LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 20th day of March, 2001, by and between
W. WAYNE FANN, owners of the Premises (defined below), with their offices
located at 509 N. Patterson Street, Valdosta, GA 31601 (hereinafter referred
to as "Lessor") and DCA OF VALDOSTA, LLC, a Delaware limited liability
company, having an office at 506 North Patterson Street, Valdosta, GA 31601
(hereinafter referred to as "Lessee").
1. PREMISES
--------
Lessor, in consideration of the rents and covenants hereinafter
mentioned, does demise and lease unto Lessee, all that certain space
consisting of approximately 6200 square feet of rentable space, located at
506 North Patterson Street, Valdosta, GA (the "Premises"), to be used for
an out-patient medical and dialysis center and for related offices, medical
and other, as well as storage purposes ("Use").
2. TERM
----
This Lease is for the term of ten (10) years, commencing on the
Commencement Date defined below (the "Term").
3. COMMENCEMENT OF TERMS
---------------------
3.1 Commencement of Rent
--------------------
The Term and the payment of Rent shall commence on the date that the
Premises shall be substantially completed (the "Commencement Date") for
Lessee's possession and intended Use. The Premises shall be deemed
substantially completed when all of the following have been met: (i) Lessee
has procured a certificate of occupancy or, if a certificate of occupancy is
not legally required, when the Premises are ready for the intended Use,
whichever first occurs; (ii) the facilities and systems serving the Premises
are in good operating condition; and (iii) the Premises comply with all
safety, health and other governmental codes.
3.2 Renovation
----------
All interior alterations and renovations of the Premises shall be the
responsibility of the Lessee, with the approval of all plans and
specifications to be approved by Lessor, which approval shall not be
unreasonabley withheld; however, Lessor will provide Lessee with up to fifty
five dollars ($55.00) per rentable square foot build-out allowance. The
Lessee agrees to pay as additional monthly rent to Lessor the amount of the
build-out allowance amortized over the initial term of the Lease. Lessor
shall accommodate and shall not interfere with Lessee's contractors with
respect to such alterations and renovations.
4. RENT
----
4.1 Lessee agrees to pay as rent to Lessor for the Use of the Premises
during the first year of the Term Fifty Five Thousand and 00/100 ($55,000.00)
Dollars per year ("Rent") to be paid in monthly installments of Four Thousand,
Five Hundred Eighty Three and 33/100 ($4,583.33) Dollars, increasing two
percent (2%) each of the following nine years of the Term, payable monthly in
advance on the due date, which is the first day of each calendar month during
the Term, allowing ten (10) day check processing time.
4.2 In the event the Commencement Date falls on a date later than the
first day of the month, the Lessee shall pay a pro-rated rent for said partial
month.
5. RENEWAL OPTION
--------------
This Lease shall be renewable for two consecutive periods of five (5)
years each under the terms and conditions of this Lease, which Renewal Periods
shall be automatic provided that:
(i) Lessee is not in default hereunder; and
(ii) Lessee has not given notice of its intent to terminate the Lease
and not enter into any Renewal Period; provided that any such notice to
terminate this Lease and not to renew shall be given at least ninety (90) days
prior to the expiration of the current Term; and
(iii) The Rent for any Renewal Period will commence on the first day of
the month immediately following the expiration of the Term or the first
Renewal Period, as the case may be, and will be at an additional rental to be
negotiated but in no event to exceed 10% in the aggregate of the yearly rent
for the immediately preceding Term or the first Renewal Period, as the case
may be, for such five year Renewal Period.
6. OPERATING RESPONSIBILITIES OF THE LESSOR
----------------------------------------
Lessor shall be responsible for the following during the Term:
(i) To keep and maintain in good, clean, safe and sanitary order,
condition and repair the roof, exterior walls, structure, foundation, floor
slabs, paving and outside walks and other structural components of the
Premises, and surrounding grounds;
(ii) To keep and maintain in good and sanitary order, condition and
repair the plumbing, electrical and gas components leading into and the
overall plumbing, electrical and gas components of the Premises;
(iii) To keep and maintain in good and sanitary order, condition and
repair, the parking areas; and to mark the parking spaces for the Lessee's
staff and for the Lessee's patients (see subparagraph (v));
(iv) To insure the Premises are free from pests and all infestations,
and to be responsible for bi-monthly extermination at Lessor's sole cost and
expense;
(v) To insure adequate and free parking adjacent to the Premises,
including a reserved space and ramp for delivery of supplies, and to insure
a minimum of twenty (20) assigned and clearly marked parking spaces for the
sole use of Lessee's patients and staff, of which three (3) parking spaces
will be designated and so marked for the handicapped and placed at the
Premises' closest entrance, and to allow Lessee's patients and staff to use
additional parking facilities as may be available;
(vi) To provide and maintain sufficient landscaping around the Premises
in such manner and capacity as to create a pleasing and attractive environment
for the Premises;
(vii) To provide trash dumpsters in close proximity to the Premises of
sufficient size and capacity to handle the daily containment and removal of
trash from the Premises; provided however, that Lessee shall be responsible
at its sole cost and expense for the proper containment and disposal of all
medical refuse;
(viii) To make specific improvements to the exterior of the Premises
that are mutually agreed upon with the Lessee, so the Premises are easily
accessible for the delivery of supplies and the entrance or exit of non-
ambulatory patients to include the following:
(a) The installation of a loading ramp and a pair of 5' 0" ; 7'0"
A-label, hollow metal double doors and frame at the rear of
the property.
(b) The installation of and ADA approved ramp at the entrance to
the property).
(c) Complete painting of all non-brick areas on the exterior of
the property.
(ix) To permit Lessee's installation of interior and exterior signs
identifying the Lessee and its business, such signs to be reasonable in
number, size and design; and Lessor to include and display Lessee's business
name on all Premises directories and at the Premises' street entrance signs;
(x) To insure Lessee has access to the Premises 24 hours per day,
seven (7) days a week, 52 weeks each year during the Term and all Renewal
Periods;
(xi) To provide utilities and services, in particular sufficient
water, electric and gas lines and telephone conduits to meet the needs of
Lessee's dialysis center; the Premises shall have available 400 amp
dedicated service three (3) phase; Lessor shall provide no less than a 2"
water line capable of producing a flow rate of 70 psi, and sewer lines
together with a natural gas line from the street to the Premises;
(xii) To pay all real estate, sales, income and other taxes with
respect to the Premises and this Lease;.
(xiii) To install and maintain at and about the Premises exterior
lighting sufficient to meet local and state building codes; and
(xiv) To keep and maintain in good and sanitary order, condition and
repair, air conditioning and heating, including but not limited to all
necessary plumbing, electrical and ventilation, engineered and satisfactory
in size and capacity to Lessee's requirements, to handle the heating and
cooling needs of Lessee's Use; Lessor warrants that the HVAC systems are and
shall continue to be safe
and in good operating condition, are structured to the needs of the Lessee,
and shall be repaired and maintained at Lessor's sole cost.
7. OPERATING RESPONSIBILITIES OF LESSEE
------------------------------------
Lessee shall be responsible for the following during the Term:
(i) To pay for all utilities Lessee uses at the Premises, including
water, sewer, electricity, heat and air conditioning (subject to Section
6(Xiv)), and telephone;
(ii) To make and pay for all necessary alterations and improvements to
the Premises, to include interior maintenance, repair and cleaning of carpets,
painting of interior walls, and interior decorating, which Lessee has the
right to do for Lessee's own purposes, which shall be made at Lessee's expense,
other than as stipulated in Section 3.2; Lessee may remove furniture, fixtures,
laboratory and other equipment and movable improvements installed within the
Premises at any time, including machinery and equipment affixed to the
Premises; Lessee shall promptly repair any damage to the Premises as a result
of such removal, other than normal wear and tear;
(iii) Lessee shall not permit any mechanic's liens, or similar liens, to
remain upon the Premises for labor and material furnished to Lessee or claimed
to have been furnished to Lessee in connection with work of any character
performed or claimed to have been performed at the direction of Lessee and
shall cause any such lien to be released and an instrument evidencing
discharge of same to be recorded forthwith without any cost to Lessor.
Lessee shall indemnify and save Lessor harmless from all injury, loss,
claims, liens or damage to any person or property occasioned by or arising
from such work. If Lessor incurs any costs and expenses, including
reasonable attorney's fees, then Lessee shall pay the Lessor that sum so
incurred as additional rent;
(iv) To provide janitorial services and supplies for and trash removal
from the Premises, and to maintain the Premises in good condition; and
(v) To return the Premises in good condition and repair, subject to
normal wear and tear, at the end of the Term or any Renewal Period.
8. ASSIGNING OR SUBLETTING BY LESSEE
---------------------------------
Lessee shall have the privilege of assigning or subletting the Premises,
after first obtaining written consent of Lessor, such consent to be reasonable
and shall not be arbitrarily withheld. Notwithstanding any provisions hereof,
Lessee may assign or sublet the Premises or any portion thereof, without
Lessor's consent, to (i) Lessee's medical director and similar physician; and
(ii) any corporation which controls, is controlled by or is under common
control with Lessee, or to any corporation resulting from the merger or
consolidation with Lessee, or to any person or entity which acquires
substantially all of the assets of Lessee, provided that said assignee
assumes, in full, the obligations of Lessee under this Lease. Any such
subletting or assignment shall terminate from that time on any and all
liabilities and obligations of Lessee to pay rent or perform under the
Lease. Consent to one assignment or subletting by Lessor shall not be
deemed consent to any subsequent assignment or subletting.
9. RESPONSIBILITY OF LESSEE
------------------------
All damages or injuries done to the Premises by Lessee and/or Lessee's
servants, agents, employees, patients, and individuals for whom Lessee is
responsible shall be repaired by Lessee at its expense, exclusive of ordinary
wear and tear, or except as the result, directly or indirectly, of Lessor's
failure to maintain the Premises in accordance with the provisions of this
Lease, or except for the negligence of Lessor, its agents, invitees,
contractors, employees, or other representatives. Lessee covenants and agrees
to make such repairs upon thirty (30) days' written notice given to Lessee by
Lessor, and if Lessee shall thereafter neglect to make said repairs or
commence to timely make the same, Lessor shall have the right to make such
repairs at the reasonable expense and cost of Lessee, provided Lessor gives
Lessee thirty (30) days written notice that Lessor is going to cure the damage
or injury and charge the same to Lessee, and the amount thereof may be
collected as additional rent accruing for the month following the date of
said repair.
10. FIRE OR CASUALTY
----------------
In the event that the Premises shall be totally or substantially damaged
by fire or other casualty or happening, to the extent that the business of the
Lessee cannot reasonably be conducted therein and if such damage cannot be or
is not repaired, restored, or rebuilt by the Lessor, as the case may be, to
substantially the same condition as it was immediately prior to such damage
or destruction within three (3) months after such damage, then either the
Lessor or Lessee shall have the option of terminating this Lease by written
notice delivered to the other party not later than thirty (30) days
following such failure to rebuild; in either event Lessee shall immediately
vacate and surrender possession of the Premises to Lessor. If neither Lessee
nor Lessor elects to terminate this Lease, or if the Premises are not damaged
to the extent that the damage unreasonably interferes with Lessee's Use,
Lessor shall proceed with said repairs with all reasonable diligence, but in
no event shall the repairs exceed ninety (90) days. The Rent payable
hereunder shall entirely abate in case the Premises are substantially
destroyed or so damaged as to render the Premises untenantable or not useable
or convenient or in a condition for patients of Lessee noting the Use of the
Premises, or abate proportionately according to the extent of the injury or
damage sustained by the Premises, if such is not substantially destroyed or
is rendered partially untenantable, until the Premises shall have been
restored, repaired, or rebuilt and put in proper condition for the Use and
occupancy of Lessee. Lessor agrees to institute such repairs immediately
after such damage and to complete the same with due diligence and within a
reasonable time as provided in this Lease.
11. LESSOR'S ACCESS AND INSPECTION
------------------------------
The Lessor, its employees, agents and servants may at reasonable times,
with reasonable notice, or in emergency situations, enter all parts of the
Premises, to inspect the same, to enforce or carry out any provision of the
Lease, to make repairs and alterations as Lessor is required or should elect
to do, and within 120 days of expiration of the Term or any Renewal Period,
to show the Premises to others.
12. INDEMNIFICATION
---------------
Except for the negligence of Lessor, its agents, invitees, employees,
contractors, or other representatives, and to the extent permitted by law,
Lessee agrees to indemnify, defend and hold harmless Lessor, and Lessor's
agents, invitees, employees and contractors, from and against any and all
losses, liabilities, damages, costs and expenses (including reasonable
attorneys' fees) resulting from claims by third parties for injuries to any
person and damage to or theft or misappropriation or loss of property
arising from Lessee's Use and occupancy of the Premises or from any
activity, work, or thing done, permitted or suffered by Lessee or due to
any other act or omission of Lessee, its subtenants, assignees,
invitees, employees, contractors and agents in or about the Premises. The
furnishing of insurance required hereunder shall not be deemed to limit
Lessee's obligations under this Section 12.
13. EVENTS OF DEFAULT
-----------------
Each of the following events shall be an event of default ("Event of
Default") by Lessee under this Lease:
(i) Lessee shall fail to pay any installment of Rent or any other
payment required herein when due, and such failure shall continue for a
period of 10 days after written notice of such default provided to Lessee
by Lessor;
(ii) Lessee shall (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to have
an order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or of any substantial part of its property (collectively a
"proceeding for relief"); (C) become the subject of any proceeding for
relief which is not dismissed within 60 days of its filing or entry; or (D)
be dissolved or otherwise fail to maintain its legal existence;
(iii) Any insurance required to be maintained by Lessee pursuant to this
Lease shall be canceled or terminated or shall expire or shall be materially
reduced or changed, except, in each case, as permitted in this Lease;
(iv) Lessee shall not occupy or shall vacate the Premises or shall fail
to continuously operate its business at the Premises for the Use during the
Term, whether or not Lessee is in monetary or other default under this Lease;
or
(v) Lessee shall fail to materially comply with any provision of this
Lease other than those specifically referred to in this Section 13, and
except as otherwise expressly provided herein, such default shall continue
for more than 30 days after Lessor shall have given Lessee written notice of
such default.
14. REMEDIES OF LESSOR
------------------
Upon each occurrence of an Event of Default and so long as such Event of
Default shall be continuing, Lessor may at any time thereafter at its election
terminate this Lease, and pursue any other remedies at law or in equity. Upon
the termination of this Lease, it shall be lawful for Lessor, to re-enter the
Premises by summary dispossession proceedings or any other action or
proceeding authorized by law and to remove Lessee and all persons and
property therefrom.
If Lessor terminates this Lease, Lessor may recover from Lessee the sum of
all Rent and all other amounts accrued hereunder to the date of such
termination, and the cost of reletting the whole or any part of the Premises.
Lessor shall relet the Premises for the remainder of the Term or any Renewal
Period, if applicable, at the best rent an agent may obtain with reasonable
diligence, and Lessee shall be liable for the difference, if any, between the
rent so obtained and the Rent which would have been paid by Lessee, had this
Lease continued for the remainder of the Term or any Renewal Period, if
applicable.
15. REMEDIES OF LESSEE
------------------
In the event of a default under the terms, covenants or conditions of
this Lease on the part of the Lessor which shall include but not be limited
to unreasonably withholding consents, failure to maintain facilities for the
introduction of water, gas, and electric to the Premises, failure to
maintain the Premises as required herein, failure to use due care with
respect to the persons and property of Lessee, failure of Lessor's warranties
as to the good operating condition of the services to the Premises, and
otherwise interfering with, whether negligently or intentionally, the
business of Lessee and its peaceable and quiet enjoyment of the Premises for
the Term and any Renewal Period, Lessee shall notify Lessor in writing of
said default and Lessor shall have thirty (30) days to cure or commence to
cure said default; provided that if the nature of the default is such that it
cannot be reasonably cured within said thirty (30) days, Lessor shall not be
deemed to be in default if it shall commence performance within said thirty
(30) day period and diligently proceeds to so cure the default thereafter.
If Lessor shall not cure or commence to cure the said default within the
thirty (30) day period, Lessee has the option to either terminate this Lease
and vacate the Premises immediately without any further liability under the
Lease and take whatever other lawful remedies that may be available to it
upon such default, or cure the default and at Lessee's option deduct
reasonable costs and expenses for such cure from Rent or any other amounts
accrued hereunder due, or otherwise be immediately reimbursed by Lessor.
Should there be a need to make any emergency repairs which were otherwise
the responsibility of the Lessor as provided in this Lease, but due to the
emergent circumstances, Lessee makes such repairs, the cost thereof shall be
a deduction from the Rent accruing for the month following the date of such
repair.
16. INSURANCE
---------
(i) Lessee, at its cost, shall maintain a policy of Combined Single
Limit Bodily Injury and Property Damage Insurance during the Term and any
applicable Renewal Period, such insurance to provide protection in the amount
of One Million ($1,000,000) Dollars combined single limit, insuring Lessee
against any liability arising out of and in connection with Lessee's Use or
occupancy of the Premises.
(ii) Lessor shall obtain and maintain insurance on the Premises,
primarily a policy of Combined Single Limit Bodily Injury and Property Damage
Insurance insuring against any liability arising out of the ownership or
maintenance of the Premises and all areas appurtenant thereto in an amount
not less than combined single limit of One Million ($1,000,000) Dollars.
Lessor should also obtain and maintain a policy or policies of insurance
covering loss or damage to the Premises, providing protection against all
perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, flood (in the event such is required by a
lender having a lien on the Premises), and special extended perils ("all
risk" as such term is used in the insurance industry).
(iii) Lessee and Lessor each hereby release and relieve the other (which
includes the other party's employees, agents, officers, directors and
shareholders) from any liability, whether for negligence or otherwise, in
connection with loss covered by any insurance policies which the releasor
carries with respect to the Premises or any interest or property therein or
thereon, but only to the extent that such loss is collected under said
insurance policies. Such release is also conditioned upon the inclusion in
the policy of a provision whereby any such release does not adversely affect
such policy or prejudice any right of the releasor to recover thereunder.
Each party's insurance policies shall include such a provision so long as it
is obtainable without extra cost.
17. QUIET ENJOYMENT
---------------
Lessor, covenants and agrees that Lessee, upon paying said Rent and
performing the covenants of this Lease, on its part to be performed, shall
and may peaceably and quietly have, hold and enjoy the Premises, including
but not limited to parking areas, sidewalk entrances and exits for the Term
and all applicable Renewal Periods.
18. AUTHORIZATION
-------------
Lessor and Lessee each has all the requisite right, power, legal capacity
and authority, individual, corporate and otherwise, to enter into this Lease
and to assume and perform their respective obligations hereunder. The
execution and delivery of this Lease and the performance by Lessor and Lessee
of their obligations hereunder have been duly authorized by their respective
boards of directors and/or partners, as the case may be, and this Lease is a
binding and enforceable Lease of Lessor and Lessee according to its terms.
The execution, delivery and performance of this Lease by Lessor and Lessee
will not result in any violation of and will not conflict with, or result in
any breach of any of the terms of or constitute a default under, or constitute
an event which with notice or the passage of time or both would constitute a
default under, any provision of any law to which Lessor or Lessee is subject,
any of their partnership agreements or articles of incorporation, and by-laws
of the Lessor and/or Lessee, as the case may be, or any mortgage, indenture,
agreement, instrument, judgment, decree, or rule or resolution or other
restriction to which Lessor or Lessee is bound. The representations as
contained herein are only made by Lessor and Lessee as to their own
individual, partnership and/or corporate acts, articles of incorporation,
by-laws and/or partnership agreements, as the case may be, and their
respective related agreements and regulations and neither makes any
representations as to the others acts, articles of incorporation, by-laws,
partnership agreements, as the case may be, and related agreements and
regulations.
No action, approval, consent or authorization, including but not limited
to any action, approval or consent of any shareholder, note holder, partner,
or order of any court or governmental agency, commission, board, bureau or
instrumentality, otherwise than as specifically provided in this Lease, is
necessary in order to constitute this Lease as a valid, binding and
enforceable obligation of the parties hereto in accordance with its terms.
19. AGREEMENT
---------
It is expressly understood by the parties that the whole agreement
between them is embodied in this Lease and the attachments hereto (executed
in duplicate) and may only be modified by a written agreement (s) executed by
Lessor and Lessee.
20. HEIRS, SUCCESSORS, ETC.
-----------------------
This Lease shall be binding upon the parties hereto and their respective
successors and/or assigns.
21. NOTICES
-------
All Rent payments, notices, requests, demands and other communications
under this Lease shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on
the party to whom notice is to be given, or on the third day after mailing
if mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, or the next day or second day if
effected by such overnight mail, and properly addressed as follows:
To Lessor: W. WAYNE FANN
509 N. Patterson Street
Valdosta, GA 31601
Copy To: Coleman, Talley, Newborn, Attorneys
910 N. Patterson St.
Valdosta, GA 31601
Attn: Clay Powell
To Lessee: DCA of Valdosta, LLC
506 N. Patterson St.
Valdosta, GA 31601
Attn: Stephen W. Everett, President
Copy To: Jaffe Freedman & Hait, LLC
777 Terrace Avenue
Hasbrouck Heights, NJ 07604
Attn: Lawrence E. Jaffe, Esq.
Any party may change its address for purposes of this Section 21 by
giving the other parties written notice of the new address in the manner set
forth above.
22. APPLICABLE LAW
--------------
This Lease shall be construed under the laws of the State of Georgia.
If any provision of this Lease, or portion thereof, or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby and
each provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
23. WAIVER OF JURY TRIAL
--------------------
If either party institutes legal action pertaining to this Lease, the
venue of the suit shall be Lowndes County, Georgia. The parties also
expressly waive any right which they otherwise may have to have any disputes
between them resolved by means of trial by jury.
24. AUTHORSHIP
----------
Neither party to this Lease shall be benefited or burdened by any rule
of document interpretation that otherwise would interpret a document against
the interests of the author.
25. COUNTERPARTS
------------
This Lease may be executed in several counterparts and each such
counterpart shall be deemed an original, and all counterparts shall constitute
a single original Lease.
IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Lease on
the date so indicated alongside their respective signatures.
Lessor: W. WAYNE FANN
/s/ W. Wayne Fann
Dated: , 2000 By:--------------------------------
W. WAYNE FANN
Lessee: DCA OF VALDOSTA, LLC
/s/Stephen W. Everett
By:--------------------------------
STEPHEN W. EVERETT, President