EXHIBIT 10.10
STANDARD WAREHOUSE LEASE AGREEMENT APPROXIMATELY 101,120
SQUARE FEET
XXXXXXXX XXXX COMPANY-ATLANTA 0000 XXXXXX XXXX, XXXXX X
XXXXXXXXXX, XX 00000
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into by and
between Castle Investment Company, Inc., hereinafter referred to as "Landlord",
and First Horizon Pharmaceutical Corporation, a Delaware corporation,
hereinafter referred to as "Tenant";
WITNESSETH:
1. Premises and Term. In consideration of the obligation of
Tenant to pay rent as herein provided, and in consideration of the other terms,
provisions and covenants hereof, Landlord hereby demises and leases to Tenant,
and Tenant hereby accepts and leases from Landlord certain premises consisting
of one hundred one thousand one hundred twenty (101,120) square feet of rentable
area (the "premises"), located in a building situated within the County of
Forsyth, State of Georgia, upon certain real property that is more particularly
described on Exhibit "A" attached hereto and incorporated herein by reference,
together with all rights, privileges, easements, appurtenances, and immunities
belonging to or in any way pertaining to the premises and/or belonging to or in
any way pertaining to such real property and/or to the buildings and other
improvements situated or to be situated upon said real property (said real
property, building and improvements being hereinafter, referred to collectively
as the "property"). A floor plan depicting the premises is attached hereto as
Exhibit "B" and is incorporated herein by this reference and made a part hereof.
TO HAVE AND TO HOLD the same for a term commencing on the "commencement
date", as hereinafter defined, and ending on the date that is the later to occur
of the last day of February, 2009, or the last day of the month that is
Eighty-Five (85) months after the commencement date.
A. The "target commencement date" of the term hereunder is
April 1, 2002. Subject to the substantial completion by Landlord of the
"Landlord's improvements" (as determined in Section 31 below) at Landlord's sole
cost and expense, Tenant acknowledges that it has inspected and accepts the
premises, and specifically the buildings and improvements comprising the same,
in their present condition, as suitable for the purpose for which the premises
are leased. Taking of possession by Tenant shall be deemed conclusively to
establish that said buildings and other improvements are in good and
satisfactory condition as of when possession was taken, subject to Tenant's
delivery of a "punch list" of items of Landlord's improvements that either
remain to be completed or are in need of repair and that Landlord shall complete
or repair said items within thirty (30) days of receipt of such punch list.
Latent defects in the premises (as opposed to the building, the repair and
maintenance of which are covered elsewhere herein), will be repaired by Landlord
at its sole cost and expense if reported to Landlord within one (1) year after
Landlord's completion of such punch list work. Tenant further acknowledges that
no representations as to the repair of the premises, nor promises to alter,
remodel or improve the premises have been made by Landlord, except as such are
expressly set forth in this Lease. If this Lease is executed before the premises
become vacant or otherwise available and ready for occupancy, or if any present
tenant or occupant of the premises holds over, the Landlord cannot acquire
possession of the premises prior to said "target commencement date", Landlord
shall not be deemed to be in default hereunder, and Tenant agrees to accept
possession of the premises at such time as Landlord is able to tender the same
to Tenant with the Landlord's improvements substantially completed as required
under this Lease, which date shall thenceforth be deemed the "commencement
date"; provided that, if the Premises are not delivered by Landlord to Tenant
with Landlord's improvements substantially completed within sixty (60) days of
the target commencement date hereunder, then for each day of such delay (other
than due to force majeure or to "Tenant Delays" [as defined below]) Tenant shall
receive one (1) day of rent-free occupancy hereunder once the commencement date
occurs; and, provided further, that if the premises are not delivered by
Landlord to Tenant with Landlord's improvements substantially completed on or
before October 1, 2002, (subject to delays, if any), due to Tenant Delays, then
Tenant shall be entitled to terminate this Lease at any time thereafter by
giving Landlord not less than thirty (30) days prior written notice of
termination at any time prior to Landlord's delivery of the premises to Tenant
with Landlord's improvements substantially completed. Landlord may vitiate
Tenant's notice of termination and reinstate this Lease by substantially
completing and delivering the premises to Tenant at any time on or before the
last day of such 30-day notice period. Landlord hereby waives payment of rent
and any other charges covering any period prior to the tendering of possession
to Tenant hereunder with the Landlord's improvements substantially completed as
required under this Lease. After delivery of the Premises to Tenant with
Landlord's improvements substantially complete, Tenant shall, upon ten (10) days
written notice, execute and deliver to Landlord a letter of acceptance of
delivery of the premises. If Landlord shall be delayed in such substantial
completion for more than sixty (60) days after the target commencement date as a
result of the following (collectively, "Tenant Delays"), then the commencement
date and the payment of rent hereunder shall be accelerated by the number of
days of such Tenant Delay: (i) Tenant's unreasonable failure to agree to plans,
specifications, and cost estimates, within a reasonable period of time; (ii)
Tenant's request for materials, finishes or installations other than as
contemplated by the Finish Plans (as hereinafter defined); (iii) Tenant's
requirement for change orders to the final, approved Finish Plans after Tenant
is advised by Landlord that such change orders will delay the date of
substantial completion; or (iv) the performance or completion of an essential
element of the Tenant finish by a party employed by Tenant. Landlord and Tenant
hereby acknowledge and agree that the election or non-election by Tenant to
increase the size of the premises as provided for above shall not be deemed to
be or constitute a Tenant Delay hereunder, unless such election is made, with
Landlord's approval, after January 15, 2002. After the "commencement date" has
actually occurred, Tenant shall, upon written request from Landlord,
counter-sign and deliver to Landlord a letter of acceptance of delivery of the
premises confirming the commencement date. In the event of any dispute as to
substantial completion of work performed or required to be performed by Landlord
in accordance with the Finish Plans, the certificate of Landlord's architect
shall be conclusive absent manifest error.
B. Landlord and Tenant acknowledge that the Landlord improvements
shall include the construction and installation of turnkey Tenant finish
pursuant to mutually agreed upon final detailed construction drawings, plans and
specifications prepared by Landlord and approved by Tenant (collectively, the
"Finish Plans"), a list or copy of such Finish Plans being attached hereto as
Exhibit "C", and incorporated herein by this reference and made a part hereof.
Any changes to such Finish Plans (collectively, "Change Orders"), shall be
subject to the mutual approval of Landlord and Tenant. If requested by Tenant,
the net, additional cost of any Change Order shall be paid for by Tenant
together with overhead fee to Landlord equal to seven percent (7%) of the net,
additional cost.
2. Base Rent and Security Deposit.
A. Tenant agrees to pay to Landlord rent for the premises, in
advance, without demand, deduction or set off, except as expressly set forth in
this Lease to the contrary, for the entire term hereof at the rates per month
during the time periods indicated as set forth in Additional Provisions
Paragraph 30 below, subject to adjustment in accordance with Additional
Provisions Paragraph 30 below. One such monthly installment shall be due and
payable on the date hereof in the amount of $49,717.33 as an advance payment of
Tenant's base rent for the first full calendar month of the Lease term, and a
like monthly installment shall be due and payable on or before the first day of
each calendar month succeeding the commencement date recited above during the
hereby demised term, except that the rental payment for any fractional calendar
month at the commencement or end of the Lease period shall be prorated on a per
diem basis. The Tenant's rental payment schedule shall be as set forth in
Additional Provisions Paragraph 30 below.
B. In addition, Tenant agrees to deposit with Landlord on the
date hereof the sum of Fifty Five Thousand Nine Hundred Fifty-Three and 07/100
Dollars ($55,953.07), which sum shall be held by Landlord, without obligation
for interest, as security for the performance of Tenant's covenants and
obligations under this lease, it being expressly understood and agreed that such
deposit is not an advance rental deposit or a measure of Landlord's damages in
case of Tenant's default. Upon the occurrence of any uncured event of default by
Tenant, Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such fund to the extent necessary to
make good any arrears of rent or other payments due Landlord hereunder, and any
other damage, injury, expense or liability caused by such event of default; and
Tenant shall pay to Landlord on demand the amount so applied in order to restore
the security deposit to its original amount. Although the security deposit shall
be deemed the property of Landlord, any remaining balance of such deposit shall
be returned by Landlord to Tenant at such time after termination of this lease
that all of Tenant's obligations under this lease have been fulfilled, with no
uncured event of default existing hereunder.
3. Use. Tenant acknowledges that it intends to use the Premises
for general office use in connection with Tenant's pharmaceutical business,
including warehousing and distribution of pharmaceutical products. The demised
premises shall be used only for the purpose of general office, receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant and for such other lawful purposes
as Tenant and Landlord reasonably deem appropriate subject to any building or
building complex rules and regulations. Outside storage (other than overnight or
other short-term storage), including without limitation, trucks and other
vehicles, is prohibited without Landlord's prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed by Landlord. Tenant
shall at its own cost and expense obtain any and all licenses and permits
necessary for any such use. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the premises, and shall
promptly comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or connected with, Tenant's
use of the premises, all at Tenant's sole expense. Landlord represents and
warrants to Tenant that, on delivery of the premises, the premises, building and
property shall comply with all governmental laws, ordinances and regulations
applicable to the premises, building and property. Landlord shall comply with
all other governmental laws, ordinances and regulations applicable to the
premises, building and property (collectively, the "Laws"), all at Landlord's
sole expense, subject to reimbursement by Tenant as follows: (i) if the need for
such compliance or the applicability of such Law is due solely to the specific
nature of Tenant's business use of the Premises (as opposed to being more
generally applicable to all similar buildings and premises), then Tenant shall
reimburse Landlord for one hundred percent (100%) of the costs of such
compliance within thirty (30) days after receipt of a detailed invoice for such
reimbursement from Landlord; and (ii) if the need for such compliance or the
applicability of such Laws is not due solely to the specific nature of Tenant's
business use of the Premises, and is instead due to such Laws being generally
applicable to similar buildings and premises, then Tenant shall reimburse
Landlord for its proportionate share of the amortized cost of the costs of such
compliance based upon the useful life of the alterations, additions or
improvements to the building that must be made in order to achieve compliance
with such Laws. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise or vibrations to emanate from the premises, nor take any
other action which would constitute a nuisance or would disturb or endanger any
other tenants of the building in which their premises are situated or
unreasonably interfere with their use of their respective premises. Without
Landlord's prior written consent, Tenant shall not receive, store or otherwise
handle any product, material or merchandise which is explosive or highly
flammable. Tenant will not permit the premises to be used for any purpose or in
any manner (including without limitation any method of storage) which would
render the insurance thereon void or the insurance risk more hazardous or cause
the State Board of Insurance or other insurance authority to disallow any
sprinkler credits. If any increase in the fire and extended coverage insurance
premiums paid by Landlord or other Tenants for the building in which Tenant
occupies space is caused by Tenant's use and occupancy of the premises, or if
Tenant vacates the premises and causes an increase in such premiums, then Tenant
shall pay as
-2-
additional rental the amount of such increase to Landlord. To Landlord's actual
knowledge having made no inquiry, the general nature of Tenant's intended
business in and use of the premises (as described above) will not violate the
use restrictions set forth in this paragraph 3 and should not increase any
insurance premiums paid by Landlord or other tenants for the building in which
the premises is located. Landlord hereby represents and warrants to Tenant that
all or substantially all of its leases for other premises in the building
contain, or shall contain, provisions substantially similar to this Section 3
regarding permitted, prohibited and noxious uses.
Landlord hereby notifies Tenant that the allowable design floor loading
for the premises floor slabs on grade is 4,000 psi. Tenant agrees that the point
pressure resulting from Tenant's racking system, inventory, forklifts and
equipment pertaining to Tenant's use of the premises shall not exceed such
allowable design floor loading for floor slabs on grade. Tenant shall hold
harmless Landlord from any loss, liability, and expenses, both real and alleged,
arising out of such damage or repair caused by Tenant's negligence or failure to
comply with this paragraph.
4. Taxes.
A. Landlord agrees to pay before they become delinquent all
taxes, assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "taxes") lawfully levied or assessed
against the building and the grounds, parking area, driveways and alleys around
the building; and Tenant agrees to reimburse Landlord for its proportionate
share of such payment over the Base Year Amount (as defined below) within 30
days of receipt of notice of such payment and, if requested by Tenant in
writing, a copy of such tax xxxx, together with the breakdown of Tenant's pro
rata share. Notwithstanding the foregoing, the term taxes shall exclude any
inheritance, estate, succession, transfer, gift, franchise, net profit,
intangible, income, or penalties or interest charged to Landlord as a result of
Landlord's failure to timely pay taxes or other delinquency. In the event any
such amount is not paid within thirty (30) days after the date of Landlord's
invoice to Tenant, the unpaid amount shall bear interest at a "default rate"
hereunder equal to fifteen percent (15%) per annum from the date of such invoice
until payment. In the event the premises constitute a portion of multiple
occupancy building, Tenant agrees to pay to Landlord, as additional rental, in
the same fashion as set forth herein, Tenant's proportionate share of the amount
of the increase in taxes over the Base Year Amount. Landlord reserves the right
to require Tenant during each month of the Lease term to pay an escrow deposit
to Landlord equal to one-twelfth of its proportionate share of the estimated
taxes. If the Tenant's total tax escrow payments are less than Tenant's actual
proportionate share of such taxes, Tenant shall pay to Landlord upon demand the
tax payment shortage; if the total tax escrow payments of Tenant are more than
Tenant's actual proportionate share of such taxes, Landlord shall retain such
excess and credit it to Tenant's next accruing tax escrow payment, provided that
if Landlord has collected an excess payment of taxes for the year immediately
preceding the end of the term of this Lease, then Landlord shall refund such
excess to Tenant within thirty (30) days of its reconciliation of the escrow
amount for said taxes. For purposes of this Lease the phrase "Base Year Amount"
shall mean the amount of such "taxes" as defined herein actually paid by
Landlord for the 2002 tax year.
B. If at any time during the term of this Lease, the present
method of taxation shall be changed so that in lieu of the whole or any part of
any taxes, assessments or governmental charges levied, assessed or imposed on
real estate and the improvements thereon, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents received
therefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents for the present or any future
building or buildings on the premises, then all such taxes, assessments, levies
or charges, or the part thereof so measured or based, shall be deemed to be
included within the term "taxes" for the purposes hereof.
C. The Landlord shall have the right to employ a tax-consulting
firm to attempt to assure a fair tax burden on the building and grounds within
the applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand
from time to time, as additional rent, the amount of Tenant's proportionate
share of the cost of such service, provided that any tax savings realized by
such tax consulting firm shall be passed through to Tenant on a pro rata basis,
and, provided further, that such tax-consulting firm charges are based on a
percentage of savings achieved (i.e., incentive based only) and are reasonable.
The pass-through of such tax-consulting firm charges shall not be duplicated in
this section and in common area maintenance charges section of this Lease.
D. Any payment to be made pursuant to this Paragraph 4 with
respect to the real estate tax year in which this Lease commences or terminates
shall be prorated.
5. Landlord's Repairs and Obligations. Landlord shall at its
expense maintain the roof, foundation and the structural soundness of the
exterior walls of the building, plumbing and sewerage systems located outside of
the premises, sprinkler riser, and storm water drainage and retention systems
and equipment, and any other item damaged as a result of the willful misconduct
or gross negligence of Landlord, or Landlord's employees, agents or invitees in
good repair, reasonable wear and tear excepted. With respect to the hvac systems
that exclusively serve the premises, Landlord hereby represents and warrants to
Tenant that such hvac systems will be in good working order and condition on the
commencement date, and such condition is hereby warranted by Landlord from, and
after the commencement date for a period of one (1) year, subject to Tenant
procuring and maintaining an hvac service contract in effect from and after the
commencement date. With respect to sprinkler heads, notwithstanding that they
shall be considered a part of the premises to be repaired by Tenant subject to
Section 6.A. below, Landlord acknowledges and agrees that any costs or expenses
associated with the possible recall and replacement of such sprinkler heads
shall be at no cost or expense to Tenant. In addition, Landlord agrees to use
its commercially reasonable and diligent efforts to determine if there has been
a sprinkler head recall and, if so, to cause the sprinkler heads to be repaired
or replaced prior to the target commencement date, if it is reasonably practical
to do so, or otherwise to do so as soon after the target commencement date as it
is reasonably practical to do so. Landlord shall maintain the common
appurtenances serving the building, including without limitation, keeping the
parking areas, driveways and alleys in a clean and sanitary condition unless any
unclean or unsanitary condition is caused by Tenant's negligence, willful
misconduct or breach of this Lease, including without limitation improper use of
-3-
dumpster or other disposal facilities. Landlord shall have the right to be
reimbursed by Tenant for certain of the foregoing expenses in accordance with
Section 32 below. Tenant shall repair and pay for any damage caused by the
willful misconduct or gross negligence of Tenant, or Tenant's employees, agents
or invitees, or caused by Tenant's default hereunder. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, storefronts or
office entries. Tenant shall promptly give Landlord written notice of defect or
need for repairs, after which Landlord shall have reasonable opportunity to
repair same or cure such defect. Each party's liability with respect to any
defects, repairs or maintenance for which they are responsible under any of the
provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect.
6. Tenant's Repairs and Obligations.
A. Tenant shall at its own cost and expense keep and maintain all
parts of the premises (except those for which Landlord is expressly responsible
under the terms of this Lease, including, without limitation latent defects in
the premises that Landlord is obligated to repair for one (1) year as provided
for in Section 1.A., and except for those items which are damaged due to the
willful misconduct or gross negligence of Landlord, or Landlord's employees,
agents or invitees) in good condition, promptly making all necessary repairs,
repainting, and replacements, including but not limited to, windows, glass and
plate glass, doors, any office entries, interior walls and finish work, hvac
systems that exclusively serve the premises (subject to Landlord's and Tenant's
obligations as set forth in Xxxxxxxxx 0 xxxxx) xxxxx surfaces and floor
coverings, dock boards, truck doors, dock bumpers, paving, plumbing work and
fixtures, termites and pest extermination, regular removal of trash and debris,
grounds maintenance, sewage line plumbing exclusively serving the premises,
exterior lighting exclusively serving the premises, dumpster removal for
dumpsters exclusively serving the premises (if applicable) and other obligations
of Tenant relating to those items which exclusively serve the premises. Tenant
shall not be obligated to repair any damage caused by fire, tornado or other
casualty covered by the insurance to be maintained by Landlord pursuant to
subparagraph 12A below, except that Tenant shall be obligated to repair all wind
damage to glass in the premises except with respect to tornado or hurricane
damage.
B. The cost of maintenance and repair of any common party walls
(any wall, divider, partition or any other structure separating the premises
from any adjacent premises) shall be paid for by Landlord, unless the need for
repairs is caused by Tenant or the tenant or occupant of the adjoining space.
Tenant shall not damage any demising wall or disturb the integrity and support
provided by any demising wall and shall, at its sole cost and expense, promptly
repair any damage or injury to any demising wall caused by the willful
misconduct or gross negligence of Tenant or its employees, agents or invitees.
C. Tenant and its employees, customers and licensees shall have
the exclusive right to use all of the parking areas of the Building, subject to
such reasonable, non-discriminatory and uniformly enforced rules and regulations
as Landlord may from time to time prescribe. Landlord shall not be responsible
for enforcing Tenant's parking rights against any third parties, but Landlord
agrees to allow Tenant to enforce its exclusive parking rights granted
hereunder. Landlord shall provide on-site not less than 1.25 parking spaces per
1,000 square feet of space leased by Tenant in the building. Tenant shall have
the exclusive right to use such parking spaces free-of-charge throughout the
term hereof.
D. Landlord reserves the right to perform and provide all of
Tenant's repairs and obligations under subparagraph 6A above, and Tenant shall,
in lieu of the obligations set forth under subparagraph 6A above with respect to
such items, pay monthly as additional rent due under Paragraph 2A for its
proportionate share of the reasonable, actual cost and expense, including
overhead, for those items. If Tenant or any other particular tenant of the
building can be clearly identified as being responsible for obstructions or
stoppage of the common sanitary sewage line, then Tenant, if Tenant is
responsible, or such other party or parties (as applicable) shall pay the entire
cost thereof within thirty (30) days after written demand, as additional rent:
E. [Intentionally Omitted.]
F. Tenant shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all hot water and hvac systems and equipment within and
exclusively serving the premises. The maintenance contractor and the contract
must be approved by Landlord, but such approval shall not be unreasonably
withheld, conditioned or delayed. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual,
provided that Landlord delivers copies of such manuals to Tenant at least thirty
(30) days prior to the commencement date hereof. Such service contract must
become effective (and a copy thereof delivered to the Landlord) within thirty
(30) days of the date Tenant takes possession of the premises.
7. Alterations. Tenant shall not make any structural or other
"material" (as defined below) alterations, additions or improvements to the
premises (including but not limited to roof and wall penetrations) without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. For purposes of this Lease, an alteration,
addition or improvement by Tenant shall be deemed "material" if it is
structural, costs in excess of $10,000.00, or would or may adversely affect any
base building electrical, mechanical, plumbing or sewage system or component. In
the event Landlord consents to the making of any such alterations, additions or
improvements by Tenant, the same shall be made by Tenant, at Tenant's sole cost
and expense, in accordance with all applicable laws, ordinances and regulations,
and all requirements of Landlord's and Tenant's insurance policies and only in
accordance with plans and specifications approved by Landlord; and any
contractor or person selected by Tenant to make the same and all subcontractors
must first be approved in writing by Landlord, or at Landlord's sole option and
discretion, the alterations, additions or improvements shall be made by Landlord
for Tenant's account and Tenant shall fully reimburse Landlord for the entire
cost thereof within twenty (20) days after written notification of Tenant by
Landlord providing Tenant with an invoice or other request (or statement),
provided that such costs were agreed to prior to such work being performed by
Landlord and Tenant, and further provided that such costs are reasonable and
competitive. Tenant may, without the consent of Landlord, but
-4-
at its own cost and expense and in a good workmanlike manner make non-structural
and/or non-material alterations, additions or improvements to the premises. Such
non-structural and/or non-material alterations, additions or improvements
include, without limitation, the right to erect such shelves, bins, machinery
and trade fixtures as it may deem advisable, without altering the basic
character of the building or improvements and without overloading or damaging
such building or improvements, and in each case complying with all applicable
governmental laws, ordinances, regulations and other requirements. All
alterations, additions, improvements and partitions erected by Tenant shall be
and remain the property of Tenant during the term of this Lease. Notwithstanding
the foregoing, Tenant shall, be entitled to leave all alterations, additions or
improvements made to the premises prior to the commencement date with the
premises, but, unless Landlord otherwise elects, all alterations, additions,
improvements and partitions made or installed by Tenant after the commencement
date that are not usual or customary for comparable premises, or are not similar
in kind and character or utility to the existing improvements, or are unusual,
atypical or unique to Tenant's specific business must be removed by Tenant.
Subject to the foregoing Tenant shall restore the premises to their original
condition as existed on the commencement date by the date of termination of this
Lease or upon earlier vacating of the premises; provided, however, that any
alterations, additions, improvements and partitions not required to be removed
in such a manner by Tenant or which Tenant does not elect to remove shall become
the property of Landlord as of the date of termination of this Lease and shall
be delivered up to the Landlord with the premises. All shelves, bins, machinery
and trade fixtures installed by Tenant may be removed by Tenant prior to the
termination of this Lease if Tenant so elects, and shall be removed by the date
of expiration or any earlier termination of this Lease, if required by Landlord
in the manner provided for above; and upon any such removal Tenant shall restore
the premises to their original condition as existed on the commencement date.
All such removals and restoration shall be accomplished in a good workmanlike
manner so as not to damage the primary structure or structural qualities of the
building and other improvements situated on the premises.
8. Signs. Tenant agrees to conform to Landlord's signage program
for the building; however, Tenant shall pay all costs and expenses for its sign,
sign installation, removal and repair. Tenant shall only have the right to
install standard signs upon the premises where first approved in writing by
Landlord and subject to any applicable governmental laws, ordinances,
regulations and other requirements, and Tenant shall repair any injury or
defacement, including without limitation, discoloration caused by installation
and/or removal. Such approval shall not be unreasonably withheld, conditioned or
delayed by Landlord.
9. Inspection and Right of Entry. Landlord and Landlord's agents
and representatives shall have the right to enter the premises at any time in
the event of an emergency and to enter and inspect the premises at any
reasonable time during business hours, for the purpose of ascertaining the
condition of the premises in order to make such repairs as may be required or
permitted to be made by Landlord under the terms of this Lease; provided that
any such entry shall be performed only after reasonable oral notification or
written notice to Tenant (unless in the event of an emergency) and, at Tenant's
option, a representative of Tenant shall accompany Landlord or Landlord's agent
or employee through the premises; and, provided further, that Landlord agrees to
use its best reasonable, good faith efforts to minimize any disturbance of or
interference with Tenant's use, occupancy or quiet enjoyment of the premises.
During the period that is six (6) months prior to the end of the term hereof,
Landlord and Landlord's agents and representatives shall have the right to enter
the premises at any reasonable time only after reasonable oral notification or
written notice to Tenant and with Tenant's representative during business hours
for the purpose of showing the premises and shall have the right to erect on the
premises a suitable sign indicating the premises are available. Tenant shall
give written notice to Landlord not less than ten (10) or more than thirty (30)
days prior to vacating the premises and shall make its representatives available
to meet with Landlord for a joint inspection of the premises during normal
business hours at any time during the last ten (10) days prior to vacating. In
the event of Tenant's failure to give such notice or to make its representatives
available for such joint inspection, Landlord's inspection at the time of, or
after, Tenant's vacating the Premises shall be conclusively deemed correct for
purposes of determining Tenant's responsibility for repairs and restoration.
10. Utilities. Landlord agrees to provide at its cost water,
electricity, sewer, telephone and gas utility service connections into the
premises; but Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges and other utilities and services it uses on
the premises, together with any taxes, penalties, surcharges or the like
pertaining thereto and any maintenance charges for utilities and shall furnish
all electric light bulbs and tubes. If any such services are not separately
metered to Tenant, Tenant shall pay a reasonable proportion as determined by
Landlord of all actual utility charges jointly metered with other premises.
Landlord hereby grants Tenant the right to install a test meter to determine
Tenant's actual usage of utilities from the premises. Should such test meter
conflict with Landlord's reasonable proportion of utilities which are jointly
metered, then Landlord shall readjust such utility charges of Tenant to reflect
the test meter's reading and refund any amounts it overcharged Tenant for the
current lease year. Landlord shall in no event be liable for any interruption or
failure of utility services on the premises unless such is due to Landlord's,
its agent's, employee's, contractor's or invitee's intentional acts or
negligence. However, if the premises is rendered untenantable in whole or in
part due to any such interruption or failure of services as a result of or
arising from Landlord's, its agent's, employee's, contractor's or invitee's
intentional acts or negligence and/or due to any entry into the premises by,
through or under Landlord, its agents, employees, contractors or invites, for
more than five (5) consecutive business days then, beginning with the sixth
(6th) day Tenant's rent shall xxxxx thereafter based upon the extent of and for
the duration of such untenantability.
11. Assignment and Subletting.
A. Tenant shall not have the right to assign, sublet, transfer or
encumber this Lease, or any interest therein, without the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed by Landlord, and shall not be necessary in connection with an "affiliate
transfer" (as defined below). Any attempted assignment, subletting, transfer or
encumbrance by Tenant in violation of the terms and covenants of this Paragraph
shall be void. Except for an affiliate transfer (in which event Tenant shall be
entitled to all cash or proceeds), Landlord and Tenant shall split on a
75%-to-Landlord and 25%-to-Tenant basis any net cash
-5-
or other proceeds of any assignment remaining after Tenant reimburses itself or
pays for any actual out-of-pocket costs and its expenses incurred in connection
with any such assignment, subletting or other transfer, but only to the extent
such net cash or proceeds exceed the rentals called for hereunder, whether such
assignment, subletting or other transfer is consented to by Landlord or not,
unless Landlord agrees to the contrary in writing. Any assignment, subletting or
other transfer of Tenant's interest in this Lease to a non-affiliate" (as
defined below) shall be for an amount substantially equivalent to the then fair
market value of such interest. These covenants shall run with the land and shall
bind Tenant and Tenant's heirs, executors, administrators, personal
representatives, representatives in any bankruptcy proceeding, successors and
assigns. Any assignee, sublessee or transferee of Tenant's interest in this
Lease (all such assignees, sublessees and transferees being hereinafter referred
to as "successors"), by assuming Tenant's obligations hereunder shall assume
liability to Landlord for all amounts paid to persons other than Landlord by
such successors in contravention of this Paragraph. No assignments, subletting
or other transfer, whether consented to by Landlord or not, shall relieve Tenant
of its liability hereunder. Upon the occurrence of an "event of default" as
hereinafter defined, if the premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided, or provided
by law, may at its option collect directly from such assignee or subtenant all
rents becoming due to Tenant under such assignment or sublease and apply such
rent against any sums due to Landlord from Tenant hereunder and no such
collection shall be construed to constitute a novation or a release of Tenant
from the further performance of Tenant's obligations hereunder. Notwithstanding
anything contained in this Lease to the contrary, Tenant shall have the absolute
right, without the consent of Landlord, to assign this Lease or sublet the
premise to any "affiliate". For purposes of this Lease, an "affiliate" means any
firm, person, corporation, partnership (limited or general), limited liability
company or other entity that now or hereafter is controlled by, in control of or
under common control with a party, or into which or with which a party shall
merge or consolidate, or acquires all or substantially all of the assets of a
party. In connection with any affiliate transfer of any kind, Landlord shall not
be entitled to any of the cash or other proceeds which may exceed the rents
under this Lease. No assignment, subletting or other transfer to an affiliate
shall relieve Tenant of its liability hereunder.
B. If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code 11 U.S.C. ss. 101 et seq., (the
"Bankruptcy Code"), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other consideration
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of the Landlord and
be promptly paid or delivered to Landlord.
C. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, shall be deemed, without further act
or deed, to have assumed all of the obligations of Tenant arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
12. Fire and Casualty Damage.
A. Landlord agrees to maintain insurance covering the building of
which the premises is a part in an amount equal to the full replacement cost
thereof, insuring against the perils of Fire, Lightning, Extended Coverage,
Vandalism and Malicious Mischief, extended by Special Extended Coverage
Endorsement to insure against all other Risks of Direct Physical Loss, such
coverages and endorsements to be as defined, provided and limited in the
standard bureau forms prescribed by the insurance regulatory authority for the
state in which the premises are situated for use by insurance companies admitted
in such state for the writing of such insurance on risks located within such
state. Subject to the provisions of subparagraphs 12C, 12D and 12E below, such
insurance shall be for the sole benefit of Landlord and under its sole control.
Tenant agrees to pay to Landlord, as additional rental, the amount of such
increase in premium (or in the event the premises constitute a portion of a
multiple occupancy building, Tenant's proportionate share of such increase in
such premium) over the amount thereof for the Base Year 2002. Said payments
shall be made to Landlord within thirty (30) days after presentation to Tenant
of Landlord's statement setting forth the amount due. Any payment to be made
pursuant to this subparagraph A with respect to the year in which this Lease
commences or terminates shall bear the same ratio to the payment which would be
required to be made for the full year as the part of such year covered by the
term of this Lease bears to a full year.
B. If the buildings in which the premises is located should be
damaged or destroyed by fire, tornado or other casualty, Tenant shall give
immediate written notice thereof to Landlord.
C. If the buildings in which the premises is located should be
totally destroyed by fire, tornado or other casualty, or if they should be so
damaged thereby that rebuilding or repairs cannot in Landlord's estimation be
completed within one hundred sixty (160) days after the date upon which Landlord
is notified by Tenant of or otherwise first learns of such damage, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease, effective upon the date of the occurrence of such damage, from such
date of destruction or casualty.
D. If the buildings in which the premises is located should be
damaged by any peril covered by the insurance to be provided by Landlord under
subparagraph 12A above, but only to such extent that rebuilding or repairs can
in Landlord's estimation be completed within one hundred sixty (160) days after
the date upon which Landlord is notified by Tenant or otherwise first learns of
such damage, this Lease shall not terminate, and Landlord shall at its sole cost
and expense thereupon proceed with reasonable diligence to rebuild and repair
such buildings including without limitation the premises and Landlord's
improvements therein to substantially the condition in which they existed prior
to such damage, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the premises by Tenant and except
that Landlord may elect not to rebuild if such damage occurs during the last
year of the term of the Lease exclusive of any option which is unexercised at
the time of such damage. If the premises are
-6-
untenantable in whole or in part following such damage, or if access to the
premises is denied as a result of such damage, the rent payable hereunder during
the period in which they are untenantable or inaccessible shall be reduced to
such extent as may be fair and reasonable under all of the circumstances, but in
any event, at least to offset the portion of the premises that is rendered
untenantable or unusable by, and is in fact not used by Tenant as a result of,
such damage or peril. In the event that Landlord should fail to complete such
repairs and rebuilding within one hundred sixty (160) days after the date upon
which Landlord is notified by Tenant notwithstanding Landlord's reasonably
diligent, good faith efforts to complete such repairs within such 160-day
period, then Tenant may at its option elect to terminate this Lease by
delivering not less than sixty (60) days' prior written nice of termination to
Landlord as Tenant's exclusive remedies. Landlord may vitiate Tenant's notice of
termination and reinstate this Lease by substantially completing and delivering
the repaired and restored premises to Tenant at any time on or before the last
day of such 60-day notice period. In the event this Lease is terminated
hereunder Landlord shall provide Tenant a refund of any amounts collected by
Landlord which related to the period commencing after such date of peril or
damage to the premises, but only with respect to the portion of the premises
that is rendered untenantable or unusable by, and is in fact not used by Tenant
as a result of, such damage or peril from and after the occurrence of the
damaging event, and all rights and obligations hereunder shall cease and
terminate.
E. Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust covering
the premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon Landlord shall
provide Tenant a refund of any amounts collected by Landlord which related to
the period commencing after such date of peril or damage to the premises, but
only with respect to the portion of the premises that is rendered untenantable
or unusable by, and is in fact not used by Tenant as a result of, such damage or
peril from and after the occurrence of the damaging event, and all rights and
obligations hereunder shall cease and terminate.
F. Each of Landlord and Tenant hereby releases the other from any
loss or damage to property caused by fire or any other perils insured in
policies of insurance covering such property (or perils which are insurable
under so-called "causes of loss - special form" or comparable insurance policy
coverage), even if such loss or damage shall have been caused by the fault or
negligence of the other party, or anyone for whom such party may be responsible.
Each of the Landlord and Tenant hereby waives any and all rights of subrogation
that their respective insurance carriers may now or hereafter have against the
other party to this Lease.
13. Liability. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employee of any other person entering upon the premises,
or caused by the improvements for which Tenant is responsible located on the
premises becoming out of repair, or caused by leakage of gas, oil, water or
steam or by electricity emanating from the premises, and Tenant hereby covenants
and agrees that it will at all times indemnify and hold safe and harmless the
Landlord (including without limitation the trustee and beneficiaries if Landlord
is a trust), Landlord's agents and employees from any loss, liability, claims,
suits, costs, expenses, including without limitation actual attorney's fees and
damages, arising out of any such damage or injury, subject in all events to
Section 12.F. above; except injury to persons or damage to property to the
extent arising from the gross negligence of Landlord or the failure of Landlord
to repair any part of the property that Landlord is obligated to repair and
maintain hereunder. Tenant shall not be liable to Landlord or Landlord's
employees, agents, or any person whomsoever for any injury to person or damage
to property on or about the building or the common areas other than the
premises, or caused by the improvements that are the responsibility of Landlord
located on the property becoming out of repair, or caused by leakage of gas,
oil, water or steam or by electricity emanating from the building or the common
areas other than the premises, and Landlord hereby covenants and agrees that it
will at all times indemnify and hold safe and harmless Tenant, Tenant's agents
and employees from any loss, liability, claims, suits, costs, expenses,
including without limitation, actual attorneys fees and damages arising out of
any such damage or injury, subject in all events to Section 12.F. above; except
any injury to persons or damage to property to the extent arising from the gross
negligence of Tenant or the failure of Tenant to repair any part of the premises
which Tenant is obligated to repair and maintain hereunder. Landlord shall
procure and maintain throughout the term of this Lease a policy or policies of
commercial general liability insurance, at its sole cost and expense, insuring
against all claims, demands or actions arising out of or in connection with: (i)
the property, common areas and buildings other than the premises; (ii)
Landlord's ownership, operation, maintenance and use of the property; (iii) the
condition of the property, common areas and building other than the premises;
and (iv) Landlord's liability assumed under this Lease. The limits of such
policy or policies shall be at least equivalent to those required of Tenant with
respect to Tenant's liability insurance policy or policies as described below.
Tenant shall procure and maintain throughout the term of this Lease a policy or
policies of commercial general liability insurance, at its sole cost and
expense, insuring both Landlord and Tenant against all claims, demands or
actions arising out of or in connection with: (i) the premises; (ii) the
condition of the premises; (iii) Tenant's operation in and maintenance and use
of the premises; and (iv) Tenant's liability assumed under this Lease, the
limits of such policy or policies to be in the amount of not less than
$2,000,000 per occurrence in respect to injury to persons (including death), and
in the amount of not less than $1,000,000 per occurrence in respect to property
damage or destruction, including loss of use thereof. All such policies shall be
procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certified copies of such policies, together with receipt evidencing
payment of premiums therefor, shall be delivered to Landlord prior to the
commencement date of this Lease. Not less than fifteen (15) days prior to the
expiration date of any such policies, certified copies of the renewal thereof
(bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be canceled or changed to reduce insurance provided thereby. Notwithstanding
anything to the contrary contained in this Section 13, Tenant's commercial
general liability insurance may be written on a "claims made" basis, rather than
on an "occurrence" basis, provided that (a) the policy is retroactive to a date
no later than the Lease commencement date or such earlier date (if any) that
Tenant occupies or possesses all or any portion of the premises for business or
for pre-term
-7-
installation of Tenant's furniture, systems and equipment hereunder, and (b) on
or before the expiration or any earlier termination of the Lease, Tenant obtains
a tail insurance policy, in form reasonably acceptable to Landlord, with a
minimum term of two (2) years. Tenant's obligation to obtain such tail insurance
policy shall survive the expiration or any earlier termination of the Lease.
14. Condemnation.
A. If the whole or any substantial part of the property, building
or premises should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof and the taking would prevent or materially
interfere with the use of the premises for the purpose for which they are being
used, this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking or private
purchase in lieu thereof of said property, building or premises shall occur.
B. If part of the property, building or premises shall be taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in 1ieu
thereof, and this Lease is not terminated as provided in the subparagraph above,
this Lease shall not terminate but the rent payable hereunder during the
unexpired portion of this Lease shall be reduced to such extent as may be fair
and reasonable under all of the circumstances but in any event, at least to
offset the unusable portion of the premises which are rendered untenantable by
such condemnation, taking or conveyance in lieu thereof and are not actually
used by Tenant.
C. All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the premises, buildings or other improvements,
or any part thereof, shall be the property of Landlord and Tenant hereby assigns
its interest in any such award to Landlord; provided, however, Landlord shall
have no interest in any award or allocation made to Tenant for loss of business
or for the taking of Tenant's furniture, fixtures, equipment, or trade fixtures,
or for the unamortized cost of any alterations, additions and improvements paid
for by Tenant, or for Tenant's moving expenses, if a separate award or separate
allocations among Landlord, Tenant and any other parties entitled thereto (if
any), for such items are made.
D. Landlord and Tenant agree to cooperate reasonably in the
prosecution of any separate awards, if available, and/or in seeking separate
allocations of any single award, if possible, in connection with any
condemnation, taking or conveyance in lieu thereof, provided that Landlord's
award with respect to the premises, building or other improvements and the value
of all estates therein is not reduced thereby.
15. Holding Over. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed. If
Tenant remains in possession of the premises after expiration or termination of
this Lease with Landlord's consent or acquiescence, Tenant shall become a
month-to-month Tenant (which tenancy may be terminated by either party on thirty
(30) days prior written notice to the other), and if Tenant remains in
possession without Landlord's consent or acquiescence then Tenant shall be a
tenant-at-sufferance, and there shall be no renewal of this Lease by operation
of law. During the period of any such holding over all rental and other
provisions of this Lease shall remain and be in effect, except that for the
first month of any such hold-over tenancy the Base Monthly Rent (but not any
other charges) shall be 125% of the amount of the Base Monthly Rent payable for
the last full calendar month of the Lease Term that has just expired, and
thereafter such Base Monthly Rent shall be 150% of the amount of the Base
Monthly Rent payable for the last full calendar month of the Lease Term that has
just expired. The preceding provisions of this paragraph 15 shall not be
construed as consent for Tenant to hold over.
16. Quiet Enjoyment. Landlord covenants that it now has, or will
acquire before Tenant takes possession of the premises, good title to the
premises, free and clear of all liens and encumbrances, excepting only the 1ien
for current taxes not yet due, such mortgage or mortgages as are permitted by
the terms of this Lease, zoning ordinances and other building and fire
ordinances and governmental regulations relating to the use of such property,
and easements, restrictions and other conditions of record. In the event this
Lease is a sublease, then Tenant agrees to take the premises subject to the
provisions of the prior leases. Landlord represents and warrants that it has
full right and authority to enter into this Lease and that Tenant, upon paying
the rental herein set forth and performing its other covenants and agreements
herein set forth, shall peaceably and quietly have, hold and enjoy the premises
for the term hereof without hindrance or molestation from Landlord or any other
person or party whatsoever, subject to the terms and provisions of this Lease.
17. Events of Default. The following events shall be deemed to be
events of default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Landlord required
herein when due, and such failure shall continue for a period of five (5)
business days after receiving notice from Landlord that such payment was due.
B. Tenant or any guarantor of Tenant's obligations hereunder
shall generally not pay its debts as they become due or shall admit in writing
its inability to pay its debts or shall make a general assignment for the
benefit of creditors; or Tenant or any such guarantor shall commence any case,
proceeding or other action seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution, or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or of any
substantial part of its property and such proceeding case or action is not
dismissed within sixty (60) days after the commencement thereof; or
-8-
C. Any case, proceeding or other action against Tenant or any
guarantor of Tenant's obligations hereunder shall be commenced seeking to have
an order for relief entered against it as debtor or to adjudicate it as bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property and such case, proceeding, or
other action is not dismissed within sixty (60) days after the commencement
thereof.
D. A receiver or trustee shall be appointed for all or
substantially all of the assets of the Tenant.
E. Tenant shall desert, or vacate the premises and shall fail to
keep utility services, Tenant's required insurance or Tenant's required hvac
service contract in effect, or shall fail to perform maintenance and repairs to
the premises as required under this Lease.
F. Tenant shall fail to discharge any lien placed upon the
premises in violation of Paragraph 22 hereof within thirty (30) days after
Tenant receives notice that such lien or encumbrance is filed against the
premises.
G. Tenant shall fail to comply with any term, provision or
covenant of this Lease (other than the foregoing in this Paragraph 17), and
shall not cure such failure within twenty (20) days after written notice thereof
to Tenant (provided that is such failure to comply cannot be remedied within
such 20-day period, an event of default shall not occur if Tenant commences its
efforts to cure within such 20-day period and thereafter diligently prosecutes
such efforts to completion).
H. [Intentionally Deleted].
18. Remedies.
A. Upon the occurrence of any of such events of default described
in Paragraph 17 hereof, Landlord shall have the option to pursue any one or more
of the following remedies without any notice or demand whatsoever;
(1) Terminate this Lease, in which event Tenant shall
immediately surrender the premises to Landlord, and
if Tenant fails to do so then Landlord may enter upon
the premises, by force if necessary to the extent
permitted by Georgia law, without being liable for
prosecution or any claim for damages therefore and
without prejudice to Landlord for any other remedy
which it may have for possession or arrearages in
rent.
(2) Enter upon and take possession of the premises and
expel or remove Tenant and any other person who may
be occupying such premises or any part thereof, by
force if necessary, to the extent permitted by
Georgia law, without being liable for prosecution or
any claim or damages therefore, and relet the
premises and receive the rent therefore.
(3) Enter upon the premises, by force if necessary to the
extent permitted by Georgia law, without being liable
for prosecution or any claim for damages therefore,
and do whatever Tenant is obligated to do under the
terms of this Lease; and Tenant agrees to reimburse
Landlord on demand for any expenses which Landlord
may incur in thus effecting compliance with Tenant's
obligations under this Lease and Tenant further
agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action,
unless caused by the willful misconduct or gross
negligence of Landlord or otherwise.
B. In the event Landlord elects to regain possession of the
premises by a forcible detainer proceeding, Tenant hereby specifically waives
any statutory notice which may be required prior to such proceeding, and agrees
that Landlord's execution of this lease, is in part, consideration for this
waiver.
C. If an event of default by Tenant occurs with respect to the
payment of any installment of rent hereunder as and when such installment is
due, to help defray the additional cost to Landlord for processing such late
payments Tenant shall pay to Landlord on demand a late charge in an amount equal
to the lesser of $500.00 or five (5%) percent of such installment; and the
failure to pay such amount within five (5) business days after written notice
therefore shall be an event of default hereunder. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
D. In the event Tenant's check, given to Landlord in payment, is
returned by the bank for non-payment, Tenant agrees to pay all actual and
reasonable expenses incurred by Landlord as a direct result thereof.
E. Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the premises by Tenant, whether by agreement or by operation of
law, it being understood that such surrender can be effected only by the written
agreement of Landlord and Tenant. No such removal or other exercise of dominion
by Landlord over the property of Tenant or others at the premises shall be
deemed unauthorized or constitute a conversion, Tenant hereby consenting, after
any event of default, to the aforesaid exercise of dominion over Tenant's
property within the premises. All claims for damages by reason of such re-entry
and/or repossession are hereby waived, unless such damage is caused by or
results from the gross negligence or willful misconduct of Landlord, its agents,
employees or contractors, as are all claims for damages by reason of any
distress warrant, forcible detainer proceedings, sequestration proceedings or
other legal process. Landlord and Tenant agree that any re-entry by Landlord
shall be pursuant to judgment obtained in forcible detainer proceedings or other
legal proceedings or without the necessity for any legal proceedings, as
Landlord may elect, and Landlord shall not be liable for trespass or otherwise,
except as specifically set forth herein to the contrary.
-9-
F. In the event Landlord elects to terminate the lease by reason
of an event of default, then notwithstanding such termination, Tenant shall be
liable for and shall pay to Landlord, at the address specified for notice to
Landlord herein, the sum of all rental and other indebtedness accrued to date of
such termination, plus, as liquidated damages, an amount equal to (i) the
present value total rental hereunder for the remaining portion of the lease term
(had such term not been terminated by Landlord prior to the date of expiration
stated in Paragraph 1), minus (ii) the then present value of the then fair
rental value of the premises for such period. For purposes hereof, the "present
value" of a sum shall be the amount of such sum discounted using a discount rate
equal to eight percent (8%) per annum. The parties agree that the damages to
Landlord in the event of such default and termination would be difficult if not
impossible to determine, and the foregoing represents their good faith estimate
thereof and is not intended as a penalty.
G. In the event that Landlord elects to repossess the premises
without terminating the Lease, or in the event Landlord elects to terminate the
Lease, then Tenant, at Landlord's option, shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all rental and
other indebtedness accrued to the date of such repossession, plus rental
required to be paid by Tenant to Landlord during the remainder of the Lease term
as such rental becomes due until the date of expiration of the term as stated in
Paragraph 1 diminished by any net sums thereafter received by Landlord through
reletting the premises during said period (after deducting expenses incurred by
Landlord as provided in subparagraph 18H below). In no event shall Tenant be
entitled to any excess of any rental obtained by reletting over and above the
rental herein reserved. Actions to collect amounts due by Tenant to Landlord
under this subparagraph may be brought from time to time, on one or more
occasions, without the necessity of Landlord's waiting until expiration of the
Lease term.
H. In case of any event of default by Tenant, Tenant shall also
be liable for and shall pay to Landlord, at the address specified for notice to
Landlord herein, in addition to any sum provided to be paid above, reasonable
brokers' fees actually incurred by Landlord in connection with reletting the
whole or any part of the premises; the costs of removing and storing Tenant's or
other occupant's property, if any; the costs of repairing, altering, remodeling
or otherwise putting the premises into condition acceptable to a new tenant or
tenants, and all reasonable and actual expenses incurred by Landlord in
enforcing or defending Landlord's rights and/or remedies including reasonable
attorney's fees.
I. In the event of termination or repossession of the premises
after an event of default by Tenant, Landlord shall use reasonable good faith
efforts to mitigate its damages; it being understood that Landlord shall have no
obligation to in fact relet the premises, or any portion thereof, or to collect
rental after reletting; and in the event of reletting, Landlord may relet the
whole or any portion of the premises for any period to any tenant and for any
use and purpose at such rentals as Landlord reasonably deems appropriate at such
time. It Is further understood that Landlord may lease or attempt to lease
unleased premises owned by it prior to leasing or re-leasing the premises
following an event of default by Tenant, without in any way being deemed to have
failed to use its reasonable efforts in good faith to mitigate its damages.
J. If Tenant should fail to cure any event of default hereunder
within the time herein permitted, Landlord, without being under any obligation
to do so and without thereby waiving such default, may remedy such default for
the account of Tenant (and enter the premises for such purpose), and thereupon
Tenant shall be obligated to, and hereby agrees, to pay Landlord upon demand,
all costs; expenses and disbursements (including reasonable, and actual
attorney's fees) incurred by Landlord in taking such remedial action.
K. Landlord hereby waives and releases any and all statutory
and/or contractual lien rights that it may have at law in equity under this
Lease or otherwise in Tenant's goods, merchandise, inventory, stock or supplies
of inventory contained in the premises.
L. In the event that Landlord shall have taken possession of the
premises pursuant to the authority herein granted then Landlord shall have the
right to keep in place and use all of the personal property, furniture, fixtures
and equipment at the premises, including that which is owned by or leased to
Tenant but excluding Tenant's goods, merchandise, inventory, stock or supplies
of inventory contained in the premises, at all times prior to any foreclosure
thereon by Landlord or repossession thereof by any lessor thereof or third party
having a lien thereon, Landlord shall also have the right to remove from the
premises (without the necessity of obtaining a distress warrant, writ of
sequestration or other legal process) all or any portion of such furniture,
fixtures, equipment and other property located thereon and to place same in
storage at any premises within the County in which the premises is located; and
in such event, Tenant shall be liable to Landlord for costs incurred by Landlord
in connection with such removal and storage. Landlord shall also have the right
to relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") claiming to be entitled
to possession thereof who presents to Landlord a copy of any instrument
represented to Landlord by Claimant to have been executed by Tenant (or any
predecessor Tenant) granting Claimant the right under various circumstances to
take possession of such furniture, fixtures, equipment or other property,
without the necessity on the part of Landlord to inquire into the authenticity
of said instrument's copy of Tenant's or Tenant's predecessor's signature(s)
thereon and without the necessity of Landlord making any nature of investigation
or inquiry as to the validity of the factual or legal basis upon which Claimant
purports to act; and Tenant agrees to indemnify and hold Landlord harmless from
all cost, expense, loss, damage and liability incident to Landlord's
relinquishment of possession of all or any portion of such furniture, fixtures,
equipment or other property to Claimant. The rights of Landlord herein stated
shall be in addition to any and all other rights which Landlord has or may
hereafter have at law or in equity; and Tenant stipulates and agrees that the
rights herein granted Landlord are commercially reasonable.
M. [Intentionally Omitted.]
-10-
N. This Is a contract under which applicable law excuses Landlord
from accepting performance from (or rendering performance to) any person or
entity other than Tenant within the meaning of the Bankruptcy Code, 11
U.S.C. ss. 365(c), 365(e)(2).
O. If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be in trust for the
benefit of Landlord and be promptly paid or delivered to Landlord.
P. Any person or equity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, shall be deemed, without further act
or deed, to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption.
19. Landlord's Lien. Landlord has and shall have the right to
enforce the statutory lien for rent, except with respect to Tenant's goods,
merchandise, inventory, stock or supplies of inventory contained in the premises
as to which such statutory lien is hereby waived. However, Landlord hereby
subordinates Landlord's statutory lien to the lien or security interest of any
party or parties now or hereafter providing general business financing or other
credit facilities to Tenant. Upon request from time to time throughout the term
hereof Landlord agrees to execute an agreement subordinating Landlord's
statutory lien upon Tenant's personal property, furniture, fixtures and
equipment at the premises to the liens and security interests of such creditors
of Tenant providing general business financing or other credit facilities to
Tenant, pursuant to a lien subordination agreement that is reasonably acceptable
to Landlord.
20. Mortgages. Tenant accepts this Lease subject and subordinate
to any mortgage(s), deed(s) to secure debt, ground lease(s) and/or deed(s) of
trust now or at any time hereafter constituting a lien or charge upon the
premises or the improvements situated thereon (collectively, a "mortgage"),
provided, however, that Landlord shall deliver, as a condition precedent to such
subordination, a subordination, non-disturbance and attornment agreement
("SNDA") substantially in the form generally used by the holder of such mortgage
wherein the holder of any such mortgage agrees to recognize and not disturb this
Lease or Tenant's possession of the premises (provided Tenant is not then in
uncured default hereunder), if it succeeds to Landlord's interest hereunder,
whether by judicial or non judicial foreclosure, deed in lieu of foreclosure or
otherwise. If the mortgagee, trustee, or holder of any such mortgage elects to
have Tenant's interest in this Lease superior to any such instrument, then by
notice to Tenant from such mortgagee, trustee or holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or after
said mortgage or deed of trust. Tenant shall at any time hereafter on ten (10)
days notice execute any reasonable instruments or other documents, which may be
required by any mortgagee for the purpose of subjecting and subordinating this
Lease to the lien of any such mortgage, provided that Tenant is delivered the
SNDA as described herein. Landlord and Tenant each hereby agrees that the form
of SNDA attached hereto as Exhibit "D" is mutually approved by and acceptable to
them, subject to the review and approval thereof by any current or future holder
of a mortgage on the property and building in which the premises is located. In
the event there is a mortgage on the property as of the commencement date hereof
but Landlord fails or is unable to deliver an SNDA executed by the holder
thereof to Tenant by such commencement date, then, from and after the
commencement date until such time as an SNDA executed by Landlord and such
holder is delivered to Tenant for execution and recording, Tenant shall have the
right to pay into escrow with Xxxxxx Xxxxxx Xxxxxxx LLP, or with by a title
insurance company or agent reasonably acceptable to Landlord and Tenant, an
amount equal to one-half (1/2) of the Rent otherwise payable to Landlord
hereunder, and to pay the other one-half of its Rent to Landlord, without being
deemed to be or held or construed to be in default hereunder. Upon receipt of an
SNDA executed by Landlord and such holder, Tenant shall, within three (3)
business days thereafter by notice to the escrow agent with a copy to Landlord,
instruct and authorize the escrow holder to release and pay such escrowed Rents,
together with the interest earned thereon, if any, to Landlord. If, prior to the
date of delivery of such an SNDA to Tenant, the holder of such mortgage declares
Landlord to be in default under such mortgage or commences proceedings for the
judicial or non-judicial foreclosure of such mortgage, and if, during the first
sixty (60) days after such default is declared or the first sixty (60) days
after the commencement of such proceedings (whichever is earlier), such holder
fails to enter into an SNDA with Tenant or to otherwise agree in writing with
Tenant and in recordable form to accept Tenant's attornment and to recognize
this Lease and Tenant's possession and quiet enjoyment of the Premises pursuant
to this Lease, then Tenant shall have the right at any time thereafter by notice
to the escrow agent to instruct and authorize the escrow agent to release and
pay such escrowed Rents, together with the interest earned thereon, if any, to
Tenant, and Tenant shall have the right to continue to pay to Landlord (or to
the holder of such mortgage or other party entitled to receive such payment, if
any) one one-half (1/2) of the Rent otherwise due and payable hereunder, without
being deemed or held or construed to be in default hereunder. In such event
Tenant shall retain the other one-half (1/2) of such Rent in a separate account
maintained by Tenant for such purpose pending receipt of an SNDA or other
agreement in writing from Landlord and the holder of such mortgage in recordable
form to accept Tenant's attornment and to recognize this Lease and Tenant's
possession and quiet enjoyment of the premises pursuant to this Lease. Upon
receipt of such SNDA or other agreement in writing and in recordable form,
Tenant shall release and pay any and all such Rents (whether in escrow or
previously returned to Tenant) to Landlord, the holder of such mortgage or such
other party (if any) who shall be entitled to receive such payment at such time.
21. Landlord's Default. In the event Landlord should become in
default in any payments due on any such mortgage described In Paragraph 20
hereof or in the payment of taxes or any other items which might become a lien
upon the premises and which Tenant is not obligated to pay under the terms and
provisions of this Lease, or in the event Landlord fails to keep, observe or
perform any other term, covenant or condition hereof, Tenant is authorized and
empowered after giving Landlord five (5) days prior written notice of such
default and Landlord's failure to cure such default, to pay or perform any such
items for and on behalf of Landlord, and the amount of any
-11-
item so paid or performed by Tenant for or on behalf of Landlord, together with
any interest or penalty required to be paid in connection therewith, shall be
payable on demand by Landlord to Tenant; provided, however, that Tenant shall
not be authorized and empowered to make any mortgage payment under the terms of
this Paragraph 21 unless the item paid shall be superior to Tenant's interest
hereunder. In the event Tenant pays any mortgage debt in full, in accordance
with this paragraph, it shall, at its election, be entitled to the mortgage
security by assignment or subrogation. In the event Landlord fails to reimburse
Tenant for any such amounts within ten (10) days after written demand for such
reimbursement, Tenant shall have the right to xxx Landlord to collect the amount
thereof, and, if Tenant is the prevailing party in such lawsuit to collect same,
together with interest at the Default Rate as provided in this Lease; in such
other manner as is permitted under applicable law.
22. Mechanics Liens and Other Taxes.
A. Unless agreed to by Landlord, Tenant shall have no authority,
express or implied, to create or place any lien or encumbrance of any kind or
nature whatsoever upon, or in any manner to bind the interests of Landlord in
the premises or to charge the rentals payable hereunder for any claim in favor
of any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this instrument. Tenant covenants and agrees that it will
pay or cause to be paid all sums legally and rightfully due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed at the request of Tenant on the premises on which any lien is
validly asserted against its leasehold interest in the premises or the
improvements thereon and that it will save and hold Landlord harmless from any
and all loss, cost or expense based on or arising out of asserted claims or
liens against the leasehold estate or against the right, title and interest of
the Landlord in the premises or under the terms of this Lease. Tenant agrees to
give Landlord immediate written notice if any lien or encumbrance is placed on
the premises.
B. Tenant shall be liable for all taxes levied or assessed
against personal property, furniture or fixtures placed by Tenant in the
premises. If any such taxes for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and if Landlord elects to pay the same
or if the assessed value of Landlord's property is increased by inclusion of
personal property, furniture or fixtures placed by Tenant in the premises, and
Landlord elects to pay the taxes based on such increase, Tenant shall reimburse
Landlord upon demand for such increase in taxes caused by Tenant's personal
property, furniture or fixtures placed by Tenant in the premises.
23. Substitution of premises. [Intentionally Deleted]
24. Certain Rights Reserved to Landlord. Landlord reserves and may
exercise the following rights without affecting Tenant's obligations hereunder:
(a) to change the name, street address, or suite numbers of the
building, provided that Landlord provides Tenant with at least sixty (60) days
notice prior to doing so.
(b) to install or maintain a sign or signs on the exterior of the
building.
25. Notices. Each provision of this instrument or of any
applicable governmental laws, ordinances, regulations and other requirements
with reference to the sending, mailing or delivery of any notice or the making
of any payment by Landlord to Tenant or with reference to the sending, mailing
or delivery of any notice or the making of any payment by Tenant to Landlord
shall be deemed to be compiled with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address herein below set
forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligations to pay
rent and any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord at Landlord's address for payment as provided for herein or
as hereafter established hereby.
B. All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address herein below set forth, or
at such other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith, but shall
not be deemed satisfied until such payment required to be made by Landlord to
Tenant has actually been received by Tenant at the address set forth herein or
as hereafter established hereby.
C. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered when received or refused if sent in
the United States Mail, postage prepaid, Certified or Registered Mail, or by
nationally recognized courier service such as, for example, Federal Express,
addressed to the parties hereto at the respective addresses set out below, or at
such other address as they have theretofore specified by written notice
delivered in accordance herewith (provided, however, that Tenant's notice
address below shall only be effective from and after the commencement date of
the term hereof, and prior to such commencement date Tenant's notice address
shall be as follows: 000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 30076):
-12-
LANDLORD TENANT
-------- ------
Castle Investment Company, Inc. First Horizon Pharmaceutical Corporation
--------------------------------------- ---------------------------------------------
c/o TC Atlanta, Inc. 0000 Xxxxxx Xxxx, Xxxxx X
--------------------------------------- ---------------------------------------------
Five Concourse Parkway, Suite 1600 Xxxxxxxxxx, Xxxxxxx 00000
--------------------------------------- ---------------------------------------------
Xxxxxxx, XX 00000 Attn.: Xx. Xxxxx Xxxxxx
--------------------------------------- ---------------------------------------------
With additional copies to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx Xxxxxxx LLP
0000 Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Notices may also be sent by telecopy to a party's then current telecopy number
at the address location specified above (or any substitute notice address
location hereafter designated by notice), and such notices shall be effective
upon the date of delivery between the hours of 8:00 a.m. and 5:00 p.m. on a
business day, or on the next business day if transmitted and received after
5:00 p.m., provided that a copy of any notice sent by telecopy shall also be
sent in one of the other manners permitted for notice hereunder.
If and when included within the term "Landlord", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
26. Hazardous Waste. The term "Hazardous Substances", as used in
this Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or
any other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental Law", which term shall
mean any federal, state or local law or ordinance relating to pollution or
protection of the environment. Tenant hereby agrees that (i) no activity will be
conducted on the premises that will produce any Hazardous Substance, except for
such activities that are part of the ordinary course of Tenant's business
activities (the "Permitted Activities") provided said Permitted Activities are
conducted in accordance with all Environmental Laws and have been approved in
advance in writing by Landlord; (ii) the premises will not be used in any manner
for the storage of any Hazardous Substances except for the temporary storage of
such materials that are used in the ordinary course of Tenant's business (the
"Permitted Materials") provided such Permitted Materials are properly stored in
a manner and location meeting all Environmental Laws and approved in advance in
writing by Landlord; (iii) no portion of the premises will be used as a landfill
or a dump; (iv) Tenant will not install any underground tanks of any type; (v)
Tenant will not allow any surface or subsurface conditions to exist or come into
existence that constitute, or with the passage of time may constitute, a public
or private nuisance; (vi) Tenant will not permit any Hazardous Substances to be
brought onto the premises, except for the Permitted Materials described below,
and if Tenant, or any of Tenant's agents, employees, contractors or invitees
brings such Hazardous Substances thereon or permits or suffers any agent,
employees, visitors or contractors of Tenant or other party to do so, the same
shall be immediately removed, with proper disposal, and all required cleanup
procedures shall be diligently undertaken pursuant to all Environmental Laws.
If, at any time during or after the term of the Lease the premises is found to
be so contaminated as a result of the violation of this provision by Tenant, its
agents, employees, contractors or invitees, Tenant agrees to indemnify and hold
Landlord harmless from all claims, demands, actions, liabilities, costs,
expenses, damages and obligations of any nature arising from or as a result of
the use of the premises by Tenant. The foregoing indemnification shall survive
the termination or expiration of this Lease. Landlord represents and warrants to
Tenant that, to Landlord's reasonable knowledge, information and belief, as of
the date hereof there are no Hazardous Substances in or on the premises,
building or property on the date of hereof and there shall be none on the
commencement date hereunder. Landlord shall amend this warranty, if applicable,
or be conclusively deemed to have restated this warranty as of the commencement
date hereof as established pursuant to Section 1.A. above. Landlord agrees to
indemnify and hold Tenant harmless from all claims, demands, actions,
liabilities, costs, expenses, damages and obligations of any nature arising from
or as a result of Landlord's breach of these warranties. The foregoing
indemnification shall survive the termination or expiration of this Lease.
27. Miscellaneous.
A. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
B. In the event the premises constitutes a portion of a multiple
occupancy building complex, Tenant's "proportionate share", as used in this
Lease, shall mean a fraction, the numerator of which is the space contained in
the premises and the denominator of which is the entire space contained in the
building or building complex of which the premises are a part.
-13-
C. The terms, provisions and covenants and conditions contained
in this Lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this Lease. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this Lease.
D. The captions inserted in this Lease are for convenience only
and in no way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the interpretation of this
Lease.
E. The parties hereto agree from time to time within ten (10)
days after request of Landlord, to deliver to such other party or their designee
an estoppel certificate stating that this Lease is in full force and effect, the
date to which rent has been paid, the unexpired term of this Lease and such
other matters pertaining to this Lease as may be requested by such party. It is
understood and agreed that Landlord's and Tenant's obligation to furnish such
estoppel certificates in a timely fashion is a material inducement for the other
party's execution of this Lease.
F. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
G. Upon the expiration or earlier termination of the term hereof,
Tenant shall leave the premises on the expiration of this Lease in broom-clean
condition, reasonable wear and tear excepted. After vacating the premises,
provided that Landlord provides Tenant with a reconciliation of the amount
collected for Tenant's obligations for taxes, insurance and other expenses,
Tenant shall promptly pay to Landlord such amount due but uncollected. If
Landlord has collected more than the amount due from Tenant's occupancy for
taxes and other charges, then Landlord shall provide to Tenant a prompt refund
of such overage.
H. If any clause or provision of this Lease is illegal, invalid
or unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
I. Because the premises are on the open market and are presently
being shown, upon execution of this Lease by Tenant this Lease shall be treated
as an offer by Tenant to Landlord open for acceptance by Landlord with the
premises being subject to prior Lease and such offer subject to withdrawal or
non-acceptance by Landlord or to other use of the premises without notice, and
this Lease shall not be valid or binding unless and until accepted by Landlord
in writing and a fully executed copy delivered to both parties hereto.
J. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
K. Time is of the essence of this Lease and all of its
provisions. This Lease in all respects shall be governed by the laws of the
State of Georgia.
L. No animals, except, without limitation, seeing eye dogs, dogs
which are used by law enforcement officers of the like shall be brought into or
kept in or about the building.
M. Tenant agrees to comply with subdivision regulations,
protective covenants, or other restrictions of record that are applicable to the
building or building complex.
N. The duties and obligations of Tenant herein shall be binding
upon all or any of them. The duties and obligations of Tenant shall run and
extend not only to the benefit of the Landlord, as named herein, but to the
following, at the option of the following or any of them (i) the owner of the
premises; and (ii) holders of mortgage or rent assignment interests in the
premises, as their respective interests may appear; provided that Tenant
receives an agreement of non-disturbance from such person or entity; however,
nothing contained herein shall be construed to obligate Tenant to pay rent to
any person other than the Landlord until such time as Tenant has been given
written notice of either an exercise of a rent assignment or the succession of
some other party to the interests of Landlord.
28. Additional Provisions. See Additional Provisions Paragraphs 29
thru 38 attached hereto and made a part hereof as if fully incorporated herein
and when in conflict with the printed portion of this Lease, said Additional
Provisions shall prevail.
EXECUTED BY LANDLORD, this 10th day of January, 2002.
Attest/Witness CASTLE INVESTMENT COMPANY, INC.
By: /s/ Xxxxxxx X. Spey
------------------------------ --------------------------------------
Title: Title: Vice President
------------------------ -----------------------------------
-14-
EXECUTED BY TENANT, this 31st day of December, 2001.
Attest/Witness FIRST HORIZON PHARMACEUTICAL CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------- --------------------------------------
Title: Controller Title EVP Corp. Dev/CFO
---------------------------- ------------------------------------
-15-
ADDITIONAL PROVISIONS
29. SECURITY DEPOSIT. If any interest shall be earned on the
Tenant's security deposit provided for in Paragraph 2(B) hereof, such interest
shall be the property of, and shall be retained by, the Landlord without
obligation to Tenant to account therefore.
30. BASE MONTHLY RENT. Tenant agrees to pay the Base Monthly
Rental in accordance with the following schedule:
Months PSF Base Monthly Rental
------ ----- -------------------
01 $0.00 $0.00
02-37 $5.90 $49,717.33
38-49 $6.08 $51,208.85
50-61 $6.26 $52,745.12
62-73 $6.45 $54,327.47
74-85 $6.64 $55,957.30
31. LANDLORD'S IMPROVEMENTS. Landlord shall, at Landlord's
expense, construct the improvements to the premises ("Landlord's improvements")
as shown on the Tenant Finish Plans attached to and made a part of this Lease.
Landlord and Tenant shall initial Exhibit A and it, and any change orders
executed by the Parties, shall prevail in case of a dispute as to Landlord's
obligations.
Landlord shall use its reasonable, diligent, good faith efforts to
complete all improvements prior to the target commencement date of the Lease.
32. COMMON AREA MAINTENANCE. Notwithstanding the provision of
Paragraph 6 of this Lease Agreement, Landlord and Tenant agree that Landlord
will conduct common area maintenance on the building, common areas and grounds
of the property, including without limitation the parking area, driveways and
alleyways around the building, common areas and premises, and Tenant will pay
its pro rata share of such maintenance. Said common area maintenance will
include, but not be limited to under Paragraph 6, water and sewer, fire
protection, landscape maintenance and irrigations, common lighting, and common
area parking. Landlord's managing agent will furnish Tenant with a list and
budget in reasonable detail of the common area maintenance costs and items
hereunder. Tenant's proportionate share of the cost of said common area
maintenance will be paid on a monthly basis by Tenant and is estimated to be
approximately Two Thousand One Hundred Six and 66/100 Dollars ($2,106.66) per
month, or Twenty Five Cents ($0.25) per square foot per year in 2002.
33. MANAGEMENT FEE. Notwithstanding the provision of Paragraph 6
of this Lease Agreement, Landlord and Tenant agree that Tenant shall pay to
Landlord a management fee equal to 3% of the base rent.
34. LEASE BUYOUT. Landlord agrees to deposit into escrow (the
"Lease Buyout Escrow") for use by Tenant in the manner described below the sum
of Two Hundred Seventy Thousand and 00/100 Dollars ($270,000.00), or such other
amount as is determined by multiplying $15,000.00 by the number of whole or
partial months remaining in the term of the "Existing Lease" [as defined below]
as of the commencement date of the term of this Lease. Landlord shall make such
deposit into the Lease Buyout Escrow within 30 days of the commencement date of
this Lease. The escrow holder shall be Xxxxxxxx Xxxx Company ("Escrow Agent"),
which company Tenant and Landlord each hereby acknowledge and agree is also
acting as real estate broker for Landlord in connection with this Lease. The
Lease Buyout Escrow may be used by Tenant only for the following purposes and
for no other use or purpose: Tenant may use the Lease Buyout Escrow for the
purpose of offsetting Tenant's Lease obligations under another lease at 000
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx (the "Existing Lease"), including
without limitation the making of regularly monthly payments of "rents" and/or
"additional rents" (however described or denominated) pursuant to the Existing
Lease, and/or, subject to Landlord's review and approval in Landlord's
reasonable good faith discretion, for the purpose of settling and compromising,
and buying out, all future such rental payment obligations under the Existing
Lease (an "Approved Buyout") pursuant to a lease termination agreement (a Lease
Termination Agreement"). Escrow Agent is hereby authorized and instructed by
Landlord and Tenant to disburse from escrow and remit to Tenant an amount equal
to the monthly rental payments made by Tenant under the Existing Lease for any
whole or partial months during the term of this Lease. Such monthly
disbursements from escrow shall be made monthly within five (5) business days
after Escrow Agent receives from Tenant a copy of Tenant's check in payment of
such rents to the Landlord under the Existing Lease. Subject to Escrow Agent's
receipt of further written approval from Landlord with respect to any Lease
Termination Agreement and Approved Buyout pursuant thereto, Escrow Agent is also
hereby authorized and instructed by Landlord and Tenant to release from escrow
and disburse by check payable to the landlord under the Existing Lease a check
in the amount of any Approved Buyout of the Existing Lease. Landlord shall have
no other obligations with respect to this matter, provided, however, that if
Landlord does not pay and deposit such amount into the Lease Buyout Escrow
within 30 days of the commencement date of this Lease, then Tenant may make the
payments contemplated hereunder, including both the monthly rental payments
under the Existing Lease and the making of any Approved Buyout payment, without
in fact procuring, or being required to procure, Landlord's approval of the
Lease Termination Agreement or Approved Buyout pursuant thereto (Landlord being
hereby conclusively deemed to have waived its right to approve such Lease
Termination Agreement and such Approved Buyout by reason of Landlord's failure
to fund the Lease Buyout Escrow), and to offset such amounts together with
interest at the default rate under this Lease from Base Monthly Rental and other
charges under this Lease until Tenant has been reimbursed in full.
-16-
35. LISTING AGREEMENT. Notwithstanding anything in Paragraph 34,
but subject to the terms and conditions of the Existing Lease, a copy of which,
together with all amendments thereto, shall be provided by Tenant to Landlord,
Tenant shall grant to Landlord an exclusive right to sublease Tenant's space at
000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, and, any money paid to Tenant
under any sublease Tenant enters into shall be split with Landlord on a 50/50
basis at the time the money is collected after such monies are first used and
applied as a reimbursement to Landlord for its reasonable costs to procure a
sublease, including reasonable and actual commissions, marketing and advertising
expenses, build-out or improvement costs and legal expenses. Landlord and Tenant
acknowledge and agree that if Tenant executes a Lease Termination Agreement, a
copy of which, together with all amendments thereto, shall be provided by Tenant
to Landlord, that provides for a termination payment (the "Termination Payment")
to the lessor of the Existing Lease that is less than the amount then remaining
in the Lease Buyout Escrow, then such Termination Payment shall be paid from the
Lease Buyout Escrow to the lessor of the Existing Lease and, after making such
payment, one-half (1/2) of such remaining amount in the Lease Buyout Escrow
shall be released to Landlord and one-half (1/2) of such remaining amount in the
Lease Buyout shall be released to Tenant.
36. OPTION TO EXTEND. While this Lease is in full force and
effect, provided an event of default by Tenant under any monetary or other
material provision of this Lease does not then exist, Tenant shall have the sole
right or option to extend the original term of this Lease Agreement for one (1)
further consecutive term (Option Period) of Sixty (60) months. Such extension or
renewal of the original term shall be on the same terms, covenants and
conditions as provided in the original term except that the rental during the
extended period shall be a Market Rental Rate to be negotiated between Landlord
and Tenant or otherwise determined as provided for herein. Notice of Tenant's
intention to exercise this right or option must be given in writing to Landlord
at least one hundred eighty (180) days prior to the expiration date of the term
hereof or the option contained in this provision shall become null and void and
of no effect. The right or option to extend the original term of this Lease
Agreement provided to Tenant herein shall be for the exclusive benefit of the
Tenant and its permitted assignees, but may not be exercised by any
non-affiliate sublessee of Tenant.
Market Rental Rate. Beginning four months prior to the commencement of
the Option Period the Parties shall negotiate in good faith to determine the
Base Rent for the Option Period. If agreement cannot be reached within thirty
days, then Landlord and Tenant shall each, no later than 90 days prior to the
commencement of the Option Period, make a reasonable determination of the fair
market rental for the premises for the Option Period and submit such
determination, in writing, to arbitration in accordance with the following
provisions:
(i) No later than 90 days prior to the commencement of
the Option Period, Landlord and Tenant shall each select an industrial leasing
broker to act as an arbitrator. The two arbitrators so appointed shall, no later
than 75 days prior to the commencement of the Option Period, select a third
independent, mutually acceptable (i.e. to such arbitrators) industrial leasing
broker to act as a third arbitrator.
(ii) The three arbitrators, acting by a majority, shall no
later than 45 days prior to the commencement of the Option Period, determine the
actual fair market rental for the premises for the Option Period. The decision
of a majority of the arbitrators shall be binding on the Parties. The fair
market rental determination of Landlord or Tenant, which is closest to the fair
market rental as determined by the arbitrators, shall be the Base Rent for the
Option Period.
(iii) If either of the Parties fails to appoint an
arbitrator within the period required by this Addendum, the arbitrator timely
appointed shall determine the Base Rent for the Option Period.
(iv) The party whose fair market rental submission is not
selected shall pay the fees of the arbitrators.
37. BROKER DISCLOSURE: Pursuant to Georgia Real Estate Commission
Regulation 520-1-08, TC Atlanta, Inc. and MZA Real Estate Services, Inc. ("MZA")
make the following disclosures concerning this Lease transaction:
a) In this transaction, TC Atlanta, Inc., represents
Landlord and not Tenant. MZA represents the Tenant
and not the Landlord.
b) In this transaction, TC Atlanta, Inc. and MZA shall
receive their Compensation from Landlord exclusively.
Both Tenant and Landlord acknowledge, agree with, and consent to the
representation and compensation disclosed above, and Landlord and Tenant
represent each to the other that there are no additional brokers except for
those identified in this Section 38 entitled to any commission, fee, or
compensation of any kind due and payable in connection herewith. Landlord and
Tenant agree to indemnify and hold each other harmless from all loss, liability,
damage, claim, judgement, cost or expense (including reasonable actual attorneys
fees and court costs) suffered or incurred as a result of a breach by the
parties of this representation and warranty contained herein. Landlord agrees to
pay both of the brokers set forth in this paragraph pursuant to a separate
agreement. Such separate agreement is incorporated herein by reference, and the
parties agree that it shall have the same effect as if it is set forth herein.
38. PERMITTED ASSIGNMENT. Notwithstanding any other provision of
this Agreement, TC Atlanta, Inc. shall be permitted to assign all of its right,
title and interest in and to this Agreement to any other entity that is directly
or indirectly wholly-owned by Xxxxxxxx Xxxx Company, a Delaware corporation
("TCC"), provided that such successor entity certifies to Tenant that it will
perform all of Landlord's obligations hereunder. Such permitted assignment shall
include any assignment that may be deemed to occur by operation of law in
connection with any merger or consolidation of TCC entity with and/or into any
other entity directly or indirectly wholly-owned by TCC (an "Intragroup
Merger"). Any such Intragroup Merger shall not be deemed a breach of, cause a
default under or trigger any right of termination under, any other provision of
this Agreement.
-17-
EXHIBIT "A"
LEGAL DESCRIPTION
TRACT 3 = 5.75 ACRES
ALL THAT TRACT OR PARCEL OF LAND LYING IN LAND XXXX 000 XXX 000, XX XXX 0XX
XXXXXXXX, 0XX SECTION, OF FORSYTH COUNTY, GEORGIA AND BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
TO FIND THE POINT OF BEGINNING COMMENCE AT THE INTERSECTION OF THE EASTERLY
RIGHT OF WAY OF SHILOH ROAD EAST (60' R/W) AND THE SOUTHERLY RIGHT-OF-WAY OF
SHILOH ROAD (60' R/W). THENCE PROCEED EASTERLY ALONG SAID RIGHT-OF-WAY OF SHILOH
ROAD A DISTANCE OF 1,034.89 FEET TO A P&K NAIL SET, SAID POINT BEING THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, THENCE NORTH 52 DEGREES
17 MINUTES 38 SECONDS EAST A DISTANCE OF 294.70 FEET TO A POINT; THENCE ALONG A
727.31 FEET RADIUS CARVE TURNING TO THE LEFT AN ARC DISTANCE OF 246.18 FEET
(SAID CURVE BEING SUBTENDED BY A CHORD BEARING NORTH 42 DEGREES 36 MINUTES 22
SECONDS EAST A DISTANCE OF 245.01 FEET) TO A P&K NAIL; THENCE LEAVING SAID
XXXXX-XX-XXX XX XXXXXX XXXX, XXXXX 00 DEGREES 53 MINUTES 16 SECONDS EAST A
DISTANCE OF 107.74 FEET TO AN IRON PIN SET; THENCE SOUTH 36 DEGREES 43 MINUTES
42 SECONDS EAST A DISTANCE OF 363.13 FEET TO AN IRON PIN FOUND (1/2" REBAR);
THENCE SOUTH 52 DEGREES 55 MINUTES 56 SECONDS WEST A DISTANCE OF 605.89 FEET TO
AN IRON PIN FOUND (1/2" REBAR); THENCE NORTH 31 DEGREES 55 MINUTES 56 SECONDS
WEST A DISTANCE OF 419.59 FEET TO A P&K NAIL SET ON SAID RIGHT-OF-WAY OF SHILOH
ROAD (60' R/W) SAID POINT BEING THE TRUE POINT OF BEGINNING.
BEING TRACT 3 AND CONTAINING 250,470 SQUARE FEET OR 5.75 ACRES OF LAND, MORE OR
1ESS, AS SHOWN ON ALTA/ACSM LAND TITLE SURVEY FOR METROPOLITAN LIFE INSURANCE
COMPANY, CASTLE INVESTMENT COMPANY, INC. AND FIRST AMERICAN TITLE INSURANCE
COMPANY, PREPARED BY LANDAIR SURVEYING, INC. AND BEARING THE SEAL OF XXX X.
XXXXX, GEORGIA R.L.S. NO. 2768, DATED 3-14-96 AND LAST REVISED 12-3-99 TOGETHER
WITH THE BENEFITS OF AND SUBJECT TO THE BURDENS OF DECLARATION OF PROTECTIVE
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE COMMERCIAL AREA OF THE
XXXXXXX AT BLUEGRASS BY THE XXXXXXX PARTNERS, L.L.C., DATED FEBRUARY 1, 1995,
FILED FOR RECORD FEBRUARY 10, 1995 AND RECORDED IN DEED BOOK 828, PAGE 407,
AFORESAID RECORDS; AS AMENDED BY AMENDMENT TO DECLARATION OF PROTECTIVE
COVENANTS, RESTRICTIONS, AND EASEMENTS FOR THE COMMERCIAL AREA OF THE XXXXXXX AT
BLUEGRASS FOR THE XXXXXXX PARTNERS, L.L.C., DATED MARCH 1, 1995, FILED FOR
RECORD MARCH 10, 1995 AND RECORDED IN DEED BOOK 835, PAGE 700, AFORESAID
RECORDS; AS AMENDED BY SUPPLEMENTARY DECLARATION OF PROTECTIVE COVENANTS,
RESTRICTIONS, AND EASEMENTS FOR THE COMMERCIAL AREA OF THE XXXXXXX AT BLUEGRASS
FOR THE XXXXXXX PARTNERS, L.L.C., DATED JUNE 1, 1995, FILED JUNE 2, 1995 AND
RECORDED IN DEED BOOK 858, PAGE 256, AFORESAID RECORDS AND AS FURTHER AMENDED
FROM TIME TO TIME; AND BEING KNOWN AS 6195 SHILOH ROAD, ACCORDING TO THE PRESENT
SYSTEM OF NUMBERING IN FORSYTH COUNTY, GEORGIA.
EXHIBIT "B"
FLOOR PLAN OF PREMISES
Approximately 101,120 square feet of space in a building located in the County
of Forsyth, State of Georgia, more commonly known as Suite A, 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, as depicted on the attached floor plan.
[GRAPHICS]
SITE PLAN
- Xxxxxxxxxx xxxxxxx (00000 Zip Code)
- XxXxxxxxx Road widening to be complete in early 2002
[GRAPHICS]
BUILDING PLAN
- 40' x 40' column spacing, 188' to 200' deep bays.
- 8,000 square feet office space, 14,000 square feet assembly.
EXHIBIT "D"
FORM OF SNDA
----------------------------------
RECORDING REQUESTED
BY AND WHEN
RECORDED RETURN TO:
, Esq.
-----------------------
-----------------------
-----------------------
-----------------------
----------------------------------
SUBORDINATION,
NONDISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT RESULTS IN
YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER
PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
DEFINED TERMS
--------------------------------------------------------------------------------
EXECUTION DATE: DECEMBER , 2001
--------------------------------------------------------------------------------
BENEFICIARY & ADDRESS: .
Metropolitan Life Insurance Company, a New York corporation
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President
Real Estate Investments
with a copy to:
Metropolitan Life Insurance Company
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Vice President
Real Estate Investments
--------------------------------------------------------------------------------
TENANT & ADDRESS:
If prior to the Lease "Commencement Date":
First Horizon Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If after the Lease "Commencement Date":
First Horizon Pharmaceutical Corporation
0000 Xxxxxx Xxxx
Xxxxx X
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
In either case, with additional copies to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx Xxxxxxx LLP
0000 Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
LANDLORD & ADDRESS:
Castle Investment Company, Inc., a Delaware corporation
c/o UBS Xxxxxxx, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------------------------------------------------
LOAN: A first mortgage loan in the original principal amount of $22,000,000.00
from Beneficiary to Landlord.
--------------------------------------------------------------------------------
NOTE: A Promissory Note executed by Landlord in favor of Beneficiary in the
amount of the Loan dated as of $22,000,000.00.
--------------------------------------------------------------------------------
DEED OF TRUST: A Deed to Secure Debt and Security Agreement dated as of ,
1999 executed by Landlord, to Beneficiary securing repayment of the Note to be
recorded in the records of the County in which the Property is located.
--------------------------------------------------------------------------------
LEASE AND LEASE DATE: The lease entered into by Landlord and Tenant dated as of
covering the Premises.
[Add amendments]
--------------------------------------------------------------------------------
PROPERTY: [Property Name]
[Street Address 1]
[City, State, Zip]
The Property is more particularly described on Exhibit A.
--------------------------------------------------------------------------------
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
(the "Agreement") is made by and among Tenant, Landlord, and Beneficiary and
affects the Property described in Exhibit A. Certain terms used in this
Agreement are defined in the Defined Terms. This Agreement is entered into as of
the Execution Date with reference to the following facts:
A. Landlord and Tenant have entered into the Lease
covering certain space in the improvements located in and upon the Property (the
"Premises").
B. Beneficiary has made or is making the Loan to
Landlord evidenced by the Note. The Note is secured, among other documents, by
the Deed of Trust.
C. Landlord, Tenant and Beneficiary all wish to
subordinate the Lease to the lien of the Deed of Trust.
D. Tenant has requested that Beneficiary recognize the
Lease, accept Tenant's attornment and agree not to disturb Tenant's rights in
the Premises pursuant to the Lease in the event Beneficiary forecloses the Deed
of Trust, or acquires the Property pursuant to the trustee's power of sale
contained in the Deed of Trust or receives a transfer of the Property by a
conveyance in lieu of foreclosure of the Property or otherwise acquires title to
the Property (collectively, a "Foreclosure Sale") but only if Tenant is not then
in default under the Lease and Tenant attorns to Beneficiary or a third party
purchaser at the Foreclosure Sale (a "Foreclosure Purchaser").
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Subordination. The Lease and the leasehold estate
created by the Lease and all of Tenant's rights under the Lease are and shall
remain subordinate to the Deed of Trust and the lien of the Deed of Trust, to
all rights of Beneficiary under the Deed of Trust and to all renewals,
amendments, modifications and extensions of the Deed of Trust.
2. Acknowledgments by Tenant and Landlord. Tenant agrees
that: (a) Tenant has notice that the Lease and the rent and all other sums due
under the Lease have been or are to be assigned to Beneficiary as security for
the Loan. In the event that Beneficiary notifies Tenant of a default under the
Deed of Trust and requests Tenant to pay its rent and all other sums due under
the Lease to Beneficiary, Tenant shall pay such sums directly to Beneficiary or
as Beneficiary at the same time Tenant sends such notice or statement to
Landlord, and (c) this Agreement satisfies any condition or requirement in the
Lease relating to the granting of a nondisturbance agreement. Landlord
acknowledges, agrees with, and consents to the foregoing.
3. Foreclosure and Sale. In the event of a Foreclosure
Sale,
(a) So long as Tenant complies with this
Agreement and is not in default under any of the provisions of the
Lease beyond any applicable cure period, the Lease shall continue in
full force and effect as a direct lease between Beneficiary and Tenant,
and Beneficiary will not disturb the possession of Tenant, subject to
this Agreement. To the extent that the Lease is extinguished as a
result of a Foreclosure Sale, a new lease shall automatically go into
effect upon the same provisions as contained in the Lease
between Landlord and Tenant, except as set forth in this Agreement, for
the unexpired term of the Lease. Tenant agrees to attorn to and accept
Beneficiary as landlord under the Lease and to be bound by and perform
all of the obligations imposed by the Lease, or, as the case may be,
under the new lease, in the event that the Lease is extinguished by a
Foreclosure Sale, and Beneficiary agrees to accept such attornment.
Upon Beneficiary's acquisition of title to the Property, Beneficiary
will perform all of the obligations imposed on the Landlord by the
Lease except as set forth in this Agreement; provided, however, that
Beneficiary shall not be: (i) liable for any act or omission of a prior
landlord (including Landlord); or (ii) subject to any offsets or
defenses that Tenant might have against any prior landlord (including
Landlord); or (iii) bound by any rent or additional rent which Tenant
might have paid in advance to any prior landlord (including Landlord)
for a period in excess of one month or by any security deposit,
cleaning deposit or other sum that Tenant may have paid in advance to
any prior landlord (including Landlord), unless such payment or deposit
has been transferred or credited to Beneficiary; or (v) bound by any
amendment, modification, assignment or termination of the Lease made
without the written consent of Beneficiary; (v) obligated or liable
with respect to any representations, warranties or indemnities
contained in the Lease, except for warranties as to ownership by
Beneficiary and quiet enjoyment from and after the date of the
Foreclosure Sale; or (vi) liable to Tenant or any other party for any
conflict between the provisions of the Lease and the provisions of any
other lease affecting the Property which is not entered into by
Beneficiary.
(b) Upon the written request of Beneficiary
after a Foreclosure Sale, the parties shall execute a lease of the
Premises upon the same provisions as contained in the Lease between
Landlord and Tenant, except as set forth in this Agreement, for the
unexpired term of the Lease.
(c) Notwithstanding any provisions of the Lease
to the contrary, from and after the date that Beneficiary acquires
title to the Property as a result of a Foreclosure Sale, (i)
Beneficiary will not be obligated to expend any monies to restore
casualty damage in excess of available insurance proceeds; (ii) Tenant
shall not have the right to make repairs and deduct the cost of such
repairs from the rent without a judicial determination that Beneficiary
is in default of its obligations under the Lease; (iii) Beneficiary
shall not be required to grant nondisturbance to any non-affiliated
subtenants of Tenant; (iv) in no event will Beneficiary be obligated to
indemnify Tenant, except where Beneficiary is in breach of its
obligations under the Lease or where Beneficiary has been actively
negligent in the performance of its obligations as landlord; and (v)
other than determination of fair market value, no disputes under the
Lease shall be subject to arbitration unless Beneficiary and Tenant
agree to submit a particular dispute to arbitration.
4. Subordination and Release of Purchase Options. Tenant
represents that it has no right or option of any nature to purchase the Property
or any portion of the Property or any interest in the Borrower. To the extent
Tenant has or acquires any such right or option, these, rights or options are
acknowledged to be subject and subordinate to the Mortgage and are waived and
released as to Beneficiary and any Foreclosure Purchaser.
5. Acknowledgment by Landlord. In the event of a default
under the Deed of Trust, at the election of Beneficiary, Tenant shall and is
directed to pay all rent and all other sums due under the Lease to Beneficiary.
6. Construction of Improvements. Beneficiary shall not
have any obligation or incur any liability with respect to the completion of the
tenant improvements located in the Premises at the commencement of the term of
the Lease.
7. Notice. All notices under this Agreement shall be
deemed to have been properly given if delivered by overnight courier service or
mailed by United States certified mail, with return receipt requested, postage
prepaid to the party receiving the notice at its address set forth in the
Defined Terms (or at such other address as shall be given in writing by such
party to the other parties) and shall be deemed complete upon receipt of refusal
of delivery.
8. Miscellaneous. Beneficiary shall not be subject to
any provision of the Lease that is inconsistent with this Agreement. Nothing
contained in this Agreement shall be construed to derogate from or in any way
impair or affect the lien or the provisions of the Deed of Trust. This Agreement
shall be governed by and construed in accordance with the laws of the State of
in which the Property is located.
9. Liability and Successors and Assigns. In the event
that Beneficiary acquires title to the Premises or the Property, Beneficiary
shall have no obligation nor incur any liability in an amount in excess of
$3,000,000 and Tenant's recourse against Beneficiary shall in no extent exceed
the amount of $3,000,000. This Agreement shall run with the land and shall inure
to the benefit of the parties and their respective successors and permitted
assigns including a Foreclosure Purchaser. If a Foreclosure Purchaser acquires
the Property or if Beneficiary assigns or transfers its interest in the Note and
Deed of Trust or the Property, all obligations and liabilities of Beneficiary
under this Agreement shall terminate and be the responsibility of the
Foreclosure Purchaser or other party to whom Beneficiary's interest is assigned
or transferred. The interest of Tenant under this Agreement may not be assigned
or transferred except in connection with an assignment of its interest in the
Lease which has been consented to by Beneficiary (including any affiliate
transfers for which Landlord's consent is not required under the Lease and
Beneficiary's consent is not required hereunder).
IN WITNESS WHEREOF, the parties have executed this
Subordination, Nondisturbance and Attornment Agreement as of the Execution Date.
IT IS RECOMMENDED THAT THE PARTIES CONSULT WITH THEIR ATTORNEYS PRIOR TO THE
EXECUTION OF THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT.
BENEFICIARY: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By
---------------------------------------
Its
--------------------------------------
TENANT: FIRST HORIZON PHARMACEUTICAL CORPORATION
a
----------------------------------------
By
---------------------------------------
Its
--------------------------------------
LANDLORD: CASTLE INVESTMENT COMPANY, INC.
a Delaware corporation
By:
--------------------------------------
Its:
-------------------------------------
EXHIBIT A
PROPERTY DESCRIPTION
TRACT 3 = 5.75 ACRES
ALL THAT TRACT OR PARCEL OF LAND LYING IN LAND XXXX 000 XXX 000, XX XXX 0XX
XXXXXXXX, 0XX SECTION, OF FORSYTH COUNTY, GEORGIA AND BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
TO FIND THE POINT OF BEGINNING COMMENCE AT THE INTERSECTION OF THE EASTERLY
RIGHT-OF-WAY OF SHILOH ROAD EAST (60' R/W) AND THE SOUTHERLY RIGHT-OF-WAY OF
SHILOH ROAD (60' R/W). THENCE PROCEED EASTERLY ALONG SAID RIGHT-OF-WAY OF SHILOH
ROAD A DISTANCE OF 1,034.89 FEET TO A P&K NAIL SET, SAID POINT BEING THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, THENCE NORTH 52 DEGREES
17 MINUTES 38 SECONDS EAST A DISTANCE OF 294.70 FEET TO A POINT; THENCE ALONG A
727.31 FOOT RADIUS CURVE TURNING TO THE LEFT AN ARC DISTANCE OF 246.18 FEET
(SAID CURVE BEING SUBTENDED BY A CHORD BEARING NORTH 42 DEGREES 36 MINUTES 22
SECONDS EAST A DISTANCE OF 245.01 FEET) TO A P&K NAIL; THENCE LEAVING SAID
XXXXX-XX-XXX XX XXXXXX XXXX, XXXXX 00 DEGREES 53 MINUTES 16 SECONDS EAST A
DISTANCE OF 107.74 FEET TO AN IRON PIN SET; THENCE SOUTH 36 DEGREES 43 MINUTES
42 SECONDS EAST A DISTANCE OF 363.13 FEET TO AN IRON PIN FOUND (1/2" REBAR);
THENCE SOUTH 52 DEGREES 55 MINUTES 56 SECONDS WEST A DISTANCE OF 605.89 FEET TO
AN IRON PIN FOUND (1/2" REBAR); THENCE NORTH 31 DEGREES 55 MINUTES 56 SECONDS
WEST A DISTANCE OF 419.59 FEET TO A P&K NAIL SET ON SAID RIGHT-OF-WAY OF SHILOH
ROAD (60' R/W) SAID POINT BEING THE TRUE POINT OF BEGINNING.
BEING TRACT 3 AND CONTAINING 250,470 SQUARE FEET OR 5.75 ACRES OF LAND, MORE OR
LESS, AS SHOWN ON ALTA/ACSM LAND TITLE SURVEY FOR METROPOLITAN LIFE INSURANCE
COMPANY, CASTLE INVESTMENT COMPANY, INC. AND FIRST AMERICAN TITLE INSURANCE
COMPANY, PREPARED BY LANDAIR SURVEYING, INC. AND BEARING THE SEAL OF XXX X.
XXXXX, GEORGIA R.L.S. NO. 2768, DATED 3-14-96 AND LAST REVISED 12-3-99 TOGETHER
WITH THE BENEFITS OF AND SUBJECT TO THE BURDENS OF DECLARATION OF PROTECTIVE
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE COMMERCIAL AREA OF THE
XXXXXXX AT BLUEGRASS BY THE XXXXXXX PARTNERS, L.L.C., DATED FEBRUARY 1, 1995,
FILED FOR RECORD FEBRUARY 10, 1995 AND RECORDED IN DEED BOOK 828, PAGE 407,
AFORESAID RECORDS; AS AMENDED BY AMENDMENT TO DECLARATION OF PROTECTIVE
COVENANTS, RESTRICTIONS, AND EASEMENTS FOR THE COMMERCIAL AREA OF THE XXXXXXX AT
BLUEGRASS FOR THE XXXXXXX PARTNERS, L.L.C., DATED MARCH 1, 1995, FILED FOR
RECORD MARCH 10, 1995 AND RECORDED IN DEED BOOK 835, PAGE 700, AFORESAID
RECORDS; AS AMENDED BY SUPPLEMENTARY DECLARATION OF PROTECTIVE COVENANTS,
RESTRICTIONS, AND EASEMENTS FOR THE COMMERCIAL AREA OF THE XXXXXXX AT BLUEGRASS
FOR THE XXXXXXX PARTNERS, L.L.C., DATED JUNE 1, 1995, FILED JUNE 2, 1995 AND
RECORDED IN DEED BOOK 858, PAGE 256, AFORESAID RECORDS AND AS FURTHER AMENDED
FROM TIME TO TIME; AND BEING KNOWN AS 6195 SHILOH ROAD, ACCORDING TO THE PRESENT
SYSTEM OF NUMBERING IN FORSYTH COUNTY, GEORGIA.
State of
County of
On , 2001 before me, , personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
----------------------------
State of
County of
On , 2001 before me, , personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
----------------------------
State of
County of
On , 2001 before me, , personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
----------------------------
EXHIBIT "C"
TENANT FINISH PLANS
The detailed Finish Plans prepared for Tenant by Xxxxxxx Associates dated
December 21, 2001 (Project No. 01020), copies of which have been provided to and
reviewed and approved by Landlord and Tenant.
The following is the list of the Finish Plans:
A0.1 Cover
A0.2 Specifications
A0.3 Existing Plan
A1.1 Overall Floor Plan
A1.2 Partial Floor Plan
A1.3 Partial Floor Plan
A2.1 Partial Reflected Ceiling Plan
A2.2 Partial Reflected Ceiling Plan
A4.1 Partial Electrical Plan
A4.2 Partial Electrical Plan
A5.1 Details
A5.2 Millwork
FORM OF SNDA
-----------------------------------
RECORDING REQUESTED
BY AND WHEN
RECORDED RETURN TO:
, Esq.
--------------------
--------------------
--------------------
--------------------
-----------------------------------
SUBORDINATION,
NONDISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT RESULTS IN
YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER
PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
DEFINED TERMS
--------------------------------------------------------------------------------
EXECUTION DATE: DECEMBER , 2001
--------------------------------------------------------------------------------
BENEFICIARY & ADDRESS:
Metropolitan Life Insurance Company, a New York corporation
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President
Real Estate Investments
with a copy to:
Metropolitan Life Insurance Company
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Vice President
Real Estate Investments
--------------------------------------------------------------------------------
TENANT & ADDRESS:
If prior to the Lease "Commencement Date":
First Horizon Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If after the Lease "Commencement Date":
First Horizon Pharmaceutical Corporation
0000 Xxxxxx Xxxx
Xxxxx X
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
In either case, with additional copies to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx Xxxxxxx LLP
0000 Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
LANDLORD & ADDRESS:
Castle Investment Company, Inc., a Delaware corporation
c/o UBS Xxxxxxx, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------------------------------------------------
LOAN: A first mortgage loan in the original principal amount of $22,000,000.00
from Beneficiary to Landlord.
--------------------------------------------------------------------------------
NOTE: A Promissory Note executed by Landlord in favor of Beneficiary in the
amount of the Loan dated as of $22,000,000.00.
--------------------------------------------------------------------------------
DEED OF TRUST: A Deed to Secure Debt and Security Agreement dated as of ,
1999 executed by Landlord, to Beneficiary securing repayment of the Note to be
recorded in the records of the County in which the Property is located.
--------------------------------------------------------------------------------
LEASE AND LEASE DATE: The lease entered into by Landlord and Tenant dated as of
covering the Premises.
[Add amendments]
--------------------------------------------------------------------------------
PROPERTY: [Property Name]
[Street Address 1]
[City, State, Zip]
The Property is more particularly described on Exhibit A.
--------------------------------------------------------------------------------
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
(the "Agreement") is made by and among Tenant, Landlord, and Beneficiary and
affects the Property described in Exhibit A. Certain terms used in this
Agreement are defined in the Defined Terms. This Agreement is entered into as of
the Execution Date with reference to the following facts:
A. Landlord and Tenant have entered into the Lease
covering certain space in the improvements located in and upon the Property (the
"Premises").
B. Beneficiary has made or is making the Loan to
Landlord evidenced by the Note. The Note is secured, among other documents, by
the Deed of Trust.
C. Landlord, Tenant and Beneficiary all wish to
subordinate the Lease to the lien of the Deed of Trust.
D. Tenant has requested that Beneficiary recognize the
Lease, accept Tenant's attornment and agree not to disturb Tenant's rights in
the Premises pursuant to the Lease in the event Beneficiary forecloses the Deed
of Trust, or acquires the Property pursuant to the trustee's power of sale
contained in the Deed of Trust or receives a transfer of the Property by a
conveyance in 1ieu of foreclosure of the Property or otherwise acquires title to
the Property (collectively, a "Foreclosure Sale") but only if Tenant is not then
in default under the Lease and Tenant attorns to Beneficiary or a third party
purchaser at the Foreclosure Sale (a "Foreclosure Purchaser").
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Subordination. The Lease and the leasehold estate
created by the Lease and all of Tenant's rights under the Lease are and shall
remain subordinate to the Deed of Trust and the lien of the Deed of Trust, to
all rights of Beneficiary under the Deed of Trust and to all renewals,
amendments, modifications and extensions of the Deed of Trust.
2. Acknowledgments by Tenant and Landlord. Tenant agrees
that: (a) Tenant has notice that the Lease and the rent and all other sums due
under the Lease have been or are to be assigned to Beneficiary as security for
the Loan. In the event that Beneficiary notifies Tenant of a default under the
Deed of Trust and requests Tenant to pay its rent and all other sums due under
the Lease to Beneficiary, Tenant shall pay such sums directly to Beneficiary or
as Beneficiary at the same time Tenant sends such notice or statement to
Landlord, and (c) this Agreement satisfies any condition or requirement in the
Lease
3. Foreclosure and Sale. In the event of a Foreclosure
Sale,
(a) So long as Tenant complies with this
Agreement and is not in default under any of the provisions of the
Lease beyond any applicable cure period, the Lease shall continue in
full force and effect as a direct lease between Beneficiary and Tenant,
and Beneficiary will not disturb the possession of Tenant, subject to
this Agreement. To the extent that the Lease is extinguished as a
result of a Foreclosure Sale, a new lease shall automatically go into
effect upon the same provisions as contained in the Lease
between Landlord and Tenant, except as set forth in this Agreement, for
the unexpired term of the Lease. Tenant agrees to attorn to and accept
Beneficiary as landlord under the Lease and to be bound by and perform
all of the obligations imposed by the Lease, or, as the case may be,
under the new lease, in the event that the Lease is extinguished by a
Foreclosure Sale, and Beneficiary agrees to accept such attornment.
Upon Beneficiary's acquisition of title to the Property, Beneficiary
will perform all of the obligations imposed on the Landlord by the
Lease except as set forth in this Agreement; provided, however, that
Beneficiary shall not be: (i) liable for any act or omission of a prior
landlord (including Landlord); or (ii) subject to any offsets or
defenses that Tenant might have against any prior landlord (including
Landlord); or (iii) bound by any rent or additional rent which Tenant
might have paid in advance to any prior landlord (including Landlord)
for a period in excess of one month or by any security deposit,
cleaning deposit or other sum that Tenant may have paid in advance to
any prior landlord (including Landlord), unless such payment or deposit
has been transferred or credited to Beneficiary; or (v) bound by any
amendment, modification, assignment or termination of the Lease made
without the written consent of Beneficiary; (v) obligated or liable
with respect to any representations, warranties or indemnities
contained in the Lease, except for warranties as to ownership by
Beneficiary and quiet enjoyment from and after the date of the
Foreclosure Sale; or (vi) liable to Tenant or any other party for any
conflict between the provisions of the Lease and the provisions of any
other lease affecting the Property which is not entered into by
Beneficiary.
(b) Upon the written request of Beneficiary
after a Foreclosure Sale, the parties shall execute a lease of the
Premises upon the same provisions as contained in the Lease between
Landlord and Tenant, except as set forth in this Agreement, for the
unexpired term of the Lease.
(c) Notwithstanding any provisions of the Lease
to the contrary, from and after the date that Beneficiary acquires
title to the Property as a result of a Foreclosure Sale, (i)
Beneficiary will not be obligated to expend any monies to restore
casualty damage in excess of available insurance proceeds; (ii) Tenant
shall not have the right to make repairs and deduct the cost of such
repairs from the rent without a judicial determination that Beneficiary
is in default of its obligations under the Lease; (iii) Beneficiary
shall not be required to grant nondisturbance to any non-affiliated
subtenants of Tenant; (iv) in no event will Beneficiary be obligated to
indemnify Tenant, except where Beneficiary is in breach of its
obligations under the Lease or where Beneficiary has been actively
negligent in the performance of its obligations as landlord; and (v)
other than determination of fair market value, no disputes under the
Lease shall be subject to arbitration unless Beneficiary and Tenant
agree to submit a particular dispute to arbitration.
4. Subordination and Release of Purchase Options. Tenant
represents that it has no right or option of any nature to purchase the Property
or any portion of the Property or any interest in the Borrower. To the extent
Tenant has or acquires any such right or option, these, rights or options are
acknowledged to be subject and subordinate to the Mortgage and are waived and
released as to Beneficiary and any Foreclosure Purchaser.
5. Acknowledgment by Landlord. In the event of a default
under the Deed of Trust, at the election of Beneficiary, Tenant shall and is
directed to pay all rent and all other sums due under the Lease to Beneficiary.
6. Construction of Improvements. Beneficiary shall not
have any obligation or incur any liability with respect to the completion of the
tenant improvements located in the Premises at the commencement of the term of
the Lease.
7. Notice. All notices under this Agreement shall be
deemed to have been properly given if delivered by overnight courier service or
mailed by United States certified mail, with return receipt requested, postage
prepaid to the party receiving the notice at its address set forth in the
Defined Terms (or at such other address as shall be given in writing by such
party to the other parties) and shall be deemed complete upon receipt of refusal
of delivery.
8. Miscellaneous. Beneficiary shall not be subject to
any provision of the Lease that is inconsistent with this Agreement. Nothing
contained in this Agreement shall be construed to derogate from or in any way
impair or affect the lien or the provisions of the Deed of Trust. This Agreement
shall be governed by and construed in accordance with the laws of the State of
in which the Property is located.
9. Liability and Successors and Assigns. In the event
that Beneficiary acquires title to the Premises or the Property, Beneficiary
shall have no obligation nor incur any liability in an amount in excess of
$3,000,000 and Tenant's recourse against Beneficiary shall in no extent exceed
the amount of $3,000,000. This Agreement shall run with the land and shall inure
to the benefit of the parties and their respective successors and permitted
assigns including a Foreclosure Purchaser. If a Foreclosure Purchaser acquires
the Property or if Beneficiary assigns or transfers its interest in the Note and
Deed of Trust or the Property, all obligations and liabilities of Beneficiary
under this Agreement shall terminate and be the responsibility of the
Foreclosure Purchaser or other party to whom Beneficiary's interest is assigned
or transferred. The interest of Tenant under this Agreement may not be assigned
or transferred except in connection with an assignment of its interest in the
Lease which has been consented to by Beneficiary (including any affiliate
transfers for which Landlord's consent is not required under the Lease and
Beneficiary's consent is not required hereunder).
IN WITNESS WHEREOF, the parties have executed this
Subordination, Nondisturbance and Attornment Agreement as of the Execution Date.
IT IS RECOMMENDED THAT THE PARTIES CONSULT WITH THEIR ATTORNEYS PRIOR TO THE
EXECUTION OF THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT.
BENEFICIARY: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By
---------------------------------------
Its
--------------------------------------
TENANT: FIRST HORIZON PHARMACEUTICAL CORPORATION
a
----------------------------------------
By
---------------------------------------
Its
--------------------------------------
LANDLORD: CASTLE INVESTMENT COMPANY, INC.
a Delaware corporation
By
---------------------------------------
Its
--------------------------------------
EXHIBIT A
PROPERTY DESCRIPTION
TRACT 3 = 5.75 ACRES
ALL THAT TRACT OR PARCEL OF LAND LYING IN LAND XXXX 000 XXX 000, XX XXX 0XX
XXXXXXXX, 0XX SECTION, OF FORSYTH COUNTY, GEORGIA AND BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
TO FIND THE POINT OF BEGINNING COMMENCE AT THE INTERSECTION OF THE EASTERLY
RIGHT-OF-WAY OF SHILOH ROAD EAST (60' R/W) AND THE SOUTHERLY RIGHT-OF-WAY OF
SHILOH ROAD (60' R/W). THENCE PROCEED EASTERLY ALONG SAID RIGHT-OF-WAY OF SHILOH
ROAD A DISTANCE OF 1,034.89 FEET TO A P&K NAIL SET, SAID POINT BEING THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, THENCE NORTH 52 DEGREES
17 MINUTES 38 SECONDS EAST A DISTANCE OF 294.70 FEET TO A POINT; THENCE ALONG A
727.31 FOOT RADIUS CURVE TURNING TO THE LEFT AN ARC DISTANCE OF 246.18 FEET
(SAID CURVE BEING SUBTENDED BY A CHORD BEARING NORTH 42 DEGREES 36 MINUTES 22
SECONDS EAST A DISTANCE OF 245.01 FEET) TO A P&K NAIL; THENCE LEAVING SAID
XXXXX-XX-XXX XX XXXXXX XXXX, XXXXX 00 DEGREES 53 MINUTES 16 SECONDS EAST A
DISTANCE OF 107.74 FEET TO AN IRON PIN SET; THENCE SOUTH 36 DEGREES 43 MINUTES
42 SECONDS EAST A DISTANCE OF 363.13 FEET TO AN IRON PIN FOUND (1/2" REBAR);
THENCE SOUTH 52 DEGREES 55 MINUTES 56 SECONDS WEST A DISTANCE OF 605.89 FEET TO
AN IRON PIN FOUND (1/2" REBAR); THENCE NORTH 31 DEGREES 55 MINUTES 56 SECONDS
WEST A DISTANCE OF 419.59 FEET TO A P&K NAIL SET ON SAID RIGHT-OF-WAY OF SHILOH
ROAD (60' R/W) SAID POINT BEING THE TRUE POINT OF BEGINNING.
BEING TRACT 3 AND CONTAINING 250,470 SQUARE FEET OR 5.75 ACRES OF LAND, MORE OR
LESS, AS SHOWN ON ALTA/ACSM LAND TITLE SURVEY FOR METROPOLITAN LIFE INSURANCE
COMPANY, CASTLE INVESTMENT COMPANY, INC. AND FIRST AMERICAN TITLE INSURANCE
COMPANY, PREPARED BY LANDAIR SURVEYING, INC. AND BEARING THE SEAL OF XXX X.
XXXXX, GEORGIA R.L.S. NO. 2768, DATED 3-14-96 AND LAST REVISED 12-3-99 TOGETHER
WITH THE BENEFITS OF AND SUBJECT TO THE BURDENS OF DECLARATION OF PROTECTIVE
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE COMMERCIAL AREA OF THE
XXXXXXX AT BLUEGRASS BY THE XXXXXXX PARTNERS, L.L.C., DATED FEBRUARY 1, 1995,
/FILED FOR RECORD FEBRUARY 10, 1995 AND RECORDED IN DEED BOOK 828, PAGE 407,
AFORESAID RECORDS; AS AMENDED BY AMENDMENT TO DECLARATION OF PROTECTIVE
COVENANTS, RESTRICTIONS, AND EASEMENTS FOR THE COMMERCIAL AREA OF THE XXXXXXX AT
BLUEGRASS FOR THE XXXXXXX PARTNERS, L.L.C., DATED MARCH 1, 1995, FILED FOR
RECORD MARCH 10, 1995 AND RECORDED IN DEED BOOK 835, PAGE 700, AFORESAID
RECORDS; AS AMENDED BY SUPPLEMENTARY DECLARATION OF PROTECTIVE COVENANTS,
RESTRICTIONS, AND EASEMENTS FOR THE COMMERCIAL AREA OF THE XXXXXXX AT BLUEGRASS
FOR THE XXXXXXX PARTNERS, L.L.C., DATED JUNE 1, 1995, FILED JUNE 2, 1995 AND
RECORDED IN DEED BOOK 858, PAGE 256, AFORESAID RECORDS AND AS FURTHER AMENDED
FROM TIME TO TIME; AND BEING KNOWN AS 6195 SHILOH ROAD, ACCORDING TO THE PRESENT
SYSTEM OF NUMBERING IN FORSYTH COUNTY, GEORGIA.
State of
County of
On , 2001 before me, , personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
--------------------------
State of
County of
On , 2001 before me, , personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
--------------------------
State of
County of
On , 2001 before me, , personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
--------------------------
