNESS WHEREOF, Landlord, Tenant and Guarantor have hereunto set
their hands and seals, the day and year first above written.
LANDLORD:
Signed, sealed and delivered DULUTH PROFESSIONAL CENTER, L.P.
in the presence of: a Georgia limited partnership.
_____________________________________
Witness By: DULUTH PROFESSIONAL ASSOCIATES,
a Georgia general partnership
General Partner
_____________________________________
Notary Public By:___________________________________
a Managing Partner
TENANT:
Signed, sealed and delivered GWINNETT PULMONARY GROUP, P.C.
in the presence of:
_____________________________________ By:___________________________________
Witness
Title:________________________________
_____________________________________
Notary Public By:___________________________________
Title:________________________________
(CORPORATE SEAL)
Signed, sealed and delivered ATLANTA EAR, NOSE & THROAT
in the presence of: ASSOCIATES, P.C.
50
____________________________________ By:_________________________________
Witness
Title:______________________________
____________________________________
Notary Public
By:_________________________________
Title:______________________________
(CORPORATE SEAL)
GUARANTOR:
____________________________________
XXXXXXX X. XXXXXXXX, M.D.
____________________________________
Witness
____________________________________
Notary Public
51
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Agreement made this 21st day of September, 1995, among TRUST
COMPANY BANK, a Georgia banking corporation (hereinafter referred to as
"Lender"), GWINNETT PULMONARY GROUP, P.C. and ATLANTA EAR, NOSE & THROAT
ASSOCIATES, P.C. (hereinafter referred to as "Tenant") and DULUTH PROFESSIONAL
CENTER, L.P., a Georgia limited partnership (hereinafter referred to as
"Landlord").
WITNESSETH:
WHEREAS, Landlord and Xxxxxxx X. Xxxxxxxx, M.D. entered into that
certain Lease Agreement dated December 29, 1989, a one-half interest therein
having been transferred to Gwinnett Pulmonary Group, P.C. by Transfer and
Assignment dated August 16, 1990, as amended by Acknowledgement, Acceptance and
Amendment dated October 31, 1990, a one-half interest therein having been
transferred to Atlanta Ear, Nose & Throat Associates, P.C. by Transfer and
Assignment dated February 14, 1995, as further amended by Second Amendment to
Lease Agreement dated February 14, 1995, and as further amended by Third
Amendment to Lease Agreement dated September 21, 1995 (hereinafter referred to
as the "Lease") relating to the premises know as Suite 240 of the medical office
building located at 0000 Xxxxxx Xxxx Xxxx, Xxxxxxxx Xxxxxx, Xxxxxxx (hereinafter
referred to as the "Premises"); and
WHEREAS, Lender has made or has committed to make a loan to landlord
secured by a security deed from Landlord (hereinafter referred to as the
"Mortgage") and an assignment of leases and rents from Landlord to Lender
covering the Premises (hereinafter referred to as the "Assignment"); and
WHEREAS, Tenant has agreed that the Lease shall be subject and
subordinate to the Mortgage held by Lender, provided Tenant is assured of
continued occupancy of the Premises;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the sum of Ten Dollars ($10.00) and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
it is hereby agreed as follows:
1. Lender, Tenant and Landlord do hereby covenant and agree that
the Lease with all rights, options, liens and charges created thereby, is and
shall continue to be subject and subordinate in all respects to the Mortgage
and to any advancements made thereunder and to any renewals, modifications,
consolidations, replacements and extensions thereof.
2. Lender does hereby agree with Tenant that, so long as Tenant
complies with and performs its obligations under the Lease, (a) Lender will
take no action which will interfere with or disturb Tenant's possession or use
of the Premises or other rights under the Lease, and (b) in the event Lender
becomes the owner of the Premises by foreclosure, conveyance in lieu of
foreclosure or otherwise, the Premises shall be subject to the Lease and Lender
shall recognize Tenant as the tenant of the Premises for the remainder of the
term of the Lease in accordance with the provisions thereof, provided, however,
that Lender shall not be subject to any offsets or
52
defenses which Tenant might have against any prior landlord except those which
arose under the provisions of the Lease out of such landlord's default and
accrued after Tenant had notified Lender and given Lender the opportunity to
cure same as hereinbelow provided, nor shall Lender be liable for any act or
omission of any prior landlord, nor shall Lender be bound by any rent or
additional rent which Tenant might have paid for more than the current month to
any prior landlord nor shall it be bound by any amendment or modification of the
Lease made without its consent.
3. Landlord and Tenant do hereby agree that, without Lender's
prior written consent, they will not modify, terminate or accept surrender of
the Lease and will not reduce, xxxxx, or pay or accept prepayment of any rent
(except the regular monthly rental payments required by the Lease to be paid in
advance). Tenant does hereby agree not to look to Lender as mortgagee, in
possession, or successor in title to the Property for accountability for any
act or omission of any prior landlord, including Landlord, or for any security
deposit required by any prior landlord under the Lease unless such sum has
actually been received by Lender as cash security for Tenant's performance of
the Lease.
4. Tenant does hereby agree with Lender that, in the event Lender
becomes the owner of the Premises by foreclosure, conveyance in lieu of
foreclosure or otherwise, then Tenant shall attorn to and recognize Lender as
the landlord under the Lease for the remainder of the term thereof, and Tenant
shall perform and observe its obligations thereunder, subject only to the terms
and conditions of the Lease. Tenant further convenants and agrees to execute
and deliver upon request of Lender, or its assigns, an appropriate agreement of
attornment by any subsequent titleholder of the Premises.
5. So long as the Mortgage remains outstanding and unsatisfied,
Tenant will mail or deliver to Lender, at the address and in the manner
hereinbelow provided, a copy of all notices permitted or required to be given
Landlord by Tenant under and pursuant to the terms and provisions of the Lease
and no such notice shall be effective as against Lender unless a copy thereof
is also mailed to Lender. At any time before the rights of the landlord shall
have been forfeited or adversely affected because of any default of the
landlord, or within the time permitted the landlord for curing any default
under the Lease as therein provided (but not less than sixty (60) days from the
receipt of notice), Lender may, but shall have no obligation to, pay any taxes
and assessments, make any repairs and improvements, make any deposits or do any
other act or thing required of the landlord by the terms of the Lease; and all
payments so made and all things do done and performed by Lender shall be as
effective to prevent the rights of the landlord from being forfeited or
adversely affected because of any default under the Lease as the same would
have been if done and performed by the landlord.
6. Tenant acknowledges that Landlord will execute and deliver to
Lender an assignment of the Lease as security for said loan, and Tenant hereby
expressly consents to such assignment. Tenant agrees upon notification by
Lender to make any payments due under the Lease directly to Lender and to
otherwise perform as directed by it.
7. Landlord and Tenant hereby certify to Lender that the Lease has
been duly executed by Landlord and Tenant and is in full force and effect; that
the Lease and any
53
modifications and amendments specified herein are a complete statement of the
agreement between Landlord and Tenant with respect to the leasing of the
Premises, and the Lease has not been modified or amended except as specified
herein; that to the knowledge of Landlord and Tenant no party to the Lease is
in default thereunder; that no rent under the Lease has been paid more than
thirty (30) days in advance of its due date; and that Tenant, as of this date,
has no charge, lien or claim of offset under the Lease, or otherwise, against
the rents or other charges due or to be come due thereunder.
8. Any and all notices, elections, demands, requests and responses
thereto permitted or required to be given under this Agreement shall be in
writing, signed by or on behalf of the party giving the same, and shall be
deemed to have been properly given and shall be effective upon being personally
delivered, or upon being deposited in the United States mail, postage prepaid,
certified with return receipt requested, to the other party at the address of
such other party set forth below or at such other address within the
continental United States as such other party may designate by notice
specifically designated as a notice of change of address and given in
accordance herewith; provided, however, that the time period in which a
response to any such notice, election, demand or request must be given shall
commence on the date of receipt thereof; and provided further that no notice of
change of address shall be effective until the date of receipt thereof.
Personal delivery to a party or to any officer, partner, agent or employee of
such party at said address shall constitute receipt. Rejection or other refusal
to accept or inability to deliver because of changed address of which no notice
has been received shall also constitute receipt. Any such notice, election,
demand, request or response, if given to Lender, shall be addressed as follows:
Trust Company Bank
000 Xxxxxx Xxxxxxx, X.X.
Xxxxxxxxxxxxx, Xxxxxxx 00000
and, if given to Tenant, shall be addressed as follows:
ATLANTA EAR, NOSE & THROAT ASSOCIATES, P.C.
Suite 240, 0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxx 00000
and, if given to Landlord, shall be addressed as follows:
Duluth Professional Center, L.P.
x/x Xxx Xxx Xxxxxxxx Xxxxxxx
Xxxxx 000, 000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
9. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legal representatives,
successors, successors-in-title and assigns. When used herein, the term
"landlord" refers to Landlord and to any successor to the interest of
Landlord under the Lease.
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IN WITNESS THEREOF, the parties hereto have executed this Agreement
under seal as of the date first above written.
Signed, sealed and delivered LENDER:
in the presence of: TRUST COMPANY BANK
_________________________________ By: ________________________________
Witness Name: ______________________________
Title: _____________________________
_________________________________
Notary Public (BANK SEAL)
Signed, sealed and delivered TENANT:
in the presence of: ATLANTA EAR, NOSE & THROAT
ASSOCIATES, P.C.
_________________________________ By:________________________________
Name:______________________________
Title:_____________________________
_________________________________ (CORPORATE SEAL)
Notary Public
Signed, sealed and delivered TENANT:
in the presence of: GWINNETT PULMONARY GROUP, P.C.
_________________________________ By:________________________________
Witness Name:______________________________
Title:_____________________________
_________________________________
Notary Public (CORPORATE SEAL)
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Signed, sealed and delivered LANDLORD:
in the presence of: DULUTH PROFESSIONAL CENTER, L.P.
By: Duluth Professional Associates
General Partner
By: (SEAL)
------------------------------- --------------------------
Witness
Name:
------------------------------
Title: Managing Partner
-----------------------------
-------------------------------
Notary Public (CORPORATE SEAL)
