EXHIBIT 10.13
The following text provides the Office Lease agreement by and between
MSR Holdings, Inc. and First Capital Bank, as amended and restated as of the
Fifth Amendment to the Office Lease, dated May 1, 2004. The original Office
Lease by and between S&J Investments, Inc. (predecessor by name change of MSR
Holdings, Inc.) and First Capital Bank was dated October 25, 1996 has been
amended on five occasions: November 1, 1998, ________, 2001, February 1, 2003,
December 1, 2003 and May 1, 2004. The Fifth Amendment deleted portions of the
Lease Agreement regarding historical rent arrangements that pre-dated the
amendment.
AMENDED AND RESTATED OFFICE LEASE
THIS LEASE, by and between MSR Holdings, Inc., first party,
(hereinafter called "Landlord"); and First Capital Bank, second party,
(hereinafter called "Tenant").
W I T N E S S E T H
1. PREMISES. 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 and take upon the terms and conditions which hereinafter
appear, the following described property (hereinafter called "Premises"), to
wit:
Those certain portions of the building being known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, consisting of (a) the approximately 10,177 square
feet of space generally depicted on the floor plan attached hereto as Exhibit A,
(the "Original Space"); (b) the approximately 2,977 square feet of space
generally depicted on the floor plan attached hereto as Exhibit A-1 (the
"Additional Space"); and (c) the approximately 4,401 square feet of space
generally depicted on the floor plan attached hereto as Exhibit A-2 (the
"Supplemental Additional Space"). No easement for light or air is included in
the Premises. Landlord also grants to Tenant the non-exclusive right to use in
common with others the driveways, parking areas and other common areas
associated with or serving said building. (Said building together with said
driveways, parking areas and common areas, hereinafter collectively referred to
as the "Building.")
2. TERM. To have and to hold the same for a term of Six (6) years
beginning on the 1st day of January, 2002 and ending on the 31st day of
December, 2007 at midnight, unless sooner terminated as hereinafter provided.
3. BASE RENT. Effective as of the Additional Space Rental
Commencement Date, the amount of the base annual rent (the "Base Annual Rental")
of this Lease for each Lease year during the Lease term shall be as follows:
A. With respect to the Original Space, the Base Annual
Rental (and the amounts of the monthly payments thereof) shall be as follows:
Period Monthly Amount Base Annual Rental
------ -------------- ------------------
December, 2003 $ 10,601.04 N/A
January, 2004 - December, 2004 $ 10,601.04 $127,212.48
January, 2005 - December, 2005 $ 11,025.08 $132,300.96
January, 2006 - December, 2006 $ 11,355.84 $136,270.08
January, 2007 - December, 2007 $ 11,695.07 $140,340.84
B. With respect to the Additional Space, the Base Annual
Rental (and the amounts of the monthly payments thereof) shall be as follows:
Period Monthly Amount Base Annual Rental
------ -------------- ------------------
Additional Space Lease Year 1 $1,550.52 $18,606.24
Additional Space Lease Year 2 $3,225.08 $38,700.96
Additional Space Lease Year 3 $3,354.08 $40,248.96
Additional Space Lease Year 4 $3,488.24 $41,858.88
For purposes hereof, the term "Additional Space Lease Year"
shall be defined as that twelve (12) month period during the term of this Lease,
commencing on the Additional Space Rental Commencement Date or the anniversary
thereof, as may be applicable; provided, however, that if the Additional Space
Rental Commencement Date is a date other than the first (1st) day of a calendar
month, then the first (1st) Additional Space Lease Year shall be the period
beginning on the Additional Space Rental Commencement Date and continuing
through the last calendar day of the calendar month in which the first (1st)
anniversary of the Additional Space Rental Commencement Date occurs; and
subsequent Additional Space Lease Years shall commence on the first (1st)
calendar day immediately succeeding the end of the first (1st) Additional Space
Lease Year and end of the calendar day immediately preceding the anniversary
thereof. All installments of Base Annual Rental for any partial calendar month
shall be prorated based on actual days elapsed. Acknowledging the possibility
that expiration of the term of this Lease and the expiration of Additional Space
Lease Year 4 will not occur simultaneously, and notwithstanding the information
contained in the chart set out immediately hereinabove, the Base Annual Rental
for the Additional Space shall only be payable during the term of the Lease
(which expires on December 31, 2007).
C. Effective as of Supplemental Additional Space Rental
Commencement Date with respect to the Supplemental Additional Space, the Base
Annual Rental shall be as follows:
Period Monthly Amount Base Annual Rental
------ -------------- ------------------
September 2004 - December, 2004 $4,584.38 N/A
January, 2005 - December, 2005 $4,584.38 $55,012.50
January, 2006 - December, 2006 $4,767.75 $57,213.00
January, 2007 - December, 2007 $4,958.46 $59,501.52
The Base Annual Rental as adjusted pursuant to this Paragraph shall be
deemed to thereafter be the "Base Annual Rental" for all purposes whatsoever
under this Lease and to be payable in a like manner to the initial amount of
Base Annual Rental specified herein.
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4. ANNUAL RENT INCREASE. Tenant shall pay to Landlord a rental
increase of three percent (3%) of the original monthly rental stated in Section
3, starting on January 1 of each calendar year beginning after the date of this
Lease, as more particularly detailed in Special Stipulation #2.
5. SERVICES BY LANDLORD. Landlord hereby covenants that during
reasonable hours (7:00 a.m. to 7:00 p.m., Monday through Friday and 7:00 a.m. to
1:00 p.m. Saturdays, except national holidays observed in Atlanta, Georgia as
legal holidays) Landlord shall furnish in the proper season air conditioning and
heating in its judgement sufficient to reasonably heat or cool the Premises,
cessation created by causes beyond Landlord's control excepted. Landlord shall
furnish electric current to the Premises, and all other parts of the Building,
but only for lighting and normal office equipment such as typewriters, personal
computers and calculators and computer room. The HVAC system shall have the
capability of maintaining 35% relative humidity at 72 degrees and of providing
20 cubic feet per minute of ventilation per person at an occupancy density not
exceeding seven persons for each 1,000 square feet of the Building. Landlord
does hereby covenant to maintain the temperature within the Premises between
70(degrees)-74(degrees) during the summer season (so long as outside
temperatures do not exceed 100(degrees)F) and 68(degrees)-72(degrees) during the
winter season and the cooler months of the year (so long as outside temperatures
are above 14(degrees)F).
6. USE OF PREMISES. Premises shall be used for general office use
and banking 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.
7. REPAIRS BY LANDLORD. Landlord shall be required to make all
repairs or improvements to the Premises and all common areas and facilities; the
roof, the foundation, the structure, the building shell, and operating systems
of the Building; the exterior walls of the Premises; the underground utility and
sewer pipes outside the exterior walls of the Building; and the landscaping and
grounds surrounding the Building, necessary or desirable to maintain the same in
good condition and repair and in a safe, clean, sightly and operable condition,
including, without limitation, electrical (except Tenant shall be responsible
for the maintenance and repair of the electrical panel serving the Premises),
plumbing, heating, air conditioning and structural repairs necessary for safety
and tenantability. Landlord shall, at its own cost and expense, keep in good
repair the exterior windows, glass, doors, and air conditioning systems, and
Tenant shall take good care of the Premises and its fixtures and permit no
waste, except normal wear and tear with due consideration for the purpose for
which the Premises are leased. Landlord gives to Tenant exclusive control of
Premises and shall be under no obligation to inspect said Premises. Tenant shall
promptly report in writing to Landlord any defective condition known to it which
Landlord is required to repair, and failure to so report such defects shall make
Tenant responsible to Landlord for any liability incurred by Landlord by reason
of such defects.
8. REPAIRS BY TENANT. Except as otherwise provided herein, Tenant
accepts the leased Premises in their present condition and as suited for the
uses intended by Tenant. Tenant
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shall, throughout the initial term of this Lease and all renewals thereof, at
its expense, maintain in good order and repair the interior of the leased
Premises, except those repairs expressly required to be made by Landlord and any
repairs rendered necessary by the negligence of Landlord. Tenant shall be liable
for, and shall indemnify and shall hold Landlord harmless for, any damages
occurring as a result of Tenant's failure to make repairs it is responsible for.
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.
9. INDEMNITY. Unless due to Landlord's negligence or willful
misconduct Tenant agrees to indemnify and save harmless the Landlord against all
claims for damages to persons or property by reason of Tenant's and Tenant's
visitors and guests, use or occupancy of the leased Premises, and all expenses
incurred by Landlord because thereof, including attorneys' fees and court costs.
Landlord agrees to indemnify and save harmless Tenant from all claims, damages,
losses and expenses resulting from or arising out of the willful misconduct or
negligence of Landlord, its employees, agents, or contractors.
10. GOVERNMENTAL ORDERS. Tenant agrees, at his own expense, to
promptly comply with all requirements of any legally constituted public
authority made necessary by reason of Tenant's occupancy of said premises.
Landlord agrees to promptly comply with any such requirements if not made
necessary by reason of Tenant's occupancy. It is mutually agreed, however,
between Landlord and Tenant, that if in order to comply with such requirements,
the cost to Landlord or Tenant, as the case may be, shall exceed a sum equal to
one year's rent, then Landlord or Tenant, whichever 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 the necessity of compliance with such requirement by the
party giving such notice, unless the party receiving such notice of termination
shall, before termination becomes effective, pay to the party giving the notice
all costs of compliance in excess of one year's rent, or secure payment of said
sum in a manner satisfactory to the party giving notice. In the event that this
Lease shall be terminated by either Landlord or Tenant as provided for herein,
then in such event, Landlord shall, on or before the date of such termination,
pay to Tenant an amount equal to the unamortized balance of Tenant's cost of
Tenant's Work (such as term is hereinafter defined). For purposes hereof, the
amortization of such costs of Tenant's Work shall be determined as of the
effective date of such termination and such amortization shall be calculated on
a straight line basis over the original Term of this Lease.
11. CONDEMNATION. If the whole of the leased Premises, or such
portion thereof as will make the Premises, in Tenant's reasonable judgement,
unusable for the purposes herein leased, be condemned by any legally constituted
authority for any public use or purpose, or, as a consequence of any such
condemnation (or any taking in lieu thereof) (i) access to and from any public
right-of-way shall be materially adversely affected; or (ii) fifteen percent
(15%) or more of the parking spaces for the entire Building shall be taken or
eliminated and reasonably comparable substitute parking spaces shall not be
provided for by Landlord with reasonable promptness and dispatch, 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
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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. In the event
that this Lease shall not be so terminated as provided for herein, then in such
event, Landlord shall, at its sole cost and expense, restore and repair the
Premises with reasonable promptness and dispatch and rental shall be
proportionately aborted for such time as the Premises (or any portion thereof)
shall be untenantable. It is further understood and agreed that neither 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. Landlord agrees to pay to Agent, from the termination of the Lease as
herein provided. Landlord agrees to pay to Agent, from the award made to
Landlord under condemnation, the balance of lease commissions, reduced to then
present cash value, as provided in paragraph 4 hereof, and Agent may become a
party to the condemnation proceedings for the purposes of enforcing its rights
under this paragraph. In the event that the Premises (including, without
limitation, Tenant's Work) is in fact not repaired or restored by Landlord after
such taking or in the event that this Lease shall be terminated as a result of
such condemnation as provided for herein then in such event, Landlord shall pay
to Tenant an amount equal to the unamortized balance of Tenant's cost of
Tenant's work (such as term is hereinafter defined). For purposes hereof the
amortization of such cost of Tenant's work shall be determined as of the
effective date of such taking termination and such amortization shall be
calculated on a straight line basis over the original term of this lease and
Landlord (and not Tenant) shall be entitled to receive the balance of such
condemnation insurance proceeds.
12. ASSIGNMENT AND SUBLETTING. Tenant may, without Landlord's
prior written consent, assign or sublease any or all of the Premises to a
subsidiary, parent or affiliate corporation provided, however: the premises may
be used only as set forth herein in paragraph 6. Tenant may, with Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed, sublease portions of the leased Premises to others provided such
sublessee's operation is a part of the general operation of Tenant and under the
supervision and control of Tenant, and provided such operation is within the
purposes for which said Premises shall be used as set forth in paragraph 6
herein. Except as provided in preceding sentence, Tenant shall not, without the
prior written consent of Landlord, such consent not to be unreasonably withheld,
or delayed, 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 the Tenant. Landlord's consent to any subsequent assignment or
subleases shall be made likewise only after the prior written consent of
Landlord has been obtained, which consent shall not be unreasonably withheld or
delayed. 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.
13. REMOVAL OF FIXTURES. Tenant may (if not in default hereunder)
within 30 days prior to 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.
14. CANCELLATION OF LEASE BY LANDLORD. It is mutually agreed that
in the event the Tenant shall default in the payment of rent, including
additional rent, herein reserved, when due,
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and fails to cure said default within ten (10) days after receipt of 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 other 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 (60) days after
written notice from Landlord to Tenant to obtain such removal; or if,
voluntarily 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 any assignment
for benefit of creditors; or if Tenant's effects should be levied upon or
attached under process against Tenant, not satisfied or dissolved within sixty
(60) 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 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, or any breach of this agreement.
15. RELETTING BY LANDLORD. Landlord, without terminating this
Lease, upon Tenant breaching this Lease (but only after the expiration of any
cure period provided for herein) may at Landlord's option enter upon and, using
reasonable efforts to do so, rent Premises at the best price obtainable by
reasonable effort, without advertisement and by private negotiations and on such
other terms as may be commercially reasonable 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.
16. EXTERIOR SIGNAGE. Tenant may, at its sole cost and expense,
place, maintain and replace upon the interior of the leased Premises all signs
allowable by law which Tenant deems appropriate to the conduct of its business.
In addition, Tenant may, at its sole cost and expense, place, maintain, and
replace (i) (1) sign on the outside wall in the front of the Building of a size
and character approved by Landlord, such approval not to be unreasonably
withheld or delayed, and (ii) such signage on the entrance doors to the premises
as Tenant deems appropriate to the conduct of its business. In addition, Tenant
may, at its sole cost and expense, erect (i) a monument sign in the vicinity of
the right of way of ▇▇▇▇▇▇▇ Bridge Road; (ii) such directional and parking
signage in the driveways and parking areas as Tenant deems appropriate to the
conducting of its business. Any and all signs placed on the leased Premises by
Tenant shall be maintained in compliance with local 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.
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17. ENTRY FOR CARDING, ETC. Landlord may card Premises "For Rent"
or "For Sale" thirty (30) days before the termination of this Lease. Landlord
may enter the Premises with prior notice to Tenant at reasonable business hours
to exhibit same to prospective purchasers or tenants and make repairs required
of Landlord under the terms hereof, or to make repairs to Landlord's adjoining
property, if any. Upon the sale of the Premises by Landlord, Landlord shall
stand entirely free of any covenants or obligations to Tenant, which shall pass
to the succeeding landlord. Tenant shall be bound to any succeeding landlord for
all the terms and obligations of this Lease.
18. EFFECTIVE TERMINATION OF LEASE. No termination of this Lease
prior to the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination thereof.
19. NO ESTATE IN LAND. This contract shall create the relationship
of Landlord and Tenant between the parties hereto, no estate shall pass out of
Landlord. Tenant has only a usufruct, not subject to levy and sale, and not
assignable by Tenant except by Landlord's consent.
20. HOLDING OVER. 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 125% of
the then escalated rental rate in effect at end of Lease; and there shall be no
renewal of this Lease by operation of law.
21. ATTORNEY'S FEES AND HOMESTEAD. Tenant agrees to pay all
reasonable attorneys' fees and expenses actually incurred by Landlord in
enforcing any of the obligations of Tenant under this Lease. In addition,
Landlord agrees to pay all reasonable attorneys' fees and expenses, actually
incurred by Tenant in enforcing any of the obligations of Landlord under this
Lease. Tenant also agrees to pay all reasonable attorneys' fees which Landlord
may incur in any litigation or negotiations in which Landlord shall, without its
fault, become involved on account of this Lease. Tenant waives all homestead
rights and exemptions which it may have under any law as against any obligation
owing under this Lease, and assigns to Landlord its homestead exemptions to the
extent necessary and permitted by law to secure payment and performance of
Tenant's covenants and agreements hereunder.
22. RIGHTS CUMULATIVE. All rights, powers and privileges conferred
hereunder upon parties shall be cumulative but not restrictive to those given by
law.
23. WAIVER OF RIGHTS. No failure of either party to exercise any
power given either party hereunder, or to insist upon strict compliance by
either party to his obligation hereunder, and no custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of either
party's right to demand exact compliance with the terms hereof.
24. TIME OF ESSENCE. Time is of the essence of this agreement.
25. LATE CHARGES. Any rental or other amounts payable to Landlord
under this Lease Agreement, if not paid by the fifth (5th) day of the month for
which such rent is due, or by the
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due date specified on any invoices from Landlord for any other amounts payable
hereunder shall incur a late charge of Fifty Dollars ($50.00) for Landlord's
administrative expense in processing such delinquent payment, and in addition
thereto shall bear interest at the rate of eighteen percent (18%) per annum from
and after the due date for such payment. In no event shall the rate of interest
payable on any late payment exceed the legal limits for such interest
enforceable under applicable law.
26. PARTIAL RENT PAYMENT. No payment by Tenant or receipt by
Landlord of a lesser amount than any installment or payment of Rent due shall be
deemed to be other than on account of the amount due. Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such installment or payment of Rent or pursue any other remedies available to
Landlord.
27. TENANT'S OBLIGATION TO INSURE. On or before the Commencement
Date and on or before each anniversary thereof during the Lease Term, or any
renewals or extensions thereof, Tenant shall deliver to Landlord a certificate
of a policy or renewal of public liability insurance insuring Tenant, and their
respective officers, employees, agents and representatives against loss or
damage arising from injury to persons or property occurring within the Premises,
which policy or renewal policy shall (i) provide that it is noncancelable
without thirty (30) days' prior written notice to Landlord, (ii) provide for
minimum limits of $500,000 for property damage and $1,000,000 per occurrence for
personal injuries to or deaths of persons in or about the Premises, (iii) name
Landlord as additional insured, and (iv) be accompanied by proof of payment of
the premium thereof.
28. DEFINITIONS. "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's assignees or sublessees, as to premises covered by such assignment or
sublease. "Agent" shall include third party, his successors, assigns, heirs, and
representatives. "Landlord", "Tenant", and "Agent", include male and female,
singular and plural, corporation, partnership or individual, as may fit the
particular parties.
29. SEVERABILITY. If any clause or provision of this Lease is or
becomes illegal, invalid, or unenforceable because of present or future laws or
any rule or regulation of any governmental body or entity, effective during its
term, the intention of the parties hereto is that the remaining parties of this
Lease shall not be affected thereby, unless the amount of total Rent payable
hereunder is thereby decreased, in which event Landlord may terminate this
Lease.
30. SPECIAL STIPULATIONS. In so far as the following stipulations
conflict with any of the foregoing provisions, the following shall control:
See Special Stipulations attached.
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
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herein, shall be of any force or effect. No amendments to this Lease shall be
effective unless in writing and signed by both Landlord and Tenant.
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals the day and year first above written.
Sign, sealed and delivered as Landlord: MSR HOLDINGS, INC.
to Landlord, in the presence of:
_____________________________________ By:______________________________(SEAL)
_____________________________________ Its:_____________________________(SEAL)
Sign, sealed and delivered as Tenant: FIRST CAPITAL BANK
to Tenant, in the presence of:
_____________________________________ By:______________________________(SEAL)
_____________________________________ Its:_____________________________(SEAL)
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SPECIAL STIPULATIONS
These Special Stipulations attached hereto and incorporated herein are
binding upon this Lease, where said Special Stipulations and Lease language
conflict, the Special Stipulations shall control.
1. Effective September 1, 2004, (the "Supplemental Additional
Space Rental Commencement Date"), the rental for the Premises shall be based
upon the final square footage of the Premises consisting of (a) 10,117 square
feet of space for the Original Space, (b) 2,977 square feet of space for the
Additional Space, and (c) 4,401 square feet of space for Supplemental Additional
Space.
2. Effective as of the Additional Space Rental Commencement Date,
the amount of the base annual rent (the "Base Annual Rental") of this Lease for
each Lease year during the Lease term shall be as follows:
A. With respect to the Original Space, the Base Annual
Rental (and the amounts of the monthly payments thereof) shall be as follows:
Period Monthly Amount Base Annual Rental
------ -------------- ------------------
December, 2003 $10,601.04 N/A
January, 2004 - December, 2004 $10,601.04 $127,212.48
January, 2005 - December, 2005 $11,025.08 $132,300.96
January, 2006 - December, 2006 $11,355.84 $136,270.08
January, 2007 - December, 2007 $11,695.07 $140,340.84
B. With respect to the Additional Space, the Base Annual
Rental (and the amounts of the monthly payments thereof) shall be as follows:
Period Monthly Amount Base Annual Rental
------ -------------- ------------------
Additional Space Lease Year 1 $1,550.52 $18,606.24
Additional Space Lease Year 2 $3,225.08 $38,700.96
Additional Space Lease Year 3 $3,354.08 $40,248.96
Additional Space Lease Year 4 $3,488.24 $41,858.88
For purposes hereof, the term "Additional Space Lease Year"
shall be defined as that twelve (12) month period during the term of this Lease,
commencing on the Additional Space Rental Commencement Date or the anniversary
thereof, as may be applicable; provided, however, that if the Additional Space
Rental Commencement Date is a date other than the first (1st) day of a calendar
month, then the first (1st) Additional Space Lease Year shall be the period
beginning on the Additional Space Rental Commencement Date and continuing
through the last calendar day of the calendar month in which the first (1st)
anniversary of the Additional Space Rental Commencement Date occurs; and
subsequent Additional Space Lease Years shall commence on the first (1st)
calendar day immediately succeeding the end of the first (1st)
Additional Space Lease Year and end of the calendar day immediately preceding
the anniversary thereof. All installments of Base Annual Rental for any partial
calendar month shall be prorated based on actual days elapsed. Acknowledging the
possibility that expiration of the term of this Lease and the expiration of
Additional Space Lease Year 4 will not occur simultaneously, and notwithstanding
the information contained in the chart set out immediately hereinabove, the Base
Annual Rental for the Additional Space shall only be payable during the term of
the Lease (which expires on December 31, 2007).
Effective as of Supplemental Additional Space Rental Commencement Date
with respect to the Supplemental Additional Space, the Base Annual Rental shall
be as follows:
Period Monthly Amount Base Annual Rent
------ -------------- ----------------
September 2004 - December, 2004 $4,584.38 N/A
January, 2005 - December, 2005 $4,584.38 $55,012.50
January, 2006 - December, 2006 $4,767.75 $57,213.00
January, 2007 - December, 2007 $4,958.46 $59,501.52
The Base Annual Rental as adjusted pursuant to this Paragraph shall be
deemed to thereafter be the "Base Annual Rental" for all purposes whatsoever
under this Lease and to be payable in a like manner to the initial amount of
Base Annual Rental specified herein.
3. It is further agreed and understood, that, except as provided
otherwise herein, Tenant is to accept the Premises on as "as is" basis and is to
provide its own Tenant Improvements and buildout as necessary for Tenant's use.
Any improvements and work to be performed to the Premises shall first be
submitted in writing to Landlord and approved by Landlord in writing prior to
any work being performed by Tenant, said consent not to be unreasonably withheld
or delayed. In addition, Landlord is to assist in the supervision of any
improvements to the Premises in order for Landlord to control the quality of
work in the Premises and to protect any interference or difficulties said Tenant
improvements could cause existing Tenants located in the Building. All work
shall be performed according to local and state codes and regulations, and shall
be properly permitted by all applicable governmental authorities.
4. Landlord agrees to work with Tenant relative to the design and
placement of a new monument sign for the Building subject to Gwinnett County
sign regulations and at Tenant's expense. If Landlord and Tenant are unable to
satisfactorily agree, then Tenant shall have signage rights, subject to Gwinnett
County sign regulations and at Tenant's expense, to the northwest entrance of
said property.
5. As an inducement to Tenant to enter into this Lease, Landlord
does hereby agree to modify the exterior of the Building, improve landscaping,
reseal and stripe the parking lot within one hundred eighty (180) days of
Tenant's occupancy. Such modifications will be subject to Tenant's input and
concurrence, and shall be implemented so as to minimize any interference with
Tenant's operation.
2
6. Notwithstanding anything to the contrary in Paragraph 5.
"Services by Landlord", Landlord, at its sole cost and expense, will also be
providing:
(a) hot and cold running water to the Building;
(b) sanitary sewer;
(c) the lighting of the parking lot and driveways, the
illumination of the exterior signage (including any freestanding
monument sign), the maintenance of the Building, and the landscaping
and grounds surrounding the same in good condition and repair and in a
clean, safe, sightly and operable condition. Notwithstanding the
foregoing, it is hereby agreed that Tenant, at its sole cost and
expense, shall be responsible for the general cleaning and janitorial
service for the interior of the Premises.
7. Landlord will provide Tenant with six (6) reserved parking
spaces adjacent to the Building, in a location reasonably acceptable to Tenant,
and Landlord will, at its sole cost and expense, designate the same, by
appropriate signage acceptable to Tenant, as "First Capital Visitor Parking".
Landlord shall also provide Tenant with six (6) reserved parking spaces located
in front of the Building, and such spaces shall also be designated as "First
Capital Visitor Parking" in the same manner described hereinabove. Landlord will
also, at its sole cost and expense, install and maintain appropriate directional
signage to direct First Capital customers to such parking spaces, as may be
reasonably acceptable to Tenant.
8. Should the Premises or any material portion of the common
areas or facilities of the Building be so damaged by fire or other cause that
rebuilding or repairs cannot be completed within one hundred twenty (120) days
from the date of the fire or other cause of damages, then either Landlord or
Tenant may terminate this Lease by written notice to the other given within
thirty (30) days of the date of such damage or destruction, in which event rent
shall be abated from the date of such damage or destruction. However, if the
damage or destruction is such that rebuilding or repairs can be completed within
one hundred twenty (120) days, Landlord covenants and agrees, subject to the
provisions of this paragraph, to make such repairs with reasonable promptness
and dispatch, and to allow Tenant an abatement in all rental for such time as
the Premises are untenantable or proportionately for such portion of the
Premises as shall be untenantable, and Tenant covenants and agrees that the
terms of this Lease shall not be otherwise affected. In the event such
rebuilding and repair are not, in fact, completed within one hundred fifty (150)
days of the date of such destruction or damage, Tenant may, by written notice
delivered to Landlord, elect to terminate this Lease. In no event shall Landlord
be required to repair or replace any trade fixtures, furniture, equipment or
other property belonging to Tenant. Notwithstanding anything to the contrary
contained in this paragraph, Landlord shall not have any obligation whatsoever
to repair, reconstruct or restore the Premises when the damage resulting from
any casualty contained under this paragraph occurs during the last twelve (12)
months of the Term of this Lease, and should Landlord so elect not to restore
and/or repair the Premises, Landlord shall notify Tenant of the same within
thirty (30) days of the date of such damage or destruction; and in such event,
this Lease shall terminate as the date of such destruction or damage and
thereafter be deemed to be null and void and of no further force or effect.
3
In connection with any damage or destruction to the
improvements and alterations made by Tenant to the Premises (hereinafter
"Tenant's Work"), in the event that, for whatever reason, the Premises
(including, without limitation, Tenant's Work) is in fact not repaired or
restored by Landlord or in the event that this Lease shall be terminated by
either Landlord or Tenant as provided for herein, then in such event, Tenant
(and not Landlord) shall be entitled to a portion of the insurance proceeds
payable with respect thereto in an amount equal to the unamortized balance of
Tenant's costs of Tenant's Work; and Landlord (and not Tenant) shall be entitled
to receive the balance of such insurance proceeds. For purposes hereof, the
amortization of such costs of Tenant's Work shall be determined as of the date
such damage or destruction occurred, and such amortization shall be calculated
on a straight line basis over the original Term of this Lease.
9. A. This Lease shall, at the election of Landlord, be
superior or be subject and subordinate to the lien of any mortgage (which term
shall be deemed to include a deed to secure debt) which Landlord may hereafter
place upon the Premises, provided that (1) if there are no defaults hereunder on
the part of Tenant the right of possession of Tenant to the Premises and
Tenant's rights arising out of this Lease shall not be affected or disturbed by
the mortgagee under the mortgage in the exercise of any of its rights under the
mortgage or the notes secured thereby; (2) Tenant shall not in any foreclosure
or other proceeding under the mortgage, nor in any other way be deprived of its
rights under this Lease, nor shall this Lease be terminated or affected by any
foreclosure or sale or any proceeding under any mortgage; and (3) the mortgagee
shall execute and deliver to Tenant a Subordination, Non-Disturbance and
Attornment Agreement ("SNDA") in form acceptable to Tenant prior to the
execution of the mortgage. Landlord agrees that in the event of any foreclosure
of the mortgage, Tenant shall have the right to withhold the payment of any
rentals due hereunder and pay the same directly to the mortgagee in satisfaction
of the indebtedness secured thereby.
B. Prior to the sixtieth (60th) calendar day following
the date of this Lease, Landlord, at Landlord's sole cost and expense, shall
provide Tenant with non-disturbance and attornment agreements in a form which is
reasonably acceptable to Tenant, executed by all entities or parties presently
holding mortgages or other liens upon the Premises.
10. Landlord and Tenant do hereby acknowledge and agree that, in
order for Tenant to be able to utilize the Premises for the purposes intended by
Tenant, certain tenant improvements (the "Tenant's Work") will be required in
the Premises. In connection therewith, Tenant does hereby agree to immediately
initiate the preparation of detailed plans and specifications for the
construction of Tenant's Work for the Premises and to promptly submit the same
to Landlord. Landlord shall, within ten (10) days, approve or deliver to Tenant
its comments to said plans and specifications (and in the event Landlord shall
not deliver to Tenant any such comments within said ten (10) day period, such
plans and specifications shall be deemed to have been approved by Landlord).
Landlord and Tenant shall mutually agree upon the plans and specifications; and
upon said approvals by both Landlord and Tenant, Tenant shall effect the
construction of Tenant's Work, at its sole cost and expense, in accordance with
the approved plans and specifications. Tenant does hereby agree that, within one
hundred twenty (120) calendar days of the date Tenant completes Tenant's Work,
Tenant will deliver to
4
Landlord a statement of the amounts actually expended by Tenant in effecting
Tenant's Work. Tenant shall indemnify and hold harmless Landlord from and
against any and all claims arising from the actions of Tenant, its officers,
agents, employees or contractors in the construction of Tenant's Work, and from
and against all costs, reasonable attorney's fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall defend the same
at Tenant's expense by counsel reasonably satisfactory to Landlord. If a lien is
placed upon the Building as a result of Tenant's actions and Tenant does not
cause such lien to be bonded off or removed within thirty (30) days of notice
that said lien has been filed, Tenant shall be deemed in default of this
Agreement and Landlord shall have all rights and remedies available for a
default by Tenant as provided herein. Tenant shall provide Landlord with
evidence of payment for all work performed on the Premises within thirty (30)
days of the date Tenant's Work is completed.
11. Subject to the terms and conditions herein and provided there
is then no event of default hereunder, Tenant shall have one (1) option to
extend the term of this Lease for an additional period of five (5) years for the
rental set forth in Special Stipulation #2 hereinabove and on the same other
terms and conditions set forth in this Lease; such extended term to begin at the
expiration of the original term of this Lease. If Tenant shall elect to extend
the term of this Lease, it shall do so by giving Landlord not less than one
hundred eighty (180) days written notice prior to the expiration of the original
term of this Lease. If Tenant fails to timely give the above-described notice
electing to extend the term of this Lease, this Lease shall automatically
terminate at the end of the original term.
12. Tenant, its employees, agents, invitees, licensees and
contractors shall have the non-exclusive right to use the driveways, parking
areas and other common areas constituting a part of the Building in common with
Landlord and the other tenants of the Building. Landlord covenants that all
parking areas, entrances and exits, access drives, sidewalks and other common
areas in existence on the date of this Lease shall not be materially modified or
altered without Tenant's prior written consent, nor shall Tenant's rights to
utilize the same be interrupted or disturbed by any act of Landlord, its
employees, agents, contractors or other tenants of the Building during the term
of this Lease.
13. Landlord covenants and warrants that it is the owner of the
Building and has the full and unrestricted right to execute this Lease and
demise the Premises to Tenant, together with the rights, privileges, easements
and appurtenances herein demised.
14. Landlord does hereby grant to Tenant a right of first refusal
to lease all or any portion of the office space of the Building cross-hatched
and labeled as the "Adjacent Space" on Exhibit B (hereinafter referred to as the
"Adjacent Space"), should (and each time) such Adjacent Space becomes available
for lease during the term (including any extension of the original term) of this
Lease. Landlord does hereby agree to notify Tenant of any pending availability
of the Adjacent Space prior to marketing or presenting the Adjacent Space to
other parties for lease. Upon Landlord so notifying Tenant, in writing, of the
pending availability of the Adjacent Space, Tenant shall have thirty (30) days
within which to notify Landlord, in writing, of its decision to lease or not to
lease Adjacent Space. Tenant shall have the right to
5
elect to lease any part or all of the Adjacent Space; provided, however, that
Tenant may not elect to lease less than 1,200 square feet of space if it elects
to lease less than all of the Adjacent Space. In the event Tenant exercises said
right of first refusal, then Landlord and Tenant shall execute an amendment to
this Lease adding the Adjacent Space and providing for a rental and other terms
and conditions identical to the rental and other terms and conditions provided
for herein for the Premises (including, without limitation, the expiration of
the term of this Lease). In the event that Tenant does not exercise the right of
first refusal described hereinabove, said right of first refusal with respect to
the instant availability of the Adjacent Space only shall be null and void, and
Landlord, with respect to the instant availability of the Adjacent Space only,
shall be entitled thereafter to lease said Adjacent Space without restriction;
however, any subsequent instance of the availability of the Adjacent Space shall
be subject to the right of first refusal described hereinabove.
15. Landlord and Tenant do hereby acknowledge that Tenant may, at
a later time during the term of this Lease, desire to construct and maintain an
automated remote drive-through banking facility in the parking area constituting
a part of the Building. The design of said automated remote drive-through
banking facility and the manner of its construction shall be subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld or delayed. In connection therewith, Landlord does hereby approve
Tenant's construction and maintenance of the same in a mutually agreeable
location of the parking area of the Building, and does hereby agree to work in
good faith with Tenant in all matters necessary or desirable in order to effect
the construction and maintenance of said automated remote drive-through banking
facility. Landlord and Tenant do hereby agree that Tenant shall be responsible
for the payment of all expenses related to the construction and maintenance of
said automated remote drive-through banking facility.
16. Notwithstanding any other provision hereof, Landlord and
Tenant do hereby acknowledge and agree that Tenant's obligations hereunder are
contingent upon the sale by Tenant of its current building located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ to First Citizen's Bank (or a subsidiary thereof) on or before
February 1, 1997. Landlord and Tenant do hereby acknowledge and agree that in
the event that the sale of Tenant's existing banking facility as described
hereinabove is not consummated on or before February 1, 1997, this Lease shall
automatically terminate and thereafter be deemed to be null and void and of no
further force or effect. In such event, Landlord and Tenant do hereby
acknowledge and agree that Landlord, as its sole and exclusive remedy, shall be
entitled to the sum of Ten Thousand and No/100 Dollars ($10,000.00), as full and
complete liquidated damages as a result of the termination of this Lease by
Tenant; and simultaneously with the execution of this Lease, Tenant does hereby
agree to deliver to Landlord the sum of $10,000.00.
17. Notwithstanding any other provision of this Lease to the
contrary, Landlord and Tenant do hereby agree that Tenant shall have the right
to cancel and terminate this Lease at any time by Tenant's delivery of a written
notice to Landlord delivered not less than 180 calendar days prior to the
effective date of such termination of this Lease setting forth Tenant's election
to do so. In the event that Tenant does so elect to terminate this Lease as
described hereinabove, Tenant shall, on or before the effective date of such
termination of this Lease, deliver to Landlord , as a penalty for such early
termination, an amount equal to (i) the sum of all monthly
6
payments of Base Annual Rental which were to be made by Tenant under the terms
of the table below through the effective date of such termination of this Lease,
reduced by (ii) the sum of all monthly payments of Base Annual Rental made by
Tenant commencing with the payment due for February, 2003, through the effective
date of such termination of the Lease.
Period Monthly Rent Base Annual Rent
------ ------------ ----------------
February 2003 - December 2003 $11,644.18 $139,730.21
January 2004 - December 2004 $11,991.90 $143,902.78
January 2005 - December 2005 $12,348.09 $148,177.12
January 2006 - December 2006 $12,721.25 $152,655.00
18. Notwithstanding any other provision of this Lease, in the
event that Landlord shall at any tine be in default in the observance or
performance of any of the covenants and agreements required to be performed or
observed by Landlord hereunder and any such default shall continue for a period
of thirty (30) days after written notice to Landlord and any mortgagee of
Landlord whose name and address shall have been previously given to Tenant (or
if such default is incapable of being cured in a reasonable manner within thirty
(30) days then if Landlord has not commenced to cure the same within said thirty
(30) day period and thereafter diligently prosecutes the same to completion),
then Tenant shall be entitled, at its election, to exercise concurrently or
successively, any one or more of the following rights, in addition to all
remedies provided for in this Lease or otherwise available in law or equity
under the laws of Georgia:
(a) to bring suit for the collection of any amounts for
which Landlord may be in default, or for the performance of
any other covenant or agreement binding upon Landlord, without
terminating this Lease; and/or
(b) terminate this Lease upon thirty (30) days' written
notice to Landlord without waiving Tenant's rights for damages
for Landlord's failure to perform its obligations hereunder;
and in the event that Tenant shall elect so to terminate this
Lease, the same shall thereafter be deemed to be null and void
and of no further force or effect.
19. Upon payment by Tenant of the rents provided for herein and
upon the observance and performance by Tenant of all other covenants, terms and
conditions on Tenant's part to be observed and performed, Tenant shall peaceably
have, hold, possess and enjoy the Premises and the non-exclusive use of all of
the common areas and common facilities of the Building for the full term of this
Lease without hindrance, interruption or molestation by Landlord or anyone
claiming through Landlord.
20. Landlord warrants that the Building (including, without
limitation, the common areas and common facilities of the Budding, and the soil,
groundwater, soil vapor on or under the Budding) is free of, does not contain
and is not affected by the presence of any Hazardous Materials, and that
Landlord will not introduce any Hazardous Materials onto or into the Building;
and Landlord does hereby agree to indemnify and hold Tenant harmless of any
7
damages resulting from its violation of this paragraph. The term "Hazardous
Materials" shall mean: (a) polychlorinated biphenyls ("PCB's") or "PCB items"
(as defined in 40 C.F.R. Sec. 761.3) or any equipment which contains "PCB's"; or
(b) any asbestos or asbestos-containing materials; (c) stored, leaked or spilled
petroleum products; or (d) any other chemical, material or substance (i) which
is regulated as a "toxic substance" (as defined by the Toxic Substance Control
Act, 15 U.S.C. Sec. 2601 et seq., as amended), (ii) which is a "hazardous waste"
(as defined by the Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901
et seq., as amended), (iii) which is "hazardous substance" (as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. Sec. 6901 et seq., as amended), or (iv) exposure to which
is prohibited, limited or regulated by any federal, state, county, regional,
local or other governmental statute, regulation, ordinance or authority of
which, even if not so regulated, may or could pose a hazard to the health and
safety of the occupants of or invitees to the Premises, or the owners, tenants
or occupants of the Building or the property adjacent to the Building. In
addition, Tenant does hereby agree that Tenant will comply with all applicable
environmental laws and regulations related to Hazardous Materials; and Tenant
does hereby agree to indemnify and hold Landlord harmless from any damages
resulting from its violation of its covenant described immediately hereinabove.
21. Tenant warrants that it has had no dealings with any brokers
other than Corporate Property Advisors ("Broker") in convection with the
negotiations or execution of this Lease. Tenant further acknowledges that
Corporate Property Advisors represents Tenant solely in all negotiations
pertaining to the execution and delivery of this Lease, but is being paid by
Landlord pursuant to a separate agreement. Tenant agrees to indemnify Landlord
and hold Landlord harmless from and against any and all cost, expense or
liability for commissions or other compensation or charges claimed by any broker
or agent other than Broker with respect to this Lease. Landlord agrees to
indemnify and hold Tenant harmless from and against any and all cost, expense or
liability for commissions or other compensation claimed by Broker with respect
to this Lease.
22. The laws of the State of Georgia shall govern the
interpretation, validity, performance, and enforcement of this Lease. If any
provision of this Lease shall be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions of this Lease shall not
be affected thereby.
23. In the event that there is interruption in water, sanitary
sewer, gas, electric or telephone utility services to the Premises for more than
two (2) business days and such interruption is due to the willful or negligent
acts or omissions of Landlord, its agents, employees or contractors, Tenant's
obligations to pay rent shall ▇▇▇▇▇ during the period of such interruption.
24. Landlord shall keep in force during the term of the Lease an
insurance policy of all-risk fire, extended coverage, theft, vandalism,
malicious mischief and other casualty, covering loss or damage to the Building,
including all improvements thereto (but excluding the trade fixtures, furniture,
equipment and other property belonging to Tenant), to the extent of at least one
hundred percent (100%) of their replacement cost. Landlord shall also obtain and
keep in force, during the term of this Lease, comprehensive commercial general
liability insurance pertaining to the Building (including, without limitation,
Tenant's Work), the limits of such
8
insurance to be in an amount not less than $1,000,000.00 per person and
$2,000,000.00 per incident.
25. In the event Landlord does not commence any repairs required
to be made by Landlord within ten (10) days after written notice from Tenant to
Landlord (and thereafter diligently pursue the completion of same), Tenant shall
have the right, but not the obligation, to effect such repairs. In the event
that Tenant shall so elect to effect such repairs, Tenant shall cause such
repairs to be made by a reputable contractor at Tenant's expense, and Landlord
shall reimburse Tenant for such reasonable expenses within thirty (30) days of
receipt of paid invoices for the repairs. In the event that Landlord shall fail
to reimburse Tenant for such reasonable expenses within said thirty (30) day
period, Tenant shall thereafter be entitled to set-off such amounts against any
amounts due by Tenant to Landlord hereunder. Landlord agrees that Landlord shall
be responsible for any damages suffered by Tenant caused by Landlord's failure
or refusal to make any repairs hereunder, within a reasonable time after
Landlord is notified of the necessity for the same by Tenant.
26. If, during the making of any repairs or alterations herein
required or authorized to be made by Landlord, Tenant is materially deprived for
more than two (2) business days of the uninterrupted use of any portion of the
Premises, then the rent payable by Tenant hereunder shall be equitably abated.
27. Landlord and Tenant each hereby releases the other from any
and all liability or responsibility to the other or anyone claiming through or
under them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils that could be insured against or that are
required to be insured against under the terms of this Lease, even if such loss
or damage shall have been caused by the fault or negligence of the other party,
or anyone for whom such party may be responsible, including, without limitation,
and other tenants or occupants of the remainder of the Building in which the
Premises are located, provided, however, that this release shall be applicable
and in force and effect only to the extent that such release shall be lawful at
that time and in any event, only with respect to loss or damage occurring during
such time as the releasor's policies shall contain a clause or endorsement to
the effect that any such release shall not adversely affect or impair said
policies or prejudice the right of the releaser to recover thereunder and then
only to the extent of the insurance proceeds payable under such policies.
Landlord and Tenant each agrees that it will request its insurance carriers to
include in its policies such a clause of endorsement.
28. 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 with an overnight courier or 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
9
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:
Landlord: MSR Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tenant: First Capital Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Any notice given as hereinabove described shall be deemed received on the
earlier of the date of actual delivery and the third calendar day after the date
of posting in the United States mail of such notice. Any Member may change said
address as described hereinabove by sending notice to the other Members of such
change of address.
29. Notwithstanding any other provision contained in this Lease,
in the event Tenant is closed or taken over by the banking authority of the
State of Georgia or another duly constituted bank supervisory authority,
Landlord may thereupon terminate this Lease only with the concurrence of such
banking authority or other supervisory authority, and any such authority shall
have the election, to be made within thirty (30) days of closure or takeover, to
either continue or terminate this Lease which, if continued, shall remain as
written with the banking authority or other bank supervisory authority acting as
or in lieu of Tenant; provided, that in the event this Lease is terminated by
such banking authority or other bank supervisory authority, the Landlord's
entitlement under this Lease shall in no event be for an amount exceeding the
total of (a) all rents reserved under this Lease, plus (b) an amount equal to
the unpaid rent accrued to said date; and, provided that there shall in any
event be no acceleration by Landlord of any rentals under this Lease; and
provided further, that should Landlord find it necessary to proceed at law
against Tenant to collect either or both of said entitlements, Landlord shall in
addition recover from Tenant its legal fees and brokerage commissions expended.
30. Landlord agrees to pay before they become delinquent, all
taxes, assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively called the "Taxes") lawfully levied or assessed
against the Budding and the grounds, parking areas, driveways and alleys around
the Building; provided, however, that the maximum amount of Taxes to be paid by
Landlord hereunder during any one real estate tax year shall not exceed the
Taxes paid for the calendar year 2001 (hereinafter referred to as the "Base
Year"). If in any real estate tax year during the Lease term hereof, or any
renewal or extension, the Taxes levied or assessed against the Building and the
grounds, parking areas, driveways and alleys around the Building during such tax
year shall exceed the amount of Taxes paid for the Base Year, Tenant agrees to
pay to Landlord, as Additional Rental, upon demand, the amount of Tenant's
"proportionate share" of the excess Taxes. Tenant's "proportionate share" shall
mean a fraction, the numerator of which is the space contained in the Premises
and the denominator of which is
10
the entire space contained in the Building. For purposes hereof, the Premises
(consisting of the Original Space, the Additional Space and the Supplemental
Additional Space) contain 17,555 square feet of office space, and the Building
is comprised of 30,914 square feet. Therefore, Tenant's "proportionate share" is
56.79% (hereinafter called "Proportionate Share"). Landlord reserves the right
to require Tenant, during each month of the Lease Term, to pay an escrow deposit
to Landlord equal to one twelfth (1/12th) of its Proportionate Share of the
estimated taxes. If the Tenant's total tax escrow payments are less than
Tenant's actual Proportionate Share of such Taxes, Tenant shall pay to Landlord,
upon demand, the tax payment shortage. If the total tax escrow payments of
Tenant are more than Tenant's actual Proportionate Share of such Taxes, Landlord
shall retain such excess and credit it to Tenant's next accruing tax escrow
payment.
31. Landlord agrees to pay before they become delinquent, all costs and
expenses for the provision of utility service to the Building and the grounds,
parking areas, driveways and alleys around the Building, including, without
limitation, the costs of providing electrical, natural gas, water and sanitary
sewer service (hereinafter collectively called the "Utilities"); provided,
however, that the maximum amount of Utilities to be paid by Landlord hereunder
during any one calendar year shall not exceed the Utilities paid for the
calendar year 1997 (hereinafter referred to as the "Base Year"). If in any
calendar year during the Lease term hereof, or any renewal or extension, the
Utilities incurred with respect to the Building and the grounds, parking areas,
driveways and alleys around the Budding during such calendar year shall exceed
the amount of the Utilities paid for the Base Year, Tenant agrees to pay to
Landlord, as Additional Rental, upon demand, the amount of Tenant's
"proportionate share" of the excess Utilities. Tenant's "proportionate share"
shall mean a fraction, the numerator of which is the space contained in the
Premises and the denominator of which is the entire space contained in the
Building. For purposes hereof, the Premises (consisting of the Original Space,
the Additional Space and the Supplemental Additional Space) contain 17,555
square feet of office space, and the Building is comprised of 30,914 square
feet. Therefore, Tenant's "proportionate share" is 56.79% (hereinafter called
"Proportionate Share"). Landlord reserves the right to require Tenant, during
each month of the Lease Term, to pay an escrow deposit to Landlord equal to
one-twelfth (1/12th) of its Proportionate Share of the estimated Utilities. If
the Tenant's total Utility escrow payments are less than Tenant's actual
Proportionate Share of such Utilities, Tenant shall pay to Landlord, upon
demand, the Utility payment shortage. If the total Utility payments of Tenant
are more than Tenant's actual Proportionate Share of such Utilities, Landlord
shall retain such excess and credit it to Tenant's next accruing Utility
payment.
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