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EXHIBIT 10.38
(Medical Space)
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into this 31st day of
July, 1997, by and between Landlord and Tenant.
W I T N E S S E T H:
1. CERTAIN DEFINITIONS. For purposes of this Lease, the following
terms shall have the meanings hereinafter ascribed thereto:
(A) LANDLORD: PAVILION PARTNERS, L.P.
(B) LANDLORD'S ADDRESS: LANDLORD'S ADDRESS FOR PAYMENTS:
0000 Xxxx Xxxxx Xxxxx 0000 Xxxx Xxxxx Xxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
(C) TENANT: PHYSICIANS' SPECIALTY CORP.
(D) TENANT'S ADDRESS:
Before Lease Commencement:
0000 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
After Lease Commencement:
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(E) BUILDING ADDRESS:
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
(F) SUITE NUMBER:640
(G) RENTABLE FLOOR AREA OF THE DEMISED PREMISES: Approximately
4,985 rentable square feet.
(H) XXXXXXXX XXXXX XXXX XX XXX XXXXXXXXX (0000 AND 1150):
237,715 rentable square feet.
(I) TENANT'S PERCENTAGE SHARE: The proportion that the Rentable
Floor Area of the Demised Premises bears to ninety-five
percent (95%) of the Rentable Floor Area of the Buildings or
the average percentage of the Rentable Floor Area of the
Buildings actually leased in the Project if such average is
greater than ninety-five percent (95%) of the Rentable Floor
Area of the Buildings. The average percentage of the Rentable
Area of the Buildings actually leased shall be determined by
adding together the total leased space on the last day of each
month during the calendar year in question and dividing such
sum by twelve (12).
(J) LEASE TERM: Commencing on the Commencement Date and
terminating on the last day of the calendar month which is
Five (5) years and 0 months thereafter.
(K) BASE RENTAL : $15.89 per square foot of Rentable Floor Area
of Demised Premises per year.
(L) COMMENCEMENT DATE: The earlier of (x) October 1, 1997, or
(y) the date upon which Tenant takes possession and occupies
the Demised Premises.
(M) RENTAL COMMENCEMENT DATE: The Commencement Date.
(N) TENANT IMPROVEMENT ALLOWANCE: None
(O) RENTAL DEPOSIT: None
(P) BROKER(S): Xxxxxxx & Xxxx, Inc.
representing Landlord
(Q) INCREASE MULTIPLIER: The term "Increase Multiplier" shall
mean a fraction:
THE NUMERATOR: The Consumer Price Index, as herein defined,
published for the month which is three (3) months prior to the
month in which the Increase Multiplier is being calculated.
THE DENOMINATOR: The Consumer Price Index published for the
month which is fifteen (15) months prior to the month in which
the Increase Multiplier is being calculated. provided however,
in no event shall the Increase Multiplier be less than 1.00.
(R) CONSUMER PRICE INDEX: The revised Consumer Price Index,
Atlanta, Georgia, All Items (1982-1984=100), issued by the
U.S. Department of Labor, Bureau of Labor Statistics. If the
Consumer Price Index published by the U.S. Bureau of Labor
Statistics is discontinued, another index recognized as
authoritative shall in good faith be substituted by Landlord.
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2. LEASE OF PREMISES. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building known as 1100 Lake Xxxxx Drive (the "Building") located on that
certain tract of land, more particularly described on EXHIBIT "A" attached
hereto and by this reference made a part hereof (the "Land"), which Demised
Premises are outlined on the floor plan attached hereto as EXHIBIT "B" and by
this reference made a part hereof, with no easement for light, view or air
included in the Demised Premises or being granted hereunder. The "Project" is
comprised of the Building, the other building located on the Land, known as 0000
Xxxx Xxxxx Xxxxx (the "Other Building"; the Building and the Other Building
being hereinafter sometimes collectively called the "Buildings"), the Land, the
Buildings' parking facilities, any walkways, covered walkways, tunnels or other
means of access to the Building and the Buildings' parking facilities, all
common areas, including any lobbies or plazas, and any other improvements or
landscaping now or hereafter located on the Land. Except as set forth in EXHIBIT
"G" attached hereto, no rights to any parking spaces are granted under this
Lease; however, Tenant and Tenant's employees, invitees and licensees shall be
entitled to use, on a non-exclusive basis in common with other tenants of the
Building or adjacent buildings, the surface parking facilities located from time
to time adjacent to the Building and owned by Landlord. Such use of the parking
facilities shall be subject to any and all reasonable rules and regulations
established by Landlord with respect to the parking facilities. Anything to the
contrary in this Lease notwithstanding, Landlord reserves the right and
privilege to, from time to time, alter, increase and reduce the location,
structure and layout of the Project, including, but not limited to, the parking
areas and other common areas as long as the alterations, increase and
regulations do not materially interfere with Tenant's occupancy of the Demised
Premises. Tenant's parking rights are set forth in Special Stipulation #1,
EXHIBIT "G" attached hereto.
3. TERM. The term of this Lease (the "Lease Term") shall commence on the
Commencement Date, and, unless sooner terminated as provided in this Lease,
shall end on the expiration of the period designated in Article 1(j) above.
Promptly after the Commencement Date, Landlord shall send to Tenant a Tenant
Acceptance Agreement in the form of EXHIBIT "C" attached hereto and by this
reference made a part hereof, specifying the Commencement Date, the Rental
Commencement Date, the date of expiration of the Lease Term in accordance with
Article 1(j) above and certain other matters as therein set forth.
4. POSSESSION. Within ten (10) days after the Occupancy Date, Tenant
shall execute and deliver to Landlord a Tenant Acceptance Agreement in the form
attached hereto as EXHIBIT "C".
5. BASE RENTAL.
(a) Tenant covenants and agrees to pay to Landlord during the Lease
Term the amounts specified in Article 1(k) (as adjusted from time to time, the
"Base Rental") as base rent for the Premises. The Base Rental shall be paid in
equal monthly installments in advance, without demand, deduction or set off, on
the first (1st) day of each and every calendar month during the Lease Term. A
prorated monthly installment shall be paid in advance on the Rental Commencement
Date for any fraction of a month if the Rental Commencement Date occurs on any
day other than the first day of any month and on the first day of the final
month of the Lease Term for any fraction of a month if the Lease Term shall
expire or terminate on any day other than the last day of any month.
(b) The Base Rental for the first year of the Lease Term is set forth
in Article 1(k) above. On each anniversary of the Commencement Date, the Base
Rental shall be increased to an amount equal to the product of: (i) the amount
of Base Rental for the previous calendar year (or portion thereof adjusted to
reflect an annual rental) multiplied by (ii) the Increase Multiplier.
(c) Tenant covenants and agrees to pay to Landlord during the Lease
Term such sums as are referred to herein as "Additional Rental" when due,
without demand, deduction or set off. As used herein, the term "Rent" shall mean
Base Rental, Additional Rental, and any other amounts due from Tenant hereunder.
Any sums payable to Landlord by Tenant hereunder shall be deemed Additional
Rental, and Landlord shall have all of the remedies upon default as it does for
failure to pay Base Rental.
6. RENTAL DEPOSIT. Landlord acknowledges that it has received from Tenant
the amount specified in Article 1(o) above (the "Rental Deposit"), which sum
shall be retained by Landlord, without obligation for interest, as security for
the performance of Tenant's covenants and obligations under this Lease. Landlord
shall have no obligation to segregate such Rental Deposit from any other funds
of Landlord. The Rental Deposit shall be returned to Tenant within thirty (30)
days after the expiration of the Lease Term, if Tenant has fully performed its
material obligations hereunder. Landlord shall have the right to apply any part
of said Rental Deposit to cure any material default of Tenant if such default is
not cured within such applicable grace period and if Landlord does so, Tenant
shall upon demand deposit with Landlord the amount so applied so that Landlord
shall have the full Rental Deposit on hand at all times during the Lease Term.
If there is a sale or lease of the Building subject to this Lease, Landlord
shall transfer the Rental Deposit to the vendee or lessee, and Landlord shall be
released from all liability for the return of such Rental Deposit. Tenant shall
look solely to the successor Landlord for the return of said Rental Deposit.
This provision shall apply to every transfer or assignment made of the Rental
Deposit to a successor Landlord. The Rental Deposit shall not be assigned or
encumbered by Tenant without the prior consent of Landlord and any such
unapproved assignment or encumbrance shall be void.
7. ADDITIONAL RENTAL. Tenant shall pay, as Additional Rental, Tenant's
Percentage Share of the amount, if any, by which Operating Expenses (as
hereinafter defined) for any calendar year exceed $1,545,147.50 ($6.50/rentable
square foot of the Buildings). The Additional Rental payable pursuant to this
paragraph shall be determined, and paid in accordance with the following
procedures:
(i) During each December of the Lease Term, or as soon thereafter
as practicable, Landlord shall give Tenant written notice of its estimate of
Additional Rental payable under this Article 7 for the ensuing calendar year. On
or before the first day of each month during the ensuing calendar year, Tenant
shall pay to Landlord one-twelfth (1/12) of such estimated amounts together with
the Base Rental, provided that if such notice is not given in December, Tenant
shall continue to pay such Additional Rental during the ensuing calendar year on
the basis of the amounts payable during the calendar year just ended, until the
month after such notice is given.
(ii) As soon as practicable after the close of each calendar year
during the Lease Term, Landlord shall deliver to Tenant a statement of the
adjustments to be made for the calendar year just ended. Such statement shall be
final and binding upon Landlord and Tenant absent manifest error. If on the
basis of such statement Tenant's Percentage Share of the actual increase in
Operating Expenses for such calendar year is an amount that is less than the
estimated payments actually made by Tenant for such calendar year, Landlord
shall credit such excess to the next payments of Additional Rental and Base
Rental coming due. If on the basis of such statement Tenant's Percentage Share
of the actual increase in Operating Expenses for such calendar year is an amount
greater that the estimated payments actually made by Tenant, Tenant shall pay as
Additional Rental the deficiency to Landlord within thirty (30) days after
delivery of the statement.
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(iii) If this Lease shall commence, expire or terminate on a day
other than the last day of a calendar year, the amount of Additional Rental
payable during the first or final calendar year of the Lease Term, as the case
may be, shall be prorated based on the actual number of days of the Lease Term
during such calendar year. The expiration or termination of this Lease shall not
affect the obligations of Landlord and Tenant to be performed after such
expiration or termination, pursuant to this Article 7.
8. OPERATING EXPENSES.
For purposes of this Lease, "Operating Expenses" shall mean all costs
and expenses of the ownership, operation, maintenance, repair, ad valorem taxes,
management, and security of the Project of every kind and nature (including,
without limitation, all amounts, including interest thereon if such amounts are
borrowed, spent by Landlord to reduce Operating Expenses, comply with government
regulations, promote safety or maintain the status of the Project, calculated on
an accrual basis. Operating Expenses shall specifically include an annual
replacement reserve ("Annual Replacement Reserve"). For the calendar year 1997,
the Annual Replacement Reserve shall be $142,629.00 ($.60/rentable square foot
of the Buildings). Each calendar year thereafter the Annual Replacement Reserve
shall be increased by the Increase Multiplier. Operating Expenses shall not
include (i) depreciation on the Buildings and personal property, (ii) Tenant
Costs (as defined in the Tenant Improvement Agreement), (iii) payments by
Landlord of interest and principal on any mortgage secured by the Project or any
portion thereof, (iv) the cost of special services rendered to a particular
tenant of the Buildings, which are paid or reimbursed by such tenant, and (v)
leasing commissions. If the average occupancy level was less than ninety five
percent (95%) of the total Rentable Floor Area of the Buildings during a
calendar year, the Operating Expenses for that calendar year shall be adjusted
to an amount equal to Landlord's computation of Operating Expenses had ninety
five percent (95%) of the total Rentable Floor Area of the Buildings been
occupied, and the amount so computed shall be deemed to be "Operating Expenses"
for the purpose of computing Additional Rental.
9. SERVICES BY LANDLORD. Landlord agrees to provide to Tenant the
following services:
(a) General cleaning and janitorial service required as a result of
normal, prudent use of the Demised Premises and only on Mondays through Fridays,
inclusive, with New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day and such other holidays which are observed
locally by national banks (herein collectively called the "Holidays") excepted.
(b) Heating and air-conditioning service daily on Monday through
Fridays, inclusive, with Holidays excepted, from 8:00 A.M. to 6:00 P.M. and on
Saturdays, if not a Holiday, from 8:00 A.M. to 1:00 P.M. Landlord reserves the
right to prohibit the use of machines and equipment that generate excessive heat
in their operation. Should Tenant desire either heating or air-conditioning at
times when such services are not furnished by Landlord under the terms of this
Lease, Landlord will furnish such services as requested by Tenant upon not less
than 24 hours notice from Tenant, at Tenant's expense and at such hourly charge
as is from time to time determined by Landlord. Payments for such additional
services shall be deemed Additional Rental due from Tenant and shall be due and
payable on demand;
(c) Elevator service daily on Mondays through Fridays, inclusive, with
Holidays excepted, and 8:00 A.M. to 6:00 P.M. and on Saturdays, if not a
Holiday, from 8:00 A.M. to 1:00 P.M. At least one elevator shall be operative at
all other hours; and
(d) Electric current for lighting and reasonable facilities for
furnishing usual and normal electric power for medical office space. Tenant
shall not, without Landlord's prior written consent, use any equipment,
including, diagnostic equipment, X-ray machines, or any other machines which use
electric current in excess of 110 volts, which will increase the amount of
electricity ordinarily furnished for the use of the Premises as medical office
space or which requires clean circuits or other special distribution circuits.
Landlord's consent for Tenant's use of such equipment shall be conditioned upon
Tenant and Landlord agreeing upon the amount Tenant shall pay each month for
increased electrical consumption.
(e) Water shall be provided to the Demised Premises in an amount
sufficient for private toilets and for hand washing. The cost of any water used
in excess of such amount shall be reimbursed to Landlord on demand as Additional
Rental, with the amount and cost of such excess determined by Landlord in its
reasonable discretion.
(f) Upon Landlord determining Tenant is using utility services that are
not consistent with normal office usage, Landlord reserves the right to install
separate metering devices, at Tenant's expense, and to charge Tenant for the
cost of all excess or after-hours use of services.
10. TENANT TAXES. Tenant shall pay promptly when due all taxes directly or
indirectly imposed or assessed upon Tenant's gross sales, business operations,
machinery, equipment, trade fixtures and other personal property or assets,
whether such taxes are assessed against Tenant, Landlord or the Project. In the
event that such taxes are imposed or assessed against Landlord or the Project,
Landlord shall furnish Tenant with all applicable tax bills, public charges and
other assessments or impositions and Tenant shall forthwith pay the same either
directly to the taxing authority or, at Landlord's option, to Landlord.
11. PAYMENTS. All payments of Rent and other payments to be made to
Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or delivered
to Landlord's Address for payments designated in Article 1(b) above or at such
other place as Landlord may designate from time to time in writing. If mailed,
all payments shall be mailed in sufficient time and with adequate postage
thereon to be received in Landlord's account by no later than the due date for
such payment. Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each
check presented to Landlord in payment of any obligation of Tenant which is not
paid by the bank on which it is drawn, together with interest from and after the
due date for such payment at the rate of eighteen percent (18%) per annum on the
amount due.
12. LATE CHARGES. Any Rent or other amounts payable to Landlord under this
Lease, if not paid by the fifth day of the month for which such Rent is due, or
by the due date specified on any invoices from Landlord for any other amounts
payable hereunder, shall incur a late charge of Fifty Dollars ($50.00) for
Landlord's administrative expense in processing such delinquent payment and in
addition thereto shall bear interest at the rate of eighteen percent (18%) per
annum from and after the due date for such payment. Notwithstanding anything to
the contrary contained in this Lease, in no event shall the rate of interest
payable on any amount due under this Lease exceed the legal limits for such
interest enforceable under applicable law.
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13. USE RULES. The Demised Premises shall be used for office space purposes
and no other purposes and in accordance with all applicable laws, ordinances,
rules and regulations of governmental authorities and the Rules and Regulations
attached hereto as EXHIBIT "E" and the Building Moving Policy attached hereto as
EXHIBIT "F" and made a part hereof. Tenant covenants and agrees that it will, at
its expense, comply with all laws, ordinances, orders, directions, requirements,
rules and regulations of all governmental authorities (including Federal, State,
county and municipal authorities), now in force or which may hereafter be in
force, which shall impose any duty upon Landlord or Tenant with respect to the
use, occupancy or alteration of the Demised Premises (including, without
limitation, the Americans With Disabilities Act ["ADA"]) or any unique aspect of
Tenant's use, occupancy or alteration thereof, and of all insurance bodies
applicable to the Demised Premises or to the Tenant's use, occupancy or
alteration thereof. Tenant covenants and agrees to abide by the Rules and
Regulations and the Building Moving Policy in all respects as now set forth and
attached hereto or as hereafter reasonably promulgated by Landlord. Landlord
shall have the right at all times during the Lease Term to publish and
promulgate and thereafter enforce such rules and regulations or changes in the
existing Rules and Regulations as it may reasonably deem necessary in its sole
discretion to protect the tenantability, safety, operation, and welfare of the
Demised Premises and the Project.
14. ALTERATIONS. Tenant shall not make, suffer or permit to be made any
alterations, additions or improvements to or of the Demised Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written consent, and Landlord shall not unreasonably withhold or
delay its consent of any non-structural alterations, additions or improvements
that do not affect building systems. Any such alterations, additions or
improvements to the Demised Premises consented to by Landlord shall be made by
Landlord or under Landlord's supervision for Tenant's account and Tenant shall
reimburse Landlord for all costs thereof (including a reasonable charge for
Landlord's overhead), as Rent, within ten (10) days after receipt of a
statement. All such alterations, additions and improvements, shall become
Landlord's property at the expiration or earlier termination of the Lease Term
and shall remain on the Demised Premises without compensation to Tenant unless
Landlord elects by notice to Tenant to have Tenant remove such alterations,
additions and improvements, in which event, notwithstanding any contrary
provisions respecting such alterations, additions and improvements contained in
Article 32 hereof, Tenant shall promptly restore, at its sole cost and expense,
the Demised Premises to its condition prior to the installation of such
alterations, additions and improvements, normal wear and tear excepted.
15. REPAIRS.
(a) Landlord shall maintain in good order and repair, subject to normal
wear and tear and subject to casualty and condemnation, the Building (excluding
the Demised Premises and other portions of the Building leased to other
tenants), the Building parking facilities, the public areas and the landscaped
areas. Notwithstanding the foregoing obligation, the cost of any repairs or
maintenance to the foregoing necessitated by the intentional acts or negligence
of Tenant or its agents, contractors, employees, invitees, licensees, tenants or
assigns, shall be borne solely by Tenant and shall be deemed Rent hereunder and
shall be reimbursed by Tenant to Landlord upon demand. Landlord shall not be
required to make any repairs or improvements to the Demised Premises except
structural repairs necessary for safety and tenantability, the necessity for
which (i) Landlord is notified in writing by Tenant, and (ii) is not brought
about by any act or neglect of Tenant, its agents, employees or contractors,
licensees, or invitees.
(b) Tenant covenants and agrees that it will take good care of the
Demised Premises and all alterations, additions and improvements thereto and
will keep and maintain the same in good condition and repair, except for normal
wear and tear. Tenant shall at once report, in writing, to Landlord any
defective or dangerous condition known to Tenant. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this Lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect. Landlord shall not be
liable to Tenant for damage to person or property caused by any latent defects
in the Building or the Demised Premises, defects in the cooling, heating,
electric, water, elevator or other apparatus or systems or by water discharged
from sprinkler systems, if any, in the Building or the Demised Premises, nor for
the theft, mysterious disappearance, or loss of any property of Tenant or
Tenant's agents, employees, contractors, licensees, or invitees, whether from
the Demised Premises or any part of the Building. To the fullest extent
permitted by law, Tenant hereby waives all rights to make repairs at the expense
of Landlord or in lieu thereof to vacate the Demised Premises as may be provided
by any law, statute or ordinance now or hereafter in effect. Landlord has no
obligation and has made no promise to alter, remodel, improve, repair, decorate
or paint the Demised Premises or any part thereof, except as specifically and
expressly herein set forth.
(c) Tenant shall at its own cost and expense keep and maintain the
Demised Premises and all parts thereof in good repair and tenantable condition
and indemnify Landlord against any loss, damage, or expense arising by reason of
any failure of Tenant so to keep the Demised Premises in good repair and
tenantable condition or due to any act or neglect of Tenant, its agents,
employees, contractors, invitees, or licensees. If Tenant fails to perform, or
cause to be performed, such maintenance and repairs, then at the option of
Landlord, in its sole discretion, any such maintenance or repair may be
performed or caused to be performed by Landlord and the cost and expense thereof
shall be charged to Tenant, and Tenant shall pay the amount thereof to Landlord
on demand as Additional Rental. Tenant shall not install X-ray machines or other
equipment which emits radiation in the Demised Premises without Landlord's
approval, which approval shall not be unreasonably withheld. Landlord's
withholding of consent shall not be unreasonable if, by way of illustration and
not limitation, adequate protection for the safety of people is not installed in
connection with such equipment. 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 or other equipment which emits
radiation. All equipment owned or operated by Tenant must be installed and
protected in a manner satisfactory to Landlord and in compliance with all
governmental regulations. Tenant will be obligated to obtain and maintain at its
expense any permits, licenses or approvals required in connection with its use
of the Demised Premises or in connection with any equipment of Tenant in the
Demised Premises.
All repairs, replacements and clearing of stoppages from plumbing
fixtures within the Demised Premises, as well as repair or replacement of
special or non-standard electrical fixtures, lights and light bulbs within the
Demised Premises (other than standard 2x4 lights), and the furnishing of toilet
paper and paper towels to toilets and sinks located within the Demised Premises
shall be at Tenant's expense.
(d) Tenant agrees to conform to Landlord's signage program for the
Building; however, all costs and expenses for any sign, sign installation,
removal and repair shall be paid by Tenant. Tenant shall obtain the written
approval of Landlord prior to placing and maintaining, or causing or permitting
to be placed and maintained, any sign, advertising matter or other thing of any
kind, on the exterior of the Demised Premises, or any decorating, lettering or
advertising matter on any exterior door to the Demised Premises. Tenant shall
not affix or attach anything to windows in the Demised Premises.
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16. LANDLORD'S RIGHT OF ENTRY. Landlord shall retain duplicate keys to all
doors of the Demised Premises, and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder, all without being liable to Tenant in any manner
whatsoever for any damages arising therefrom; provided, however, that Landlord
shall, except in case of emergency, afford Tenant such prior notification of an
entry into the Demised Premises as shall be reasonably practicable under the
circumstances. Landlord shall be allowed to take into and through the Demised
Premises any and all materials that may be required to make such repairs,
additions, alterations or improvements. During such time as such work is being
carried on, in or about the Demised Premises, the Rent provided herein shall not
xxxxx, and Tenant waives any claim or cause of action against Landlord for
damages by reason of interruption of Tenant's business or loss of profits
therefrom because of the prosecution of any such work or any part thereof.
Tenant shall give written notice to Landlord at least thirty (30) days prior to
vacating the Demised Premises.
17. INSURANCE. Tenant shall procure at its expense and maintain throughout
the Lease Term a policy or policies of commercial property insurance, issued on
an "all risks" basis insuring the full replacement cost of its furniture,
equipment, supplies and other property owned, leased, held or possessed by it
and contained in the Demised Premises, together with the excess value of the
improvements to the Demised Premises over the Tenant Improvement Allowance (with
a replacement cost endorsement sufficient to prevent Tenant from becoming a
co-insurer), and workmen's compensation insurance as required by applicable law.
Tenant shall also procure at its expense and maintain throughout the Lease Term
a policy or policies of commercial general liability insurance, written on an
occurrence basis and insuring Tenant, Landlord and any other person designated
by Landlord, against any and all liability for injury to or death of a person or
persons and for damage to property occasioned by or arising out of any
construction work being done on the Demised Premises, or arising out of the
condition, use or occupancy of the Demised Premises, or in any way occasioned by
or arising out of the activities of Tenant, its agents, contractors, employees,
guests or licensees in the Demised Premises, or other portions of the Building
or the Project, the limits of such policy or policies to be in combined single
limits for both damage to property and personal injury and in amounts not less
than Three Million Dollars ($3,000,000.00) for each occurrence. Such insurance
shall, in addition, extend to any liability of Tenant arising out of the
indemnities provided for in this Lease. Tenant shall also carry such other types
of insurance in form and amount which Landlord shall reasonably deem to be
prudent for Tenant to carry. All insurance policies procured and maintained by
Tenant pursuant to this Article 17 shall name Landlord and any additional
parties designated by Landlord as additional insured, shall be carried with
companies licensed to do business in the State of Georgia reasonably
satisfactory to Landlord and shall be non-cancelable and not subject to material
change except after twenty (20) days' written notice to Landlord. Such policies
or duly executed certificates of insurance with respect thereto, accompanied by
proof of payment of the premium therefor, shall be delivered to Landlord prior
to the Rental Commencement Date, and renewals of such policies shall be
delivered to Landlord at least thirty (30) days prior to the expiration of each
respective policy term during the term of this Lease or any renewal or extension
thereof.
18. WAIVER OF SUBROGATION. Landlord and Tenant shall each have included in
all policies of commercial property insurance, and business interruption and
other property insurance respectively obtained by them covering the Demised
Premises, the Building and contents therein, a waiver by the insurer of all
right of subrogation against the other in connection with any loss or damage
thereby insured against. Any additional premium for such waiver shall be paid by
the primary insured. To the full extent permitted by law, Landlord and Tenant
each waives all right of recovery against the other for, and releases the other
from liability for, loss or damage to the extent such loss or damage is covered
by valid and collectable insurance in effect at the time of such loss or damage
or would be covered by the insurance required to be maintained under this Lease
by the party seeking recovery.
19. DEFAULT.
(a) The following events shall be deemed to be events of default by
Tenant under this Lease: (i) Tenant shall fail to pay any installment of Rent or
any other charge or assessment against Tenant pursuant to the terms hereof
within five (5) days after the due date thereof; (ii) Tenant shall fail to
comply with any term, provision, covenant or warranty made under this Lease by
Tenant, other than the payment of the Rent or any other charge or assessment
payable by Tenant, and shall not cure such failure within forty-five (45) days
after notice is received or deemed received thereof to Tenant; (iii) Tenant or
any guarantor of this Lease shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a petition in bankruptcy, or shall be adjudicated as
bankrupt or insolvent, or shall file a petition in any proceeding seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation, or
shall file an answer admitting, or fail timely to contest the material
allegations of a petition filed against it in any such proceeding; (iv) a
proceeding is commenced against Tenant or any guarantor of this Lease seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, and such proceeding shall not have been dismissed within fifteen
(15) days after the commencement thereof; (v) a receiver or trustee shall be
appointed for the Demised Premises or for all or substantially all of the assets
of Tenant or of any guarantor of this Lease; (vi) Tenant shall abandon or vacate
all or any portion of the Demised Premises or fail to take possession thereof as
provided in this Lease; (vii) Tenant shall do or permit to be done anything
which creates a lien upon the Demised Premises or the Project and such lien is
not removed or discharged within thirty (30) days after the filing thereof;
(viii) Tenant shall fail to return a properly executed instrument to Landlord in
accordance with the provisions of Article 27 hereof within the time period
provided for such return following Landlord's request for same as provided in
Article 27; or (ix) Tenant shall fail to return a properly executed estoppel
certificate to Landlord in accordance with the provisions of Article 28 hereof
within the time period provided for such return following Landlord's request for
same as provided in Article 28. Notwithstanding anything to the contrary herein,
Tenant shall not be considered in default if Tenant abandons the Demised
Premises as long as Tenant continues to fulfill all of its obligations herein,
including, but not limited to, the payment of rent.
(b) Upon the occurrence of any of the aforesaid events of default,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever: (i) terminate this Lease, in
which event Tenant shall immediately surrender the Demised Premises to Landlord
and if Tenant fails to do so, Landlord may without prejudice to any other remedy
which it may have for possession or arrearages in Rent, enter upon and take
possession of the Demised Premises and expel or remove Tenant and any other
person who may be occupying said Demised Premises or any part thereof, by force,
if necessary, without being liable for prosecution or any claim of damages
therefor; Tenant hereby agreeing to pay to Landlord on demand the amount of all
loss and damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Demised Premises on satisfactory terms or
otherwise; (ii) terminate Tenant's right of possession (but not this Lease) and
enter upon and take possession of the Demised Premises and expel or remove
Tenant and any other person who may be occupying said Demised Premises or any
part thereof, by entry (including the use of force, if necessary), dispossessory
suit or otherwise, without thereby releasing Tenant from any liability
hereunder, without terminating this Lease,
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and without being liable for prosecution or any claim of damages therefor and,
if Landlord so elects, make such alteration, redecorations and repairs as, in
Landlord's judgment, may be necessary to relet the Demised Premises, and
Landlord may, but shall be under no obligation to do so, relet the Demised
Premises or any portion thereof in Landlord's or Tenant's name, but for the
account of Tenant, for such term or terms (which may be for a term extending
beyond the Lease Term) and at such rental or rentals and upon such other terms
as Landlord may deem advisable, with or without advertisement, and by private
negotiations, and receive the rent therefor, Tenant hereby agreeing to pay to
Landlord the deficiency, if any, between all Rent reserved hereunder and the
total rental applicable to the Lease Term hereof obtained by Landlord
re-letting, and Tenant shall be liable for Landlord's reasonable expenses in
redecorating and restoring the Demised Premises and all reasonable costs
incident to such re-letting, including broker's commissions and lease
assumptions, and in no event shall Tenant be entitled to any rentals received by
Landlord in excess of the amounts due by Tenant hereunder except to offset
redecorating expenses; or (iii) enter upon the Demised Premises by force, if
necessary, without being liable for prosecution or any claim of damages
therefor, and do whatever Tenant is obligated to do under the terms of this
Lease; and Tenant agrees to reimburse Landlord on demand for any reasonable
expenses including, without limitation, reasonable attorneys' fees actually
incurred which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease and Tenant further agrees that Landlord shall not
be liable for any damages resulting to Tenant from such action, whether caused
by negligence of Landlord or otherwise. If this Lease is terminated by Landlord
as a result of the occurrence of an event of default, Landlord may declare the
entire amount of Rent and other charges and assessments which in Landlord's
reasonable determination would become due and payable during the remainder of
the Lease Term (including, but not limited to, increases in Rent pursuant to
Article 7 hereof), discounted to present value by using a discount factor of
eight percent (8%) per annum, to be due and payable immediately. Upon the
acceleration of such amounts, Tenant agrees to pay the same at once, together
with all Rent and other charges and assessments theretofore due, at Landlord's
address as provided herein; provided, however, that such payment shall not
constitute a penalty or forfeiture but shall constitute liquidated damages for
Tenant's failure to comply with the terms and provisions of this Lease (Landlord
and Tenant agreeing that Landlord's actual damages in such an event are
impossible to ascertain and that the amount set forth above is a reasonable
estimate thereof). Upon making the entire such payment, Tenant shall receive
from Landlord all rents received by Landlord from other tenants renting the
Demised Premises or any portion thereof during the Lease Term (with appropriate
allocations of such rents in the event such other tenants lease space in
addition to the Demised Premises), provided that the monies to which Tenant
shall so become entitled shall in no event exceed the entire amount actually
paid by Tenant to Landlord pursuant to the preceding sentence, less all of
Landlord's costs and expenses (including, without limitation, Landlord's
expenses in redecorating and restoring the Demised Premises and all costs
incident to such reletting, including broker's commissions and lease
assumptions) incurred in connection with or in any way related to the reletting
of the Demised Premises.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit
of any other remedy herein provided or any other remedy provided by law or at
equity, nor shall pursuit of any remedy herein provided constitute an election
of remedies thereby excluding the later election of an alternate remedy, or a
forfeiture or waiver of any Rent or other charges and assessments payable by
Tenant and due to Landlord hereunder or of any damages accruing to Landlord by
reason of violation of any of the terms, covenants, warranties and provisions
herein contained. No reentry or taking possession of the Demised Premises by
Landlord or any other action taken by or on behalf of Landlord shall be
construed to be an acceptance of a surrender of this Lease or an election by
Landlord to terminate this Lease unless written notice of such intention is
given to Tenant. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. In determining the amount of loss or damage
which Landlord may suffer by reason of termination of this Lease or the
deficiency arising by reason of any reletting of the Demised Premises by
Landlord as above provided, allowance shall be made for the expense of
repossession. Tenant agrees to pay to Landlord all costs and expenses incurred
by Landlord in the enforcement of this Lease, including without limitation, the
fees of Landlord's attorneys as provided in Article 25 hereof.
20. WAIVER OF BREACH. No waiver of any breach of the covenants, warranties,
agreements, provisions, or conditions contained in this Lease shall be construed
as a waiver of said covenant, warranty, provision, agreement or condition or of
any subsequent breach thereof, and if any breach shall occur and afterwards be
compromised, settled or adjusted, this Lease shall continue in full force and
effect as if no breach occurred.
21. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written
consent of Landlord, assign this Lease or any interest herein or in the Demised
Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or
sublet the Demised Premises or any part thereof or permit the use of the Demised
Premises by any party other than Tenant. Consent to one or more such transfers
or subleases shall not destroy or waive this provision, and all subsequent
transfers and subleases shall likewise be made only upon obtaining the prior
written consent of Landlord. Without limiting the foregoing prohibition, in no
event shall Tenant assign this Lease or any interest herein, whether directly,
indirectly or by operation of law, or sublet the Demised Premises or any part
thereof or permit the use of the Demised Premises or any part thereof by any
party if such proposed assignment, subletting or use would contravene any
restrictive covenant (including any exclusive use) granted to any other tenant
of the Building or would contravene the provisions of Article 13 of this Lease.
Subleasees, assignees or transferees of the Demised Premises for the balance of
the Lease Term shall become directly liable to Landlord for all obligations of
Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's
obligations hereunder) of any liability therefor, and Tenant shall remain
obligated, as a principal and not as surety, for all liability to Landlord
arising under this Lease during the entire remaining Lease Term including any
extensions thereof, whether or not authorized herein. If Tenant is a partnership
or limited liability company, a withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners or members owning a controlling
interest in the Tenant shall be deemed a voluntary assignment of this Lease and
subject to the forgoing provisions. If Tenant is a corporation, any dissolution,
merger, consolidation or other reorganization of Tenant, or the sale or transfer
of a controlling interest in the capital stock of Tenant, whether in a single
transaction or in a series of transactions, shall be deemed a voluntary
assignment of this Lease and subject to the foregoing provisions. Landlord may,
as a prior condition to considering any request for consent to an assignment or
sublease, require Tenant to obtain and submit current financial statements of
any proposed subtenant or assignee and such other financial documentation
relative to the proposed subtenant or assignee as Landlord may reasonably
require. In the event Landlord consents to an assignment or sublease, Tenant
shall pay to the Landlord a fee to cover Landlord's accounting costs plus any
legal fees incurred by Landlord as a result of the assignment or sublease. The
consent of Landlord to any proposed assignment or sublease may be withheld by
Landlord in its sole and absolute discretion. Landlord may require an additional
security deposit from the assignee or subtenant as a condition of its consent.
Any consideration, in excess of the Rent and other charges and sums due and
payable by Tenant under this Lease, paid to Tenant by any assignee of this Lease
for its assignment, or by any sublessee under or in connection with its
sublease, or otherwise paid to Tenant by another party for use and occupancy of
the Demised Premises or any portion thereof, shall be promptly remitted by
Tenant to Landlord as additional rent hereunder and Tenant shall have no right
or claim thereto as against Landlord. No assignment of this Lease consented to
by Landlord shall be effective unless and until Landlord shall receive an
original assignment and assumption agreement, in form and substance satisfactory
to Landlord, signed by Tenant and Tenant's proposed assignee, whereby the
assignee assumes due performance of this Lease to be done and performed for the
balance of the then remaining Lease Term of this Lease. No subletting of the
Demised Premises, or any part thereof, shall be effective unless and until there
shall have been delivered to Landlord an agreement, in form and substance
satisfactory to Landlord, signed by Tenant
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and the proposed sublessee, whereby the sublessee acknowledges the right of
Landlord to continue or terminate any sublease, in Landlord's sole discretion,
upon termination of this Lease, and such sublessee agrees to recognize and
attorn to Landlord in the event that Landlord elects under such circumstances to
continue such sublease. Upon Landlord's receipt of a request by Tenant to assign
this Lease or any interest herein or in the Demised Premises or to transfer or
sublet the Demised Premises or any part thereof or permit the use of the Demised
Premises by any party other than Tenant, Landlord shall have the right, at
Landlord's option, to exercise in writing any of the following options: (a) to
terminate this Lease as to the portion of the Demised Premises proposed to be
assigned or sublet; (b) to consent to the proposed assignment or sublease,
subject to the other terms and conditions set forth in this Article 21; or (c)
to refuse to consent to the proposed assignment or sublease, which refusal shall
be deemed to have been exercised unless Landlord gives Tenant written notice
providing otherwise.
22. DESTRUCTION.
(a) If the Demised Premises are damaged by fire or other casualty, the
same shall be repaired or rebuilt as speedily as practical under the
circumstances at the expense of Landlord, unless this Lease is terminated as
provided in this Article 22, and during the period required for restoration, a
just and proportionate part of Base Rental shall be abated until the Demised
Premises are repaired or rebuilt.
(b) If (i) the Demised Premises or the Project are damaged to such an
extent that repairs cannot, in Landlord's judgment, be completed within one
hundred eighty (180) days after the date of the commencement of repair of the
casualty, or (ii) the Demised Premises or the Project are damaged or destroyed
as a result of a risk which is not insured under the insurance polices required
hereunder, or (iii) the Demised Premises are damaged or destroyed during the
last twelve (12) months of the Lease Term, or (iv) if the Project is damaged in
whole or in part (whether or not the Demised Premises are damaged) to such an
extent that the Project cannot, in Landlord's judgment, be operated economically
as an integral unit, then and in any such event Landlord may at its option
terminate this Lease by notice in writing to Tenant within sixty (60) days after
the day of such occurrence. If the Demised Premises are damaged to such an
extent that repairs cannot, in Landlord's judgment, be completed within one
hundred eighty (180) days after the date of the commencement of repair of the
casualty or if the Demised Premises are substantially damaged during the last
twelve (12) months of the Lease Term, then in either such event Tenant may elect
to terminate this Lease by notice in writing to Landlord within fifteen (15)
days after the date of such occurrence. Unless Landlord or Tenant elects to
terminate this Lease as hereinabove provided, this Lease will remain in full
force and effect and Landlord shall repair such damage at its expense to the
extent required under subparagraph (c) below as expeditiously as possible under
the circumstances.
(c) If Landlord should elect or be obligated pursuant to subparagraph
(a) above to repair or rebuild because of any damage or destruction, Landlord's
obligation shall be limited to the original Building and any other work or
improvements which were originally performed or installed at Landlord's expense
as described in EXHIBIT "D" hereto or with the proceeds of the Tenant
Improvement Allowance. If the cost of performing such repairs exceeds the actual
proceeds of insurance paid or payable to Landlord on account of such casualty,
or if Landlord's mortgagee or the lessor under a ground or underlying lease
shall require that any insurance proceeds from a casualty loss be paid to it,
Landlord may terminate this Lease unless Tenant, within fifteen (15) days after
demand therefor, deposits with Landlord a sum of money sufficient to pay the
difference between the cost of repair and the proceeds of the insurance
available to Landlord for such purpose.
(d) In no event shall Landlord be liable for any loss or damage
sustained by Tenant by reason of casualties mentioned hereinabove or any other
accidental casualty. In no event shall Landlord be required to rebuild, repair,
or replace any tenant improvements or any personal property, equipment, or trade
fixtures which belong to Tenant.
(e) Any insurance which may be carried by Landlord or Tenant against
loss or damage to the Building or the Demised Premises shall be for the sole
benefit of the party carrying such insurance.
(f) If any such casualty stated in this Article 22 occurs, Landlord
shall not be liable to Tenant for inconvenience, annoyance, loss of profits,
expenses, or any other type of injury or damage resulting from the repair of any
such damage, or from any repair, modification, arranging, or rearranging of any
portion of the Demised Premises or any part or all of the Building or for
termination of this Lease as provided in this Article 22.
(g) Anything in this Article 22 to the contrary notwithstanding, for
purposes of this Article 22, Landlord shall not be obligated to commence any
repair or restoration unless and until insurance proceeds are actually received
by Landlord, and Landlord's restoration obligations shall be limited to the
extent of the insurance proceeds actually received by Landlord therefor and
which the holder of any mortgage or deed to secure debt encumbering any portion
of the Building, or the ground lessor under any ground lease affecting any
portion of the Building, permit Landlord to apply toward the restoration of the
Building.
23. LANDLORD'S LIEN. Landlord shall at all times have a valid first lien
upon all of the personal property of Tenant situated in the Demised Premises to
secure payment of Rent and other sums and charges due hereunder from Tenant to
Landlord and to secure the performance by Tenant of each and all of the
covenants, warranties, agreements and conditions hereof. Said personal property
shall not be removed from the Demised Premises without the consent of Landlord
until all arrearage in Rent and other charges as well as any and all other sums
of money due hereunder shall first have been paid and discharged and until this
Lease and all of the covenants, conditions, agreements and provisions hereof
have been fully performed by Tenant. Tenant shall from time to time execute any
financing statements and other instruments necessary to perfect the security
interest granted herein. The lien herein granted may be foreclosed in the manner
and form provided by law for the foreclosure of security instruments or chattel
mortgages, or in any other manner provided by law. This Lease is intended as and
constitutes a security agreement within the meaning of the Uniform Commercial
Code of the State of Georgia.
24. NOT USED.
25. ATTORNEYS' FEES AND HOMESTEAD. If any Rent or other debt owing by
Tenant to Landlord hereunder is collected by or through an attorney-at-law,
Tenant agrees to pay Landlord's actual reasonable attorneys' fees thereby
incurred. In the event of litigation between the Landlord and the Tenant
relative to rights, obligations and duties of either party under the Lease,
attorneys' fees and costs shall be paid by the non-prevailing party. Tenant
waives all homestead rights and exemptions which it may have under any law as
against any obligation owing under this Lease, and assigns to Landlord its
homestead and exemptions to the extent necessary to secure payment and
performance of its covenants and agreements hereunder.
26. TIME. Time is of the essence of this Lease and whenever a certain day
is stated for payment or performance of any obligation of Tenant or Landlord,
the same enters into and becomes a part of the consideration hereof.
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27. SUBORDINATION AND ATTORNMENT.
(a) Tenant agrees that this Lease and all rights of Tenant hereunder
are and shall be subject and subordinate to any ground or underlying lease which
may now or hereafter be in effect regarding the Project or any component
thereof, to any mortgage now or hereafter encumbering the Demised Premises or
the Project or any component thereof, to all advances made or hereafter to be
made upon the security of such mortgage, to all amendments, modifications,
renewals, consolidations, extensions and restatements of such mortgage, and to
any replacements and substitutions for such mortgage. The terms of this
provision shall be self-operative and no further instrument of subordination
shall be required. Tenant, however, upon request of any party in interest, shall
execute promptly such instrument or certificates as may be reasonably required
to carry out the intent hereof, whether said requirement is that of Landlord or
any other party in interest, including, without limitation, any mortgagee.
Landlord is hereby irrevocably vested with full power and authority as
attorney-in-fact for Tenant and in Tenant's name, place and stead, to
subordinate Tenant's interest under this Lease to the lien or security title of
any mortgage and to any future instrument amending, modifying, renewing,
consolidating, extending, restating, replacing or substituting any such
mortgage.
(b) If any mortgagee or lessee under a ground or underlying lease
elects to have this Lease superior to its mortgage or ground lease and signifies
its election in the instrument creating its lien or lease or by separate
recorded instrument, then this Lease shall be superior to such mortgage or
lease, as the case may be. The term "mortgage", as used in this Lease, includes
any deed to secure debt, deed of trust or security deed and any other instrument
creating a lien in connection with any other method of financing or refinancing.
The term "mortgagee", as used in this Lease, refers to the holder(s) of the
indebtedness secured by a mortgage.
(c) In the event any proceedings are brought for the foreclosure of, or
in the event of exercise of the power of sale under, any mortgage covering the
Demised Premises or the Project, or in the event the interests of Landlord under
this Lease shall be transferred by reason of deed in lieu of foreclosure or
other legal proceedings, or in the event of termination of any lease under which
Landlord may hold title, Tenant shall, at the option of the transferee or
purchase at foreclosure or under power of sale, or the lessor of the Landlord
upon such lease termination, as the case may be (sometimes hereinafter called
"such person"), attorn to such person and shall recognize and be bound and
obligated hereunder to such person as the Landlord under this Lease; provided,
however, that no such person shall be (i) bound by any payment of Rent for more
than one (1) month in advance, except prepayments in the nature of security for
the performance by Tenant of its obligations under this Lease (and then only if
such prepayments have been deposited with and are under the control of such
person); (ii) bound by any amendment or modification of this Lease made without
the express written consent of the mortgagee or lessor of the Landlord, as the
case may be; (iii) obligated to cure any defaults under this Lease of any prior
landlord (including Landlord); (iv) liable for any act or omission of any prior
landlord (including Landlord); (v) subject to any offsets or defenses which
Tenant might have against any prior landlord (including Landlord); or (vi) bound
by any warranty or representation of any prior landlord (including Landlord)
relating to work performed by any prior landlord (including Landlord) under this
Lease. Tenant agrees to execute any attornment agreement not in conflict
herewith requested by Landlord, the mortgagee or such person. Tenant's
obligation to attorn to such person shall survive the exercise of any such power
of sale, foreclosure or other proceeding. Tenant agrees that the institution of
any suit, action or other proceeding by any mortgagee to realize on Landlord's
interest in the Demised Premises or the Project, or any portion thereof pursuant
to the powers granted to a mortgagee under its mortgage, shall not, by operation
of law or otherwise, result in the cancellation or termination of the
obligations of Tenant hereunder. Landlord and Tenant agree that notwithstanding
that this Lease is expressly subject and subordinate to any mortgages, any
mortgagee, its successors and assigns, or other holder of a mortgage or of a
note secured thereby, may sell the Demised Premises or the Project, or any
portion thereof in the manner provided in the mortgage and may, at the option of
such mortgagee, its successors and assigns, or other holder of the mortgage or
note secured thereby, make such sale of the Demised Premises or Project subject
to this Lease.
28. ESTOPPEL CERTIFICATES. Within ten (10) days after request therefor by
Landlord, Tenant agrees to execute and deliver to Landlord in recordable form an
estoppel certificate addressed to Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of, the Demised Premises or the Project or
any part thereof, certifying (if such be the case) that this Lease is unmodified
and is in full force and effect (and if there have been modifications, that the
same is in full force and effect as modified and stating said modifications);
that there are no defenses or offsets against the enforcement thereof or stating
those claimed by Tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also include such other information as
may reasonably be required by such mortgagee, proposed mortgagee, assignee,
purchaser or Landlord. Any such certificate may be relied upon by Landlord, any
mortgagee, proposed mortgagee, assignee, purchaser and any other party to whom
such certificate is addressed.
29. NO ESTATE. This Lease shall create the relationship of landlord and
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale and
not assignable in whole or in part by Tenant except as herein provided.
30. CUMULATIVE RIGHTS. All rights, power and privilege conferred hereunder
upon the parties hereto shall be cumulative to, but not restrictive of, or in
lieu of those conferred by law.
31. HOLDING OVER. If Tenant remains in possession after expiration or
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be double the amount of Rent (including any adjustments as provided herein)
payable for the last full calendar month of the Lease Term including renewals or
extensions. The inclusion of the preceding sentence in this Lease shall not be
construed as Landlord's consent for Tenant to hold over.
32. SURRENDER OF PREMISES. Upon the expiration or other termination of this
Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in reasonably good condition and state of repair, reasonable
wear and tear only excepted. If Tenant is not then in material default, Tenant
shall remove all personalty and equipment not attached to the Demised Premises
which it has placed upon the Demised Premises and which Tenant is entitled to
remove in accordance with the provisions of this Lease, and Tenant shall restore
the Demised Premises to the condition immediately preceding the time of
placement thereof. If Tenant shall fail or refuse to remove all of Tenant's
effects, personalty and equipment from the Demised Premises upon the expiration
or termination of this Lease for any cause whatsoever or upon Tenant being
dispossessed by process of law or otherwise, such effects, personalty and
equipment shall be deemed conclusively to be abandoned and may be appropriated,
sold, stored, destroyed or otherwise disposed of by Landlord without written
notice to Tenant or any other party and without obligation to account for them.
Tenant shall pay Landlord on demand any and all reasonable expenses incurred by
Landlord in the removal of such property, including, without limitation, the
cost of repairing any damage to the Building or Project caused by the removal of
such property and storage
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charges (if Landlord elects to store such property). The covenants and
conditions of this Article 32 shall survive any expiration or termination of
this Lease.
33. NOTICES. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed to have been fully given, whether actually
received or not, when delivered in person, or deposited with an overnight
commercial courier, or deposited, postage prepaid, in the United States Mail,
certified, return receipt requested, and addressed to Landlord or Tenant at
their respective address set forth hereinabove or at such other address as
either party shall have theretofore given to the other by notice as herein
provided. Tenant hereby designates and appoints as its agent to receive notice
of all distraint proceedings and all other notices required under this Lease,
the person in charge of the Demised Premises at the time said notice is given or
occupying said Demised Premises at said time; and, if no person is in charge of
or occupying the said Demised Premises, then such service or notice may be made
by attaching the same, in lieu of mailing, on the main entrance to the Demised
Premises.
34. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal property brought
into the Demised Premises by Tenant, or Tenant's employees, agents, or business
visitors, shall be at the risk of Tenant only, and Landlord shall not be liable
for theft thereof or any damage thereto occasioned by any act of co-tenants,
occupants, invitees or other users of the Building or any other person. Landlord
shall not at any time be liable for damage to any property in or upon the
Demised Premises, which results from gas, smoke, water, rain, ice or snow which
issues or leaks from or forms upon any part of the Building or from the pipes or
plumbing work of the same, or from any other place whatsoever.
35. EMINENT DOMAIN.
(a) If all or part of the Demised Premises shall be taken for any
public or quasi-public use by virtue of the exercise of the power of eminent
domain or by private purchase in lieu thereof, this Lease shall terminate as to
the part so taken as of the date of taking, and, in the case of a partial
taking, Landlord shall have the right to terminate this Lease as to the balance
of the Demised Premises by written notice to Tenant if, in Landlord's judgment,
the taking would prevent or materially impair the use of the Project or the
Demised Premises or if an adequate award is not made available to Landlord for
restoration. If title to so much of the Project is taken that a reasonable
amount of reconstruction thereof will not in Landlord's sole discretion result
in the Building being a practical improvement and reasonably suitable for use
for the purpose for which it is designed, then this Lease shall terminate on the
date that the condemning authority actually takes possession of the part so
condemned or purchased.
(b) If this Lease is terminated under the provisions of this Article
35, Rent shall be apportioned and adjusted as of the date of termination. Tenant
shall have no claim against Landlord or against the condemning authority for the
value of any leasehold estate or for the value of the unexpired Lease Term
provided that the foregoing shall not preclude any claim that Tenant may have
against the condemning authority for the unamortized cost of leasehold
improvements, to the extent the same were installed at Tenant's expense (and not
with the proceeds of the Tenant Improvement Allowance), or for loss of business,
moving expenses or other consequential damages, in accordance with subparagraph
(d) below.
(c) If there is a partial taking of the Project and this Lease is not
thereupon terminated under the provisions of this Article 35, then this Lease
shall remain in full force and effect, and Landlord shall, within a reasonable
time thereafter, repair or reconstruct the remaining portion of the Building to
the extent necessary to make the same a complete architectural unit; provided,
that in complying with its obligations hereunder, Landlord shall not be required
to expend more than the net proceeds of the condemnation award which are paid to
Landlord, to the extent the holder of any mortgage or ground lessor under any
ground lease permits such award to be applied to restoration. Upon any such
partial taking, Landlord shall have the right to reduce the rent-stop figure
described in Article 7 hereof by an amount equal to the product of (x) the
amount of tax savings arising from such partial taking, as determined by
Landlord in its sole but reasonable discretion, divided by the number of square
feet of Rentable Floor Area of the Building, multiplied by (y) the number of
square feet of Rentable Floor Area of the Demised Premises.
(d) All compensation awarded or paid to Landlord upon a total or
partial taking of the Demised Premises or the Project shall belong to and be the
property of Landlord without any participation by Tenant. Nothing herein shall
be construed to preclude Tenant from prosecuting any claim directly against the
condemning authority for loss of business, for damage to, and cost of removal
of, trade fixtures, furniture and other personal property belonging to Tenant,
and for the unamortized cost of leasehold improvements to the extent the same
were installed at Tenant's expense (and not with the proceeds of the Tenant
Improvement Allowance); provided, however, that no such claim shall diminish or
adversely affect Landlord's award.
(e) Notwithstanding anything to the contrary contained in this Article
35, if, during the Lease Term, the use or occupancy of any part of the Project
or the Demised Premises shall be taken or appropriated temporarily for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain, this Lease shall be and remain unaffected by such
taking or appropriation and Tenant shall continue to pay in full all Rent
payable hereunder by Tenant during the Lease Term. In the event of any such
temporary appropriation or taking, Tenant shall be entitled to receive that
portion of any award which represents compensation for the loss of use or
occupancy of the Demised Premises during the Lease Term, and Landlord shall be
entitled to receive that portion of any award which represents the cost of
restoration and compensation for the loss of use or occupancy of the Demised
Premises after the end of the Lease Term.
36. PARTIES. The term "Landlord", as used in this Lease, shall include
Landlord and its successors and assigns. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
Lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that in the event of any such transfer or
assignment by Landlord which includes the Demised Premises, Landlord's
obligations to Tenant hereunder shall cease and terminate, and Tenant shall look
only and solely to Landlord's assignee or transferee for performance thereof.
37. LIABILITY OF TENANT. Tenant hereby indemnifies Landlord from and agrees
to hold Landlord harmless against, any and all liability, loss, cost, damage or
expense, including, without limitation, court costs and reasonable attorneys'
fees, imposed on Landlord by any person whomsoever, caused in whole or in part
by any act or omission of Tenant, or any of its employees, contractors,
servants, agents, subtenants,
9
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assignees, representatives or invitees, or otherwise occurring in connection
with any default of Tenant hereunder. The provisions of this Article 37 shall
survive any termination of this Lease.
38. RELOCATION OF THE PREMISES. Landlord reserves the right at any time or
from time to time, at its option and upon giving not less than thirty (30) days'
prior written notice to Tenant, to transfer and remove Tenant from the Demised
Premises herein specified to any other available rooms and offices in the
Project (or other building in the development of which the Building is a part).
Landlord shall bear the expense of said removal together with the reasonable
expense of replacement business cards and stationery and the expense of any
necessary renovation or alterations to said substituted space, as calculated by
Landlord. If Landlord exercises such option, then the substituted space shall
for all purposes hereof be deemed to be and to constitute the Demised Premises
under this Lease and all terms, conditions, covenants, warranties, agreements
and provisions of this Lease including but not limited to the same Base Rental
Rate per square foot of Rentable Floor Area shall continue in full force and
effect and shall apply to the substituted space. Tenant agrees to vacate the
Demised Premises herein specified and relocate to said substituted space
promptly after the substituted space is ready for Tenant's occupancy as provided
herein, and Tenant's failure to do so shall constitute an event of default by
Tenant under this Lease. If Tenant has not relocated its premises within sixty
(60) days after Landlord first notifies Tenant of Landlord's desire to relocate
Tenant, Landlord shall have the right to terminate this Lease by giving notice
of such termination to Tenant. Such termination shall be effective upon any date
selected by Landlord in the Termination Notice which is at least ten (10) days
after the Termination Notice is given by Landlord to Tenant. Tenant hereby
further covenants and agrees to promptly execute and deliver to Landlord any
lease amendment or other such document appropriate to reflect the changes in the
Lease described or contemplated above.
39. FORCE MAJEURE. In the event of strike, lockout, labor trouble, civil
commotion, Act of God, or any other cause beyond a party's control (collectively
"force majeure") resulting in Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, Landlord's
performance shall be excused for the period of force majeure, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. If, as a result of force
majeure, Tenant is delayed in performing any of its obligations under this
Lease, other than Tenant's obligation to take possession of the Demised Premises
on or before the Rental Commencement Date and to pay Rent and all other charges
and sums payable by Tenant hereunder, Tenant's performance shall be excused for
a period equal to such delay and Tenant shall not during such period be
considered to be in default under this Lease with respect to the obligation,
performance of which has thus been delayed.
40. LANDLORD'S LIABILITY. Landlord shall have no personal liability with
respect to any of the provisions of this Lease. If Landlord is in default with
respect to its obligations under this Lease, Tenant shall look solely to the
equity of Landlord in and to the Building and the Land for satisfaction of
Tenant's remedies, if any. It is expressly understood and agreed that Landlord's
liability under the terms of this Lease shall in no event exceed the amount of
its interest in and to said Land and Building. In no event shall any partner of
Landlord nor any joint venturer in Landlord, nor any officer, director or
shareholder of Landlord or any such partner or joint venturer of Landlord be
personally liable with respect to any of the provisions of this Lease. In any
action or proceeding brought to enforce this obligation of Landlord to Tenant
under this Lease, Landlord and Tenant agree that any final judgment or decree
shall be enforceable against Landlord only to the extent of Landlord's interest
in the Building, as aforesaid, and any such judgment or decree shall not be
capable of execution against, nor be a lien on, any assets of Landlord other
than its interest in the Building, as aforesaid.
41. LANDLORD'S COVENANT OF QUIET ENJOYMENT. Provided Tenant performs the
terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Demised Premises, for the Lease Term, without hindrance, claim
or molestation by Landlord or any other person lawfully claiming under Landlord.
42. NOT USED.
43. HAZARDOUS SUBSTANCES. Tenant hereby covenants and agrees that Tenant
shall not cause or permit any "Hazardous Substances" (as hereinafter defined) to
be generated, placed, held, stored, used, located or disposed of at the Project
or any part thereof, except for Hazardous Substances as are commonly and legally
used or stored as a consequence of using the Demised Premises for general office
and administrative purposes, but only so long as the quantities thereof do not
pose a threat to public health or to the environment or would necessitate a
"response action", as that term is defined in CERCLA (as hereinafter defined),
and so long as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use or production of such
Hazardous Substances. For purposes of this Article 43, "Hazardous Substances"
shall mean and include those elements or compounds which are contained in the
list of Hazardous Substances adopted by the United States Environmental
Protection Agency (EPA) or in any list of toxic pollutants designated by
Congress or the EPA or which are defined as hazardous, toxic, pollutant,
infectious or radioactive by any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability (including, without limitation, strict liability) or
standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereinafter in effect (collectively
"Environmental Laws"). Tenant hereby agrees to indemnify Landlord and hold
Landlord harmless from and against any and all losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, cost of settlement or judgment and claims of any and every kind whatsoever
paid, incurred or suffered by, or asserted against, Landlord by any person,
entity or governmental agency for, with respect to, or as a direct or indirect
result of, the presence in, or the escape, leakage, spillage, discharge,
emission or release from, the Demised Premises of any Hazardous Substances
(including, without limitation, any losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable attorneys' fees,
costs of any settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act ["CERCLA"],
any so-called federal, state or local "Superfund" or "Superlien" laws or any
other Environmental Law); provided, however, that the foregoing indemnity is
limited to matters arising solely from Tenant's violation of the covenant
contained in this Article. The obligations of Tenant under this Article shall
survive any expiration or termination of this Lease.
44. SUBMISSION OF LEASE. The submission of this Lease for examination
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant and Guarantors.
45. SEVERABILITY. If any clause or provision of the Lease is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
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46. ENTIRE AGREEMENT. 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. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
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. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant. This
Lease is not in recordable form, and Tenant agrees not to record or cause to be
recorded this Lease or any short form or memorandum thereof.
47. HEADINGS. The use of headings herein is solely for the convenience of
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
48. BROKER. Broker(s) (as defined in Article 1[p] is [are] entitled to a
leasing commission from Landlord by virtue of this Lease, which leasing
commission shall be paid by Landlord to Broker(s) in accordance with the terms
of a separate agreement between Landlord and Broker(s). Tenant hereby authorizes
Broker(s) and Landlord to identify Tenant as a tenant of the Building and to
state the amount of space leased by Tenant in advertisements and promotional
materials relating to the Building. Tenant represents and warrants to Landlord
that (except with respect to any Broker[s] identified in Article 1[p]
hereinabove, which has [have] acted as agent for Tenant [and not for Landlord]
in this transaction) no broker, agent, commission salesperson, or other person
has represented Tenant in the negotiations for and procurement of this Lease and
of the Demised Premises and that (except with respect to any Broker[s]
identified in Article 1[p] hereinabove) no commissions, fees or compensation of
any kind are due and payable in connection herewith to any broker, agent,
commission salesperson or other person as a result of any act or agreement of
Tenant. Tenant agrees to indemnify and hold Landlord harmless from all loss,
liability, damage, claim, judgment, cost or expense (including reasonable
attorneys' fees and court costs) suffered or incurred by Landlord as a result of
a breach by Tenant of the representation and warranty contained in the
immediately preceding sentence or as a result of Tenant's failure to pay
commissions, fees or compensation due to any broker who represented Tenant,
whether or not disclosed, or as a result of any claim for any fee, commission or
similar compensation with respect to this Lease made by any broker, agent or
finder (other than the Broker[s] identified in Article 1[p] hereinabove)
claiming to have dealt with Tenant, whether or not such claim is meritorious.
The parties hereto do hereby acknowledge and agree that Xxxxxxx & Xxxx, Inc. has
acted as agent for Landlord in this transaction and shall be paid a commission
by Landlord in connection with this transaction pursuant to the terms of a
separate written commission agreement. Xxxxxxx & Xxxx, Inc. has not acted as
agent for Tenant in this transaction. Landlord hereby warrants and represents to
Tenant that Landlord has not dealt with any broker, agent or finder other than
Xxxxxxx & Xxxx, Inc. in connection with this Lease and, Landlord hereby agrees
to indemnify and hold Tenant harmless from and against any and all loss, damage,
liability, claim, judgment, cost or expense (including, but not limited to,
reasonable attorneys' fees and court costs) that may be incurred or suffered by
Tenant because of any claim for any fee, commission or similar compensation with
respect to this Lease made by any broker, agent or finder claiming to have
represented Landlord.
49. GOVERNING LAW. The laws of the State of Georgia shall govern the
validity, performance and enforcement of this Lease.
50. AUTHORITY. 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 incorporated or a duly qualified (if
a foreign corporation) corporation and if fully authorized and qualified to do
business in the State in which the Demised Premises are located, that the
corporation has full right and authority to enter into this Lease, and that each
person signing on behalf of the corporation is an officer of the corporation and
is authorized to sign on behalf of the corporation. If Tenant signs as a
partnership, joint venture or sole proprietorship or other business entity (each
being herein called "Entity"), each of the persons executing on behalf of Tenant
does hereby covenant and warrant that Tenant is a duly authorized and existing
Entity, that Tenant has full right and authority to enter into this Lease, that
all persons executing this Lease on behalf of the Entity are authorized to do so
on behalf of the Entity, and that such execution is fully binding upon the
Entity and its partners, joint venturers or principals, as the case may be. Upon
the request of Landlord, Tenant shall deliver to Landlord documentation
satisfactory to Landlord evidencing Tenant's compliance with this Article, and
Tenant agrees to promptly execute all necessary and reasonable applications or
documents as reasonably requested by Landlord, required by the jurisdiction in
which the Demised Premises is located, to permit the issuance of necessary
permits and certificates for Tenant's use and occupancy of the Demised Premises.
51. JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one person,
corporation, partnership or other entity, the liability hereunder of all such
persons, corporations, partnerships or other entities shall be joint and
several.
52. SPECIAL STIPULATIONS. The special stipulations attached hereto as
EXHIBIT "G" are hereby incorporated herein by this reference as though fully set
forth (if none, so state). To the extent the special stipulations conflict with
or are inconsistent with the foregoing provisions of this Lease or any exhibit
to this Lease, the special stipulations shall control.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day, month and year first above written.
LANDLORD:
PAVILION PARTNERS, L.P.
By: Bentley Investments, Inc., general partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------------
Title: President
------------------------------------------
[CORPORATE SEAL]
TENANT:
PHYSICIANS' SPECIALTY CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
[CORPORATE SEAL]
(if appropriate)
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EXHIBIT "A"
LEGAL DESCRIPTION
TRACT ONE:
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 00xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly described as
follows:
To find the POINT OF BEGINNING, begin at a point located at the intersection of
the northern right of way line of Lake Xxxxx Drive (60-foot right of way) and
the line dividing Land Xxx 00 xx xxx 00xx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and
Land Xxx 000 xx xxx 00xx Xxxxxxxx, XxXxxx Xxxxxx, Xxxxxxx; thence running along
the northern right of way line of Lake Xxxxx Drive south 89 degrees 39 minutes
30 seconds west, 254.49 feet to a point and the POINT OF BEGINNING; thence
running along the northern right of way line of Lake Xxxxx Drive south 89
degrees 39 minutes 30 seconds west, 590.38 feet to an iron pin; thence leaving
the northern right of way line of Lake Xxxxx Drive and running north 00 degrees
01 minute 35 seconds west, 420.26 feet to an iron pin located on the
southeastern right of way line of Interstate Xxxxxxx Xx. 000; thence running
along the southeastern right of way line of Xxxxxxxxxx Xxxxxxx Xx. 000 the
following courses and distances: north 56 degrees 56 minutes 10 seconds east,
86.42 feet to a point; north 69 degrees 19 minutes 30 seconds east, 184.42 feet
to a point; north 69 degrees 20 minutes 30 seconds east, 89.0 feet to a point;
north 69 degrees 32 minutes east, 290.8 feet to an iron pin; and south 76
degrees 29 minutes 30 seconds east, 54.11 feet to a point; thence leaving said
right of way line of Xxxxxxxxxx Xxxxxxx Xx. 000 and running south 21 degrees 12
minutes 15 seconds west, 66.10 feet to a point; thence running south 00 degrees
25 minutes 28 seconds east, 466.17 feet to a point; thence running south 58
degrees 48 minutes 27 seconds west, 50.14 feet to a point; thence running south
00 degrees 22 minutes 59 seconds east, 95.70 feet to the POINT OF BEGINNING.
All as is more particularly described and delineated in that survey prepared by
Xxxxx & Xxxxxxxx Engineers, dated December 5, 1985, last revised November 8,
1993, bearing the seal of X.X. Xxxxxxxxx, Georgia registered land surveyor no.
2121.
Together with those easements as set forth in that Easement and Maintenance
Agreement Peachtree Dunwoody Pavilion, dated August 31, 1992, by and between
Trustees under Declaration of Trust, dated October 8, 1984, as amended, of EQK
Realty Investors I, a Massachusetts Business Trust, and Computer Generation
Incorporated, a Delaware Corporation, recorded at Deed Book 15695, commencing at
page 208, records of the Clerk of the Superior Court, Xxxxxx County, Georgia.
X-0
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XXXXXXX "X"
[FLOOR PLAN]
B-1
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EXHIBIT "C"
TENANT ACCEPTANCE AGREEMENT
This Agreement made this ____ day of _______________, 199_ between PAVILION
PARTNERS, L.P., a Georgia limited partnership (hereinafter referred to as
"Landlord") and PHYSICIANS' SPECIALTY CORP. (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a Lease, dated _________________,
199_, (hereinafter referred to as the "Lease") for Suite 640 (hereinafter
referred to as the "Premises") in the building located at 0000 Xxxx Xxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000.
NOW, THEREFORE, pursuant to the provisions of the Lease, Landlord and Tenant
mutually agree as follows:
Capitalized terms not defined herein shall have the meanings set forth in the
Lease.
The Commencement Date of the Lease Term is October 1, 1997. The Expiration Date
of the Lease Term is ___________________. The Rentable Area of the Premises is
__________ Square Feet.
Tenant is in possession of, and has accepted, the Premises demised by the Lease,
and acknowledges that all the work (including the Work) to be performed by the
Landlord in the Premises as required by the terms of the Lease has been
satisfactorily completed, except for the items set out on the attached
Exhibit C-1. Tenant further certifies that all conditions of the Lease required
of Landlord as of this date have been fulfilled and there are no defenses or
setoffs against the enforcement of the Lease by Landlord.
IN WITNESS WHEREOF, the parties hereto have duly executed and sealed this
Agreement, as of the date and year first above stated.
LANDLORD:
PAVILION PARTNERS, L.P.
By: Bentley Investments, Inc., its general partner
By:
----------------------------------------------
Title:
----------------------------------------
(CORPORATE SEAL)
TENANT:
PHYSICIANS' SPECIALTY CORP.
By:
-----------------------------------
Title:
------------------------
Attest:
----------------------------------
Title:
------------------------
(CORPORATE SEAL)
C-1
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EXHIBIT "C-1"
As of this _____ day of _______________, 199_, the following punchlist items
remain to be completed: (If "none", so state.)
Tenant Name: Initial:
PHYSICIANS' SPECIALTY CORP. /s/ LEC Landlord
---------
Suite Number: 640
--------- Tenant
C-2
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EXHIBIT "D"
TENANT IMPROVEMENT AGREEMENT
NOT USED.
D-1
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EXHIBIT "E"
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the
exterior of the Demised Premises shall be installed, affixed,
inscribed, painted or otherwise displayed by Tenant on any part of the
Demised Premises or the Building unless the same is first approved by
Landlord. Any such sign, picture, advertisement or notice approved by
Landlord shall be painted or installed for Tenant at Tenant's cost by
Landlord or by a party approved by Landlord. No awnings, curtains,
blinds, shades or screens shall be attached to or hung in, or used in
connection with any window or door of the Demised Premises without the
prior consent of Landlord, including approval by Landlord of the
quality, type, design, color and manner of attachment.
2. Tenant agrees that its use of electrical current shall never
exceed the capacity of existing feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of
merchandise held for sale to the general public. Tenant shall not do or
permit to be done in or about the Demised Premises or Project anything
which shall increase the rate of insurance on said Project or obstruct
or interfere with the rights of other lessees of Landlord or annoy them
in any way, including, but not limited to, using any musical
instrument, making loud or unseemly noises, or singing, etc. The
Demised Premises shall not be used for sleeping or lodging. No cooking
or related activities shall be done or permitted by Tenant in the
Demised Premises except with permission of Landlord. Tenant will be
permitted to use for its own employees within the Demised Premises a
small microwave oven and Underwriters' Laboratory approved equipment
for brewing coffee, tea, hot chocolate and similar beverages, provided
that such use is in accordance with all applicable federal, state,
county and city laws, codes, ordinances, rules and regulations. No
vending machines of any kind will be installed, permitted or used on
any part of the Demised Premises without the prior consent of Landlord.
No part of said Project or Demised Premises shall be used for gambling,
immoral or other unlawful purposes. No intoxicating beverage shall be
sold in said or around the Project or Demised Premises without the
prior written consent of Landlord. No area outside of the Demised
Premises shall be used for storage purposes at any time.
4. No birds or animals of any kind shall be brought into the
Building (other than trained seeing-eye dogs required to be used by the
visually impaired). No bicycles, motorcycles or other motorized
vehicles shall be brought into the Building.
5. The sidewalks, entrances, passages, corridors, halls,
elevators and stairways in the Building shall not be obstructed by
Tenant or used for any purposes other than those for which same were
intended as ingress and egress. No windows, floors or skylights that
reflect or admit light into the Building shall be covered or obstructed
by Tenant. Toilets, wash basins and sinks shall not be used for any
purpose other than those for which they were constructed, and no
sweeping, rubbish or other obstructing or improper substances shall be
thrown therein. Any damage resulting to them, or to heating apparatus,
from misuse by Tenant or its employees, shall be borne by Tenant.
6. Only one (1) key for the Demised Premises will be furnished
to Tenant without charge. Landlord may make a reasonable charge for any
additional keys. Only one (1) access card for the Building will be
furnished to Tenant without charge. Landlord may make a reasonable
charge for any additional access cards. No additional lock, latch or
bolt of any kind shall be placed upon any door nor shall any changes be
made in existing locks without written consent of Landlord and Tenant
shall in each such case furnish Landlord with a key for any such lock.
At the termination of the Lease, Tenant shall return to Landlord all
keys and access cards furnished to Tenant by Landlord, or otherwise
procured by Tenant, and in the event of loss of any keys or access
cards so furnished, Tenant shall pay to Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight,
position, and manner of installation of heavy articles such as safes,
machines and other equipment brought into the Building. No safes,
furniture, boxes, large parcels or other kind of freight shall be taken
to or from the Demised Premises or allowed in any elevator, hall or
corridor except at times allowed by Landlord. No deliveries shall be
made in passenger elevators. Tenant shall make prior arrangements with
Landlord for use of freight elevator for the purpose of transporting
such articles and such articles may be taken in or out of said Building
only between or during such hours as may be arranged with and
designated by Landlord. The persons employed to move the same must be
approved by Landlord. No hand trucks, except those equipped with rubber
tires and side guards, shall be permitted in the Building. No hand
trucks shall be permitted in any passenger elevator. In no event shall
any weight be placed upon any floor by Tenant so as to exceed the
design conditions of the floors at the applicable locations.
8. Tenant shall not cause or permit any gases, liquids or odors
to be produced upon or permeate from the Demised Premises, and no
flammable, combustible or explosive fluid, chemical, substance or item
(including, without limitation, natural Christmas trees) shall be
brought into the Building.
9. Every person, including Tenant, its employees and visitors,
entering and leaving the Building may be questioned by a watchman as to
that person's business therein and may be required to sign such
person's name on a form provided by Landlord for registering such
person; provided that, except for emergencies or other extraordinary
circumstances, such procedures shall not be required between the hours
of 7:00 a.m. and 6:00 p.m., on all days except Saturdays, Sunday, and
Holidays. Landlord may also implement a card access security system to
control access during such other times. Landlord shall not be liable
for excluding any person from the Building during such other times, or
for admission of any person to the Building at any time, or for damages
or loss or theft resulting therefrom to any person, including Tenant.
X-0
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00. Unless agreed to in writing by Landlord, Tenant shall not
employ any person other than Landlord's contractors for the purpose of
cleaning and taking care of the Demised Premises. Cleaning service will
not be furnished on nights when rooms are occupied after 6:30 p.m.,
unless, by agreement in writing, service is extended to a later hour
for specifically designated rooms. Landlord shall not be responsible
for any loss, theft, mysterious disappearance of or damage to, any
property, however occurring. Only persons authorized by Landlord may
furnish ice, drinking water, towels, and other similar services within
the Building and only at hours and under regulations fixed by Landlord.
11. No connection shall be made to 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 Demised Premises shall be kept whole and in good repair.
Tenant shall not injure, overload or deface the Building, the woodwork
or the walls of the Demised Premises, nor permit any noisome, noxious,
noisy or offensive business.
12. If Tenant requires wiring for a xxxx or buzzer system, such
wiring shall be done by the electrician of Landlord only, and no
outside wiring persons shall be allowed to do work of this kind unless
by the written permission of Landlord or its representatives. If
telegraph or telephonic service is desired, the wiring for same shall
be approved by Landlord, and no boring or cutting for wiring shall be
done unless approved by Landlord or its representatives, as stated. The
electric current shall not be used for power or heating unless written
permission to do so shall first have been obtained from Landlord or its
representatives in writing, and at an agreed cost to Tenant.
13. Tenant and its employees and invitees shall observe and obey
all parking and traffic regulations as imposed by Landlord. All
vehicles shall be parked only in areas designated therefor by Landlord.
14. Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Building are
prohibited, and Tenant shall cooperate to prevent the same.
15. Landlord shall have the right to change the name of the
Building and/or the Project and to change the street address of the
Building, provided that in the case of a change in the street address,
Landlord shall give Tenant not less that 180 days' prior notice of the
change, unless the change is required by governmental authority.
16. The directory of the Building will be provided for the display
of the name and location of the tenants. Any additional name which
Tenant shall desire to place upon said directory must first be approved
by Landlord, and if so approved, a reasonable charge will be made
therefor.
17. Tenant, in order to obtain maximum effectiveness of the
cooling system, shall lower and close the blinds (at not less than a
45 degree angle) or drapes when the sun's rays are directly in windows
of the Demised Premises. Tenant shall not remove the standard blinds
installed in the Demised Premises. Tenant shall not place items on
window xxxxx in the Demised Premises.
18. Smoking is prohibited in the main building lobby, public
corridors, elevator lobbies, service elevator vestibules, stairwells,
restrooms and other common areas within the Building.
19. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular lessee, but no such
waiver by Landlord shall be construed as a wavier of such Rules and
Regulations in favor of any other lessee, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all
of the other lessees of the Building.
20. These Rules and Regulations are supplemental to, and shall
not be construed to in any way modify or amend, in whole or in part,
the terms, covenants, agreements and conditions of any lease of any
premises in the Building.
21. Landlord reserves the right to make such other and reasonable
Rules and Regulations as in its judgment may from time to time be
needed for the safety, care and cleanliness of the Buildings and the
Land, and for the preservation of good order therein.
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EXHIBIT "F"
BUILDING MOVING POLICY/RULES AND REGULATIONS
The following rules pertain to (i) moving Tenant's furniture,
equipment and supplies into or out of the Building, and (ii) the delivery of
substantial amounts of equipment, furniture or supplies to existing tenants in
the Building. Any movers that do not adhere to the following rules will not be
allowed to enter the Building or will be required to discontinue the move.
1. No move into or out of the Building shall take place
during normal business hours of the Building. Moves must be scheduled after 5:30
p.m. on weekdays or during weekends and holidays.
2. Building management must be notified at least ten
(10) days prior to your proposed moving date in order to coordinate dates and
the details of the move. A representative of the moving company must contact the
management office at least five (5) days prior to the proposed moving date. The
service elevator, which must be used for your move, will be available only if
the management office has been timely notified.
3. All moving company employees should be in uniform or
wear some form of identification. All moving company employees must be bonded.
4. There will no smoking inside of the building by any
employee of the moving company.
5. Prior to the move, the moving company must submit a
Certificate of Insurance naming Landlord as an additional insured. The moving
company must carry insurance with at least the following coverage:
(a) Worker's compensation insurance in the amount of
$100,000.
(b) Comprehensive General Liability insurance shall
include coverage for hazards on premises-operation, elevators,
products and completed operations and also personal injury
coverage and contractual liability coverage designating the
assumption of liability under performance of the act of
moving. Such insurance shall be in limits no less than
$500,000 per person bodily; and $500,000 per occurrence for
property damage. Property damage insurance shall be in broad
form, including completed operations.
(c) An umbrella policy with a limit of $1,000,000 per
occurrence.
Each moving company transporting supplies, furniture, and/or
equipment through the Building shall secure and present to the building manager
a certificate reflecting these coverages at least twenty-four (24) hours before
the move takes place. Please make sure your moving company meets the above
requirements so they will be permitted to move your practice to the building.
6. The route to be followed in the Building during the
move must be approved by Landlord. The moving company must provide and install
adequate protective coverings on all vulnerable corners, walls, door facings,
elevator cabs and other areas along the route to be followed during the move.
These areas will be inspected for damage after the move.
7. Clean masonite sections must be used as runners on
all finished floor areas where heavy furniture or equipment is being moved with
wheel or skid type dollies. The masonite must be at least one-fourth inch thick.
All sections of masonite should be taped to prevent sliding.
8. Do not stick duct tape onto the floors, walls, door
jambs, or doors.
9. All vendor and moving company boxes and cartons are
to be removed from the premises by the vendor or moving company. They are not to
be disposed of in the dumpster.
10. It is the Tenant's responsibility to notify Landlord
of items to be moved which are unusually large or heavy (in excess of 3,500
pounds) or which may require review by Landlord. Dimensions and weight may
prohibit the safe transport and placement within acceptable structural
guidelines. Any large items that cannot be placed in the service elevator will
require special hoisting arrangements which will be made through the Landlord.
Tenant's Moving company should include in the bid price to the Tenant any
additional charges required for extra services which may need to be provided by
the moving company to hoist large items.
11. Access control personnel will be notified as to the
move-in schedule and will monitor the progress of the move. Any changes in the
move-in schedule must be reported to Landlord or Landlord's representative
immediately. An emergency phone number will be required by the access control
personnel for the moving company's supervisor and for the Tenant's
representative responsible for coordinating the move.
12. When ordering equipment, furniture, supplies, etc.
at any time before or after your move, please specify "Inside Delivery" to your
suite, because Landlord is not responsible for deliveries to your suite.
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EXHIBIT "G"
SPECIAL STIPULATIONS
1. PARKING RIGHTS: Landlord has commenced construction of a parking deck upon
the Land (the "Parking Deck"). Upon completion of the Parking Deck, it is
anticipated that the Parking Deck and surface parking areas will provide
approximately 4.6 parking spaces for each 1,000 square feet of Rentable
Floor Area of the Building. Landlord, at its sole option, shall have the
right to gate and card the Parking Deck and, at its option, the surface
parking and to charge for parking in the Parking Deck and in the surface
lots (collectively, the "Parking Area") as follows:
a. Tenant shall be entitled without charge to the use by its employees the
greater of three (3) unassigned parking spaces in the Parking Area for
each 1,000 square feet of Rentable Floor Area in the Premises, or
fifteen (15) unassigned spaces.
b. Tenant shall be entitled to additional unassigned parking spaces for
its employees, subject to availability, at Landlord's then current
monthly rate, payable at the same time and in the same manner as Base
Rent under the Lease.
c. Landlord shall have the right to charge Tenant's invitees and
licensees, including patients and guests, for parking in the Parking
Area at Landlord's then current daily rate.
d. If Landlord elects to gate or card the Parking Area or any portion
thereof, Landlord shall have the right to deny access to any employee
of Tenant who has not obtained the required card or pass and to
establish reasonable rules and regulations for parking on the Land.
e. Access to additional parking for Tenants employees up to approximately
4.6 unassigned spaces per 1,000 rentable square feet shall be provided
at an initial rate of $40.00 per space per month.
2. TENANT IMPROVEMENTS:
a. Tenant shall select and engage the Designer of Tenant's own choosing,
subject to Landlord's approval, to develop the Schematic, Design
Development and Construction Documents (the "Plans") for the Premises.
Tenant's Designer shall coordinate all phases of the construction of
the Premises and shall be paid by Tenant.
b. Tenant shall select and engage the contractor of Tenant's own choosing
to construct the Premises pursuant to the Plans. The cost of all such
construction shall be paid by Tenant ("Tenant's Cost").
c. Landlord reserves the right to approve of Tenant's Designer, Plans,
interior finishes and Contractor. Tenant agrees to provide Landlord
with all such contracts, lien waivers, permits, certifications,
certificates of occupancy and other information as Landlord or
Landlord's lender may require.
d. Landlord reserves the right to approve of all Tenant improvements prior
to commencement of construction, and Tenant shall not commence
construction until Landlord's approval has been given. Tenant shall
submit complete and accurate construction documents to Landlord for
Landlord's approval at least five (5) days prior to the planned
construction start.
e. Landlord and Tenant acknowledge and agree that the HVAC system for the
Building is in place and existing, as are the ceiling grid, ceiling
tiles, 2x4 fluorescent lights for the Premises, and certain walls and
doors within the Premises. With regard to such items, Landlord and
Tenant agree as follows:
1) Landlord's approved HVAC subcontractor shall be used to do any and
all HVAC rework necessary as determined by Landlord's approved
HVAC subcontractor. Tenant will pay for any such rework that is
necessarily occasioned by Tenant's Plan or special use requiring
more heating or cooling than customary including requested special
zones or thermostats. Such HVAC work shall be done to Tenant's
specifications and subject to Landlord's approval and said cost
for such work shall not be unreasonably priced.
2) Any sprinklers needed or additional fire control systems required
will be Tenant's Cost.
3) Any ceiling grid rework, ceiling tile replacements, additional
lighting or relocation of lighting fixtures shall be Tenant's
Cost.
4) Any costs associated with demolition and disposal of existing
walls, doors or finishes now located within the Premises in order
to comply with the Plans shall be Tenant's Cost.
f. All completed improvements to the Demised Premises shall be in
compliance with all applicable government ordinances, codes and
building permits and in accordance with the approved plans and subject
to Landlord's reasonable satisfaction. Tenant shall apply for any and
all governmental approvals required for the construction of Tenant's
space including building permits required for the improvements which
are issued pursuant to a local building code. If the Plans must be
revised in order to obtain such building permits, Tenant shall promptly
notify Landlord. In such case, Tenant shall promptly arrange for the
plans to be revised to satisfy the building permit requirements and
shall submit revised Plans to Landlord for approval. Landlord shall
have no obligation to apply for any approvals, permits or variances or
any other governmental approval, permit or action. If any such other
matters are required, Tenant shall promptly seek to satisfy such
requirements or revise the Plans to eliminate such requirements,
subject to Landlord's approval.
G-1
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g. All construction techniques used within the Premises shall be subject
to Landlord's reasonable approval. Tenant shall limit the hours of
access for construction crews and construction techniques to the hours
reasonably designated by Landlord. All construction shall be
accomplished in a manner that minimizes disturbance of Building tenants
and invitees. All construction shall be accomplished in a manner that
minimizes the impact of said construction on all common areas and
corridors.
h. Tenant shall move construction materials to and from the Building as
directed by Landlord or Landlord's agents. Tenant shall remove and
dispose of all construction debris from the Building as reasonably
directed by Landlord. Tenant shall insure that contractor does not
damage the Building in any manner, and Tenant shall be responsible for
reimbursement to Landlord of any building damage caused by Tenant,
Tenant's contractor, Tenant's subcontractors or Tenant's invitees.
Initial:
/s/ LEC Landlord
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/s/ RDB Tenant
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