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EXHIBIT 10.7
COVER PAGE
The capitalized terms in this Lease shall have the meanings ascribed to
them below, and each reference to such term in the Lease shall incorporate such
meaning therein as if fully set forth therein.
LANDLORD: ASC NORTH XXXXXX ASSOCIATES JOINT VENTURE, a Georgia joint
venture, with its principal office located at 0000 Xxxx
Xxxxx, Xxxxxxxx, Xxxxxxx 00000
TENANT: HORIZON PHARMACEUTICAL CORPORATION, a corporation duly
organized and existing under the laws of the State of
Delaware.
LEASED PREMISES: (a) Address: 000 Xxxxxxx Xxxxxxx
(b) Suite : 106
(c) Rentable Area: 24,300 square feet
(d) Pro Rata Share: 25.71%
(e) Project: Northmeadow Distribution III
TERM: Five (5) years
COMMENCMENT
DATE: September 1, 1998
TERMINATION
DATE: August 31, 2003
BASE RENT
(PER YEAR): $176,175.00
BASE YEAR: 1998
SECURITY DEPOSIT: $2,470.98
TENANT'S AGENT: Xxx Xxxxxxx
XXX Real Estate Services
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HORIZON PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. LEASED PREMISES ...................................................... 1
2. TERM ................................................................. 1
3. RENTAL ............................................................... 1
4. DELAY IN DELIVERY .................................................... 3
5. USE OF LEASED PREMISES ............................................... 3
6. UTILITIES ............................................................ 4
7. ACCEPTANCE OF PREMISES ............................................... 4
8. ALTERATIONS, MECHANICS' LIENS ........................................ 4
9. QUIET CONDUCT/QUIET ENJOYMENT ........................................ 5
10. FIRE INSURANCE, HAZARDS .............................................. 5
11. LIABILITY INSURANCE .................................................. 6
12. INDEMNIFICATION ...................................................... 6
13. WAIVER OF CLAIMS ..................................................... 7
14. REPAIRS .............................................................. 7
15. SIGNS, LANDSCAPING ................................................... 8
16. ENTRY BY LANDLORD .................................................... 8
17. TAXES AND INSURANCE INCREASE ......................................... 8
18. ABANDONMENT .......................................................... 10
19. DESTRUCTION .......................................................... 10
20. ASSIGNMENT AND SUBLETTING ............................................ 11
21. INSOLVENCY OF TENANT ................................................. 11
22. BREACH BY TENANT ..................................................... 12
23. ATTORNEYS' FEES/COLLECTION CHARGES ................................... 13
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STATE OF XXXXXXX
XXXXXX COUNTY
This Lease Agreement is made this 28th day of June, 1998, by and
between ASC NORTH XXXXXX ASSOCIATES JOINT VENTURE, a Georgia joint venture,
hereinafter referred to as "Landlord," and HORIZON PHARMACEUTICAL CORPORATION,
hereinafter referred to as "Tenant."
LEASED PREMISES
1.01 Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the property hereinafter referred to as the LEASED PREMISES,
described as approximately 24,300 rentable square feet of office/warehouse at
000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Xxxxxx Xxxxxx, in
Northmeadow Business Park, as shown on the plan attached hereto as Exhibit "A"
and by reference incorporated herein. The building in which the Leased Premises
are located is herein referred to as the "Building;" and the real property on
which the building is situated is herein referred to as the "Land."
TERM
2.01 TO HAVE AND TO HOLD said Leased Premises for a term of five
(5) years, commencing on September 1, 1998, and continuing until midnight on
August 31, 2003.
RENTAL
3.01 As rental for the Leased Premises, Xxxxxx agrees to pay to
Landlord, without offset or abatement, Base Rental as set forth below:
September 1, 1998 - August 31, 2000 $14,681.25/month $176,175.00/year
September 1, 2000 - August 31, 2001 $15,121.69/month $181,460.28/year
September 1, 2001 - August 31, 2002 $15,575.34/month $186,904.08/year
September 1, 2002 - August 31, 2003 $16,042.60/month $192,511.20/year
on or before the first day of each calendar month beginning on September 1, 1998
and thereafter for the remainder of the term, together with any other additional
rental as hereinafter set forth. Tenant shall pay interest at a rate of twelve
percent (12%) per annum on all late payments of rent, however, monthly rent
shall not be deemed late or past due unless said rent has not been paid to
Landlord on or before the fifth day of each calendar month provided however,
Landlord's acceptance of a late payment shall be accorded Tenant, if necessary,
only twice during any consecutive twelve (12) month period of the Term, and an
event of default shall be deemed to have immediately occurred upon the third
(3rd) failure by Tenant to make a timely payment as aforesaid within any
consecutive twelve (12) month period of the Term. If the Lease shall commence on
any date other than the first day of a calendar month, or end on any date, other
than the last day of a calendar month, rent for such month shall be prorated.
Tenant has
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deposited with Landlord, upon delivery of this Lease Agreement, an amount equal
to Fourteen Thousand Six Hundred Eighty-one and 25/100 Dollars ($14,681.25)
Dollars, which is to be applied as first month's Base Rental. Landlord shall
hold an amount equal to Two Thousand Four Hundred Seventy and 98/100 ($2,470.98)
Dollars from Tenant's previous lease agreement, and upon execution of this
Lease, shall apply said amount to be held as a refundable security deposit for
this Lease. Landlord may apply all or any part of the security deposit to cure
any default by Tenant hereunder and Tenant shall promptly restore to the
security deposit all amounts so applied upon invoice therefor. If Tenant shall
fully perform each provision of this Lease, any portion of the security deposit
which has not been appropriated by Landlord in accordance with the provisions
hereof shall be returned to Tenant, without interest, within thirty (30) days
after the expiration of the term of this Lease.
3.02 The rental provided in paragraph 3.01 "Rental" above, includes
an allowance ("Allowance") in the amount of $12.75 per square foot contained in
the Leased Premises, which is the sum of Three Hundred Nine Thousand Eight
Hundred Twenty-five and no/100 Dollars ($309,825.00) for the construction of
tenant improvements on the basis set forth in the plans and specifications
attached, or to be attached, hereto in Exhibit "B". In the event the cost of
tenant improvements exceeds the cost of tenant improvement Allowance, the excess
shall be paid by Tenant within thirty (30) days of Xxxxxx's receipt of
Landlord's notice. Notwithstanding the foregoing, in the event Landlord
anticipates that the cost of tenant improvements will exceed the cost of tenant
improvement Allowance, by ten percent (10%) or more, Landlord shall give written
notice to Tenant of the projected cost overruns. Tenant shall have three (3)
days to advise Landlord of any objections to the notice, if Tenant does not so
advise Landlord within such period, Tenant shall be deemed to have approved such
cost overruns and the excess shall be paid by Tenant within thirty (30) days of
Tenant's receipt of Landlord's notice.
3.03 In addition to the Base Rental, Xxxxxx agrees to pay Landlord
as additional rental, its pro rata share of the amounts described in
subparagraphs (a) and (b) below. Each year during the term hereof, Landlord
shall give Tenant written notice of its estimate of the amount of common area
maintenance charges and common area utility charges (collectively "Charges") for
the Leased Premises for the calendar year. Tenant shall, thereafter, during that
calendar year, pay to Landlord one-twelfth (1/12) of the amount set forth in
said statement at such time as its monthly installments of Base Rental hereunder
are due and payable. At such time as Landlord is able to determine the actual
Charges for such calendar year, Landlord shall deliver to Tenant a statement
thereof and in the event the estimated Charges differ from the actual Charges,
any adjustment necessary shall be made to additional rental payments next coming
due under this paragraph.
(a) Landlord agrees to maintain those areas around the
Building and in the Project, including parking areas, planted areas, signs and
landscaped areas which are from time to time designated by Landlord. Xxxxxx
agrees to pay to Landlord as additional rental its pro rata share of all ground
maintenance charges and other common area charges and expenses for the Building
and the Land ("CAM Charges"). The term "grounds maintenance" shall include,
without limitation, all landscaping, planting, lawn and grounds care, all
repairs and maintenance to the grounds, signs and other common areas around the
Building and in the Project and to all sidewalks, driveways, loading areas and
parking areas. CAM Charges shall not include items of
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capital nature. Tenant's pro rata share of CAM Charges for the first year of the
Lease term are estimated to be $.36 per square foot contained in the Leased
Premises. Notwithstanding the provisions of this Section 3.03 in no event shall
any increase in the CAM Charges exceed ten percent (10%) over CAM Charges for
the preceding year.
(b) In the event any utilities furnished to the Building
or the Leased Premises are not separately metered, Tenant shall pay to Landlord,
as additional rental, Tenant's pro rata share of the gas, water, electricity,
fuel, irrigation costs, light and heat, garbage collection services and for all
other sanitary services rendered to the Leased Premises used by Tenant. Tenant's
prorated amount shall be determined on the basis of the size of the Leased
Premises, unless Landlord determines that Tenant's use of the Leased Premises
justifies a disproportionate allocation of utility costs to Tenant.
3.04 Tenant agrees to pay as additional rent to Landlord, upon
demand, its pro rata share of any utility surcharges, or any other costs levied,
assessed or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof, promulgated by any Federal, State,
Municipal or local governmental authorities in connection with the use or
occupancy of the Leased Premises, unless such costs are caused by the usage of
other tenants.
DELAY IN DELIVERY OF POSSESSION
4.01 If Landlord, for any reason whatsoever, cannot deliver
possession of the Leased Premises to Tenant at the commencement of the term of
this Lease, this Lease shall not be void or voidable, nor shall Landlord be
liable to Tenant for any loss or damage resulting therefrom, but in that event
there shall be a proportionate reduction of rent covering the period between the
commencement of the term and the time when Landlord can deliver possession. If
delay is longer than three (3) months, Landlord will provide Tenant such space
(not exceeding in area the Leased Premises) as Landlord may have available,
until the Leased Premises can be completed, at no charge to Tenant. The term of
this Lease shall be extended by such delay.
USE OF LEASED PREMISES
5.01 The Leased Premises may be used and occupied only for general
manufacturing and assembly, testing, warehousing and distribution, showroom and
offices and for no other purpose or purposes, without Landlord's prior written
consent. Tenant shall promptly comply at its sole expense with all laws,
ordinances, orders, and regulations affecting the Leased Premises and their
cleanliness, safety, occupation and use. Tenant shall not do or permit anything
to be done in or about the Leased Premises that will in any way increase the
fire insurance upon the building. Tenant will not perform any act or carry on
any practices that may injure the building or be a nuisance or menace to tenants
of adjoining premises. Tenant shall not cause, maintain or permit any outside
storage on or about the Lease Premises, including pallets or other refuse. The
rear loading areas of the Tenant's unit must be clean and unobstructed. On or
before the Commencement Date, Tenant shall take possession of, and, thereafter,
continuously occupy the Leased Premises during the term of this Lease, and
operate thereon the normal business operations of Tenant.
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5.02 Tenant shall, at Tenant's sole cost and expense, comply fully
with all environmental laws and regulations, and all other legal requirements,
applicable to Tenant's operations at, on or within, or to Tenant's use and
occupancy of, the Leased Premises. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Project any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Leased Premises. In addition, Xxxxxx shall execute
affidavits, representations and the like from time to time at Landlord's request
concerning Xxxxxx's best knowledge and belief regarding the presence of
hazardous substances or materials on the Leased Premises. In all events, Xxxxxx
shall indemnify Landlord in the manner elsewhere provided in this Lease from any
release of hazardous materials on the Leased Premises occurring while Tenant is
in possession, or elsewhere if caused by Tenant or persons acting under Tenant.
The within covenants shall survive the expiration or earlier termination of the
lease term.
UTILITIES
6.01 Landlord shall not be liable in the event of any interruption
in the supply of any utilities unless the interruption in supply of utilities is
caused by the negligence of Landlord, its agents, servants or employees (but
Landlord shall not be responsible for the actions of independent contractors).
In the event Landlord is responsible for an interruption in the supply of
utilities as provided herein, and such interruption adversely affects Tenant's
ability to conduct its business in the Leased Premises for more than two
consecutive business days, Tenant shall be entitled to an abatement of base
rental for each day after the second business day during which the interruption
continues as its sole remedy for such interruption. Tenant agrees that it will
not install any equipment which will exceed or overload the capacity of any
utility facilities and that if any equipment installed by Tenant shall require
additional utility facilities, the same shall be installed by Tenant at Tenant's
expense in accordance with plans and specifications approved in writing by
Landlord. Tenant shall be solely responsible for and shall pay all charges for
use or consumption of sanitary sewer, water, gas, electricity and any other
utility services serving the Leased Premises. In the event Landlord determines
that it is advisable to separately meter any utility services provided to the
Leased Premises, Landlord shall have the right to install a sub-meter and bill
Tenant for the actual cost thereof, which shall be paid to Landlord within
fifteen (15) days following billing.
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ACCEPTANCE OF LEASED PREMISES
7.01 By entry hereunder, Xxxxxx acknowledges that it has examined
the Leased Premises and accepts the same as being in the condition called for by
this Lease, subject to punchlist items, and as suited for the uses intended by
Xxxxxx. Upon delivery of possession of the Leased Premises to Tenant, Xxxxxx
agrees to execute and deliver to Landlord a Xxxxxx's Acceptance of Premises, in
the form attached hereto as Exhibit "C".
ALTERATIONS, MECHANICS' LIENS
8.01 Alterations may not be made to the Leased Premises without
prior written consent of Landlord, and, unless otherwise agreed by Landlord and
Tenant, any alterations of the Leased Premises excepting movable furniture and
trade fixtures shall at Landlord's option become part of the realty and belong
to Landlord.
8.02 Should Tenant desire to alter the Leased Premises and Landlord
gives written consent to such alterations, at Xxxxxxxx's option, Tenant shall
contract with a contractor approved by Landlord for the construction of such
alterations.
8.03 Notwithstanding anything in paragraph 8.02 above, Tenant may,
upon written consent of Landlord, install trade fixtures, machinery or other
trade equipment in conformance with all applicable laws, statues, ordinances,
rules, regulations, and the same may be removed upon the termination of this
Lease provided Tenant shall not be in default under any of the terms and
conditions of this Lease, and the Leased Premises are not damaged by such
removal. Tenant shall return the Leased Premises on the termination of this
Lease in the same condition as when rented to Tenant, reasonable wear and tear
only excepted. Tenant shall keep the Leased Premises, the building and property
in which the Leased Premises are situated free from any liens arising out of any
work performed for, materials furnished to, or obligations incurred by Tenant.
All such work provided for above, shall be done at such times and in such manner
as Landlord may from time to time designate. Tenant shall give Landlord written
notice five (5) days prior to employing any laborer or contractor to perform
work resulting in an alteration of the Leased Premises so that Landlord may post
a notice of non-responsibility.
QUIET CONDUCT/QUIET ENJOYMENT
9.01 Tenant shall not commit, or suffer any waste upon the Leased
Premises, or any nuisance, or other act or thing which may disturb the quiet
enjoyment of any other tenant in the Building or any building in the project in
which the Leased Premises are located.
9.02 So long as Tenant is not in default in the payment of rent, or
other charges or in the performance of any of the other terms, covenants, or
conditions of the Lease, Tenant shall not be disturbed by Landlord or anyone
claiming by, through or under Landlord in Tenant's possession, enjoyment, use
and occupancy of the Leased Premises during the original or any renewal term of
the Lease or any extension or modification thereof.
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FIRE INSURANCE, HAZARDS
10.01 No use shall be made or permitted to be made of the Leased
Premises, nor acts done which might increase the existing rate of insurance upon
the building or cause the cancellation of any insurance policy covering the
building, or any part thereof, nor shall Tenant sell, or permit to be kept, used
or sold, in or about the Leased Premises, any article which may be prohibited by
the Standard form of fire insurance policies. Tenant shall, at its sole cost and
expense, comply with any and all requirements pertaining to the Leased Premises,
of any insurance organization or company, necessary for the maintenance of
reasonable fire and public liability insurance, covering the Leased Premises,
building and appurtenances.
10.02 Tenant shall maintain in full force and effect on all of its
inventory, fixtures and equipment in the Lease Premises a policy or policies of
fire and extended coverage insurance with standard coverage endorsement to the
extent of at least eighty percent (80%) of their insurable value. During the
term of this Lease the proceeds from any such policy or policies of insurance
shall be used for the repair or replacement of the fixtures, and Landlord will
sign all documents necessary or proper in connection with the settlement of any
claim or loss by Tenant. Landlord will not carry insurance on Tenant's
possessions. Tenant shall furnish Landlord with a certificate of such policy
within thirty (30) days of the commencement of this Lease, and whenever
required, shall satisfy Landlord that such policy is in full force and effect.
LIABILITY INSURANCE
11.01 Tenant, at its own expense, shall provide and keep in force
with companies acceptable to Landlord public liability insurance for the benefit
of Landlord and Tenant jointly against liability for bodily injury and property
damage in the amount of not less than Three Million Dollars ($3,000,000.00) in
respect to injuries to or death of more than one person in any one occurrence,
in the amount of not less than One Million Dollars ($1,000,000.00) in respect to
injuries to or death of any one person, and in the amount of not less than One
Million Dollars ($1,000,000.00) per occurrence in respect to damage to property,
such limits to be for any greater amounts as may be reasonably indicated by
circumstances from time to time existing. Tenant shall furnish Landlord with a
certificate of such policy within thirty (30) days of the commencement date of
this Lease and whenever required shall satisfy Landlord that such policy is in
full force and effect. Such policy shall name Landlord as an additional insured
and shall be primary and non-contributing with any insurance carried by
Landlord. The policy shall contain a contractual liability endorsement. The
policy shall further provide that it shall not be canceled or altered without
twenty (20) days prior written notice to Landlord.
INDEMNIFICATION
12.01 Tenant shall indemnify and hold harmless Landlord against and
from any and all claims arising from Tenant's use of the Leased Premises (other
than those arising solely from willful misconduct or negligence of Landlord or
its agents or employees), or the conduct of its business or from any activity,
work, or thing done, permitted or suffered by the Tenant in or about the Leased
Premises, and shall further indemnify and hold harmless Landlord against and
from any and all claims arising from any breach or default in the performance of
any obligation
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on Tenant's part to be performed under the terms of this Lease, or arising from
any act, neglect, fault or omission of the Tenant, or of its agents or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
relative thereto and in case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord shall
defend the same at Tenant's expense by counsel, chosen by Xxxxxx and who is
reasonably acceptable to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in or about the Leased Premises from any cause whatsoever
except that which is caused by the willful misconduct or negligence of Landlord
or its agents or employees or by the failure of Landlord to observe any of the
terms and conditions of this Lease and Tenant hereby waives all claims in
respect thereof against Landlord.
12.02 Landlord shall indemnify Tenant and hold Tenant harmless
against and from all claims arising from the negligence or willful misconduct of
Landlord, its agents, employees or contractors, with respect to the Leased
Premises that is not insured against or required to be insured against and
recoverable under the insurance policies Tenant is required to maintain under
this Lease.
12.03 The obligation of Landlord and Tenant under this paragraph
arising by reason of any occurrence taking place during the term of this Lease
shall survive the termination or expiration of this Lease.
WAIVER OF CLAIMS
13.01 Tenant, as a material part of the consideration to be rendered
to Landlord, hereby waives all claims against Landlord for damages to goods,
wares and merchandise in, upon or about the Leased Premises and for injury to
Tenant, its agents, employees, invitees, or third persons in or about the Leased
Premises from any cause arising at any time unless such damage is due to
Landlord's negligent act or omission and such damage is caused by an occurrence
which is not an insurable hazard under a standard fire and broad form coverage
insurance which is reasonably available to Tenant for inuring such property of
Tenant at the time of the loss. The parties acknowledge that it is not their
intent to relieve Landlord from liability to Tenant, but rather that Tenant
benefit from available insurance coverage without subjecting Landlord to
liability for losses that could have been insured against by Xxxxxx and without
subjecting Landlord to subrogation claims of any insurer.
REPAIRS
14.01 Tenant shall, at its sole cost, keep and maintain the Leased
Premises and appurtenances and every part thereof (excepting exterior walls and
roofs which Landlord agrees to repair) including by way of illustration and not
by way of limitation all windows, and skylights, doors, any store front and the
interior of the Leased Premises, including all plumbing, heating, air
conditioning, sewer, electrical systems and all fixtures and all other similar
equipment serving the Leased Premises in good and sanitary order, condition, and
repair. Tenant shall be responsible for all pest control within the Leased
Premises, including, but not limited to the eradication of any ants or termites
should infestation be observed during the term of the
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Lease. Tenant shall, at its sole cost, keep and maintain all utilities, fixtures
and mechanical equipment used by Tenant in good order, condition, and repair.
All windows shall be washed and cleaned as often as necessary to keep them clean
and free from smudges and stains. In the event Tenant fails to maintain the
Leased Premises as required herein or fails to commence repairs (requested by
Landlord in writing) within thirty (30) day after such request, or fails
diligently to proceed thereafter to complete such repairs, Landlord shall have
the right in order to preserve the Leased Premises or portion thereof, and/or
the appearance thereof, to make such repairs or have a contractor make such
repairs and charge Tenant for the cost thereof as additional rent, together with
interest at the rate of twelve percent (12%) per annum from the date of making
such payments.
14.02 Landlord agrees to keep in good repair the roof, foundations,
and exterior walls of the Leased Premises except repairs rendered necessary by
the negligence of Tenant, its agents, employees or invitees. Landlord gives to
Tenant exclusive control of Leased Premises and shall be under no obligations to
inspect said Leased Premises. Tenant shall promptly report in writing to
Landlord any defective condition known to it which Landlord is required to
repair, and Landlord shall move with reasonable diligence to repair such item.
Failure to report such defects shall make Tenant responsible to Landlord for any
liability incurred by Landlord by reason of such defects.
14.03 Tenant shall obtain upon occupancy and keep current during the
lease term a service maintenance contract on the heating, ventilation and air
conditioning (HVAC) equipment serving the Leased Premises. The contract shall be
between Tenant and a dealer-authorized company acceptable to Landlord, and shall
at a minimum provide for an equipment check and tune-up service each spring and
fall, and filter and lubrication service every three months. A copy of said
contract shall be provided to Landlord, as well as any modification, extension,
renewal or replacement thereof.
SIGNS, LANDSCAPING
15.01 Landlord shall have the right to control landscaping and
Tenant shall make no alterations or additions to the landscaping. Landlord shall
have the right to approve the placing of signs and the size and quality of the
same. Tenant shall place no exterior signs on the Leased Premises without the
prior written consent of Landlord. Any signs not in conformity with the Lease
may be immediately removed by Landlord.
ENTRY BY LANDLORD
16.01 Tenant shall permit Landlord and Landlord's agents to enter
the Leased Premises, with reasonable prior notice to Tenant and with Tenant's
reasonable consent regarding the extent and timing of such entry, for the
purpose of inspecting the same or for the purpose of maintaining the building,
or for the purpose of making repairs, alterations, or additions to any portion
of the building, including the erection and maintenance of such scaffolding,
canopies, fences and props as my be required, or for the purpose of posting
notices of non-responsibility for alterations, additions, or repairs, or placing
upon the building any usual or ordinary "for sale" signs, without any rebate of
rent and without any liability to Tenant for any loss of occupation or
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quiet enjoyment of the Leased Premises thereby occasioned; and shall permit
Landlord at any time within six (6) months prior to the expiration of this Lease
and with prior notice to Tenant, to enter the Leased Premises for the purpose of
showing the Leased Premises to prospective tenants, without any rebate of rent
and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Leased Premises thereby occasioned, and to place upon the
Leased Premises any usual or ordinary "to let" or "to lease" signs. For each of
the aforesaid purposes, Landlord shall at all times have and retain a key with
which to unlock all of the exterior doors about the Leased Premises.
TAXES AND INSURANCE INCREASE
17.01 Tenant shall pay before delinquency any and all taxes,
assessments, license fees, and public charges levied, assessed, or imposed and
which become payable during the Lease upon Tenant's fixtures, furniture,
appliances and personal property installed or located in the Leased Premises.
17.02 Tenant shall pay, as additional rental during the term of this
Lease and any extension or renewal thereof, the amount by which all taxes (as
herein defined) for each tax year exceeds all taxes for 1998. In the event the
Leased Premises are less than the area of the entire property assessed for such
taxes for any such tax year, then the tax for any such year applicable to the
Leased Premises shall be determined by proration on the basis that the rental
floor area of the Leased Premises bears to the rentable floor area of the entire
property assessed. The term "taxes" shall include all ad valorem taxes, special
assessments, and governmental charges assessed against the Building or the Land;
and such term shall also include any reasonable expenses, including fees and
disbursements of attorneys, tax consultants, arbitrators, appraisers, experts
and other witnesses, incurred by Landlord in contesting any taxes or the
assessed valuation of all or any part of the Building or the Land. 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. The agent's commission shall not apply to
any such additional rental resulting from the provisions of this paragraph.
17.03 Xxxxxx agrees to pay the amount for all taxes levied upon or
measured by the rent payable hereunder, whether as a so-called sales tax,
transaction privilege tax, excise tax, or otherwise (but no income taxes of
Landlord shall be payable by Xxxxxx). Such taxes shall be due and payable at the
same time as and in addition to each payment of rent.
17.04 Commencing in the year 1999 and during each remaining year of
the lease term or any extension or renewal thereof, in the event that the
insurance premiums payable by the Landlord for insurance coverage on the
property are increased, whether such increase is due to an increase in the
valuation of the building, or in the applicable rate of insurance, then Tenant
agrees to pay Landlord as additional rental, Xxxxxx's pro rata share of the
increase in said insurance premiums over the base amount paid in the year 1998.
The term "insurance" shall include all fire and extended coverage insurance on
the Building and all liability insurance coverage on the common areas of the
Building, and the grounds, sidewalks, driveways and parking areas on the Land,
together with such other insurance coverages, including, but not limited to,
rent interruption insurance, as are from time to time obtained by Landlord.
Tenant's
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pro rata share shall be based on the square footage of the Leased Premises
leased to Tenant (as specified in paragraph 1.01 hereof) compared to the total
square footage of leasable space in the entire building. If during the final
year of the Lease, or any extension or renewal thereof, the term does not
coincide with the year upon which the insurance rate is determined, the increase
in premiums for the portion of that year shall be prorated according to the
number of months during which Tenant is in possession of the Leased Premises.
17.05 On or about January 1 of each calendar year during the term of
this Lease, Landlord shall provide Tenant with a good faith estimate of the
amount by which taxes and insurance will exceed the base amounts during such
calendar year. Tenant shall thereafter pay one-twelfth (1/12) of its pro rata
share of such increase at such time as its monthly installments of Base Rental
hereunder are due and payable. When the actual bills have been received by
Landlord, Landlord shall notify Tenant of the actual taxes and insurance for
such calendar year. If Tenant has paid more than it would have paid had the
actual bills been known, Landlord shall credit such excess against the next
additional rent payments coming due; if Tenant has not paid enough, Tenant shall
pay the remainder to Landlord within fifteen (15) days following receipt of a
statement from Landlord.
17.06 The provisions of paragraphs 17.01, 17.02, 17.03, 17.04 and
17.05 hereof shall survive the expiration or earlier termination of this Lease.
ABANDONMENT
18.01 Tenant shall not abandon the Leased Premises at any time
during the term of this Lease; and if Tenant shall abandon, or surrender the
Leased Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Leased Premises shall, at
the option of the Landlord, be deemed abandoned and be and become the property
of Landlord.
18.02 Tenant shall have the right to vacate as long as (a) rental is
kept current, (b) security and maintenance is kept at acceptable levels and (c)
as long as any insurance rider required in the State of Georgia which maintains
the required protection is provided by Tenant.
DESTRUCTION
19.01 If the Leased Premises or any portion thereof are destroyed by
storm, fire, lightning, earthquake or other casualty, Tenant shall immediately
notify Landlord. In the event the Leased Premises cannot, in Landlord's
judgment, be restored within one hundred twenty (120) days of the date of such
damage or destruction, this Lease shall terminate as of the date of such
destruction, and all rent and other sums payable by Tenant hereunder shall be
accounted for as between Landlord and Xxxxxx as of that date. Landlord shall
notify Tenant within thirty (30) days of the date of the damage or destruction
whether the Leased Premises can be restored within one hundred twenty (120)
days. If this Lease is not terminated as provided in this paragraph, Landlord
shall, to the extent insurance proceeds payable on account of such damage or
destruction are available to Landlord (with the excess proceeds belonging to
Landlord), within a reasonable time, repair, restore, rebuild, reconstruct or
replace the damaged or destroyed portion
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of the Leased Premises to a condition substantially similar to the condition
which existed prior to the damage or destruction. Provided, however, that with
respect to Tenant improvements, Landlord shall only be required to repair,
restore, rebuild, reconstruct and replace the Landlord's Work shown on Exhibit
"B", and Tenant shall, at its sole cost and expense, upon completion of the
Landlord's Work, repair, restore, rebuild, reconstruct and replace, as required,
any and all improvements installed in the Leased Premises by Tenant and all
trade fixtures, personal property, inventory, signs and other contents in the
Leased Premises, and all other repairs not specifically required of Landlord
hereunder, in a manner and to at least the condition existing prior to the
damage. Tenant's obligation to pay Base Rent shall xxxxx until Landlord has
repaired, restored, rebuilt, reconstructed or replaced the Leased Premises, as
required herein, in proportion to the part of the Leased Premises which are
unusable by Tenant. If the damage or destruction is due to the act, neglect,
fault or omission of Tenant, there shall be no rent abatement except to the
extent of rent loss insurance. In the event of any dispute between Xxxxxxxx and
Tenant relative to the provisions of this paragraph, they may each select an
arbitrator, the two arbitrators so selected shall select a third arbitrator and
the three arbitrators so selected shall hear and determine the controversy and
their decision thereon shall be final and binding on both Landlord and Tenant
who shall bear the cost of such arbitration equally between them. Landlord shall
not be required to repair any property installed in the Leased Premises by
Tenant. Tenant waives any right under applicable laws inconsistent with the
terms of this paragraph and in the event of a destruction Landlord agrees to
offer Tenant comparable space, to the extent such space is readily available,
within the project in which the Leased Premises are located on the same terms as
this Lease. Notwithstanding the provisions of this paragraph, if any such damage
or destruction occurs within the final one (1) year of the term hereof, then
Landlord, in its sole discretion, my, without regard to the aforesaid 90-day
period, terminate this Lease by written notice to Tenant.
ASSIGNMENT AND SUBLETTING
20.01 Landlord shall have the right to transfer and assign, in whole
or in part its rights and obligations in the building and property that are the
subject of this Lease. Tenant shall not assign this Lease or sublet all or any
part of the Leased Premises without the prior written consent of the Landlord,
which shall not be unreasonably withheld. In the event of any assignment or
subletting, Tenant shall nevertheless at all time, remain fully responsible and
liable for the payment of the rent and for compliance with all of its other
obligations under the terms, provisions and covenants of this Lease. If all or
any part of the Leased Premises re then assigned or sublet, Landlord, in
addition to any other remedies provided by this Lease or provided by law, may at
its option, collect directly from the assignee or subtenant all rents becoming
due to Tenant by reason of the assignment or sublease. Any collection directly
by Landlord from the assignee or subtenant shall not be construed to constitute
a novation or a release of Tenant from the further performance of its
obligations under this Lease. In the event that Tenant sublets the Leased
Premises or any part thereof, or assigns this Lese and at any time receives rent
and/or other consideration which exceeds that which Tenant would at that time be
obligated to pay to Landlord, Tenant shall pay to Landlord 100% of the gross
excess in such rent as such rent is received by Tenant and 100% of any other
consideration received by Tenant from such subtenant in connection with such
sublease or, in the case of any assignment of this Lease by Xxxxxx, Landlord
shall receive 100% of any consideration paid to Tenant by such assignee in
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connection with such assignment. In addition, should Xxxxxxxx agree to an
assignment or sublease agreement, Tenant will pay to Landlord on demand the sum
of $500.00 to partially reimburse Landlord for its costs, including reasonable
attorneys' fees, incurred in connection with processing such assignment or
subletting request.
20.02 Notwithstanding the foregoing, Tenant may freely transfer and
assign this Lease or sublet all or any portion of the Leased Premises (i) to any
affiliate or subsidiary of Tenant or (ii) in connection with any merger,
consolidation or sale of assets of Tenant, without having to obtain any consent
or approval of Landlord; provided, however that any such assignment or
subletting shall not result in Tenant being released or discharged from any
liability under this Lese except to the extent Tenant ceases to exist following
any such merger or consolidation. Tenant shall provide Landlord with written
notice of such assignment or subletting prior to or promptly following the
effective date of such assignment or subletting.
INSOLVENCY OF TENANT
21.01 Either (a) the appointment of a trustee to take possession of
all or substantially all of the assets of Tenant, or (b) a general assignment by
Tenant for the benefit of creditors, or (c) any action taken or suffered by
Tenant under any insolvency or bankruptcy act shall, if any such appointments,
assignments or action continues for a period of sixty (60) days, constitute a
breach of this Lease by Xxxxxx, and Landlord may at its election without notice,
terminate this Lease and in that event be entitled to immediate possession of
the Leased Premises and damages as provided below.
BREACH BY TENANT
22.01 In the event of a monetary which is not cured within five (5)
days of receipt of written notice by Tenant of such default or in the event of
nonmonetary default by Tenant which is not cured within fifteen (15) days of
receipt of written notice by Tenant of such default, provided however, if the
default cannot reasonably be cured within such fifteen (15) day period, Tenant
shall not be in default if Tenant commences to cure the default within the
fifteen (15) day period and diligently and in good faith continues to cure the
default until completion. Landlord in addition to any and all other rights or
remedies that it may have hereunder, at law or in equity shall have the right to
either terminate this Lease or from time to time, without terminating this Lease
relet the Leased Premises or any part thereof for the account and in the name of
Tenant or otherwise, for any such term or terms and conditions as Landlord in
its sole discretion may deem advisable with the right to make reasonable
alterations and repairs to the Leased Premises. Tenant shall pay to Landlord, as
soon as ascertained, the costs and expenses incurred by Landlord in such
reletting or in making such reasonable alterations and repairs. Should such
rentals received from time to time from such reletting during any month be less
than that agreed to be paid during that month by Tenant hereunder, the Tenant
shall pay such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly.
22.02 No such reletting of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a notice of
such intention be given to Tenant or unless the termination thereof be decreed
by a court of competent jurisdiction. Notwithstanding
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any such reletting without termination, Landlord may immediately or at any time
thereafter terminate this Lease, and this Lease shall be deemed to have been
terminated upon receipt by Tenant of notice of such termination; upon such
termination Landlord shall recover from Tenant all damages that Landlord may
suffer by reason of such termination including, without limitation, all
arrearages in rentals, costs, charges, additional rentals, and reimbursements,
the cost (including court costs and attorneys' fees actually incurred) of
recovering possession of the Leased Premises, the actual or estimated (as
reasonably estimated by Landlord) cost of any alteration of or repair to the
Leased Premises which is necessary or proper to prepare the same for reletting
and, in addition thereto, Landlord shall have and recover from Tenant the
difference between the present value (discounted at a rate per annum equal to
the discount rate of the Federal Reserve Bank of Atlanta at the time the Event
of Default occurs) of the rental to be paid by Tenant for the remainder of the
lease term, and the present value (discounted at the same rate) of the rental
for the Leased Premises for the remainder of the lease term, taking into account
the cost, time and other factors necessary to relet the Leased Premises;
provided, however, that such payment shall not constitute penalty or forfeiture,
but shall constitute full liquidated damages due to Landlord as a result of
Tenant's default. Landlord and Xxxxxx acknowledge that Xxxxxxxx's actual damages
in the event of a default by Tenant under this Lease will be difficult to
ascertain, and that the liquidated damages provided above represent the parties'
best estimate of such damages. The parties expressly acknowledge that the
foregoing liquidated damages are intended not as a penalty, but as full
liquidated damages, as permitted by Section 13-6-7 of the Official Code of Ga.
Annotated.
ATTORNEY'S FEES
23.01 If Landlord and Tenant litigate any provision of this Lease or
the subject matter of this Lese, the unsuccessful litigant will pay to the
successful litigant all costs and expenses, including reasonable attorneys' fees
and court costs, incurred by the successful litigant at trial and on any appeal.
If, without fault, either Landlord or Tenant is made a party to any litigation
instituted by or against the other, the other will indemnify the faultless one
against all loss, liability, and expense, including reasonable attorneys' fees
and court costs, incurred by it in connection with such litigation.
CONDEMNATION
24.01 If, at any time during the term of this Lease, title to the
entire Leased Premises should become vested in a public or quasi-public
authority by virtue of the exercise of expropriation, appropriation,
condemnation or other power in the nature of eminent domain, or by voluntary
transfer from the owner of the Leased Premises under threat of such a taking
then this Lease shall terminate as of the time of such vesting of title, after
which neither party shall be further obligated to the other except for
occurrence antedating such taking. The same results shall follow if less than
the entire Leased Premises be thus taken, or transferred in lieu of such a
taking, but to such extent that it would be legally and commercially impossible
for Tenant to occupy the portion of the Leased Premises remaining, and
impossible for Tenant to reasonably conduct his trade or business therein.
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24.02 Should there be such a partial taking or transfer in lieu
thereof, but not to such an extent as to make such continued occupancy and
operation by Tenant an impossibility, then this Lease shall continue on all of
its same terms an conditions subject only to an equitable reduction in rent
proportionate to such taking.
24.03 In the event of any such taking or transfer, whether of the
entire Leased Premises, or a portion thereof, it is expressly agreed and
understood that all sums awarded, allowed or received in connection therewith
shall belong to Landlord, and any rights otherwise vested in Tenant are hereby
assigned to Landlord, and Tenant shall have no interest in or claim to any such
sums or any portion thereof, whether the same be for the taking of the property
or for damages, or otherwise; provided, however, that Landlord shall make no
claim which shall diminish or adversely affect any award claimed or received by
Tenant. Nothing herein shall be construed, however, to preclude Tenant from
prosecuting any claim directly against the condemning authority for loss of
business, moving expenses, damage to, and cost of, trade fixtures, furniture and
other personal property belonging to Xxxxxx; provided, however, that Tenant
shall make no claim which shall diminish or adversely affect any award claimed
or received by Landlord.
NOTICES
25.01 All notices, statements, demands, requests, consents,
approvals, authorization, offers, agreements, appointments, or designations
under this Lease by either party to the other shall be in writing and shall be
sufficiently given and served upon the other party, (i) by depositing same in
the United States mail, addressed to the party to be notified, postage prepaid
and registered or certified with return receipt requested; (ii) by recognized
overnight, third party prepaid courier service (such as Federal Express),
required signed receipt; (iii) by delivering the same in person to such party;
or (iv) by prepaid telegram, telecopy or telex with delivery of an original copy
of any such notice delivered pursuant to (ii) or (iii) above to be received no
later than the next business day. Notice personally delivered or sent by courier
service, telegram, telecopy or telex shall be effective upon receipt. Any notice
mailed in the foregoing manner shall be effective three (3) business days after
its deposit in the United States mail. Either party may change its address for
notices by giving notice to the other as provided above. For purposes of notice,
the addresses of the parties shall be as follows:
(a) To Tenant at the Leased Premises, with a copy to such
other place as Tenant may from time to time designate
by notice to Landlord;
(b) To Landlord, addressed to Landlord at 0000 Xxxx
Xxxxx, Xxxxxxxx, Xxxxxxx 00000, with a copy to such
other place as Landlord may from time to time
designate by notice to Tenant.
WAIVER
26.01 The waiver by Landlord of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition or any subsequent breach of the same or any other term,
covenant, or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any
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preceding breach by Tenant of any term, covenant, or condition of this Lease,
other than the failure of Tenant to pay the particular rental so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
EFFECT OF HOLDING OVER
27.01 If Tenant should remain in possession of the Leased Premises
after the expiration of the lease term and without executing new lease, then
such holding over shall be construed as a tenancy from month to month, subject
to all the conditions, provisions, and obligations of this Lese insofar as the
same are applicable to a month to month tenancy, except that the rent payable
pursuant to subparagraph 3.01 hereof shall be 150% of the rent payable pursuant
to subparagraph 3.01.
SUBORDINATION
28.01 This Lease, at Landlord's option, shall be subordinate to any
ground lease, first priority mortgage, first priority deed of trust, or first
priority security deed now or hereafter placed upon the real property of which
the Leased Premises are a part and to any and all advances made on the security
thereof and to all renewals, modifications, consolidations, replacements and
extensions thereof.
28.02 Xxxxxx agrees to execute any documents required to effectuate
such subordination or to make this Lease prior to the lien of any such ground
lease, mortgage, deed of trust, or security deed, as the case may be, including
specifically a subordination, non-disturbance and attornment agreement in the
form hereto attached as Exhibit "D", and failing to do so within ten (10) days
after written demand, does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney in fact and in Xxxxxx's name, place and stead, to
do so. If requested to do so, Xxxxxx agrees to attorn to any person or other
entity that acquires title to the real property encompassing the Leased
Premises, whether through judicial foreclosure, sale under power, or otherwise,
and to any assignee of such person or other entity.
ESTOPPEL CERTIFICATE
29.01 Upon ten (10) days notice from Landlord to Tenant, Tenant
shall deliver a certificate dated as of the first day of the calendar month in
which such notice is received, executed by an appropriate officer, partner or
individual, in the form as Landlord may require and stating but not limited to
the following: (i) the commencement date of this Lease; (ii) the space occupied
by Tenant hereunder; (iii) the expiration date hereof; (iv) a description of any
renewal or expansion options; (v) the amount of rental currently and actually
paid by Tenant under this Lease; (vi) the nature of any default or claimed
default hereunder by Landlord and (vii) that Tenant is not in default hereunder
nor has any event occurred which with the passage of time or the giving of
notice would become a default by Tenant hereunder.
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PARKING
30.01 Tenant shall be entitled to park in common with other tenants
of Landlord, at no additional cost to Tenant. Xxxxxx agrees not to overburden
the parking facilities and agrees to cooperate with Landlord and other tenants
in the use of parking facilities. Landlord reserves the right in its absolute
discretion to determine whether parking facilities are becoming crowded and, in
such event, to allocate parking spaces among Tenant and other tenants. There
will be no assigned parking unless Landlord, in its sole discretion, may deem
advisable. Tenant agrees to park all Tenant' trucks in the parking spaces
provided at the rear of the building. "Parking" as used herein means the use by
Tenant's employees, its visitors, invitees, and customers for the parking of
motor vehicles for such periods of time as are reasonably necessary in
connection with use of and/or visits to the Leased Premises. No vehicle may be
repaired or serviced in the parking area and any vehicle deemed abandoned by
Landlord will be towed from the project and all costs therein shall be borne by
the Tenant. All driveways, ingress and egress, and all parking spaces are for
the joint use of all tenants. No area outside of the Leased Premises shall be
used by Tenant for storage without Landlord's prior written permission. There
shall be no parking permitted on any of the streets or roadways located in
Northmeadow Business Park.
MORTGAGEE PROTECTION
31.01 In the event of any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any beneficiary of a deed or
trust or holder of a security deed or mortgage covering the Leased Premises
whose address shall have been furnished it, and shall offer such beneficiary or
holder thirty (30) days following such notice (with the effective time of such
notice as set forth in Section 25.01) to cure the default.
PROTECTIVE COVENANTS
32.01 This Lease is subject to the Protective Covenants of
Northmeadow Business Park, and to such rules and regulations as may hereafter be
adopted and promulgated. In addition, Xxxxxx shall comply with all covenants,
restrictions and other matters of record in the deed records of the county in
which the Leased Premises are located which affect or encumber the Leased
Premises, the Building or the Land.
RELOCATION
33.01 Intentionally deleted.
BROKERAGE COMMISSIONS
34.01 Tenant's Agent and Xxxxxxxx's Agent (collectively, "Agent")
shall each be entitled to receive a commission in the amounts, and upon the
terms and conditions, contained in a commission agreement between Landlord and
such parties.
34.02 Tenant warrants and represents to Landlord that, other than
Agent, no other party is entitled, as a result of the actions of Tenant, to
commission or other fee resulting from the execution of this Lease; and in the
event Tenant extends or renews this Lease, or expands the Leased Premises, and
Xxxxxx's Agent is entitled to a commission under the above-referenced
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commission agreement, Tenant shall pay all commissions and fees payable to any
party (other than Xxxxxx's Agent) engaged by Xxxxxx to represent Tenant in
connection therewith. Landlord warrants and represents to Tenant that, except as
set forth above, no other party is entitled, as a result of the actions of
Landlord, to a commission or other fee resulting from the execution of this
Lease. Landlord and Xxxxxx agree to indemnify and hold each other harmless from
any loss, cost, damage or expense (including reasonable attorneys' fees)
incurred by the nonindemnifying party as a result of the untruth or
incorrectness of the foregoing warranty and representation, or failure to comply
with the provisions of this subparagraph.
34.03 Tenant's Agent is representing Tenant in connection with this
Lease, and is not representing Landlord. Landlord's Agent, or employees of
Landlord or its affiliates, are representing Landlord and are not representing
Tenant.
34.04 The parties acknowledge that certain officers, directors,
shareholders, or partners of Landlord or its general partner(s), are licensed
real estate brokers and/or salesmen under the laws of the State of Georgia.
Tenant consents to such parties acting in such dual capacities.
MISCELLANEOUS PROVISIONS
A. Whenever the singular number is used in this Lease and when
required by the context, the same shall include the plural, and the masculine
gender shall include the feminine and neuter genders, and the word "person"
shall include corporation, firm or association. If there be more than one
tenant, the obligations imposed upon Tenant under this Lease shall be joint and
several.
B. The headings or titles to paragraphs of this Lease are for
convenience only and shall have no effect upon the construction or
interpretation of any part of this Lease.
C. This instrument contains all of the agreements and conditions
made between the parties to this Lease and may not be modified orally or in any
other manner than by agreement in writing signed by all parties to this Lease.
D. Where the consent of a party is required, such consent will
not be unreasonably withheld.
E. This Lease shall create the relationship of Landlord and
Tenant between Landlord and Tenant; no estate shall pass out of Landlord; Xxxxxx
has only a usufruct, not subject to levy and/or sale and not assignable by
Xxxxxx except as provided in paragraph 20.01 hereof.
F. Except as otherwise expressly stated, each payment required to
be made by Tenant shall be in addition to and not in substitution for other
payments to be made by Tenant.
G. All covenants and agreements to be performed by Tenant under
any of the terms of this Lease shall be performed by Tenant at Tenant's sole
cost and expense, unless otherwise provided herein, and without any abatement of
rent.
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H. No payment by Tenant or receipt by Landlord of a lesser amount
than any installment or payment of rent due shall be deemed to be other than on
account of the amount due, and no endorsement or statement on any check or
payment of rent shall be deemed an accord and satisfaction. Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or payment of rent, or pursue any other remedies
available to Landlord.
I. Subject to paragraph 20, the terms and provisions of this
Lease shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors, and assigns of Landlord and Xxxxxx. In the event of
any conveyance by Landlord of its interest in and to the Leased Premises, the
Building or the Land, all obligations under this Lease of the conveying party
shall cease and Tenant shall thereafter look solely to the party to whom the
Leased Premises were conveyed for performance of all Landlord's duties and
obligations under this Lease.
X. Xxxxxx acknowledges and agrees that Landlord shall not provide
guards or other security protection for the Leased Premises and that any and all
security protection shall be the sole responsibility of Tenant.
K. This Lease shall be governed by Georgia law.
L. Time is of the essence of each term and provision of this
Lease.
M. Upon the request of Xxxxxxxx, Xxxxxx shall join in the
execution of a memorandum or so-called "short form" of this Lease for the
purpose of recordation. Upon the request of Xxxxxx, Landlord shall join in the
execution of a memorandum or so-called "short form" of this Lease for the
purpose of recordation. Said memorandum or short form of this Lease shall
describe the parties, the Leased Premises and the lease term, and shall
incorporate this Lease by reference.
N. Landlord's liability for performance of its obligations under
the terms of this Lease shall be limited to its interest in the Leased Premises.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto who are individuals have set
their hands and seals, and the parties who are corporations have caused this
instrument to be duly executed by its proper officers and its corporate seal to
be affixed, as of the day and year first above written.
Signed, sealed and delivered as to LANDLORD:
Landlord, in the presence of:
ASC NORTH XXXXXX ASSOCIATES JOINT
VENTURE, a Georgia joint venture
By: Metropolitan Life Insurance Company,
---------------------------------- a New York Corporation, (successor-by-
merger to New England Mutual Life
Insurance Company, a Massachusetts
corporation) on behalf of its
Developmental Properties Account
("DPA")
----------------------------------
Notary Public By: AEW Real Estate Advisors, Inc., a
Massachusetts corporation (f/k/a
Xxxxxx Real Estate Advisors, Inc.)
its asset manager and advisor hereunto
duly authorized.
By:
---------------------------------------
Name:
-------------------------------------
Its:
-------------------------------------
Signed, sealed and delivered as to TENANT:
Tenant, in the presence of:
HORIZON PHARMACEUTICAL CORPORATION
By:
---------------------------------- ---------------------------------------
Name:
-------------------------------------
Its:
-------------------------------------
---------------------------------- ATTEST:
Notary Public
By:
---------------------------------------
Name:
-------------------------------------
Its:
-------------------------------------
(Corporate Seal)
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EXHIBIT "C"
ACCEPTANCE OF PREMISES
Tenant:________________________________________________________________________
Landlord:______________________________________________________________________
Date Lease Signed:_____________________________________________________________
Term of Lease:_________________________________________________________________
Address of Leased Premises: Suite __________ containing approximately ________
square feet, located at:
_______________________________________________________
_______________________________________________________
Commencement Date:_____________________________________________________________
Expiration Date:_______________________________________________________________
The above described premises are accepted by Tenant as suitable for the purpose
for which they were let. The above described lease term commences and expires on
the dates set forth above. Tenant acknowledges that it has received from
Landlord ______________ number of keys to the Leased Premises. It is understood
that there is a punch list which will be completed after move-in and will be an
exhibit to the Tenant Estoppel.
TENANT LANDLORD
-------------------------------- ------------------------------------
(Type Name of Tenant) (Type Name of Landlord)
By: By:
----------------------------- ---------------------------------
(Signature) (Signature)
-------------------------------- ------------------------------------
(Type Name and Title) (Type Name and Title)
23
EXHIBIT "D"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the __________ day of _____________________,
________, between _________________________ with offices at ____________________
_____________________________________ ("Tenant") and ___________________________
(herein, together with its successors, transferees and assigns, the
"Mortgagee");
W I T N E S S E T H:
WHEREAS, Mortgagee is about to or has heretofore granted to
_________________, a Georgia limited partnership (the "owner") a first mortgage
loan, which loan is secured by a security deed (herein "Mortgage") dated as of
____________________, 199___ and duly recorded on _____________________, 199___
in the land records of Xxxxxx County, Georgia; and
WHEREAS, the Mortgage is to be a first and prior lien upon the Owner's
fee estate in the real property described in Exhibit "A" annexed hereto
("Mortgaged Premises"); and
WHEREAS, Tenant is occupying a portion of the Mortgaged Premises under
a lease dated as of _____________________, 199____ in which Owner is Landlord
(the "Lease") covering that portion of the Mortgaged Premises therein more
particularly described (the "Leased Premises"); and
WHEREAS, Tenant desires to be assured of its continued and undisturbed
occupancy of the Leased Premises should the Mortgage be foreclosed or the
Mortgaged Premises sold pursuant to any power of sale contained therein and
Mortgagee is agreeable thereto.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and in further consideration of the sum of ONE DOLLAR ($1.00)
each to the other in hand paid, the receipt whereof is hereby acknowledged,
Tenant and Mortgagee mutually covenant and agree as follows:
FIRST: The Lease and all Tenant's rights, interest and estate therein
and thereunder are hereby made subject and subordinate to the lien of the
Mortgage and to any extensions, renewals, replacements, modifications, additions
or consolidations thereof and to all rights, title and interest of Mortgagee and
its successors and assigns therein and thereunder.
SECOND: In the event, however, proceedings shall ever be instituted by
Mortgagee to foreclose or liquidate the Mortgage, the Tenant's possession of its
leased portion of the Mortgaged Premises shall not be disturbed by the
foreclosure proceedings and the Mortgaged Premises shall be sold at any
foreclosure sale subject to Tenant's possession on condition that:
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(a) there shall be, at the time of commencement of foreclosure
proceedings, as well as all subsequent times, no default by
Xxxxxx in the due and timely observance and performance of any
covenant and agreement in the Lease to be observed and
performed by Xxxxxx; and
(b) the Tenant shall not have entered into any agreement modifying
any term, condition or agreement of the Mortgagee-approved
Lease without the prior written consent of Mortgagee.
THIRD: Tenant shall attorn to Mortgagee while Mortgagee is in
possession of the Mortgaged Premises, or to a Receiver appointed in any action
or proceeding to foreclosure the Mortgage. In the event of the completion of
foreclosure proceedings and sale of the Mortgaged Premises or in the event the
Mortgagee should otherwise acquire possession of the Mortgaged Premises, the
Tenant will promptly upon demand attorn to the purchaser at the foreclosure sale
or to the Mortgagee, as the case may be, and will recognize such purchaser or
the Mortgagee as the Tenant's landlord. The Tenant agrees to execute and
deliver, at any time and from time to time, upon the request of the Mortgagee or
the purchaser at the foreclosure sale, as the case may be, any instrument which
may be necessary or appropriate to such successor landlord to evidence such
attornment. The Tenant shall, upon demand of the Mortgagee or any Receiver or
purchaser at the foreclosure sale, pay to the Mortgagee or to such Receiver or
purchaser, as the case may be, all rental monies then due or as they thereafter
become due.
FOURTH: Upon the attornment provided for in preceding Paragraph THIRD
the Tenant's occupancy shall thereafter be in full force and effect as under a
direct Lease between Mortgagee, the Receiver or the purchaser at the foreclosure
sale, as the case may be, and Tenant. It is specifically understood and agreed
that Mortgagee or any such Receiver or purchaser shall not be:
(a) liable for any act, omission, negligence or default of any
prior landlord, or
(b) subject to any offsets, claims or defenses which Xxxxxx might
have against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might have
paid for more than one month in advance to any prior landlord;
or
(d) bound by any amendment or modification of the Lease made
without the prior written consent of the Mortgagee.
FIFTH: On and after the date Tenant in good standing attorns to
Mortgagee or any Receiver or subsequent owner in pursuance of its agreement
herein set forth, Mortgagee, the Receiver or such subsequent owner will
undertake and perform all subsequent obligations of the Landlord as set forth in
the Lease for the benefit of and undisturbed occupancy of Tenant under the
Lease.
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SIXTH: Xxxxxx agrees it will not amend, modify nor abridge the Lease
in any way, nor cancel or surrender the same without prior written approval of
the Mortgagee other than by reason of a continued uncured material default of
the landlord under the Lease, nor will the Lease ever merge into the fee in the
event that Mortgagee acquires fee title to the Mortgaged Premises.
SEVENTH: Any notices or other communication to be given hereunder by
either party shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes if sent by registered or certified mail with
return receipt requested to the other party hereto at its address above stated
or such other address of which written notification has been timely given to the
other party.
EIGHTH: Mortgagee has and shall have the continuing right to execute
and record in the Land Records of Xxxxxx County, Georgia at any time, in its
unilateral discretion, a Declaration of Subordination for the purpose of thereby
subordinating its rights, title and interest in and under the Mortgage to the
rights, title and interest of Tenant under the Lease. Such Declaration of
Subordination shall, at Mortgagee's election, operate, function and be in full
force and effect for whatever period of time Mortgagee declares therein that it
shall be in force not exceeding the term of the Lease and any extensions thereof
and the said Declaration may be voided unilaterally by Mortgagee when it so
elects.
NINTH: Tenant waives any and all rights it may have to execute and
record after the date hereof any document purporting to again or further
subordinate its right, title or interest under the Lease to the lien of either
the Mortgage or any other mortgage or deed of trust or any ground lease or any
agreement modifying or amending the Mortgage except with the written consent of
Mortgagee.
TENTH: This Agreement cannot be changed orally but only in writing
signed by both parties hereto.
ELEVENTH: This Agreement may be recorded by either party at its own
expense in the Land Records of Xxxxxx County, Georgia whenever, in its sole
discretion, either party elects so to do.
TWELFTH: All of the terms, covenants and conditions hereof shall run
with the Mortgaged Premises and shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, acknowledged and delivered the day and year first above written.
SIGNED, SEALED AND DELIVERED TENANT:
in the presence of:
----------------------------------
By:
---------------------------------- -------------------------------
MORTGAGEE:
----------------------------------
By:
---------------------------------- -------------------------------
The undersigned Owner of the leased and mortgaged premises hereby
consents to the foregoing Agreement and agrees to be bound by and subject to the
terms thereof.
By:
-------------------------------
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EXHIBIT "E"
SPECIAL STIPULATIONS
Right of First Refusal #1 (Suite 114):
Landlord hereby grants to Tenant the right of first refusal to lease
all of the adjacent space containing 5,400 rentable square feet, known as Suite
114, (the "Adjacent Space #1") upon the terms and conditions contained herein.
So long as Tenant is not then in default under the Lease, Landlord will
notify Tenant when it has made a proposal to lease any portion of the Adjacent
Space #1 to a third party (other than BellSouth Entertainment, Inc.) and the
terms and conditions upon which it is willing to lease such space.
Tenant shall provide written notice to Landlord, as to Tenant's
decision to lease or not to lease that portion of the Adjacent Space #1 within
seven (7) business days after Landlord's notice to Tenant is received. If Tenant
does not provide written notice or indicates that it will not exercise its right
of first refusal, this right will expire and Landlord shall have no future
obligations to Tenant with regard to that portion of the Adjacent Space #1 which
was subject to such notice.
If Tenant does provide such notice to lease the Adjacent Space #1 for a
term not to exceed the remaining initial term of this Lease, Landlord and Tenant
will execute a lease for the Adjacent Space #1 within a reasonable time after
Xxxxxxxx's receipt of Tenant's notice of intent to lease on all the same terms
as this Lease except for the rental terms, and other matters which shall be
mutually agreed upon by Landlord and Tenant.
This right of first refusal to lease the Adjacent Space #1 is personal
to Horizon Pharmaceutical Corporation and may not be assigned in connection with
an assignment of this Lease or otherwise, except for an assignment as
contemplated in Section 20.02.
This right is subordinate to the rights to BellSouth Entertainment,
Inc. to lease the space as contained in that certain Lease Agreement by and
between ASC North Xxxxxx Associates Joint Venture and BellSouth Entertainment,
Inc. dated July 2, 1997.
Right of First Refusal #2 (Suite 100):
Landlord hereby grants to Tenant the right of first refusal to lease
all of the adjacent space, known as Suite 100 (the "Adjacent Space #2") upon the
terms and conditions contained herein.
So long as Tenant is not then in default under the Lease, Landlord will
notify Tenant when it has made a proposal to lease any portion of the Adjacent
Space #2 to a third party (other
28
than Accu-tech Corporation) and the terms and conditions upon which it is
willing to lease such space.
Tenant shall provide written notice to Landlord, as to Tenant's
decision to lease or not to lease that portion of the Adjacent Space #2 within
seven (7) business days after Landlord's notice to Tenant is received. If Tenant
does not provide written notice or indicates that it will not exercise its right
of first refusal, this right will expire and Landlord shall have no future
obligations to Tenant with regard to that portion of the Adjacent Space #2 which
was subject to such notice.
If Tenant does provide such notice to lease the Adjacent Space #2 for a
term not to exceed the remaining initial term of this Lease, Landlord and Tenant
will execute a lease for the Adjacent Space #2 within a reasonable time after
Xxxxxxxx's receipt of Tenant's notice of intent to lease on all the same terms
as this Lease except for the rental terms, and other matters which shall be
mutually agreed upon by Landlord and Tenant.
This right of first refusal to lease the Adjacent Space #2 is personal
to Horizon Pharmaceutical Corporation and may not be assigned in connection with
an assignment of this Lease or otherwise.
This right is subordinate to the rights of Accu-tech Corporation to
lease the space as contained in that certain Lease Agreement by and between ASC
North Xxxxxx Associates Joint Venture and Accu-tech Corporation dated January
26, 1998.
Option to Renew:
Tenant shall have the option to renew this Lease Agreement for one (1)
five (5) year term provided that Xxxxxx gives written notice to Landlord of its
intention to renew at least one hundred eighty (180) days prior to the end of
the then current term thereof. Renewal shall be upon the same terms and
conditions as contained herein except that the annual base rental shall be the
fair market rental value (but in no event less than the current rental rate
under the Lease) which shall be determined as follows:
(a) Landlord and Tenant will have fifteen (15) days after Landlord
receives the renewal notice within which to agree on the then-fair market rental
value of the Leased Premises as defined in paragraph (c) below for the renewal
period. If they agree on the base monthly rent for the renewal period within
fifteen (15) days, they will amend this Lease by stating the base monthly rental
for the renewal period.
(b) If they are unable to agree on the base monthly rental for the
renewal period within fifteen (15) days and Tenant has not rescinded its option
to renew during said fifteen (15) day period, then the base monthly rental for
the renewal period will be the then-fair market rental value of the Leased
Premises as determined in accordance with paragraph (d) below.
(c) The "then-fair market rental value of the Leased Premises" means
what a Landlord under no compulsion to lease the Leased Premises and a Tenant
under no compulsion
29
to lease the Leased Premises would determine as rents for
the renewal period, as of the commencement of the renewal period, taking into
consideration the uses permitted under this Lease, the quality, size, design,
and location of the Leased Premises, and the rent for comparable buildings
located in the vicinity of the Leased Premises. The then-fair market rental
value of the Leased Premises for the renewal period will not be less than that
provided during the initial term.
(d) Within seven (7) days after the expiration of the fifteen (15) day
period set forth in paragraph (b) above, Landlord and Tenant will each appoint a
real estate appraiser to appraise the then-fair market rental value of the
Leased Premises. The two appraisers will meet promptly and attempt to set the
then-fair market rental value of the Leased Premises. If they are unable to
agree within thirty (30) days, they will select a third appraiser within ten
(10) days to set the then-fair market rental value of the Leased Premises.
Landlord and Tenant will bear one-half (1/2) of the cost of appointing the third
appraiser and of paying the third appraiser's fee.
(e) Within thirty (30) days after the selection of the third appraiser,
a majority of the appraisers will set the then-fair market rental value of the
Leased Premises. If a majority of the appraisers are unable to set the then-fair
market rental value of the Leased Premises within thirty (30) days after
selection of the third appraiser, the three appraisals will be averaged and the
average will be the then-fair market rental value of the Leased Premises.
(f) It is expressly understood that Tenant shall have no option to
renew this Lease for the renewal term if at the time of the attempted exercise
of such option or at the commencement of such renewal term this Lease is not
then in full force and effect or if Tenant is then in default of any terms and
conditions of this Lease.
