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EXHIBIT 10.4
LEASE AGREEMENT
THIS LEASE, made this 1st day of January, 2000, by and between GBC
PROPERTIES, LLC, a Georgia limited liability company, first party, (hereinafter
called "Landlord") and GWINNETT BANKING COMPANY, a Georgia banking corporation,
second party (hereinafter called "Tenant");
W I T N E S S E T H:
1. PREMISES. Landlord, for and in consideration of the rents,
covenants, agreements and stipulations hereinafter mentioned, reserved, and
contained, to be paid, kept and performed by the Tenant, has leased and rented,
and by these presents does lease and rent, unto the said Tenant, and said Tenant
hereby agrees to lease and take upon the terms and conditions which hereinafter
appear, the following described property (hereinafter called the "premises"),
being known as 000 Xxxx Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxx 00000, together with all
improvements located thereon. No easement for light or air is included in the
premises.
2. TERM. To have and to hold the same for a term of five (5)
years beginning on the 1st day of January, 2000 and ending on the 31st day of
December 2004, at midnight, unless sooner terminated as hereinafter provided.
3. RENTAL. Tenant agrees to pay Landlord at the office of
Landlord in Lawrenceville promptly on the first day of each month in advance,
during the term of this lease, a monthly rental of Eighteen and No/100ths
Dollars ($18.00) per square foot.
4. UTILITY BILLS. Tenant shall pay all utility bills, including,
but not limited to water, sewer, gas, electricity, fuel, light, and heat bills
for the leased premises and Tenant shall pay all charges for garbage collection
or other sanitary services rendered to the leased premises or used by Tenant in
connection therewith. If Tenant fails to pay any of said utility bills or
charges for garbage collection or other sanitary services, Landlord may pay the
same and such payment may be added to the rental of the premises next due as
additional rental hereunder.
5. USE OF THE PREMISES. The premises shall be used for banking
and related purposes and no other. The premises shall not be used for any
illegal purposes; nor in any manner to create any nuisance or trespass; nor in
any manner to vitiate the insurance or increase the rate of insurance on the
premises.
6. ABANDONMENT OF LEASED PREMISES. Tenant agrees not to abandon
or vacate the leased premises during the term of this lease, and agrees to use
said premises for purpose herein leased until the expiration hereof.
7. REPAIRS BY TENANT. Tenant accepts the leased premises in their
present condition and as suited for the uses intended by Tenant. Tenant shall,
throughout the initial term of this lease and all renewals thereof, at its
expense, maintain in good order and repair the leased premises, including the
building and other improvements located thereon, except those repairs expressly
required to be made by Landlord. Tenant further agrees to care for the grounds
around
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the building, including mowing of grass, paving, care of shrubs and general
landscaping. Tenant agrees to return said premises to Landlord at the
expiration, or prior to termination, of this lease in as good condition and
repair as when first received, natural wear and tear, damage by storm, fire,
lightning, earthquake or other casualty alone excepted. Elevators (if any) are
accepted by Tenant as in satisfactory operating condition on this date, and
Tenant, at its own expense, shall maintain said elevators in good operating
condition during the term of this lease, or any extension thereof.
8. TAXES. Tenant covenants and agrees to pay all taxes, charges
and assessments of every kind and nature that may be liens upon the premises as
they become due, and that any tax, charge, assessment or lien not paid when due
by the Tenant may be paid by Landlord and such payment may be added to the
rental of the premises next due as additional rental hereunder. Such taxes for
the calendar year in which the lease terminates shall be prorated between the
parties as of the date of termination. Tenant may contest in good faith the
validity or amount of any tax assessment or other charge for which it is
responsible hereunder. If required to perfect such contest, Tenant may include
Landlord as a party thereto. Tenant shall hold Landlord harmless against all
costs and expenses in connection with such contest. Tenant shall not be
obligated to pay any tax which may be levied or assessed with respect to or
because of the income or other benefit derived by Landlord from, or by virtue
of, this lease or the ownership of the premises, or any corporate franchise or
excise tax which may be levied against Landlord or any corporate successor to
Landlord's interest.
9. DESTRUCTION OF, OR DAMAGE TO, THE PREMISES. If the premises
are totally destroyed by storm, fire, lightning, earthquake or other casualty,
this lease shall terminate as of the date of such destruction, and rental shall
be accounted for as between Landlord and Tenant as of that date. If the premises
are damaged but not wholly destroyed by any such casualties, rental shall xxxxx
in such proportion as use of the premises has been destroyed, and Landlord shall
restore the premises to substantially the same condition as before such damage
as speedily as practicable, whereupon full rental shall recommence.
10. INDEMNITY. Tenant agrees to indemnify and save harmless the
Landlord against all claims for damages to persons or property by reason of use
or occupancy of the leased premises, and all expenses incurred by Landlord
because thereof, including attorneys' fees and court costs.
11. GOVERNMENTAL ORDERS. Tenant agrees, at its own expense, to
promptly comply with all requirements of any legally constituted public
authority made necessary by reason of Tenant's occupancy of said premises.
Landlord agrees to promptly comply with any such requirements if not made
necessary by reason of Tenant's occupancy. It is mutually agreed, however,
between Landlord and Tenant, that if in order to comply with such requirements,
the cost to Landlord or Tenant, as the case may be, shall exceed a sum equal to
one year's rent, then Landlord or Tenant who is obligated to comply with such
requirements is privileged to terminate this lease by giving written notice of
termination to the other party, by registered mail, which termination shall
become effective sixty (60) days after receipt of such notice, and which notice
shall eliminate necessity of compliance with such requirement by the party
giving such notice unless the party receiving such notice of termination shall,
before termination becomes effective,
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pay to the party giving notice all cost of compliance in excess of one year's
rent, or secure payment of said sum in a manner satisfactory to the party giving
notice.
12. CONDEMNATION. If the whole of the leased premises, or such
portion thereof as will make the premises unusable for the purposes herein
leased, be condemned by any legally constituted authority for any public use or
purpose, then in either of said events the term hereby granted shall cease from
the date when possession thereof is taken by public authorities, and rental
shall be accounted for as between Landlord and Tenant as of said date. Such
termination, however, shall be without prejudice to the rights of either
Landlord or Tenant to recover compensation and damage caused by condemnation
from the condemnor. It is further understood and agreed that neither the Tenant
nor Landlord shall have any rights in any award made to the other by any
condemnation authority notwithstanding the termination of the lease as herein
provided.
13. ASSIGNMENT AND SUBLETTING. Tenant may sublease portions of the
leased premises to others provided such sublessee's operation is a part of the
general operation of Tenant and under the supervision and control of Tenant, and
provided such operation is within the purposes for which said premises shall be
used. Except as provided in the preceding sentence, Tenant shall not, without
the prior written consent of Landlord endorsed hereon, assign this lease or any
interest hereunder, or sublet the premises or any part thereof, or permit the
use of the premises by any party other than Tenant. Consent to any assignment or
sublease shall not destroy this provision, and all later assignments or
subleases shall be made likewise only on the prior written consent of Landlord.
Assignee of Tenant, at option of Landlord, shall become directly liable to
Landlord for all obligations of Tenant hereunder, but no sublease or assignment
by Tenant shall relieve Tenant of any liability hereunder.
14. REMOVAL OF FIXTURES. Tenant may (if not in default hereunder)
prior to the expiration of this lease, or any extension thereof, remove all
fixtures and equipment which it has placed in the premises, provided Tenant
repairs all damage to the premises caused by such removal.
15. CANCELLATION OF LEASE BY LANDLORD. It is mutually agreed that
in the event the Tenant shall default in the payment of rent, including
additional rent, herein reserved, when due, and fails to cure said default
within five (5) days after written notice thereof from Landlord; or if Tenant
shall be in default in performing any of the terms or provisions of this lease
other than the provision requiring the payment of rent, and fails to cure such
default within thirty (30) days after the date of receipt of written notice of
default from Landlord; or if Tenant is adjudicated bankrupt or declared
insolvent; or if a permanent receiver is appointed for Tenant's property and
such receiver is not removed within sixty (60) days after written notice from
Landlord to Tenant to obtain such removal; or if, whether voluntarily or
involuntarily, Tenant takes advantage of any debtor relief proceedings under any
present or future law, whereby the rent or any part thereof is, or is proposed
to be, reduced or payment thereof deferred; or if Tenant makes an assignment for
benefit of creditors; or if Tenant's effects should be levied upon or attached
under process against Tenant, not satisfied or dissolved within thirty (30) days
after written notice from Landlord to Tenant to obtain satisfaction thereof;
then, and in any of said events, Landlord at its option may at once, or within
six (6) months thereafter (but only during continuance of such default or
condition), terminate this lease by written notice to Tenant; whereupon this
lease shall end.
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After an authorized assignment or subletting of the entire premises covered by
this lease, the occurring of any of the foregoing defaults or events shall
affect this lease only if caused by, or happening to, the assignee or sublessee.
Any notice provided in this paragraph may be given by Landlord, or its attorney.
Upon such termination by Landlord, Tenant will at once surrender possession of
the premises to Landlord and remove all of Tenant's effects therefrom; and
Landlord may forthwith re-enter the premises and repossess itself thereof, and
remove all persons and effects therefrom, using such force as may be necessary
without being guilty of trespass, forcible entry or detainer or other tort.
16. RELETTING BY LANDLORD. Landlord, as Tenant's agent, without
terminating this lease, upon Tenant's breaching this contract, may at Landlord's
option enter upon and rent the premises at the best price obtainable by
reasonable effort, without advertisement and by private negotiations and for any
term Landlord deems proper. Tenant shall be liable to Landlord for the
deficiency, if any, between Tenant's rent hereunder and the price obtained by
Landlord on reletting.
17. EXTERIOR SIGNS. Tenant shall place no signs upon the outside
walls or roof of the leased premises except with the written consent of the
Landlord. Any and all signs placed on the within leased premises by Tenant shall
be maintained in compliance with rules and regulations governing such signs and
the Tenant shall be responsible to Landlord for any damage caused by
installation, use, or maintenance of said signs, and Tenant agrees upon removal
of said signs to repair all damages incident to such removal.
18. ENTRY FOR CARDING, ETC. Landlord may card the premises "For
Rent" or "For Sale" thirty (30) days before the termination of this lease.
Landlord may enter the premises at reasonable hours to exhibit same to
prospective purchasers or tenants and to make repairs required of Landlord under
the terms hereof, or to make repairs to Landlord's adjoining property, if any.
19. EFFECT FOR TERMINATION OF LEASE. No termination of this lease
prior to normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination thereof.
20. MORTGAGEE'S RIGHTS. Tenant's rights shall be subject to any
bona fide mortgage or deed to secure debt which is now, or may hereafter be,
placed upon the premises by Landlord.
21. NO ESTATE IN LAND. This contract shall create the relationship
of Landlord and Tenant between the parties hereto; no estate shall pass out of
Landlord. Tenant has only a usufruct, not subject to levy and sale, and not
assignable by Tenant except by Landlord's consent.
22. HOLDING OVER. If Tenant remains in possession of the premises
after expiration of the term hereof, with Landlord's acquiescence and without
any express agreement of the parties, Tenant shall be a tenant at will at the
rental rate in effect at end of lease; and there shall be no renewal of this
lease by operation of law.
23. ATTORNEY'S FEES AND HOMESTEAD. If any rent owing under this
lease is collected by or through an attorney at law, Tenant agrees to pay
fifteen percent (15%) thereof as attorneys' fees. Tenant waives all homestead
rights and exemptions which it may have under any law as
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against any obligation owing under this lease. Tenant hereby assigns to Landlord
its homestead and exemption.
24. RIGHTS CUMULATIVE. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative but not restrictive to
those given by law.
25. SERVICE OF NOTICE. Tenant hereby appoints as his agent to
receive service of all dispossessory or distraint proceedings and notices
hereunder, and all notices required under this lease, the person in charge of
the leased premises at the time, or occupying said premises; and if no person is
in charge of or occupying said premises, then such service or notice may be made
by attaching the same on the main entrance to said premises. A copy of all
notices under this lease shall also be sent to Tenant's last known address, if
different from said premises.
26. WAIVER OF RIGHTS. No failure of Landlord to exercise any power
given Landlord hereunder, or to insist upon strict compliance by Tenant with its
obligations hereunder, and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof.
27. TIME OF ESSENCE. Time is of the essence of this agreement.
28. EXTENSION OF TERM. At the expiration of the initial five (5)
year term of this lease and at the expiration of each extension period as
provided in this paragraph, provided that Tenant is not in default under any of
the terms or conditions of this lease, the term of this lease shall be
automatically extended for two (2) additional five (5) year periods pursuant to
the same terms and conditions as this lease, except as such terms and conditions
may be modified by the terms and conditions set forth below. Written notice of
such modifications shall be provided by Landlord to Tenant at least ten (10)
days prior to the end of the current term of the lease or any extension period
as provided herein. Either party desiring to terminate this lease shall give to
the other party written notice of the intent not to renew the term of the lease
at least ten (10) days prior to the end of the current term thereof, in which
case this lease shall terminate and be of no further force and effect at the end
of said term period.
29. CPI INCREASES. On the first day of the initial extension
period as described above and on the first day of each subsequent extension
period, the rental described in Paragraph 3 of this lease shall be adjusted and
changed. Such adjustment and change in the rental amount shall be determined in
accordance with adjustments in the Consumer Price Index ("CPI") as provided for
herein. The CPI is herein defined as the "United States Department of Labor,
Bureau of Labor Statistics, Consumer Price Index, United States, for all urban
consumers, All Items (1982-84 = 100)."
At the beginning of each extension period as provided above, the rental
shall be adjusted by the "percentage change" in the CPI on the initial day of
each extension period as compared to the CPI prevailing sixty (60) months prior
to such date. All such adjustments shall be made retroactive to such five-year
anniversary date. All such adjustments shall be made to the nearest one-eighth
of a percentage point (0.125%).
Landlord shall notify Tenant in writing of the amount of the newly
adjusted rental and same shall be due on the first day of the applicable
extension period and each month thereafter
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until adjusted again. However, in no event shall the rental due and payable
hereunder be less than the rental provided for during the initial term of this
lease, regardless of the value of the dollar as reflected by said CPI figure.
In the event the amount of CPI increase is not known until after the
first month of the period for which the adjustment is to be made, due to delays
in publication of the CPI, or any other reason, then, upon notification of the
increase by Landlord, Tenant shall pay the full amount of the increase which is
due for any prior month during the adjustment period within thirty (30) days
following receipt of Landlord's written notice of the amount due.
In the event the CPI is discontinued, ceases to incorporate significant
items now incorporated therein, or if a substantial change is made in such CPI,
the parties hereto shall use in its place any similar index established and
compiled by an agency of the United States Government, and, if no such index is
available, the parties shall attempt to agree on an alternative formula and, if
agreement cannot be reached, the matter shall be submitted to arbitration under
the rules of the American Arbitration Association then in effect.
The rental, as escalated, shall constitute the "rental" as such term is
used throughout the lease.
30. BANKRUPTCY OR INSOLVENCY. Notwithstanding any other provisions
contained in this lease, in the event (a) Tenant or its successors or assigns
shall become insolvent or bankrupt, or if it or their interest under this lease
shall be levied upon or sold under execution or other legal process, or (b) the
depository institution then operating on the premises is closed, or is taken
over by any depository institution supervisory authority ("Authority"), Landlord
may, in either such event, terminate this lease only with the concurrence of any
receiver or liquidator appointed by such Authority; provided, that in the event
this lease is terminated by the receiver or liquidator, the maximum claim of
Landlord for rent, damages, or indemnity for injury resulting from the
termination, rejection, or abandonment of the unexpired lease shall by law in no
event be in an amount equal to all accrued and unpaid rent to the date of
termination.
31. INSURANCE. Tenant covenants and agrees to keep the premises,
including the building and other improvements located thereon, fully insured
against loss by fire and other hazards and to maintain public liability
insurance with respect to the premises and the conduct and operation of Tenant's
business therein as may, from time to time, be required by Landlord in amounts,
with companies and with mortgage clause approved by Landlord, naming Landlord as
an additional insured. Landlord shall deliver the policies of insurance and any
renewals thereof to Landlord, and any premium of insurance not paid when due by
Tenant may be paid by Landlord and any sum so paid shall be additional rental
due hereunder. Landlord and Tenant hereby waive any right each may have against
the other on account of any loss or damage occasioned to Landlord or to Tenant,
as the case may be, their respective property, the premises or its contents,
arising from any risk generally covered by "Special Form" or All Risk insurance
coverage; and Landlord and Tenant, each on behalf of their respective insurance
companies insuring the foregoing against any such loss or damage, waive any
right of subrogation that it might have against the other.
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32. DEFINITIONS. "Landlord" as used in this lease shall include
first party, its representatives, assigns and successors in title to the
premises. "Tenant" as used in this lease shall include second party, its
representatives, and if this lease shall be validly assigned or sublet, shall
include also Tenant's assignees or sublessees, as to the premises covered by
such assignment or sublease. "Landlord" and "Tenant" include male and female,
singular and plural, corporation, partnership, limited liability company, or
individual, as may fit the particular parties.
This lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, shall be of any force or effect.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals the day and year first above written.
Signed, sealed and delivered as to GBC PROPERTIES, LLC, a Georgia limited
Landlord, in the presence of: liability company
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By: (SEAL)
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Name:
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Notary Public Title:
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Signed, sealed and delivered as to GWINNETT BANKING COMPANY, a
Tenant, the presence of: Georgia banking corporation
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By: (SEAL)
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Name:
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Notary Public Title:
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[BANK SEAL]
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