Exhibit 10.30
LEASE AGREEMENT
FOR
OFFICE FACILITIES
TABLE OF CONTENTS
Paragraph Page
Basic Lease Information ii
1. The Premises and the Term 1
2. Rental 1
3. Security Deposit 2
4. Possession 2
5. Use 2
6. Acceptance of the Premises 2
7. Tenant's Care and Covenants 2
8. Hours of Operation of the Building 3
9. Services 3
10. Destruction or Damage to the Premises 3
11. Default by Tenant - Landlord's Remedies 4
12. Acceleration of Rentals 4
13. Assignment and Subletting 5
14. Condemnation 5
15. Inspections 5
16. Subordination 5
17. Indemnity and Hold Harmless 6
18. Tenant's Insurance and Waiver of Subrogation 6
19. Remedies Cumulative 6
20. Holding Over 6
21. Entire Agreement - No Waiver 6
22. Headings 6
23. Notices 6
24. Heirs and Assigns - Parties 6
25. Attorney's Fees 6
26. Alterations Required by Law 7
27. Time of Essence 7
28. Standard Tenant Allowance 7
29. Parking Arrangements 7
30. Rules and Regulations 7
31. Right to Relocate 7
32. Rights Reserved to Landlord 7
33. Governmental Orders 8
34. Severability 8
35. Arbitration 8
36. Brokerage Commission 8
37. Abandonment 8
38. Corporate Authority 8
39. Estoppel Certificates 8
40. Counterparts 9
Execution and Witness Page 9
Exhibit "A" Floor Plan
Exhibit "B" Standard Tenant Allowance
Exhibit "C" Special Stipulations (attached and acknowledged where required)
Exhibit "D" Definition of Operating Expenses
Exhibit "E" Guaranty of Lease
BASIC LEASE INFORMATION
LANDLORD: ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited liability company
ADDRESS OF LANDLORD: ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Properties. Inc.
CONTACT: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ TELEPHONE: ▇▇▇-▇▇▇-▇▇▇▇
TENANT: Direct Mortgage Partners, Inc., a
corporation of the State of Delaware d/b/a
Bankers
Direct Mortgage
ADDRESS OF TENANT: ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CONTACT: TELEPHONE:
Paragraph 3
SECURITY DEPOSIT: Seven thousand four hundred sixty-three and
85/100 ($7,463.85) Dollars
Paragraph 5
USE: General office APPROXIMATE NO. OF EMPLOYEES:
Paragraph 29
PARKING SPACE REQUIREMENT: 18
Paragraph 36
BROKER REPRESENTING LANDLORD: See Special Stipulation #41
BROKER REPRESENTING TENANT: See Special Stipulation #41
THE FOREGOING BASIC LEASE INFORMATION IS HEREBY INCORPORATED INTO AND MADE A
PART OF THIS LEASE. EACH REFERENCE IN THIS LEASE TO ANY OF THE BASIC LEASE
INFORMATION SHALL MEAN THE RESPECTIVE INFORMATION HEREINABOVE SET FORTH AND
SHALL BE CONSTRUED TO INCORPORATE ALL OF THE TERMS PROVIDED UNDER THE PARTICULAR
LEASE PARAGRAPH PERTAINING TO SUCH INFORMATION. IN THE EVENT OF ANY CONFLICT
BETWEEN ANY BASIC LEASE INFORMATION AND THE LEASE, THE LATTER SHALL CONTROL.
Acknowledgment by Tenant: Acknowledgment by Landlord:
LEASE AGREEMENT
FOR
OFFICE FACILITIES
THIS LEASE is made this 20TH day of October, 1997, between ▇▇▇▇▇ Palisades,
L.L.C., a Georgia limited liability company, (herein called "Landlord") and
Direct Mortgage Partners, Inc., d/b/a/ Bankers Direct Mortgage, a corporation of
the State of Delaware (herein called "Tenant").
1. THE PREMISES AND THE TERM
Landlord hereby leases to Tenant, and Tenant hereby rents and leases from
Landlord the following described space (herein called the "Premises")
Project: Palisades Building: B
5901 Peachtree
Address: Dunwoody Road Floor: Third (3rd)
City: Atlanta Suite: 375
County: ▇▇▇▇▇▇ Rentable Square Feet: 4,535
State: Georgia
Premises are more particularly shown as outlined on the floor plan attached
hereto as Exhibit "A" and hereby made a part hereof, and are leased for a term
to commence on the 1st day of November, 1997 and end at midnight at the end of
the 31st day of January, 2001 (such period being herein called the "Term").
2. RENTAL
(a) or the purposes of this Lease:
(i) the term "Tenant's Share" means 3.919% which percentage was determined
by dividing 4,535, the rentable square feet in the Premises, by 115,732 square
feet, the total rentable square feet in the Building.
DELETED TEXT NOT SHOWN.
Page 1i of the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited
liability company, and Direct Mortgage Partners, Inc., a corporation of the
State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
Paragraph 2 (a) (ii) through (g) (vii) of the Lease is deleted in its
entirety and replaced with the following language:
A. Subject to the provisions of this Paragraph, from November 1, 1997
through January 31, 2001, Tenant shall pay to Landlord at its offices in
Atlanta, Georgia, or at such other place or to such other person or persons as
Landlord may from time to time designate in writing, without demand, deduction
or set-off, rental payable in accordance with the following schedule in equal
monthly installments in advance on the first day of each calendar month during
the Term (such monthly rental installments being hereinafter referred to as
"Monthly Rental"):
Lease Months Monthly Rental Annualized Rental
11/1/97 - 1/31/98 $5,111.96 $61,343.52
2/1/98 - 1/31/99 $7,463.85 $89,566.20
2/1/99 - 1/31/00 $7,687.77 $92,253.24
2/1/00 - 1/31/01 $7,918.40 $95,020.80
If the Term begins on other than the first day of the calendar month, the next
installment of Monthly Rental payable to Landlord shall be prorated with respect
thereto. If the Term ends on other than the last day of the calendar month, the
installment of Monthly Rental for such partial calendar month shall be prorated
with respect thereto.
B. 1. For the purpose of this Lease:
a. The term "Additional Rental" means payments to which Landlord is
entitled pursuant to the relevant provisions hereof.
b. The term "Escalation Year" means each calendar year or a portion thereof
during the Term, commencing with the calendar year 1999.
c. The term "Operating Expense Base" means an amount equal to what the
actual Operating Expenses (as hereinafter defined) per rentable square foot of
the Premises for the calendar year 1998 will be.
d. The term "Operating Expenses" is defined on Exhibit "D" of the Lease.
e. The term "Tenant's Share" means 3.919%, which percentage was determined
by dividing 4,535, the rentable square feet in the Premises, by 115,732, the
total rentable square feet in the Building.
2. For each Escalation Year, Tenant shall pay to Landlord Additional Rental
equal to Tenant's Share of the amount by which the actual Operating Expenses for
such Escalation Year exceed the Operating Expense Base.
3. Prior to the commencement of each Escalation Year, Landlord shall
provide Tenant with an estimate of the estimated Operating Expenses for that
calendar year and the resulting Additional Rental. Tenant shall pay, in addition
to the Monthly Rental and on the first day of each calendar month, 1/12 of the
estimated Additional Rental throughout that Escalation Year.
4. Within ninety (90) days, or as soon thereafter as possible, of the
conclusion of each Escalation Year, Landlord shall furnish to Tenant a statement
of the Operating Expenses incurred by Landlord in the prior calendar year. In
the event that the estimated Additional Rental paid by Tenant during such prior
calendar year is less than Tenant's Share of any increase in the Operating
Expenses for the prior calendar year over the Operating Expense Base (such
increase being hereinafter referred to as the "Operating Expense Increase"),
Tenant shall pay the balance of the Additional Rental due to Landlord within
thirty (30) days of Landlord's delivery to Tenant of such statement. In the
event the estimated Additional Rental paid by Tenant for any such prior calendar
year exceeds Tenant's Share of any Operating Expense Increase, the amount of
such overpayment (1) shall be credited against the next succeeding
installment(s) of Monthly Rental or (2), if determined after the expiration of
the Term, shall
Page 1ii of the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited
liability company, and Direct Mortgage Partners, Inc., a corporation of the
State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
promptly be paid by Landlord to Tenant. Any payment or credit made shall be made
without prejudice to the right of Tenant to dispute, or Landlord to correct,
said payment or credit.
5. In the event the Term commences on a date other than January 1, the
Additional Rental payable for the first Escalation Year partial calendar year
occurring thereafter shall be prorated based on the number of days in the
partial calendar year occurring between the commencement date of the Term and
January 1 of the next succeeding calendar year.
6. It is understood and agreed that Tenant's failure to pay Additional
Rental due hereunder shall entitle Landlord to all remedies provided herein and
at law or equity on account of Tenant's failure to pay rent. It is further
understood and agreed that Tenant's payments of Additional Rental shall not be
deemed payments of base rental as that term is construed relative to
governmental wage and price controls or analogous governmental actions affecting
the amount of rental which Landlord may charge Tenant.
7. In no event shall the total rental (i.e., the sum of Monthly Rental and
monthly Additional Rental) due under this Paragraph be less than Monthly Rental
specified above.
8. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, including but
not limited to Monthly Rental and Additional Rental, whether or not expressly
denominated as rent shall constitute rent for the purposes of Section 502(b)(7)
of the Bankruptcy Code, 11 U.S.C. Section 502(b)(7)."
DELETED TEXT NOT SHOWN
3. SECURITY DEPOSIT
Tenant has this day deposited with Landlord the amount specified as
Security Deposit in the Basic Lease Information as security for the performance
by Tenant of all the terms, covenants and conditions of this Lease upon Tenant's
part to be performed, which sum shall be returned to Tenant within thirty (30)
days after the expiration of the Term, provided Tenant has fully performed
hereunder. Landlord shall have the right to apply any part of said deposit to
cure any default of Tenant and if Landlord does so, Tenant shall upon demand
deposit with Landlord the amount so applied so that Landlord will have the full
deposit on hand at all times during the Term. In the event of a sale of the
Building or a lease of the Building, subject to this Lease, Landlord shall
transfer the security deposit to the vendee or lessee and Landlord shall
thereupon be released from all liability for the return of such security deposit
and Tenant shall look to the new landlord solely for the return of said security
deposit and this provision shall apply to every transfer or assignment made of
the security deposit to a new landlord; provided, however, Tenant agrees not to
look for the return of any such security deposit to any holder or beneficiary of
a deed of trust or other security instrument affecting the real property of
which the Premises form a part which acquires title to such property by
foreclosure, deed in lieu thereof or otherwise, unless such party shall have
actually received such security deposit from the prior landlord. The security
deposit under this Lease shall not be assigned or encumbered by Tenant without
the written consent of Landlord and any such assignment or encumbrance shall be
void.
4. POSSESSION
If the premises are not available for occupancy on the commencement date
hereinabove set forth and if such unavailability or unreadiness is not
occasioned or caused by Tenant (such as by Tenant's failure promptly to approve
plans, make material or color selections, make improvements to the Premises
which are to be made by Tenant, or make other decisions or take other actions
necessary to the preparation of the Premises for occupancy), then the term shall
commence on a date fixed by Landlord in a notice to Tenant which notice shall
state that the Premises are available or, on or before the commencement date
fixed in the notice will be, available and ready for occupancy, and in such
event, Tenant waives any claim for damages due to such delay and Landlord waives
the right to receive payment of any rental until Landlord delivers possession of
the Premises to Tenant.
5. USE
Tenant shall use and occupy the Premises as general offices only. Tenant's
use of the Premises shall not violate any ordinance, law or regulation of any
governmental body or the rules and regulations of Landlord herein provided for.
Tenant agrees to conduct its business in the manner and according to the
generally accepted business principles of the business or profession in which
Tenant is engaged. Tenant anticipates that it will have the approximate number
of employees working in the Premises as specified in the Basic Lease
Information.
Tenant shall use and occupy the premises for general office purposes and
for no other use or purpose without the prior written consent of Landlord.
Tenant shall not do or permit anything to be done in or about the premises which
will in any way obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or annoy them, nor use or allow the premises
to be used for any improper, immoral, unlawful, or objectionable purposes or for
any business, use or purpose deemed to be disreputable or inconsistent with the
operation of a first class office building, nor shall Tenant cause or maintain
or permit any nuisance in, on, or about the premises. Tenant shall not commit or
suffer the commission or any waste in, on, or about the premises.
6. ACCEPTANCE OF THE PREMISES
The taking of possession of the Premises by Tenant at the commencement of
the Term shall be conclusive evidence as against Tenant that Tenant accepts the
same "as is" subject to a punch list and that the Premises and the Building were
in good and satisfactory condition for the use intended at the time such
possession was taken.
7. TENANT'S CARE AND COVENANTS
(a) Tenant will, at Tenant's expense, take good care of the Premises and
the fixtures and appurtenances therein, and will suffer no active or permissive
waste or injury thereof; and Tenant will, at Tenant's expense, but under the
direction of Landlord, promptly repair any injury or damage to the Premises or
the Building caused by the misuse or neglect thereof by Tenant, or by persons
permitted on the Premises by Tenant, or by Tenant's moving in or out of the
Premises.
(b) Tenant will not, without Landlord's written consent, make alterations,
additions or improvements in or about the Premises and will not do anything to
or on the Premises which will increase the rate of fire insurance on the
Building. All alterations, additions or improvements of a permanent nature made
or installed by Tenant to the Premises shall become the property of Landlord at
the expiration of this Lease, but Landlord reserves the right to require Tenant
to remove any improvements or additions made to the Premises by Tenant and to
repair and restore the Premises to their condition prior to such alteration,
addition or improvement. Tenant further agrees to do so prior to the expiration
of the Term.
(c) No later than the last day of the Term, Tenant will remove all Tenant's
personal property and repair all injury done by or in connection with
installation or removal of said property and surrender the Premises (together
with all keys to the Premises) in as good a condition as they were at the
beginning of the Term, reasonable wear and damage by fire, the elements or
casualty excepted. All property of Tenant remaining on the Premises after
expiration of the Term shall be deemed conclusively abandoned and may be removed
by Landlord and Tenant shall reimburse Landlord for the cost of removing the
same, subject however, to Landlord's right to require Tenant to remove any
improvements or additions made to the Premises by Tenant pursuant to
subparagraph 7(b).
(d) In doing any work related to the installation of Tenant's furnishings,
fixtures, or equipment in the Premises, Tenant will use only contractors or
workmen approved by Landlord. Tenant will promptly remove any lien for material
or labor claimed against the Premises by such contractors or workmen if such
claim should arise and hereby indemnifies and holds Landlord harmless from and
against any and all claims, losses, damages, costs, expenses (including but not
limited to attorney's fees and costs of litigation) or liabilities incurred by
or threatened against Landlord as a result of such liens.
(e) Tenant will not place nor maintain any food or drink coin-operated or
vending machines within the Premises or the Building without the written consent
of Landlord; such consent shall not preclude Landlord from charging Tenant for
utility costs therefor pursuant to subparagraph 9(b) hereof.
(f) Tenant agrees that all personal property brought into the Premises by
Tenant, its contractors, employees, licensees, guests and invitees shall be at
the sole risk of Tenant, and Landlord shall not be liable for theft thereof or
of money deposited therein or for any damages thereto, such theft or damage
being the sole responsibility of Tenant.
(g) Tenant at its sole expense will comply with all statutes, regulations,
rules, ordinances and orders of any governmental body, department or agency
thereof, and abide by and observe the rules and regulations printed on this
Lease, which are hereby made a part of this Lease, together with such amendments
thereto and such rules and regulations of the management of the Building as may
hereafter, from time to time, be established in writing by Landlord and served
upon Tenant.
(h) Tenant will report immediately in writing to Landlord any defective
condition in or about the Premises known to Tenant and a failure to so report
shall make Tenant liable to Landlord for any expense of, or damage to Landlord,
resulting from such defective condition.
8. HOURS OF OPERATION OF THE BUILDING
The normal business hours of the Building shall be from 8:00 a.m. to 6:00
p.m. on Monday through Friday, and 8:00 a.m. to 1:00 p.m. on Saturday. The
Building will not operate on Sundays or governmental holidays.
9. SERVICES
(a) Landlord shall provide, at Landlord's expense, except as otherwise
provided, the following services:
(i) Subject to the restrictions of subparagraph 9(a)(iv),
public utilities to furnish the electricity, gas and water utilized in operating
the Building and its facilities serving the Premises.
(ii) Hot and cold water at those points of supply provided for
general use of other tenants in the Building; central heat and air conditioning
in season, at such temperatures and in such amounts as required to reasonably
heat or cool the Premises except in extreme temperature conditions; routine
maintenance and electric lighting service for all public areas and special
service areas of the Building.
(iii) janitorial service on a five (5) day week basis
excluding holidays.
(iv) Electrical facilities to furnish sufficient power for
typewriters, calculating machines, duplicating machines and other machines of
similar low electrical consumption, normally utilized in general purpose office
space. This does not include special power requirements, including, but not
necessarily limited to, power for such items as freestanding or main frame
computers (or power for special cooling equipment associated therewith), any
special heating or cooling equipment not normally furnished by Landlord as part
of the Building systems, special printing equipment or any other equipment not
normally found in a general purpose-office space and/or which requires a voltage
other than 120 volts single phase.
(v) All building standard fluorescent bulb replacements in all
areas and all incandescent bulb replacements in public areas, toilet and
restroom areas and stairwells.
(vi) Elevator service.
(b) Should Tenant require any additional work or service, including service
furnished outside the stipulated hours of operation of the Building, Landlord
may, on terms to be agreed and upon reasonable advance notice from Tenant,
furnish such additional service and Tenant agrees to pay Landlord such charges
as may be agreed on, but in no event at a charge less than Landlord's actual
cost plus overhead for the additional services provided.
(c) It is understood that Landlord does not warrant that any of the
services referred to above, or any other services which Landlord may supply,
will be free from interruption, Tenant acknowledging that any one or more such
services may be suspended by reason of accidents or of repairs, alterations, or
improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of the law, or causes beyond the reasonable control of Landlord. Any
such interruption or discontinuance of service shall not be deemed an eviction
or disturbance to Tenant's use and possession of the Premises, or any part
thereof, or render Landlord liable to Tenant for damages by abatement of rent or
otherwise, or relieve Tenant from performance of Tenant's obligations under this
Lease.
10. DESTRUCTION OR DAMAGE TO THE PREMISES
(a) If the Premises are totally destroyed (or so substantially damaged as
to be untenantable) by storm, fire, earthquake, or other casualty, rent shall
▇▇▇▇▇ from the date of such damage or destruction and Landlord shall have sixty
(60) days to commence the restoration of the Premises to a tenantable condition;
provided, however, if in Landlord's sole judgment such restoration cannot be
completed within one hundred twenty (120) days following such damage or
destruction, Landlord may, by written notice furnished to Tenant within thirty
(30) days of such casualty, terminate this Lease, whereupon rental and all other
obligations hereunder shall be adjusted between the parties as of the date of
such casualty. In the event the Landlord elects to complete such restoration but
fails to do so within one hundred twenty (120) days of such damage or
destruction, this Lease may be terminated as of the date of such damage or
destruction upon written notice from either party to the other given not more
than ten (10) days following ex pi ration of said one hundred twenty (120) day
period. In the event such notice is not given, then this Lease shall remain in
force and effect and rent shall commence upon delivery of the Premises to Tenant
in a tenantable condition.
(b) If the Premises are damaged but not rendered wholly untenantable by any
of the events set forth in subparagraph I 1(a) above, rental shall ▇▇▇▇▇ in such
proportion as the Premises have been damaged and Landlord shall restore the
premises as speedily as practicable whereupon full rent shall commence.
(c) In no event shall rent ▇▇▇▇▇ nor shall Tenant be entitled to terminate
this Lease if the damage or destruction of the Premises, whether total or
partial, is the result of the negligence of Tenant, its agents, employees,
contractors, invitees, licensees or guests.
11. DEFAULT BY TENANT - LANDLORD'S REMEDIES
(a) The following shall constitute events of default and in any of said
events, Landlord at its option may during continuance of such default, terminate
this Lease by written notice to Tenant, whereupon this Lease shall end: (i)
Tenant's failure for five (5) days in paying any and all installments of Monthly
Rental or Additional Rental, or monthly installments based on estimates thereof,
reserved herein; or (ii) Tenant's failure for fifteen (15) days after written
notice thereof in performing any other of its obligations hereunder; or (iii)
the entry against Tenant of a decree or order for relief in an involuntary case
under the federal bankruptcy laws (as now or hereafter constituted) or other
applicable federal or state bankruptcy, insolvency or other similar law, or the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) for Tenant or for any substantial part of
Tenant's property, or an order for the winding-up of liquidation of Tenant's
affairs and the continuance of any such decree or order is unstayed and in
effect for a period of sixty (60) consecutive days; or, (iv) the commencement by
Tenant of a voluntary case under the federal bankruptcy laws (as now or
hereafter constituted) or any other applicable federal or state bankruptcy,
insolvency, or other similar law, or the consent by Tenant to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for Tenant or for any substantial part
of Tenant's property, or the making by Tenant of any assignment for the benefit
of creditors, or the failure of Tenant generally to pay its debts as such debts
become due, or the taking of corporate action by Tenant in furtherance of any of
the foregoing; or (v) the levy upon or attachment under process against the
Premises or Tenant's effects or interest therein which is not satisfied or
dissolved within fifteen (15) days after such levy upon or attachment; or, (vi)
the abandonment or vacating of the Premises by Tenant during the Term and (vii)
in the event of a monetary default failure of Tenant to provide Landlord with an
audited financial statement within sixty (60) days thereafter. After an
authorized assignment the occurring of any of the foregoing defaults or events
of default shall affect this Lease only if caused by or happening to the
assignee. Upon such termination by Landlord, Tenant will at once surrender
possession of the Premises to Landlord and remove all of Tenant's effects
therefrom; and Landlord may forthwith re-enter the Premises and repossess itself
thereof; and remove all persons and effects therefrom using such force as may be
necessary without being guilty of or liable for trespass, forcible entry,
detainer or other tort.
(b) Payments of Monthly Rental, Additional Rental or any other payment
required hereunder received after the fifth day of the month may be assessed an
additional five percent (5%) charge as agreed liquidated damages and may be
assessed an additional five percent (5%) charge each month thereafter until paid
in full. Provided however that should such late charge at any time be deemed to
violate any applicable usury or similar laws, the late charge and interest
charged shall be the highest permissible by such laws. Acceptance by Landlord of
a payment in an amount less than that which is currently due shall in no way
affect Landlord's rights under this Lease and in no way be an accord and
satisfaction.
(c) Landlord, as Tenant's agent, without termination of this Lease, upon
Tenant's default or breach of this Lease, may at Landlord's option, evidenced by
written notice to Tenant, terminate Tenant's right to possession and enter upon
and rent the Premises at the best price obtainable by reasonable effort, without
advertisement, and by private negotiations and for any term Landlord deems
proper. Tenant shall upon receipt of such notice surrender possession of the
Premises to Landlord and remove all of Tenant's effects therefrom; and Landlord
may forthwith re-enter the Premises and repossess itself thereof; and remove all
persons and effects therefrom, using such force as may be necessary without
being guilty of or liable for trespass, forcible entry, detainer or other tort.
Tenant shall be liable to Landlord for the deficiency, if any, between the
amount of all rent including Monthly Rental and Additional Rental reserved in
this Lease and the net rent, if any, collected by Landlord in reletting the
Premises, which deficiency shall be due and payable by Tenant for the period in
which Monthly Rental and Additional Rental reserved in the Lease would have been
due and payable. Net rent shall be computed by deducting from gross rents
collected all expenses or costs of whatever nature incurred by Landlord in
reletting including, but not limited to, attorney's fees, brokers' commissions
and the cost of renovating or remodeling the Premises.
(d) No termination of this Lease prior to the normal ending thereof by
lapse of time or otherwise shall affect Tenant's obligation to pay and
Landlord's right to collect the rent including Monthly Rental and Additional
Rental accrued hereunder to the end of the Term.
(e) In the event Landlord elects to terminate this Lease as hereinabove
provided, Landlord may, in addition to any other remedies it may have, recover
from Tenant all damages Landlord may incur by reason of such default, including
the cost of recovering the Premises, reasonable attorney's fees and including
the worth at the time of such termination of the excess, if any, of the amount
of Monthly Rental and Additional Rental reserved in this Lease for the remainder
of the Term over the then reasonable rental value of the Premises for the
remainder of the Term.
Landlord may, at Landlord's option, enter into and upon the leased
premises, with or without process of law, if Landlord determines in its sole
discretion that Tenant is not acting within a commercially reasonable time to
maintain, repair or replace anything for which Tenant is responsible hereunder
and correct the same, without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without incurring any liability for
any damage resulting therefrom and Tenant agrees to reimburse Landlord, on
demand, as additional rent, for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease.
(f) Pursuit of any one or more of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law.
(g) The term "reserved" as applied to Monthly Rental or Additional Rental
herein means any and all payments to which Landlord is entitled hereunder during
the Term.
12. ACCELERATION OF RENTALS
Landlord, upon notification to Tenant of its intention to do so (as
expressed by a notice sent certified mail, return receipt requested (the
"Notice") may, upon a material default of the provisions of this Lease,
accelerate all remaining minimum or base rentals, percentage rentals, and all
other sums of money (hereinafter collectively, the "Rentals") that Tenant is
required to pay under this Lease, same to become due and payable after the
Notice Period (as same is hereinafter defined) shall have expired without
payment in full to Landlord. Landlord and Tenant agree that this provision is a
term for liquidated damages, and the sums accelerated, which have not already
become due by the expiration of the Notice Period, shall be reduced to present
value, as of the date of said expiration. The "Notice Period" shall be fifteen
(15) days from tenant's receipt of the Notice. Actual receipt of the Notice is
not required, all that is required to make the Notice effective is for the
Landlord to mail the Notice to the Tenant's last known address, as same has been
provided to Landlord by Tenant. If there is no actual acceptance or receipt of
the Notice, then the Notice Period shall be deemed to be expired on the
eighteenth (18) day from the date of mailing of the Notice. If Landlord elects
to accelerate the Rentals, it shall undertake to seek another tenant for the
Premises, and credit any amounts received to the obligation of the Tenant for
Rentals, less the following:
(a) reimbursement for all expenses incurred as a result of the Tenant's
failure to perform its other obligations under the Lease including taxes, common
area maintenance, (if any) Tenant's failure to make repairs and comply with
insurance and other requirements;
(b) the cost of advertising the Premises and for real estate broker's
commissions;
(c) the cost of painting, repairing, replacing, altering, dividing or
consolidating the Premises to accommodate the needs of and new tenant.
In any event, the rights of the Landlord as expressed herein are cumulative
of any and all other rights expressed in the Lease. Tenant agrees that it will
remain liable for Rentals from and after any action by Landlord under a
Proceeding Against Tenant Holding Over, or Distress Warrant, whether or not
Tenant retains the right to possession of the Premises.
13. ASSIGNMENT AND SUBLETTING
(a) Tenant may not, without the prior written consent of Landlord endorsed
hereon, assign this Lease or any interest thereunder, or sublet Premises or any
part thereof, or permit the use of Premises by any party other than Tenant.
Landlord shall not unreasonably withhold said consent. Consent by Landlord to
one assignment or sublease shall not destroy or waive this provision, and all
later assignments and subleases shall likewise be made only upon prior written
consent of Landlord. Sublessees or assignees shall become liable directly to
Landlord for all obligations of Tenant hereunder without relieving Tenant's
liability. Tenant shall notify Landlord of Tenant's intent to sublease or assign
this Lease, and Landlord shall within thirty (30) days from receipt of such
notice (i) consent to such proposed subletting, or (ii) refuse such consent, or
(iii) elect to terminate this Lease. In the event of Landlord's election to
terminate, Tenant shall have ten (10) days from receipt Of Such notice in which
to notify Landlord of Tenant's acceptance of such termination or Tenant's desire
to remain in possession of Premises under the terms and conditions and for the
remainder of the Term of this Lease. In the event Tenant fails to so notify
Landlord of Tenant's election to accept termination or to continue as Tenant
hereunder, such failure shall be deemed an election to terminate and such
termination shall be effective as of the end of the 10-day period provided for
in Landlord's notice as hereinabove provided. In the event this Lease is either
terminated or a sub-lease or assignment is made as herein provided, Tenant shall
pay Landlord all actual and reasonable legal and accounting services required in
order to accomplish such termination, assignment, or subletting.
(b) If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, U.S.C. Section 101 et seq. (The "Bankruptcy
Code"), any and all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly paid
to or turned over to Landlord. If sublet rental exceeds the monthly rent set
forth in paragraph 2, fifty percent (50%) of the profit shall go to the
Landlord.
(c) If Tenant or any trustee of Tenant assumes this Lease and Tenant or any
trustee of Tenant proposes to assign the same pursuant to the provisions of the
Bankruptcy Code to any person or entity who shall have made a bona fide offer to
accept an assignment of this Lease on terms acceptable to Tenant, then notice of
such proposed assignment, setting forth (i) the name and address of such person
or entity, (ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such person's or entity's
future performance under this Lease, including, without limitation, the
assurance referred to in Section 365(b)(3) of the Bankruptcy Code, shall be
given to Landlord by Tenant no later than twenty (20) days after receipt by
Tenant, but in any event no later than Ten (10) days prior to the date that
Tenant shall make application to a court of competent jurisdiction for authority
and approval to enter into such assignment and assumption, and Landlord shall
thereupon have the prior right and option, to be exercised by notice to Tenant
given at any time prior to the effective date of such proposed assignment, to
accept an assignment of this Lease upon the same terms and conditions and for
the same consideration, if any, as the bona fide offer made by such person, less
any brokerage commissions which may be payable out of the consideration to be
paid by such person for the assignment of this Lease.
(d) Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Landlord the instrument evidencing such assignment and an instrument
confirming such assumption.
14. CONDEMNATION
If all or any part of Premises are taken by virtue of eminent domain, and
if the remaining portion of the Premises is thereby rendered untenantable or
unusable for the purposes herein stated, this Lease shall not expire on the date
when the condemnation petition if filed but rather when the condemning authority
takes possession, and any rent paid for any period beyond possession by the
condemning authority shall be repaid to Tenant.
15. INSPECTIONS
Landlord may enter the Premises: (a) with reasonable notice to Tenant and
at reasonable hours to exhibit same to prospective purchasers or tenants; (b) to
inspect the Premises to see that Tenant is complying with all its obligations
hereunder; and (c) to make repairs required of Landlord under the terms hereof
or repairs to any other portion of the Building.
16. SUBORDINATION
Unless any holder or beneficiary of any deed of trust or other security
instrument affecting the real property of which the Premises form a part
otherwise elect in writing, this Lease shall be subject and subordinate to any
such deeds of trust or other security instruments. In confirmation of the
subordination set forth in this Paragraph 16, (or, if any holder or beneficiary
of a deed of trust or other security instrument elects in writing, superiority)
Tenant shall, at Landlord's request, execute and deliver such further
instruments as may be desired by any holder or beneficiary of such deed of trust
or other security instrument.
17. INDEMNITY AND HOLD HARMLESS
Tenant shall indemnify, and hold harmless the Landlord and the Premises, at
Tenant's expense, against: (i) any default by Tenant, or any assignee or
sublessee permitted hereunder; (ii) any act of negligence of Tenant or its
agents, contractors, employees, invitees, guests or licensees; and (iii) all
claims, losses, damages, costs, expenses (including but not limited to
attorney's fees and costs of litigation) or liabilities incurred or suffered by
persons or property by reason of the use or occupancy of the Premises.
18. TENANT'S INSURANCE AND WAIVER OF SUBROGATION
Tenant shall carry fire and extended coverage insurance insuring its
interest in Tenant's improvements in the Premises and its interest in its office
furniture, equipment, supplies and other personal property, and Tenant hereby
waives any right of action against Landlord for loss or damage to its
improvements, fixtures or personal property in the Premises.
Tenant agrees to purchase at its own expense and to keep in force during
the term of this Lease a policy or policies of worker's compensation and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of Five
Hundred Thousand Dollars ($500,000.00) for property damage, and One Million
Dollars ($1,000,000.00) per occurrence for personal injuries or deaths of
persons occurring in or about the premises. Said policies shall: (i) name
Landlord as an additional insured and insure Landlord's contingent liability
under this Lease (except for the worker's compensation policy, which shall
instead include waiver of subrogation endorsement in favor of Landlord), (ii) be
issued by an insurance company which is acceptable to Landlord and licensed to
do business in the State of Georgia, and (iii) provide that said insurance shall
not be cancelled unless thirty (30) days prior written notice shall have been
given to Landlord. Said policy or policies or certificates thereof shall be
delivered to Landlord by Tenant upon commencement of the term of the Lease and
upon each renewal of said insurance.
19. REMEDIES CUMULATIVE
The rights given to Landlord herein are in addition to any rights that may
be given to Landlord by statute or under law.
20. HOLDING OVER
If Tenant remains in possession after expiration of the Term with
Landlord's acquiescence and without any distinct agreement between the parties,
Tenant shall be a tenant at will and such tenancy shall be subject to all the
provisions hereof, except that the Monthly Rental shall be the amount agreed
upon between Tenant and Landlord. If no such agreement is reached prior to the
expiration of the term, then the Monthly Rental shall be equal to two hundred
percent (200%) of the Monthly Rental specified in Paragraph 2 hereof and there
shall be no renewal of this Lease by operation of law. Nothing in this Paragraph
shall be construed as a consent by Landlord to the possession of the Premises by
Tenant after the expiration of the Term.
21. ENTIRE AGREEMENT - NO WAIVER
This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein, shall be of any force or effect. The failure of
either party to insist in any instance on strict performance of any covenant or
condition hereof, or to exercise any option herein contained, shall not be
construed as a waiver of such covenant, condition or option in any other
instance. This Lease cannot be modified or terminated orally.
22. HEADINGS
The headings in this Lease are included for convenience only and shall not
be taken into consideration in any construction or interpretation of this Lease
or any of its provisions.
23. NOTICES
(a) Any notice by either party to the other shall be valid only if in
writing and shall be deemed to be duly given only if delivered personally or
sent by registered or certified mail, return receipt requested addressed (i) if
to Tenant, at the Premises and (ii) if to Landlord, at Landlord's address set
forth above, or at such other address for either party as that party may
designate by notice to the other. Notice shall be deemed given, if delivered
personally, upon delivery thereof, and if mailed in accordance with the terms of
this Paragraph 23, upon the mailing thereof.
(b) Tenant hereby appoints as its agent to receive service of all
dispossessory or distraint proceedings, any employee of Tenant who may be
present at Premises at the time of said service of process; and if there is no
person occupying same, then such service may be made by attachment thereof on
the main entrance of the Premises.
24. HEIRS AND ASSIGNS - PARTIES
(a) Subject to the provisions of Paragraph 13 hereof, the provisions of
this Lease shall bind and inure to the benefit of Landlord and Tenant, and their
respective successors, heirs, legal representatives and assigns, it being
understood that the term "Landlord" as used in this Lease, means only the owner
or the lessee for the time being of the land and the Building of which the
Premises are a part, so that in the event of any sale or sales of said property
or of any lease thereof, the Landlord named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder accruing thereafter, and it shall be deemed without further agreement
that the purchaser, or the lessee, as the case may be, has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder during the
period such party has possession of the land and the Building. Should the land
and the building be severed as to ownership by sale and/or lease, then the owner
of the building or lessee of the Building that has the right to lease space in
the building to tenants shall be deemed the Landlord. Tenant shall be bound to
any such succeeding party landlord for performance by Tenant of all the terms,
covenants, and conditions of this Lease and agrees to execute any attornment
agreement not in conflict with the terms and provisions of this Lease at the
request of any such succeeding landlord.
(b) The terms "Landlord," "Tenant," and "Agent" and pronouns relating
thereto, as used herein, shall include male, female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
25. ATTORNEY'S FEES
If any amounts owing under this Lease are collected, directly or
indirectly, by or through an attorney at law, Tenant shall pay as Additional
Rent all actual and reasonable attorney's fees. Tenant shall also pay all
attorney's fees incurred by Landlord as a result of any breach or default by
Tenant under this Lease.
In the event any action or proceeding is brought to enforce any term,
covenant or condition of this Lease on the part of, Landlord or Tenant, the
prevailing party in such litigation shall be entitled to reasonable attorney's
fees awarded by the court in such action or proceeding.
26. ALTERATIONS REQUIRED BY LAW
If, because of the nature of Tenant's use or occupancy of the Premises, any
addition, alteration, change, repair or other work of any nature, structural or
otherwise, shall be required or ordered or become necessary at any time during
the Term because of any law, or governmental regulation now or hereafter in
effect, or any order or decree of any court, the entire expense thereof,
irrespective of when the same shall be incurred or become due, shall be the sole
liability of Tenant, and Landlord shall not contribute thereto.
27. TIME OF ESSENCE
Time is of the essence of this Lease.
28. STANDARD TENANT ALLOWANCE
Landlord shall at its own expense provide those items in Exhibit "B"
attached hereto and hereby made a part hereof. Any and all costs above the
Standard Tenant Allowance set forth in Exhibit "B" shall be the sole
responsibility of Tenant and paid by Tenant prior to occupancy.
29. PARKING ARRANGEMENTS
Tenant shall have the right to use in common with the other Tenants in the
Building the parking spaces provided by Landlord adjacent to the Building for
parking of Tenant's automobiles and those of its employees and visitors, subject
to the rules and regulations now or hereafter adopted by Landlord. Tenant shall
not use nor permit any of its employees, agents or visitors to use any parking
spaces in an area owned by Landlord other than the parking area assigned to the
Building. If Landlord deems it advisable, Landlord may set aside a part of the
total parking field for use as a separate area for visitors. Landlord reserves
the right to adopt any regulations necessary to curtail unauthorized parking,
including the required use of parking permits or assigning to Tenant a specific
area in which Tenant's employees shall be required to park. Tenant anticipates
that it shall require the amount of parking spaces stipulated in the Basic Lease
Information for its employees and parking in excess of that number shall not be
permitted without Landlord's approval. If such approval is granted that parking
shall be in such quantities and at such locations as Landlord may designate.
30. RULES AND REGULATIONS
(a) The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by Tenant or used by it for purposes other
than those of ingress and egress. The floors, skylights and windows that reflect
or admit light into any place in the Building shall not be covered or obstructed
by Tenant in anyway. The water closets and other water apparatus shall not be
used for any other purpose than those for which they were constructed, and no
sweeping, rubbish, or other obstructing substances shall be thrown therein.
(b) Landlord reserves the right to approve Tenant's moving arrangements,
including but not limited to, requiring that the delivery and removal of
Tenant's possessions to and from the Premises be performed before or after the
building's normal business hours as provided in Paragraph 8 hereof.
(c) No advertisement, sign or other notice shall be inscribed, painted or
affixed on any part of the outside or inside of the Building, except upon the
interior doors as permitted by Landlord, which signs shall be of such order,
size and style, and at such places as shall be designated by Landlord. Signs on
Tenant's entrance doors will be provided for Tenant by Landlord, the cost of the
signs to be charged to and paid for by Tenant. Blinds furnished by Landlord
shall be used to give uniform color exposure through exterior windows. Landlord
at Landlord's sole discretion may furnish blinds for those windows facing onto
the Building atrium or common areas. No painting shall be done, nor shall any
alterations be made to any part of the Building by putting up or changing any
partitions, doors, or windows, nor shall there by any nailing, boring, or
screwing into the woodwork or plastering, nor shall any connection be made to
the electric wires or electric fixtures without the consent in writing on each
occasion of Landlord. All glass, locks and trimmings in or upon the doors and
windows of the Building shall be kept whole and shall not be changed without
Landlord's approval and, when any part thereof shall be broken, the same shall
be immediately replaced or repaired at Tenant's expense and put in order under
the direction and to the satisfaction of the Landlord, and shall be left whole
and in good repair. Tenant shall not injure, or overload or deface the building,
the woodwork or the walls of the Premises, nor carry on upon the Premises any
noxious, noisy or offensive business. Tenant shall not (without Landlord's
written consent) install or operate any computer, duplicating or other large
business machine, equipment, or any other machinery upon the Premises or carry
on any mechanical business thereon. If Tenant requires any interior wiring such
as for a business machine, intercom, printing equipment or copying equipment,
such wiring shall be done by the electrician of the Building only, and no
outside wiring men shall be allowed to do work of this kind unless the written
permission of Landlord is obtained. If telegraphic or telephonic service is
desired, the wiring for same shall be done as directed by the electrician of the
Building or by some other employee of Landlord who may be instructed by the
superintendent of the Building to supervise same, and no boring or cutting for
wiring shall be done unless approved by Landlord.
(d) Landlord in all cases retains the right to approve the weight per
square foot and position of heavy articles including, but not limited to, iron
safes, files, storage shelving, printing equipment, computer and duplicating
equipment or air compressors. Tenant must make arrangements with the
superintendent of the Building when the elevator is required for the purpose of
carrying any kind of freight.
31. RIGHT TO RELOCATE
If this Lease is for an area of three thousand (3,000) rentable square feet
or less, Landlord shall have the right at anytime during the Term upon giving
Tenant not less than sixty (60) days prior written notice, to provide and
furnish Tenant with space of approximately the same size as the Premises at
another location in the property and remove and place Tenant in such space, with
Landlord to pay all reasonable costs and expenses incurred as a result of such
relocation of Tenant. Should Tenant refuse to permit Landlord to move Tenant to
such new space at the end of said sixty (60) day period, Landlord shall have the
right, in addition to any and all other rights that Landlord may have, to cancel
and terminate this Lease effective ninety (90) days from the date of original
notification by Landlord. If Landlord moves Tenant to such new space, this Lease
and each and all of its terms, covenants and conditions shall remain in full
force and effect and be deemed applicable to such new space, and such new space
shall thereafter be deemed to be the Premises as though Landlord and Tenant had
entered into an express written amendment of this Lease with respect thereto.
32. RIGHTS RESERVED TO LANDLORD
Landlord reserves the following rights:
(a) to name the Building and to change the name or street address of the
Building;
(b) to install and maintain a sign or signs on the exterior of the
Building;
(c) to designate all sources furnishing sign painting and lettering,
vending machines, mobile vending services, and like services used on the
Premises or in the Building;
(d) to constantly have pass keys to the Premises;
(e) on reasonable prior notice to Tenant, to exhibit the Premises to
prospective tenants during the last twelve (12) months of the Term and to any
prospective purchaser, tender, mortgagee, or assignee of any mortgage or other
security instrument on the real property of which the Premises form a part and
to others having a legitimate interest at any time during the Term;
(f) at any time in the event of an emergency, and otherwise at reasonable
times, to take any and all measures, including inspections, repairs,
alterations, additions and improvements to the Premises or to the Building, as
may be necessary or desirable for the safety, protection or preservation of the
Premises or the Building or the Landlord's interest therein, or as may be
necessary or desirable in the operation or improvement of the Building or in
order to comply with all laws, orders and requirements of any governmental or
other authority;
(g) to install vending machines of all kinds in the Premises, and to
provide mobile vending service therefor, arid to receive all of the revenue
derived therefrom; provided, however, that no vending machines shall be
installed by Landlord in the Premises nor shall any mobile vending service be
provided therefor, unless Tenant so requests;
(h) for so long as Tenant is not in default hereunder, to grant Tenant a
non-exclusive revocable license to use and occupy in common with others so
entitled, the common areas of the Building, including, but not limited to,
corridors. stairways, elevators, restrooms, lobbies, entranceways, parking
areas, service roads, loading facilities, sidewalks, and other facilities as may
be designated from time to time by Landlord subject to the terms and conditions
of this Lease.
33. GOVERNMENTAL ORDERS
Except as otherwise provided in Paragraph 26 or subparagraph 7(g) hereof,
in the event Landlord, during the Term, shall be required by any governmental
authority, or by the order or decree of any court, to repair, alter, remove,
construct, reconstruct, or improve any part or all of the Building or the
Premises, then Such action may be taken by Landlord at its expense, and such
action shall not in any way affect Tenant's obligations under this Lease, and
Tenant waives all claim for injury, damages or abatement of rent because of such
repair, alteration, removal, construction, reconstruction or improvement;
provided, however, that (a) if such action by Landlord shall render the Premises
wholly untenantable, or (b) if in Landlord's judgment such acts cannot be
completed within ninety days (90) days after notice to Landlord to perform such
acts by such governmental authority, then this Lease may, at the option of
Landlord, or, in the event of the occurrence of the untenantability provided for
in (a) above, shall terminate as of the date of said notice to Landlord by such
governmental authority or court, and in such event Tenant shall immediately
surrender the Premises and rent shall be apportioned and be paid up to and
including the date the Premises became wholly untenantable, or the date of
optional termination by Landlord, as the case may be.
34. SEVERABILITY
In the event that any one or more of the provisions, sentences, clauses,
phrases or words of this Lease, and the application thereof in any circumstance,
shall be invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any other such provision, sentence,
clause, phrase or word of this Lease, and the application thereof in other
circumstances, shall not be in any way impaired, it being intended that every
part of this Lease shall be enforceable to the fullest extent provided by law.
35. ARBITRATION
In the event a non-monetary dispute, it is agreed that such dispute shall
be submitted to arbitration in accordance with the rules of the American
Arbitration Association then prevailing. The submission of a dispute to
arbitration shall not suspend any of the obligations of the parties hereunder
and any payments made by Tenant during the pendency of such arbitration are
subject to adjustment at the conclusion of such arbitration. The costs and
expenses of the arbitration shall be borne by the party seeking arbitration
unless the party seeking arbitration is granted the relief or award sought in
which case each party shall bear their own costs and expenses.
36. BROKERAGE COMMISSION
Tenant (except with respect to Broker designated in the Basic Lease
Information) and Landlord (except with respect to Broker designated in the Basic
Lease Information) each represents and warrants to the other that no broker,
agent, commission salesman or other person has represented the warranting party
in the negotiation of this Lease or the procurement of the Premises and that no
commission, fee or compensation of any kind is due and payable in connection
herewith to any broker, agent, commission salesman or other person. Each party
agrees to indemnify and hold the other harmless from and against any claim,
loss, damage, liability, cost and expense (including but not limited to
attorney's fees and cost of litigation) which the other shall suffer, incur or
be threatened with because of the claim of any broker, agent, commission
salesman or other person claiming by, through or under such party, whether or
not such claim is meritorious. Any party listed in parenthesis in the first
sentence of this Paragraph 36, and thus excluded from the above warranty, shall
be entitled to a commission, fee or other compensation only if it has entered
into a separate written agreement with Landlord or Tenant, as the case may be.
37. ABANDONMENT
Tenant shall not vacate or abandon the premises at any time during the
term, and if Tenant shall abandon, vacate, or surrender said premises or be
dispossessed by process of law, or otherwise, any personal property belonging to
Tenant and left on the premises shall, at the option of Landlord, be deemed to
be abandoned and title thereto shall thereupon pass to Landlord.
38. CORPORATE AUTHORITY
If Tenant signs as a corporation, each of the persons executing this Lease
on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in Georgia, that the corporation has full right and authority to enter
into this Lease, and that each and both of the persons signing on behalf of the
corporation were authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing covenants and warranties.
39. ESTOPPEL CERTIFICATES
Within ten (10) days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord an Estoppel
Certificate indicating thereon any exceptions thereto which may exist at that
time.
Failure of the Tenant to execute and deliver such certificate shall
constitute an acceptance of the premises and acknowledgement by Tenant that the
statements are true and correct without exception. Landlord and Tenant intend
that any statement delivered pursuant to this paragraph may be relied upon by
Land lord or by any mortgagee, beneficiary, purchaser or prospective purchaser
of the Building or any interest therein or anyone to whom Landlord may provide
said certificate.
40. COUNTERPARTS
This Lease may be executed in two or more counterparts, each of which shall
constitute an original, but when taken together shall constitute but one Lease.
Each counterpart shall be effective if it bears the signatures of all parties
hereto: or so many counterparts as shall contain all of the signatures of the
parties hereto shall constitute one Lease, and shall be effective as such.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals, as
of the day and year first above written.
Signed, sealed and delivered Tenant: Direct Mortgage Partners,
in the presence of: Inc., a corporation of the State
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of Delaware d/b/a Bankers
---------------------------- Direct Mortgage
Witness
/s/ ▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
--------------------------- ----------------------------
Notary Authorized Signaure
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: EVP
Attest: /s/▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(SEAL)
------------------------------
Title: Chairman Director
Signed, sealed and delivered Landlord: ▇▇▇▇▇ Palisades,
in the presence of: L.L.C., a Georgia limited
/s/ liability company
----------------------------- By: ▇▇▇▇▇ PROPERTIES, INC.
Witness Manager
/s/ By: /s/▇▇▇▇▇ Properties, Inc.(SEAL)
Notary Public --------------------------
Title: EVP
Attest:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
---------------------------------
Title: Vice President & Secretary
EXHIBIT B
STANDARD TENANT ALLOWANCE
Exhibit "B" to the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited
liability company, and Direct Mortgage Partners, Inc., a corporation of the
State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
Landlord will, at its expense, construct improvements to the portion of the
Premises outlined in Exhibit A which shall be limited to standard carpet, paint,
rekeying the lock and standard signage at the entrance door to the Premises.
Prior to February 1, 1998, Landlord will, at its expense, construct improvements
to the portion of the Premises outlined in Exhibit A-1 based on plans to be
drawn by ▇▇▇▇▇▇▇▇ Associates at Landlord's direction. The combined construction
cost of the entire Premises (that which is outlined in both Exhibit A and
Exhibit A-1) shall not exceed $18,140.00. If the cost to construct such
improvements exceeds such amount, such excess cost shall be paid by Tenant to
Landlord upon construction completion. Final construction documents shall be
approved by Landlord and Tenant prior to construction commencement.
All preliminary construction documents required to achieve Tenant's occupancy
shall be paid for by Landlord outside of the improvement allowance outlined
above.
EXHIBIT C
SPECIAL STIPULATIONS
To the extent the following Special Stipulations conflict with the other terms
of this Lease, the Special Stipulations shall control.
Exhibit "C" to the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited
liability company, and Direct Mortgage Partners, Inc., a corporation of the
State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
41. BROKER DISCLOSURE
Pursuant to Georgia Real Estate Commission Regulation 520-1-08 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Company and ▇▇▇▇▇ Marketing Company make the following disclosures concerning
this Lease transaction:
A. In this transaction, ▇▇▇▇▇ Marketing Company represents Landlord and not
Tenant.
B. In this transaction, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company represents Tenant and not
Landlord.
C. In this transaction, both ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Company and ▇▇▇▇▇
Marketing Company shall receive their compensation from Landlord
exclusively.
Both Tenant and Landlord acknowledge, agree with and consent to the
representation and compensation disclosed above.
42. EXPANSION OF PREMISES
Tenant shall occupy Suite 375 (3,106 RSF) from November 1, 1997 through January
31, 1997 at which time Tenant shall expand into the contiguous space in Suite
380 (1,429 RSF). The combined square footage for both suites equates to the
total square footage for the entire Premises. The Rental Schedule outlined on
Page 1i includes the total rental due for both suites through the Term of the
Lease.
43. CONTINGENCY
This Lease shall be contingent upon the Landlord and existing Tenant reaching a
mutually acceptable termination of their existing lease for the Premises.
44. GUARANTY OF LEASE
Simultaneous with the execution of this Lease, Landlord and CR Mortgage, Inc., a
Delaware Corporation agree to enter into that certain Guaranty of Lease attached
hereto as Exhibit "E" and hereby made a part hereof. Such Guaranty of Lease is
referenced and attached hereto, because Landlord requires, as a condition
precedent to its execution of the Lease, that Guarantor (as defined therein)
guaranty the full performance of the obligations of Tenant under the Lease,
subject to the terms of such Guaranty of Lease.
45. ENVIRONMENTAL MATTERS
(a) Tenant and Landlord each covenant to the other that they will not
knowingly cause or permit any "Hazardous Wastes" (as hereinafter defined) to be
brought upon, disposed on or stored in or on the Premises or Building
respectively or any "Hazardous Material" (as hereinafter defined) to be released
in, on or about the Premises or Building and that it will comply with any and
all applicable laws, ordinances, rules, regulations and requirements respecting
the presence, use or release of Hazardous Materials in, on or about the
Premises, or Building respectively.
(b) Tenant and Landlord each covenant to the other that it will immediately
notify the other, in writing, of any existing, pending or threatened (i)
investigation, inquiry, claim or action by any governmental authority in
connection with any "Environmental Laws" (as hereinafter defined); (ii) third
party claims; (iii) regulatory actions; and/or (iv) contamination of the
Premises.
(c) Tenant or Landlord shall, at its own expense, investigate, monitor,
remediate, and/or clean up any Hazardous Material, Hazardous Waste, or other
environmental condition on, about, or under the Premises or Building,
respectively required as a result of Tenant's or Landlord's use or occupancy of
the Premises or Building.
(d) Tenant covenants that it shall keep the Premises free of any lien
imposed pursuant to any Environmental Laws.
(e) Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, judgments, damages, penalties, fines, costs
(including, without limitation, attorney's fees and court costs), liabilities or
losses (collectively, hereinafter referred to as the "Tenant Indemnified
Claims") resulting from (i) the presence of Hazardous Wastes in or about the
Premises (other than Hazardous Wastes present as of the date of this Addendum to
Lease which are covered by Landlord's indemnity in subparagraph ((f) below) or
the release of Hazardous Materials in, on or about the Premises on or after the
date of this Addendum to Lease, except to the extent that the Tenant Indemnified
Claims are caused by Landlord, its agents, employees or contractors, and (ii)
any Hazardous Waste placed or any Hazardous Materials released elsewhere in the
Project by Tenant, its agents, invitees, employees and contractors.
Landlord shall indemnify, defend and hold Tenant harmless from and against
any Landlord Indemnified Claims resulting from the presence of Hazardous Wastes
in or on the Premises as of the date of this Addendum to Lease or the release of
Hazardous Materials in or on the Premises prior to the date of this Addendum to
Lease, except to the extent that the Landlord Indemnified Claims are caused by
Tenant, its agents, employees, invitees or contractors.
(g) The provisions of these Environmental Matters shall survive the
expiration or termination of the Lease.
(h) Landlord represents that, to the best of the knowledge of the
individual(s) executing this lease on behalf of Landlord, no "Hazardous Waste"
as said term is defined in the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. ss.6901 et. seq. (hereinafter referred to as "RCRA"), has
been brought upon, disposed or stored in or on the premises, and no hazardous
material as hereinafter defined has been released in or on the Premises.
(i) For the purposes of the Lease, the term "Hazardous Material" is defined
to include those matters described in the Comprehensive Environmental Response
Compensation and Liability Act, as amended, 42 U.S.C. ss.9601 et. seq.
(hereinafter referred to as "CERCLA"). As used herein the term "Hazardous
Materials" shall also mean (i) asbestos, or any substance containing asbestos;
(ii) polychlorinated biphenyls; (iii) lead; (iv) radon; (v) pesticides; (vi)
petroleum or any other substance containing hydrocarbons; (vii) any substance
which, when on the Premises, is prohibited by any Environmental Laws; and (viii)
any other substance, material or waste which, (1) by any Environmental Laws
requires special handling or notification of any governmental authority in its
collection, storage, treatment, or disposal, or (2) is defined or classified as
hazardous, dangerous or toxic pursuant to any legal requirement.
For purposes of the Lease, "Environmental Laws" shall mean: any and all federal,
state and local laws, statutes, codes, ordinances, regulations, rules or other
requirements relating to human health or safety, or to the environment,
including, but not limited to, those applicable to the storage, treatment,
disposal, handling and release of any Hazardous Waste or Hazardous Materials,
all as amended or modified from time to time.
EXHIBIT "D"
DEFINITION OF OPERATING EXPENSES
Exhibit "D" to the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited
liability company, and Direct Mortgage Partners, Inc., a corporation of the
State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
DEFINITIONS
(a) Operating Expenses:
"Operating Expenses" are those costs attributable in whole or in part to
the Project which are to be paid by Tenant as Additional Rent as set forth in
Paragraph * of this Lease.
Operating Expenses as used in the Lease shall consist of the following
components (all of which are defined below): (i) Real Estate Taxes; and (ii)
Operating Costs.
(i) Real Estate Taxes:
Real Estate Taxes (or "Taxes") shall mean all general property
taxes (whether real or personal) and all special and general
assessments which may be levied during the Term upon the
Building and the land upon which the Building is located (or
any part thereof) of which the Premises are a part. Real
Estate Taxes shall also include all costs of contesting any
Real Estate Taxes or the valuation of the Project. Real Estate
Taxes shall not include water or sewer connection or tap-in
charges or any penalties incurred for any late payment, unless
caused directly or indirectly, by Tenant.
In the event such Taxes are eliminated or reduced by any federal, state, or
municipal body or governmental agency having jurisdiction thereof, and another
tax is imposed by way of substitution for (or in addition thereto) all or any
part of such Taxes, then such substituted (or additional) tax shall be included
as Taxes under the Lease.
For the purpose of calculating Additional Rent, Taxes shall be attributable
to the Lease Year or the calendar year (depending on the applicable provisions
of the Lease) in which they first become due and payable.
(ii) Operating Costs:
"Operating Costs," as that term is used herein, shall consist of all
reasonable, actual expenses and costs (but excluding specific charges separately
billed or chargeable to specific tenants) of every kind and nature which
Landlord shall pay or incur because of or in connection with the ownership,
maintenance and operation of the Building, computed on an accrual basis and
determined in accordance with generally accepted accounting principles
consistently applied.
a. Operating Costs shall include, but not be limited to, the following:
i. Wages, salaries, fringe benefits, workers compensation and other such
governmental charges and other direct and indirect costs of all personnel
engaged in the operation, maintenance, security and access control of the
Building;
ii. Cost of all supplies, tools, equipment and materials, whether purchased
or leased, used in the operation and maintenance of the Building;
iii. Cost of utilities for the Building, including, but not limited to, the
cost of electricity, water, sewer, gas, and the cost of power for heating,
lighting, air conditioning and ventilating the Building;
iv. Management fee cost recovery ("Management Fee Cost Recovery") equal to
three percent (3%) of the sum of Tenant's Annual Base Rental (excluding any
abatement of Base Rental granted to Tenant in this Lease) and Estimated
Operating Expenses;
v. Cost of all maintenance and service agreements for the Building and the
equipment therein, including, without limitation, alarm service, security
service, access control, parking areas, window cleaning, Page 2 of Exhibit "D"
to the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited liability
company, and Direct Mortgage Partners, Inc., a corporation of the State of
Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997, janitorial
service, landscape maintenance, trash removal, air conditioning and heating
service and maintenance, and elevator and escalator maintenance;
vi. Cost of accounting and other professional services only to the extent
such costs are incurred directly in connection with Operating Costs, including
the costs of audits by certified public accountants;
vii. Cost of all insurance, including but not limited to, fire, casualty,
liability, and rent loss insurance applicable to the Building and Landlord's
personal property used in connection therewith (but only such personal property
as is actually used in connection with the operation, maintenance and access
control of the Building), plus the cost of all deductible payments made by
Landlord in connection therewith;
viii. Cost of repairs, replacements and general maintenance to the Building
including the parking areas;
ix. Cost of any and all common area maintenance related to public areas,
including sidewalks and landscaping on the Building;
x. Costs of licenses, permits and inspection fees related to the Building;
xi. Amortization of the cost, together with reasonable financing charges,
(or depreciation of the cost, if not financed) of furnishing and installing any
system, apparatus, device, equipment, or other Building improvement which
Landlord in good faith believes will actually accomplish the purpose of A)
reducing Operating Costs, B) promoting safety, or C) meeting requirements of
governmental authorities; all such costs shall be amortized over the reasonable
life of such items in accordance with generally accepted accounting principles
(in no event to extend beyond the reasonable remaining life of the Building);
xii. Any other expense which under generally accepted accounting principles
would be considered a reasonable maintenance or operating expense.
b. Operating Costs shall not include:
i. Expenses for any capital replacements or improvements; except as
described in (a) (ii) a. xi;
ii. Costs of special services rendered to individual tenants for which a
special charge is made;
iii. Interest and principal payments on loans or indebtedness secured by
the Building;
iv. Costs of improvements for other tenants of the Building;
v. Legal fees, brokerage commissions, advertising costs, or other related
expenses incurred by Landlord in connection with the leasing of space to
individual tenants in the Building;
vi. Repairs, alterations, additions, improvements, or replacements made to
rectify or correct any defect in the original design, materials or workmanship
of the Building or common areas;
vii. Damage and repairs attributable to fire or other casualty; excluding
insurance deductibles, however said exclusion shall not exceed more than one
$10,000 deductible per calendar year;
Page 3 of Exhibit "D" to the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia
limited liability company, and Direct Mortgage Partners, Inc., a corporation of
the State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
viii. Damage and repairs necessitated by the gross negligence or willful
misconduct of Landlord, or its employees, contractors or agents;
ix. Executive salaries or salaries of service personnel to the extent that
such service personnel perform services not in connection with the management,
operation, repair or maintenance of the Building;
x. Landlord's general overhead expenses not related to the Building;
xi. Legal fees, accountants' fees and other expenses incurred in connection
with disputes with tenants or other occupants of the Building or associated with
the enforcement of the terms of any leases with tenants or the defense of
Landlord's title to or interest in the Building or any part thereof;
xii. Costs (including permit, license and inspection fees) incurred in
renovating or otherwise improving, decorating or painting, or altering space for
individual tenants or vacant space in the Building;
xiii. Costs incurred due to a violation by Landlord or any other tenant of
the Building of the terms and conditions of a lease;
xiv. Any other expense which, under generally accepted accounting
principles, would not be considered a reasonable maintenance or operating
expense; and
xv. Expenses for repair, replacements and general maintenance paid by the
proceeds of insurance or by Tenant or third parties, or through condemnations
awards.
EXHIBIT "E"
Exhibit "E" to the Lease between ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited
liability company, and Direct Mortgage Partners, Inc. Inc., a corporation of the
State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
GUARANTY OF LEASE
In order to induce ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited liability company,
whose principal place of business and mailing address is ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter
referred to as "Landlord"), to execute and enter into that certain Lease, of
even date herewith (hereinafter referred to as the "Lease"), with, a sole
proprietor, having its principal place of business and mailing address at ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter
referred to as "Tenant"), the undersigned CFI Mortgage, Inc., a Delaware
corporation (hereinafter referred to as "Guarantor"), hereby guarantees the full
performance of, and agrees to perform or cause to be performed, each and all of
the terms, covenants and conditions of the Lease on the part of Tenant to he
kept and performed, including the payment of all rental, reimbursables and other
amounts provided therein. Guarantor and Landlord further agree as follows:
1. That this Guaranty of Lease is an absolute and unconditional Guaranty of
payment and of performance without regard to the validity, regularity, or
enforceability of any obligation of Tenant and regardless of any law,
regulation, or decree now or hereafter in effect which might in any manner
affect the obligations of Tenant, any rights of Landlord, or cause or permit to
be involved any alteration of time, amount, currency, or manner of payment of
any of the obligations hereby guaranteed;
2. That this Guaranty of Lease will continue unchanged by any bankruptcy,
reorganization or insolvency of Tenant or of Tenant's successors or assigns or
by any disaffirmance of abandonment by a trustee of Tenant;
3. That Landlord may assign this Guaranty of Lease in whole or in part;
however, Landlord shall give notice to Tenant and Guarantor that such assignment
has been made, but the failure of Landlord to give such notice shall not affect
the validity hereof or of the assignment;
4. Should any litigation be commenced between the parties hereto concerning
this Guaranty of the rights or duties or either in relation thereto, the party
prevailing in such litigation shall be entitled, in addition to such other
relief as may be granted, to a reasonable sum as and for its attorney's fees in
such litigation which shall be determined by the Court;
5. That the terms and provisions of this Guaranty of Lease shall be binding
upon and inure to the benefit of the heirs, legal representatives and assigns of
the parties hereto;
6. That if for any reason any of the provisions hereof are or become
unenforceable or ineffective, all the remaining provisions shall be and remain
in full force and effect;
7. That this Guaranty of Lease shall be governed by and construed in
accordance with the laws of the State of Georgia. Guarantor submits to the
jurisdiction of the courts of the State of Georgia and agrees that notice of
service of process may be made on Guarantor by certified or registered mail,
postage prepaid, addressed at the addresses shown below following Guarantor's
signatures, or at such other address as such Guarantor may designate from time
to time by written notice to Landlord;
8. Landlord agrees that, on default by Tenant under the Lease, upon giving
written notice of such default to Tenant, Landlord shall simultaneously furnish
Guarantor with a copy of such notice. Landlord may, at its option, bring a
separate action or actions against Guarantor whether or not an action is brought
against Tenant and whether or not Tenant is joined in any such action.
Page 2 of Exhibit "E" to the ▇▇▇▇▇ Palisades, L.L.C., a Georgia limited
liability company, and Direct Mortgages Partners, Inc., a corporation of the
State of Delaware, d/b/a Bankers Direct Mortgage, dated October 20, 1997.
IN WITNESS WHEREOF, Guarantor and Landlord have executed these presents the day
of October, 1997.
Signed, Sealed and delivered in GUARANTOR: CFI Mortgage, Inc.,
the presence of: a Delaware Corporation
/S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Witness By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
/S/ ▇▇▇ ▇▇▇▇▇▇
Notary Public Address of Guarantor:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attest: /s/
Title: Chairman
Signed, Sealed and delivered in LANDLORD: ▇▇▇▇▇ Palisades,
the presence of: L.L.C., a Georgia limited
liability company
/S/
Notary Public By: ▇▇▇▇▇ PROPERTIES, INC.
Manager
/S/ By: /S/ ▇▇▇▇▇ Properties, Inc.
Witness Title: Executive Vice President
ATTEST: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary