EXHIBIT 10.17
THIRD AMENDMENT OF LEASE
THIS THIRD AMENDMENT OF LEASE ("Third Amendment") is made on August 3, 2001
between TRIZECHAHN CENTERS INC., a California corporation, d/b/a "TrizecHahn
Newmarket 1 to 8 Management" ("Landlord"), whose address is 100 Colony Square,
Suite 600, 1175 Peachtree Street, N.E., Atlanta, GA 30361 and CRYOLIFE, INC., a
Florida corporation ("Tenant").
RECITALS
This Third Amendment is based upon the following recitals:
A. Newmarket Partners I, Limited ("Newmarket"), as landlord and Tenant
entered into a Lease dated July 23, 1993 ("Lease"), for the premises measuring
11,227 rentable square feet and known as Suite 124 located at 2121 Newmarket
Parkway, Marietta, GA 30067 ("Premises").
B. Newmarket and Tenant amended the Lease by First Amendment to Lease dated
June 9, 1994 and Second Amendment to Lease dated June 6, 1998 (Lease and
Amendment(s) collectively, "Lease as amended").
C. Landlord is successor in interest to Newmarket's interest as landlord
under the Lease as amended.
D. The Premises size currently measures approximately 11,227 rentable
square feet and includes Suite 124 of the Building.
E. Landlord and Tenant desire to further amend the Lease as amended to
extend the term and otherwise amend the Lease as
amended accordingly.
THEREFORE, in consideration of the mutual covenants and agreements stated
in the Lease as amended and below, and for other sufficient consideration
received and acknowledged by each party, Landlord and Tenant agree to amend the
Lease as amended as follows:
1. RECITALS. All recitals are fully incorporated.
2. ADDRESS - NOTICES. Landlord's address for notices as set forth in Lease
as amended shall be deleted and the following substituted therefor:
TRIZECHAHNCENTERS INC.
c/o TrizecHahn Office Properties, Inc.
100 Colony Square, Suite 600
1175 Peachtree Street, N.E.
Atlanta, GA 30361
Attention: David D. Canaday, Vice President
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with a copy to:
TRIZECHAHN CENTERS INC.
c/o TrizecHahn Office Properties, Inc.
100 Colony Square, Suite 600
1175 Peachtree Street, N.E.
Atlanta, GA 30361
Attention: Lease Administrator
and if notice of default, a copy to:
TRIZECHAHN CENTERS INC.
c/o TrizecHahn Office Properties, Inc.
100 Colony Square, Suite 600
1175 Peachtree Street, N.E.
Atlanta, GA 30361
Attention: Regional Counsel
3. EXTENSION OF LEASE TERM. The Lease Term for the Premises shall be
extended for approximately thirteen and one-half (13 1/2) months, to begin
November 16, 2001 and expire on December 31, 2002 ("2nd Extension Term").
4. RENTAL, COMMON AREA MAINTENACE EXPENSES, TAX AND INSURANCE ESCALATION
EXPENSES.Effective during 2nd Extension Term, Tenant's obligation to pay Rental,
Common Area Maintenance Expenses and Tax and Insurance Escalation Expenses shall
be as follows with respect to the Premises:
A. RENTAL. Effective during the 2nd Extension Term, Tenant shall pay
Landlord monthly rental in advance on the first day of each month in the amount
of $9,355.83; and
B. COMMON AREA MAINTENACE EXPENSES. Tenant shall reimburse Landlord
for the cost of Common Area Maintenance Expenses (as described in Paragraph 4 of
the Lease, "CAM") which shall be $0.80 per rentable square foot and subject to a
4% annual increase each calendar year; and
C. TAX AND INSURANCE ESCALATIONS EXPENSES. In addition to Rental and
CAM, Tenant shall continue to be responsible for tax and insurance escalation
expenses with respect to the entire Premises in accordance with the terms and
conditions of Paragraph 5 of the Lease; however the base year with respect to
determining tax and insurance escalation expenses for the Premises shall be the
calendar year ending December 31, 2002.
5. DELIVERY OF AND IMPROVEMENTS TO THE PREMISES. Landlord shall provide and
Tenant shall accept the Premises in "as-is" condition. No promises to alter,
remodel or improve the Premises or Building and no representations concerning
the condition of the Premises or Building have been made by Landlord to Tenant
other than as may be expressly stated in the Lease as amended.
6. HOLDOVER. Tenant understands that it does not have the right to hold
over at any time and Landlord may exercise any and all remedies at law or in
equity to recover possession of the Premises, as well as any damages incurred by
Landlord, due to Tenant's failure to vacate the Premises and deliver possession
to Landlord as required by this Lease. If Tenant holds over after the expiration
of the 2nd Extension Term with Landlord's prior written consent, Tenant will be
deemed to be a tenant from month to month, at a monthly Rental, payable in
advance, equal to 150% of the monthly Rental payable during the last year of the
2nd Extension Term, and Tenant will be bound by all of the other terms,
covenants and agreements of the Lease as amended as the same may apply to a
month-to-month tenancy. If Tenant holds over after the expiration of the 2nd
Extension Term without Landlord's prior written consent, Tenant will be deemed a
tenant at sufferance, at a daily Rental, payable in advance, equal to 200% of
the Rental per day payable during the 2nd Extension Term, and Tenant will be
bound by all of the other terms, covenants and agreements of the Lease as
amended as the same may apply to a tenancy at sufferance.
7. BROKERS. Landlord and Tenant represent and warrant that no broker or
agent negotiated or was instrumental in negotiating or consummating this Third
Amendment except TrizecHahn Colony Square GP LLC and Richard Bowers & Company
("Brokers"). Neither party knows of any other real estate broker or agent who is
or might be entitled to a commission or compensation in connection with this
Third Amendment. Pursuant to Georgia Real Estate Commission Regulation
520-1-108, TrizecHahn Colony Square GP LLC hereby discloses the following
concerning this lease transaction: (1) TrizecHahn Colony Square GP LLC
represents Landlord and not Tenant; (2) Richard Bowers & Company represents
Tenant and not Landlord; and (3) both TrizecHahn Colony Square GP LLC and
Richard Bowers & Company shall receive their compensation from Landlord. Tenant
and Landlord will indemnify and hold each other harmless from all damages paid
or incurred by the other resulting from any claims asserted against either party
by brokers or agents claiming through the other party.
8. CONFLICTING PROVISIONS. If any provisions of this Third Amendment
conflict with any of those of the Lease as amended, then the provisions of this
Third Amendment shall govern.
9. REMAINING LEASE PROVISIONS. Except as stated in this Third Amendment,
all other viable and applicable provisions of the Lease as amended shall remain
unchanged and continue in full force and effect throughout the Lease Term.
10. BINDING EFFECT. Landlord and Tenant ratify and confirm the Lease as
amended and agree that this Third Amendment shall bind and inure to the benefit
of the parties, and their respective successors, assigns and representatives as
of the date first stated.
-signatures appear on the following page-
AFFIRMING THE ABOVE, the parties have executed this THIRD AMENDMENT OF
LEASE on the date first stated.
WITNESSES: LANDLORD:
TRIZECHAHN CENTERS INC., a
California corporation
/s/ Mardi Taft BY: /s/ Robert R. Stubbs
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Robert R. Stubbs
Assistant Secretary
/s/ Carmel Malfeo BY: /s/ Antonio A. Bismonte
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Antonio A. Bismonte
Vice President
TENANT:
CRYOLIFE, INC., a Florida
corporation
By: /s/ Albert E. Heacox
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ITS: Sr. V.P. Laboratory Operations
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