EXHIBIT 10.2
LEASE AGREEMENT
THIS LEASE made this first day of March, 1999, by and between MEDICAL DOCTOR
ASSOCIATES, INC., a Georgia corporation, first party (hereinafter called
"Tenant"), and ADKS Realty Corporation, a Georgia corporation, second party
(hereinafter called "Landlord");
WITNESSETH:
1. PREMISES. The Landlord, for and in consideration of the rents,
covenants, agreements, and stipulations hereinafter mentioned,
reserved, and contained, to be paid, kept and performed by the Tenant,
has leased and rented, and by these presents does lease and rent, unto
the said Tenant, and said Tenant hereby agrees to lease and take upon
the terms and conditions which hereinafter appear, the following
described property (hereinafter called "Premises"), to wit:
Office building located at 145 Technology Parkway, Technology Park, in
Gwinnett County, Sate of Georgia
No easement for light or air is included in the Premises.
2. TERM. To have to hold the same for a term of fifteen (15) years
beginning on the first day of March 1999, and ending on the last day
of February, 2014 at midnight, unless sooner terminated as hereinafter
provided.
3. RENTAL. Tenant agrees to pay Landlord, an annual rental in the amount
of $300,000, which shall be paid promptly on the first day of each
month in advance, during the term of this lease, in equal monthly
installments of $25,000.
4. UTILITY BILLS. Tenant shall pay utility bills, including but not
limited to, water, sewer, gas, electricity, fuel, light and heat bills
for the Premises, and Tenant shall pay all charges for garbage
collection services or other sanitary services rendered to the
Premises or used by Tenant in connection therewith. If Tenant fails to
pay any of said utility bills or charges for garbage collection or
other sanitary services, Landlord may pay the same and such payment
shall be added to and become part of the next rental payment due under
this Lease.
5. USE OF PREMISES. Premises shall be used for corporate offices purposes
and no other. Premises shall not be used for any illegal purposes, nor
in any manner to create any nuisance or trespass, nor in any manner to
vitiate the insurance or increase the rate of insurance on Premises.
6. ABANDONMENT OF THE PREMISES. Tenant agrees not to abandon or vacate
the Premises during the period of this Lease and agrees to use said
Premises for the purposes herein leased until the expiration hereof.
7. REPAIRS OF TENANT. Tenant accepts the Premises in their present
condition and as suited for the uses intended by Tenant. Tenant shall,
throughout the initial term of this Lease extensions or renewal
thereof, at its expense, maintain in good order and repair the
Premises, including the building, heating and air conditioning
equipment (including but not limited to replacement of parts,
compressors, air handling units and heating units), and other
improvements located thereon. An expense cap of $15,000 per year on
major replacement items such as compressors, air handling units and
heating units, and total roof refurbishment by Tenant. Tenant further
agrees to care for the grounds around the building, including the
mowing of grass, paving, care of shrubs and general landscaping.
Tenant agrees to return said Premises to Landlord at the expiration,
or prior to termination of this Lease in as good condition and repaid
as when first received, natural wear and tear, damage by storm, fire,
lightning, earthquake or other casualty alone excepted.
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8. TAX ESCALATION. Tenant shall pay upon demand, as additional rental
during the term of this Lease and any extension or renewal thereof,
the amount by which all taxes (including but not limited to, ad
valorem taxes, special assessments and any other governmental charges)
on the Premises for each tax year exceed all taxes on the Premises for
the tax year 1991. In the event the Premises are less than the entire
property assessed for such taxes for any such tax year, then the tax
for any such year applicable to the Premises shall be determined by
proration on the basis that the rentable floor area of the Premises
bears to the rentable floor area of the entire property assessed. If
the final year of the lease term fails to coincide with the tax year,
then any excess for the tax year during which the term ends shall be
reduced by the pro rata part of such tax year beyond the lease term.
If such taxes for the year in which the Lease terminates are not
ascertainable before payment of the last month's rental, then the
amount of such taxes assessed against the property for the previous
tax year shall be used as a basis of determining the pro rata share,
if any, to be paid by Tenant for that portion of the last lease year.
Tenant's pro rata portion of increased taxes, are not provided herein,
shall be payable within fifteen days after receipt of notice from
Landlord as to the amount due.
9. DESTRUCTION OF, OR DAMAGE TO, PREMISES. If Premises are totally
destroyed by storm, fire, lightning, earthquake or other casualty,
this Lease shall terminate as of the date of such destruction, and
rental shall be accounted for as between Landlord and Tenant as of
that date. If Premises are damaged but not wholly destroyed by any of
such casualties, rental shall abate in such proportion as use of
Premises has been destroyed, and Landlord shall restore Premises to
substantially the same condition as before damage as speedily as
practicable, whereupon full rental shall recommence.
10. INDEMNITY. Tenant agrees to indemnify and save harmless the Landlord
against all claims for damages to persons or property by reason of
Tenant's use or occupancy of Premises, and all expenses incurred by
Landlord because thereof, including attorneys' fees and court costs.
Supplementing the foregoing and in addition thereof, Tenant shall
during all terms of this Lease, and any extension thereof, and at
Tenant's expense maintain in full force and effect comprehensive
general liability insurance with limits of $500,000.00 per person and
$1,000,000.00 per accident, and property damage limits of $100,000.00,
which insurance shall contain a special endorsement recognizing and
insuring any liability accruing to Tenant under the first sentence of
this paragraph. Such insurance policy shall contain a clause expressly
waiving any right of the insurer of subrogation against Landlord.
Prior to the commencement of the term of this Lease, Tenant shall
furnish Landlord with a certificate of such insurance which shall show
the waiver of subrogation, and the endorsement required hereby. Such
certificate shall provide that Landlord will be given ten (10) days
written notice prior to cancellation or expiration of the insurance
evidenced thereby.
11. Governmental Orders. Tenant agrees, at his own expense, to promptly
comply with all requirements of any legally constituted public
authority made necessary by reason of Tenant's occupancy of said
Premises. Landlord agrees to promptly comply with any such
requirements if not made necessary by reason of Tenant's occupancy. It
is mutually agreed, however, between Landlord and Tenant, that if in
order to comply with such requirements, the cost to Landlord or
Tenant, as the case may be, shall exceed a sum equal to one year's
rent, then Landlord or Tenant who is obligated to comply with such
requirements is privileged to terminate this Lease by giving written
notice of termination to the other party, by registered mail, which
termination shall become effective sixty (60) days after receipt of
such notice, and which notice shall eliminate necessity of compliance
with such requirement by party giving such notice unless party
receiving such notice of termination shall, before termination becomes
effective, pay to party giving notice all cost of compliance in excess
of one year's rent, or secure payment of said sum in manner
satisfactory to party giving notice.
12. Condemnation. If the whole of the leased Premises, or such portion
thereof as will make Premises unusable for the purposes herein leased,
be condemned by any legally constituted authority for any public use
or purpose, then in either of said events the term hereby granted
shall cease from the time when possession thereof is taken by public
authorities, and rental shall be accounted for as between Landlord and
Tenant as of that date. Such termination, however, shall be without
prejudice to the rights of either Landlord or Tenant to recover
compensation and damage caused by condemnation from the condemnor. It
is further understood and agreed that neither the Tenant nor Landlord
shall have any rights in any award made to the other by any
condemnation authority.
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13. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written
consent of Landlord, assign this Lease or any interest hereunder, or
sublet Premises or any part thereof, or permit the use of any party
other than Tenant. Consent to any assignment or sublease shall not
destroy this provision, and all later assignments or subleases shall
be made likewise only on the prior written consent of Landlord.
Assignee of Tenant, at option of Landlord, shall become directly
liable to Landlord for all obligations of Tenant hereunder, but no
sublease or assignment by Tenant shall relieve Tenant of any liability
hereunder.
14. REMOVAL OF FIXTURES. Tenant may (if not in default hereunder), prior
to the expiration of this Lease, or any extension thereof, remove all
fixtures and equipment which he has placed in Premises, provided
Tenant repairs all damage to Premises caused by such removal.
15. EVENTS OF DEFAULT. The happening of any one or more of the following
events (hereinafter any one of which may be referred to as an "Event
of Default") during the term of this Lease, or any renewal or
extension thereof, shall constitute a breach of this Lease on the part
of the Tenant: (1) Tenant fails to pay the rental as provided for
herein; (2) Tenant abandons or vacates the Premises; (3) Tenant fails
to comply with or abide by and perform any other obligation imposed
upon Tenant under this Lease; (4) Tenant is adjudicated bankrupt; (5)
a permanent receiver is appointed for Tenant's property and such
receiver is not removed within sixty (60) days after written notice
from Landlord to Tenant to obtain such removal; (6) Tenant, either
voluntarily or involuntarily, takes advantage of any debtor relief
proceedings under any present or future law, whereby the rent or any
part thereof is, or is proposed to be, reduced or payment thereof
deferred; (7) Tenant makes an assignment for benefit of creditors; or
(8) Tenant's effects are levied upon or attached under process against
Tenant, which is not satisfied or dissolved within thirty (30) days
after written notice from Landlord to Tenant to obtain satisfaction
thereof.
16. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of Default,
Landlord may pursue any one or more of the following remedies,
separately or concurrently, without any notice (except as specifically
provided hereafter) and without prejudice to any other remedy herein
provided or provided by law: (a) if the Event of Default involves
nonpayment of rental, and Tenant fails to cure such default within ten
(10) days after receipt of written notice thereof from Landlord, or if
the Event of Default involves a default in performing any of the terms
of provisions of this Lease other than the payment of rental, and
Tenant fails to cure such default within thirty (30) days after the
date of receipt of written notice of default from Landlord, Landlord
may terminate this lease by giving written notice to Tenant and upon
such termination shall be entitled to recover from the Tenant damages
in an amount equal to all rental which is then due and which would
otherwise have become due throughout the remaining term of this Lease,
or any renewal thereof (as if this Lease had not been terminated); or
(b) if the Event of Default involves any matter other than those set
forth in item (a) of this paragraph, the Landlord may terminate this
Lease by giving written notice to Tenant, and upon such termination,
shall be entitled to recover from Tenant damages in an amount equal to
all rental which is then due and which would otherwise have become due
throughout the remaining term of this Lease or any renewal or
extension thereof (as if this Lease had not been terminated); or (c)
upon any Event of Default, Landlord may give to Tenant written notice
of such default and advise Tenant that unless such default is cured
within ten (10) days after receipt of such notice, the entire amount
of the rental for the remainder of the term of this Lease, or any
renewal or extension thereof, shall immediately become due and payable
upon the expiration of the ten day period, and thereafter unless all
the terms and provisions of this Lease are fully complied with by the
Tenant without said ten day period, the entire amount of said rental
shall thereupon become immediately due and payable without further
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notice to Tenant; or (d) upon any Event of Default, Landlord, as
Tenant's agent, without terminating this Lease may enter upon and rent
the Premises, in whole or, in part, at the best price obtainable by
reasonable effort, without advertisement and by private negotiations
and for any term Landlord deems proper, with Tenant being liable to
Landlord for the deficiency, if any, between Tenant's rent hereunder
and the price obtained by Landlord on reletting; provided however,
that Landlord shall not be considered to be under any duty by reason
of this provision to take any action to mitigate damages by reason of
Tenant's default.
17. EXTERIOR SIGNS. Tenant shall place no signs upon the outside walls or
roof of the leased Premises except with the written consent of the
Landlord. Any and all signs placed on the within leased Premises by
Tenant shall be maintained in compliance with rules and regulations
governing such signs and the Tenant shall be responsible to Landlord
for any damage caused by installation, use, or maintenance of said
signs, and Tenant agrees upon removal of said signs to repair all
damage incident to such removal.
18. ENTRY FOR CARDING, ETC. Landlord may card Premises "For Rent" or "For
Sale" thirty (30) days before the termination of this Lease. Landlord
may enter the Premises at reasonable hours to exhibit same to
prospective purchasers or tenants and to make repairs required of
Landlord under the terms hereof, or to make repairs to Landlord's
adjoining property, if any.
19. EFFECT OF TERMINATION OF LEASE. No termination of this Lease prior to
the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination
thereof.
20. MORTGAGEE'S RIGHTS. Tenant's right shall be subject to any bona fide
mortgage or deed to secure debt which is now, or may hereafter be,
placed upon the Premises by Landlord. Tenant shall, if requested by
Landlord, execute a separate agreement reflecting such subordination.
21. NO ESTATE IN LAND. This Lease shall create the relationship of
Landlord and Tenant between the parties hereto; no estate shall pass
out of Landlord. Tenant has only a usufruct, not subject to levy and
sale, and not assignable by Tenant except by Landlord's consent.
22. HOLDING OVER. If Tenant remains in possession of Premises after
expiration of the term hereof, with Landlord's acquiescence and
without any express agreement of parties, Tenant shall be a tenant at
will at rental rate in effect at the end of Lease; and there shall be
no renewal of this Lease by operation of law. If Tenant remains in
possession of the Premises after expiration of the term hereof without
Landlord's acquiescence, then Tenant shall be a tenant at sufferance
and, commencing on the date following the date of such expiration, the
monthly rental payable under paragraph 3 hereof shall, for each month
or fraction thereof during which Tenant so remains in possession, be
twice the monthly rental otherwise payable under paragraph 3 hereof.
23. ATTORNEYS' FEES AND HOMESTEAD. If any rent owing under this Lease is
collected by or through an attorney at law, Tenant agrees to pay
twenty (20%) percent thereof as attorneys' fees. Tenant waives all
homestead rights and exemptions which he may have under any law as
against any obligation owing under this Lease. Tenant hereby assigns
to Landlord his homestead and exemption.
24. RIGHTS CUMULATIVE. All rights, powers and privileges conferred
hereunder upon parties hereto shall be cumulative but not restrictive
to those given by law.
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25. SERVICE OF NOTICE. Tenant hereby appoints as his agent to receive
service of all dispossessory or distraint proceedings and notices
thereunder, and all notices required under this Lease, the person in
charge of leased Premises at the time, or occupying said Premises; and
if no person is in charge of, or occupying said Premises, then such
service or notice may be made by attaching the same on the main
entrance to said Premises. A copy of all notices under this Lease
shall also be sent to Tenant's last known address, if different from
said Premises.
26. WAVIER OF RIGHTS. No failure of Landlord to exercise any power given
Landlord hereunder, or to insist upon strict compliance by Tenant with
his obligation 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.
27. DISCLOSURE OF OWNERSHIP. The owner of the Premises is ADKS Realty
Corporation, a Georgia corporation, whose address is 145 Technology
Parkway, the persons authorized to manage the Premises is Kenneth M.
Shumard and Agatino S. DiBella, whose address is 145 Technology
Parkway. Service of process and demands and notices as to the Landlord
shall be made on Kenneth M. Shumard & Agatino S. DiBella, who is
authorized to acknowledge the receipt of same.
28. TIME OF ESSENCE. Time is of the essence of this agreement.
29. DEFINITIONS. "Landlord" as used in this Lease shall include the first
party, his heirs, representatives, assigns and successors in title to
Premises. "Tenant" shall include second party, his heirs and
representatives, and if this Lease shall be validly assigned or
sublet, shall include also Tenant's assignees or sublessees, as to
Premises covered by such assignment or sublease. "Agent" shall include
third party, his successors, assigns, heirs and representatives.
"Landlord", 'Tenant", and "Agent" include male and female, singular
and plural, corporation, partnership or individual, as may fit the
particular party.
30. SPECIAL STIPULATIONS. Insofar as the following stipulations conflict
with any of the foregoing provisions, the following shall control:
(a) The rent to be paid to Landlord by Tenant shall be net to
Landlord, and Tenant covenants and agrees that it will also pay,
or cause to be paid all charges and assessments of every kind and
character which may be made against the Premises during the term
of this Lease including but not limited to:
(i) Any and all taxes of every kind which may be assessed
against the Premises or against Landlord by reason of its
ownership of the Premises;
(ii) Any and all taxes which may be assessed against the
improvements as may be presently located or hereafter
placed on the Premises;
(iii) Any and all sales taxes which may be assessed against the
rent due hereunder by any governmental authority having
jurisdiction there over;
(iv) Any and all charges or assessments for sewer or water
lines, or for street or sidewalk construction, paving or
repair; and
(v) Any and all bills for utilities or services furnished to or
for the Premises.
Page 5 of 7
(b) Tenant shall at its sole cost and expense, maintain any and all
improvements presently located on or hereafter constructed on the
Premises (any such improvements herein referred to as the
"Improvements") in good order and repair, and. to make all
necessary repairs, replacements and renewals thereof, whether
interior or exterior, structural or non-structural.
(c) (i) Tenant shall secure and maintain in force, at Tenant's
expense, during the term of the Lease, fire and "extended
coverage" insurance on all improvements now or hereafter
located on the Premises in an amount sufficient to prevent
any party in. interest from being or becoming a co-insurer
on any part of the risk, which amount shall not be less
than one hundred (100%) percent of the "full insurable
value" being the cost of replacing such Improvements. All
policies of such insurance shall include the name of the
Landlord as one of the parties insured and shall fully
protect both the Landlord and Tenant as their respective
interests may appear. Should the improvements be damaged by
casualty insured under such policies, Tenant will use the
proceeds received from such policies to repair and restore
the damaged improvements to the condition existing prior to
such casualty or to construct new improvements.
(ii) Tenant at its own cost and expense during the term of this
Lease shall carry in full force and effect public liability
insurance covering the Landlord as well as Tenant in
amounts of not less than $1,000,000.00 for injury to or
death of any one person, and $1,000,000.00 for injury or
death of any number of persons in any one accident, and
$500,000.00 for damage to property. All policies of such
insurance shall include the name of the Landlord as one of
the parties insured and shall fully protect both the
Landlord and Tenant as their respective interests may
appear.
(iii) Promptly upon the writing of the policies required of
Landlord as described herein, Tenant will deliver to the
Landlord certificates of all such policies.
(d) Tenant shall indemnify and save harmless Landlord against and
from all liabilities, obligations, damages, penalties, claims,
costs, charges and expenses including reasonable attorneys' fees
which may be imposed upon or incurred by or asserted against
Landlord by reason of any of the following occurring during the
term of this Lease:
(i) any work or thing done in, on or about the Premises or any
part thereof by or on behalf of Tenant;
(ii) any use, non-use, possession, occupation, condition,
operation, maintenance or management of the Lease Premises
or any part thereof;
(iii) any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, licensees, invitees or
designees;
(iv) any accident, injury or damage to any person or property
occurring in, on or about the Premises orany part thereof which
occurs as a result of any act, or failure to act, on the part
of Tenant or any of its agents, contractors, servants,
employees, licensees, invitees, or designees.
(e) Notwithstanding any provision herein to the contrary, this
Lease shall be a "net- net-net" lease, and the rents reserved
hereunder shall be a paid without any set- off, offset, or
deduction of any nature.
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This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise,
between the parties, not embodied herein, shall be of any force or effect.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, in triplicate, the day and year first above written.
Signed, sealed and delivered This 25th day of February, 1999, in the
presence of:
Signed, sealed and delivered This TENANT:
25th day of February 1999, In the MEDICAL DOCTOR ASSOCIATES, INC.
presence of: a Georgia corporation
//signed//Miller
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Witness By: //signed//K. M. Shumard
-------------------------
Name: K. M. Shumard
-------------------------
Title: CEO
-------------------------
//signed//Kim Kisling
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NOTARY PUBLIC (AFFIX SEAL)
My commission expires:
Notary Public, Dekalb County, Georgia
My Commission Expires February 8, 2002
- ---------------------------------------
Signed, sealed and delivered This LANDLORD:
25th day of February 1999, in the ADKS REALTY CORPORATION, A
presence of: Georgia corportion
//signed//Miller By: //signed//K. M. Shumard
- -------------------------------------- -------------------------
Witness Name: K. M. Shumard
-------------------------
Title: Vice President
-------------------------
(CORPORATE SEAL)
//signed//Kim Kisling
- ---------------------------------------
Notary Public (AFFIX SEAL)
My commission expires:
Notary Public, Dekalb County, Georgia
My Commission Expires February 8, 2002
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