EXHIBIT 10.1
LEASE
THIS LEASE (hereinafter referred to as the "Lease"), made and entered
into as of this ___ day of March, 2000 by and between PIONEER REAL ESTATE
DEVELOPMENT, INC., a Georgia corporation (hereinafter referred to as
"Lessor," and FUTURUS FINANCIAL SERVICES, INC., a Georgia corporation
(hereinafter referred to as "Lessee");
W I T N E S S E T H T H A T
WHEREAS, Lessor is the owner of certain real property (the "Real
Property") lying and being in Land Xxx 0000, 0xx Xxxxxxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, which property is more particularly
described in the legal description attached hereto as EXHIBIT "A" and
incorporated by reference herein (hereinafter, said real property, together
with all improvements now or hereafter erected thereon, and all furnishings,
fixtures, equipment, and other personal property placed or installed thereon
by Lessor, is collectively referred to as the "Premises"); and
WHEREAS, Lessee desires to lease to Lessee and Lessee desires to
lease from Lessor the Premises under the terms and conditions contained herein.
NOW, THEREFORE, for and in consideration of the terms and conditions
hereinafter set forth, the parties hereto do hereby agree as follows:
ARTICLE I
GRANT AND TERM OF LEASE - IMPROVEMENTS ON THE PREMISES
1.01 GRANT OF LEASE. For the rent and upon the terms and conditions
hereinafter stated, Lessor does hereby lease and rent unto Lessee and Lessee
does hereby lease and take from Lessor the Premises.
1.02 LESSEE'S INSPECTION, PLAN APPROVAL AND INITIAL CONSTRUCTION.
Lessee shall have sixty (60) days following the date of execution and delivery
of this Lease by Lessor (the "Contingency Period") to inspect the Premises and
conduct its due diligence activities and to obtain approval from all appropriate
governmental agencies overseeing banks. Concurrently with this inspection
Lessee, at Lessee's sole cost and expense, shall have prepared, in consultation
with Lessor's Architect and Engineer, preliminary site plan, grading and utility
plans, landscaping plan and building elevations (the "Preliminary Plans") for
delivery to Lessor within thirty (30) days of the date hereof for review by
Lessor. Lessor shall have the right to review and approve the Preliminary Plans,
such approval not to be unreasonably withheld. Once approved by Lessor the
Preliminary Plans shall be attached hereto as EXHIBIT "B" and made a part hereof
and used by Lessee to create final permit and construction plans for the project
pursuant to Section 6.02 hereinbelow.
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Lessee shall obtain all necessary permits and approvals for
the project, at its sole cost and expense, on or before the expiration of the
Contingency Period. In the event Lessee fails to obtain all necessary permits
and approvals for the project (with the exception of the sewer/septic permit(s)
for the project) prior to the expiration of the Contingency Period or in the
event that Lessee determines in its sole discretion that the Premises are not
suitable for Lessee's purposes, then Lessee may terminate this Lease by giving
written notice to Lessor given prior to the expiration of the Contingency Period
and this Lease shall become null and void and neither party shall have any
further obligation to each other except those obligations that survive any
termination of this Lease. Lessee shall have the right to extend the Contingency
Period for an additional thirty (30) days to obtain the sewer/septic permit(s)
and banking approval for the project by written notice to Lessor prior to the
expiration of the initial Contingency Period. In the event Lessee fails to
obtain the sewer/septic permit(s) or regulatory approval on or before the
expiration of the Contingency Period, as the same may be extended, despite
Lessee's diligent good faith efforts, then Lessee may terminate this Lease by
giving written notice to Lessor on or before the expiration of the Contingency
Period, as the same may be extended, and this Lease shall become null and void
and neither party shall have any further obligation to each other except those
obligations that survive any termination of this Lease.
In the event Lessee does not terminate this Lease pursuant to
the preceding paragraph of this Section 1.02, Lessee shall commence construction
of the improvements to be located at the Premises in accordance with Article VI
below. From and after the date hereof, Lessee shall secure a general contractor
for construction of the Improvements (as defined in Article VI below). Such
general contractor shall be reputable, licensed, insured and as part of the
construction contract, such contractor shall obtain a payment and performance
bond reasonably acceptable to Lessor, naming Lessor, and Lessor's lender, as
obligees pursuant to a dual obligee rider (the general contractor as approved by
Lessor is herein referred to as the "Contractor"). The Contractor shall perform
and construct the Improvements, as hereinafter defined, pursuant to the Final
Plans, as hereinafter defined. Lessee agrees to allow Lessor or Lessor's
consultant to observe and inspect the construction of the Improvements Work by
monitoring the course of construction, the scheduling of subcontractors, the
progress and condition of such construction, and other related matters, but in
no event is Lessor responsible for managing the project or for correcting
defects in construction. Lessor shall notify Lessee in writing of any concerns
or problems arising during the course of construction of the Improvements.
Lessee shall provide Lessor with copies of all building, grading and other
permits required for construction of the Improvements, and testing and
inspection reports, the certificate of occupancy and any other documentation
reasonably requested by Lessor. Lessee shall be responsible for the schedule and
conduct of the construction and for all development and construction costs of
the Improvements.
1.03 TERM AND RENEWAL TERMS. The initial term of the Lease shall
commence on the date hereof and continue until midnight on the last day of the
144th month following the Rent Commencement Date (as defined in Article VI
below) unless this Lease shall be terminated sooner.
Lessee shall have the right to renew the term of this Lease for two (2)
additional five (5) year periods by delivering written notice thereof to Lessor
no later than the one hundred eightieth (180th) calendar day preceding the date
of expiration of the original term or extended term hereof, as the case may be,
and so long as (x) Lessee is not in default hereunder beyond applicable cure
periods as of the date of delivery of such written notice and (y) Lessee is not
in default hereunder
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beyond applicable notice and cure periods as of the date of commencement of such
renewal term. In the event of such renewal, the terms and provisions set forth
herein shall remain in full force and effect in accordance with their terms, and
the Base Rent payable by Lessee to Lessor shall be increased as provided in
Section 3.01 hereinbelow. All other rental and additional rental, including
without limitation, sums due pursuant to Section 4.01 hereinbelow, shall
continue to be due and payable as provided herein, and all other terms,
covenants and conditions contained herein shall remain in full force and effect
for each such entire renewal term.
ARTICLE II
COVENANTS OF QUIET ENJOYMENT
2.01 COVENANTS OF QUIET ENJOYMENT. Lessee paying the rent hereby
reserved, and performing and observing several covenants by it to be kept and
performed, may peacefully hold and enjoy the Premises with exclusive control and
possession thereof during the full term of this Lease, subject to those matters
described on EXHIBIT "C" attached hereto and made a part hereof and to any
mortgage, security deed or similar security device securing construction or
permanent financing obtained by Lessor (the "Permitted Exceptions").
ARTICLE III
RENT'S
3.01 BASE RENT. The annual Base Rent hereunder shall be calculated and
payable as follows:
The Base Rent shall be based on a formula which provides Lessor with a
return of 11.5% per annum on its Contributed Construction Costs (as hereinafter
defined) and a return of 10% per annum on the land valued at $1,200,000. The
term "Contributed Construction Costs," as used herein, shall mean funds that
Lessor will place in escrow pursuant to the terms hereof to be used towards
construction costs of the Improvements. Lessor's Contributed Construction Costs
are contemplated to be sixty ($60) dollars per square foot for the 7500 square
foot building but in no event shall Lessor's Contributed Construction Costs
exceed $450,000. Upon Substantial Completion of the Improvements, Lessor and
Lessee shall execute an amendment to this Lease specifying the initial Base Rent
hereunder as described in Section 6.03 hereinbelow. The Base Rent shall increase
by two percent (2%) per year over the previous year's base rent of the original
and any renewal term hereunder.
By way of example and not limitation, if Lessor's Contributed
Construction Costs are $450,000 Base Rent would be as follows:
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YEAR ANNUAL BASE- RENT MONTHLY BASE RENT
---- ----------------- -----------------
1 171,750.00 14,312.50
2 175,185.00 14,598.75
3 178,688.70 14,890.73
4 182,262.47 15,188.54
5 185,907.72 15,492.31
6 189,625.88 15,802.16
7 193,418.40 16,118.20
8 197,286.76 16,440.56
9 201,232.50 16,769.37
10 205,257.15 17,104.76
11 209,362.29 17,446.86
12 213,549.54 17,795.79
13 217,820.53 18,151.71
14 222,176.94 18,514.74
15 226,620.48 18,885.04
16 231,152.89 19,262.74
17 235,775.94 19,648.00
18 240,491.46 20,040.96
19 245,301.29 20,441.77
20 250,207.32 20,850.61
21 255,211.47 21,267.62
22 260,315.69 21,692.97
Lessee shall pay to Lessor at 000 Xxxxxxxx Xxxx Xxxxxxx, Xxxxx
Xxxxxxxx, 00000, or to such other address as Lessor may from time to time
designate by written notice to Lessee, commencing on the earlier to occur of (i)
the date Lessee occupies the Premises, (ii) the date the Improvements are
Substantially Complete (as defined in Section 6.03 hereinbelow) or (iii)
November 1, 2000 (herein, such earlier date is referred to as the "Rent
Commencement Date"), and thereafter promptly on the first (1st) day of each
month, in advance, during the term of this Lease, in lawful money of the United
States of America, without offset or deduction, and without any prior notice and
demand, Base Rent calculated as provided above. In the event Lessee fails to pay
any installment of Base Rent, or other charge or imposition hereunder within ten
(10) calendar days after such installment or charge is due, in addition to all
of Lessor's other rights and remedies hereunder or at law and to help defray the
additional cost to Lessor for processing such late payment, Lessee shall pay to
Lessor on demand a late charge in an amount equal to five percent (5%) of such
installment. The provision for such late charge shall not be construed as
liquidated damages or as limiting Lessor's remedies in any manner. In the event
that the Commencement Date or the expiration date hereof occurs during the
middle of any month, the rent for that portion of the month shall be prorated on
a daily basis.
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ARTICLE IV
TAXES, ASSESSMENTS, UTILITIES, ACCESS AND MAINTENANCE
4.01 TAXES, ASSESSMENTS. Lessee, as a part of the consideration for the
Premises, shall timely pay, and indemnify and save harmless Lessor from, all
taxes, assessments, license fees, excises, personal property taxes charged
against trade fixtures, furnishings and equipment or any other personal property
at the Premises, taxes on Lessor's right to receive rental or on the receipt of
rental or income from the Premises (excluding Federal or State income or estate
taxes), taxes or charges for fire protection, road maintenance, refuse or
similar service, or other imposts and charges that during the term of this lease
shall be fixed, charged, levied, assessed or otherwise imposed upon the Premises
or roadways and access ways to the Premises, as presently improved or as the
same may be hereafter improved by Lessee under the terms of this Lease, or upon
Lessor as owner of the Premises, including any assessments or charges under any
declaration, reciprocal easement agreement or similar encumbrance affecting the
Premises and a pro rata share (based upon acreage of benefited property) of the
cost of maintaining roadways providing access to the Premises (herein, all of
such taxes, assessments and charges are collectively referred to as the
"Impositions"), with the exception that Impositions for the first and last years
of the term of this Lease shall be prorated as of the date of commencement and
of termination of this Lease. Lessor will promptly notify Lessee of any of such
Impositions. Lessor will attach to said notice, if applicable, a copy of the
xxxx or assessment related thereto. Lessee shall pay the sum so specified to
Lessor within fifteen (15) days following the date of Lessor's notice.
4.02 CONTEST OF IMPOSITIONS. If Lessee, in good faith, shall desire to
contest the validity or amount of any Imposition herein agreed to be paid by
Lessee, Lessee shall notify Lessor in writing of its intention to contest the
same, and Lessee may, at its sole cost and expense (in its own name), dispute
and contest the same and in such case such item need not be paid until adjudged
to be valid. Unless so contested by Lessee, all such Impositions shall be paid
by Lessee within the time provided by law, and, if contested, any such contested
item shall be paid before the issuance of execution on final judgment; provided,
however, that in the event Lessor in its sole judgment determines that the
failure to pay or discharge any such obligation during any such contest would
adversely affect or impair Lessor's title to the Premises, or its ground
lessor's or lender's interest therein, Lessee shall deposit with the Lender as
security for the payment and discharge of such contested item an amount equal
thereto, plus interest and penalties, and Lessor is hereby authorized to use
such funds to pay such obligation if necessary to preserve or protect Lessor's
title to the Premises, or such ground lessor's or lender's interest therein.
4.03 UTILITIES. Lessee shall furnish, at its own expense, all utilities
of every type and nature required by it in the use of the Premises and shall pay
or cause to be paid, all bills for water, sewerage, heat, gas, electricity and
other utilities, if any, used on, in connection with, or chargeable against the
Premises during the term of this Lease. Lessor shall not be liable in any way to
Lessee or any other party occupying any part of the Premises for any failure or
defect in any utility services furnished to the Premises by reason of any
requirement, act or omission of the public utility company serving the Premises
with such utility service, by reason of necessary repairs or improvements or any
other cause whatsoever.
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4.04 ACCESS FOR LESSOR. Lessor, and Lessor's employees, contractors,
subcontractors and agents, shall have the full, perpetual right to enter the
Premises at all reasonable times during business hours after endeavoring to
provide at least 24 hours prior notice to Lessee to make repairs, conduct
maintenance or otherwise inspect the Premises so long as such entry does not
unreasonably interfere with Lessee's business operations thereby.
4.05 DEFAULT IN PAYMENT. In case of any default by Lessee in the
payment of any Impositions (unless the same are being contested pursuant to
Section 4.02 hereof), or premiums of insurance, or the payment of any amounts
provided by this Lease to be paid by Lessee (other than the amounts made payable
as rent), or in procuring insurance as provided in this Lease, Lessor may, on
behalf of Lessee, make such payment or payments or procure any such insurance,
and Lessee covenants thereupon on demand to reimburse and pay Lessor any amount
so paid or expended. Any amounts payable hereunder by Lessee to Lessor and not
paid when due, including, without limitation, Base Rent and additional rent,
shall bear interest at the rate equal to the lesser of (i) eighteen percent
(18%) per annum or (ii) the highest rate permissible under law (the "Default
Rate"). If it becomes necessary to bring suit for collection of the Base Rent or
of any sums herein stipulated to be paid, or in case the same has to be
collected upon demand of any attorney, Lessee agrees to pay such reasonable
attorney's fees as are actually incurred by Lessor for outside counsel.
4.06 MAINTENANCE. Lessor and Lessee agree that this Lease constitutes a
net lease and accordingly, Lessor shall not be required to make any
improvements, repairs or replacements of any nature, kind or character to the
Premises during the term of this Lease. Lessee shall, at its sole cost, keep and
maintain all portions of the Premises neat and clean and in good order,
conditions, maintenance and repair, including, but not limited to the roof,
foundation, walls, floors, driveways providing access to the Premises, utility
lines serving the Premises, improvements and replacements of each of the
foregoing, hearings ventilating, and air conditioning plumbing and electrical
systems, downspouts, storefronts, sprinkler systems, sidewalks, equipment, and
any and all other repairs or maintenance necessary for any portion or part of
the interior or exterior of the Premises. Lessee shall provide or pay for pest,
bug and termite control service or otherwise keep the Premises free from pests,
termites and wood-boring infestation. Lessee shall be responsible for
maintaining the exterior landscaping of the Premises in a good and sightly
condition. Lessee shall, at its sole cost and expense, also repair any damage
necessitated by the negligent acts or omissions or Lessee, its agents,
employees, servants, subtenants, licensees, concessionaires, invitees or
customers. Lessee shall replace any and all plate, window and other glass
(structural or otherwise) in, on or about the Premises, which may be broken or
destroyed, with glass of the same or similar quality. Before undertaking repairs
to the Premises (other than minor interior non-structural and emergency
repairs), Lessee shall first obtain Lessor's approval of the plans and
specifications therefor, which approval is not to be unreasonably withheld.
Lessee shall, at its sole cost and expense, keep the Premises free of ice and
snow and other debris. Lessee shall maintain a preventive maintenance contract
providing for the regular inspection and maintenance of the heating and air
conditioning system by a licensed heating and air conditioning contractor.
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ARTICLE V
CONDEMNATION
5.01 If the whole of the Premises, or such substantial portion thereof
as will make the Premises unusable for the purposes herein leased, be condemned
by any legally constituted authority for any public use or purpose, then this
Lease shall terminate as of the time when possession thereof is taken by public
authorities, and rental shall be accounted for between Lessor and Lessee as of
that date. In the event the portion condemned is such that the remaining portion
can, after restoration and repair, be made usable for Lessee's purposes, then
this Lease shall not terminate, and subject to Lessor's receipt of condemnation
awards, Lessor shall make such award available to Lessee pursuant to
construction disbursements procedures reasonably satisfactory to Lessor and
Lessee for the purpose of restoring the Premises to an architectural whole.
Rental shall xxxxx by reason of such condemnation by an amount allocable to the
portion of the building structure which was so taken or sold.
5.02 Any termination or obligation to repair, however, shall be without
prejudice to the rights of either Lessor or Lessee, or both, to recover from the
condemnor compensation and damages caused by such condemnation. Lessor and
Lessee acknowledge that Lessee shall have the right to apply for and collect the
value of its trade fixtures and special equipment at such time owned by it in
the Premises and any other compensable damages resulting from such condemnation
not affecting Lessor's settlement with the condemning authority; provided,
however, that Lessee shall have no claim against Lessor or against the condemnor
for the value of any unexpired portion of the term of this Lease or otherwise.
Neither Lessee nor Lessor shall have any rights in any award made to the other
by any condemnation authority.
ARTICLE VI
CONSTRUCTION OF IMPROVEMENTS ON PREMISES
6.01 CONSTRUCTION OF IMPROVEMENTS. From and after the date satisfaction
of the contingencies contained in Section 1.02 above, Lessee shall construct a
retail banking facility and related parking and amenities in accordance with the
site plan attached hereto as Exhibit "A-1," including without limitation, the
access ways shown thereon (the "Improvements") in accordance with the Final
Plans and the terms and conditions hereof. The Improvements, including any
signage, shall be of sound structural design and constructed of good materials
in a good and workmanlike manner, in accordance with the requirements of all
applicable laws, ordinances and regulations of duly constituted authorities
having jurisdiction thereof and in material accordance with plans and
specifications approved by Lessor pursuant to Section 6.02 below. Lessee shall
be totally responsible for complying with all aspects of the Americans With
Disabilities Act, as amended.
6.02 PLANS AND SPECIFICATIONS. The Improvements shall be constructed
substantially in accordance with detailed plans and specifications to be
prepared by Lessee at its expense and submitted to Lessor for written approval
prior within sixty (60) days of the date hereof, which shall be consistent with
the Preliminary Plans attached hereto as EXHIBIT "B". Lessee shall not commence
any construction activities prior to obtaining Lessor's written approval of such
plans and
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specifications. In the event Lessor fails to respond to Lessee by ten (10) days
after such plans and specifications are submitted by Lessee, the plans and
specifications submitted shall be deemed approved for purposes of this Lease.
Lessor shall not unreasonably withhold its approval to any submitted plans and
specifications so long as the contemplated Improvements are consistent with the
site plan attached hereto and are in compliance with applicable codes and zoning
ordinances (such plans and specifications as approved by Lessor are herein
referred to as the "Final Plans") and shall be attached hereto as EXHIBIT "D".
6.03 COMMENCEMENT/COMPLETION OF CONSTRUCTION. Lessee agrees to begin
construction as soon as practicable following the satisfaction of the
contingencies contained in Section 1.02 and to diligently prosecute construction
thereafter so that the same are Substantially Completed on or before November 1,
2000, which date may be extended for up to thirty (30) calendar days if
necessitated by Force Majeure (but such extension shall not extend the Rent
Commencement Date). Prior to commencement, Lessee shall deliver to Lessor copies
of the construction contract for such work, for Lessor's approval not to be
unreasonably withheld or delayed. The Improvements shall be deemed to be
"Substantially Complete" on the earliest of the date on which either: (1) the
Improvements are complete substantially in accordance with the Final-Plans
(except for "punch-list" items, such as minor details of construction,
decoration or mechanical adjustments which do not materially interfere with
Lessee's use and occupancy of the Premises), or (2) Lessee has obtained a final
certificate of occupancy. On the date the Improvements are Substantially
Complete, Lessee shall execute and deliver to Lessor a Commencement Date
Memorandum to be prepared at such time by Lessor acknowledging (i) the
Commencement Date, (ii) Lessee's acceptance of the Premises and (iii) Base Rent
hereunder. For purposes of this Lease, the term "Force Majeure" shall mean and
include the following: any delay caused by any action, inaction, order, ruling,
moratorium, regulation, statute, condition or other decision of any governmental
agency having jurisdiction over any portion of the Premises, over the
construction anticipated to occur thereon or over any uses thereof, or by fire,
flood, inclement weather, strikes, lockouts or other labor or industrial
disturbance whether or not on the part of agents or employees of either party
hereto engaged in the construction of the Premises), civil disturbance, order of
any government, court or regulatory body claiming jurisdiction or otherwise, act
of public enemy, war, riot, sabotage, blockade, embargo, failure or inability to
secure materials, supplies or labor through ordinary sources by reason of
shortages or priority, discovery of hazardous or toxic materials, earthquake, or
other natural disaster, or any cause whatsoever beyond the reasonable control
(excluding financial inability) of the, party whose performance is required, or
any of its contractors or other representatives, whether or not similar to any
of the causes hereinabove stated.
6.04 LIENS. In all contracts for construction and development of the
Premises, including professional service contracts relating thereto, Lessee
shall obtain the agreement of the other party that the other party has no lien
rights against the fee simple interest of Lessor in the land which is the
Premises. Such party shall acknowledge and agree that its lien rights relate
only to the leasehold estate of Lessee and Lessee's rights in this Lease. Lessee
shall deliver copies of such contracts to Lessor upon request of Lessor. All of
Lessee's contractors and subcontractors are put upon notice of the fact that
Lessee shall never, under any circumstances, have the power to subject the
interest of Lessor in the Premises to any mechanics' or materialmen's lien or
liens of any kind. All persons who may hereafter during the term of this Lease,
including any extensions thereof, furnish work, labor, services or materials to
the Premises upon the request or order of Lessee or any
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person claiming under, by or through or under Lessee, must look for claims or
compensation wholly to the interest of Lessee and not to that of Lessor.
6.05 ALTERATIONS. Lessee shall not make or cause to be made any
structural or other material alterations, additions or improvements
("Alterations") to the Premises without first submitting plans and
specifications therefor and obtaining Lessor's consent thereto which consent is
not to be unreasonably withheld or delayed. All alterations shall be designed
and constructed in accordance with all applicable governmental laws, statutes,
rules, ordinances and regulations.
6.06 PAYMENT AND PERFORMANCE OR COMPLETION BOND. Unless waived in
writing by Lessor, prior to commencing any repairs, alterations or new
improvements on the leased Premises, which are anticipated in cost in excess of
$50,000.00, including, without limitation, construction of the Improvements,
Lessee, or the contractor or contractors performing such repairs, alterations or
improvements on Lessee's behalf, shall post a payment and performance or
completion bond in form reasonably satisfactory to Lessor, to assure that the
repairs, Alterations or improvements will be completed and paid for and that no
laborer's or mechanic's liens will attach, containing a dual obligee rider
naming Lessor and if requested, Lessor's lender, as beneficiaries thereof.
6.07 OWNERSHIP OF IMPROVEMENTS. Except as otherwise provided herein,
all right, title and interest to the Improvements and the furniture, fixtures
and equipment being installed or placed at the Premises by Lessee shall belong
to Lessee; provided, however that upon the default of Lessee hereunder or the
expiration or termination of the term of this Lease, such right, title and
interest shall automatically and without the necessity of any further
documentation become the absolute property of Lessor (except that in the event
of expiration of the term, Lessee shall retain title to its movable furniture,
safety deposit boxes and ATM machine so long as any removal thereof does not
damage the building structure and Lessee repairs any damage caused by such
removal and restores the structure to an aesthetic appearance), and Lessee
hereby transfers and assign to Lessor such property, effective as of such date.
The bank vault shall under all circumstances remain with the Premises. No
further assignment shall be required for such change in ownership and the
foregoing assignment shall be self-operative. Lessee hereby agrees that it shall
not encumber or secure the purchase or use by Lessee of any fixtures and
equipment to be installed at the Premises, including, without limitation,
electrical systems, HVAC systems, and cooking, cleaning and refrigeration
equipment, with any security interest, title retention device, lease or other
interest.
ARTICLE VII
USE OF PREMISES - PROVISIONS OF GENERAL APPLICATION
7.01 USE OF PREMISES. The use of the Premises is intended for retail
banking and related purposes during the term of this Lease; any uses of the
Premises other than for retail banking related purposes shall only be with the
prior written consent of Lessor which consent shall be at Lessor's sole
discretion. Lessee shall use the Premises only in full compliance with (i) all
ordinances, statutes, rules and regulations of any applicable governmental
authorities, Board of Fire Underwriters, or any other entity having jurisdiction
over the Premises; and (ii) any covenants, conditions and restrictions,
affecting the real property. Lessee shall not make any use or suffer any part of
the Premises to be used in such a manner as to construct a nuisance or for any
improper, offensive, or unlawful purposes. Under no circumstances shall the
Premises be used for any
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purpose that creates a public or private nuisance; that emits noise or
objectionable, loud music; that is a liquor store; that is an adult bookstore or
establishment selling, exhibiting or distributing pornographic or obscene
materials or a massage parlor or a so-called "head shop" or nude dancing or
lingerie exhibiting establishment. Lessee shall at all times keep or cause the
Premises to be kept in neat and orderly condition and free from accumulations of
debris, refuse, materials, ashes and rubbish. Lessee will obey and comply with
all lawful requirements, rules, regulations and ordinances of all legally
constituted authorities, existing at any time during the continuance of this
Lease, in any way affecting the Premises or the use of the Premises or any
construction being done on the Premises or in any way affecting this Lease.
Lessee will, at all times and at its expense, keep any and all buildings or
improvements hereafter placed on the Premises in good order, condition and
repair. In the event, at any time during the term of this Lease, any addition,
alteration, change, repair or other work of any nature, structural or otherwise,
is required or ordered or becomes necessary on account of any governmental
regulation now in effect or hereafter adopted, passed or promulgated, or on
account of any other reason with respect to any buildings or improvements
hereafter placed on the Premises, the entire expense thereof, regardless of when
the same shall be incurred or become due, shall be the liability of Lessee and,
in no event, shall the Lessor be called upon to contribute thereto or do or pay
for any work of any nature whatsoever. Lessor, and its authorized
representatives may enter the Premises at reasonable times to inspect said
Premises in order to determine whether or not Lessee is complying with its
obligations under this Lease.
ARTICLE VIII
INSURANCE - INDEMNITY
8.01 RISKS TO BE INSURED. At all times during the term or this Lease,
including the period of construction or reconstruction of the Improvements or
any other improvements on the Premises, Lessee at Lessee's sole expense shall
maintain insurance as outlined below with insurance companies reasonably
acceptable to Lessor: (a) fire and extended coverage insurance and such other
hazard insurance as Lessor may from time to time require with respect to any
buildings and improvements now or hereafter located and constructed on the
Premises (including without limitation, the Improvements) in amounts not less
than 100% of the then full insurable value (actual replacement value without
deduction for depreciation) of all buildings and improvements located on the
Premises; (b) comprehensive public liability and property damage insurance
applicable to the Premises and any buildings and improvements located thereon,
in amounts reasonably approved by Lessor, but in any event in amounts not less
than $2,000,000.00 for injury or death to one person or damage to property,
protecting Lessee and Lessor against liability, damage, claim or demand in any
way arising out of or in connection with the ownership, condition, use or
operation of the Premises or any buildings and improvements located thereon
(with the liquor liability exclusion removed at any time that Lessee serves
alcoholic beverages at the Premises or Lessee shall otherwise carry liquor
liability coverage in an amount not less than $2,000,000); (c) statutory
worker's compensation insurance and employer's liability insurance governing all
employees; (d) business interruption or rent insurance against loss of business
or rents in an amount not less than the aggregate amount of the annual Base Rent
and Impositions so as to insure that such items are paid to Lessor during the
period of restoration; (e) during the period of construction of the
Improvements, builder's all risk replacement cost insurance on a non-reporting
completed value basis; and (f) such other insurance with respect to the Premises
in such amounts
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and against such insurable hazards as Lessor from time to time may reasonably
require. During any construction, repair, restoration or replacement of
buildings or other improvements on the Premises, Lessee will obtain and keep in
effect standard builders risk coverage with all risk coverage in the amount of
one hundred percent (100%) of the value of the improvements. Lessee will cause
all contractors and subcontractors to obtain and keep in effect worker's
compensation insurance to the full extent required by law and automobile and
public liability insurance as described in (b) and (c) previously in this
Section 8.01. Lessor shall have the right to review the insurance coverage
carried pursuant to this Section 8.01 not more often than once every three years
for the purpose of evaluating whether the coverage carried pursuant to this
Section 8.01 is consistent with that being carried for projects with similar
improvements in the Atlanta Statistical Metropolitan Area. Following such
review, Lessor shall notify Lessee of any adjustments in coverage (increases or
decreases) required to conform the insurance coverage with such other projects.
If Lessor fails to conduct such review within a given three year period, Lessee
shall have the right to request that Lessor undertake such review for the
purpose of adjusting the coverage then maintained.
8.02 POLICY PROVISIONS. All insurance maintained by Lessee pursuant to
the terms of the Lease shall (a) name Lessor and Lessee, as insured as their
respective interests may appear, as insureds, if requested by Lessor, (b)
provide that any losses shall be payable notwithstanding any act or negligence
of Lessor or Lessee, (c) provide that no cancellation, material alteration or
non-renewal thereof shall be effective until at least thirty (30) days after
receipt by Lessor or Lessee of written notice thereof, and (d) be reasonably
satisfactory to Lessor in all other respects. Each such policy shall contain a
deductible no greater than $1,000. Each insurance company issuing policies for
builder's risk, extended coverage, hazard or casualty insurance hereunder is
hereby authorized and directed that, all losses be paid to Lessor or Lessor's
lender, as their interests may appear, to be held by Lessor or such lender, in
accordance with the terms hereof. In the event any insurance company fails to
disburse directly and solely to Lessor or such lender but disburses instead
either solely to Lessee or to Lessee and Lessor jointly, Lessee agrees
immediately to endorse and transfer such proceeds to Lessor, to be used by
Lessor in accordance with Article IX hereinbelow. Upon the failure of Lessee to
endorse and transfer such proceeds as aforesaid, Lessor may execute such
endorsements or transfers for and in the name of Lessee and Lessee hereby
irrevocably appoints Lessor as Lessee's agent and attorney-in-fact so to do.
8.03 DELIVERY OF POLICIES; INSURANCE CERTIFICATES. Upon the execution
of this Lease and thereafter not less than thirty (30) days prior to the
expiration dates of the expiring policies previously delivered pursuant to this
Section, Lessee will deliver to Lessor certificates evidencing all insurance
coverage which Lessee is required to maintain pursuant to this Lease. Upon
request, Lessee shall deliver to Lessor copies of such policies.
8.04 INDEMNIFICATION BY LESSEE. Lessee will protect, indemnify and hold
harmless Lessor from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Lessor by reason of (a) any accident, injury to or death of persons or
loss of or damage to property occurring on or about the Premises or any part
thereof or the improvements located thereon, (b) the occupancy or use of the
Premises by Lessee, its agents, employees, servants, subtenants, licensees or
concessionaires, (c) any use, nonuse or condition of the Premises or any part
thereof or the improvements located thereon, (d) any action by a third
11
party based on any failure on the part of Lessee to perform or comply with any
of the terms of this Lease, or (e) any action of a third party based on
performance of any labor or services or the furnishings of any materials or
other property in respect of the Premises or any part thereof or the
improvements located thereon; unless such action, suit or proceeding arises out
of the sole negligence of Lessor or the act or omission of Lessor prior to
Lessee's taking possession of the Premises pursuant to this Lease. In case any
action, suit or proceeding is brought against Lessor by reason of any such
occurrence, Lessee, upon Lessor's request, will at Lessee's expenses resist and
defend such action, suit or proceedings, or cause the same to be resisted and
defended by counsel designated by Lessee and approved by Lessor, which approval
will not be unreasonably withheld.
8.05 WAIVER OF SUBROGATION. Lessor and Lessee each hereby waives any
claim which may arise in its favor against the other party hereto arising out of
this Lease (or any renewal or extension thereof), for any loss or damage to any
of its property located within, upon, or constituting a part of the Premises.
Lessor and Lessee each agree to have its own insurance company properly endorse
the property and casualty coverage insurance policies covering the Premises, or
anything located therein (i) to waive any subrogation claims against the other
party, and (ii) to prevent the invalidation of said insurance coverage by reason
of this mutual waiver. Lessor and Lessee hereby acknowledge and agree that it is
their intent to shift the risk for losses to property to their respective
insurers and that each is or shall be adequately insured to cover such risks.
8.06 FAILURE BY LESSEE TO PROVIDE INSURANCE. In the event Lessee fails
to provide and maintain the insurance policies required pursuant to this Article
VIII, in addition to all other remedies provided herein, Lessor shall have the
right to procure such insurance on Lessee's behalf and at Lessee's sole cost and
expense, and Lessee shall pay to Lessor the cost thereof, as additional rental
hereunder, within fifteen (15) days of Lessee's receipt of an invoice therefor
from Lessor.
8.07 SHORTFALLS IN INSURANCE. Notwithstanding anything contained
hereinabove to the contrary, in the event that the insurance maintained by
Lessee is insufficient to repair in its entirety the Premises, Lessee shall
complete such repair at its sole expense.
ARTICLE IX
DAMAGE OR DESTRUCTION OF IMPROVEMENTS
9.01 RESTORATION. If any buildings or improvements erected on the
Premises by Lessee shall be damaged or destroyed from any cause, subject to the
provisions of Section 9.03, Lessee, shall promptly commence and complete
(subject to Force Majeure) the restoration, replacement or rebuilding of said
buildings and improvements as nearly as possible to its value, condition and
character immediately prior to such damage or destruction. Lessee shall pay all
expenses in connection with said restoration, replacement or rebuilding so that
such buildings and improvements shall be free and clear from all liens and
claims for labor, materials, fees or other expenses. Lessor shall make insurance
proceeds available to Lessee for such purposes in accordance with Section 9.02
below.
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9.02 INSURANCE PROCEEDS. In the event any buildings or other
improvements are damaged or destroyed from any cause, any loss of up to Fifty
Thousand and No/100 Dollars ($50,000.00) under any policy of insurance required
to be obtained for protection against such damage or destruction shall be
payable to Lessee for restoration purposes; and any loss thereunder which in the
aggregate exceed Fifty Thousand and No/100 Dollars ($50,000.00) shall be made
payable in its entirety to Lessor or Lessor's lender and shall be held and
disbursed as follows:
All monies so received by Lessor shall be available to the Lessee for
the purpose of defraying the cost of rebuilding or repairing, as the
case may be, the buildings and improvements so injured or destroyed.
Any such repair, restoration or replacement shall be in accordance with
the provisions of Article VI and said proceeds shall be paid by Lessor
from time to time in accordance with certificates from the architect or
engineer supervising such restoration, repairing or rebuilding showing
the amount due to designated persons for labor, material and other
proper items of costs incurred in connection with the work of repair,
reconstruction or replacement in accordance with disbursement
procedures required by Lessor's lender or otherwise consistent with
disbursement procedures for construction loans.
If and when Lessee shall have completed the repairing or reconstruction or
replacement of the buildings and improvements as contemplated as Section 9.01
hereinabove, any funds remaining from the insurance proceeds shall be paid to
Lessee.
9.03 MAJOR DAMAGE. In the event any buildings or other improvements on
the Premises are damaged or destroyed from any cause (i) to the extent of more
than 50% of the cost of replacement thereof and (ii) less than one (1) year
remains unexpired on the original term at the time of such damage, then in any
such event, Lessor or Lessee may terminate this Lease by notice given within
thirty (30) days of the date of such damage, and on the date specified in such
notice, this Lease shall terminate. In such event, insurance proceeds for the
Improvements shall be paid to Lessor.
9.04 NO RENT ABATEMENT. If the Premises are destroyed or damaged,
unless this Lease is terminated as provided herein, Lessee shall not be entitled
to any rent reduction, or reimbursement from Lessor as a result of any damage,
destruction, repair, or restoration of or to the Premises.
ARTICLE X
ASSIGNMENT
10.01 TRANSFER AND ASSIGNMENT. Lessee shall not, without the prior
written consent of Lessor, 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 Lessee. Lessor's consent shall not be unreasonably
withheld, provided however that the assignee or sublessee of Lessee shall be of
an equal or better financial position than Lessee. Consent by Lessor 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 Lessor (on the same basis as aforesaid). If Lessee is a corporation,
partnership, joint venture or other entity, any transfer, sale or other
disposition of the stock or interest of Lessee which may or does cause a change
in control of Lessee shall be deemed an
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assignment of this Lease. Each assignee of Lessee shall become directly liable
to Lessor for all obligations of Lessee hereunder. No sublease or assignment by
Lessee shall relieve Lessee of any liability hereunder. To the extent Lessee
receives rents or other payments from any such sublessee or assignee in excess
of the rental payable to Lessor hereunder, Lessee shall immediately pay half of
such excess amount to Lessor as additional rent hereunder, and Lessee shall and
does hereby authorize Lessor directly to collect any and all such sums from such
assignee or sublessee, as the case may be.
ARTICLE XI
SUBORDINATION
11.01 This Lease and all of the rights of Lessee hereunder are subject
and subordinate at all times to any Deed to Secure Debt granted by Lessor, its
successors or assigns, which now or hereafter affects the Premises, and to all
renewals, modifications, consolidations, replacements and extensions thereof
(hereinafter, a "Deed to Secure Debt"). This clause shall be self-operative and
no further instrument of subordination shall be required by any holder of a Deed
to Secure Debt. In confirmation of such subordination, Lessee shall execute
promptly any certificate that Lessor may reasonably request related thereto.
11.02 If Lessor elects to have this Lease superior to any applicable
Deed to Secure Debt and its election is signified in some recorded instrument,
then this Lease shall be superior to such Deed to Secure Debt, notwithstanding
any other provision hereof.
11.03 Lessee agrees that if it sends any notice to Lessor concerning
Lessor's obligations hereunder, Lessee will also send a copy of any such notice
to the holder of any Deed to Secure Debt (so long as Lessee has been previously
notified in writing of the name and address of such holder), and in the event
any notice specifies some default on the part of Lessor, Lessee agrees to afford
the holder of any Deed to Secure Debt a reasonable time to effect a cure of such
default for and on behalf of Lessor, if the Lessor fails to cure the default.
Lessee agrees to execute such documents with respect thereto as may be
reasonably required by such holder.
11.04 Lessee shall, in the event any proceedings are brought for the
foreclosure of or in the event of the exercise of power of sale under any Deed
to Secure Debt made by Lessor covering the Premises, attorn to the Lessor at any
such sale and recognize the Lessor as Lessor hereunder.
11.05 This Lease shall be superior to, and have priority over, any
mortgage, deed to secure debt, security deed or similar security instrument
placed upon the Premises by Lessee.
11.06 Lessor agrees to use best efforts to obtain the agreement of the
holder of any Deed to Secure Debt made by Lessor, that in the event of a
foreclosure hereunder, that such holder of such security deed shall not name in
such foreclosure action or otherwise disturb the possession or right to
possession of Lessee hereunder, except for default by Lessee as set forth
hereinafter.
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ARTICLE XII
DEFAULT
12.01 Lessee shall be in default of this Lease if: (i) Lessee shall
default in the payment of rent and other sums and charges herein reserved,
including, without limitations Base Rent or Impositions, when due, and shall
fail to make such payment within three (3) calendar days of the date of written
notice from Lessor; (ii) Lessee files a petition in bankruptcy under any section
or provision of the bankruptcy law; (iii) Any involuntary petition in bankruptcy
filed against Lessee is not withdrawn or dismissed within sixty (60) calendar
days from the filing thereof; (iv) lessee is adjudicated bankrupt; (v) An order
appointing a receiver or trustee for Lessee's property shall remain in force for
thirty (30) calendar days after the entry of such order; (vi) Lessee makes an
assignment for the benefit of creditors; (vii) Any levy or attachment upon
Lessee's effects is not satisfied or dissolved within thirty (30) calendar days
after such levy or attachment; (viii) Lessee, whether voluntarily or
involuntarily, 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; (ix) Lessee vacates or abandons the
Premises for a period in excess of thirty (30) days; or (x) Lessee defaults
under any other covenant, agreement, or condition to be performed or kept by the
Lessee under the terms and provisions of this Lease and shall fail to cure such
default within thirty (30) calendar days of the date of written notice from
Lessor.
12.02 Upon the occurrence of any default, or at any time thereafter
while such default or defaults shall continue, Lessor shall have the option to
elect to do any one or more of the following: (i) cure such default or defaults
at the expense of Lessee and without prejudice to any other remedies which
Lessor might otherwise have, collecting any payment made or expenses incurred by
Lessor in curing such default (with interest at the Default Rate) as additional
rent from Lessee with the next installment of rent falling due thereafter or
(ii) re-enter the Premises with or without process of law, by force or
otherwise, without notice, and dispossess Lessee and anyone claiming under
Lessee, by summary proceedings or otherwise, and remove their effects, and take
complete possession of the Premises. In such event, Lessee, for itself and all
others occupying the Premises under Lessee, hereby covenants peacefully to yield
up and surrender the Premises to Lessor. Either before or after such reentering,
dispossessing, removing and taking possession, Lessor may:
(1) declare this Lease forfeited and the term ended whereupon Lessor
shall be entitled to recover from Lessee the rental and all other sums due and
owing by Lessee up to the date of termination, plus the costs of curing all of
Lessee's defaults existing at or prior to the date of termination, plus
liquidated damages for failure of Lessee to observe and perform the covenants of
this Lease equal to the deficiency, if any, between Base Rent (and all other
charges, that otherwise would have become due hereunder) and the rental (less
Lessor's costs and expenses including brokers' commissions related thereto)
obtained by Lessor for the balance of the term remaining under this Lease from
any reletting of the Premises. In the event of termination of this Lease, Lessee
waives any and all rights to redeem the Premises given by any statute now in
effect or hereafter enacted. No receipt of money by Lessor from Lessee after the
termination of this Lease or after service of any notice or after the
commencement of any suit or after final judgment for possession of the Premises
shall reinstate, continue or extend the term of this Lease or affect any such
termination, notice, suit or judgment; or
15
(2) declare this Lease forfeited and the term ended whereupon Lessor
shall be entitled to recover from Lessee the rental and all other sums due and
owing by Lessee up to the date of termination, plus the costs of curing all of
Lessee's defaults existing at or prior to the date of termination, plus
liquidated damages for failure of Lessee to observe and perform the covenants of
this Lease equal to the all Base Rent, Impositions and additional rental which
shall become due for the remainder of the term of this Lease, discounted to
present value using a percentage rate equal to the prime rate publicly
designated at such time by SunTrust Bank, Atlanta, or if Lessor has re-leased
the Premises, the deficiency, if any, between Lessee's rental (and all other
charges that otherwise would have become due hereunder) and the rental (less
Lessor's costs and expenses including brokers' commissions and costs of
alteration or renovation related thereto) obtained by Lessor for the balance of
the term remaining under this Lease from any reletting of the Premises
discounted to present value using a percentage rate equal to the prime rate
publicly designated at such time by SunTrust Bank, Atlanta provided, that,
Lessor shall deduct from such liquidated amount due the amount of rental Lessor
could reasonably obtain for the balance of the term hereof with consideration
given for market conditions at such time. Lessor and Lessee acknowledge that it
is impossible more precisely to estimate the damages to be suffered by Lessor
upon Lessee's default, and the parties expressly acknowledging that if Lessor
elects such remedy, such sum is intended not as a penalty, but as fully
liquidated damages pursuant to O.C.G.A. Section 13.6-7. In the event of
termination of this Lease, Lessee waives any and all rights to redeem the
Premises given by any statute now in effect or hereafter enacted. No receipt of
money by Lessor from Lessee after the termination of this Lease or after service
of any notice or after the commencement of any suit or after final judgment for
possession of the Premises shall reinstate, continue or extend the term of this
Lease or affect any such termination, notice, suit or judgment; or
(3) continue this Lease in full force and effect, but with the right at
any time thereafter to elect option (1) or (2) immediately hereinabove,
whereupon Lessor shall use its reasonable efforts to rent the Premises on the
best terms available for the remainder of the term hereof, or for such longer or
shorter periods as Lessor shall deem advisable. Lessee shall remain liable for
payment of all rentals and other charges and costs imposed on Lessee herein, in
the amounts, at the times and upon the conditions as herein provided, but Lessor
shall credit against such liability of Lessee all amounts received by Lessor
from such reletting after first reimbursing itself for all costs incurred in
curing Lessee's defaults, preparing and refinishing the Premises for reletting,
and reletting the Premises; or
(4) direct and receive from the Title Company (as defined below) the
Funds (as defined below), or any portion thereof remaining, as damages for
Lessee's default hereunder. Upon receipt by the Title Company of written notice
from Lessor of such default, setting forth the nature of such default, the Title
Company shall disburse to Lessor the Funds, or portion thereof remaining. Lessor
and Lessee acknowledge that such payment shall not constitute a penalty but is
in fact a reasonable estimate of the damages Lessor shall suffer and incur by
reason of Lessee's default and shall compensate Lessor for the costs required to
provide tenant improvements at the Premises for any subsequent tenant.
12.03 No re-entry by Lessor or any action brought by Lessor to oust
Lessee from the Premises shall operate to terminate this Lease unless Lessor
shall give written notice of termination to Lessee, in which event Lessee's
liability shall be as herein provided.
16
ARTICLE XIII
ESTOPPEL CERTIFICATES
13.01 ESTOPPEL CERTIFICATE. Lessee will execute, acknowledge and
deliver to Lessor, within ten (10) days of request, a certificate certifying (a)
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the Lease is in full force and effect, as modified, and
stating the modifications), (b) the dates, if any, to which the rent payable
hereunder has been paid, (c) whether or not there are then existing any offsets
or defenses against the enforcement of any term hereof on the part of Lessee to
be performed or complied with (and, if so, specifying the same), (d) that no
notice has been received by Lessee of any default which has not been cured, and
(e) such other information as Lessor may reasonably request. Any such
certificate may be relied upon by any prospective Lessor, mortgagee, or grantee
under a security deed or deed to secure debt of the leased premises or any part
thereof. If Lessee fails to deliver such estoppel certificate within 10 days of
request therefor, Lessee shall and does hereby irrevocably appoint Lessor as
Lessee's attorney in fact to execute and deliver such certificate.
ARTICLE XIV
HAZAROUS MATERIALS
14.01 Lessee agrees that it will not place, hold, or dispose of any
Hazardous Material (as hereinafter defined) on, under or at the Premises or the
Building and that it will not use the Premises or any other portion of the
Building as a treatment, storage, or disposal (whether permanent or temporary)
site for any Hazardous Material. Lessee further agrees that it will not cause or
allow any asbestos to be incorporated into any improvements or alterations which
it makes or causes to be made to the Premises. Lessee hereby agree to indemnify
Lessor against all losses, liabilities, damages, costs (including without
limitation, court costs attorneys' fees), and claims of any kind whatsoever
(including, without limitation, claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act, any so-called "Superfund" or "Superlien"
law, or any other Federal, state, local or other statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or imposing liability
or standards of conduct concerning any Hazardous Material), which are paid,
incurred or suffered by, or asserted against Lessor as a direct or indirect
result of (i) any breach by Lessee of the foregoing covenants or (ii) to the
extent caused or allowed by Lessee or any agent, employee, invitee, or licensee
of Lessee, the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, or release from, onto, or into the Premises, the
atmosphere, or any watercourse, body of water, or groundwater, of any Hazardous
Material. Promptly upon the written request of Lessor from time to time at any
time Lessor reasonably suspects the presence of any Hazardous Materials at, on,
under or within the Premises, Lessee shall provide Lessor, at Lessee's expense,
with an environmental site assessment or environmental audit report prepared by
an environmental engineering firm acceptable to Lessor, to assess with a
reasonable degree of certainty the presence or absence of any Hazardous
Materials at, upon, under or within the Premises and the potential costs in
connection with abatement, cleanup or removal of any Hazardous Materials found
on, under, at or with the Premises. In the event of any discharge of Hazardous
Materials or the threat of a discharge of any Hazardous Materials affecting the
Premises, whether or not the same originates or emanates from the Premises or
any contiguous real estate,
17
and/or if Lessee shall fail to comply with any of the requirements of the
Hazardous Materials Laws, Lessor may at its election after providing Lessee with
thirty (30) days prior written notice and opportunity to remedy such discharge
or threat of discharge or failure of compliance (provided that if such remedy
cannot be effected during such thirty day period due to the nature thereof,
Lessee shall have a reasonable time thereafter in which to effect such remedy so
long as Lessee commences such remedy during such thirty day period and
diligently and in good faith pursues such remedy thereafter), but without the
obligation so to do, give such notices and/or cause such work to be performed at
the Premises and/or take any and all other actions as Lessor shall deem
necessary or advisable in order to xxxxx the discharge of any Hazardous
Material, remove the Hazardous Material, or cure Lessee's noncompliance, and any
amounts paid as a result thereof shall be reimbursed by Lessee to Lessor within
fifteen (15) days of written demand therefor accompanied by invoices evidencing
such expenses. Notwithstanding anything to the contrary herein, nothing shall
give Lessor the right to influence or direct hazardous waste disposal decisions
or treatments, such being the sole responsibility of Lessee. The provisions of
and undertakings and indemnification set out in this Section 14.01 shall survive
the early termination or expiration of this Lease, and shall continue to be the
personal liability, obligation and indemnification of Lessee, binding upon
Lessee forever. The provisions of the preceding sentence shall govern and
control over any inconsistent provision of this Lease. For purposes of this
Lease, "Hazardous Material" means and includes any hazardous substance or any
pollutant or contaminant defined as such in (or for purposes of) the
Comprehensive Environment Response, Compensation, and Liability Act, any
so-called "Superfund" or "Superlien" law, the Toxic Substances Control Act, or
any other Federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect, or any other
hazardous, toxic or dangerous, waste, substance or material.
ARTICLE XV
ADDITIONAL PROVISIONS
15.01 NOTICE TO LESSOR AND LESSEE. Any and all notices, elections,
demands, requests, and responses thereto permitted or required to be given under
this Lease shall be in writing, signed by or on behalf of the party giving the
same, and shall be deemed to have been properly given or served and shall be
effective upon being personally delivered or upon being deposited in the United
States Mail, postage prepaid, certified mail, return receipt requested, to the
other party at the address of such other party set forth below or at such other
address as such other party may designate by notice specifically designated as a
notice of change of address and given in accordance herewith; provided, however,
that the time period in which a response to any such notice, election, demand or
request must be given shall commence on the date of receipt thereof; and
provided further that no notice of change of address shall be effective until
the date of receipt thereof. Personal delivery to a party or to any officer,
partner, agent or employee of such party at said address shall constitute
receipt. Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been received shall also constitute
receipt. Any such notice, demand, or request shall be addressed as follows:
18
(a) Lessor: 000 Xxxxxxxx-Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
(b) Lessee: 000 Xxxxx Xxxx Xxxxxx
Xxxxx 000X
Xxxxxxxxxx, Xxxxxxx 00000
(c) The holder of the Deed to Secure Debt (as hereinabove defined)
at such address as may be furnished to Lessee by Lessor.
15.02 NO WASTE. The Lessee will neither commit nor permit waste upon
the Premises, except as hereinabove expressly permitted.
15.03 TERMINATION. The words "terminate" or "termination" as used
herein shall refer to the end of this Lease whether due to the expiration of the
term hereof or the earlier ending of this Lease in accordance with the terms and
provisions hereof. If Lessee remains in possession of the Premises after
expiration of the term hereof, with Lessor's acquiescence and without any
express agreement of parties, Lessee shall be a tenant-at-will with rental
payable to Lessor at 200% of the rental rate in effect at the end of the Lease;
and there shall be no renewal of this Lease by operation of law. At the
termination of this Lease, Lessee shall surrender the Premises and keys thereof
to Lessor in the same condition as at the date of issuance of a certificate of
occupancy for the Improvements following Lessee's construction thereof, normal
wear and tear only excepted.
15.04 TIME OF ESSENCE - LAWS OF GEORGIA. Time is of the essence of this
Lease Agreement. All terms and provisions of this Lease shall be construed and
adjudicated in accordance with the laws of the State of Georgia.
15.05 ENTIRE AGREEMENT - NO WAIVER. This Lease contains 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 by Lessor to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any such
breach or of any such term and no custom or practice of the parties at variance
with the terms hereof shall constitute a waiver of Lessor's right to demand
exact compliance with the terms hereof.
15.06 LESSOR'S LIEN. In addition to any statutory lien for rent in
Lessor's favor, Lessor shall have and Lessee hereby grants to Lessor a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Lessee, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Lessee situated on the Premises, and such property shall
not be removed therefrom without the consent of Lessor until all arrearages in
rent as well as any and all other sums of money then due to Lessor hereunder all
first have been paid and discharged. In the event of a default under this Lease,
Lessor shall have, in addition to any other remedies provided herein or by law,
all rights and remedies under the Uniform Commercial Code. Lessee hereby agrees
to execute such financing statements and other instruments necessary or
desirable in Lessor's discretion to perfect the security interest
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hereby created. Lessor may approve Lessee to lease various items of equipment
with Lessor's approval not to be unreasonably withheld.
15.07 SECURITY DEPOSIT. [Intentionally omitted]
15.08 LESSOR'S LIABILITY. Upon the bona fide sale of the Premises by
Lessor and the assumption of Lessor's obligations hereunder by the Lessor
thereof, all obligations of the then-current Lessor under this Lease shall
terminate. Notwithstanding anything to the contrary contained in this Lease,
Lessee agrees and understands that Lessee shall look solely to the estate and
property of Lessor in the Premises for the enforcement of any judgment (or other
judicial decree) requiring the payment of money by Lessor to Lessee by reason of
any default or breach by Lessor in the performance of its obligations under this
Lease, including indemnities and warranties hereunder, it being intended hereby
that no other assets of Lessor or of any officers, directors, employees,
partners or venturers of Lessor or the entities comprising Lessor shall be
subject to levy, execution, attachment or any other legal process for the
enforcement or satisfaction of the remedies pursued by Lessee in the event of
such default or breach.
15.09 REMEDIES CUMULATIVE. All rights, powers, and remedies of Lessor
provided for in this Lease or not or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Lessor of any one more of the rights,
powers or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by Lessor or any or all such other rights, powers or remedies.
Receipt by Lessor of the Funds or any portion thereof remaining pursuant to
Section 12.02(4) shall not preclude the exercise by Lessor of other remedies
provided herein or at law or in equity or by statute.
15.10 ACCEPTANCE OF SURRENDER. No surrender to Lessor of this Lease or
of the Premises or any part thereof or of any interest therein by Lessee shall
be valid or effective unless agreed to and accepted in writing by Lessor, and no
act by any representative of Lessor, other than such a written agreement and
acceptance by Lessor, shall constitute an acceptance thereof.
15.11 BINDING EFFECT. Whenever reference is made herein to "Lessor" or
"Lessee," such reference shall be constructed to include and bind the heirs,
executors, legal representatives, successors and permitted assigns of the Lessor
and Lessee, as the case may be.
15.12 CAPTIONS AND HEADINGS. The captions and heading throughout this
Lease are for convenience and reference only, and the words contained therein
shall in no way be held or deemed to define, limit, describe, explain, modify,
amplify or add to the interpretation, construction, or meaning of any provision
of, or the scope of interest of, this Lease nor in any way effect this Lease.
15.13 MISCELLANEOUS. If any term of this Lease or any application
thereof shall be invalid or unenforceable, the remainder of this Lease and any
other application of such term shall not be affected thereby. This Lease may be
changed, waived, discharged or terminated only by an instrument in writing
signed by Lessor and Lessee.
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15.14 COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
15.15 ENTRY. Lessor may card the Premises "For Rent" one hundred eighty
(180) days before the termination of this Lease or "For Sale" at any time.
Lessor may also enter the Premises at any time for the purposes of inspecting
the Premises and monitoring the course of construction, repairs or maintenance.
15.16 REAL ESTATE BROKER. Lessor and Lessee hereby warrant to the other
that neither has engaged the services of any broker, agent or finder except The
Xxxxxx Company ("Broker"), which shall be paid a commission for such services by
Lessee in the amount of the first months' rental hereunder and five percent (5%)
of all other rental paid hereunder, as and when paid. Lessee shall provide
Lessor with a waiver signed by Broker waiving any and all claims against Lessor
and the real estate. Except for such commission payable by Lessee to Broker,
Lessor and Lessee hereby indemnify and hold each other harmless from any claim,
demand, liability, or cause of action for any brokerage commission, fee, or
other similar compensation or cost arising out of the acts of the other party
hereto in connection with this Lease or the interest created hereby or any
sublease or assignment entered into by Lessee.
15.17 NO OPTION TO PURCHASE. This Lease does not constitute an option
to purchase the property by Lessee.
ARTICLE XVI
ADDITIONAL PROVISIONS REGARDING FUNDS FOR CONSTRUCTION
16.01 ESTABLISHMENT OF ESCROW. Upon expiration of the Contingency
Period, Lessee will provide written notice to Lessor of its waiver of the right
to terminate this Lease pursuant to Section 1.02 and of its intent to commence
construction of the Improvements. This notice shall also stipulate the amount of
Contributed Construction Costs, in any event not to exceed $450,000, that are to
be paid by Lessor toward the cost of constructing the Improvements. A copy of
Lessee's construction contract (the "Construction Contract") shall be attached
to such notice. Lessee shall at the time of delivery of such notice place on
deposit with Chicago Title Insurance Company ("Escrow Agent") pursuant to an
escrow agreement reasonably satisfactory to Lessor, Lessee and Escrow Agent, the
amount required for construction of the Improvements, less the Contributed
Construction Costs, as reflected in the Guaranteed Maximum Price set forth in
the Construction Contract. Lessor shall place the Contributed Construction Costs
with Escrow Agent pursuant to such escrow agreement on or before September 1,
2000. Lessee covenants and agrees to use such funds solely for payment of costs
and expenses related to the construction of the Improvements.
16.02 RELEASE OF ESCROW FUNDS. Upon completion of each portion of the
construction of the Improvements as evidenced by a draw request from the general
contractor which has been approved and certified by the contractor and the
project architect pursuant to standard AIA construction contract forms, Lessee
shall submit a written request for release of funds to Lessor and Escrow Agent,
accompanied by such draw request ("Draw Request"). Funds shall be released in
accordance with the following procedures:
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As of the date of each Draw Request, the project architect, or such
other construction engineer approved by both Lessor and Lessee, shall have
delivered to Escrow Agent and Lessor or Lessee, Lessee, as appropriate, a
certification stating (a) the amount of labor and materials that have been
incorporated into the Improvements, (b) that sufficient amounts remain in escrow
for Completion of the Improvements, (c) the portion of the Improvements which
are completed comply with the Final Plans, and (d) the portion of the
Improvement which are completed complies with applicable rules, regulations and
ordinances applicable to such Improvements.
CERTIFICATION FROM GENERAL CONTRACTOR. As of the date of each Draw
Request, Lessee shall have delivered to Escrow Agent and Lessor a letter
certifying that the prior disbursement(s) was applied toward payment under the
applicable contract, as referenced under the Draw Request in full satisfaction
of such amount, subject to any retainage requirements in the governing contract.
LIEN WAIVERS. Escrow Agent and Lessor or Lessee, as appropriate, shall
have received waivers or subordinations of lien rights through the date of the
Draw Request satisfactory to Lessor's title insurer that all contractors and
materialmen, performing work on or providing materials to the Property have been
paid in full, in the form attached hereto as Schedule 2 and by contractors,
subcontractors and materialmen in connection theretofore have been constructed.
Upon the Final Draw attached hereto as Schedule 3.
TITLE. Within five (5) days of receipt by Lessor of notice that Lessee
has submitted a Draw Request, Lessor, by written notice, may request Lessee to
obtain, at Lessee's costs, a title endorsement to Lessor's owner's title
insurance policy indicating that the Premises is free of liens created by
Lessee's contractor. Lessee shall pay the cost of such title endorsement.
HOLDBACK. All Draw Requests, except for the final advance, may request
an advance for not more than ninety percent (90%) of the total work completed as
of the date of the Draw Request.
FREQUENCY OF DISBURSEMENTS. Escrow Agent shall make disbursements no
more frequently than once a month and each Draw Request shall be submitted to
Escrow Agent at least five (5) days prior to the date of the requested advance.
FINAL ADVANCE. Upon completion of each item of the Improvements, as
certified by Lessor and Lessee, as required hereunder, Escrow Agent shall
disburse the total amount of all cost and expenses escrowed for such item that
shall be completed.
ADEQUATE REMAINING FUNDS. The funds remaining in the escrow account
held by Escrow Agent together with the Contributed Construction Costs must
always be sufficient to cover all costs reasonably anticipated to be incurred to
complete the Improvements as determined by Lessee's and Lessor's engineers as
provided hereinabove. Lessee shall not be entitled to any disbursement to the
extent that the remaining funds in escrow shall be insufficient to cover the
costs reasonably anticipated to be incurred to complete the Improvements
required by the Construction Contract. Lessee further agrees to fund any excess
costs over the Escrow Amount which are required to complete the Improvements.
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16.03 INTEREST ON CONTRIBUTED CONSTRUCTION COSTS. The Contributed
Construction Costs placed in escrow shall be placed in an interest bearing
account and all accrued interest shall belong to Lessor.
ARTICLE XVII
OFFER AND ACCEPTANCE
17.01 OFFER AND ACCEPTANCE. This Lease shall be regarded as an offer by
Lessor to Lessee and is open for acceptance by Lessee until 5:00 P.M., March 17,
2000, by which time written acceptance of such offer must have been actually
received by Lessor. In the event Lessor's offer is not so accepted by said time
and date, this Lease shall be null, void and of no further force or effect, and
neither Lessor nor Lessee shall have any further rights or obligations
hereunder.
[Executions on following page]
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals,
by and through their duly authorized representatives as of the date and year
first above written.
LESSOR:
PIONEER REAL ESTATE DEVELOPMENT, INC.
A Georgia Corporation
Date MARCH 9, 2000 By: /s/ XXXXX X. XXXXXXX
--------------- -------------------------------
Name: XXXXX X. XXXXXXX
------------------------------
Title: PRESIDENT
-----------------------------
[AFFIX CORPORATE SEAL]
LESSEE:
FUTURUS FINANCIAL SERVICES, INC.
A Georgia Corporation
Date MARCH 14, 2000 By: /s/ XXXXXXX X. XXXXXX
---------------- -------------------------------
Name: XXXXXXX X. XXXXXX
------------------------------
Title: PRESIDENT AND CEO
-----------------------------
[AFFIX CORPORATE SEAL]
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EXHIBIT "A"
SITE LEGAL DESCRIPTION
FUTURUS FINANCIAL SERVICES INC.
ALL THAT CERTAIN TRACT OR PARCEL of land lying and being in Land Lot
1120 of the Second District of the Second Section in the City of Alpharetta,
County of Xxxxxx, Georgia, being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at a 5/8" rebar set at the
Northernmost mitered corner at the intersection of the Southerly right of way
line of Windward Parkway (having a variable right-of-way), and the Westerly
right-of-way line of Westfield Drive (having a variable right-of-way); said
point being the TRUE POINT OF BEGINNING.
FROM THE POINT OF BEGINNING THUS ESTABLISHED, thence along the Westerly
right-of-way line of Xxxxxxxxx Xxxxx Xxxxx 00 degrees 09 minutes 30 seconds East
for a distance of 32.63 feet to a 5/8" rebar set; thence South 52 degrees 53
minutes 50 seconds West for a distance of 203.00 feet to a 5/8" rebar set;
thence South 86 degrees 42 minutes 36 seconds West for a distance of 35.08 feet
to a 5/8" rebar set; thence leaving said right-of-way North 38 degrees 17
minutes 46 seconds West for a distance of 215.00 feet to a 5/8" rebar set;
thence North 51 degrees 42 minutes 14 seconds East for a distance of 250.00 feet
to a 5/8" rebar set on the Southerly right of way line of Windward Parkway
(having a variable right-of-way); thence along said right-of-way South 38
degrees 17 minute 46 seconds East for a distance of 212.34 feet to a 5/8" rebar
set; said point being the TRUE POINT OF BEGINNING.
TOGETHER with and subject to covenants, easement and restrictions of
record.
SAID property contains 1.348 acres and is more fully shown on a
Boundary and Topographic survey for Futurus Financial Services, Inc. prepared by
Geosurvey, Ltd. Land Surveyors and Mappers, dated January 24, 2000 bearing their
job number 990535, which certain survey is incorporated herein by this reference
and made a part hereof.
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