Exhibit 10.25
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), is made and entered into this 7th
day of October, 2003, by and between XXXXXXX XXXXXXX XXXXXXX, BUCKHEAD
INVESTMENTS LLC, a Tennessee limited liability company, XXX X. XXXXXXX, XX, XXXX
XXXXXXX XXXXXXX AND XXXXX X. XXXXXXX (hereinafter collectively called
"Landlord"), and PINNACLE NATIONAL BANK, a nationally chartered bank
(hereinafter called "Tenant").
WITNESSETH:
1. PREMISES.
Landlord, for and in consideration of the rents, covenants and agreements
hereinafter mentioned and hereby agreed to be paid, kept and performed by
Tenant, hereby leases to Tenant, and Tenant hereby accepts and leases from
Landlord, the office building, other improvements and land (the "Premises")
situated at the corner of West End Avenue and 23rd Avenue North in Nashville,
Davidson County, Tennessee. The Premises is more particularly described on
Exhibit "A" attached hereto and incorporated herein by reference. The depiction
and location of the Premises as described on Exhibit "A" shall be subject to
such changes during the alterations to the Premises made by Tenant and Tenant's
contractors, as set forth more fully in Section 9 of this Lease. Upon such
changes being approved by Landlord pursuant to said Section 9, Exhibit "A" shall
be deemed to have been expressly modified and amended herein in accordance with
such changes.
TO HAVE AND TO HOLD the Premises unto Tenant for the term, and subject to
all the covenants, agreements, terms, provisions and conditions as herein set
forth.
2. TERM.
(a). Original Term. The commencement of the term of this Lease shall be
the date of delivery of possession of the Premises by the Landlord to the
Tenant, which shall be the date Landlord furnishes written notice to Tenant that
the current tenant of the Premises (the "Current Tenant") has vacated the
Premises (the "Commencement Date"), which date shall not be earlier than January
1, 2004, and the term of this Lease shall end, unless sooner terminated as
herein provided, on the day preceding the tenth (10th) anniversary of the
Commencement Date (the "Expiration Date"), both dates inclusive (the "Original
Term"). The Target Commencement Date is January 1, 2004. In the event the
Premises shall not be ready for possession by Tenant on the Target Commencement
Date for whatever reason, Landlord shall not be subject to any liability (other
than as provided in Section 4 hereof) for the failure to deliver possession on
said date, and this Lease shall remain in full force and effect. In such event,
the Original Term hereof shall begin on the first day the Premises are
thereafter ready for possession, with the Commencement Date and the Expiration
Date being extended accordingly. Landlord shall use its good faith efforts to
furnish possession to Tenant on the Target Commencement Date, provided, however,
Tenant understands and acknowledges that the lease with the Existing Tenant
contains an expiration date of May 31, 2004. If the Commencement Date shall be
other than the first day of a month, then the Original Term shall be extended
for the number of days from the Commencement Date through and including the last
day of the calendar month in which the Commencement Date occurs so that the last
day of the Original Term will normally fall on the last day of a calendar month.
(b). Option Term. Tenant shall have and is hereby given two (2) separate
options to renew and extend the Original Term of this Lease for a period of five
(5) years each (each of the five (5) year option periods shall hereinafter be
referred to separately as the "First Option Term" and the "Second Option Term,"
and collectively the First Option Term and the Second Option Term shall be
referred to as the "Option Terms"). The lease of the Premises during the Option
Terms shall be on the same terms and conditions as herein set forth except that
the rental to be paid during the period of the Option Terms shall be as
hereinafter specifically provided. Tenant shall not have the right to exercise
the First Option Term if: (1) Tenant is, or has been, in default beyond the
applicable cure period
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under any of the terms, provisions and covenants of the Lease at any time during
the Original Term, or (2) Tenant has assigned or sublet any or all of its
interest in this Lease. Tenant shall not have the right to exercise the Second
Option Term if: (1) Tenant did not exercise the First Option Term, or (2) Tenant
is, or has been, in default beyond the applicable cure period under any of the
terms, provisions and covenants of the Lease at any time during the Original
Term or the First Option Term, or (3) Tenant has assigned or sublet any or all
of its interest in this Lease. In order to exercise the Option Terms, Tenant
shall give Landlord written notice of its election at least twelve (12) months
prior to the expiration of the Original Term or the First Option Term, whichever
is applicable. Upon the furnishing of such notice, this Lease shall thereupon be
so extended and renewed without the execution of any other document. Failure by
Tenant to notify Landlord of Tenant's exercise of any option herein granted in
the manner and within the time period set forth herein shall constitute a waiver
of said option to renew, and all subsequent options to renew. All references in
this instrument to the term of this Lease shall mean and include the Original
Term and the Option Terms.
3. RENT.
Tenant shall, without deduction, abatement or setoff of any nature
whatsoever, pay to Landlord during the first year of the Term beginning on the
Commencement Date (as defined herein) of this Lease as rent for the Premises an
amount equal to $140,000 per year, or $11,666.67 per month. The rent shall
escalate each year thereafter in the Original Term by two percent (2%) annually.
Rent in the first year of the First Option Term shall equal the greater
of: (1) a two percent (2%) increase over the rent paid in year ten (10) of the
Original Term, or (2) $140,000 multiplied by the percentage increase in the
Consumer Price Index for all items for all Urban Consumers (CPI-U) as published
by the Bureau of Labor Statistics for the period from January 1, 2004 to the
month preceding the last month of the Original Term. Rent for each successive
year during the First Option Term shall escalate by two percent (2%) annually.
Rent in the first year of the Second Option Term shall equal the greater
of: (1) a two percent (2%) increase over the rent paid in year five (5) of the
First Option Term, or (2) $140,000 multiplied by the percentage increase in the
Consumer Price Index for all items for all Urban Consumers (CPI-U) as published
by the Bureau of Labor Statistics for the period from January 1, 2004 to the
month preceding the last month of the First Option Term. Rent for each
successive year during the Second Option Term shall escalate by two percent (2%)
annually.
Rent is payable in equal monthly installments, in advance and without
demand on the first day of each and every month during the term of this Lease
to:
(1) one third of each monthly rent payment shall be paid to Xxxxxxx
Xxxxxxx Xxxxxxx, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000;
(2) one third of each monthly rent payment shall be paid to Buckhead
Investments LLC, 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx, 00000;
(3) one ninth of each monthly rent payment shall be paid to Xxx Xxxxxxx,
XX, 00 Xxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000;
(4) one ninth of each monthly rent payment shall be paid to Xxxx Xxxxxxx
Xxxxxxx, 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000;
(5) one ninth of each monthly rent payment shall be paid to Xxxxx X.
Xxxxxxx, c/o Xxxx Xxxxxxx Xxxxxxx, 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx
00000;
(or such other address furnished in writing by Tenant to Landlord following
execution of this Lease).
Tenant shall pay the first monthly installment of rent on the execution of
this Lease. In the event that Landlord shall not have received any payment due
hereunder within ten (10) days of the date due, Tenant shall pay a late payment
fee equal to five percent (5%) of the amount not paid. In the event that the
Original Term of this Lease
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shall commence on a date other than on the first day of a calendar month, the
Original Term shall be extended as provided in Section 2 and Tenant shall pay
pro rated rent for such period based on the number of days involved multiplied
by the then current rent, which payment, together with the rent for the
immediately succeeding full calendar month, shall be due and payable on the
Commencement Date of the Original Term.
4. RENT ABATEMENT.
Landlord and Tenant understand that the date of delivery of possession of
the Premises and the corresponding commencement of this Lease is subject to the
Current Tenant vacating the Premises, as described more fully in Section 2 of
this Lease. For each day in which possession is delayed between the Target
Commencement Date and the Commencement Date (both as defined in Section 2),
Tenant shall be entitled to free rent in the amount of $537 per day (the "Daily
Free Rent Abatement Amount"). For example, if the Commencement Date of this
Lease is January 31, 2004, Tenant shall be entitled to free rent of $16,647 (31
days times $537 per day) and Tenant, instead of paying the fixed rent of
$11,666.67 for each of the months of February and March of 2004, would pay no
rent for the month of February 2004, would pay rent of $6687.34 for the month of
March 2004, and would pay rent of $11,666.67 for the month of April 2004 and
continue to pay the rent set forth in this Lease thereafter. Notwithstanding the
foregoing, if this Lease is not executed by both Landlord and Tenant on or
before Tuesday, September 30, 2003, despite the good faith efforts of both
parties in the negotiation and execution of the Lease, the Daily Free Rent
Abatement Amount shall be reduced by each day following September 30, 2003 until
the Lease is executed by Landlord and Tenant. For example, if the Lease is fully
executed on October 15, 2003 (15 days after September 30, 2003), the Daily Free
Rent Abatement Amount to be calculated by the parties for the period of time
between the Target Commencement Date and the Commencement Date, as provided in
this Section 4, shall be reduced by $8,055.00 (or 15 days times $537.00 per
day).
5. NET LEASE.
This Lease is intended to be, and shall be construed as, an absolutely net
lease, whereby under all circumstances and conditions (whether now or hereafter
existing or within the contemplation of the parties) the rent payable to
Landlord shall be a completely net return to Landlord throughout the term of
this Lease; and Tenant shall pay, and shall indemnify, defend and hold harmless
Landlord from and against any and all claims, losses, damages, impositions,
offsets, expenses, costs, liabilities, obligations and charges of any kind
whatsoever (including, without limitation, reasonable attorney's fees) which
shall arise or be incurred, or shall become due, during the Original Term and
any Option Terms of this Lease, with respect to or in connection with, the
Premises and/or the maintenance, repair, rebuilding, use or occupation thereof,
or any portion thereof. Landlord shall not be required to provide any services
or do any act in connection with the Premises, and the rent under this Lease
shall be paid to Landlord without any claim on the part of Tenant for diminution
or abatement, and the fact that Tenant's use and occupancy of the Premises shall
be disturbed or prevented by any cause whatsoever shall not in any way suspend,
xxxxx or reduce the rent to be paid under this Lease, or otherwise affect
Tenant's obligations under this Lease.
6. UTILITIES.
(a). Charges. Tenant agrees to pay all charges for all utilities used,
rendered or supplied upon or in connection with the Premises. Tenant shall make
application for and arrange for and pay or cause to be paid all charges for
electricity, gas, water, telephone and any other utility services used, rendered
or supplied upon or in connection with the Premises and shall indemnify and save
harmless Landlord against any liability or charges on account thereof.
(b). Liability. Landlord shall not be liable to Tenant for any damage
should any utility service be interrupted because of repairs, renewals,
improvements, alterations, strikes, lockouts, accidents, or any other cause. Any
such interruption of service shall never be deemed an eviction or disturbance of
Tenant's use and possession of the Premises or any part thereof or relieve
Tenant from performance of Tenant's obligations under this Lease.
7. ASSIGNMENT AND SUBLETTING.
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(a). No Assignment. Tenant shall not, without the prior written consent of
Landlord, not to be unreasonably withheld, assign this Lease or any interest
therein or sublet the Premises, or any part thereof, or permit the use of the
Premises by any party other than Tenant, and in the case of any such assignment
or subletting to which Landlord shall have consented, a copy of the instrument
of assignment or subletting shall be delivered to Landlord promptly upon the
making of such assignment or upon such subletting. The sale, issuance or
transfer, at any time, of fifty percent (50%) or more of the voting capital
stock of Tenant or Pinnacle Financial Partners, Inc. shall be deemed to be an
assignment of this Lease within the meaning of this Section, unless such sale
issuance or transfer is to an entity whose assets are equal to or greater than
Tenant and Pinnacle Financial Partners, Inc. as of the Commencement Date of this
Lease. Consent to any assignment, subrent or sublease shall not be deemed to be
a consent to any subsequent assignment, subrent or sublease; and all subsequent
assignments, subrentals or subleases shall be made likewise only on the prior
written consent of Landlord. If Landlord shall consent to an assignment, the
assignee of Tenant shall, in writing, assume the obligations of Tenant
hereunder, so as to become directly liable to Landlord for all such obligations.
Such assumption shall be incorporated in the instrument of assignment, a copy of
which shall be delivered to Landlord. No sublease, subrental or assignment by
Tenant shall relieve Tenant of any liability hereunder. In the event that
Landlord approves Tenant's assignment or subletting of this Lease, Tenant shall
pay to Landlord: (1) a fee of one thousand dollars ($1000.00) for the processing
by Landlord of the necessary documents in connection with such transaction and
(2) fifty percent (50%) of any monies received by Tenant as a result of the
assignment or subletting which are in excess of the rent payable by Tenant
hereunder.
(b). Basis for Withholding Consent. Without limiting the other instances
in which it may be reasonable for Landlord to withhold its consent, Landlord and
Tenant acknowledge that it shall be reasonable for Landlord to withhold its
consent in the following instances: (1) if, at the time consent is requested or
at any time prior to the granting of consent, Tenant is or has been in default
under this Lease; (2) if, in Landlord's reasonable judgment, the quality or
character of the business to be conducted in the Premises is or may be adversely
affected during the term of this Lease as a result of the transaction for which
consent is requested; (3) if, in Landlord's reasonable judgment, the financial
worth of a proposed assignee or sublessee does not meet the credit standards
required by Landlord, or the experience of the proposed transferee, assignee,
sublessee, or licensee in the type of business conducted in the Premises is not
at least equal to that of Tenant, or its reputation for business integrity and
quality of operations is not excellent; and (4) in the case of a subletting, if
the subletting is of less than the entire Premises.
(c). Landlord's Assignment. Landlord, at any time, and from time to time,
may make an assignment of its interest in this Lease, and, in the event of such
assignment and the assumption by the assignee of the covenants and agreements to
be performed by Landlord herein, Landlord and its successors and assigns (other
than the assignee of this Lease) shall be released from any and all liability
hereunder.
8. CONDITION OF PREMISES.
Landlord to its knowledge upon reasonable investigation represents and
warrants to Tenant that it has no knowledge of any Hazardous Substances (as
defined in Section 29) in, on or under the Premises. Landlord further represents
and warrants to Tenant that it has good title to the Premises and said Premises
are not encumbered by any mortgage liens. As to all other matters, Tenant has
inspected the Premises and accepts them WITH ALL FAULTS and in their present "AS
IS" condition. Other than as set forth above, Landlord has made no statement,
representation or warranty regarding the condition of the Premises. As a
material consideration for Landlord to enter into this Lease, Tenant releases
and discharges Landlord from any and all duty or obligation to provide to Tenant
any notice or disclosure of any defect, latent or otherwise, in the Premises,
other than as set forth above.
9. TENANT'S ALTERATIONS.
(a). Landlord Approval. Tenant shall make no alterations, installations,
additions or improvements in or to the Premises throughout the Original Term and
the Option Terms without Landlord's prior written consent. Landlord's consent
and approval required by the preceding sentence shall not be unreasonably
withheld or delayed. Landlord's consent shall be deemed given if Landlord has
not responded to such request within seven (7) business days following receipt
of Tenant's written request for approval. Provided however, Landlord has
approved in advance the conceptual drawings and construction work described on
attached Exhibit "B" (the "Initial Bank Improvements"). The Initial Bank
Improvements and all subsequent work, alterations, installations, additions and
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improvements shall be done at Tenant's sole cost and expense. Prior to
commencement of such work, Tenant shall obtain and deliver to Landlord written,
unconditional waivers of mechanic's or other liens on the real property (to the
extent permitted by law) in which the Premises are located, signed by all
architects, engineers, contractors, mechanics and designers to become involved
in such work. Tenant shall also provide at Landlord's request such financial
security as Landlord shall require to guarantee completion of Tenant's work and
payment of all contractors and suppliers utilized in connection therewith.
Any Tenant's work in the Premises, other than the Initial Bank
Improvements, shall be effected solely in accordance with plans and
specifications first approved in writing by Landlord. Tenant shall reimburse
Landlord promptly upon demand for any costs and expenses incurred by Landlord in
connection with Landlord's review of such Tenant's plans and specifications.
Landlord will not unreasonably withhold or delay its consent to requests for
alterations, additions and improvements (provided they will not materially
adversely affect the Premises' structure, electrical, HVAC, plumbing or
mechanical systems).
Any such approved alterations and improvements (including the Initial Bank
Improvements) shall be performed in accordance with the foregoing and the
following provisions of this Section:
1. All work shall be done in a good and workmanlike manner.
2. Tenant covenants and agrees to pay to its contractor, as the work
progresses, the entire cost of supplying the materials and performing the
work shown on Tenant's approved plans and specifications.
3. All such alterations shall be effected in compliance with all
applicable laws, ordinances, rules and regulations of governmental bodies
having or asserting jurisdiction in the Premises and in accordance with
Landlord's rules and regulations, as from time to time promulgated, with
respect to alterations.
4. With respect to the Initial Bank Improvements, Tenant shall furnish to
Landlord a complete set of the plans and specifications when available.
The work by Tenant and Tenant's contractor to complete the Initial Bank
Improvements shall not be materially different than as shown on the
description of the Initial Bank Improvements attached as Exhibit "B"
hereto.
5. During the progress of the work to be done by Tenant, all work shall be
subject to inspection by representatives of Landlord who shall be
permitted access and the opportunity to inspect, at all reasonable times,
but this provision shall not in any way whatsoever create any obligation
on Landlord to conduct such an inspection.
6. Prior to commencement of any work, Tenant shall furnish to Landlord
certificates from its general contractor evidencing the existence of:
(i) workmen's compensation insurance covering all persons employed
for such work; and
(ii) comprehensive general liability and property insurance naming
Landlord, its designees and Tenant as insureds, with coverage of at
least Five Million ($5,000,000) Dollars single limit.
7. Upon completion of any work, including the Initial Bank Improvements,
Tenant shall provide to Landlord a complete set of as-built plans for the
Premises.
(b). No Landlord Liability. Notice is hereby given that Landlord shall not
be liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's or other lien for any such labor or materials
shall attach to or affect the reversion or other estate or interest of Landlord
in and to the Premises.
(c). Mechanic's Liens. Any mechanic's lien filed against the Premises for
work claimed to have been done for or materials claimed to have been furnished
to Tenant shall be discharged by Tenant at its expense within thirty (30) days
after such filing, by payment, filing of the bond required by law or otherwise.
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(d). Fixtures. All alterations, installation, additions and improvements
made and installed by Tenant, or at Tenant's expense, upon or in the Premises
which are of a permanent nature and which cannot be removed without damage to
the Premises shall become and be the property of Landlord, and shall remain upon
and be surrendered with the Premises as a part thereof at the end of the term of
the Lease, except that Landlord shall have the right and privilege at any time
up to six (6) months prior to the expiration of the term of this Lease to serve
notice upon Tenant that any of such alterations, installations, additions and
improvements shall be removed and, in the event of service of such notice,
Tenant will, at Tenant's own cost and expense, remove the same in accordance
with such request, and restore the Premises to its original condition, ordinary
wear and tear excepted.
(e). Trade Fixtures. Where furnished by or at the expense of Tenant, all
furniture, furnishings and trade fixtures, and any other movable property shall
remain the property of Tenant which may at its option remove all or any part
thereof at any time prior to the expiration of the term of this Lease. In case
Tenant shall decide not to remove any part of such property, Tenant shall notify
Landlord in writing no less than three (3) months prior to the expiration of the
term of this Lease, specifying the items of property which it has decided not to
remove. If, within thirty (30) days after the service of such notice, Landlord
shall request Tenant to remove any of the said property, Tenant shall at its
expense remove the same in accordance with such request. As to such property
which Landlord does not request Tenant to remove, the same shall be, if left by
Tenant, deemed abandoned by Tenant and thereupon the same shall become the
property of Landlord.
(f). Abandoned Property. If any alterations, installations, additions,
improvements or other property which Tenant shall have the right to remove or be
requested by Landlord to remove as provided herein are not removed on or prior
to the expiration of the term of this Lease, Landlord shall have the right to
remove the property and to dispose of the same without accountability to Tenant
and at the sole cost and expense of Tenant. In case of any damage to the
Premises resulting from the removal of the property, Tenant shall repair such
damage or, in default thereof, shall reimburse Landlord for Landlord's cost in
repairing such damage. This obligation shall survive any termination of this
Lease.
10. REPAIR.
Tenant shall keep and maintain the interior and exterior of the Premises
in good condition and repair, excepting only reasonable wear and tear. Such
repair and maintenance responsibilities of Tenant shall include, but not be
limited to, the roof and outside walls, including all of the structural
components of the Premises, the plumbing, electrical, wiring, heating,
ventilating and air conditioning systems, all windows and doors, both interior
and exterior, replacement of any plate glass which may be damaged or broken,
floor surfaces and coverings, and the repair and maintenance of the parking area
that is included in the Premises. Notwithstanding any other provision hereof,
Landlord shall not be liable or responsible for any loss or damages to the
contents of the Premises, including, without limitation, Tenant's inventory or
equipment or any other property of Tenant or its customers, which may be
occasioned by or result from the leaking, overflowing or rising of water through
the roof or any other means of entry, or without limitation, the leaking or
discharge of water or other substance from any plumbing or fire-extinguishing
fixtures or equipment, or from any electrical or power failure or malfunction.
Landlord shall have no obligation to perform any repairs or other maintenance of
the Premises during the term of this Lease.
11. USE AND OPERATION.
(a). Use. The Premises shall during the term of this Lease be used and
occupied by Tenant, subject to the conditions herein contained, for the purpose
of operating a branch bank facility which includes a drive through area, and any
other office use. The Premises may not be used for any other purpose without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld.
(b). Exterior Areas. Tenant shall keep the outside areas immediately
adjoining the Premises clean and free from ice and snow, and shall refrain from
placing or permitting any rubbish, obstructions or merchandise in such areas.
(c). Garbage. Tenant shall store all trash and garbage in adequate
containers maintained in a neat and clean condition and in accordance with all
applicable codes and regulations, located where Landlord shall from time
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to time designate, so as not to create or permit any health or fire hazard, and
Tenant shall arrange for the regular removal thereof at Tenant's expense.
12. RESTRICTIONS ON USE.
Tenant shall not use, occupy or permit the Premises or any part thereof to
be used or occupied for any business, use or purpose deemed by Landlord to be
disreputable, disorderly or extra-hazardous, nor in such manner as to disturb
the peaceful and quiet occupancy of adjoining properties or constitute a
nuisance of any kind; nor shall Tenant allow, permit or suffer any noise, smoke
or odor to escape from the Premises in a manner which will disturb other
occupants adjacent properties. Tenant covenants and agrees that it will, at its
expense, comply with all laws, ordinances, orders, directions, requirements,
rules and regulations of all governmental authorities (including federal, state,
county and municipal authorities), now in force or which may hereafter be in
force, which shall impose any duty upon Landlord or Tenant with respect to the
use, occupancy or alteration of the Premises, and of all insurance bodies
applicable to the Premises or to the Tenant's use or occupancy thereof.
Landlord shall not be liable to Tenant for any damage due to any
interruption of utility service, whether due to any interruption of utility
service, whether from repairs, accidents, strikes, or any other cause, nor shall
the same be construed as an eviction of Tenant, work an abatement of rent, or
relieve Tenant from the operation of any covenant or agreement of this Lease.
13. SIGNS.
No sign, fixture, advertisement or notice shall be displayed, inscribed,
painted or affixed by Tenant on any part of the outside of the Premises unless:
(i) such sign shall conform to all applicable laws, ordinances and governmental
regulations, and (ii) Tenant shall have obtained Landlord's prior written
approval of the size, lighting (if applicable) and location of all such signs.
Provided however, Landlord has approved the signage described on attached
Exhibit "B". At the expiration or sooner termination of this Lease, Tenant shall
remove all signs installed or placed on or in the Premises by it and shall
repair any damage caused by such removal. Tenant shall not erect or place, or
permit to be erected or placed, on the Premises any sign, or other form of
advertising fixture or equipment, other than signs relating to the principal
business conducted by Tenant in the Premises.
14. CASUALTY.
In the event that the Premises are damaged by fire or other casualty
during the term hereof, and Tenant shall pay the deductible on the property
insurance required to be carried by Tenant on the Premises, if any, and the
Premises shall be repaired or rebuilt to the same condition that existed prior
to such casualty as speedily as practical under the circumstances at the expense
of Tenant (or Landlord, as loss payee under such policy). All repairs required
to be made shall be accomplished with reasonable promptness subject to
unavoidable delays. The rent shall xxxxx in proportion to the portion of the
Premises that is unfit. If the Premises should be damaged by fire or other
casualty and the Premises cannot reasonably be repaired or restored as
determined by a mutually agreeable architect within twelve (12) months from the
date of the determination, Landlord or Tenant may, at either's option, terminate
this Lease by notice in writing to the other within sixty (60) days after the
date of casualty. In the event of such termination, Landlord shall retain the
amount of the insurance proceeds, Tenant shall pay the amount of any deductible
under the property insurance policy
15. LIABILITY.
The covenants and undertakings herein made and entered into by Landlord
are solely for the purpose of binding Landlord to the extent specifically of
Landlord's interest in the Premises only, and it is expressly agreed by the
parties hereto and by all persons claiming by, through or under them that no
personal liability is assumed by or shall at any time arise or be asserted or
enforced against Landlord, its successors and assigns, on account of the
covenants herein contained, either express or implied, all such liability, if
any, being expressly waived and released by Tenant and by any and all persons
claiming by, through or under Tenant, and that recourse hereunder, if any, by
Tenant, its successors or assigns, shall be limited specifically and exclusively
to Landlord's interest in the Premises.
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16. INSURANCE.
(a) Types of Coverages. Tenant shall at all times during the term of this
Lease, at its sole cost and expense, maintain in full force and effect the
following insurance in standard form generally in use in the State of Tennessee
with insurance companies satisfactory to Landlord and authorized to do business
in Tennessee, which insurance shall name Landlord as an additional insured for
the full amount of the insurance herein required;
(i) Fire and Extended Coverage insurance policy with special causes of
loss naming Landlord as loss payee as respects building ownership insuring
against loss or damage by fire or other casualty in an amount not less
than one hundred percent (100%) of the replacement cost of the Premises.
(ii) Comprehensive public liability insurance and property damage
insurance against all claims for bodily injury, death or property damage
occurring in or about the Premises and the property of which the Premises
is a part in a combined single limit not less than One Million Dollars
($1,000,000) with a Five Million Dollar ($5,000,000) umbrella liability
policy.
(iii) Personal Property Insurance covering Tenant's trade fixtures,
furniture, equipment and other improvements or installations providing
protection to the extent of not less than eighty (80%) percent of the
insurable value thereof against all casualties.
(iv) Business Income Coverage for the loss of rents during the first
twelve (12) months of reconstruction necessitated by the occurrence of any
of the hazards covered by the fire and extended coverage outlined above.
(b). Copies of Policies. Tenant shall, as of the Commencement Date of the
term of this Lease and thereafter not less than thirty (30) days prior to the
expiration of any insurance policy required hereunder, furnish Landlord with a
copy or certificate of said policy. All policies required hereunder shall
contain an endorsement providing that the insurer will not cancel or materially
change the coverage of said policy without endeavoring to give prior written
notice to Landlord. If Tenant fails to provide Landlord with insurance policy
copies or certificates evidencing the insurance coverages required above, then
Landlord shall have the right to obtain the required insurance coverage and the
Tenant shall pay the premiums therefor upon demand.
(c). Waiver of Subrogation. Tenant does hereby waive all rights of
recovery, if any, against Landlord for damage to, or destruction of, the
Premises or any of Tenant's personal property in the event such damage or
destruction is caused by fire or other casualty which may be covered by a
standard fire and extended coverage insurance policy.
17. TAXES.
(a). Personal Property Taxes. Tenant shall pay all taxes levied on
personal property, including fixtures and equipment, owned by Tenant and
situated on or installed in the Premises.
(b). Real Estate Taxes. Landlord shall pay all taxes and assessments
levied on the Premises including any increases during the Term whether as the
result of improvements made to the Premises or not.
(c). Tax on Rents. The parties recognize that, as of the date hereof, the
laws of Tennessee and of the United States do not provide for the imposition of
any tax specifically on rents payable under leases of real property of the type
here involved. Nevertheless, if at any time during the term of this Lease, a tax
on the rents payable hereunder is imposed on, assessed against, or made payable
by Lessor (including, without limitation any type of sales or similar excise
tax, but excluding any general income tax) by any governmental entity or taxing
authority, the amount of any such tax shall immediately be deemed to be
additional rent payable by Tenant to Landlord on the same dates and together
with the payments of the rents due hereunder.
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18. CONDEMNATION.
(a). Total Taking, If the whole of the Premises shall be taken for any
public or quasi-public use under any statute or by right of eminent domain, or
by purchase under threat of condemnation, then this Lease shall automatically
terminate as of the date that title shall be taken.
(b). Partial Taking If such material part of the Premises shall be taken
for any quasi or quasi public use under any statute or by right of eminent
domain, or by purchase under threat of condemnation, such that Tenant's business
operations are materially adversely affected, then Tenant, upon ninety (90) days
notice to Landlord, may terminate this Lease.
(c). Award. In any event, all compensation awarded or paid upon such a
total or partial taking, except for compensation paid on account of Tenant's
fixtures or moving expenses, shall be paid to and be the property of Landlord
without reduction for the value of Tenant's estate, Tenant hereby assigning any
such award to Landlord.
19. DEFAULT.
(a). Events of Default. The happening of any of the following during the
term of this Lease shall be an "Event of Default":
(i). If Tenant shall not pay to Landlord any installment of rent or any
other sum herein specified to be paid by Tenant and such nonpayment shall
continue for seven (7) days after such Landlord shall have given notice
thereof to Tenant;
(ii). If Tenant shall be repeatedly late in the payment of rent to the
same Landlord or any other sum herein specified to be paid by Tenant (for
the purposes of this provision, "repeatedly" shall mean two (2) times in
any twelve (12) month period);
(iii). If Tenant shall default in the observance or performance of any
other of Tenant's covenants, agreements or other obligations hereunder and
such default shall not be cured within fifteen (15) days after Landlord
shall have given Tenant notice specifying the default, or, in the event
that the curing of such default cannot reasonably be accomplished within
fifteen (15) days, then if Tenant shall fail to promptly commence and
diligently proceed with the curing thereof;
(iv). If Tenant shall assign this Lease or sublet all or any part of the
Premises in violation of the terms of this Lease;
(v). If Tenant files a voluntary petition under Chapter 7 of the federal
bankruptcy act (or any successor provision), or if Tenant files a
voluntary petition under Chapter 11 of the federal bankruptcy act (or any
successor provision) and does not affirm or reject this Lease within sixty
(60) days from the date of such filing, or if Tenant is finally
adjudicated a bankrupt or insolvent, or if an involuntary petition in
bankruptcy is filed against Tenant and such petition is not dismissed
within sixty (60) days from the date of such filing;
(vi). If a receiver is appointed for, or execution is levied upon, all or
substantially all of Tenant's business or assets or Tenant's leasehold
interest hereunder; or
(vii). If Tenant shall make a general assignment for the benefit of its
creditors.
(b). Landlord's Options. Upon the happening of any Event of Default,
Landlord (in addition to and not in limitation of any other remedy permitted by
law or under this Lease) may, at its option, do any of the following:
(i). Landlord may terminate the term of this Lease, in which event
Landlord shall be entitled to recover from Tenant all sums due and payable
by Tenant up to the date of such termination together with any direct, but
not consequential, damages which shall accrue by any reason of Tenant's
default hereunder, which liability of Tenant shall survive any termination
of this Lease. Upon any termination of the term
Page 91
hereof, Tenant shall promptly vacate the Premises and surrender possession
thereof to Landlord; and in such event, Landlord may enter upon the
Premises and repossess the same, and may expel or remove Tenant and any
others who may be occupying the Premises, and may remove any and all
property therefrom, using such force as may be necessary, without
relinquishing Landlord's right to the rents due hereunder or any other
damages or right given to Landlord hereunder or by operation of law.
Except as herein expressly provided, Tenant shall not be entitled to and
hereby waives service of any demand for possession of the Premises or for
the performance of Tenant's obligations hereunder.
(ii). Landlord may elect to terminate Tenant's right to possession of the
Premises without terminating the term of this Lease, in which event
Landlord, at its option, may enter upon the Premises and remove Tenant's
property and any other evidence of tenancy and take and hold possession
thereof, without releasing Tenant in whole or in part from its obligation
to pay all rent herein provided for the full term of this Lease, and in
such case Tenant shall continue to pay to Landlord the entire amount of
the rent and other sums payable by Tenant hereunder for the remainder of
the term hereof. After entry and possession by Landlord without
terminating the term of this Lease, Landlord may relet the Premises, or
any part thereof, for the account of Tenant, to such person or party, for
such rent, for such time (which may be less than or exceed the remaining
term of this Lease) and upon such terms as Landlord in its sole discretion
may determine. If any rental collected by Landlord upon such reletting for
Tenant's account is not sufficient to pay monthly the full amount of the
rent provided for in this Lease and not theretofore paid by Tenant, Tenant
shall pay any deficiency to Landlord. If any rental collected by Landlord
upon such reletting for Tenant's account exceeds the amount of the rent
provided for in the Lease, after consideration of the Landlord's costs,
expenses of reletting and of any repairs or alterations or remodeling made
in connection with any such reletting, Landlord shall, at the end of the
stated term hereof, apply any surplus to the extent thereof to the
discharge of any obligation of Tenant to Landlord under the terms of this
Lease. Landlord shall have the right from time to time to begin and
maintain successive legal proceedings against Tenant for the recovery of
such deficiency or damages or for a sum equal to any installment or
installments of rent and any other sums required to be paid hereunder and
to recover the same from Tenant, which liability of Tenant shall survive
the institution of any action to secure possession of the Premises.
(c). Landlord's Right to Perform Obligations of Tenant. If Tenant shall
fail to make any payment of taxes or any insurance premium or any other payment
required hereunder or shall fail to provide evidence of insurance coverage as
herein provided or shall fail to make any required repair or restoration or
shall default in the performance of any other covenant, agreement, term,
provision, or condition herein contained, then Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment or otherwise remedy such default for the account and at the expense of
Tenant, without notice in the case of an emergency, or, in any other case, if
Tenant shall fail to make such payment or remedy such default with all
reasonable diligence after Landlord shall have given Tenant ten (10) days notice
of such default.
(d). Payments by Landlord. All costs and expenses incurred by Landlord in
connection with any default by Tenant referred to above and all costs and
expenses, including reasonable attorney's fees, incurred by Landlord in
enforcing or attempting to enforce any right against Tenant under or in
connection with this Lease, as well as all costs for any property, material,
labor or services provided, furnished or rendered (or caused to be) by Landlord
with respect to the Premises for the account of Tenant, together with interest
thereon at the highest lawful rate from the respective dates of Landlord's
making of each such payment or incurring of such cost or expense, shall become
additional rent due and payable by Tenant and shall be paid immediately on
demand by Landlord.
(e). Cumulative Remedies. Landlord may obtain injunctive relief or other
judicial restraint of any breach or threatened breach of any covenant,
agreement, term, provision or other condition of this Lease. The mention herein
of any particular remedy shall not preclude Landlord from any other remedy it
might have either at law or in equity. All rights and remedies of Landlord shall
be distinct, separate and cumulative, and no one of them, whether exercised or
not, shall be deemed to be in exclusion of any other.
Page 92
20. WAIVER.
No waiver by Landlord of any violation or breach of any of the terms,
covenants, conditions or agreements of this lease shall be deemed or construed
to constitute a waiver of any other violation or breach of any of the terms,
covenants, conditions or agreements hereof; and no provision of this lease shall
be deemed to have been waived by Landlord unless such waiver shall be in writing
signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installments of rent herein stipulated shall be deemed
to be other than on account of the earliest stipulated rent nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment of rent be deemed an accord or satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy provided in this lease.
21. HOLDOVER.
Notwithstanding any provision of law or any judicial decision to the
contrary, no notice shall be required to terminate the term of this Lease as
herein provided, and the term of this Lease shall expire on the termination date
herein mentioned without notice being required from either party. In the event
that Tenant or any party holding under Tenant shall holdover the Premises beyond
the expiration of the term of this Lease, whether by limitation or forfeiture,
such party shall pay two hundred percent (200%) of the then payable rent
hereunder during such holdover period; provided, however, that if Tenant shall
remain in possession of the Premises beyond the expiration of the term with the
express consent of Landlord, then such possession shall be as a month-to month
tenant at the rent mutually agreed to between the parties, and the provisions of
this Lease shall be applicable.
22. ESTOPPEL CERTIFICATES; SUBORDINATION.
Tenant shall execute, acknowledge and deliver to Landlord, promptly upon
request, from time to time during this Lease: (1) a certificate certifying (a)
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that this Lease is in full force and effect, as modified,
and stating the modifications), (b) the dates, if any, to which the rent and
other sums payable hereunder have been paid, and (c) that no notice has been
received by Landlord of any default which has not been cured, except as to
defaults specified in said certificate; which such certificate may be relied
upon by any prospective purchaser of mortgagee of the Premises or any interest
therein or any part thereof; and (2) an agreement in such form as Landlord may
reasonably require by which Tenant subordinates Tenant's interest in and under
this Lease and the Premises to any lender or proposed lender who will be
obtaining a mortgage lien encumbering the Premises and agreeing to attorn to
such lender or a purchaser at a foreclosure sale by reason of the foreclosure of
such mortgage lien or to any grantee of a deed in lieu of foreclosure, provided
that any such subordination agreement contains a customary nondisturbance
provision.
23. NOTICES.
Any notice to be given by either party to the other pursuant to the
provisions of this lease shall be in writing and shall be deemed to be duly
given if delivered personally or mailed by registered or certified mail, return
receipt requested, addressed to Landlord at Xxxxxxx Xxxxxxx Xxxxxxx, 0000
Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000, with copy to Xxxx Xxxxxxx Xxxxxxx,
Esq., Xxxxxx Xxxxxxxxxxx Xxxxx & Xxxxxx, P.A., 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxxxxxx 00000-0000, and addressed to Tenant at the Premises.
Page 93
24. ENTIRE AGREEMENT.
Landlord and Tenant agree that this Lease contains the entire agreement
between them and shall not be modified in any manner except by an instrument in
writing signed by each of them.
25. HEADINGS.
The headings as to contents of particular paragraphs herein are inserted
for convenience only and shall not be considered to be part of this lease or in
any way to modify, amend or affect the provisions hereof.
26. TIME OF ESSENCE.
Time is of the essence of this Lease and all its provisions.
27. ATTORNEY FEES AND COSTS.
Upon an Event of Default or Landlord's enforcement of any and all other
rights herein, Tenant shall pay all costs and expenses of Landlord hereunder
including all reasonable attorneys' fees and expenses.
28. INDEMNIFICATION.
Tenant shall indemnify, protect, defend, and hold harmless Landlord from
and against (a) all fines, suits, claims, demands, liabilities, and actions
(including costs, attorneys fees, and expenses of defending against all such
actions) resulting or alleged to result from any breach, violation or
non-performance of any covenant or condition hereof by Tenant; and (b) all
claims, demands, actions, damages, loss, cost, liabilities, expenses, attorney
fees, and judgments suffered by, recovered from or asserted against Landlord, on
account of injury or damage to person or property to the extent that any such
damage or injury may be incident to, arise out of, or be caused, by an act,
omission, negligence or misconduct on the part of Tenant, or any of its agents,
servants, employees, contractors, patrons, guests, licensees or invitees or of
any other person entering upon the Premises under or with the express or implied
invitation or permission of Tenant, or when any such injury or damage is the
result, of the violation by Tenant, or any of its agents, servants, employees,
contractors, patrons, guests, licensees or invitees of any law, ordinance or
governmental order of any kind or of any rules of Landlord included in this
Lease (as such rules may hereafter at any time or from time to time be amended
or supplemented), or when any such injury or damage may in any other way arise
from or out of the occupancy or use by Tenant, its agents, servants, employees,
contractors, patrons, guests, licensees or invitees of the Premises. Tenant
shall only be responsible for direct, not consequential damages.
Page 94
29. ENVIRONMENTAL MATTERS.
Tenant shall not cause or permit any hazardous or toxic substances,
materials or waste ("Hazardous Substances") to be used, generated, stored or
disposed of in, on or under, or transported to or from the Premises ("Hazardous
Materials Activities") unless (a) such Hazardous Substances are necessary for
Tenant's business and (b) Tenant first obtains the written consent of Landlord.
If these conditions are satisfied, Tenant shall at all times and in all respects
comply with all local, state, and federal laws, ordinances, regulations and
orders relating to Hazardous Substances.
Tenant shall indemnify, defend (by counsel acceptable to Landlord),
protect and hold harmless, from and against any and all claims, liabilities,
penalties, fines, judgments, forfeitures, losses, costs (including clean-up
costs) or expenses (including attorney's fees, consultant's fees and expert's
fees) for the death or injury to any person, or damage to any property
whatsoever, arising from or caused in whole or in part, directly or indirectly,
by (a) the presence in, on, under, or about the Premises of any Hazardous
Substances; (b) any discharge or release in or from the Premises of any
Hazardous Substances; (c) Tenant's use, storage, transportation, generation,
disposal, release or discharge of Hazardous Substances to, in, on, under, about
or from the Premises; or (d) Tenant's failure to comply with any Hazardous
Substances law. Tenant's obligations under this section shall survive the
expiration or earlier termination of the term of this Lease.
Landlord shall indemnify, defend (by counsel acceptable to Tenant),
protect and hold harmless, from and against any and all claims, liabilities,
penalties, fines, judgments, forfeitures, losses, costs (including clean-up
costs) or expenses (including attorney's fees, consultant's fees and expert's
fees) for the death or injury to any person, or damage to any property
whatsoever, arising from or caused in whole or in part, directly or indirectly,
by (a) the presence in, on, under, or about the Premises of any Hazardous
Substances prior to the commencement of this Lease; or (b) any discharge or
release in or from the Premises of any Hazardous Substances prior to the
commencement of this Lease. Landlord's obligations under this section shall
survive the expiration or earlier termination of the term of this Lease.
30. SECURITY DEPOSIT.
Simultaneously with the execution of this lease, Tenant shall deposit with
landlord the sum of Forty Thousand Dollars ($40,000) as a security deposit. Such
security deposit (which shall not bear interest to Tenant) shall be considered
as security for the payment and performance by Tenant of all of Tenant's
obligations, covenants, conditions and agreements under the Lease. Upon the
expiration of the term hereof (or any renewal or extension thereof), Landlord
shall (provided that Tenant is not in default under the terms hereof) return and
pay back such security deposit to Tenant, less such portion thereof as Landlord
shall have appropriated to make good any default by Tenant with respect to any
of Tenant's aforesaid obligations, covenants, conditions and agreements. In the
event of any default by Tenant hereunder during the term of this Lease, Landlord
shall have the right, but shall not be obligated, to apply all or any portion of
the security deposit to cure such default, in which event Tenant shall be
obligated promptly to deposit with Landlord the amount necessary to restore the
security deposit to its original amount. In the event of the sale or transfer of
Landlord's interest in the property of which the Premises is a part, Landlord
shall have the right to transfer the security deposit to such purchaser or
transferee, in which event the security deposit and landlord shall thereupon be
released from all liability to Tenant for the return of such security deposit.
31. COMMISSION.
Landlord has agreed to pay a commission to Xxxxx Partners for its efforts
in bringing Tenant to the Premises, which commission is governed by a separate
instrument than this Lease. Said commission represents the total payment due to
Xxxxx Partners for Tenant's lease of the Premises for the term and the two (2)
Option Terms. The parties acknowledge that, other than Xxxxx Partners, there
have been no brokers involved in this transaction. Tenant hereby agrees to
indemnify, defend and hold harmless Landlord from and against any and all claims
or demands for broker's commissions or fees made by any person, firm or
corporation based on the actions of Tenant.
Page 95
32. QUIET ENJOYMENT.
If Tenant is not in default hereunder, Landlord warrants that Tenant's
peaceable and quiet enjoyment of the Premises shall not be disturbed by anyone.
33. GUARANTY OF LEASE.
Pinnacle Financial Partners, Inc. joins in this Lease as a guarantor of
the obligations of Tenant, pursuant to the Unconditional Guaranty of Payment and
Performance attached hereto and incorporated herein by reference as Exhibit "C".
34. MEMORANDUM OF LEASE.
The parties hereto agree to record, at the expense of Tenant, a short form
memorandum of lease describing the term of this Lease, a description of the
Premises, the renewal options and any other information the parties agree to
include.
Page 96
IN WITNESS WHEREOF, the parties hereto have hereunto set their hand the
day and year first above mentioned.
LANDLORD:
BUCKHEAD INVESTMENTS LLC,
a Tennessee limited liability company
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Xxxxxxxxx X. Xxxxx
Its: Chief Manager and Member
/s/ Xxx X. Xxxxxxx, XX
------------------------------------
Xxx X. Xxxxxxx, XX
/s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxx Xxxxxxx, Trustee
------------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx, Trustee
Date: October 7th, 2003
Page 97
TENANT:
PINNACLE NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Title: CAO
----------------------------
Date: October 7th, 2003
Page 98
EXHIBIT A
DESCRIPTION OF THE PREMISES
Map 92-15; Parcel 146:
Being in the 21st Xxxx of the City of Nashville, and being a part of the
Elliston Property in West Nashville, being undivided on said plan and of record
in Book 21, page 141, Register's Office for Davidson County, Tennessee, and
described as follows:
Beginning at a point in the westerly margin of Twenty Third Avenue North,
formerly Xxxxxxxx Avenue, 160 feet southerly from the southerly margin of
Xxxxxxxx Place, formerly the Xxxxxxx Xxxx; thence southerly with the westerly
margin of Twenty Third Avenue, 40 feet to the northerly margin of an alley;
thence with said alley westerly 100 feet and thence easterly 100 feet to the
point of beginning on Twenty Third Avenue. On the said lot there is a two story
apartment house known on the said Avenue by its City Number as 109.
Map 92-15; Parcel 147:
Being part of the Elliston Property, a plan of which is of record in Book 21,
page 141, Register's Office of Davidson County, Tennessee, being undivided on
said plan.
Said property begins on the Westerly margin of 23rd Avenue North (formerly
Xxxxxxxx Avenue) 175 feet Northerly from the Northerly margin of West End
Avenue, at the intersection of the Northerly margin of a fifteen foot Alley;
Thence, with said 00xx Xxxxxx Xxxxx, Xxxxxxxxx fifty feet to the Southerly
margin of another purposed Alley; Thence, with the Southerly margin of said last
mentioned Alley. Westerly 100 feet; Thence, Southerly, parallel with 23rd Avenue
North, fifty feet, to the Northerly margin of the first mentioned Alley; Thence,
with the Northerly margin of said Alley, Easterly, 100 feet to the beginning.
Map 92-15; Parcel 148:
Being on the northwest xxxxx of Xxxx Xxx Xxxxxx xxx 00xx Xxxxxx, Xxxxx, and more
particularly bounded and described as follows:
Being part of the Elliston property, a plan of which is recorded in Book 21,
page 141 of the Register's Office for Davidson County. Tennessee.
Beginning in the northerly margin of said Xxxx Xxx Xxxxxx at its intersection
with the westerly margin of said 00xx Xxxxxx. running thence northerly with said
westerly margin of said 00xx Xxxxxx, Xxxxx 000 feet to an Alley; Thence westerly
with the southerly margin of said Alley 50 feet; Thence southerly and parallel
with said 00xx Xxxxxx, Xxxxx 000 feet to the northerly margin of West End
Avenue, and Thence easterly with the northerly margin of said Xxxx Xxx Xxxxxx,
00 feet to the beginning.
Page 99
EXHIBIT B
CONSTRUCTION NARRATIVE AND SIGN PLANS
Page 100
EXHIBIT C
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FOR VALUE RECEIVED, and in consideration of PINNACLE NATIONAL BANK
("Tenant") entering into that certain Lease Agreement with X. XXXXXXX XXXXXXX,
TRUSTEE ("Landlord") of even date herewith, for the lease of the premises known
as 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx (the "Lease"), the undersigned,
PINNACLE FINANCIAL PARTNERS, INC. (the "Guarantor"), hereby unconditionally
guarantees to Landlord and its successors and assigns the full and prompt
payment when due, of all amounts owing pursuant to the Lease. Guarantor hereby
agrees that if the amounts owing pursuant to the Lease are not paid by Tenant in
accordance with their terms then Guarantor will immediately make such payments.
Guarantor hereby waives and agrees not to assert or take advantage of the
defense(s) of the statute of limitations, failure of Landlord to give notice of
the existence of any new or additional or obligation, notice of presentment and
demand for payment of any obligations hereby guaranteed and any other notices to
which Guarantor might otherwise be entitled.
This is a guaranty of payment and performance and not of collection. The
liability of Guarantor under this Guaranty shall be direct and immediate and not
conditional or contingent upon the pursuant of any remedies against Tenant or
any other person. Guarantor waives any right to require that an action be
brought against Tenant or any other person. In the event of a default under the
Lease, Landlord shall have the right to enforce its rights, powers and remedies
thereunder or hereunder or under any other instrument now or hereafter
evidencing or otherwise relating to the obligations evidenced by the Lease
against Guarantor.
Guarantor acknowledges that this Guaranty was negotiated, executed and
delivered in the State of Tennessee, that this Guaranty is to be performed in
the State of Tennessee and shall be governed and construed in accordance with
the laws of the State of Tennessee. Guarantor hereby submits to personal
jurisdiction in the State of Tennessee for the enforcement of this Guaranty.
This Guaranty may not be changed orally, and no obligation of Guarantor
can be released or waived by Landlord, except by a writing signed by Landlord.
This Guaranty shall be irrevocable by Guarantor until all indebtedness
guaranteed hereby has been completely repaid and all obligations and
undertakings of Tenant under, by reason of or pursuant to the Lease, have been
completely performed. The provisions of this Guaranty shall be binding upon
Guarantor and Guarantor's successors and assigns, and shall enure to the benefit
of Landlord, its successors and assigns. This Guaranty shall in no event be
impaired by any change which may arise by reason of the dissolution of Tenant.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty as of the
day of October, 2003.
PINNACLE FINANCIAL PARTNERS, INC.
_________________________________ By:_______________________________
Witness
Its:______________________________
Page 101
