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EXHIBIT 10.4
COMMERCIAL LEASE CONTRACT
March 17, 1998
THIS LEASE, made this 17th day of March, 1998, by and between GBC
Properties, LLC, first party, (hereinafter called "Landlord") and Gwinnett
Banking Company, second party, (hereinafter called "Tenant").
W I T N E S S E T H:
PREMISES 1. The Landlord, for and in consideration of the
rents, covenants, agreements and stipulations hereinafter
mentioned, reserved, and contained, to be paid, kept and
performed by the Tenant, has leased and rented, and by these
presents does lease and rent, unto the said Tenant, and said
Tenant hereby agrees to lease take upon the terms and
conditions which hereinafter appear, the following described
property (hereinafter called premises), to wit: See Exhibit
"A" attached hereto and incorporated herein by this reference.
and being known as 000 Xxxx Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxx
00000, together with all improvements located thereon. No
easement for light or air is included in the premises.
TERM 2. To have and to hold the same for a term of five
(5) years beginning on the _____ day of _________________,
19__ and ending on the ____ day of ___________________, 2000,
at midnight, unless sooner terminated as hereinafter provided.
RENTAL 3. Tenant agrees to pay Landlord at office in
Lawrenceville promptly on the first day of each month in
advance, during the term of this lease, a monthly rental of
Fifteen Dollars ($15.00) per square foot.
UTILITY BILLS 4. Tenant shall pay all utility bills, including, but
not limited to water, sewer, gas, electricity, fuel, light,
and heat bills for the leased premises and Tenant shall pay
all charges for garbage collection services or other sanitary
services rendered to the leased premises or used by Tenant in
connection therewith. If Tenant fails to pay any of said
utility bills or charges for garbage collection or other
sanitary services, Landlord may pay the same and such payment
may be added to the rental of the premises next due as
additional rental.
USE OF PREMISES 5. Premises shall be used for banking and related
purposes and no other. Premises shall not be used for any
illegal purposes; nor in any manner to create any nuisance or
trespass; nor in any manner to vitiate the insurance or
increase the rate of insurance on premises.
ABANDONMENT OF 6. Tenant agrees not to abandon or vacate leased
LEASED PREMISES premises during the period of this lease, and agrees to use
said premises for purpose herein leased until the expiration
hereof.
REPAIRS BY TENANT 7. Tenant accepts the leased premises in their
present condition and as suited for the uses intended by
Tenant. Tenant shall, throughout the initial term of this
lease and all renewals thereof, at its expense, maintain in
good order and repair the leased premises, including the
building and other improvements located thereon, except those
repairs expressly required to be made by Landlord. Tenant
further agrees to care for the grounds around the building,
including the mowing of grass, paving, care of shrubs and
general landscaping. Tenant agrees to return said premises to
Landlord at the expiration, or prior to termination, of this
lease in as good condition and repair as when first received,
natural wear and tear, damage by storm, fire, lightning,
earthquake or other casualty alone excepted.
Elevators, (if any) are accepted by Tenant as in
satisfactory operating condition on this date, and Tenant, at
his own expense, shall maintain said elevators in good
operating condition during the term of this lease, or any
extension thereof.
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TAX ESCALATION 8. Tenant shall pay upon demand, as additional rental
during the term of this lease and any extension or renewal
thereof, the amount by which all taxes (including, but not
limited to, ad valorem taxes, special assessments and any
other governmental charges) on the premises for each tax year
exceeds all taxes on the premises for the tax year 1996. In
the event the premises are less than the entire property
assessed for such taxes for any such tax year, the tax for any
such year applicable to the premises shall be determined by
proration on the basis that the rentable floor area of the
premises bears to the rentable floor area of the entire
property assessed. If the final year of the lease term fails
to coincide with the tax year, then any excess for the tax
year during which the term ends shall be reduced by the pro
rata part of such tax year beyond the lease term. If such
taxes for the year in which the lease terminates are not
ascertainable before payment of the last month's rental, then
the amount of such taxes assessed against the property for the
previous tax year shall be used as a basis of determining the
pro rata share, if any, to be paid by Tenant for that portion
of the last lease year. Tenant's pro rata portion of increased
taxes, as provided herein, shall be payable within fifteen
days after receipt of notice from Landlord or Agent as to the
amount due.
DESTRUCTION OF OR 9. If premises are totally destroyed by storm, fire,
DAMAGE TO lightning, earthquake or other casualty, this lease shall
PREMISES terminate as of the date of such destruction, and rental shall
be accounted for as between Landlord and Tenant as of that
date. If premises are damaged but not wholly destroyed by any
such casualties, rental shall xxxxx in such proportion as use
of premises to substantially the same condition as before
damage as speedily as practicable, whereupon full rental shall
recommence.
INDEMNITY 10. Tenant agrees to indemnify and save harmless the
Landlord against all claims for damages to persons or property
by reason of use or occupancy of the leased premises, and all
expenses incurred by Landlord because thereof, including
attorneys' fees and court costs.
GOVERNMENTAL 11. Tenant agrees, at his own expense, to promptly
ORDERS comply with all requirements of any legally constituted public
authority made necessary by reason of Tenant's occupancy of
said premises. Landlord agrees to promptly comply with any
such requirements if not made necessary by reason of Tenant's
occupancy. It is mutually agreed, however, between Landlord
and Tenant, that if in order to comply with such requirements,
the cost to Landlord or Tenant, as the case may be, shall
exceed a sum equal to one year's rent, then Landlord or Tenant
who is obligated to comply with such requirements is
privileged to terminate this lease by giving written notice of
termination to the other party, by registered mail, which
termination shall become effective sixty (60) days after
receipt of such notice, and which notice shall eliminate
necessity of compliance with such requirement by party giving
such notice unless party receiving such notice of termination
shall, before termination becomes effective, pay to party
giving notice all costs of compliance in excess of one year's
rent, or secure payment of said sum in manner satisfactory to
party giving notice.
CONDEMNATION 12. If the whole of the leased premises, or such
portion thereof as will make premises unusable for the
purposes herein leased, be condemned by any legally
constituted authority for any public use or purpose, then in
either of said events the term hereby granted shall cease from
the date when possession thereof is taken by public
authorities, and rental shall be accounted for as between
Landlord and Tenant as of said date. Such termination,
however, shall be without prejudice to the rights of either
Landlord or Tenant to recover compensation and damage caused
by condemnation from the condemnor. It is further understood
and agreed that neither the Tenant nor Landlord shall have any
rights in any award made to the other by any condemnation
authority notwithstanding the termination of the lease as
herein provided.
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ASSIGNMENT AND 13. Tenant may sublease portions of the leased
SUBLETTING premises to others provided such sublessee's operation is a
part of the general operation of Tenant and under the
supervision and control of Tenant, and provided such operation
is within the purposes for which said premises shall be used.
Except as provided in preceding sentence, Tenant shall not,
without the prior written consent of Landlord endorsed hereon,
assign this lease or any interest hereunder, or sublet
premises or any part thereof, or permit the use of premises by
any party other than Tenant. Consent to any assignment or
sublease shall not destroy this provision, and all later
assignments or subleases shall be made likewise only on the
prior written consent of Landlord. Assignee of Tenant, at
option of Landlord, shall become directly liable to Landlord
for all obligations of Tenant hereunder, but no sublease or
assignment by Tenant shall relieve Tenant of any liability
hereunder.
REMOVAL OF 14. Tenant may (if not in default hereunder) prior to
FIXTURES the expiration of this lease, or any extension thereof, remove
all fixtures and equipment which he has placed in premises,
provided Tenant repairs all damage to premises caused by such
removal.
CANCELLATION 15. It is mutually agreed that in the even the Tenant
OF LEASE shall default in the payment of rent, including additional
BY LANDLORD rent, herein reserved, when due, and fails to cure said
default within five (5) days after written notice thereof from
Landlord; or if Tenant shall be in default in performing any
of the terms or provisions of this lease other than the
provision requiring the payment of rent, and fails to cure
such default within thirty (30) days after the date of receipt
of written notice of default from Landlord; or if Tenant is
adjudicated bankrupt; or if a permanent receiver is appointed
for Tenant's property and such receiver is not removed within
sixty days after written notice from Landlord to Tenant to
obtain such removal; or if, whether voluntarily or
involuntarily, Tenant takes advantage of any debtor relief
proceedings under any present or future law, whereby the rent
or any part thereof is, or is proposed to be, reduced or
payment thereof deferred; or if Tenant makes an assignment for
benefit of creditors; or if Tenant's effect should be levied
upon or attached under process against Tenant, not satisfied
or dissolved within thirty (30) days after written notice from
Landlord to Tenant to obtain satisfaction thereof; then, and
in any of said events, Landlord at his option may at once, or
within six (6) months thereafter (but only during continuance
of such default or condition), terminate this lease by written
notice to Tenant; whereupon this lease shall end. After an
authorized assignment or subletting of the entire premises
covered by this lease, the occurring of any of the foregoing
defaults or events shall affect this lease only if caused by,
or happening to, the assignee or sublessee. Any notice
provided in this paragraph may be given by Landlord, or his
attorney. Upon such termination by Landlord, Tenant will at
once surrender possession of the premises to Landlord and
remove all of Tenant's effects therefrom; and Landlord may
forthwith re-enter the premises and repossess himself thereof,
and remove all persons and effects therefrom, using such force
as may be necessary without being guilty of trespass, forcible
entry or detainer or other tort.
RELETTING 16. Landlord, as Tenant's agent, without terminating
BY LANDLORD this lease, upon Tenant's breaching this contract, may at
Landlord's option enter upon and rent premises at the best
price obtainable by reasonable effort, without advertisement
and by private negotiations and for any term Landlord deems
proper. Tenant shall be liable to Landlord for the deficiency,
if any, between Tenant's rent hereunder and the price obtained
by Landlord on reletting.
EXTERIOR SIGNS 17. Tenant shall place no signs upon the outside
walls or roof of the leased premises except with the written
consent of the Landlord. Any and all signs placed on the
within leased premises by Tenant shall be maintained in
compliance with rules and regulations governing such signs and
the Tenant shall be responsible to Landlord for any damage
caused by installation, use, or maintenance of said signs, and
Tenant agrees upon removal of said signs to repair all damage
incident to such removal.
ENTRY FOR 18. Landlord may card premises "For Rent" or "For
CARDING, ETC. Sale" thirty (30) days before the termination of this lease.
Landlord may enter the premises at reasonable hours to exhibit
same to prospective purchasers or tenants and to make repairs
required of Landlord under the terms hereof, or to make
repairs to Landlord's adjoining property, if any.
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EFFECT OF 19. No termination of this lease prior to normal
TERMINATION OF ending thereof, by lapse of time or otherwise, shall affect
LEASE Landlord's right to collect rent for the period prior to
termination thereof.
MORTGAGEE'S 20. Tenant's rights shall be subject to any bona fide
RIGHTS mortgage or deed to secure debt which is now, or may hereafter
be, placed upon the premises of Landlord.
NO ESTATE IN LAND 21. This contract shall create the relationship of
Landlord and Tenant between the parties hereto; no estate
shall pass out of Landlord. Tenant has only a usufruct, not
subject to levy and sale, and not assignable by Tenant except
by Landlord's consent.
HOLDING OVER 22. If Tenant remains in possession of premises after
expiration of the term hereof, with Landlord's acquiescence
and without any express agreement of parties, Tenant shall be
a tenant at will at rental rate in effect at end of lease; and
there shall be no renewal of this lease by operation of law.
ATTORNEY'S FEES 23. If any rent owing under this lease is collected
AND HOMESTEAD by or through an attorney at law, Tenant agrees to pay fifteen
percent (15%) thereof as attorneys' fees. Tenant waives all
homestead rights and exemptions which he may have under any
law as against any obligation owing under this lease. Tenant
hereby assigns to Landlord his homestead and exemption.
RIGHTS CUMULATIVE 24. All rights, powers and privileges conferred
hereunder upon parties hereto shall be cumulative but not
restrictive to those given by law.
SERVICE OF NOTICE 25. Tenant hereby appoints as his agent to receive
service of all dispossessory or distraint proceedings and
notices hereunder, and all notices required under this lease,
the person in charge of leased premises at the time, or
occupying said premises; and if no person is in charge of, or
occupying said premises, then such service or notice may be
made by attaching the same on the main entrance to said
premises. A copy of all notices under this lease shall also be
sent to Tenant's last known address, if different from said
premises.
WAIVER OF RIGHTS 26. No failure of Landlord to exercise any power
given Landlord hereunder, or to insist upon strict compliance
by Tenant with his 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.
TIME OF ESSENCE 27. Time is of the essence of this agreement.
DEFINITIONS 28. "Landlord" as used in this lease shall include
first party, his heirs, representatives, assigns and
successors in title to premises. "Tenant" shall include second
party, his heirs and representatives, and if this lease shall
be validly assigned or sublet, shall include also Tenant
assignees or sublessees, as to premises covered by such
assignment or sublease. "Landlord," and "Tenant" include male
and female, singular and plural, corporation, partnership or
individual, as may fit the particular parties.
SPECIAL 29. In so far as the following stipulations conflict
STIPULATIONS with any of the foregoing provisions, the following shall
control: See Exhibit "B" attached hereto and incorporated
herein by this reference.
This lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, shall be of any force or effect.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals, in triplicate, the day and year first above written.
Signed, sealed and delivered as to Landlord, in the GBC PROPERTIES, LLC presence
of:
/s/ Xxxxxx X. Xxxxxxx By: /s/ X. X. Xxxxx
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Name: X. X. Xxxxx
Xxxxxx X. Xxxxxxx ---------------------------
------------------------------ Title: Manager
Notary Public --------------------------
Signed, sealed and delivered as to Tenant, in the GWINNETT BANKING COMPANY
presence of:
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx III
------------------------------ ---------------------------------
Name: Xxxx X. Xxxxxxx III
Xxxxxx X. Xxxxxxx ---------------------------
------------------------------ Title: Chief Financial Officer
Notary Public --------------------------
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EXHIBIT "B"
1. EXTENSION OF TERM. At the expiration of the initial five (5) year term
of this Agreement and at the expiration of each extension period as
provided in this paragraph, provided that Tenant is not in default
under any of the terms or conditions of this Commercial Lease Contract,
the term of this Agreement shall be automatically extended for two
additional five (5) year periods pursuant to the same terms and
conditions as this Commercial Lease Contract, except as such terms and
conditions may be modified by the terms and conditions set forth below.
Written notice of such modifications shall be provided by Landlord to
Tenant at least ten (10) days prior to the end of the current term of
the Commercial Lease Contract or any extension period as provided
herein. Either party desiring to terminate this Commercial Lease
Contract shall give to the other party written notice of the intent not
to renew the term of the Agreement at least ten (10) days prior to the
end of the current term thereof, in which case this Commercial Lease
Contract shall terminate and be of no further force and effect at the
end of said term period.
2. CPI INCREASES. On the first day of the initial extension period as
described above and on the first day of each subsequent extension
period, the rent described in Paragraph 3 of this Commercial Lease
Contract shall be adjusted and changed. Such adjustment and change in
the rent amount shall be determined in accordance with adjustments in
the Consumer Price Index ("CPI") as provided for herein. The CPI is
herein defined as the "United States Department of Labor, Bureau of
Labor Statistics, Consumer Price Index, United States, for all urban
consumers, All Items (1982-84 = 100)."
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At the beginning of each extension period as provided above, the rent
shall be adjusted by the "percentage change" in the CPI on the initial day of
each extension period as compared to the CPI prevailing sixty (60) months prior
to such date. All such adjustments shall be made retroactive to such five-year
anniversary date. All such adjustments shall be made to the nearest one-eighth
of a percentage point (0.125%).
Landlord shall notify Tenant in writing of the amount of the newly
adjusted rent and same shall be due on the first day of the applicable extension
period and each month thereafter until adjusted again. However, in no event
shall the rent due and payable hereunder be less than the rent provided for
during the initial term of this Commercial Lease Contract, regardless of the
value of the dollar as reflected by said CPI figure.
In the event the amount of CPI increase is not known until after the
first month of the period for which the adjustment is to be made, due to delays
in publication of the CPI, or any other reason, then, upon notification of the
increase by Landlord, the Tenant shall pay the full amount of the increase which
is due for any prior month during the adjustment period within thirty (30) days
following receipt of Landlord's written notice of the amount due.
In the event the CPI is discontinued, ceases to incorporate significant
items now incorporated therein, or if a substantial change is made in such CPI,
the parties hereto shall use in its place any similar index established and
compiled by an agency of the United States Government, and, if no such index is
available, the parties shall attempt to agree on an alternative formula and, if
agreement cannot be reached, the matter shall be submitted to arbitration under
the rules of the American Arbitration Association then in effect.
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The rent, as escalated, shall constitute the "rent" as such term is
used throughout the Commercial Lease Contract.
3. BANKRUPTCY OR INSOLVENCY. Notwithstanding any other provisions
contained in this Commercial Lease Contract, in the event (a) Tenant or
its successors or assigns shall become insolvent or bankrupt, or if it
or their interest under this Commercial Lease Contract shall be levied
upon or sold under execution or other legal process, or (b) the
depository institution then operating on the Premises is closed, or is
taken over by any depository institution supervisory authority
("Authority"), Landlord may, in either such event, terminate this
Commercial Lease Contract only with the concurrence of any Receiver or
Liquidator appointed by such Authority; provided, that in the event
this lease is terminated by the Receiver or Liquidator, the maximum
claim of Landlord for rent damages, or indemnity for injury resulting
from the termination, rejection, or abandonment of the unexpired
Commercial Lease Contract shall by law in no event be in an amount
equal to all accrued and unpaid rent to the date of termination.
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