"EXHIBIT 10.1"
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0000 XXX XXXXXXXXX XXXXX
OFFICE BUILDING LEASE
By and Between
ACQUIPORT NORTHSIDE DRIVE, INC.,
a Delaware corporation,
as Landlord,
and
UNITED COMMERCIAL BANK ORGANIZING GROUP, L.L.P.,
a Georgia limited liability partnership,
as Tenant
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0000 XXX XXXXXXXXX XXXXX
XXXXXXX, XXXXXXX
LEASE SUMMARY
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Reference Date: __________________, 2001
Landlord: Acquiport Northside Drive, Inc.
Tenant: UNITED COMMERCIAL BANK
ORGANIZING GROUP, L.L.P.,
a Georgia limited liability
partnership
Building: 0000 Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Rentable Square Footage of the Building: 276,178 rentable square feet
Suite Number: 200
Area and Floor of Premises: 4,117 rentable square feet
Paragraph 1.1 located on the 2nd floor of the
Building
Tenant's Proportionate Share: 1.49%
Paragraph 2.1(b)(l)
Lease Term: Five (5) years
Paragraph 1.2
Scheduled Commencement Date: November 1, 200l
Paragraph 1.2
Expiration Date: October 31, 2006 (subject to
Paragraph 1.2 adjustment)
i
Base Rental: Rental Annual Base Annual Base Monthly Base
Paragraph 2.1 Period Rental/RSF Rental Rental
------ ---------- ------ ------
Lease Year 1 $23.00 $ 94,691.04 $7,890.92
Lease Year 2 $23.58 $ 97,078.92 $8,089.91
Lease Year 3 $24.17 $ 99,507.96 $8,292.33
Lease Year 4 $24.77 $101,978.16 $8,498.18
Lease Year 5 $25.39 $104,530.68 $8,710.89
Operating Expenses Base Year: Calendar Year 2001
Paragraph 2.1(b)
Taxes Base Year: Calendar Year 2001
Paragraph 2.1(b)
Cash Security Deposit: $15,781.84
Paragraph 2.2(a)
Letter of Credit: $132,056.50 Credit Limit
Paragraph 2.2(b) [Temporary Letter of Credit]
Guarantor: N/A
Paragraph 8.9
Landlord's Address for the Mailing Acquiport Northside Drive, Inc.
of Payments: X.X. Xxx 00000
Xxxxxxxxx 2.1 (a) Xxx Xxxx, Xxx Xxxx 00000-0000
Landlord's Broker: Clarion Realty Services, L.L.C.
Paragraph 8.1
Tenant's Broker: The Xxxxxx Richmond Company/ITRA Realty
Paragraph 8.1 Group
Tenant's Address for Notices: United Commercial Bank Organizing
Paragraph 6.1 Group, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention:__________________
with a copy to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: T. Xxxxxxxx Xxxxxxx, Esquire
ii
Landlord's Address for Notices: Acquiport Northside Drive Inc.
Paragraph 6.1 c/o Clarion Partners
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Portfolio Manager
with a copy to:
Clarion Realty Services, L.L.C.
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Property Manager
Improvement Allowance: Turnkey Improvements
Exhibit C
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iii
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0000 XXX XXXXXXXXX XXXXX
OFFICE LEASE
TABLE OF CONTENTS
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LEASE SUMMARY ............................................................... i
I. DELIVERY OF PREMISES AND TERM
1.1 Premises ........................................................... 1
1.2 Term ............................................................... 1
1.3 Delivery of Possession of Premises ................................. 2
1.4 Quiet Enjoyment .................................................... 3
II. RENTAL
2.1 Rental ............................................................. 3
(a) Base Rental ................................................... 3
(b) Additional Rental - Operating Expenses......................... 4
(c) Additional Rental - Taxes...................................... 9
2.2 Security Deposit .................................................. 10
III. USE, MAINTENANCE AND REPAIR OF PREMISES
3.1 Use of Premises ................................................... 12
3.2 Compliance With Laws .............................................. 12
3.3 Hazardous Materials ............................................... 13
3.4 Services to Tenant ................................................ 15
3.5 Liability of Landlord ............................................. 16
3.6 Improvements, Repairs by Landlord ................................. 16
3.7 Landlord's Right to Enter Premises ................................ 17
3.8 Repairs by Tenant ................................................. 17
3.9 Alterations........................................................ 18
3.10 Liens.............................................................. 18
IV. CONDEMNATION, DESTRUCTION, DAMAGE AND INSURANCE
4.1 Eminent Domain .................................................... 19
4.2 Destruction or Damage to Premises ................................. 19
4.3 Indemnification ................................................... 20
4.4 Insurance ......................................................... 20
4.5 Damage or Theft of Personal Property .............................. 22
iv
V. ADDITIONAL COVENANTS OF TENANT
5.1 Assignment and Subletting ......................................... 22
5.2 Landlord's Lien [Text intentionally deleted] ..................... 24
5.3 Relocation [Text intentionally deleted] ........................... 24
5.4 Subordination and Attornment ...................................... 25
5.5 Estoppel Certificate .............................................. 25
VI. NOTICES, DEFAULT AND REMEDIES
6.1 Notices ........................................................... 25
6.2 Default ........................................................... 26
6.3 Remedies .......................................................... 27
6.4 Effect of Termination of Lease .................................... 29
6.5 Attorneys' Fees ................................................... 29
VII. SURRENDER OF PREMISES UPON EXPIRATION OF LEASE
7.1 Surrender of Premises ............................................. 29
7.2 Holding Over....................................................... 29
7.3 Removal of Fixtures ............................................... 29
VIII. MISCELLANEOUS
8.1 Agency Disclosure ................................................. 30
8.2 Exculpation of Landlord ........................................... 30
8.3 Parking ........................................................... 30
8.4 Signage ........................................................... 31
8.5 Force Majeure ..................................................... 31
8.6 Authority ......................................................... 31
8.7 Definitions ....................................................... 31
8.8 Rules and Regulations ............................................. 31
8.9 Guaranty [Text intentionally deleted] ............................. 32
8.10 Special Stipulations .............................................. 32
8.11 Entire Agreement .................................................. 32
SCHEDULE EXHIBITS
Addendum of Special Stipulations
Exhibit A - Floor Plan of Premises
Exhibit B - Description of Property on Which the Project is Situated
Exhibit C - Improvements to Premises
Exhibit D - Rules and Regulations
Exhibit E - Letter of Credit
Exhibit F - Description of Location of ATM
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v
0000 XXX XXXXXXXXX XXXXX
XXXXXX LEASE
THIS LEASE, made this 1st day of June, 2001 (the "Effective Date"), is entered
into by and between ACQUIPORT NORTHSIDE DRIVE, Inc., a Delaware corporation
(the "Landlord"), and UNITED COMMERCIAL BANK ORGANIZING GROUP, L.L.P., a Georgia
limited liability partnership (the "Tenant").
FOR AND IN CONSIDERATION of the mutual covenants and conditions contained
herein, the parties hereto do hereby agree as follows:
I. DELIVERY OF PREMISES AND TERM
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1.1 PREMISES
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Tenant hereby leases from Landlord approximately 4,117 rentable square feet of
space, measured in accordance with BOMA (Building Owners and Managers of
Atlanta, Inc.) standards, and as outlined by the floor plan attached hereto as
Exhibit "A" and incorporated herein by this reference, commonly known as Suite
200 (the "Premises") in the building known as and located at 0000 Xxx Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Building"), which is situated on certain
real property more particularly described in Exhibit "B" attached hereto and
incorporated herein by this reference (the "Property"; the Building and the
Property are hereinafter collectively referred to as the "Project"). This Lease
shall create the relationship of landlord and tenant between Landlord and
Tenant; no estate shall pass out of Landlord; Tenant has only a usufruct, not
subject to levy and sale, and not assignable by Tenant unless specifically
permitted by the express terms of this Lease. In addition to the interest in the
Premises demised to Tenant under this Lease, Landlord hereby grants Tenant a
nonexclusive non-cancelable license for so long as this Lease is in full force
and effect to use the "Common Areas," as hereinafter defined, of the Project in
common with others entitled to use the Common Areas, including Landlord and
other tenants of the Project and their respective employees and invitees and
other persons authorized by Landlord, subject to the terms and conditions of
this Lease, including any and all rules and regulations promulgated by Landlord
in accordance with the terms of this Lease. As used herein, the term "Common
Areas" means all areas and facilities in the Project that are provided and
designated from time to time by Landlord for the general nonexclusive use and
convenience of Tenant, Landlord and all other tenants of the Project and their
respective employees, invitees, licensees, or other visitors, including
without limitation the hallways, entryways, stairs, elevators, driveways,
loading areas, and restroom facilities of the Building, and the walkways,
parking and landscaped areas of the Project. Landlord may from time to time
change the size, use, shape, configuration or nature of any portion of the
Common Areas, so long as such change does not deprive Tenant of the substantial
benefit and enjoyment of the Premises and so long as such change does not
interfere with Tenant's access or substantial use of the Common Areas, the
Premises or the Building. Neither Landlord nor Landlord's agents have made any
representations, warranties or promises with respect to the Project, the
physical condition of the Building, the property upon which it is erected, or
the Premises, or any matter or thing affecting or related to the Premises,
except as expressly set forth in this Lease.
1.2 TERM
----
The term of this Lease (the "Term") shall commence on the "Commencement Date,"
as defined below, and shall expire on the "Expiration Date," as defined below.
The Term is scheduled to commence November 1, 2001 (the "Scheduled Commencement
Date"), and expire at 11:59 p.m. on October 31, 2006 (the "Expiration Date"),
unless adjusted as provided below.
"Lease Year" shall mean each successive twelve-month period throughout the Term
provided that the first Lease Year shall commence on the Commencement Date and
expire on the last day of the month preceding the month in which the anniversary
of the Commencement Date occurs, and each subsequent Lease Year shall commence
on the day following the expiration of the previous Lease Year.
1.3 DELIVERY OF POSSESSION OF PREMISES
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With the exception of "Landlord's Work" specifically set forth in this Lease,
Landlord shall have no obligation to make any improvements or modifications to
the Premises. Landlord shall cause the Premises to be improved in accordance
with the terms, conditions, and agreement approved by both parties attached
hereto as Exhibit "C" and incorporated herein by this reference ("Landlord's
Work"). Landlord's Work shall be completed at the cost and expense of Landlord
unless otherwise specified herein. Landlord's Work may be done with such minor
variations as Landlord may reasonably determine to be appropriate, so long as
such variations will not materially interfere with Tenant's intended use of the
Premises, however, Tenant must approve the substitution of any materials
or finishes. "Substantial Completion" of the Premises shall occur when (i)
Landlord receives a final certificate of occupancy for the Premises and delivers
a copy to Tenant (ii) Landlord certifies in writing to Tenant that Landlord's
Work has been substantially completed; and (iii) possession of the Premises has
been delivered from Landlord to Tenant, notwithstanding a requirement that
Landlord complete "punch list" or similar corrective work, and notwithstanding
that any work that is the responsibility of the Tenant may not be completed.
The "Commencement Date" of this Lease shall be the later of two (2) Business
Days (as defined in Paragraph 6.1 below) after the date of Substantial
Completion, as defined above, or the Scheduled Commencement Date, as defined
above. Landlord shall notify Tenant when Landlord reasonably anticipates that
Landlord's Work is within two (2) weeks of being substantially completed. During
the two (2) week period immediately preceding the Commencement Date (the "Early
Access Period"), Landlord shall permit Tenant to have access to the Premises
for the limited purpose of installing Tenant's furniture, trade fixtures,
cabling and voice/data communications equipment; provided, however, that Tenant
shall coordinate its access to the Premises with Landlord in order to ensure
that such access does not interfere with or delay the completion of Landlord's
Work. By giving Tenant access to the Premises during the Early Access Period,
Landlord assumes no responsibility for damage or injury to persons entering the
Premises, theft, damage or injury to property brought in or upon the Premises,
or any personal injury which may arise by reason of such access. Tenant shall be
subject to all directions and restrictions reasonably established by Landlord's
contractor for Tenant's access to the Premises during the Early Access Period.
The Tenant, by taking possession of the Premises, shall be deemed to have agreed
that the Premises are then in a satisfactory order, repair and condition, except
as set forth on a list prepared by Landlord and Tenant prior to occupancy, and
Tenant shall provide Landlord, upon request, a written acknowledgment of
acceptance. If Tenant, for whatever reason, occupies the Premises prior to the
Commencement Date, then all terms and conditions of this Lease shall apply to
such occupancy, with the exception of Tenant's obligation to pay rental, which
unless otherwise agreed to in writing by Landlord and Tenant, shall not commence
until the Commencement Date. If Landlord, for any reason whatsoever, fails to
deliver possession of Premises to Tenant on the Scheduled Commencement Date,
this Lease shall not be void or voidable nor shall Landlord be liable to Tenant
for any loss or damage resulting therefrom. Should the actual Commencement Date
be later than the Scheduled Commencement Date, then the Expiration Date shall be
the last day of the month in which the fifth (5th) anniversary of the
Commencement Date occurs, and the definition of "Lease Year" set forth above
shall be modified to provide that the first Lease Year shall expire on the last
day of the month in which the first anniversary of the Commencement Date occurs.
Provided, however, that if Landlord, for whatever reason, is unable to deliver
possession of the Premises to Tenant within one hundred twenty (120) days after
the Scheduled Commencement Date, Landlord, in Landlord's sole discretion, may
terminate this Lease by forwarding written notice of such
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termination to Tenant, in accordance with the notices provision of this Lease,
not later than ten (10) days after the expiration of such one hundred twenty
(120) day period. Provided further, that if Landlord fails to substantially
complete Landlord's Work and deliver possession of the Premises to Tenant within
such one hundred twenty (120) day period, and such failure was not caused by (i)
the failure of Tenant to timely approve the "Plans," as defined in Exhibit "C"
of this Lease; (ii) any "Change Orders," as defined in Exhibit "C," to the Plans
requested by the Tenant or Tenant's agents, employees, contractors or
subcontractors; (iii) any action or inaction by Tenant or Tenant's agents,
employees, contractors or subcontractors; (iv) force majeure; (v) the action or
inaction of any governmental agency; or (vi) any factors outside of the
reasonable control of Landlord, then Tenant shall have the option of terminating
this Lease (the "Termination Option") by forwarding written notice of such
termination (the "Termination Notice") to Landlord in accordance with the
notices provision of this Lease no later than ten (10) days after the expiration
of such one hundred twenty (120) day period. The Termination Notice shall
specify the effective date of such termination (the "Termination Date"), which
date shall not be sooner than thirty (30) days following Landlord's receipt of
the Termination Notice. In the event that Landlord substantially completes
Landlord's Work and Landlord delivers possession of the Premises unto Tenant
within ten (10) days after Landlord's receipt of the Termination Notice, then
this Lease shall not terminate upon the Termination Date specified by Tenant,
but rather shall continue in full force and effect as if the Termination Notice
had not been given. In the event that Tenant is entitled under the foregoing
language to exercise the Termination Option, but, for whatever reason, Tenant
elects not to do so within the time period specified above, then the Termination
Option shall expire and Tenant shall not thereafter have the right to exercise
the Termination Option, and the Commencement Date shall be the date on which
Landlord delivers possession of the Premises unto Tenant with Landlord's Work
substantially completed. If this Lease is terminated pursuant to the terms of
this paragraph, Landlord shall refund to Tenant any Security Deposit Tenant may
have previously deposited with Landlord, but the parties shall not otherwise
have any liability or obligation to each other; if neither party elects to
terminate this Lease pursuant to the terms of this paragraph, then the
Commencement Date and Expiration Date of this Lease shall be determined as
otherwise set forth in this paragraph.
1.4 QUIET ENJOYMENT
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Landlord represents and warrants that it has the full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements contained in this Lease, shall peaceably and
quietly have, hold and enjoy the Premises for the Term without hindrance or
disturbance from Landlord, subject to the terms and provisions of this Lease.
II. RENTAL
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2.1 RENTAL
------
(a) Base Rental. Throughout the Term of this Lease, and until adjusted as
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provided below, Tenant shall pay base rental to Landlord as follows (the
"Base Rental"):
[Base Rental chart appears on next page]
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Rental Annual Base Annual Base Monthly Base
Period Rental/RSF Rental Rental
------ --------- ------ ------
Lease Year 1 $23.00 $ 94,691.04 $7,890.92
Lease Year 2 $23.58 $ 97,078.92 $8,089.91
Lease Year 3 $24.17 $ 99,507.96 $8,292.33
Lease Year 4 $24.77 $101,978.16 $8,498.18
Lease Year 5 $25.39 $104,530.68 $8,710.89
Each monthly installment shall be due and payable promptly on the first day
of each month, in advance and without offset, deduction or prior demand,
during the Term of this Lease. In the event that the Term of this Lease
shall commence on a date other than the first day of the month, rent for
such month shall be prorated and such prorated amount (which shall be equal
to the monthly Base Rental stated above multiplied by a fraction, the
numerator of which shall be the number of days from the Commencement Date
through the end of such month, inclusive of both days, and the denominator
of which shall be the number of days in such month) shall be due and
payable on the Commencement Date. All payments of rent or any other sum due
under this Lease shall be made payable to "Acquiport Northside Drive, Inc."
and shall be forwarded by Tenant to Landlord as follows: Acquiport
Northside Drive, Inc., X.X. Xxx 00000, Xxx Xxxx, XX 00000-0000.
In the event Tenant shall fail to pay a monthly installment within five (5)
Business Days, as defined below, of the due date, a late charge of five
percent (5%) of the monthly Base Rental, with a minimum of fifty ($50.00)
per month, shall be added to the Base Rental and paid to Landlord for each
such late payment and the same shall be treated as additional rent. Should
Tenant present a check to Landlord that is returned from Tenant's bank for
any reason, Landlord reserves the right to demand that all future rental
payments be made in the form of cashiers' checks or certified funds. Tenant
agrees to pay Landlord interest at a rate of twelve percent (12%) per annum
(or the maximum rate permitted by applicable law, whichever is less) on all
Base Rental, additional rental or other sums due hereunder that are not
paid when such amounts are due and payable.
(b) Additional Rental - Operating Expenses.
--------------------------------------
(1) Definitions. The following definitions shall apply throughout this
-----------
Lease:
All sums other than Base Rental due from Tenant to Landlord under this
Lease shall constitute "Additional Rental." The term "Operating
Expenses" as used herein shall include all direct costs of
administration, operation and maintenance of the Project, its Common
Areas and its appurtenances, as determined in accordance with
generally accepted accounting principles and shall include the
following by way of illustration but not limitation: the cost of
labor, materials and services for the operation and maintenance of the
Project, its Common Areas and its appurtenances, including but not
limited to license, permit and inspection fees; water and sewer
charges; garbage and waste disposal; gas, electricity and other
utilities; heat, air conditioning and ventilation repairs; elevator
service; plumbing service and repairs; janitorial and cleaning
service; landscaping; parking lot cleaning, repairs and maintenance;
association fees; pest control; maintenance contracts; security guards
(if provided to the Project); personnel engaged in onsite management,
administration, operation and maintenance of the Project, its Common
Areas and its appurtenances, off-site non-executive personnel directly
engaged in the management, administration, operation and maintenance
of the Project, its Common Areas and its appurtenances, provided
however, that if such off-site personnel is engaged in the
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management, administration and maintenance of other buildings,
properties or projects in addition to the Project, then only the
portion of the expenses of such personnel directly attributable to the
management, administration, operation and maintenance of the Project
shall be included in Operating Expenses, together with payroll taxes
and employee benefits applicable thereto; supplies, materials, tools,
equipment and general costs associated therewith; the management fee
assessed to Landlord for managing the Project; and the cost of
"Insurance" on the Project, as defined herein; all accrued and based
on a calendar year; but excluding tenant alterations, depreciation on
the Project and equipment used there, costs of capital nature, unless
specifically provided to the contrary in this Lease, interest,
executive salaries, and all costs billed directly to tenants of the
Project either by Landlord or a third party. The following shall also
be excluded from Operating Expenses:
(i) the cost of any work (including the cost of permits, licenses
and inspections) performed (such as preparing space for
occupancy, including painting and decorating), or services
furnished by Landlord without charge as an inducement to lease
(such as free rent, decorations, painting, or improvement
allowances);
(ii) the cost of constructing, installing and operating any
specialty service or facility, such as an observatory,
broadcasting facility, restaurant, luncheon club, retail space,
sundry shop, newsstand, concession, specifically excluding the
health club and the mail room;
(iii) salaries, wages, fringe benefits and other expenses for
Landlord's officers and employees above the level of general
manager, and the cost of Landlord's offsite office, unless and
to the extent such offsite office and offsite personnel are
performing work for the Building or Project;
(iv) the cost of any service provided to specific tenants and
occupants of the Building that are not available to Tenant;
(v) the cost of any work performed, or service provided, or
Landlord overhead, for any facility other than the Project;
(vi) the cost of any items for which Landlord is reimbursed by
insurance proceeds, condemnation awards, a lessee of the
Building, or otherwise, including utilities separately metered
or sub-metered to a tenant;
(vii) the cost of any material changes or additions to the Project
(such as the addition of a garage, tower or floor);
(viii) the cost of any repairs, alterations, additions, changes,
replacements and the like, which under generally accepted
accounting principles and practices are properly classified as
capital expenditures except to the extent otherwise allowed in
Paragraph 2.1 herein;
(ix) the cost of any repair or replacement made in accordance with
Paragraphs 4.1 and 4.2;
(x) insurance premiums to the extent any other tenant causes
Landlord's insurance premiums to increase or requires Landlord
to purchase additional insurance;
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(xi) costs associated with financing or refinancing the Project and
interest, principal and amortization payments on any debt,
points and financing fees, cost to service a loan,
depreciation, or rental under any ground lease or other
underlying lease, and interest, fines or penalties incurred by
reason of Landlord's failure to perform an obligation
hereunder;
(xii) costs incurred in procuring tenants or other occupants
including, without limitation, real estate brokerage
commissions, legal fees, moving expenses, design or
engineering fees, rental concessions or credits, allowances,
lease assumption, or cancellation fees:
(xiii) any compensation representing an amount paid to an affiliated
person of Landlord which is in excess of the amount which
would have been paid in the absence of such relationship;
(xiv) expenses for repairs or maintenance which are covered by
warranties, guaranties or service and maintenance contracts to
the extent collected;
(xv) legal expenses arising out of the construction, and leasing of
the Project, and costs associated with the enforcement of the
provisions of any agreements, including this Lease, affecting
the Project, and claims, disputes, issues concerning
interpretation of documents relating to such agreements, in
each case including the costs of settlement, collection and
court and arbitration proceedings;
(xvi) costs of overtime or other costs incurred by Landlord to cure
its default hereunder or the default of a tenant;
(xvii) any costs associated with a change of ownership, including
financing or refinancing the transfer of an interest in the
Project or in Landlord;
(xviii) charitable or political contributions.
Provided, however, that in the event that less than 95% of the
rentable square footage of the Building is leased to tenants during
either the Base Year, as hereinafter defined, or during any Comparison
Year, as hereinafter defined, then the Operating Expenses of the
Project for such year shall consist of the greater of the actual
Operating Expenses for such year or Landlord's reasonable estimate of
what the Operating Expenses for such year would be if 95% of the
rentable square footage of the Building were leased to tenants during
such year.
If, for any reason, including imposition of governmental requirements,
laws or regulations, Landlord shall expend monies, directly or
indirectly, which are intended to reduce the energy consumption of the
Project, and which, by generally accepted accounting principles are
treated as capital expenditures, the annual Operating Expenses of the
Project shall also include the amortization of such capital
expenditures based upon a useful life acceptable to the appropriate
taxing authority.
In the event that any local, state or federal government shall, by any
legally enforceable legislative, administrative or judicial action,
whether by ordinance, act, statute, order, mandate, rule, regulation
or otherwise, require during the Term of this Lease any alteration
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of or improvement to any portion of the Project or Building, excluding
the Premises (a "Mandated Alteration"), which, by generally accepted
accounting principles would be treated as a capital expenditure, then,
provided that such Mandated Alteration is the result of the adoption
of a new or changed ordinance, act, statute, order, mandate, rule or
regulation or interpretation thereof not existing on the Commencement
Date of this Lease, the annual Operating Expenses of the Building
shall also include the annual amortization of such capital expenditure
based upon a useful life of not less than five (5) years; provided
however, that in no event shall the annual Additional Rental assessed
to Tenant that is attributable to such Mandated Alteration exceed
thirty cents ($.30) multiplied by the rentable square footage of the
Premises annually.
"Tenant's Proportionate Share" of Operating Expenses of the Building
and Taxes shall be calculated by dividing the rentable square footage
of the Premises by the total rentable square footage of the Building.
Tenant's Proportionate Share shall not increase after the date of this
Lease, except if Tenant leases additional space.
The term "Taxes" shall include every type of tax, charge or other
amount assessed against the Project or upon the real estate upon which
the Building is located, together with any reasonable expenses
for tax consulting services and legal services in appealing or
protesting such Taxes. Taxes shall not include any income, profit,
franchise, corporation, transfer or personal property taxes imposed
upon Landlord or any penalties or interest or any late payments. In
the event that less than 95% of the rentable square footage of the
Building is leased to tenants during either the Base Year, as
hereinafter defined, or during any Comparison Year, as hereinafter
defined, then the Taxes of the Building for such year shall consist of
the greater of the actual Taxes for such year or Landlord's reasonable
estimate of what the Taxes for such year would be if 95% of the
rentable square footage of the Building were leased to tenants during
such year.
For purposes of this Section, "Insurance" shall mean such insurance
for fire, extended coverage, public liability, and other insurance
which Landlord reasonably deems necessary in connection with the
ownership and operation of the Project, or which is required by the
holder of any mortgage or deed to secure debt encumbering the Project,
or which Landlord is required to maintain under this Lease.
The "Base Year" shall be calendar year 2001. The term "Comparison
Year" shall be each calendar year during the Term after the Base Year.
(2) Reimbursement of Operating Expenses.
-----------------------------------
If in any Comparison Year, Operating Expenses paid or incurred shall
exceed the Operating Expenses paid or incurred in the Base Year,
Tenant shall pay as Additional Rental for each Comparison Year,
Tenant's Proportionate Share of such excess as and when specified
below. An annual determination of Operating Expenses shall be made by
Landlord pursuant to generally accepted accounting principles and
shall be binding upon Landlord and Tenant, subject to Tenant's audit
rights described below.
(3) Estimates of Operating Expenses. Prior to April 1st of any
-------------------------------
Comparison Year during the Term of this Lease, Landlord may, if it so
elects, estimate the amount of Operating Expenses which will be due
from Tenant during such year. If, in
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the reasonable estimation of Landlord, Operating Expenses for the
Comparison Year will exceed the Operating Expenses for the Base Year,
Landlord shall give Tenant written notification on or before
April 1st, of the amount of such estimated Operating Expenses and
the amount of such estimated Operating Expenses that will be due each
month from Tenant. Tenant agrees, subsequent to receipt of such
written notification, to pay monthly Tenant's Proportionate Share of
such excess.
(4) Annual Reconciliation. As soon as practicable after the end of each
---------------------
calendar year, but no later than May 1st, Landlord shall prepare and
forward to Tenant a statement of the actual Operating Expenses of the
Project for the prior calendar year. If the total amount Tenant
actually paid for estimated increases in Operating Expenses is less
than Tenant's Proportionate Share of the actual increase in Operating
Expenses, Tenant shall pay to Landlord as Additional Rental, in one
lump sum, the difference between the total amount actually paid by
Tenant and the amount for which Tenant is liable under this Lease;
this lump sum payment shall be made within thirty (30) days of
Tenant's receipt of Landlord's statement therefor; or if the total
amount Tenant actually paid for such estimated increases in Operating
Expenses is more than Tenant's Proportionate Share of the actual
Operating Expenses, then Landlord shall remit the excess to Tenant
within thirty (30) days of making such determination, but no later
than June 1st", or, at Landlord's election, credit such amount
against the next monthly installment of Base Rental due from Tenant
under this Lease.
(5) Prorations. If the Commencement Date occurs during the first
----------
Comparison Year and is a day other than January 1, or if the
Expiration Date is other than December 31, Tenant's Proportionate
Share of any increase in Operating Expenses for such year(s) shall be
multiplied by a fraction, the numerator of which is the number of days
of such year that are within the Term of this Lease, and the
denominator of which is 365. Even though the Term has expired and
Tenant has vacated the Premises, when the final determination is made
of Tenant's Proportionate Share of Operating Expenses for the year in
which this Lease expires, Tenant shall pay any increase due over the
estimated amount paid and conversely any overpayment made shall be
rebated by Landlord to Tenant, all as specified above.
(6) Audit. Tenant shall have the right to have Landlord's books and
-----
records pertaining to Operating Expenses and Taxes for the Base Year
or any Comparison Year during the Term of this Lease reviewed, copied
and audited ("Tenant's Audit") provided that (i) such right shall not
be exercised more than once during any calendar year; (ii) if Tenant
elects to conduct Tenant's Audit, Tenant shall provide Landlord with
written notice thereof no later than ninety (90) days following
Tenant's receipt of Landlord's statement of Operating Expenses and
Taxes (the "Annual Statement") for the year to which Tenant's Audit
will apply; (iii) Tenant shall have no right to conduct Tenant's Audit
if Tenant is, either at the time Tenant forwards Landlord written
notice that Tenant's Audit will be conducted or at any time during
Tenant's Audit, then in default under this Lease; (iv) conducting
Tenant's Audit shall not relieve Tenant from the obligation to pay
Tenant's Proportionate Share of Operating Expenses and Taxes, as
billed by Landlord, pending the outcome of such audit; (v) Tenant's
right to conduct such audit for any calendar year shall expire ninety
(90) days following Tenant's receipt of Landlord's Annual Statement
for such year, and if Landlord has not received written notice of such
audit within such ninety (90) day period, Tenant shall have waived its
right to conduct Tenant's Audit for such calendar year; (vi) Tenant's
Audit shall be conducted by a Certified Public Accountant not employed
by or otherwise affiliated with
-8-
Tenant, except to the extent that such accountant has been engaged by
Tenant to conduct Tenant's Audit; (vii) Tenant's Audit shall be
conducted at Landlord's office where the records of the year in
question are maintained by Landlord, during Landlord's normal business
hours; and (viii) except as set forth below, Tenant's Audit shall be
conducted at Tenant's sole cost and expense. In the event that
Tenant's Audit demonstrates to Landlord's reasonable satisfaction that
Landlord has overstated the Operating Expenses or Taxes for the year
audited, then Tenant's Proportionate Share of the overstated amount
shall be credited against Tenant's next payment of Base Rental due
under this Lease, or if the Lease Term has expired and no further
amounts are due from Tenant under this Lease, Landlord shall refund
such overstated amount to Tenant within thirty (30) days following
Landlord's receipt of documentation reasonably acceptable to Landlord
reflecting the calculation of such overstated amount. Additionally, in
the event that Tenant's Audit demonstrates to Landlord's reasonable
satisfaction that Landlord has overstated the Operating Expenses or
Taxes for the year audited by more than five percent (5%), then, in
addition to reimbursing Tenant for Tenant's Proportionate Share of
such overstated amount, as set forth above, Landlord shall also
reimburse Tenant for Tenant's actual reasonable cost incurred in
conducting Tenant's Audit within thirty (30) days of Landlord's
receipt of documentation reasonably acceptable to Landlord reflecting
the amount of such cost.
(c) Additional Rental - Taxes.
-------------------------
(1) Reimbursement of Taxes. If in any Comparison Year, Taxes paid or
----------------------
incurred shall exceed the Taxes paid or incurred in the Base Year,
Tenant shall pay as Additional Rental for each Comparison Year,
Tenant's Proportionate Share of such excess as and when specified
below. An annual determination of Taxes shall be made by Landlord
pursuant to generally accepted accounting principles and shall be
binding upon Landlord and Tenant, subject to Tenant's audit rights
described above.
(2) Estimates of Taxes. Prior to April 1st of any Comparison Year,
------------------
Landlord may, if it so elects, estimate the amount of such Taxes. If,
in the reasonable estimation of Landlord, such Taxes will exceed the
Taxes for the Base Year, Landlord shall give Tenant written
notification on or before April 1st of the amount of such estimated
excess and the amount of such excess that will be due each month from
Tenant. Tenant agrees, subsequent to receipt of such written
notification, to pay monthly Tenant's Proportionate Share of such
excess at the same time and in the same manner as Base Rental is due
from Tenant hereunder.
(3) Annual Reconciliation. If the total amount Tenant actually paid for
---------------------
estimated increases in Taxes is less than Tenant's Proportionate Share
of the actual increase, Tenant shall pay to Landlord as Additional
Rental, in one lump sum, the difference between the total amount
actually paid by Tenant for such Comparison Year and the amount Tenant
should have paid pursuant to the preceding paragraph; this lump sum
payment shall be made within thirty (30) days of Tenant's receipt of
Landlord's invoice therefor, which shall be forwarded from Landlord to
Tenant no later than May 1 of the following year; or if the total
amount Tenant actually paid for the estimated increase in Taxes is
more than Tenant's Proportionate Share of the actual increase, then
Landlord shall remit the excess to Tenant within thirty (30) days of
the making of such determination, but no later than June 1 or, at
Landlord's
-9-
election, credit such amount against the next monthly installment of
Base Rental due from Tenant under this Lease.
(4) Prorations. If the Commencement Date occurs during the first
----------
Comparison Year and is a day other than January 1, or if the
Expiration Date is other than December 31, Tenant's Proportionate
Share of any increase in Taxes for such year(s) shall be multiplied by
a fraction, the numerator of which is the number of days of such year
that are within the Term of this Lease, and the denominator of which
is 365. Even if the Term has expired, and Tenant has vacated the
Premises when the final determination is made of Tenant's
Proportionate Share of Taxes for the year in which this Lease expires,
Tenant shall pay any increase due over the estimated amount paid and
conversely any overpayment made shall be rebated by Landlord to
Tenant, all as specified above.
2.2 SECURITY DEPOSIT
----------------
(a) Cash Security Deposit. Contemporaneously with Tenant's execution of this
Lease and the delivery of same to landlord for execution, Tenant shall pay
to Landlord, as a security deposit, the amount of Fifteen Thousand, Seven
Hundred Eighty-one and 84/100 Dollars ($15,781.84) (the "Security
Deposit"). The Security Deposit is refundable to Tenant within thirty (30)
days following the Expiration Date, as the same may be extended by the
parties from time to time, provided that no defective conditions are left
unrepaired by Tenant, other than normal wear and tear, loss by fire or
other casualty not caused by Tenant, Tenant's employees, agents or
contractors or condemnation, and provided Tenant is not otherwise in
default under this Lease. Landlord may, but shall not be required to, apply
all or a portion of the Security Deposit toward sums due to Landlord by
Tenant hereunder and/or in order to make any repairs to the Premises
required to be made by Tenant hereunder, and any portion of this Security
Deposit used by Landlord for such purposes shall be restored by Tenant
within fifteen (15) days after Tenant's receipt of written demand therefor
from Landlord. Any portion of the Security Deposit not required to
reimburse Landlord for Landlord's expense in repairing defective conditions
caused by Tenant or for paying amounts owed by Tenant to Landlord, shall be
refunded to the Tenant as provided above. Tenant shall not be entitled to
any interest that may accrue on the Security Deposit during the Term of
this Lease.
(b) Letter of Credit.
(1) Description of Letter of Credit. As additional security for the full
and faithful performance of all the monetary terms, conditions and
obligations of Tenant under this Lease (collectively, the
"Obligations"), Tenant shall maintain in full force and effect
throughout the Term of this Lease, an irrevocable, standby letter of
credit in favor of Landlord or its successors or assigns, with a
lending institution reasonably acceptable to Landlord, in the amounts
set forth in this section (the "Letter of Credit"). The Letter of
Credit shall be in a form substantially similar to the form Letter of
Credit attached hereto as Exhibit "E," or in such other form as may be
reasonably acceptable to Landlord. Upon Tenant's delivery of the
executed Letter of Credit to Landlord, and Landlord's acceptance of
same, a true and genuine photocopy of the executed Letter of Credit
shall be attached hereto as Exhibit "E-l " and incorporated herein by
this reference.
(2) Credit Limit. The Letter of Credit shall be issued in an amount
(referred to herein as the "Credit Limit") equal to the sum of (i)
three (3) month's Base Rental due from Tenant for the first Lease
Year, the amount of which is equal to Twenty-three Thousand, Six
-10-
Hundred Seventy-two and 76/100 Dollars ($23,672.76); plus (ii) the
entire amount of "Landlord's Costs," as defined in Paragraph 6.3(d)
of this Lease. Prior to the commencement of construction of the
Improvements, Tenant shall deliver a temporary Letter of Credit issued
in accordance with the requirements of this section in the amount of
One Hundred Thirty-two Thousand, Fifty-six and 50/100 Dollars
($132,056.50), which amount is Landlord's estimate of the amount that
will be equal to the Credit Limit (the "Temporary Letter of Credit").
Upon completion of the construction of the Improvements, Landlord
shall provide Tenant with written notice of the actual amount of
Landlord's Costs incurred, and the actual amount of the Credit Limit;
within ten (10) business days after Tenant's receipt of such notice,
Tenant shall deliver a replacement Letter of Credit to Landlord in the
amount of the Credit Limit, and the Temporary Letter of Credit shall
be canceled by Landlord and returned to Tenant.
(3) Drawing upon the Letter of Credit in the event of default. In the
event that Tenant shall default in any of its Obligations under this
Lease, and fail to cure such default within the time permitted under
this Lease, then in addition to any other remedies provided under this
Lease, Landlord shall be entitled to a draw upon the Letter of Credit,
in the manner described in the Letter of Credit, in such amount as may
be necessary in order to cure such default on behalf of Tenant. In the
event that Landlord draws upon the Letter of Credit, Tenant shall,
within fifteen (15) days of receipt of notice from Landlord that the
Letter of Credit has been drawn down, restore the Letter of Credit to
the full amount of the Letter of Credit then required to be maintained
by Tenant hereunder, and provide Landlord with documentation
reasonably acceptable to Landlord that the Letter of Credit has been
so restored. If Tenant (i) allows the Letter of Credit to lapse at any
time during the Term of this Lease, or (ii) fails to restore the
Letter of Credit to the amount required hereunder after the Letter of
Credit has been drawn upon by Landlord in accordance with the terms
hereof, then Tenant shall be in default under the Lease and Landlord
shall be entitled to exercise all remedies for default set forth in
this Lease.
(4) Drawing upon the Letter of Credit where Letter of Credit expires prior
to the expiration of the Lease Term. In the event that, for whatever
reason, Landlord receives notice from Tenant or the Lender that the
Letter of Credit will expire prior to the expiration of the initial
Term of this Lease, then the parties agree that in such event,
Landlord may immediately draw upon the Letter of Credit in accordance
with its terms which expressly provide for such draw to be permitted,
even if no default by Tenant has occurred under this Lease. In such
event, the funds drawn by Landlord upon the Letter of Credit shall be
held by Landlord as an additional security deposit, in accordance with
the terms of subparagraph (a) above.
(5) Release from obligation to maintain Letter of Credit. Notwithstanding
the foregoing, after the expiration of the first Lease Year, Tenant
shall be released from its obligation to maintain the Letter of Credit
in the event that(i) Tenant delivers to Landlord financial statements
of Tenant, audited by a certified public accounting firm, that reflect
that Tenant's net worth at such time is at least Ten Million Dollars
($1O,OOO,OOO.00), and that Tenant then has a positive cash flow after
interest expenses are deducted, and (ii) as of the date of Landlord's
receipt of such documentation, no event of default, as defined in
Paragraph 6.2 of this Lease, has occurred and remains uncured beyond
the expiration of any applicable cure period. Upon the satisfaction by
Tenant of all of the conditions set forth in this subparagraph for the
release of Tenant from its obligation to maintain the
-11-
Letter of Credit, Landlord shall return the original Letter of Credit
to Tenant marked "Canceled."
(6) Amendment of Letter of Credit in event of assignment. In the event
that Tenant assigns its rights and obligations under this Lease to the
"Bank," as defined below, Tenant shall either replace the Letter of
Credit, or obtain an amendment to the Letter of Credit, reflecting
that Tenant's obligations under this Lease, as assigned to the Bank,
remain secured by the Letter of Credit.
III. USE, MAINTENANCE AND REPAIR OF PREMISES
---------------------------------------
3.1 USE OF PREMISES
---------------
Tenant shall use the Premises only for business or professional office purposes
and shall not use the Premises for any illegal purpose, or violate any statute,
regulation, rule, or order of any governmental body, or create or allow to exist
any nuisance, or trespass, or do any act in or about the Premises, or bring
anything onto or in the Premises or the Building which will in any way increase
the rate of insurance on the Building, deface or injure the Building, or
overload the floor of the Premises. The number of full-time or part-time
employees, agents and contractors for whom office space is provided in the
Premises on either a permanent or temporary basis shall not exceed one (1)
person for each one hundred twenty-five (125) rentable square feet of space
contained within the Premises. Tenant shall not permit smoke from cigarettes,
cigars, or any other type of smoking instrument used by Tenant or Tenant's
employees, agents, invitees, or licensees to filter into the Common Areas of the
Building, or into other tenants' premises, or to create in any manner a nuisance
which interferes with other tenants' rights of quiet enjoyment of their premises
in the Building (collectively the "Smoking Nuisance"). Additionally, Tenant
shall inform all of its employees (and all other agents and contractors who
regularly occupy the Premises) that smoking is prohibited in all Common Areas of
the Building, and of the foregoing restrictions set forth in this paragraph. If
a Smoking Nuisance is generated in the Premises that Landlord desires for Tenant
to eliminate, then Landlord shall notify Tenant of the existence of such Smoking
Nuisance, and Tenant shall have twenty (20) days from the date of receipt of
Landlord's notice to eliminate the Smoking Nuisance in a manner approved by
Landlord. If Tenant fails to eliminate the Smoking Nuisance to Landlord's
satisfaction, Landlord, at Tenant's expense, may install all reasonable
filtering devices necessary to eliminate the Smoking Nuisance.
3.2 COMPLIANCE WITH LAWS
--------------------
(a) Landlord's Compliance. During the Term of this Lease, Landlord shall be
---------------------
responsible for making any modifications to the Project and Building or its
appurtenances, excluding the Premises, but including the parking lot,
Common Areas, elevators and entrances serving the Project and Building,
required pursuant to any applicable federal, state and local laws,
ordinances, building codes, and rules and regulations of governmental
entities having jurisdiction over the Project, including but not limited to
the Americans with Disabilities Act (the "ADA") and all regulations and
orders promulgated pursuant to the ADA (collectively, the "Applicable
Laws"). Any modifications to the Project and/or the Building made by
Landlord pursuant to the provisions of this paragraph shall initially be at
Landlord's expense; however, such expense may be included in Landlord's
Operating Expenses of the Project as set forth above. Landlord represents
to Tenant that, to the best of Landlord's present knowledge as of the
Effective Date of this Lease, the Premises, including the Building, the
parking areas and driveways serving the Building will be in compliance with
all laws, ordinances, orders, rules, regulations, ADA and other
governmental requirements relating to the use, condition, and occupancy of
the same.
-12-
Landlord represents that, to the best of Landlord's knowledge as of the
Effective Date of this Lease, no part of the Premises or the Building,
including the walls, ceilings, structural steel, flooring, pipes or
boilers, is wrapped, insulated, fire-proofed or surfaced with any
asbestos-containing materials (hereinafter "ACM"). During the Term, if
Tenant's or any other party's testing or examination indicates the presence
of ACM in the Premises or the Building, Tenant will give Landlord thirty
(30) days' prior notice to remove same and to restore the area affected to
its prior condition, but with new non-ACM wrapping, insulation,fireproofing
or surfacing. If within thirty (30) days of such notice, Landlord has not
completed such removal and restoration, Landlord shall be in default under
this Lease.
(b) Tenant's Compliance. 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, upon, or connected
with the Premises, all at Tenant's sole expense. Tenant warrants that all
improvements or alterations of the Premises made by Tenant or Tenant's
employees, agents or contractors, either prior to Tenant's occupancy of the
Premises or at any time during the Term of this Lease, will comply with all
Applicable Laws. In addition, Tenant warrants that its use of the Premises
will be in strict compliance with all Applicable Laws. During the Term
of this Lease, Tenant shall, at Tenant's sole cost and expense, be
responsible for making any modifications to the Premises that may be
required pursuant to any Applicable Laws.
(c) Mutual Indemnity. Landlord agrees to indemnify, defend and hold Tenant
----------------
harmless from and against any claims, losses or causes of action arising
out of Landlord's failure to comply with the provision of subparagraph (a)
above. Tenant shall indemnify, defend and hold Landlord harmless from and
against any claims, losses or causes of action arising out of Tenant's
failure to comply with the provisions of subparagraph (b) above. The
indemnities set forth in this paragraph shall survive the expiration or
earlier termination of this Lease.
3.3 HAZARDOUS MATERIALS
-------------------
The term "Hazardous Materials," as used in this Lease, shall include, without
limitation, flammables, explosives, radioactive materials, asbestos,
polychlorinated biphenyls (PCBs), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority. Tenant shall, at
Tenant's sole expense, comply with all laws regulating the use, generation,
storage, transportation, or disposal of Hazardous Materials (collectively,
"Environmental Laws").
Tenant shall not cause or permit to occur: (a) any violation of any federal,
state, or local Environmental Law, ordinance, or regulation now or hereafter
enacted, related to environmental conditions in, on, under, or about the
Premises, or arising from Tenant's use or occupancy of the Premises, including,
but not limited to, soil and ground water conditions; or (b) the use,
generation, release, manufacture, refining, production, processing, storage, or
disposal of any Hazardous Materials in, on, under, or about the Premises, or the
transportation to or from the Premises of any Hazardous Materials, in violation
of any Environmental Law; provided, however, minor quantities of Hazardous
Materials may be used or stored in the Building and on the Property for cleaning
purposes, in connection with the use of office equipment and the normal
operation of offices by tenants and occupants of the Building and in connection
with construction and maintenance activities relating to the Building and the
Project and, so long as such quantities and the use thereof are permitted by or
are exempt from applicable governmental regulation.
-13-
Tenant shall, at Tenant's own expense, make all submissions to, provide all
information required by, and comply with all requirements of all governmental
authorities (the "Authorities") under the Environmental Laws. Should any
Authority or any third party demand that a clean-up plan be prepared and that a
clean-up be undertaken because of any use, deposit, spill, discharge, or other
release of Hazardous Materials that occurs during the Term of this Lease, at or
from the Premises, or which arises at any time from Tenant's use or occupancy of
the Premises, then Tenant shall, at Tenant's sole expense, prepare and submit
the required plans and all related bonds and other financial assurances; and
Tenant shall carry out all such clean-up plans, all at Tenant's own expense.
Tenant shall promptly provide all information regarding the use, generation,
storage, transportation, or disposal of Hazardous Materials that is requested by
Landlord. If Tenant fails to fulfill any duty imposed under this section within
a reasonable time, Landlord may do so; and in such case, Tenant shall cooperate
with Landlord in order to prepare all documents Landlord deems necessary or
appropriate to determine the applicability of the Environmental Laws to the
Premises and Tenant's use thereof, and for compliance therewith, and Tenant
shall execute all documents that are accurate promptly upon Landlord's request.
No such action by Landlord and no attempt made by Landlord to mitigate damages
under any Environmental Law shall constitute a waiver of any of Tenant's
obligations under this section.
Tenant shall indemnify, defend, and hold harmless Landlord, the manager of the
Project, and their respective officers, directors, beneficiaries, shareholders,
partners, agents, and employees from all fines, suits, procedures, claims, and
actions of every kind, and all costs associated therewith (including attorneys'
and consultants' fees) arising out of or in any way connected with any use,
deposit, spill, discharge, or other release of Hazardous Materials that occurs
during the Term of this Lease, at or from the Premises, or which arises at any
time from Tenant's use or occupancy of the Premises, or from Tenant's failure to
provide all information, make all submissions, and take all steps required by
all Authorities under the Environmental Laws and all other applicable laws.
Any increase in the premiums for necessary insurance on the Building or any
portion of the Project which arises from Tenant's use and/or storage of
Hazardous Materials shall be solely at Tenant's expense. Tenant shall procure
and maintain, at its sole expense, such additional insurance as may be necessary
to comply with any requirement of any federal, state or local governmental
agency with jurisdiction over the Premises.
If Landlord, in its sole discretion, believes that the Premises have become
contaminated with Hazardous Materials that must be removed under the
Environmental Laws Landlord, in addition to its other rights under this Lease,
may enter upon the Premises and obtain samples from the Premises for the
purposes of analyzing the same to determine whether and to what extent the
Premises have become contaminated. Tenant shall reimburse Landlord for the costs
of any inspection, sampling and analysis that discloses contamination for which
Tenant is liable under the terms of this Lease. Tenant may not perform any
sampling, testing, or drilling to locate any Hazardous Materials on the Premises
without Landlord's prior written consent.
Notwithstanding the foregoing, Landlord hereby agrees to indemnify and hold
Tenant, Tenant's officers, directors, beneficiaries, shareholders, partners,
agents and employees harmless from any and all claims, demands, actions,
liabilities, costs, expenses, damages and obligations (including attorneys' and
consultants' fees) of any nature arising from, or as a result of (i) the
presence or use of any Hazardous Materials anywhere in the Project, Building or
the Premises, whether such presence or use was prior to, during, or after
Tenant's occupancy of the Premises, if such materials were used or placed there
by Landlord or Landlord's agents, contractors, partners, invitees, licensees or
employees or Landlord's predecessor-in-title; (ii) the presence or use of any
Hazardous Materials in the Premises prior to Tenant's occupancy of the Premises,
provided such presence or use was not caused by Tenant, its employees, agents,
contractors, subcontractors, invitees or licensees; and (iii) the presence or
use of any Hazardous Materials in the Premises
-14-
occurring after the expiration or earlier termination of the Term of this Lease,
as the same may be extended from time to time, or after Tenant vacates the
Premises, whichever occurs last, provided such presence or use was not caused by
Tenant, its employees, agents, contractors, subcontractors, invitees or
licensees.
Landlord represents to the best of Landlord's present knowledge that there are
no Hazardous Substances located on the Premises, the removal of which is
required or the maintenance of which is prohibited by any local, state or
federal agency or authority. Landlord hereby agrees to indemnify and hold
harmless Tenant and its officers, directors, employees, agents and partners from
and against any and all expense, loss and liability suffered by Tenant, and/or
any such other parties by reason of a violation of this representation.
The obligations and liabilities of both parties under this section shall survive
the expiration or earlier termination of the Lease.
3.4 SERVICES TO TENANT
------------------
Subject to limitations contained in any governmental controls now or hereafter
imposed, and subject to all the terms and conditions of this Lease, Landlord
shall provide the following services:
(a) Heating, ventilation and air-conditioning ("HVAC") service daily on Monday
through Friday, inclusive, except for holidays observed by national banks
as legal holidays, from 8:00 a.m. to 6:00 p.m., and on Saturdays, if not a
holiday, from 8:00 a.m. to 1:00 p.m. (the "Building Hours"). Upon the
prior request of Tenant made in accordance with the then current Rules and
Regulations of the Building, HVAC services are available to the Premises
outside of normal Building Hours for the payment of an additional hourly
charge therefor consisting of Landlord's actual direct cost of supplying
such services. The Premises shall meet the minimum published standards of
the American Society of Heating and Refrigerating and Air Conditioning
Engineers, and the HVAC systems which supply heating, ventilation and air
conditioning to the Premises shall be designed so that such systems have
the capacity to furnish a minimum of twenty (20) cubic feet of fresh air
per person.
(b) Elevator access to the Premises 24 hours a day, 7 days a week; provided,
however, that access to the Building and the Premises after Building Hours
may be restricted by Landlord by means of after-hours pass cards or a
monitored sign/in and sign/out sheet.
(c) Electric current for building standard tenant lighting and small business
machinery only from electric circuits as designated by Landlord on the
construction drawings for Tenant's use. Tenant will not use any electrical
equipment which will cause the electrical load of the Premises to exceed
3.0 xxxxx per rentable square foot of the Premises. Tenant will not,
without Landlord's prior written consent connect any auxiliary air
conditioners to the electrical system of the Premises, or make any
alteration or addition to the electrical system in the Premises or
Building. If any additional circuitry or wiring is required by Tenant, and
Landlord approves the installation of the same in writing, such work shall
be performed at Tenant's expense by Landlord's electrician or under
Landlord's control and supervision, and Tenant shall pay Landlord for such
additional work as billed. Landlord reserves the right to install a
separate meter for the Premises to determine whether Tenant is utilizing
electric current in excess of the amount permitted hereunder. In the event
that Tenant utilizes electric current in excess of the amount permitted
hereunder, then Landlord shall have the right to charge Tenant,
-15-
as Additional Rental, the direct cost of such additional electricity, plus
the cost of installing and maintaining a separate meter for the Premises.
(d) General cleaning and janitorial services to the Premises in accordance with
the Building's standard cleaning schedule, and consistent with buildings
comparable to the Building in the same geographical area as the Building is
located.
(e) Reasonable quantities of water to lavatories, toilets and water fountains
in or appurtenant to the Premises. In the event that Tenant utilizes
quantities of water in excess of the amount which would be typically
utilized by normal business office use of the Premises, then Landlord shall
have the right to install, at Tenant's expense, a separate water meter for
the Premises, and charge Tenant, as Additional Rental, the direct cost of
such additional use, plus the cost of maintaining a separate water meter
for the Premises.
3.5 LIABILITY OF LANDLORD
---------------------
Except for the willful misconduct or gross negligence of Landlord, its agents,
contractors and employees, Landlord shall not be liable to Tenant for failure or
delay in furnishing any service provided for in this Lease, and no such failure
or delay to furnish any service or services by Landlord shall be an actual or
constructive eviction of Tenant nor shall any such event operate to relieve
Tenant from the prompt and punctual performance of each and all of the covenants
to be performed herein by Tenant; provided, however, that if Landlord shall fail
to provide any service to Tenant that Landlord is required to provide to Tenant
hereunder, and such failure shall persist for a period of two (2) weeks after
Landlord's receipt of written notice from Tenant of the existence of such
failure, and such failure is not due to a force majeure event, and as a result
of such failure, the Premises or a portion thereof shall be substantially
unusable by Tenant for the purposes for which they were demised to Tenant under
this Lease, then, commencing with the expiration of such two (2) week period,
Tenant's Base Rental and Additional Rental due under this Lease shall xxxxx in
the proportion that the rentable square footage of the portion of the Premises
rendered substantially unusable by such failure bears to the total rentable
square footage of the Premises for the period of time that such portion is
substantially unusable; nor shall Landlord be liable to Tenant for damage to
person or property caused by defects in the cooling, heating, electric, water,
elevator or other apparatus or systems or by water discharged from any bursting
of pipes or discharge from the sprinkler systems unless caused in part or in
whole by Landlord's willful misconduct or gross negligence, if any, in the
Building; nor shall Landlord be liable to Tenant for the theft, or loss of any
property of Tenant whether from the Premises or any part of the Building or
Project unless caused in part or in whole by Landlord's willful misconduct or
gross negligence. Landlord agrees to make reasonable efforts to protect Tenant
from interference or disturbance of third persons including other tenants of the
Project; however, Landlord shall not be liable for any such interference or
disturbance whether caused by another tenant or tenants or Landlord or other
person, nor shall Tenant be relieved from any obligation under this Lease
because of such interference, disturbance or breach.
3.6 IMPROVEMENTS, REPAIRS BY LANDLORD
--------------------------------
Except as may be specifically set forth in this Lease and any Special
Stipulations attached hereto, Landlord shall have no obligation to alter,
remodel, improve, repair, decorate or paint the Premises. Landlord shall,
however, repair and maintain all Common Areas of the Project and the structural
portions of the Building, Premises and Project, including without limitation the
basic plumbing, air conditioning, heating and electrical systems, and the roof,
foundation and sprinklers installed in the Building, unless the condition
requiring such maintenance is caused in part or in whole by
-l6-
Tenant's willful misconduct or gross negligence, in which case Tenant shall pay
Landlord the reasonable cost of such maintenance or repairs. By taking
possession of the Premises, Tenant accepts them as being in good order,
condition and repair, and in the condition which Landlord is obligated to
deliver them to Tenant, except for such items as Tenant may set forth on a punch
list to be provided from Tenant to Landlord in accordance with the Notices
provision of this Lease within ten (10) days after Landlord's delivery of
possession of the Premises to Tenant. Landlord shall be responsible for the
repair of all latent defects. Landlord shall not be liable for any failure to
make any repairs or to perform any maintenance required of Landlord hereunder,
unless such failure shall persist for an unreasonable period of time after
written notice of the need for such repairs or maintenance is given to Landlord
by Tenant in accordance with the Notices provision of this Lease.
3.7 LANDLORD'S RIGHT TO ENTER PREMISES
Tenant will install a security system for the Premises and may change the locks
on any entrance to the Premises. Tenant shall provide Landlord with the access
code to the Premises for use in the following circumstances only: (i) for
janitorial services pursuant to the terms of this Lease; and (ii) for emergency
access. Tenant will also have a security service monitoring the Premises twenty-
four (24) hours each day, seven (7) days per week. Tenant shall provide Landlord
with the direct telephone number to the security service. Landlord and its
agents, employees and independent contractors shall have the right to enter the
Premises at all times in the event of an emergency after contacting the security
service, and at reasonable hours upon twenty-four (24) hours prior notice to
make repairs, additions, alterations, and improvements that are required by this
Lease or are otherwise performed with Tenant's prior written consent; upon
twenty-four (24) hours prior notice to exhibit the Premises to prospective
purchasers, lenders or tenants, but Landlord may enter to exhibit the Premises
to prospective tenants only during the last twelve (12) months of the Term or
following any event of default if such default remains uncured after any
applicable cure period; and upon twenty-four (24) hours prior notice to inspect
the Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder. Landlord shall also have the right to enter the Premises
at reasonable hours to install, maintain, repair and replace pipes, wires,
cables, duct work, conduit and utility lines through hung ceiling space and
column space within the Premises. Landlord agrees to use best efforts to
minimize any interference with Tenant's business caused by such entry. During
such time as such work is being carried on in or about the Premises, payments
provided herein shall not xxxxx and Tenant waives any claim or cause of action
against Landlord for damages by reason of interruption of Tenant's business or
loss of profits therefrom because of the prosecution of any such work or any
part thereof.
3.8 REPAIRS BY TENANT
-----------------
With the exception of those items set forth in this Lease that are required to
be repaired by Landlord, Tenant, during the Term of this Lease or any extension
or renewal of this Lease, shall, at its sole cost and expense, make all repairs
as shall be reasonably necessary to keep the Premises, and any portion of the
Building under Tenant's exclusive control, in good condition and repair, normal
wear, loss by fire or other casualty not caused by the gross negligence or
willful misconduct of Tenant, Tenant's employees, agents or contractors and
condemnation excepted. Tenant further agrees that all damage or injury of
whatever nature done to the Premises by the Tenant or by any person in or upon
the Premises except the Landlord, Landlord's agents, servants and employees,
shall be repaired by Tenant at its sole cost and expense.
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3.9 ALTERATIONS
-----------
Except as set forth below, Tenant shall make no alterations or other
improvements (collectively, "Alterations") to the Premises without
Landlord's prior written consent. Unless otherwise agreed, all such
approved Alterations shall be made by Landlord at Tenant's sole expense
and shall become the property of Landlord and be surrendered with the
Premises upon the expiration of this Lease. Landlord may, at Landlord's
option, require Tenant to remove any or all such Alterations, and repair
any damage to the Premises resulting from such Alterations, upon the
expiration or earlier termination of this Lease, provided that Landlord
informs Tenant at the time of providing its written consent to the making
of any such Alteration, if Landlord's consent is required hereunder, that
Tenant will be required to remove such Alteration, and repair any damage to
the Premises resulting from such Alteration or the removal of such
Alteration, prior to the expiration or earlier termination of this Lease.
Notwithstanding the above, Tenant shall have the right to make Alterations
that are non-structural, and do not affect any of the Building Systems, as
defined below (collectively, "Permitted Alterations"), without obtaining
Landlord's prior written consent, except as required below, provided that
(i) the cost of such Permitted Alterations does not exceed Twenty Thousand
Dollars ($20,000.00) for a single Permitted Alteration, or in the aggregate
for all Permitted Alterations performed within a six (6) month period; (ii)
upon completion of such Permitted Alterations, Tenant shall deliver to
Landlord the as-built plans and specifications (if prepared) for such
Permitted Alterations; and (iii) such Alterations are not Special
Alterations, as defined below. Without regard to the cost of installing a
vault, a teller window, or other specialized Alterations that would be
installed in connection with Tenant's operation of a bank in the Premises
("Specialized Alterations"), such Specialized Alterations shall be
excluded from the definition of Permitted Alterations set forth above; they
shall constitute Alterations, the making of which shall require Landlord's
prior written consent as provided above; and Landlord shall inform Tenant
at the time of making such Alterations as to whether their removal will be
required upon the expiration or earlier termination of the Lease in
accordance with the foregoing provisions of this paragraph. Provided,
further, that by its execution of this Lease, Landlord hereby consents to
Tenant's installation of a vault within the Premises in a location that is
mutually acceptable to Landlord and Tenant. By its execution of this Lease,
Tenant hereby agrees that Tenant shall, at Tenant's sole cost and expense,
repair any damage to the Building resulting from the installation of the
vault in the Premises, and upon the expiration or earlier termination of
the Lease (i) remove the vault from the Property; (ii) repair any damage to
the Premises resulting from the installation, maintenance or removal of the
vault; and (iii) repair any damage to the Building or the Property
resulting from the removal of the vault.
3.10 LIENS
-----
Excluding the Improvements, Tenant shall pay or cause to be paid all costs for
work done by or on behalf of Tenant or caused to be done by or on behalf of
Tenant in the Premises of a character which will or may result in liens against
Landlord's interest in the Premises, the Building or the Project, or any part
thereof, and Tenant will keep the same free and clear of all mechanics' liens
and other liens on account of work done for or on behalf of Tenant or persons
claiming under Tenant. Excluding the Improvements, Tenant hereby agrees to
indemnify, defend and save Landlord harmless of and from all liability, loss,
damages, costs or expenses, including reasonable attorneys' fees, incurred in
connection with any claims of any nature whatsoever for work performed for, or
materials or supplies furnished to Tenant, including lien claims of laborers,
materialmen or others. Should any such liens be filed or recorded against the
Premises, the Building or the Project with respect to work done for or materials
supplied to or on behalf of Tenant, Tenant shall cause such liens to be released
of record within twenty (20) days after Tenant's receipt of Landlord's
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notice of the existence of such lien. If Tenant desires to contest any such
claim of lien, Tenant shall nonetheless cause such lien to be released of record
by the posting of adequate security with a court of competent jurisdiction as
may be provided by Georgia's lien statutes. If Tenant shall be delinquent in
paying any charge for which such a mechanics' lien or suit to foreclose such a
lien has been recorded or filed and shall not have caused the lien to be
released as set forth above, Landlord may (but without being required to do so)
pay the amount claimed to be due under such lien or claim and costs associated
therewith, and the amount so paid, together with interest thereon at the highest
rate permitted by law, together with reasonable attorneys' fees incurred in
connection therewith, shall be immediately due from Tenant to Landlord as
Additional Rental.
IV. CONDEMNATION, DESTRUCTION, DAMAGE AND INSURANCE
-----------------------------------------------
4.1 EMINENT DOMAIN
--------------
If the whole of the Premises shall be taken by Federal, State, County or City
authority for public use, or under any statute, or by right of eminent domain
(or is conveyed by Landlord in lieu of such taking), then the Term hereby
granted and all rights of the Tenant hereunder shall cease and terminate as of
the day before the effective date of such taking. It is expressly agreed that
the Tenant shall not have any right or claim to any award made to or received by
the Landlord for such taking. Provided, however, that Tenant shall have the
right to separately pursue an award from the condemning authority for its
damages incurred in relocating its business to other premises, so long as such
award or the pursuit thereof will not reduce any award that would otherwise be
available to Landlord from such condemning authority.
4.2 DESTRUCTION OR DAMAGE TO PREMISES
---------------------------------
If the Premises or Building shall be damaged or destroyed in whole or in part by
fire, casualty or other causes covered by Landlord's insurance, Landlord shall
promptly and diligently restore the Premises or Building to their condition
immediately prior to such destruction or damage, provided that, in Landlord's
reasonable estimation, such repairs can be made within sixty (60) days of such
destruction or damage. Tenant shall, upon substantial completion by Landlord,
promptly and diligently, and at its sole cost and expense, repair and restore
any improvements to the Premises made by Tenant to the condition thereof prior
to such destruction or damage. If, in Landlord's reasonable estimation, the
Premises cannot be restored within sixty (60) days of such damage or
destruction, Landlord at its option shall, by written notice to Tenant given
within sixty (60) days after the date of such fire or other casualty, either (i)
elect to repair or restore such damage, this Lease continuing in full force and
effect, or (ii) terminate this Lease as of a date specified in such notice,
which date shall not be less than thirty (30) nor more than sixty (60) days
after the date such notice is given. Until the restoration of Landlord's Work is
complete, there shall be an abatement or reduction of Base Rental in the same
proportion that the square footage of the Premises so damaged or destroyed and
under restoration bears to the total square footage of the Premises, unless the
damaging event was caused by the negligence or willful misconduct of Tenant, its
employees, officers, agents, licensees, invitees, visitors, customers,
concessionaires, assignees, subtenants, contractors or subcontractors, in which
event there shall be no such abatement.
In the event that, in Landlord's estimation, such rebuilding or repairs can be
completed within ninety (90) days following the event resulting in such damage
or destruction, and Landlord undertakes such rebuilding or repairs, but fails to
complete same within one hundred twenty (120) days following such event, unless
such failure is due to force majeure, in which case such period of time shall be
extended for the period during which such force majeure exists, then Tenant
shall have the option of terminating this Lease by providing Landlord with
written notice of such termination no later than ten (10) days following
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the expiration of such one hundred twenty (120) period, as the same may be
extended due to force majeure; in the event that Tenant elects to terminate this
Lease pursuant to this paragraph, then such termination shall be effective ten
(10) days following Landlord's receipt of such notice, and the Lease Term shall
be terminated as if it had expired on that date.
Notwithstanding the foregoing provisions of this paragraph, if damage to or
destruction of the Premises, in excess of fifty percent (50%) of the value of
the Premises, shall occur within the last year of the Term of this Lease, as
the same may be extended as provided hereinafter, the obligation of Landlord to
restore the Premises shall not arise unless (i) Landlord, at its sole option,
elects to restore the Premises; (ii) Landlord, at its sole option, elects to
provide Tenant with the opportunity of extending the Term of this Lease for an
additional period so as to expire five (5) years from the date of the completion
by Landlord of the repairs and restoration to the Premises; and, (iii) Tenant
gives written notice to Landlord within thirty (30) days after Landlord's
request that it agrees to such extension. Such extension shall be on the terms
and conditions provided herein, if an option to extend this Lease remains to be
exercised by Tenant hereunder, or under the terms prescribed in Landlord's
notice, if no such further extension period is provided for herein. Upon receipt
of such notice from Tenant, Landlord agrees to promptly repair and restore the
Premises. Failing such notice to extend, Landlord at its option shall have the
right to terminate this Lease as of the date of the damaging event, or to
restore Landlord's Work in the Premises and the Lease shall continue for the
remainder of the then unexpired Term, or until the Lease is otherwise terminated
as provided herein. If damage to or destruction of the Premises, in excess
of fifty percent (50%) of the value of the Premises shall occur during the last
year of the Term of this Lease, then Tenant shall also have the option of
terminating this Lease by providing Landlord with written notice of such
termination no later than thirty (30) days following the event resulting in such
damage or destruction.
4.3 INDEMNIFICATION
---------------
Subject to the other provisions of this Lease, Tenant hereby indemnifies
Landlord from and agrees to hold Landlord harmless against, any and all
liability for any loss, injury, or damage (collectively, a "Loss"), including,
without limitation, all costs, expenses, court costs and reasonable attorneys'
fees, imposed on Landlord by any person whomsoever, caused by or resulting from
(i) any Loss occurring in the Premises (except where such Loss is caused by or
results from the gross negligence or willful misconduct of Landlord or its
employees, agents or contractors); and (ii) any Loss occurring in the Premises,
the Building or anywhere in the Project that is caused by or results from the
negligence or willful misconduct of Tenant, its employees, agents or
contractors. Subject to the provisions of this Lease, Landlord hereby
indemnifies Tenant from, and agrees to hold Tenant harmless against, any and all
liability for any Loss occurring in the Premises, the Building or anywhere in
the Project, including, without limitation, all costs, expenses, court costs and
reasonable attorneys' fees, imposed on Tenant by any person whomsoever, caused
by or resulting from the gross negligence or willful misconduct of Landlord or
its employees, agents or contractors. The provisions of this paragraph shall
survive the expiration or any termination of this Lease.
4.4 INSURANCE
---------
(a) Landlord's Insurance.
---------------------
(1) Landlord shall obtain and keep in force during the Term of this Lease
an insurance policy or policies of all-risks fire, extended coverage,
theft, vandalism, malicious mischief and other casualty, covering loss
or damages to the Project and the Common Areas, as well as all
improvements thereto, and the structural improvements to the Premises.
- 20 -
(2) Landlord shall also obtain and keep in force during the Term of this
Lease such other insurance in such amounts and with such policy
provisions as it shall deem necessary or appropriate, including
without limitation the following: commercial general liability
insurance pertaining to the Project and the Common Areas, and bodily
injuries, death and property damage arising or occurring therein.
(3) Tenant shall reimburse Landlord for any increase in the cost of any of
Landlord's insurance pertaining to the Project if said increase is
caused by or results from Tenant's use or occupancy of the Premises,
the breach of this Lease by Tenant, or the acts, omissions, or
negligence of Tenant, its employees, officers, agents, licensees,
invitees, visitors, customers, concessionaires, assignees, subtenants,
contractors or subcontractors.
(b) Tenant's Insurance. During the Term of this Lease, and any extension and
------------------
renewal thereof, Tenant, at its sole cost and expense, shall carry and
maintain the following policies of insurance with insurance companies
licensed or authorized to do business in the State of Georgia and rated as
no less than A-, Class VII in the current edition of Best's Guide, insuring
Landlord, Landlord's authorized agent, Tenant and any lender of record
encumbering the Premises if requested by Landlord, and shall deliver to
Landlord a certificate of insurance evidencing such coverage both prior to
taking possession of the Premises and annually thereafter:
(1) Property Insurance on the Special or All-Risk Form (including theft,
sprinkler leakage, boiler and machinery insurance), covering Tenant's
personal property, trade fixtures, inventory and equipment located in,
and all above-standard improvements to, the Premises in an amount
equal to the full replacement cost of all items; Landlord reserves the
right to request Tenant to have a replacement cost appraisal done not
less than every three years. Said All-Risk policy is to have a maximum
deductible of $250,000.00
(2) Commercial General Liability Insurance on an occurrence form including
premises operations, products/completed operations, hazard and
contractual coverage with limits of no less than $2,000,000.00 per
occurrence and $2,000,000.00 General Aggregate with an umbrella policy
of not less than $4,000,000.00.
(3) Workers' Compensation Insurance with liability limits required by the
laws of the state in which the Premises are located and employers
liability coverage.
(4) Business Interruption Insurance in amounts sufficient to pay for
Tenant's expenses and lost income attributable to perils commonly
insured against by prudent tenants or attributable to prevention of
access to the Premises as a result of such perils.
Such insurance shall, to the extent permitted by law, name Landlord and its
asset and property manager as additional insureds and provide for thirty (30)
days' prior written notice to Landlord and its asset and property manager before
any modification or termination of said insurance. The above-referenced
insurance shall be considered primary and non-contributory with or secondary to
coverage provided by Landlord. Landlord reserves the right to require additional
coverage and increase limits as industry standards change. Should Tenant engage
the services of a contractor, Tenant will make certain that such contractor will
carry General Liability Insurance and will name Landlord and its asset and
property manager as additional insureds.
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(c) Waiver of Subrogation. Landlord and Tenant shall each have included in
---------------------
all policies of all risks, fire, extended coverage, business interruption
and other property insurance respectively obtained by them covering the
Premises, the Building and contents therein, a waiver by the insurer of all
right of subrogation against the other in connection with any loss or
damage thereby insured against. Any additional premium for such waiver
shall be paid by the primary insured. To the full extent permitted by law,
Landlord and Tenant each waives all right of recovery against the other
(and any officers, directors, partners, employees, agents, and
representatives of the other) for, and agrees to release the other from
liability for, loss or damage to the extent such loss or damage is covered
by valid and collectible insurance in effect covering the party seeking
recovery at the time of such loss or damage or would be covered by the
insurance required to be maintained under this Lease by the party seeking
recovery. If the release of either party, as set forth in the immediately
preceding sentence, should contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not
released but shall be secondary to the liability of the other's insurer.
4.5 DAMAGE OR THEFT OF PERSONAL PROPERTY
------------------------------------
Tenant agrees that all personal property brought into the Premises shall be at
the risk of the Tenant only and that the Landlord shall not be liable for the
loss thereof or any damages thereto occasioned from any act of any co-tenant, or
other occupants of said Building or any other person, unless caused by the
willfuf misconduct or gross negligence of Landlord, its agents, employees,
contractors or invitees.
V. ADDITIONAL COVENANTS OF TENANT
------------------------------
5.1 ASSIGNMENT AND SUBLETTING
-------------------------
Tenant may not, without at least twenty (20) days' prior written notice to
Landlord in accordance with the Notices provision of this Lease, and the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld, 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 (collectively, an "Assignment"). In the event that Tenant
provides Landlord with notice of such proposed Assignment, such notice shall be
accompanied by a copy of any and all documents, instruments and agreements
pertaining to such transaction reasonably necessary for Landlord to evaluate
such proposed Assignment. Whether or not such proposed Assignment is approved by
Landlord, Tenant shall reimburse Landlord for its reasonable attorneys' fees
incurred in connection with reviewing any proposed Assignment, not to exceed
$1,500.00. Landlord shall have twenty (20) days from its receipt of Tenant's
notice of the proposed Assignment and all other required and reasonably
requested information within which to make a decision as to whether or not such
proposed Assignment will be approved. At a minimum, without limitation, in each
event the following requirements must be satisfied: (a) Tenant shall not be
released from any obligations or any liabilities hereunder as a result of any
such Assignment; (b) Tenant shall not be in default hereunder at the time it
requests Landlord's consent or on the effective date of the proposed Assignment;
(c) any Assignment or attempted Assignment without Landlord's consent shall be
voidable at Landlord's option; (d) Landlord shall be provided with such
information regarding the name, identity, business reputation and
creditworthiness of the proposed assignee as Landlord shall reasonably request;
and (e) in the case of an assignment of the Lease, the assignee shall deliver to
Landlord a written agreement whereby it assumes jointly and severally with
Tenant all of the obligations and liabilities of Tenant under this Lease. In the
event Landlord elects to approve a requested assignment of the Lease for the
entire Premises, Landlord has the right, but not the obligation, to terminate
the Lease effective as of the date Tenant vacates the Premises. Should Landlord
elect to terminate the Lease, Tenant shall be relieved of any liability or
obligation to pay rent
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beyond the date of termination. Unless Landlord expressly agrees to terminate
the Lease or Tenant's obligations hereunder, in no event shall any assignment or
subletting, whether approved by Landlord or not, relieve Tenant from its
obligations under this Lease. Consent to one assignment or sublease shall not
destroy or waive this provision, and all later assignments and subleases shall
likewise be made only upon prior written consent of Landlord. Assignees shall
become liable directly to Landlord for all obligations of Tenant hereunder,
without relieving Tenant's liability. Tenant shall be entitled to fifty percent
(50%) of any rent, rentals, payment, profit or any other sum or cost of the
assignee or sublessee for such Assignment in excess of the then applicable rent
and other charges payable by Tenant to Landlord under this Lease. Landlord shall
have the sole and absolute right to fifty percent (50%) of any and all amounts
paid or payable in excess of the rent and other charges payable by Tenant
hereunder.
In making Landlord's determination to approve or disapprove a proposed
assignment or sublease hereunder, Landlord and Tenant agree that Landlord may
withhold its consent to any proposed assignment or sublease, and such
withholding of consent by Landlord will not be deemed to be unreasonable, (1) if
the proposed assignee or subtenant is a dental, medical, chiropractic or a
governmental office, or (2) if the proposed assignee or subtenant shall be
engaged in a business in the Premises which is not permitted by or would
contravene the provisions of this Lease, or (3) if the lease or use of the
Premises or any portion thereof by such subtenant or assignee will cause
Landlord to be in violation of any restrictive use covenants granted by Landlord
to any other tenant in the Building in such tenant's lease, or (4) if the
proposed assignee or subtenant is, either at the time the request for consent is
submitted to Landlord or on the effective date of such proposed assignment or
sublease, then a tenant in the Building, or (5) if, in the case of a proposed
assignment, the proposed assignee is not of sufficient financial worth to
perform its obligations under this Lease as such obligations become due; or (6)
if the proposed assignee or subtenant is then a tenant in the Building, or is
then negotiating with Landlord to become a tenant in the Building; provided,
however, it is understood and agreed that the reasons outlined above in this
sentence are not intended, and shall not be construed, to be an exclusive list
of reasonable bases upon which Landlord may withhold its consent and Landlord
reserves the right to disapprove of a proposed assignment or sublease by virtue
of such other reasonable bases.
Upon execution of any sublease or assignment approved by Landlord under this
Article, a fully-executed counterpart of the sublease or assignment shall be
promptly delivered to Landlord by Tenant.
A change, whether voluntary, involuntary or by operation of law, or a merger,
consolidation or other reorganization of more than a 49% ownership in Tenant
shall be an assignment of this Lease and subject to the provisions of this
Article.
Notwithstanding the restrictions set forth herein on Tenant's ability to assign
the Lease or sublet the Premises, Tenant may assign its obligations and rights
under this Lease or sublet all or a portion of the Premises (collectively, a
"Permitted Assignment") to any corporation, partnership or other entity directly
or indirectly controlling, controlled by, or under common control with, Tenant
(a "Permitted Assignee"), without the requirement of obtaining Landlord's prior
written consent, provided that (a) the use of the Premises to be made by the
Permitted Assignee will be substantially the same as the use then being made of
the Premises by Tenant, and will be within the permitted uses of the Premises
under the Lease; and (b) no later than fifteen (15) days prior to the effective
date of the assignment of the Lease or the subletting of the Premises to a
Permitted Assignee, Tenant provides Landlord with written notice of such
assignment or subletting, including (i) the written acknowledgment of Tenant
that Tenant remains fully liable for all of Tenant's obligations under this
Lease until the expiration of the Term of the Lease, (ii) all documentation
reasonably requested by Landlord in order to evaluate the Permitted Assignment,
and (iii) in the case of an assignment of the Lease to the Permitted Assignee,
the express assumption by the
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Permitted Assignee of all obligations of Tenant under the Lease and the
Permitted Assignee's express agreement to be bound by all terms and conditions
of the Lease. The term "control," as used herein, shall mean, with respect to a
corporation, the right to the exercise, directly or indirectly, of more than 50%
of the voting rights attributable to the shares of the controlled corporation,
and, with respect to any person or entity that is not a corporation, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management of policies of the controlled person or entity.
Provided, further, that Landlord acknowledges that Tenant intends to assign its
rights and obligations under this Lease to a bank to be formed by Tenant and
which is known, as of the Effective Date of this Lease, as "United Commercial
Bank" (referred to herein as the "Bank") upon Tenant's receipt of the charter
required for the operation of the Bank. The parties agree that the Bank shall
constitute a Permitted Assignee, as defined above, and Tenant may assign its
rights and obligations unto the Bank in accordance with the terms of the
preceding paragraph. In addition, upon Landlord's receipt of a copy of the
Bank's charter, and either a replacement Letter of Credit, as defined above, or
an amendment to the Letter of Credit reflecting that Tenant's obligations under
this Lease, as assigned to the Bank, are secured by the Letter of Credit, then
from and after such date, the Bank shall be the "Tenant" under this Lease, and
United Commercial Bank Organizing Group, L.L.P., the entity identified as the
"Tenant" herein, shall be released from all obligations of the "Tenant" under
the Lease arising from and after such date.
5.2 LANDLORD'S LIEN
---------------
[Text intentionally deleted]
5.3 RELOCATION
----------
[Text intentionally deleted]
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5.4 SUBORDINATION AND ATTORNMENT
----------------------------
Tenant agrees that this Lease shall be subject and subordinate to any mortgage,
security deed, loan deed or similar instrument now on said Premises and to all
advances already made, or which may be hereafter made, on account of said
instruments to the full extent of all debts and charges secured thereby and to
any renewals or extensions of all or any part thereof and to any such
instruments which any owner of said Premises may hereafter at any time elect to
place on said Premises, and Tenant agrees upon request to hereafter attorn to
the holder of such mortgage, security deed or other instrument as the Landlord
under this Lease and execute any paper or papers which the counsel for Landlord
may deem necessary to accomplish that end and, if Tenant fails to do so,
Landlord is hereby empowered to execute such paper or papers in the name of
Tenant, and as the act and deed of Tenant, and this authority is hereby declared
to be coupled with an interest and not revocable. Provided, however, that as to
any mortgage, security deed, loan deed or similar instrument that may hereafter
be placed on the Premises, the subordination of this Lease and Tenant's interest
hereunder shall be contingent upon Landlord, Tenant and the holder of the
security interest under such instrument entering into an agreement reasonably
acceptable to each of them whereby such holder agrees that Tenant's right of
quiet enjoyment of the Premises will not be disturbed in the event of
a foreclosure of such holder's interest under such instrument, so long as Tenant
does not default in its obligations under this Lease, and fail to cure such
default within the time provided in this Lease for the cure of defaults, if any.
5.5 ESTOPPEL CERTIFICATE
--------------------
Upon Landlord's request, Tenant shall execute and deliver to the Landlord,
within ten (10) days from Tenant's receipt of said request: (a) a statement in
writing certifying that this Lease is in full force and effect, and setting
forth the dates to which the rent and any other charges have been paid, and (b)
a statement in writing from any guarantor of this Lease certifying that said
guaranty is in full force and effect, and such statements so delivered to the
Landlord may be relied upon by any prospective purchaser of, or by any holder or
prospective holder of a mortgage or other security interest in the Building
of which the Premises are a part. Tenant's failure to deliver such statements
within such time shall be conclusive upon Tenant that this Lease is in full
force and effect, without modification, except as may be represented by
Landlord, that there are no defaults in Landlord's performance, and that not
more than one (1) month's rental has been paid in advance.
VI. NOTICES, DEFAULT AND REMEDIES
-----------------------------
6.1 NOTICES
-------
Any notice or other communication required or permitted to be given under this
Lease must be in writing and shall be effectively given or delivered if hand
delivered to the addresses for Landlord and Tenant stated below, or if sent by
certified United States Mail, return receipt requested, or if sent by receipted
overnight delivery service to said addresses. Notice effected by hand delivery
or receipted overnight delivery service shall be deemed to have been received
upon the earlier of actual receipt or refusal thereof. Any notice mailed shall
be deemed to have been received upon the earlier of (a) actual receipt, (b)
refusal thereof, or (c) three (3) Business Days days after mailing of same.
Either party shall have the right to change its address to which notices shall
thereafter be sent, and the party to whose attention such notice shall be
delivered, by giving the other party notice thereof in accordance with the
provisions of this paragraph; provided, however, that the party in actual or
constructive possession of the Premises under this Lease from time to time may
not change its address to which notices shall thereafter be sent to eliminate
the Premises as an acceptable address where notices to such party may be
forwarded or delivered. Until such time as either party shall change its address
for notices, notices shall be forwarded as follows:
- 25 -
To Landlord: Acquiport Northside Drive, Inc.
c/o Clarion Partners
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Portfolio Manager
with a copy to:
Clarion Realty Services, L.L.C.
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Property Manager
To Tenant: United Commercial Bank Organizing Group, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention:
--------------------------------------
with a copy to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: T. Xxxxxxxx Xxxxxxx, Esquire
As used in this Lease, "Business Days" shall mean Monday through Friday,
inclusive, except for holidays observed by national banks as legal holidays.
6.2 DEFAULT
-------
The occurrence of any of the following shall constitute an event of default
hereunder by Tenant:
(a) The Base Rental payable under this Lease (including any Additional Rental)
or any sum of money due hereunder is not paid when due, and such failure to
pay continues for more than five (5) days after Tenant's receipt of notice
thereof from Landlord. Provided, however, that Landlord shall not be
required to provide Tenant with the notice and five-day period set forth in
this subparagraph more than three (3) times during the Term of this Lease,
and the fourth and each subsequent failure to timely pay such sums shall
immediately constitute an event of default hereunder.
(b) The Premises are deserted, vacated or not used as regularly or consistently
as would normally be expected for similar premises put to the same or
similar purposes as set forth herein, even though the Tenant continues to
pay the stipulated Base Rental, and such condition is not corrected within
ten (10) days of Tenant's receipt of notice thereof from Landlord to
Tenant. Provided, however, that Landlord shall not be required to provide
Tenant with the notice and ten-day period set forth in this subparagraph
more than once during the Term of this Lease, and the second, and each
subsequent occurrence of such condition shall immediately constitute an
event of default hereunder.
-26-
(c) Tenant or any guarantor of this Lease files any petition for debt relief
under any section or chapter of the national or federal bankruptcy code or
any other applicable federal or state bankruptcy, insolvency or other
similar act.
(d) Any petition is filed against Tenant under any section or chapter of the
national or federal bankruptcy code or any other applicable federal or
state bankruptcy, insolvency or other similar act, and such petition is not
dismissed within sixty (60) days after the date of such filing.
(e)
(f) Tenant or any guarantor of this Lease makes material misrepresentations to
Landlord prior to or contemporaneously with the execution of this Lease.
(g) Tenant or any guarantor of this Lease shall make an assignment for the
benefit of creditors.
(h) A receiver is appointed for any of the assets of Tenant or any guarantor of
the Lease, and such receiver is not removed within sixty (60) days of
Tenant's receipt of notice from Landlord to obtain such removal.
(i) A lien is filed against the Premises, Building or Project, or Landlord's
estate therein, by reason of any work, labor, services or materials
performed or furnished, or alleged to have been performed or furnished, to
Tenant or anyone holding the Premises by, through or under Tenant, and
Tenant fails to cause the same to be vacated and canceled of record, or
bonded off in accordance with the provisions of this Lease, within twenty
(20) days after receipt of notice of the filing thereof.
(j) Tenant fails to observe, perform and keep each and every one of the
covenants, agreements, provisions, stipulations and conditions contained in
this Lease to be observed, performed and kept by Tenant, including without
limitation the "Rules and Regulations" for the Project of which the
Premises is a part, and unless otherwise specified herein, Tenant persists
in such failure for twenty (20) days after receipt of notice by Landlord
requiring that Tenant correct such failure; provided, that in the event any
such failure is not reasonably susceptible of cure within such twenty
(20)-day period, Tenant shall have a reasonable time to cure such failure,
provided Tenant commences cure as soon as is reasonably possible, and
prosecutes such cure diligently to completion.
6.3 REMEDIES
--------
Upon the occurrence of an event of default by Tenant, Landlord shall have the
option to do and perform any one or more of the following:
(a) Landlord may terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord
may, without notice and prejudice to any other remedy available, enter and
take possession of the Premises and remove Tenant, or anyone occupying the
Premises, and its effects in accordance with Applicable Laws. In the event
of termination of this Lease, Tenant shall be responsible to Landlord for
(i) all payments due under this Lease prior to the date of termination,
(ii) all reasonable costs incurred by Landlord in connection with such
termination, and (iii) the entire amount of Base Rental, Additional Rental
and other charges due hereunder for the remainder of the Term, less the
then fair market rental value of the Premises for the remainder of the
Term,
- 27 -
with such difference discounted to its present value by using a discount
factor of 6%. Such amount shall be paid by Tenant to Landlord immediately
upon demand by Landlord and shall constitute liquidated damages and not a
penalty or forfeiture (Tenant and Landlord agree that the actual damages
are impossible to ascertain and that the amount described above is a
reasonable estimate thereof). If Landlord elects to terminate this Lease,
Tenant's liability to Landlord for damages shall survive such termination.
(b) Landlord may correct such default, and Tenant shall reimburse Landlord,
upon demand, for the reasonable cost incurred by Landlord in curing such
default.
(c) Landlord may terminate Tenant's right of possession of the Premises without
terminating this Lease. Landlord may enter upon and take possession of the
Premises as agent of Tenant without terminating this Lease (termination of
this Lease shall only occur by written notice of such termination from
Landlord to Tenant) and without being liable to prosecution or any claim
for damages so long as Landlord's actions are in accordance with Georgia
law. Landlord may elect to relet the Premises, but shall have no obligation
to do so. In the event that Landlord elects to relet the Premises, Landlord
may make any reasonable alterations in order to return the Premises to its
Building shell condition. Landlord may relet all or any portion of the
Premises, alone or in conjunction with other portions of the Building, for
a term longer or shorter than the Term of this Lease, at a rental rate
other than that provided in this Lease, and upon such other terms
(including the granting of concessions) as Landlord solely determines to be
acceptable. If Landlord elects to reenter and relet all or any portion of
the Premises, Landlord shall apply the rent so collected as follows:
(1) first, to any amount due hereunder other than Base Rental and
Additional Rental;
(2) second, to the payment of costs and expenses of such reletting;
(3) third, to the payment of Base Rental and Additional Rental;
(4) fourth, the residue shall be held and applied to future Base Rental
and Additional Rental due hereunder, and if any such excess exists at
the termination of this Lease it shall be paid over to Tenant.
No such reentry or taking possession of the Premises shall be construed as
an election on Landlord's part to terminate this Lease unless a written
notice of such intention is given to Tenant. Landlord, however, shall have
no duty to relet the Premises, and Landlord's failure to do so shall not
release Tenant's liability for rent or damages. Tenant shall remain fully
liable to Landlord for the deficiency between any rent collected as a
result of reletting and the rent and other sums that are owed from Tenant
to Landlord under this Lease. Landlord shall have the right to rent any
other available space in the building before reletting or attempting to
relet the Premises.
(d) In addition to all other sums that are owed by Tenant to Landlord under
this Lease, upon such event of default, Tenant shall become liable for any
costs incurred by Landlord under this Lease for the completion of any
improvements to the Premises, and any real estate commissions paid by
Landlord under this Lease (collectively, the "Landlord's Costs"), to the
extent set forth in this paragraph. The entire amount of the Landlord's
Costs shall be amortized evenly over the Lease Term, and so long as Tenant
does not default in its obligations under this Lease, and fail to cure such
default within the applicable period of cure, if any, provided under this
Lease, then Tenant shall have no liability to Landlord for the repayment of
any portion of the Landlord's Costs. However, in the event that
- 28 -
Tenant shall default in its obligations under this Lease, and Tenant shall
fail to cure such default within the applicable period of cure, if any,
provided under this Lease, then in addition to all of Landlord's other
remedies available under this Lease, Tenant shall also be liable to
Landlord for the portion of the Landlord's Costs that remains amortized but
unpaid between the date of such default and the expiration of the Term of
this Lease. Provided, however, that if Landlord elects to exercise its
rights under Paragraph 6.3(a) of this Lease to accelerate the entire amount
of all Base Rental and Additional Rental due from Tenant for the balance of
the Lease Term in accordance with the terms of said paragraph, and Landlord
obtains a judgment for, or is paid by Tenant, the entire amount of such
accelerated sum, then such judgment for or payment of such accelerated sum
shall preclude a separate recovery by Landlord under the foregoing terms of
this paragraph of the portion of the Landlord's Costs that remains
amortized but unpaid as of the date of such default.
(e) The above-stated remedies of Landlord are to be in addition to, and not in
lieu of, any other rights and remedies provided Landlord either at law or
in equity. No delay in enforcing the provisions of the Lease shall be
deemed to constitute a waiver of such default by Landlord, and the pursuit
by Landlord of one or more remedies shall not be deemed to constitute an
election against other remedies.
6.4 EFFECT OF TERMINATION OF LEASE
------------------------------
No termination of this Lease prior to the normal ending thereof by lapse of time
or otherwise shall affect Landlord's right to collect sums due hereunder for the
period prior to termination thereof.
6.5 ATTORNEYS' FEES
---------------
If any rent or other sum due and owing under this Lease is collected by or
through an attorney at law, then, in addition to such sums, Tenant shall also
pay Landlord's reasonable attorneys' fees and other reasonable costs incurred in
such collection.
VII. SURRENDER OF PREMISES UPON EXPIRATION OF LEASE
----------------------------------------------
7.1 SURRENDER OF PREMISES
---------------------
At the termination of this Lease, Tenant shall surrender the Premises and keys
thereto to Landlord in same condition as at commencement of the Term, normal
wear and tear, loss by fire or other casualty not caused by Tenant, Tenant's
employees, agents or contractors, and condemnation, excepted.
7.2 HOLDING OVER
------------
If Tenant remains in possession of the Premises after expiration of the Term
hereof, without Landlord's written consent, Tenant shall be a holdover tenant at
sufferance, and there shall be no renewal of this Lease by operation of law.
During any such holdover period, Tenant shall pay holdover rent equal to one
hundred fifty percent (150%) of the last Base Rental amount due from Tenant
prior to such holdover.
7.3 REMOVAL OF FIXTURES
-------------------
Tenant may (if not in default hereunder) prior to the expiration of this Lease,
or any extension thereof, remove all trade fixtures personal property and
equipment which Tenant has placed
- 29 -
in the Premises, provided Tenant repairs all damages to the Premises caused by
such removal. All personal property of Tenant remaining on the Premises after
the end of the Term shall be deemed conclusively abandoned, notwithstanding that
title to or a security interest in such personal property may be held by an
individual or entity other than Tenant, and Landlord may dispose of such
personal property in any manner it deems proper, in its sole discretion, and
Tenant shall reimburse Landlord for the cost of removing such personal property.
Tenant hereby waives and releases any claim against Landlord arising out of the
removal or disposition of such personal property, and Tenant hereby agrees to
indemnify and hold Landlord harmless from and against the claims of all third
parties resulting from such removal. Tenant's obligations under this paragraph
shall survive the expiration or earlier termination of this Lease.
VIII. MISCELLANEOUS
-------------
8.1 AGENCY DISCLOSURE
-----------------
Clarion Realty Services, L.L.C. ("Landlord's Broker") has represented the
Landlord in this transaction, and The Xxxxxx Richmond Company/ITRA Realty Group
("Tenant's Broker") has represented the Tenant in this transaction (Landlord's
Broker and Tenant's Broker are collectively referred to herein as "Broker"), and
Broker will be compensated by Landlord by separate agreement. Landlord and
Tenant (each of which is an "Indemnifying Party" hereunder) represent to each
other that they have dealt with no broker, agent or finder in connection with
this transaction other than Broker. Each Indemnifying Party hereby indemnifies
the other party and agrees to hold such other party harmless from and against
any and all claims, causes, demands, losses, liabilities, fees, commissions,
settlements, judgments, damages, and expenses (including attorneys' fees and
court costs) in connection with any claim for commission, fees, compensation or
other charge relating in any way to this agreement, or to the consummation of
the transactions contemplated hereunder, which may be made by any person, firm
or entity, other than Broker, based upon any agreement made or alleged to have
been made by such Indemnifying Party or its agent or representative, or the
conduct or the alleged conduct of such Indemnifying Party or its agent or
representative. The provisions of this paragraph shall survive termination or
expiration of the Lease.
8.2 EXCULPATION OF LANDLORD
-----------------------
Landlord's obligations and liability to Tenant with respect to this Lease shall
be limited solely to Landlord's interest in the Building, and neither Landlord
nor any joint ventures (if any), partners, officers, directors, employees or
shareholders of or in Landlord shall have any personal liability whatsoever with
respect to this Lease.
8.3 PARKING
-------
Tenant shall have the right to use in common with other tenants of the Building
the parking facilities of the Building, if any, as designated from time to time
by Landlord. Tenant shall not at any time park or permit the parking of Tenant's
vehicles, or the vehicles of others, adjacent to loading areas so as to
interfere in any way with the use of such areas. Tenant shall not park or permit
to be parked any inoperative or abandoned vehicles or equipment on any portion
of the parking or loading areas. If any abandoned vehicles are discovered by
Landlord to exist anywhere in the Project, Landlord shall have the right to
remove same from the Project in accordance with the terms of O.C.G.A. Section
40-11-1, et seq. The maximum number of vehicles which may be parked by Tenant,
Tenant's employees, agents or contractors is three (3) vehicles per One Thousand
(1,000) rentable square feet of space in the Premises.
Landlord shall designate up to ten (10) spaces, five (5) spaces on the
second floor and five (5) spaces on the third floor, in the parking facility of
the Building as being spaces that are reserved for the exclusive
- 30 -
use of Tenant's customers at no charge to Tenant (the "Reserved Spaces"). The
location of the spaces to be designated as the Reserved Spaces shall be
determined by Landlord, subject to Tenant's approval, which Tenant shall not
unreasonably withhold. Landlord shall designate the Reserved Spaces with
mutually acceptable signage as being "Reserved," and Landlord has the right to
remove from the Reserved Spaces any vehicle that is not authorized to be parked
there, Landlord shall have no obligation to police the use of the Reserved
Spaces, and Landlord shall not be responsible for ensuring that unauthorized
vehicles do not park in the Reserved Spaces.
8.4 SIGNAGE
-------
Landlord agrees that Tenant shall be listed on the Building directory at no cost
or expense to Tenant. Tenant shall not place any signs, decals or other
materials upon the windows or suite doors of the Premises, nor on the exterior
walls of the Premises. Landlord agrees to provide Tenant, at Landlord's expense,
one building standard suite door tenant identification sign. Any additional
signage desired by Tenant must receive the prior written approval of Landlord
and the management company of the Building, which may be granted or denied in
their sole discretion.
8.5 FORCE MAJEURE
-------------
With the exception of Tenant's obligation to pay any and all items of rent as
the same become due under the applicable provisions of this Lease, each party
shall be excused from performing an obligation or undertaking provided for in
this Lease so long as such performance or undertaking is prevented, delayed, or
hindered by a strike, lockout, labor dispute, civil commotion, act of God, or
any other cause outside and beyond such party's control.
8.6 AUTHORITY
---------
If Tenant is a corporation, each individual executing this Lease on behalf of
said corporation represents and warrants that he or she is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance with
the bylaws and resolutions of said corporation, and that this Lease is binding
upon said corporation. If Tenant is a partnership, each individual executing
this Lease on behalf of such partnership represents and warrants that he or she
is duly authorized to execute and deliver this Lease on behalf of the
partnership, and that this Lease is binding on the partnership. The submission
or delivery of this document for examination and review does not constitute an
option, an offer to lease space in the Building, or an agreement to lease or to
enter into a lease. This document shall have no binding effect on the parties
unless and until executed by both Landlord and Tenant.
8.7 DEFINITIONS
-----------
"Landlord" as used in this Lease shall include the first party named in this
Lease, and its representatives, assigns and successors in title. "Tenant" shall
include the second party named in this Lease, and his, hers or its heirs and
representatives, and if this Lease shall be validly assigned or the Premises
sublet, shall include also Tenant's assignees, or Tenant's subtenants as to the
portion of the Premises sublet.
8.8 RULES AND REGULATIONS
---------------------
The current rules and regulations for the Building are attached hereto as
Exhibit "D," and are incorporated herein by this reference. Additionally,
Landlord may hereafter, from time to time, adopt and promulgate such additional
rules and regulations for the government and management of said Building as
Landlord may reasonably determine to be necessary, so long as such new rules do
not impose any additional costs or
-3l-
material burdens on Tenant, Tenant's use of the Premises or access to the
Building (all such existing and future rules and regulations are collectively
referred to as the "Rules"). During the Term of this Lease, Tenant shall at all
times comply with the Rules and shall ensure compliance with the Rules by
Tenant's employees, agents and contractors.
8.9 GUARANTY
--------
[Text intentionally deleted]
8.10 SPECIAL STIPULATIONS
--------------------
If there is an Addendum of Special Stipulations attached to this Lease, then the
terms and conditions of such addendum are incorporated herein by this reference,
and in the event of any conflict between the foregoing provisions of this Lease
and any of the special stipulations contained in such addendum, then the
provisions of such addendum shall control.
8.11 ENTIRE AGREEMENT
----------------
This Lease, the Exhibits, and any attachments thereto contain the entire
agreement of the parties, and no representations, inducements, promises or
agreements, oral or otherwise, between the parties not embodied herein shall be
of any force or effect. No failure of Landlord to exercise any power given
Landlord hereunder, or to insist upon strict compliance by Tenant of any
obligation hereunder, and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day
and year first above written.
TENANT:
UNITED COMMERCIAL BANK ORGANIZING GROUP, L.L.P.,
a Georgia limited liability partnership
By: /s/Xxxxxx Xxxxxx
----------------------------------------------
[Signature]
Typed Name: Xxxxxx Xxxxxx
----------------------------------
Title: General Partner
[Signatures continue on next page]
- 32-
LANDLORD:
ACQUIPORT NORTHSIDE DRIVE, INC., a Delaware
corporation
By: /s/ Xxxxxxx X'Xxxxx
----------------------------------------------
[Signature]
Typed Name: Xxxxxxx X'Xxxxx
--------------------------------------
Title: Vice President
-------------------------------------------
[President or Vice President]
- 33 -
EXHIBIT A
FLOOR PLAN OF PREMISES
[To be attached by Landlord prior to Lease execution]
[FLOOR PLAN OF 0000 XXX XXXXXXXXX XXXXX, XXXXX 0000]
[LOGO] CLARION
EXHIBIT B
DESCRIPTION OF PROPERTY ON WHICH THE PROJECT IS SITUATED
ALL that tract or parcel of land lying and being in Land Xxx 000 xx xxx
00xx Xxxxxxxx xx Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly described
as follows:
BEGINNING at an iron pin set at the point formed by the intersection of the
Eastern Right-of-Way of Northside Drive, an 80-foot Right-of-Way, and the
Southeastern Right-of-Way of relocated New Northside Drive, an 80-foot
Right-of-Way;
Thence running Northeasterly along the curvature to the left of the
Southeastern Right-of-Way of relocated New Northside Drive an arc distance of
277.55 feet, said arc having a radius of 398.10 feet and subtending a chord
bearing North 51(degrees) 45' 48" East for 271.96 feet to a concrete Right-of-
Way monument;
Thence continuing along said Right-of-Way following the curvature to the
left an arc distance of 36.06 feet, said arc having a radius of 398.10 feet, and
subtending a chord bearing North 29(degrees) 11' 44" East for 36.05 feet to a
concrete Right-of-Way monument;
Thence continuing along said Right-of-Way, North 26(degrees) 36' 01" East
for 6.68 feet to a point;
Thence departing said Right-of-Way and running South 49(degrees) 35' 09"
East for 293.86 feet to a point on the Northwestern Right-of-Way of Interstate
Highway No. 285, a limited access highway;
Thence running along the Northwestern Right-of-Way of Interstate Highway
No. 285, South 40(degrees) 24' 51" West for 458.435 feet to an iron pin set (at
Station 742+09.62,260.73 feet left of centerline per D.O.T. plan);
Thence continuing along said Right-of-Way South 41(degrees) 53' 23" West
for 40.65 feet to a concrete Right-of-Way monument;
Thence continuing along said Right-of-Way following the mitred intersection
of the Northwestern Right-of-Way of Interstate Highway No. 285 and the eastern
Right-of-Way of Northside Drive, an 80-foot Right-of-Way, North 62(degrees) 47'
37" West for 30.19 feet to an iron pin set;
Thence running along the Eastern Right-of-Way of Northside Drive, North
17(degrees) 03' 21" West for 365.43 feet to an iron pin set and the POINT OF
BEGINNING,
Containing 2.9216 acres, designated Parcel B on Boundary and Topographic
Survey for Fidelity Management & Investment Corporation prepared by Xxxxxxx &
Associates, certified by Xxxxxxx X. Xxxxxx, Georgia Registered Land Surveyor No.
1946, dated October 1, 1987, last revised April 26, 1988.
TOGETHER WITH easements appurtenant to the above described property as set
forth in that certain Reciprocal Easement and Operating Agreement between
Fidelity Management & Investment Corporation and PFL North Associates, Ltd.,
dated April 29, 1988, recorded in Deed Book 11492, Page 81, Xxxxxx County,
Georgia records.
EXHIBIT C
IMPROVEMENTS TO PREMISES
Improvements to Premises. Except as set forth herein, Tenant accepts the
------------------------
Premises in their "as is" condition, and Landlord shall have no obligation to
make any improvements to the Premises not specifically set forth herein.
(a) Construction of the Improvements. Unless the parties expressly agree
in writing to the contrary, the Improvements, as depicted in the Plans
described below, shall be constructed by a general contractor of
Landlord's selection under the direct supervision and control of
Landlord.
(b) The Plans. The improvements to be constructed by Landlord within the
Premises (the "Improvements") shall be depicted in detailed plans and
specifications (the "Plans") to be prepared by Landlord and approved
by Tenant. Tenant shall not unreasonably withhold or delay its
approval of the Plans. After the approval of the Plans by both
Landlord and Tenant, all modifications requested by Tenant to the
Plans ("Change Orders") shall be at Tenant's sole expense, and all
such Change Orders must be approved by both parties in order to be
effective. The original of the Plans and any Change Orders will be
maintained in Landlord's management office in the Building.
(c) Improvement Costs; Tenant's liability for Excess Costs. Landlord
shall, at Landlord's sole cost and expense, construct the Improvements
in accordance with the approved Plans. The parties agree that the
total cost of constructing the Improvements for which Landlord is
obligated hereunder (the "Improvement Costs") shall include the cost
of all labor and materials used in constructing the Improvements, all
architectural and engineering fees, Landlord's 3.5% construction
management fee, plus any sum incurred by Landlord in connection with
producing the Plans for the Improvements, or in modifying the Plans to
accommodate any Change Orders requested by Tenant, to the extent that
the cost of such modification is not fully paid by Tenant, as
provided below. If, as a result of Change Orders requested by Tenant,
the actual cost of constructing the Improvements exceeds the cost
that would result from the construction of the Improvements in
accordance with the Plans, then the entire amount of such excess
(the "Excess") shall be Tenant's sole liability and Tenant shall pay
the full amount of the Excess to Landlord, as Additional Rental due
under the Lease, within thirty (30) days after Tenant's receipt of
Landlord's invoice for same.
(d) Additional Remedies in the event of Default. The Improvement Costs, as
used herein, shall be apart of the "Landlord's Costs" as that phrase
is used in the Remedies provision of this Lease. Accordingly, after
the Improvement Costs have been incurred by Landlord, the Improvement
Costs, together with interest thereon on the unreduced balance thereof
calculated at the simple interest rate of twelve percent (12%) per
annum, shall be amortized over the Lease Term, and so long as Tenant
does not default in its monetary obligations under the Lease, and fail
to cure such default within the applicable period of cure, if any,
provided under this Lease, then the principal balance of the
Improvement Costs shall be reduced each month by the amount amortized
each month, and upon
EXHIBIT C
PAGE 1 OF 2
Landlord's receipt of the final payment of Base Rental due during the
initial Term of this Lease, Tenant shall have no liability to
Landlord for the repayment of any portion of the Improvement Costs or
the interest calculated thereon. In the event that Tenant shall
default in any of its monetary obligations under this Lease, and
Tenant shall fail to cure such default within the applicable cure
period, if any, specified in the Lease, then in addition to all of
Landlord's other remedies available under the Lease, Tenant shall also
be liable to Landlord for the entire unreduced principal balance of
Improvement Costs remaining as of the date of default, and interest
shall accrue thereon at the rate of twelve percent (12%) simple
interest per annum until such sum is paid in full. Provided, however,
that if Landlord elects to exercise its rights under Paragraph 6.3(a)
of this Lease to accelerate the entire amount of all Base Rental and
Additional Rental due from Tenant for the balance of the Lease Term in
accordance with the terms of said paragraph, and Landlord obtains a
judgment for, or is paid by Tenant, the entire amount of such
accelerated sum, then such judgment for or payment of such accelerated
sum shall preclude a separate recovery by Landlord under the foregoing
terms of this paragraph of the unreduced balance of the Improvement
Costs.
(e) Landlord warrants the construction and workmanship of the premises for
twelve (12) months and represents to Tenant that all mechanical,
plumbing, electrical, utility and other building systems in or serving
the Premises shall be delivered to Tenant in good working order.
Landlord shall be responsible for all latent structural defects for
the term of the Lease.
EXHIBIT C
PAGE 2 OF 2
Scope of work:
1. Remove Existing Lobby finished walls and replace with 20 linear feet of full
height glass wall containing a pair of 3'-0 full height doors.
2. Close up existing double door entrance at corridor.
3. Office 1, 2 & 3 to remain.
4. Provide new partitions and doors for Office 4, Board Room, Break, Supply and
Telephone/Server.
5. Provide glass side light in Office 4 to match other offices.
6. Provide allowance for upgrade carpet and wall covering for all public areas.
7. Provide allowance for custom millwork reception desk.
8. Provide allowance for 20 accent downlights with adjustable baffle.
9. Provide base and wall cab. in Break w/sink and D/W.
10. Core floor for 3 outlet/data at freestanding desks.
[FLOOR PLAN]
Note: Vault supplied and installed by tenant with final location based on
structural analysis by landlord. Vault panels are steel plate with concrete fill
and weigh 38,000 lbs. total over the 9'4 x 13'4 area.
Scale for this Adobe PDF file is not to scale.
Rentable Area is listed as 4,117 RSF.
Call Xxxx Xxxxxxxxx, AIA a: The Xxxxxx Richmond Company with any questions for
pricing 000-000-0000
--------------------------------------------------------------------------------
General Notes
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SE Community Bank
--------------------------------------------------------------------------------
Prepared by:
The Xxxxxx Richmond Company
Xxx Xxxxxxx Xxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
(000) 000-0000
--------------------------------------------------------------------------------
0000 Xxx Xxxxxxxxx Xxxxx
--------------------------------------------------------------------------------
Proposed Floor Plan
--------------------------------------------------------------------------------
Scale: 1/4" = 1' - 0
-----------------------
Date: April 19, 2001
-----------------------
A-1
[LOGO] KR-XXXXXX INC.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
(000) 000-0000
General Contractor Fax: (000) 000-0000
Clarion Realty April 27, 2001
000 Xxxxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX
Atten: Xxxxxxx Xxxxxxxxx
Re: SE Community Bank
0000 Xxx Xxxxxxxxx Xxxxx
Dear Xxxxxxx Xxxxxxxxx:
KR-Xxxxxx, Inc. is pleased to submit the following proposal for labor and
materials to complete the above referenced project. These costs are based on the
drawing prepared by:
The Xxxxxx Richmond Company A-1
We propose a clean, concise, and professional job for the sum of: $ 80,897
Please see the attached pages for a more detailed breakdown and our job specific clarifications. These costs break down
table as follows:
Demolition $ 2,622
Concrete $ 1,325
Masonry $ - N.I.C.
Metals $ - N.I.C.
Carpentry & Millwork $ 13,432
Doors & Windows $ 6,075
Glass & Storefront $ 6,310
Drywall $ 5,700
Acoustical $ 850
Carpet, Base & VCT $ 7,803
Paint & Wallcovering $ 7,557
Marble & Ceramic Tile $ - N.I.C.
Specialities $ 165
Equipment & Appliance $ 350
Plumbing $ 4,377
Fire Protection $ 900
HVAC $ 2,255
Electrical $ 10,612
General Conditions $ 6,712
Overhead & Fee $ 3,852
-----------
Base Bid $ 80,897
If you should have any questions or need any additional information, please feel
free to call.
Respectfully,
/s/ Xxx Xxxxxx
Xxx Xxxxxx
Project Manager
EXHIBIT D
RULES AND REGULATIONS
1. Any request for heating, ventilation and air conditioning services to be
provided to the Premises after normal Building Hours must be received by
Landlord's property management office no later than 3:30 p.m. on the
previous business day.
2. The property management office must be notified of the anticipated delivery
of any furniture, equipment or other bulky material to the Premises
reasonably in advance so that elevators may be scheduled and elevator pads
may be installed. For the convenience of all tenants in the Building, the
passenger elevators of the Building may not be used for deliveries during
the peak use hours of 8:00 a.m. to 9:30 a.m.; 11:30 a.m. to 1:30 p.m.;
and 4:30 p.m. to 6:00 p.m. All larger deliveries must be made from the
designated Building loading dock area. All hand trucks used for interior
deliveries must be equipped with rubber bumpers and tires.
3. Smoking is prohibited in all Common Areas of the Building. Additionally,
smoking is permitted only in such outdoor Common Areas of the Project that
may from time to time be designated as smoking areas by Landlord.
4. The sidewalks of the Project and the entry passages, corridors, halls,
elevators or stairways of the Building shall not be used for any purpose
other than ingress and egress. Only Building standard window treatments may
be installed in the Premises, and the windows of the Premises shall not
otherwise be obstructed. The water closets and other water apparatus shall
not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, or other obstructing substances,
shall be thrown or disposed of therein.
5. No sign, advertisement, or other notice may be displayed on any part of the
exterior of the Premises, or on the interior of the Premises in such a
manner that it is visible from the outside of Premises, without the
express, written consent of Landlord. Signage identifying Tenant as a
tenant of the Building will be provided by Landlord in accordance with the
signage provisions of this Lease.
6. Natural Christmas trees are a fire hazard and are not permitted in Tenant's
Premises; only artificial, fire resistant, Christmas trees and holiday
decorations are permitted.
7. Tenant shall not obstruct or interfere with the rights of other tenants, or
otherwise injure or annoy them in any way. Tenant, its agents, employees
and contractors shall maintain order in the Building, shall not make or
permit any improper or offensive noise within the Premises or the Building,
shall not permit any noxious or offensive odors to permeate any of the
Common Areas of the Building or Project, and shall not interfere in any way
with other tenants' rights of quiet enjoyment of their premises or the
rights of those having business with other tenants of the Building. No
rooms shall be occupied or used as a dwelling. No part of the Building
shall be used for gambling, immoral or other unlawful practices, and no
intoxicating liquors shall be sold in the Building.
8. Tenant shall not employ or contract with any person for the purposes of
cleaning the Premises without obtaining the prior written consent of
Landlord.
EXHIBIT D
Page 1 of 2
9. Tenant shall strictly comply with any and all regulations set forth by
Landlord for the operation, maintenance and management of the parking areas
of the Project.
10. No animals, birds, bicycles or other vehicles are permitted anywhere in the
Premises or the Building.
11. Tenant shall ensure that any telecommunications system, electrical and
non-electrical wiring is installed in accordance with all applicable laws
and ordinances, and in such a manner as to not interfere with the existing
telecommunications system of any other tenant or occupant of the Building.
12. Only two keys to the entrance doors of the Premises will be furnished to
Tenant without charge. Additional keys to the Premises are available from
Landlord upon Tenant's written request and the payment by Tenant to
Landlord of Landlord's then prevailing charge for additional keys. No
additional locks or latches shall be put upon any door in or to the
Premises without the consent of Landlord. Tenant, at the termination of
this Lease, shall return to Landlord all keys to doors in the Building and
Premises.
13. Landlord reserves the right to prescribe the maximum weight, and the
location of iron safes or other heavy articles placed in the Premises.
EXHIBIT D
Page 2 of 2
EXHIBIT E
LETTER OF CREDIT
Issued by:
----------------------------
----------------------------
----------------------------
In favor of: ACQUIPORT NORTHSIDE DRIVE, INC.
This irrevocable stand-by letter of credit (the "Letter of Credit") is issued
by________________ (the "Lender") in favor of ACQUIPORT NORTHSIDE DRIVE, INC., a
Delaware corporation, or its successors and/or assigns (collectively, the
"Landlord"), in the amount of________________ Dollars ($________ ) (the "Credit
Limit") in order to secure the full and faithful performance by UNITED
COMMERCIAL BANK ORGANIZING GROUP, L.L.P., a Georgia limited liability
partnership, and the bank to be formed by such entity, that is, as of the date
of issuance of this instrument, known or to be known as "United Commercial
Bank"(collectively, the "Tenant"), of all terms, conditions, covenants and
obligations, including the payment of rent and other charges (collectively, the
"Obligations"), under that certain lease agreement (the "Lease") entered into by
and between Landlord and Tenant for certain premises located at Xxxxx 000, 000X
Xxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000. This Letter of Credit shall remain
in effect throughout the initial term of the Lease, as defined in the Lease,
unless it is sooner canceled in accordance with the terms of the Lease; and,
unless sooner canceled in accordance with the terms of the Lease, this Letter of
Credit shall expire upon the expiration of the initial Term of the Lease.
If Tenant defaults in the performance of any Obligations under the terms of the
Lease, and Tenant fails to cure the default within the time allowed under the
Lease, Landlord shall immediately thereafter be permitted to draw upon this
Letter of Credit. If Landlord elects to draw upon this Letter of Credit,
Landlord shall do so by forwarding, or having its authorized agent forward,
written demand for payment under this Letter of Credit (the "Demand") by hand
delivering or forwarding same by certified United States Mail, return receipt
requested, to Lender at the following address:
----------------------------
----------------------------
----------------------------
----------------------------
Landlord shall specify in its Demand (i) that an uncured default under the Lease
has occurred; (ii) the dollar amount of the default; (iii) and the amount which
is to be paid pursuant to this Letter of Credit, which shall not exceed the
Credit Limit. Immediately upon Lender's receipt of such notice, Lender shall
forward to Landlord a cashier's check in the full amount of the funds demanded
hereunder, made payable to "ACQUIPORT NORTHSIDE DRIVE, INC." at the following
address ("Landlord's Address"):
EXHIBIT E
Page 1 of 2
To Landlord: Acquiport Northside Drive, Inc.
c/o Clarion Partners
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Portfolio Manager
In the event that Landlord would prefer Lender to deliver such payment to
Landlord in any other manner or to any other address, then Landlord may specify
such other manner of payment or address for the delivery of such payment in its
Demand, and Lender shall deliver such payment to Landlord in accordance with the
instructions set forth in the Demand. Landlord shall be entitled to make
multiple draws upon this Letter of Credit so long as the Credit Limit is not
exceeded by any requested draw. Lender acknowledges that under the Lease, Tenant
has the obligation to restore any funds drawn down by Landlord under this Letter
of Credit within fifteen (15) days of payment by Lender to Landlord under the
terms hereof, in order that the entire amount of the Credit Limit will again be
made available to Landlord for subsequent draws in accordance with the terms
hereof. Lender agrees to provide Landlord with written notice at Landlord's
Address stated hereinabove if Tenant either (i) fails to restore this Letter of
Credit to the full amount of the Credit Limit then applicable within such
fifteen (15) day period, or (ii) upon the expiration of this Letter of Credit or
any lapse in the effectiveness hereof.
This ___ day of _____ 2001.
"Lender"
-------------------------
By:
----------------------------
Title:
-------------------------
EXHIBIT E
Page 2 of 2
EXHIBIT F
[Description of location of ATM to be attacked hereto
by Landlord prior to execution of this Lease]
[FLOOR PLAN OF 5660 NEW NORTHSIDE DRIVE, SECOND FLOOR]
[LOGO] CLARION
ADDENDUM OF SPECIAL STIPULATIONS
1. Charter Contingency. Prior to the commencement of construction Tenant
-------------------
shall provide Landlord with documentation evidencing that Tenant is a
validly chartered bank; that Tenant is in good standing in the State of
Georgia; and that Tenant is authorized to transact business in the State of
Georgia.
In the event that Tenant is unable to obtain a bank charter on or before
September 1, 2001, Tenant shall have the option (the "Cancellation Option")
of canceling this Lease by delivering written notice (the "Cancellation
Notice") to Landlord of such cancellation no later than September 4, 2001.
In such event, Landlord may retain the Security Deposit as liquidated
damages and neither party shall have any further obligations under this
Lease. If Tenant is unable to obtain a bank charter on or before September
1, 2001, but Tenant, for whatever reason, fails to deliver the Cancellation
Notice to Landlord within the time required by the terms of this paragraph,
then Tenant shall be bound by the terms of this Lease as if the
Cancellation Option were not a part of this Lease.
2. ATM. Tenant, at Tenant's sole cost and expense, at Tenant's sole risk, and
---
in accordance with the terms of this paragraph, shall have the right to
install and maintain an automated teller machine (an "ATM") on the
second floor of the Building in the location designated on Exhibit "F"
attached hereto and incorporated herein by this reference. Prior to
installing the ATM, Tenant shall provide Landlord with documentation
reasonably acceptable to Landlord evidencing that the comprehensive general
liability insurance policy Tenant is required to maintain under this Lease
insuring Tenant against liability for property damage and personal injury
to or death of any persons occurring in or about the Premises extends to
liability for property damage and personal injury to or death of any
persons occurring in or about the ATM. Additionally, Tenant hereby
acknowledges and specifically agrees that Tenant's indemnity of Landlord
for any Loss occurring in the Premises set forth in Paragraph 4.3 of the
Lease shall apply to any property damage and personal injury to or death of
any persons occurring in or about the ATM. Access by the general public to
the ATM shall be limited to those hours during which the Building is open
to the general public. Upon the expiration or earlier termination of this
Lease, Tenant shall, at Tenant's sole expense, remove the ATM and repair
any damage to the Building caused by the installation, operation,
maintenance or removal of the ATM.
3. Renewal Option. Tenant shall have the following option to renew the Term of
--------------
this Lease:
(a) Grant of Renewal Option. So long as this Lease is in full force and
effect, and Tenant is not in default in the performance of any of the
covenants or terms and conditions of this Lease, either at the time of
the exercise of the option set forth herein or at the commencement of
the renewal term set forth herein, Tenant is hereby granted the option
to renew the Term of this Lease (the "Renewal Option") for a period
of five (5) additional years (the "Renewal Term"), to commence at the
expiration of the Term of the Lease. The Renewal Option shall be
subject and subordinate to any right of expansion or refusal in
existence as of the date this Lease is entered into by Landlord in
favor of any other tenant in the Building which would permit such
other tenant to acquire an interest in the Premises after the
expiration of the Term of the Lease. The renewal of this Lease shall
be upon the same terms and conditions of this Lease, except: (i) the
base rental applicable during the Renewal Term shall be determined as
set forth below, but in no event shall the rent applicable during the
Renewal Term be less than the rent that Tenant is then paying under
the terms of this Lease; (ii) Tenant shall have no option to renew
this Lease beyond the expiration of the Renewal Term; (iii) Tenant
shall not have the right to assign its renewal rights to any subtenant
of the Premises or assignee of the Lease, nor may any such subtenant
or assignee exercise or enjoy the benefit of the Renewal Option;
and (iv) the leasehold improvements will be provided in their then
existing condition at the time the Renewal Term commences.
(b) Preliminary Notice. If Tenant intends to exercise the Renewal Option,
Tenant shall provide Landlord with written notice, in accordance with
the notices provision of this Lease (the "Preliminary Notice"), of
such intention at least nine (9) months, but no earlier than twelve
(12) months, prior to the expiration of the Term of the Lease. If, for
whatever reason, Tenant does not forward Preliminary Notice to
Landlord, in accordance with the terms of this paragraph, that Tenant
intends to exercise the Renewal Option, then the Renewal Option set
forth herein shall expire, and Tenant shall not thereafter have any
right to exercise the Renewal Option or otherwise acquire an interest
in the Premises after the expiration of the initial Term of this
Lease.
(c) Rental Applicable During Renewal Term. Within thirty (30) days after
Landlord's receipt of Tenant's Preliminary Notice, Landlord shall
provide Tenant with written notice, in accordance with the notices
provision of this Lease (the "Rent Notice"), of the base rental that
will be applicable during the Renewal Term, and the base year that
will be used for purposes of determining Tenant's additional rental
during the Renewal Term (collectively, the "Renewal Term Rent"). The
Renewal Term Rent shall be determined by Landlord, and shall consist
of Landlord's good faith determination of the market rental rate for
the Premises as of the commencement of the Renewal Term, taking into
consideration such factors as rental for comparable premises in other
buildings in the Project; the applicable base year; rental for
comparable premises in existing buildings in the same geographical
area as the Building (taking into consideration, but not limited to,
use, quality, age and location of the applicable building); the
rentable area of the premises being leased; the length of the
pertinent rental term; improvement allowances, rent credits, moving
allowances, space planning allowances or similar inducements, if any,
then being offered in the market place; and the quality and
creditworthiness of the tenant, and such other factors as Landlord may
reasonably determine are relevant. In no event shall the Renewal Term
Rent be less than the Base Rental Rate then in effect for the
Premises.
(d) Renewal Notice. If, after review of Landlord's determination of the
Renewal Term Rent, Tenant elects to exercise the Renewal Option, then,
no later than thirty (30) days after Tenant's receipt of Landlord's
Rent Notice, Tenant shall forward written notice of such election (the
"Renewal Notice") to Landlord in accordance with the notices
provision of this Lease. Tenant shall, within thirty (30) days after
presentation by Landlord, execute an amendment to this Lease, which
amendment shall reflect the extension of the Term of the Lease through
the expiration of the Renewal Term, and the Renewal Term Rent
(including the specification of the base rental and the base year that
will be applicable during the Renewal Term). If, after providing
Landlord with Tenant's Preliminary Notice, Tenant does not, for
whatever reason, provide Landlord with the Renewal Notice required
hereunder in order to exercise the Renewal Option, then the Renewal
Option shall expire; Tenant's Preliminary Notice shall be of no
further force or effect; and it shall be as if the Preliminary Notice
had never been forwarded by Tenant to Landlord. If, however, after
Tenant forwards its Renewal Notice to Landlord, Tenant fails to
execute the amendment to the Lease as required by the terms of this
paragraph, then such failure shall constitute a default by Tenant
under the Lease, but the Term of the Lease shall nonetheless be
extended in accordance with the terms hereof.
-2-
(e) Renewal Option Personal to Tenant. The parties expressly agree that
the Renewal Option granted to Tenant herein shall be "personal" to
Tenant. The Renewal Option may only be exercised by Tenant; it may not
be exercised by any assignee or subtenant of Tenant; and it may not be
exercised by Tenant if Tenant is, at the time that the Renewal Notice
is provided by Tenant to Landlord, negotiating with Landlord or a
potential assignee or subtenant to either assign the Tenant's interest
under the Lease or to sublet all or a portion of the Premises.
4. Security. Landlord acknowledges that Tenant's security procedures are
--------
subject to the review and approval of bank regulators. Except as set forth
below, Tenant may implement any changes to Tenant's security procedures
required by bank regulators without obtaining Landlord's consent, provided
that such changes are non-structural and do not affect the plumbing,
electrical, mechanical or heating, ventilation or air conditioning systems
serving the Premises or the Building (collectively, the "Building
Systems"). In the event that such changes are structural in nature or will
affect any of the Building Systems, then prior to making such changes,
Tenant shall obtain Landlord's prior written consent, which Landlord agrees
not to unreasonably withhold or delay; Tenant shall coordinate the making
of such changes with Landlord's engineer or other designated individual for
the Building; and Tenant shall reimburse Landlord for all costs incurred by
Landlord in connection with or as a result of such changes.
-3-
