Georgia-Alpharetta-950 Northpoint Parkway Lease - Windward Forest Partners LLC and NetBank Inc.
WINDWARD FOREST LEASE
Table of Contents
Page Number
1. Premises......................................................3
2. Term..........................................................3
3. Completion of Improvements....................................3
4. Possession....................................................4
5. Rental........................................................4
6. Security Deposit..............................................6
7. Reserved......................................................7
8. Use of Premises...............................................7
9. Tenant's Acceptance...........................................7
10. Assignment and Subletting...................................7
11. Holding Over................................................8
12. Alterations and Improvements................................9
13. Alterations Required by Law.................................9
14. Repairs to the Premises.....................................9
15. Landlord's Right to Enter Premises..........................9
16. Default and Remedies.......................................10
17. Landlord's Services........................................13
18. Parking....................................................14
19. Window Dressings...........................................14
20. Telephone Service..........................................14
21. Destruction of Premises....................................14
22. Omitted....................................................14
23. Condemnation...............................................15
24. Governmental Orders........................................15
25. Insurance..................................................15
26. Waiver of Subrogation......................................15
27. No Estate in Land..........................................16
28. Indemnity..................................................16
29. Tenant's Environmental Covenants...........................16
30. Liability of Landlord......................................17
31. Limitation of Liability....................................17
32. No Waiver of Rights........................................17
33. Entire Agreement and Exhibits..............................17
34. Notices....................................................17
35. Successors and Assigns: Attornment........................18
36. Subordination..............................................18
37. Estoppel Certificate.......................................18
38. Time is of the Essence.....................................19
39. Captions: Governing Law...................................19
40. Definitions................................................19
41. Severability...............................................19
42. Rules and Regulations......................................19
43. Special Stipulations.......................................19
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44. Brokerage Commission.......................................19
45. Removal of Personal Property...............................20
46. Signage....................................................20
47. Coring of Floor............................................20
48. Effect of Termination of Lease.............................20
49. Rights Cumulative..........................................20
50. Force Majeure..............................................20
51. Tenant Corporation, Partnership or Individual..............20
52. Submission of Lease........................................21
Signature Page....................................................22
Special Stipulations..............................................23
Rules and Regulations.............................................27
Exhibit A.........................................................32
Exhibit B.........................................................33
Exhibit B-1.......................................................42
Exhibit C.........................................................43
Exhibit D.........................................................45
Exhibit D-1.......................................................47
Exhibit E.........................................................48
Exhibit F.........................................................52
Exhibit G.........................................................53
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WINDWARD FOREST
Net Bank, Inc. / Windward Forest L.L.C.
THIS LEASE AGREEMENT (hereinafter called "Lease") is made this 15th day of
September, 1997, by and between WINDWARD FOREST PARTNERS, LLC, (hereinafter
called "Landlord"); and Net Bank, Inc. (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"),
containing approximately 7,480 square feet, known as Suite No. 350 in WINDWARD
FOREST located in the City of Alpharetta, Fulton County, Georgia (hereinafter
called "Building") and being further known as 950 Northpoint Parkway Alpharetta,
Georgia 30005, and being a portion of that property described in Exhibit "F" of
this Lease. The attached floor plan (Exhibit "A") represents an approximation of
the Premises to be leased pursuant to this Lease.
2. TERM. The term of this Lease shall be for a period of eighty-four and
one-half (84 1/2) months commencing on January 15, 1998 ("Term Commencement
Date") and ending on January 31, 2005, ("Termination Date") unless sooner
terminated or extended as hereinafter provided (such term being hereinafter
referred to as the "Term").
3. COMPLETION OF IMPROVEMENTS. Landlord agrees to proceed with due
diligence to prepare the Premises in accordance with the Tenant Finish Agreement
attached hereto as Exhibit "B" and in accordance with the terms of this Lease.
The Premises shall be deemed substantially completed and possession delivered
when Landlord has substantially completed the work to be constructed or
installed pursuant to the provisions of the Tenant Finish Agreement, subject
only to the completion of items on Landlord's punch list (and exclusive of the
installation of all telephone and other communications facilities and equipment,
and other finish work to be performed by Tenant) and Landlord has delivered a
Certificate of Occupancy to Tenant. Landlord's punch list shall consist of
details of construction, decoration and mechanical adjustment which, in the
aggregate, are minor in character and do not materially interfere with Tenant's
use or enjoyment of the Premises. Landlord will provide Tenant access to the
Premises fifteen (15) business days prior to the completion of the work to be
constructed by Landlord, for Tenant to install any telephone equipment or other
finish work needed to be installed by Tenant into the Premises. Tenant
acknowledges that any changes (even in "small respects") and including material
substitution to the Drawings and Specifications (as defined in Exhibit "B") for
the Tenant Improvements (as defined in Exhibit "B") may cause, directly or
indirectly, delays in the completion of the Tenant Improvements. Should Landlord
approve any change in the Drawings and Specifications for the Tenant
Improvements requested by Tenant which causes a delay in completion of the
Tenant Improvements beyond the date specified in this Lease for such completion
and Landlord has notified Tenant in advance of any anticipated delays in the
completion of the Tenant Improvements due to changes desired by Tenant, then the
Term Commencement Date under this Lease for Tenant to commence paying Base
Monthly Rental (as hereinafter defined) shall not be extended nor shall the
expiration date of the Term of the Lease be extended by reason of such delay in
completion of the Tenant improvements. Tenant at the time of such requested
change shall pay to Landlord all costs and expenses to be incurred by Landlord
in making the change to the Tenant
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Improvements requested by Tenant. Landlord represents that all work designed by
Landlord shall meet all applicable codes and governmental requirements.
4. POSSESSION. If this Lease is executed before the Premises become ready
for occupancy and Landlord cannot deliver possession of the Premises on the date
of commencement of the Term for any reason other than an omission, delay or
default caused by Tenant, rent shall abate until Landlord can deliver
possession, and Tenant hereby accepts such abatement in full settlement of any
and all claims Tenant may have against Landlord arising from Landlord's
inability to deliver possession at the Term Commencement Date. In the event the
Premises are ready for occupancy prior to the Term Commencement Date of this
Lease and Tenant chooses to occupy the Premises at that time, all terms,
covenants and conditions of this Lease shall be in full force and effect as of
such date. Tenant shall pay a prorated share of the monthly rental payment for
any partial calendar month during which Tenant occupies the Premises. By
occupying the Premises as tenant, Tenant shall be deemed to have accepted the
same and acknowledges that the Premises are in the condition required hereunder,
except for punch list items identified by tenant to Landlord in writing within
fifteen (15) days of occupancy.
5. RENTAL. Tenant shall pay to Landlord by payments to Windward Forest
Partners, LLC at the address for notices in paragraph 34 of this lease, promptly
on the first day of each month in advance, during the Term of this Lease,
without deduction or set off, in legal tender the Base Monthly Rental, as this
term is defined below, and Additional Rent, as this term is defined below.
If the Term commences on a day other than the first day of a month, or
terminates on a day other than the last day of a month, then Base Monthly Rental
and Additional Rent for the first or last partial month shall be prorated based
upon the actual number of days in such month.
(a) Base Monthly Rental. Tenant shall pay to Landlord base monthly rental
payments ("Base Monthly Rental") of $10,440.83 per month (calculated based upon
a rental rate of $16.75 per square foot per annum for the Premises). The total
Base Monthly Rental of $10,440.83 per month is composed of two components: a
component of $2,805.00 per month for certain expenses (the "Expense Component")
(calculated based upon a rental rate of $4.50 per square foot per annum for the
Premises) and a component of $7,635.83 per month for other items (the "Primary
Component") (calculated based upon a rental rate of $12.25 per square foot per
annum for the Premises). Base Monthly Rental shall be increased and adjusted on
January 1 of each year during the Term as follows: Base Monthly Rental shall be
increased, but never decreased, on January 1 of each year during the Term by: an
increase of three percent (3%) of the existing Primary Component (with Base
Monthly Rental calculated by adding the Primary Component as so increased to the
Expense Component).
(b) Additional Rent. The following terms, as defined below, are used in
this subparagraph (b):
(i) "Escalation Year" means each calendar year commencing with
the calendar year in which the commencement date of the Term occurs,
falling in whole or in part, within the Term.
(ii) "Estimated Operating Expense Increase" means the payments
to be made by Tenant to Landlord toward the Operating Expense Increase
in the amounts, and in the manner provided for by this subparagraph
(b).
(iii) "Estimated Operating Statement" means the statement
rendered to Tenant setting forth: (A) Landlord's reasonable estimate of
the projected Operating Expenses
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attributable to the Premises for the then current Escalation Year; (B)
a computation of the Estimated Operating Expense Increase attributable
to the Premises due for the then current Escalation Year; (C) a
computation of the monthly Estimated Operating Expense Increase
installments to be paid by Tenant pursuant to the Estimated Operating
Statement, being one-twelfth (1/12) of the amount determined pursuant
to clause (B) above; and (D) a computation of the amount due Landlord,
or credit due Tenant, in respect of the lapsed months other than
current Escalation Year.
(iv) "Operating Expense Increase" means the amount to be paid
as Additional Rent in accordance with this subparagraph (b).
(v) "Operating Expenses" as defined herein and are
supplemented in their definition in Exhibit "D", include all real
property taxes for the Building and land ("Land") upon which the
Building is located (including but not limited to, ad valorem taxes,
special assessments, and governmental charges) and utility charges
(including, but not limited to water, sewer, gas, electricity, fuel,
light, heat and power bills) incurred in the operation of the Building,
together with all costs to maintain, repair, replace, supervise, operate
and administer the Building and its common areas, parking lots,
landscaping, sidewalks, driveways, and other areas used in common by
tenants and occupants of the Buildings or their guests, visitors,
employees and invitees together with any assessments imposed upon
Landlord pursuant to recorded covenants, conditions, or restrictions to
which the Land or Building may be subject together with the cost of
insurance premiums for fire, extended coverage, public liability and
other insurance which Landlord reasonably deems necessary in connection
with the ownership and operation of the Building or as required by the
holder of any mortgage or deed to secure debt encumbering the Land,
together with all other operating expenses of the Building and the land.
(vi) "Operating Statement" means a statement setting forth:
(A) the actual Operating Expenses attributable to the Premises for an
Escalation Year; (B) a computation of the total actual Operating
Expense Increase attributable to the Premises for such Escalation Year;
(C) an accounting for Estimated Operating Expense Increase payments, if
any, and with respect to such Escalation Year; and (D) the amount of
Operating Expense Increase then payable to Landlord, or the credit in
respect thereof to which Tenant is entitled, for such Escalation Year,
taking into account any increase in the Estimated Operating Expense
Increase payments due Landlord pursuant to the Estimated Operating
Statement rendered with respect to the next Escalation Year, if any.
Operating Expenses shall be the actual Operating Expenses incurred by
Landlord throughout the applicable Escalation Year.
Tenant shall pay to Landlord as additional rent ("Additional Rent") for
each Escalation Year during the Term, the Operating Expenses attributable to the
Premises (based upon the square footage of the Premises as compared to the total
square footage of the Building) for such Escalation Year if and to the extent
the Operating Expenses exceed $4.50 per square foot per annum of the Building
for the applicable Escalation Year. Within one hundred and twenty (120) days
after the expiration of each Escalation Year, Landlord shall furnish Tenant with
an Operating Statement. All amounts shown as due from Tenant on the Operating
Statement for such Escalation Year shall be due from Tenant within thirty (30)
days after the rendering of such Operating Statement.
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Commencing with the first Escalation Year during the Term, Landlord may
render an Estimated Operating Statement for any Escalation Year. If and when so
rendered from time to time, Tenant shall pay to Landlord in advance on the first
(1st) day of each calendar month the monthly Estimated Operating Expense
Increase installments provided for in such Estimated Operating Statement, such
payments to continue until another Estimated Operating Statement is rendered.
Upon the rendering of the Operating Statement for any Escalation Year for which
Estimated Operating Expense Increase installments were paid by Tenant, Tenant
shall, within thirty (30) days thereafter, pay to Landlord the sum of (a) the
excess, if any, of the Operating Expense Increase due for such Escalation Year
over the monthly Estimated Operating Expense Increase installments paid by
Tenant in respect of such Escalation Year, and (b) the excess, if any, of the
Estimated Operating Expense Increase installments due for the current Escalation
Year, as shown on the Estimated Operating Statement, over the Estimated
Operating Expense Increase installments then being paid by Tenant multiplied by
the number of months which shall have elapsed, in whole or in part, since the
commencement of the current Escalation Year. If Tenant's Estimated Operating
Expense Increase installments for the prior or current Escalation Year shall
exceed the Operating Expense Increase due for the prior Escalation Year or the
Estimated Operating Expense Increase due for the current Escalation Year,
respectively, such excess shall be credited against any amount shown due on the
Operating Statement (including the Estimated Operating Statement) and the
balance, if any, shall be credited against the next succeeding installment or
installments of Operating Expense Increase or Estimated Operating Expense
Increase becoming due hereunder; provided, however, that if the Term of this
Lease shall terminate or expire prior to the full application of such credit,
any balance due Tenant shall be refunded to Tenant by Landlord on the date of
such termination or expiration.
For any Escalation Year not wholly falling within the Term, the Operating
Expense Increase shall be determined by annualizing Operating Expenses during
the portion of the Escalation Year falling within the Term and then prorating
the Operating Expense Increase thereby determined, based upon the number of days
of such Escalation Year falling within the Term. The provisions of this
paragraph shall survive the expiration or earlier termination of this Lease.
(b) Late Charge and Past Due Interest. Tenant hereby acknowledges that if
any monthly payment of Base Monthly Rental or Additional Rent or any other
monies due hereunder from Tenant shall not be received by Landlord within five
(5) days after such payment is due, then Tenant shall pay the Landlord a late
charge equal to five percent (5%) of such delinquent amounts. Any amounts
payable hereunder by Tenant to Landlord which are not paid on or before the date
due as provided in this Lease shall bear interest at the rate of one and a half
percent (1-1/2%) per month from said due date until paid. Said late charge and
interest shall be due without any requirement of Landlord to provide notice of
failure to make payments to Tenant. Tenant shall be granted the ability to pay
the rent as late as the 10th of the month twice during any one calendar year
without a penalty.
6. SECURITY DEPOSIT. Tenant has this day deposited with Landlord a security
deposit in the amount of $10,440.83 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 days after the
expiration of the Term, provided Tenant has fully performed hereunder. Landlord
shall have the right to apply all or any part of said deposit to cure any breach
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. Landlord may commingle the deposit with any
other funds of Landlord, and 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 purchaser or lessee, as the case may be, 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
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transfer or assignment made of the security deposit to a new landlord; provided,
however, Tenant shall not look for the return of any such security deposit to
any holder or purchaser at foreclosure sale from such holder of a deed to secure
debt or other security instrument affecting the real property of which the
Premises forms a part who acquires title to such property by foreclosure, deed
in lieu thereof, or otherwise, unless such parties 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, and any such attempted
assignment or encumbrance shall be void.
7. RESERVED
8. USE OF PREMISES. The Premises shall be used for general office purposes
and no other purposes and in accordance with the Rules and Regulations attached
hereto and incorporated herein by this reference. The Tenant may use the
premises for the operation offices of a bank provided this does not involve the
retail customer service banking on site typical of a retail bank location. Both
Tenant and Landlord acknowledge that the Building is not zoned for said use.
Auto leasing as used in this paragraph shall not involve the storage of
automobiles on the land surrounding the property nor the adjacent building to
the Building. The Tenant shall not use, permit or allow the Premises to be used
other than as strictly provided in this Lease and shall not use, permit or allow
the Premises or any part thereof to be used for any unlawful purpose or
otherwise in violation of any federal, state or local statute, law, ordinance,
rule or regulation, including, without limitation, in violation of any zoning
ordinances; nor shall the Tenant permit any nuisance within the Premises or
permit the Premises to be used in any manner which will be a source of material
annoyance or in any way interfere with the peaceful possession, enjoyment and
proper use of other areas of the Building, nor shall the Premises be used in any
manner so as to vitiate the insurance or increase the rate of insurance on the
Premises or the Building. Not by way of limitation of the foregoing but in
addition thereto, neither the Premises nor any portion thereof shall be used or
occupied for any or all of the following: governmental or quasi-governmental
offices, spas, massage parlors, escort services offices, retail sales purposes
classroom facility purposes, schools, radio or television broadcasting or studio
facilities, auto sales offices, equipment or appliance repair shops, daycare
centers, nurseries, churches, or places of religious or quasi-religious worship,
religious facilities (however this does not mean that Tenant's religious
freedoms provided for in the Constitution of the United States shall in any way
be affected with respect to Tenant's use of the space), or retail or wholesale
sales purposes medical research laboratories or offices for medical or
quasi-medical professionals providing medical treatments (but this shall not
prohibit psychiatrist, psychologist and dentists.) At the time of signing of
this Lease, Landlord is unaware of any zoning conflicts which would impede or
prohibit the proposed use contemplated by Tenant in this Lease.
9. TENTANT'S ACCEPTANCE. Tenant acknowledges that it has been afforded an
opportunity to inspect the Premises and accepts the Premises "as is" and as
suited for Tenant's intended use thereof, subject only to the provisions of
Paragraph 3 and Exhibit "B". Upon completion of the improvements contemplated by
Paragraph 3 and Exhibit "B", or occupancy of the Premises by Tenant, whichever
first occurs, Tenant shall be deemed to have accepted any improvements made
since the date hereof, except for punch list items and latent defects.
10. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily or
involuntarily, whether by operation of law or otherwise, assign, transfer,
hypothecate or otherwise encumber this Lease or any interest therein and shall
not sublet or permit the use by others of the Premises or any portion thereof
without obtaining in each instance Landlord's prior written consent which shall
not be unreasonably withheld, delayed or denied. Landlord's consent to one
assignment, sublease, transfer or hypothecation shall not be deemed as a consent
to any other or further assignment, sublease, transfer or hypothecation. Any
such assignment, sublease, transfer or hypothecation without Landlord's prior
written consent shall be
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void and shall, at Landlord's option, constitute a material breach of this
Lease. No acceptance by Landlord of any rent or any other sum of money from any
assignee, sublessee or other category of transferee shall release Tenant from
any of its obligations hereunder or be deemed to constitute Landlord's consent
to any assignment, sublease, transfer or hypothecation, and in any event, Tenant
shall remain primarily liable on this Lease for the entire Term hereof and shall
in no way be released from the full and complete performance of all the terms,
conditions, covenants and agreements contained herein.
In the event Tenant should desire to assign this Lease or sublet the
Premises or any part thereof, Tenant shall give Landlord prior written notice,
which notice shall specify (a) the date on which Tenant desires to make such
assignment or sublease; (b) the name and business of the proposed assignee or
sublessee; (c) the amount and location of the space affected; (d) the proposed
effective date and duration of the subletting or assignment; and (e) the
proposed rental to be paid to Tenant by such subtenant or assignee. Landlord
shall then have a period of fifteen (15) days following receipt of such notice
within which to notify Tenant in writing that Landlord elects either (1) to
terminate this Lease as to the space so affected as of the date so specified by
Tenant, in which event Tenant will on that date be relieved of all further
obligations to pay rent hereunder as to such space; or (2) to permit Tenant to
assign or sublet such space, in which event if the proposed rental between
Tenant and subtenants is greater than the Base Monthly Rental as adjusted under
this Lease, then fifty (50%) percent of such excess rental shall be deemed
additional rent owed by Tenant to Landlord under this Lease and the amount of
such excess shall be paid by Tenant to Landlord in the same manner that Tenant
pays the Base Monthly Rental hereunder and in addition thereto; or (3) to
withhold consent to Tenant's assigning or subleasing such space, which consent
shall not be unreasonably withheld, and to continue this Lease in full force and
effect as to the entire Premises. Tenant agrees to reimburse Landlord for
Landlord's reasonable attorney's fees and actual costs incurred in connection
with the processing and documentation of any request made pursuant to this
paragraph.
11. HOLDING OVER. Should Tenant or any of its successors in interest
continue to hold the Premises after termination of this Lease, whether such
termination occurs by lapse of time or otherwise, with Landlord's acquiescence,
and without any distinct agreement between the parties, such holding over shall
constitute and be construed as a tenancy at sufferance at a monthly rental equal
to one and one half (1-1/2) the monthly rental (including Base Monthly Rental
and any adjusted and Additional Rent) provided herein at the time of such
termination if Landlord elects to accept such rent. During such time as Tenant
shall continue to hold the Premises after the termination hereof, Tenant shall
be regarded as a tenant at sufferance and not a tenant at will; subject,
however, to all the terms, provisions, covenants and agreements on the part of
Tenant hereunder. No payments of money by Tenant to Landlord after the
termination of this Lease shall reinstate, continue, renew or extend the Term
and no extension of this Lease after the termination hereof shall be valid
unless and until the same shall be reduced to writing and signed by both
Landlord and Tenant. Tenant shall be liable to Landlord for all damages which
Landlord shall suffer by reason of Tenant's holding over and Tenant shall
indemnify, defend and hold Landlord harmless against all claims made by any
other tenant or prospective tenant against Landlord resulting from delay by
Landlord in delivering possession of the Premises to such other tenant or
prospective tenant. If Landlord accepts rent pursuant to this Paragraph,
Landlord shall always have the right to terminate Tenant's possession under this
Paragraph upon thirty (30) days prior written notice to Tenant.
12. ALTERATIONS AND IMPROVEMENTS.(a) No structural alteration in, or
addition to, the Premises, will be made without first obtaining Landlord's prior
written consent. It is understood that the term structural as used in the
preceding sentence shall mean to include all walls, whether load bearing or not
and all electrical, plumbing, and HVAC and mechanical systems. Tenant shall not
need Landlord's approval for cosmetic alterations that cost less than $5,000.
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(b) If Tenant's actions, omissions or occupancy of the Premises shall cause
the rate of fire or other insurance either on the Building or the Premises to be
increased, Tenant shall pay, as additional rent, the amount of any such increase
promptly upon demand by Landlord.
(c) All erections, additions, fixtures and improvements, whether temporary
or permanent in character (except only the movable office furniture and trade
fixtures and other movable personal property of Tenant) made in or upon the
Premises shall be and remain Landlord's property and shall remain upon the
Premises at the termination of this Lease by lapse of time or otherwise, with no
compensation to Tenant. Landlord reserves the right to require Tenant to remove
any such improvements or additions made by Tenant and office furniture and trade
fixtures at the termination hereof or within fifteen (15) days thereafter.
Landlord may, at its election, repair any damage to the Premises caused by or in
connection with the removal of any articles of personal property, business or
trade fixtures, alterations, improvements and installations, and all costs for
such repairs shall be at Tenant's expense.
13. 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.
14. REPAIRS TO THE PREMISES.Landlord shall not be required to make any
repairs or improvements to the Premises, except structural repairs necessary for
safety and tenantability. Tenant shall, at its own cost and expense, keep in
good repair all portions of the Premises including but not limited to windows,
glass, doors, interior walls and finish work, floors and floor coverings, and
supplemental or special heating and air conditioning systems, and 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. Tenant shall maintain and replace, at its cost and expense, all light
bulbs and fixtures in the Premises that are not the Building's standard 2-foot
by 4-foot fluorescent light fixtures and bulbs therefor.
15. LANDLORD'S RIGHT TO ENTER PREMISES. Tenant shall not change the locks
on any entrance to the Premises. Upon Tenant's written request to Landlord,
Landlord will make a reasonable change of locks on behalf of Tenant at Tenant's
sole cost and expense. Landlord and its agents, employees, and contractors shall
have the right to enter the Premises at such times as Landlord deems reasonably
necessary to make necessary repairs, additions, alterations, and improvements to
the Premises or the Building, including, without limitations the erection, use,
and maintenance of pipes and conduits and to show the Premises to prospective
tenants and purchasers. Landlord shall also be allowed to take into and through
the Premises any and all needed materials that may be required to make such
repairs, additions, alterations, and improvements, all without being liable to
Tenant in any manner whatsoever. During such time as work is being carried on,
in or about the Premises, provided such work is carried out in a manner so as
not to interfere unreasonably with the conduct of Tenant's business therein, the
rent provided herein shall in no way abate, and Tenant waives any claim and
cause of action against Landlord for damages by reason of loss or interruption
to Tenant's business and profits therefrom because of the prosecution of any
such work or any part thereof in the event of emergency, or if otherwise
necessary to prevent injury to persons or damage to property, such entry to the
Premises may be made by force without any liability whatsoever on the part of
Landlord for damage resulting from such forcible entry. Landlord shall make
reasonable efforts to notify tenant and to be courteous and business-like during
such entries.
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16. DEFAULT AND REMEDIES. The following events shall be deemed to be events
of default by Tenant under this Lease: (i) Tenant shall fail to pay any
installment of Base Monthly Rental, or Additional Rent pursuant to the terms
hereof within five (5) days after the due date thereof, and any other charge or
assessment against Tenant after five (5) days written notice to Tenant; (ii)
Tenant shall fail to comply with any term, provision, covenant or warranty made
under this Lease by Tenant, other than the payment of the Base Monthly Rental or
Additional Rent or any other charge or assessment payable by Tenant, and shall
not cure such failure within fifteen (15) days after notice thereof to Tenant;
(iii) Tenant or any guarantor of this Lease shall make a general assignment for
the benefit of creditors, or shall admit in writing its inability to pay its
debts as they become due, or shall file a petition in bankruptcy, or shall be
adjudicated as bankrupt or insolvent, or shall file a petition in any proceeding
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall file an answer admitting or fail timely to contest the
material allegations of a petition filed against it in any such proceeding; (iv)
a proceeding is commenced against Tenant or any guarantor of this Lease seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, and such proceeding shall not have been dismissed within forty-five
(45) days after the commencement thereof, (v) a receiver or trustee shall be
appointed for the Premises or for all or substantially all of the assets of
Tenant or of any guarantor of this Lease; (vi) Tenant shall abandon or vacate
all or any portion of the Premises or fail to take possession thereof as
provided in this Lease; (vii) Tenant shall do or permit to be done anything
which creates a lien upon the Premises or the Building and such lien is not
removed or discharged or bonded within fifteen (15) days after the filing
thereof, (viii) Tenant shall fail to return a fully executed instrument to
Landlord in accordance with the provisions of Paragraphs 25 and 26 hereof within
the time period provided for such return following Landlords request for same as
provided in Paragraphs 25 and 26 (except in the case where the Tenant has
elected to self insure); or (ix) Tenant shall fail to return a properly executed
estoppel certificate to Landlord in accordance with the provisions of Paragraph
37 hereof within the time period provided for such return following Landlord's
request for same as provided in Paragraph 37.
Upon the occurrence of any of the aforesaid events of default, and, without
notice, or demand of Tenant in any instance, Landlord shall have the option to
pursue any one or more of the following remedies:
(a) Terminate this Lease by giving Tenant notice of termination, in which
event this Lease shall expire and terminate on the date specified in such notice
of termination, with the same force and effect as though the date so specified
were the date herein originally fixed as the termination date of the Term of
this Lease, and all rights of Tenant under this Lease and in and to the Premises
shall expire and terminate, and Tenant shall remain liable for all obligations
under this Lease arising up to the date of such termination, and Tenant shall
surrender the Premises to Landlord on the date specified in such notice and if
Tenant fails to do so, Landlord may without prejudice to any other remedy which
it may have for possession or arrearages in rent, enter upon and take possession
of the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any portion thereof.
(b) Terminate this Lease as provided in clause (a) above and recover from
Tenant all losses and damages Landlord may suffer or incur by reason of such
termination, including, without limitation, a sum which, at the date of such
termination, is equal to the then present value (to be computed as set fourth
below) of the excess, if any, of (i) the Base Monthly Rental, Additional Rent
and all other sums which would have been payable hereunder by Tenant for the
period commencing with the date following the date of such termination and
ending with the date herein before set forth for the expiration of the full Term
hereby granted, over (ii) the aggregate reasonable rental value of the Premises
for the same period. Tenant
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hereby agrees to pay to Landlord on demand the amount of all such losses and
damages which Landlord may suffer by reason of such termination
(c) Terminate this Lease and declare immediately due and payable all Base
Monthly Rental, Additional Rent and other rents and amounts which in Landlord's
reasonable determination would become due and payable under this Lease for the
entire remaining Term hereof, discounted to present value (to be computed as set
forth below), to be due and payable immediately. Upon the acceleration of such
amounts, Tenant agrees to pay the same at once, together with all rent and other
charges and assessments theretofore due, at Landlord's address as herein
provided, provided, however, that such payment shall not be deemed a penalty or
forfeiture but shall constitute liquidated damages for Tenant's failure to
comply with the terms and provisions of this Lease (Landlord and Tenant agreeing
that Landlord's actual damages in such events are impossible to ascertain and
that the amount set forth is a reasonable estimate thereof.) Upon making such
payment, Tenant shall be entitled to receive from Landlord all rents received by
Landlord from other assignees, tenants and subtenants renting said Premises or
portion thereof during the Term of this Lease (with appropriate allocations of
such rents in the event other tenants lease spaces in addition to the Premises),
provided that the monies to which Tenant shall so become entitled shall in no
event exceed the entire amount actually paid by Tenant to Landlord pursuant to
the preceding sentence less all costs, expenses and attorney's fees of Landlord
incurred in connection with the reletting of the Premises.
(d) Without terminating this Lease, terminate Tenant's night of possession
and enter into and upon and take possession of the Premises or any part thereof,
and at Landlord's option, expel and remove persons and property therefrom by
entry, dispossessing suit or otherwise, without thereby releasing Tenant from
any liability hereunder, without terminating this Lease and without being liable
to prosecution or any claim for damage thereof. Such property, if any, may be
removed and stored in a warehouse or elsewhere at the cost of, and for the
account of Tenant, all without being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby, and Landlord may,
but shall be under no obligation to do so, relet the Premises or any portion
thereof in Landlord's or Tenant's name, but for the account of Tenant, with or
without advertisement, and by private negotiations, and receive the rent
therefore, and for any term and upon such terms and conditions as Landlord may
deem necessary or desirable. Landlord shall in no way be responsible or liable
for any rental concessions or any failure to lease the Premises or any part
thereof, or for any failure to collect any rent due upon such reletting. Upon
each such reletting, all rentals received by Landlord from such reletting shall
be applied as follows: first, to the payment of any indebtedness (other than any
amounts due hereunder) from Tenant to Landlord; second, to the payment of any
costs and expenses of such reletting, including, without limitation, brokerage
fees and attorneys' fees and costs of alterations and repairs (Tenant agreeing
that Landlord shall have the right to make such alterations and repairs as in
Landlord's judgment, may be necessary to relet the Premises); third, to the
payment of rental and other charges then due and unpaid hereunder; and the
residue, if any, shall be held by Landlord to the extent of and for application
in payment of future amounts due hereunder as the same may become due and
payable hereunder. In reletting the Premises as aforesaid, Landlord may grant
rent concessions and Tenant shall not be credited therefor. If such rentals
received from such reletting shall at any time or from time to time be less than
sufficient to pay to Landlord the entire sums then due from Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Such deficiency shall, at
Landlord's option, be calculated and paid monthly. No such reletting shall be
construed as an election by Landlord to terminate this Lease unless a written
notice of such election has been given to Tenant by Landlord. Notwithstanding
any such reletting without termination, Landlord may at any time thereafter
elect to terminate this Lease for any such previous event of default provided
same has not been cured. Notwithstanding anything contained herein to the
contrary, no termination of Tenant's right of possession of the Premises by
dispossessory action or otherwise shall release Tenant from the performance of
Tenant's obligations under this Lease, including, without limitation, the timely
payment of all rent reserved
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hereunder for the balance of the Term of this Lease following such termination
of Tenant's right of possession.
(e) Without liability to Tenant or any other party and without constituting
a constructive or actual eviction, suspend or discontinue furnishing or
rendering to Tenant any property, material, labor, utilities or other service,
wherever Landlord is obligated to furnish or render the same, so long as Tenant
is in default under this Lease.
(f) Allow the Premises to remain unoccupied and collect Base Monthly Rental
and other charges due hereunder from Tenant as they come due.
(g) [Omitted]
(h) Landlord may perform, as agent for and at the expense of Tenant, any
obligation of Tenant under this Lease which Tenant has failed to perform and of
which Landlord shall have given Tenant notice and opportunity to cure as
provided herein, the cost of which performance by Landlord together with
interest thereon at the default rate from the date of such expenditure, shall be
deemed additional rental and shall be payable by Tenant to Landlord upon demand
and Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from such action whether caused by negligence of Landlord or otherwise.
(i) Landlord may exercise any other legal or equitable right or remedy
which it may have, including, but not limited to Landlord's right judicially to
obtain possession pursuant to Georgia statutory law.
Notwithstanding the provisions of clause (g) above and regardless of
whether a "default" shall have occurred, Landlord may exercise the remedy
described in clause (g) without any notice to Tenant if Landlord, in its good
faith judgment, believes it would be materially injured by failure to take rapid
action or if the unperformed obligation of Tenant constitutes an emergency. Any
costs and expenses incurred by Landlord (including, without limitation,
reasonable attorneys' fees) in enforcing any of its rights or remedies under
this Lease shall be deemed Additional Rent and shall be repaid to Landlord upon
demand to Tenant for said Additional Rent.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
other remedy herein provided or any other remedy provided by law or at equity
nor shall pursuit of any remedy herein provided constitute an election of
remedies thereby excluding the later election of an alternate remedy, or a
forfeiture or waiver of any Base Rental, Additional Rent or other charges and
assessments payable by Tenant and due to Landlord hereunder or of any damage
accruing to Landlord by reason or violation of any of the terms, covenants,
warranties and provisions herein contained.
If this Lease is terminated by Landlord pursuant to clause (b) and (c)
above, "present value" shall be computed by discounting the amount of such
excess to present worth at a discount rate equal to one percent (1%) above the
discount rate then in effect at the Federal Reserve Bank of Atlanta, Georgia.
Neither the commencement of any action or proceeding, nor the settlement
thereof, nor entry of judgment thereon shall bar Landlord from bringing
subsequent actions or proceedings from time to time, nor shall the failure to
include in any action or proceeding any sum or sums then due be a bar to the
maintenance of any subsequent actions or proceedings for the recovery of such
sum or sums so omitted. Landlord's pursuit of any remedy or remedies, including,
without limitation, any one or more of the remedies stated above, shall not (i)
constitute an election of remedies or preclude pursuit of any other remedy or
remedies provided in
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this Lease or separately or concurrently or in any combination, or (ii) serve as
the basis for any claim of constructive eviction, or allow Tenant to withhold
any payments under this Lease.
The failure of Landlord to insist upon strict performance of any of the
terms, conditions and covenants herein shall not be deemed to be a waiver of any
subsequent breach or default in the terms, conditions, and covenants herein
contained except as may be expressly waived in writing.
Landlord shall in no event be in default in the performance of any of its
obligations in this Lease unless and until Landlord shall have failed to perform
such obligation within such additional time as is reasonably required to correct
any such default aforementioned by Tenant to Landlord properly specifying
whereas Landlord has failed to perform any such obligation.
If Tenant shall at any time be in default hereunder, and if Landlord shall
deem it necessary to engage attorneys to enforce Landlord's rights hereunder,
the determination of such necessity to be in the sole discretion of Landlord or
if Landlord is made a party to litigation involving or pertaining to Tenant due
to no fault of Landlord, then Tenant will reimburse Landlord for the reasonable
expenses incurred thereby, including but not limited to court costs and
reasonable attorneys' fees.
17. LANDLORD'S SERVICES. Landlord shall render services and supplies
incidental to this Lease in accordance with and as described in this Paragraph
17, as follows:
(a) General cleaning and janitorial service required as a result of normal,
prudent use of the Premises and only on Mondays through Fridays, (five nights
weekly) inclusive, with New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, Christmas Day, and any other recognized bank holiday
(herein collectively called the "Holidays") excepted.
(b) Access to Natural Gas and Electricity (from the individual appropriate
supply utilities serving the Building) for Premises for standard tenant lighting
and small business machinery only from electric circuits designated by Landlord
for Tenant's use and for heat and HVAC within the Premises. (See 17(c) for
Tenant's Additional Rent for Utilities). Tenant will not use any electrical
equipment which in Landlord's reasonable opinion will overload the wiring
installations or interfere with the reasonable use thereof by other users in the
Building. If any additional circuitry or wiring is required by Tenant, and
Landlord approves the installation of the same in writing, such work shall be
performed at Tenant's expense by Landlord's electrician and under Landlord's
control and supervision, and Tenant shall pay Landlord for such additional work
as billed.
Landlord shall not be liable for any damages directly or indirectly
resulting from the installation, use or interruption of use of any equipment in
connection with the furnishing of services referred to in this Paragraph, and
particularly any interruption in services by any cause beyond the immediate
control of Landlord, provided Landlord shall use reasonable diligence in the
restoration of such services.
(c) Tenant's direct electrical and natural gas use ("Tenant's Utility Use",
hereinafter) within the Premises shall be separately metered for Tenant.
Landlord has agreed to provide Tenant with Utilities in Exhibit D-1 not to
exceed $1.50 per rentable square foot per annum, (the "Annual Utility Allowance"
hereinafter). Tenant shall reimburse Landlord, as provided for in paragraph 5,
Additional Rent for Tenant's Utility Use above the Annual Utility Allowance. If,
in Landlord's sole opinion, Tenant's Total Electrical Usage for any month during
the Term shall exceed the Annual Electricity Allowance pro rated to a monthly
basis for that calendar year, then Landlord may demand payment by Tenant for
said excess as Additional Rent.
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18. PARKING. Tenant, its employees, guests, visitors, and invitees shall be
granted the right and privilege to park in the parking facilities provided by
the Building for the Term of this Lease. The parking facilities shall consist of
the surface parking lot surrounding the Building. All parking shall be free and
unassigned, and based on a parking ratio of 6 spaces per 1000 square feet of
building area, which amount Tenant and its employees shall not exceed. During
the original term of this lease, Tenant shall pay no fees or costs for parking.
19. WINDOW DRESSINGS. All exterior windows of the Premises shall be
equipped only with thin slat blinds provided by the Landlord. Tenant may install
other window treatments so long as same have solid white linings and so long as
the thin slat blinds remain affixed between the window glass and the other
window treatments.
20. TELEPHONE SERVICE. Tenant acknowledges and agrees that securing and
arranging for telephone service to the Premises is the sole responsibility of
Tenant and that Landlord has no responsibility or obligation to provide or
arrange such telephone service, nor to permit installation of any facilities or
equipment in the Building outside of the Premises in connection with providing
telephone service to the Premises.
21. DESTRUCTION OF PREMISES. Should the Premises be so damaged by fire or
other cause that rebuilding or repairs cannot be completed within one hundred
eighty (180) days from the date of the fire, or other cause of damage, 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 eighty (180) days, Landlord covenants and agrees,
subject to the provisions of this Paragraph 21, to make such repairs with
reasonable promptness and dispatch, and to allow Tenant an abatement in the Base
Monthly Rental and 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 no event shall Landlord be required to repair or replace any trade
fixtures, furniture, equipment or other property belonging to Tenant nor shall
Landlord be required to rebuild, repair or replace any part of the partitions,
fixtures, additions, or other improvements which may have been placed in or
about the Premises by Tenant; nor shall Landlord have any obligation to incur
any cost to repair, reconstruct or restore the Premises in excess of insurance
proceeds from the casualty necessitating such work that are made available to
Landlord, under its sole control for such work. 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.
22. [Omitted]
23. CONDEMNATION. If the whole of the Premises, or such portion thereof, as
will make Premises unusable for the purposes herein leased, be condemned by any
legally constituted authority for any public use or purpose, then, in either of
said events, the Term hereby granted shall cease from the date when possession
thereof is taken by public authorities, and rental shall be accounted for as
between Landlord and Tenant as of said date. Such termination, however, shall be
without prejudice to the rights of either Landlord or Tenant to recover
compensation and damage caused by condemnation from the condemnor; provided,
however, Tenant shall not be entitled to claim compensation for items which
would reduce Landlord's award.
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24. GOVERNMENTAL ORDERS. Except as otherwise provided in Sections 13 and 22
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
rental 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, then Landlord may either terminate this
lease or abate rental during the period of such untenantability; and (b) if in
Landlord's reasonable judgment such actions by Landlord cannot be completed
within one hundred and twenty (120) days, then Landlord may terminate this
Lease. In the event Landlord terminates this lease, Tenant shall immediately
surrender the Premises and rent shall be paid up to and including the date of
the expiration of the Term. Alternatively, if rental is abated during the period
of untenantability as provided in (a) above, then Tenant shall relinquish
possession of the Premises during the period of rental abatement and resume
paying rental upon Landlord's restoration of the Premises to a condition of
tenantability.
25. INSURANCE. Tenant shall carry fire and extended coverage insurance
insuring Tenant's interest in its furniture, equipment, supplies, and other
property owned, leased, held, or possessed by it and contained therein, such
insurance coverage to be in an amount equal to the full insurable value of such
improvements and property.
Tenant also agrees to carry a policy or policies of workers' compensation
and comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in an amount of not
less than Five Hundred Thousand and No/100 ($500,000.00) Dollars for the
property damage and One Million and No/100 ($1,000,000.00) Dollars 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 workers'
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 canceled unless thirty (30)
days prior written notice shall have been given to Landlord. Said policy or
policies, or certificate thereof, shall be delivered to Landlord by Tenant upon
commencement of the Term of the Lease and upon each renewal and/or modification
of said insurance. Landlord shall carry comprehensive general liability
insurance during this Lease in a type and amount consistent with sound
management practices and property insurance on the Building for the full
replacement value thereof.
26. WAIVER OF SUBROGATION. 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 insured in policies of
insurance covering such property, 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, any 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 file releasor 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
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clause of endorsement. If extra cost shall be charged therefor, each party shall
advise the other thereof and of the amount of the extra cost, and the other
party, at its election, may pay the same, but shall not be obligated to do so.
If such other party fails to pay such extra costs, the release provisions of
this Paragraph shall be inoperative against such other party to the extent
necessary to avoid invalidation of such releasor's insurance.
27. 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.
28. INDEMNITY. Excepting for the willful misconduct, or sole negligence of
Landlord, its agents and employees, Tenant indemnifies and shall hold Landlord,
its agents and employees, harmless from and defend Landlord, its agents and
employees, against any and all claims or liability for injury or death to any
person or damage to any property whatsoever:
(a) either (i) occurring in, on, or about the Premises; or (ii) occurring
in, on, or about any facilities (including, without limitation, passageways
hallways or common areas) the use of which Tenant may have in conjunction with
other occupants of the Building, when such injury, death or damage shall be
caused in part or in whole by the act, neglect or fault of, or emission of any
duty with respect to the same by Tenant, its agents, employees, contractors,
invitees, licensees, tenants, or assignees; or
(b) arising from any work or thing whatsoever done by or benefiting the
Tenant in or about the Premises or from transactions of the Tenant concerning
the Premises; or
(c) arising from any breach or default on the part of the Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to the terms of this Lease; or
(d) otherwise arising from any act of neglect of the Tenant, or any of its
agents, employees, contractors, invitees, licensees, tenants or assignees; and
from and against all reasonable costs, expenses, counsel fees, and court costs
incurred or assessed in connection with any or all of the foregoing.
Furthermore, in case any action or proceeding be brought against Landlord by
reason of any claim or liability, Tenant agrees to cause such action or
proceeding to be defended at Tenant's sole expense by counsel reasonably
satisfactory to Landlord. The provisions of this Lease with respect to any
claims or liability occurring or caused prior to any expiration or termination
of this Lease shall survive such expiration or termination.
29. TENANT'S ENVIRONMENTAL COVENANTS. Tenant warrants and represents to
Landlord that Tenant has not, and will not, generate, store, handle or otherwise
deal with any hazardous or toxic waste, substance or material, or contaminants,
oil, pesticides, radioactive or other materials on the Premises, the removal of
which is required or the maintenance of which is prohibited, regulated or
penalized by any local, state, or federal agency, authority or governmental
unit.
30. LIABILITY OF LANDLORD. Landlord shall not be liable to Tenant or to any
persons, firm, corporation, or other business association claiming by, through,
or under Tenant for failure to furnish or for delay in all furnishing any
service provided for in this Lease. Landlord shall not be liable for any latent
defects in the Premises or Building; nor for defects in the ceiling, heating,
electric, water, or other apparatus or systems or for water discharged from
sprinkler systems, if any, or from water pipes and plumbing facilities in the
Building; nor for the theft, mysterious disappearance, or loss of any property
of Tenant whether from the Premises or any part of the Building; nor from
interference, disturbance or acts to
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or committed against Tenant by third parties, including, without limitation
other occupants of the Building and any such occurrences shall not constitute an
actual or constructive eviction of Tenant.
31. LIMITATION OF LIABILITY. Landlord's obligations and liability with
respect to this Lease shall be limited solely to Landlord's interest in the
Building, as such interest is constituted from time to time, and neither
Landlord nor any officer, director, shareholder, member, manager, or partner of
Landlord, or of any member or manager of Landlord, shall have any personal
liability, whatsoever with respect to this Lease .
32. NO WAIVER OF RIGHTS. No failure or delay of Landlord to exercise any
right or power given it herein or to insist upon strict compliance by Tenant of
any obligation imposed on it herein and no custom or practice of either party
hereto at variance with any term hereof shall constitute a waiver or a
modification of the terms hereof by Landlord or any right it has herein to
demand strict compliance with the terms hereof by Tenant. No person has or shall
have any authority to waive any provision of this Lease unless such waiver is
expressly made in writing and signed by Landlord.
33. ENTIRE AGREEMENT AND EXHIBITS. This Lease constitutes and contains the
sole and entire agreement of Landlord and Tenant and no prior or contemporaneous
oral or written representation or agreement between the parties and affecting
the Premises shall have legal effect. The content of each and every exhibit
which is referenced in this Lease as being attached hereto is incorporated into
this Lease as fully as if set forth in the body of this Lease. Except as
otherwise provided herein, Landlord hereby disclaims any warranties and
representations as to the Building or Premises, whether express of implied.
34. NOTICES. Every notice, demand or request hereunder shall be in writing
and shall be deemed to have been properly given if delivered by courier, with
signed receipt, or if deposited with the United States Postal Service (or any
official successor thereto) designated certified mail, return receipt requested,
bearing adequate postage and addressed as follows:
If to Tenant: Management Company:
Net Bank, Inc. Kingston Group
9755 Dogwood Drive 5696 Peachtree Parkway
Suite 310 Suite 400
Roswell, GA 30075 Atlanta, GA 30092
Attention: Chief Financial Officer Phone # 770/242-2650
If to Landlord:
Windward Forest Partners, LLC
c/o Kingston Group
5696 Peachtree Parkway
Suite 400
Norcross, GA 30092
The foregoing addresses may be changed by thirty (30) days written notice from
time to time.
Tenant hereby appoints as his agent to receive the service of all
dispossessory or distraint proceedings and notices thereunder, the person in
charge of or occupying the Premises at the time, and if no
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person is in charge of or occupying same, then such service or notice may be
made by attaching the same on the main entrance to the Premises. A copy of all
notices under this Lease shall also be sent to Tenant's last address of which
notice was given to Landlord in accordance with this Paragraph 34, if different
from the Premises.
35. SUCCESSORS AND ASSIGNS: ATTORNMENT: The covenants, conditions and
agreements herein contained shall inure to the benefit of and be binding upon
Landlord, its successors and assigns, and shall be binding upon Tenant, its
heirs, executors, administrators, successors and assigns, and shall inure to
the benefit of Tenant and only such assigns of Tenant to whom the assignment
by Tenant has been consented to by the Landlord. Nothing contained in this
Lease shall in any manner restrict Landlord's right to assign or encumber
this Lease in its sole discretion. Should Landlord assign this Lease as
provided for above, or should Landlord enter into a security deed or other
mortgage affecting the Premises and should the holder of such deed or
mortgage succeed to the interest of Landlord, Tenant shall be bound to said
conditions of this Lease for the balance of the Term hereof remaining after
such succession, and Tenant shall attorn to such succeeding party as its
landlord under this Lease promptly under any such successions. Tenant agrees
that should any party so succeeding to the interest of Landlord require a
separate agreement of attainment regarding the matters covered by this Lease,
then Tenant shall enter into any such "attainment agreement", provided the
same does not modify any of the provisions of this Lease and has no adverse
effect upon Tenant's continued occupancy of the Premises.
Tenant shall with the execution of this Lease, execute the Subordination,
Non-Disturbance and Attornment Agreement attached hereto as Exhibit "E".
36. SUBORDINATION. Tenant agrees that this Lease shall automatically be and
remain subject and subordinate to all present and future mortgages, deeds to
secure debt or other security instruments (the "Security Deeds") affecting the
Premises. Tenant shall promptly, within five (5) days of request by Landlord,
execute and deliver to Landlord such certificate or certificates in writing as
Landlord may request, confirming the subordinate nature of the Lease to such
Security Deeds.
37. ESTOPPEL CERTIFICATE. Tenant shall upon request from Landlord at any
time and from time to time, and within five (5) days of such request, execute,
acknowledge and deliver to Landlord a written statement substantially in the
form of the Estoppel Certificate attached hereto as Exhibit "C", certifying
without limitation as follows, (i) that this Lease is unmodified and in full
force and effect (or if there has been modification thereof, that the same is in
full force and effect as modified and stating the nature thereof); (ii) that to
the best of its knowledge there are no uncured defaults on the part of Landlord
(or if any such default exists, the specific nature and extent thereof); (iii)
the date to which any rents and other charges have been paid in advance, if any;
and (iv) such other matters as Landlord may reasonably request. Tenant
irrevocably appoints Landlord as its attorney in fact, coupled with an interest
to execute and deliver, for and in the name of Tenant, any document or
instrument provided for in this paragraph, if Tenant fails to execute the
Estoppel Certificate within the time period permitted herein.
38. TIME IS OF THE ESSENCE. Time is of the essence with the respect to the
performance of each of the covenants and agreements of this Lease; provided,
however, that failure of Landlord to provide Tenant with any notification
regarding adjustments in Base Monthly Rental, or any other charges provided for
hereunder, within the time periods prescribed in this Lease shall not relieve
Tenant of its obligation to make such payments, which payments shall be made by
Tenant at such time as notice is subsequently given.
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39. CAPTIONS: GOVERNING LAW. The captions of this Lease are for convenience
of reference only and in no way define, limit or describe the scope or intent of
this Lease. The laws of the State of Georgia shall govern the validity,
performance and enforcement of this Lease.
40. DEFINITIONS. "Landlord" as used in this Lease shall include its heirs,
representatives, assigns and successors in title to Premises. "Tenant" shall
include its 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 its
successors, assigns, heirs, and representatives. "Landlord", "Tenant", and
"Broker", include male and female, singular and plural, corporation, partnership
or individual, as may fit the particular parties.
41. 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 parts of this Lease shall
not be affected thereby, unless such invalidity is, in the sole determination of
Landlord, essential to the rights of both parties in which Landlord has the
right to terminate this Lease on written notice to Tenant.
42. RULES AND REGULATIONS. Tenant and Tenant's agents, employees,
contractors, licensees and invitees shall fully comply with all requirements of
the Rules and Regulations (as changed from time to time as hereinafter
provided). Landlord shall at all times have the right to change such Rules and
Regulations or to promulgate other rules and regulations in such reasonable
manner as Landlord, in its sole discretion, may deem advisable; provided,
however, that such changes shall not become effective and a part of this Lease
until a copy thereof shall have been delivered to Tenant. Tenant shall further
be responsible for compliance with such Rules and Regulations by Tenant's
agents, employees, contractors, licensees and invitees. Landlord shall
consistently apply and enforce such Rules and Regulations as to all tenants in
Building and within Windward Forest.
43. SPECIAL STIPULATIONS. The Special Stipulations, if any, attached hereto
by Landlord and Tenant are hereby incorporated herein and made a part hereof In
the event the Special Stipulations conflict with any of the foregoing provisions
of this Lease, the Special Stipulations shall control.
44. BROKERAGE COMMISSION. Kingston Group, Inc. represents Landlord and not
Tenant in this transaction. William Leonard & Co. represents Tenant and not
Landlord in this transaction. Tenant acknowledges that principals of Landlord
are licensed real estate brokers, and are receiving a real estate commission in
connection with the transaction contemplated hereby, Landlord agrees to pay
William Leonard & Co. a real estate commission in an amount agreed to between
Kingston Group, Inc., as co-Brokers, and William Leonard & Co. under a separate
agreement. In the event of a claim arising through Tenant or through any of
Tenant's agents for any commission or fee by any other broker, agent, sales
person or finder, Tenant hereby agrees to indemnify Landlord and all of
Landlord's agents from any and all such claims and any and all demands, costs,
expenses, and causes of action in connection therewith.
45. REMOVAL OF PERSONAL PROPERTY. Tenant may (if not in default hereunder)
prior to the expiration of this Lease, or any extension thereof, remove all
unattached and movable personal property and equipment which Tenant has placed
in the Premises, provided Tenant repairs all damages to Premises caused by such
removal. All Personal Property and Tenant's trade fixtures of Tenant remaining
on the Premises after the end of the Term shall be deemed conclusively
abandoned, notwithstanding that title to or a security interest in such Personal
Property may be held by an individual or entity other than Tenant, and Landlord
may dispose of such Personal Property in any manner it deems proper, in its sole
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discretion. Tenant hereby waives and releases any claim against Landlord arising
out of the removal or disposition of such Personal Property. Tenant shall
reimburse Landlord for the cost of removing such Personal Property.
46. SIGNAGE. Tenant shall not place any signs, decals, or other materials
upon the windows or suite doors of the Premises nor on the exterior walls of
Premises. Landlord agrees to provide Tenant, at Tenant's expense, one Building
standard suite door tenant identification sign. Any additional signage desired
by Tenant shall be approved, in writing, by Landlord and the management company
of the Building, which shall be granted in their sole discretion.
47. CORING OF FLOOR. Landlord shall do any and all coring of floor that may
need to be done. Tenant shall not core the floor under any circumstances.
48. EFFECT OF TERMINATION OF LEASE. No termination of this Lease prior to
the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination thereof
49. RIGHTS CUMULATIVE. All rights, powers and privileges conferred
hereunder upon parties hereto shall be cumulative but not restrictive to those
given by law.
50. FORCE MAJEURE. In the event Acts of God, interruption of public
utilities, strike, lockout, labor trouble, civil commotion, or any other event
outside and beyond Landlord's control (collectively hereinafter called "Force
Majeure"), resulting in the impairment of Landlord's ability to perform any
obligation or provide any service hereunder, this Lease shall not terminate
except at Landlord's election, and Tenant's obligation to pay Base Monthly
Rental, Additional Rental and all other charges and sums due payable by Tenant
shall not be altered or excused and Landlord shall not be considered to be in
default under this Lease or liable in damages to Tenant in any manner.
51. TENANT CORPORATION, PARTNERSHIP OR INDIVIDUAL. If Tenant executes this
Lease as a corporation, each of the persons executing this Lease on behalf of
Tenant does hereby covenant, warrant and represent that Tenant is a duly
organized and validly 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 all persons signing on behalf of the
corporation were authorized to so do. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing covenants and warranties. If Tenant executes this Lease as a
limited liability company, each of the persons executing this Lease on behalf of
Tenant does hereby covenant, warrant and represent that tenant is a duly
organized and validly existing limited liability company, that Tenant has and is
qualified to do business in Georgia, that the limited liability company has full
right and authority to enter into this Lease, and that each and all persons
signing on behalf of the limited liability company 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. If
Tenant executes this Lease as a partnership, Tenant does hereby covenant,
warrant and represent that all of the persons who are general or managing
partners in said partnership have executed this Lease on behalf of Tenant, or
that this Lease has been executed and delivered pursuant to and in conformity
with a valid and effective authorization therefor, by all of the general or
managing partners of such partnership, and is and constitutes the valid and
binding agreement of the partnership and each and every partner therein in
accordance with its terms. Also, it is agreed that each and every present and
future partner of Tenant shall be and shall remain at all times jointly and
severally liable hereunder, and that the death, resignation, or withdrawal of
any partner shall not release the liability of such partner under the terms of
this Lease unless and until Landlord
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consents in writing to such release. If Tenant executes this Lease as an
individual, Tenant does hereby covenant, warrant and represent that his legal
residence address is that set forth below his signature on this Lease.
52. SUBMISSION OF LEASE. The submission of this Lease for examination does
not constitute an offer to lease nor a reservation of space even if said lease
is executed by Landlord, and this Lease shall be effective only upon execution
hereof by Landlord and Tenant and delivery of a counterpart thereof to Landlord
and Landlord's acceptance and final approval thereof
(This space intentionally left blank)
(Signatures are on the following page)
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
Agreement under seal as of the day and year first above written.
Signed, sealed and delivered in the presence of: TENANT:
Net Bank, Inc.
/s/ Dianne D. Chapin By: /s/ D.R. Grimes
------------------------------- -------------------------
Notary Public/Witness
Name: D.R. Grimes
---------------------
Notary Public, Cobb County, Georgia
My Commission Expires March 18, 2001 Title: CEO
----------------------
/s/ Dianne D. Chapin Attest: /s/Robert E. Bowers
------------------------------- ----------------------
Notary Public/Witness
Name: Robert E. Bowers
----------------------
Notary Public, Cobb County, Georgia
My Commission Expires March 28, 2001 Title: CFO
----------------------
Signed, sealed and delivered in the presence of: LANDLORD:
Windward Forest Partners, Inc.
/s/ M. Helen Falk By: /s/ C. Parker Day
------------------------------- -------------------------
Notary Public/Witness
Name: Manager
-----------------------
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SPECIAL STIPULATIONS
1. DELAY IN POSSESSION
Notwithstanding anything herein to the contrary, if possession of the Premises
is not delivered to Tenant by January 14, 1998, for any reason other than those
caused by Tenant, then Landlord shall promptly pay to Tenant $100.00 per day for
every day of delayed occupancy. If possession of the Premises is not delivered
to Tenant by June 15, 1998 for any reason other than those caused by Tenant and
force majeure as provided elsewhere in this Lease, Tenant may, at its option,
cancel this Lease and Landlord shall return all monies paid to Landlord and have
no further claim against Tenant.
2. OPERATING EXPENSE EXCLUSIONS
Notwithstanding anything in Paragraph 5 to the contrary, Operating Expenses
shall in no event include the items listed below:
a. the cost of any work or service performed for any tenant
(including Tenant) at such tenant's cost;
b. salaries of officers and executives of Landlord;
c. the cost of any items to the extent Landlord is reimbursed by
insurance;
d. interest on debt or amortization payments on any mortgage and
rental under ground lease or other underlying lease;
e. all leasing expenses, including any real estate brokerage
commissions incurred in procuring tenants;
f. any costs included in operating costs representing an amount
paid to a corporation related to Landlord which is in excess
of the amount which would have been paid in the absence of
such relationship;
g. charges (including applicable taxes) for electricity, steam
and other utilities consumed by other tenants in quantities
above Building Standard levels which are not separately
metered an paid for by any such tenant to the applicable
utility company;
h. any cost of painting or decorating of any tented part of the
Building excluding common areas;
i. the cost of any repair in accordance with the provisions
hereof relating to casualty or condensation;
j the cost and expenses related to a refinancing or sale of the
Property; and
k. the cost of removing any asbestos from the Building or Land,
or the cost of complying with any governmental rules,
regulations and statutes affecting the Building or Land.
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3. REPAIRS AND MAINTENANCE
Notwithstanding anything herein to the contrary, Landlord shall maintain and
keep in good repair the Building, including but not limited to all structural
repairs, roof, building exterior, parking, walkways, landscaping, plumbing,
electrical, mechanical and heating and air conditioning systems in the Premises
and Building and maintain the common areas in a manner consistent with other
similar buildings in the area.
4. DESTRUCTION OR DAMAGE
Notwithstanding anything contained in Paragraph 21 herein, if the Premises are
not restored and possession delivered to Tenant within one hundred eighty (180)
days from the date of the decision by Landlord to rebuild the Premises, then
Tenant may, at its option, terminate this Lease and Landlord shall have no
further claim against Tenant.
5. CONDEMNATION
Notwithstanding the provisions of Paragraph 23 of the Lease, Tenant shall be
entitled to retain any condemnation proceeds which are separately awarded to
Tenant or which are otherwise available under applicable law, including but not
limited to the value of Tenant's interest in the lease, moving costs and other
costs of relocation, the interruption of or damage to Tenant's business, and the
loss of good will, provided that any such award to Tenant shall in no way reduce
the proceeds awarded to Landlord.
6. COMPLIANCE WITH BUILDING CODES
Notwithstanding anything herein to the contrary, Landlord hereby represents and
warrants to Tenant that the Premises have been constructed and completed in
compliance with all applicable federal, state and municipal laws, ordinances,
and regulations, and building and fire codes.
7. CONSTRUCTION WARRANTY
All workmanship and materials used in construction of the Building and Premises
shall be free of any material defect(s) for a period of one (1) year from Term
Commencement Date. Upon notification in writing by Tenant to Landlord of
defect(s), Landlord shall promptly repair or cause to be repaired same.
8. RESERVED
9. ENVIRONMENTAL
To the best of Landlord's knowledge, information and belief, the Property is
free of hazardous substances, underground storage tanks, contaminants, oil
radioactive, or other dangerous materials including, without limitation,
asbestos and PCBs.
10. ASSIGNMENT AND SUBLETTING
Notwithstanding the provisions of Paragraph 10 of this Lease, Tenant shall have
right, without the prior consent of the Landlord, to assign this Lease or sublet
the whole or any part of the Premises to a corporation or entity which: 1) is
Tenant's parent corporation; or 2) is a wholly-owned subsidiary of Tenant or
Tenant's parent corporation; or 3) is a corporation of which Tenant or Tenant's
parent corporation owns in excess of fifty percent (50%) of the outstanding
capital stock; or 4) as a result of consolidation or merger with Tenant and/or
Tenant's parent corporation. Any transfer pursuant to 1, 2, 3 or 4 above, shall
be subject to the following conditions: a) Tenant shall remain fully liable
during the unexpired term of this Lease; and b) any such assignment, sublease or
transfer shall be subject to all of the terms, covenants and conditions of this
Lease, and such assignee, sublessee or transferee shall expressly assume the
obligations of Tenant under the Lease by a document reasonably satisfactory to
Landlord.
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11. QUIET ENJOYMENT
So long as Tenant is not in default, Landlord and its successors and assigns
shall not interfere with Tenant's quiet use and enjoyment of the Premises.
12. RENEWAL OPTION
If Tenant is not in default under any of the provisions of this Lease, Landlord
hereby grants Tenant an option to extend the Lease Term for one additional five
(5) year term by giving written notice to Landlord eight (8) months prior to the
expiration of the original Lease Term. Except as otherwise provided herein, the
Base Monthly Rental during the renewal term will be the market rates prevailing
for similar quality office space located in the North Fulton submarket of
Atlanta, Georgia. Market Rate shall be defined as the then fair market rental
value of the Premises as of the date of commencement of the renewal term,
determined in accordance with the provisions set forth below. The fair market
rental value of the Premises shall mean the rental that would be agreed to by a
landlord and a tenant, each of whom is willing, but neither of whom is
compelled, to enter into the lease renewal transaction. The fair market rental
value shall be determined on the basis of the assumptions that (1) the operating
expense stop shall be updated on the first full calendar year under the renewal
based on the actual expenses for the previous year, and (2) the fair market
rental value shall be projected to the commencement date of the applicable
renewal term. The fair market rental value to be determined shall not take into
account any special tenant improvements or any special uses or rights afforded
to Tenant under the Lease in connection with the Premises, but shall take into
account the following factors:
i. Rental for comparable premises in comparable existing buildings,
(taking into consideration, but not limited to, use, location
and/or floor level within the applicable building, quality, age
and location of the applicable buildings);
ii. The rentable area of the premises being leased;
iii. The length of the rental term as it pertains to the renewal
exclusive of the length of the initial Term;
iv. The extent to which the improvement allowance, rent credit, tenant
improvement allowances, space planning allowance, or similar
inducements given to Tenant are less, or greater, than that which
would have been given to a comparable tenant in a comparable
building.
Within thirty (30) days of receipt of such notice from Tenant exercising this
option, Landlord shall notify Tenant of the Base Monthly Rental and other terms
of the renewal term. If the Landlord and Tenant are unable to agree upon the
fair market net rental value, then Tenant may rescind its exercise of this
renewal option by giving Landlord notice no later than 180 calendar days prior
to the expiration of the lease term and shall have no further obligation to
renew this Lease.
13. TENANT IMPROVEMENTS-Common Area Restrooms
Landlord at its sole cost shall install common area restrooms which shall be
accessible to Tenant. They shall be constructed to all applicable building and
handicapped codes in effect at the time of construction.
14. RENTAL ABATEMENT
Notwithstanding anything herein to the contrary, the first two (2) full months
of occupancy shall be rent free.
15. AUDIT RIGHTS
Landlord agrees that it shall allow Tenant or Tenant's representatives to
inspect and audit the books and records of Landlord that pertain to payments by
Tenant of Tenant's share of Operating Expenses, at any reasonable time at the
office of the Landlord or any reasonable location within the Atlanta metro area
that
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said books might be maintained, and upon at least (10) days prior written
notice to Landlord, to determine the reasonableness and fairness of such
charges, provided that Landlord shall not be required to maintain its books and
records for inspection or audit by Tenant for more than twelve calendar months
after the due date of such charges to which they pertain. Tenant shall have the
right to reasonably contest such charges, and tenant may not inspect more than
once in any calendar year.
16. Reserved
17. AFTER HOURS SECURITY
An after hours roving security guard service will be provided by Landlord for
the security of all tenants in the Building.
18. ACCESS
The building can be accessed 24 hours a day, 365 days per year.
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RULES AND REGULATIONS
1. "Normal business hours" shall mean the days Monday through Friday, inclusive,
except legal holidays, during the hours from 8:00 a.m. to 6:00 p.m., and
Saturdays, except legal holidays, from 8:00 a.m. to 1:00 p.m. At all other times
every person, including Tenant, Tenant's employees, agents clients, customers,
invitees and guests entering and leaving the Building may be questioned by a
security guard as to that person's business therein, and may be required to sign
such person's name on a form for registering such person. Landlord reserves the
right to exclude from the Building between the hours of 6:00 p.m. and 8:00 a.m.
and at all hours on Saturdays, Sundays, and holidays all persons who are not
occupants or their accompanied guests. Tenant shall be responsible for all
persons for whom it allows to enter the building and shall be liable to Landlord
for all acts of such persons. Landlord reserves the right to exclude or expel
from the Building any persons who, in the opinion of Landlord, are or appear to
be intoxicated or under the influence of liquor or drugs or who is in violation
of any of the rules and regulations of the Building. Landlord shall in no case
be liable for damages for error with regard to the admission to or exclusion
from the Building of any person. During the continuance of any invasion, mob,
riot, public excitement or other circumstances rendering such action advisable
in the opinion of Landlord, Landlord reserves the right to prevent access to the
Building by closing the doors, or otherwise, for the safety of the occupants and
protection of the Building and property in the Building.
2. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building or on corridor walls. Signs on the door or doors of the
Premises shall conform to Building standard signs. Signs on doors shall, at
Tenant's expense, be inscribed, painted or affixed by sign makers approved by or
on behalf of Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to Tenant.
3. The sidewalks, entry passages, corridors, and halls shall not be obstructed
by Tenant, or used for any purpose other than for ingress and egress. Tenant
shall not be allowed to move in or move out of Premises during normal business
hours Monday through Friday. Tenant will insure that movers take necessary
measures required by Landlord to protect Building (e.g., windows, carpets,
walls, and doors) from damage. The halls, passages, exits, and entrances, are
not for the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence, in
the judgment of Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building and its occupants, provided that
nothing herein contained shall be construed to prevent such access to persons
with whom Tenant nominally deals in the ordinary course of Tenant's business
unless such persons are engaged in illegal activities. The toilet rooms,
toilets, urinals, wash bowls and other apparatus shall not be used for any
purpose other than that for which they were constructed and no foreign substance
of any kind whatsoever, including, but not limited to, coffee grounds shall be
thrown therein, and the expense of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by the Tenant, Tenant's
employees, agents, clients, customers, invitees and guests, who shall have
caused it.
4. No curtains, draperies, blinds, shutters, shades, screens or other coverings,
awnings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with, any window or door of the Premises without the prior
written consent of Landlord. In any event with the prior written consent of
Landlord all such items shall be installed inboard of the Building standard
window blinds and shall in no way be visible from the exterior of the Building.
Tenant shall not remove the Building standard window blinds installed in the
Premises. No articles shall be placed or kept on the window sills so as to be
visible
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from the exterior of the Building. No articles shall be placed against glass
partitions or doors which might appear unsightly from outside Tenant's Premises.
5. No Tenant shall do or permit to be done in said Premises, or bring to keep
anything therein, which shall in any way obstruct or interfere with the rights
of other occupants or in any way injure or annoy them. Tenant and Tenant's
employees, agents, clients, customers, invitees and guests shall maintain order
in the Building, shall not make/permit any improper noise in the Building or
interfere in any way with other occupants or those having business with them.
Nothing shall be thrown by Tenant, Tenant's employees, agents, clients,
customers, invitees and guests out of the windows or doors, or down the passages
of the Building. No rooms shall be occupied or used as sleeping or lodging
apartments at any time. No part of the Building shall be used or in any way
appropriated for gambling, immoral or other unlawful practices, and no
intoxicating liquor or liquors shall be sold in the Premises or Building without
the written consent of Landlord.
6. Tenant shall not, without the written consent of Landlord, put up or operate
any fans, electric heaters, machinery or stove upon the Premises, or carry on
any mechanical business thereon, or use or allow to be used upon the Premises,
oil, burning fluids, camphene, gasoline or kerosene for heating, warming or
lighting. No cooking except by microwave oven shall be done or permitted by
Tenant on the Premises except in conformity with law and then only in the
utility kitchen, if any, as set forth in Tenant's layout, which is to be
primarily used by Tenant's employees for heating beverages and light snacks. No
article deemed extra hazardous on account of fire and no explosives shall be
brought into the Premises. No offensive gases or liquids will be permitted.
7. No bicycles, vehicles, birds or animals (except seeing eye dogs) of any kind
shall be brought into or kept in or about the Premises.
8. No painting shall be done, nor shall any alterations be made, to any part of
the Premises or Building by putting up or changing any partitions, doors or
windows, nor shall there be 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. No
sunscreen or other films shall be applied to the interior or exterior surface of
any window glass. All glass, locks and trimmings in or upon the doors and
windows of the Building shall be kept whole and, when any part shall be broken,
the same shall be immediately replaced or repaired and put in order under the
direction and to the satisfaction of Landlord, and shall be left whole and in
good repair. Tenant shall not injure, overload or deface the Building, the
woodwork or the walls of the Premises.
9. No additional lock, latch, bolt or access device of any kind shall be placed
upon any door or any changes be made in existing locks or mechanism thereof by
Tenant without the consent of Landlord. Notwithstanding anything to the
contrary, it is understood that Tenant may have confidential areas which may
need special security and which may require locks to which Landlord may not
receive keys. Any request for such locks shall not be unreasonably withheld,
delayed, or denied by Landlord. Tenant acknowledges that janitorial service may
have to be an extra charge to Tenant in such rooms if access is denied
Landlord's janitorial staff during their regular hours of duty. Upon
commencement of this Lease, Landlord shall provide, at no expense to Tenant, two
entrance door keys. The cost of providing additional keys to Tenant shall be
borne by Tenant. At the termination of this Lease, Tenant shall return to
Landlord all keys to doors in the Building furnished to Tenant by Landlord and
those keys otherwise procured by Tenant. Tenant may place security cameras on
the outside of the property in reasonable locations with Landlord's permission,
which shall not be unreasonably withheld, delayed, or denied.
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10. Tenant assumes any and all responsibility for protecting Premises from theft
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed. On multiple-tenancy floors, all occupants shall
keep the door or doors to the Building corridors closed at all times except for
ingress and egress.
11. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which is
allowed by law. Tenant, Tenant's employees, agents, clients, customers, invitees
and guests, shall not bring in or take out, position, construct, install or move
any safe, business machine or other heavy office equipment without first
obtaining the consent of the Landlord. In giving such consent, Landlord shall
have the right in its sole discretion, to prescribe the weight permitted and the
position thereof, and the use and design of plunks, skids or platforms to
distribute the weight thereof. All damage done to the Building by moving or
using any such heavy equipment or other office equipment or furniture shall be
repaired at the expense of Tenant. The moving of all heavy equipment or other
office equipment or furniture shall not occur during normal business hours
Monday through Friday and the persons employed to move the same in and out of
the Building must be acceptable to Landlord. Safes and other heavy office
equipment will be moved through the halls and corridors only upon steel bearing
plates or other methods approved by Landlord.
12. The Landlord will post on the Building directory Tenant's name only at no
charge. All additional names winch Tenant shall desire put upon the directory
shall, if approved by the Landlord, be placed on the Building's directory. A
charge by the Landlord to Tenant will be made for each such additional listing
representing Landlord's actual cost to purchase and install such directory
listings.
13. No Tenant shall employ any person or persons other than the janitor of the
Landlord (who will be provided with pass-keys into the offices) for the purpose
of cleaning Premises. Except with the written consent of the Landlord, no person
or persons other than those approved by the Landlord shall be permitted to enter
the Building for the purpose of cleaning same. Tenant shall not cause any
unnecessary labor by reason of such Tenant's carelessness or indifference in the
preservation of good order and cleanliness of the Premises. Landlord shall in no
way be responsible to Tenant for any loss of property on the Premises, however,
occurring, or for any damage done to the effects of Tenant by the janitor or any
other employee or any other person. Tenant shall at the end of each business day
leave the Premises in a reasonably tidy condition for the purpose of the
performance of cleaning.
14. Without the prior written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address. Landlord shall each have the right to
prohibit any advertising by Tenant which, in the opinion of Landlord, tends to
impair the reputation of the Building or its desirability as a building for
offices, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
15. Except as expressly provided to the contrary herein, Landlord, and
Landlord's respective agents, employees and contractors shall have the right to
enter the Premises at all reasonable hours, for the purpose of making any
repairs, alterations, or additions which it shall deem necessary for the safety,
preservation, or improvement of the Building; and Landlord, and Landlord's
respective agents, employees and contractors shall be allowed to take all
material into and upon said Premises that may be required to make such repairs,
improvements, and additions, or any alterations for the benefit of the Tenant
without in any way being deemed or held guilty of an eviction of the Tenant; and
the rent reserved shall in no way abate while said repairs, alterations, or
additions are being made; and the Tenant shall not be entitled to maintain a
setoff or counterclaim for damages against the Landlord, and Landlord's
respective agents, employees and contractors by reason of loss or interruption
to the business of the Tenant because of the prosecution of
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any such work. All such repairs, decorations, additions, and movements shall be
done during normal business hours, or, if any such work is at the request of the
Tenant to be done during any other hours, the Tenant shall pay for all overtime
work.
16. Tenant shall observe and obey all parking and traffic regulations as imposed
by Landlord. The parking facilities shall be used by vehicles that may occupy a
standard parking area only. Moreover, the use of the parking facilities shall be
limited to normal business parking and shall not be used for a continuous
parking of any other vehicle regardless of size.
17. The requirements of Tenant will be attended to only upon application to the
management of the Building. Building employees shall not perform any work or do
anything outside of their regular duties, unless under special instruction from
the management office.
18. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and Tenant shall cooperate
to prevent the same. Tenant shall not make room-to-room solicitation of business
from other occupants in the Building.
19. Tenant shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air-conditioning. Tenant will observe strict care and
caution that all water faucets or water apparatus are entirely shut off before
the Tenant, Tenant's employees, agents, clients, customers, invitees and guests
leave the Premises, and that all utilities shall likewise be carefully shut off
so as to prevent waste or damage, and for any default or carelessness, the
Tenant shall make good all injuries sustained by other occupants of the
Building. Tenant will comply with all energy conservation, safety, fire
protection and evacuation procedures and regulations established by Landlord or
any governmental agency.
20. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, Tenant shall first obtain, and comply with, the instructions of
Landlord in their installation. The Landlord will direct electricians as to
where and how telephone, telegraph and electrical wires are to be introduced or
installed. No boring or cutting for wires will be allowed without the prior
written consent of the Landlord. The location of burglar alarms, telephones,
call boxes or other office equipment affixed to the Premises shall be subject to
the written approval of Landlord. Tenant shall not install any radio or
television antenna, loudspeaker or any other device on the exterior walls or the
roof of the Building. Notwithstanding anything to the contrary herein, any
consent or approval required for this section shall not be unreasonably
withheld.
21. Tenant shall store all trash and garbage within the interior of the
Premises. No materials shall be placed in the trash boxes or receptacles if such
materials are of such nature that they may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and garbage in this area
without violation of any law or ordinance governing such disposal. All trash,
garbage and refuse disposal shall be made only through entryways and provided
for such purposes and at such times as Landlord may designate.
22. Tenant shall provide and maintain hard surface protective mats under all
desk chairs which are equipped with casters to avoid excessive wear and tear to
carpeting. It Tenant fails to provide such mats, the cost of carpet repair or
replacement made necessary by such excessive wear and tear shall be charged to
and paid for by Tenant.
23. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, or heating apparatus so that such accidents or
defects may be attended to properly.
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24. Tenant shall be responsible for the observance of all of the foregoing Rules
and Regulations by Tenant's employees, agents, clients, customers, invitees and
guests. These Rules and Regulations are in addition to and as a supplement of,
and shall not be construed to in any way otherwise modify, alter or amend, in
whole or in part, the terms, covenants, agreements and conditions of the Lease
Agreement.
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EXHIBIT A
FLOOR PLAN
[Diagram of floor space appears here]
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EXHIBIT B
TENANT FINISH AGREEMENT
WINDWARD FOREST
This Agreement, made this 15th day of September, 1997, Windward Forest
Partners, L.L.C., a Georgia limited liability company (hereinafter referred to
as "Landlord") and Net Bank, Inc., a Georgia corporation (hereinafter referred
to as "Tenant").
W I T N E S S E T H
WHEREAS, the undersigned Landlord and Tenant have executed and delivered a
certain Lease Agreement (hereinafter referred to as the "Lease") to which this
Agreement is attached, and into which this agreement is fully incorporated by
reference, as Exhibit "B";
WHEREAS, the Lease provides for the leasing of space (the "Premises")
within Windward Forest Office Building, 950 Northpoint Parkway, Alpharetta,
Fulton County, Georgia (hereinafter referred to as the "Building");
WHEREAS, terms which are defined in the Lease when used herein shall have
the same meanings ascribed thereto as set forth in the Lease; and
WHEREAS, Landlord and Tenant desire to set forth herein their respective
agreements regarding the improvements of the Premises;
NOW THEREFORE, in consideration of the foregoing recitals, the execution
and delivery of the Lease by the parties hereto, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
Section 1. Tenant Improvements
Section 1.01 Tenant Improvements
The term "Tenant Improvements" shall mean all improvements constructed or
installed in or on the Premises in accordance with the Drawings and
Specifications, as hereinafter defined.
Section 1.02 Base Building Condition
The term "Base Building Condition" shall mean the condition of the Premises
after Landlord's substantial completion of construction of the Building in
accordance with those certain plans and specifications of the project manual and
construction drawings dated October 7, 1996, provided that Landlord shall be
entitled to make changes, modifications and alterations in said plans and
specifications from and after the date hereof. It is acknowledged that upon
completion of construction of the Building by Landlord, Base Building Condition
shall include only building shell, as defined further in Section 1.03 below, and
shall not include any tenant finish improvements or other items whatsoever above
and beyond building shell. Except as provided for in the Lease, Tenant hereby
accepts Base Building Condition of the Building and Premises as so constructed
by Landlord "As Is".
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Section 1.03 Building Shell
The term "Building Shell" shall include all those items in the building
which are not particular to any tenant but support all tenants such as roof,
exterior walls, windows and doors, common area bathrooms, hallways, exit
corridors, mechanical rooms and closets, telephone rooms and closets, janitor
rooms and closets, fire sprinkler risers and building standard sprinkler grid,
and any other common areas typical of a comparable office building in this
submarket of Atlanta. Not included within the Base Building Condition and as
part of the Building Shell, but to be provided for through Landlord's Allowance
for Tenant improvement Costs, as hereinafter defined, or paid for directly by
Tenant to Landlord as Tenant Costs, as hereinafter defined, shall be the
following labor and materials which shall be required to be specified by
Tenant's Architect, as hereinafter defined, in all construction documentation
with respect to the Premises concerning such matters:
(1) Acoustic Ceiling
(a) Grid: 2'x2'x15/16th recessed grid: USG Donn
"DX-Intermediate Duty" grid with white enamel finish.
Grid system to be installed throughout Premises.
(b) Tile: 5/8 inch thick 2'x2' regular tile for recessed
grid: Armstrong Georgian Minatone.
(2) Mechanical (HVAC)
(a) Furnish and install mechanical HVAC equipment to generate heat
and air conditioning to Tenant's Premises consistent with
comparable buildings in this submarket of Atlanta, which shall
be installed on the roof above the Premises and within
premises as needed.
(b) Provide and install controls for HVAC equipment.
(c) Furnish and install interior zone supply ductwork and return
air ducts, from rooftop units to Premises.
(d) Balance the mechanical installation (fire dampers, spinins,
flex supply diffusers, return air grills, HVAC controls, final
test and balance) as needed.
(e) Provide engineering drawings for permitting with the proper
authorities.
(3) Electrical and Lighting
(a) Electrical systems to all common area building elements
normally requiring electricity for their operation and
electrical distribution panels to provide electrical service
to those systems for 110 volt utility outlets, lighting, and
other permitted electrical uses by Tenant. This electrical
load for each tenant shall not exceed five (5) watts per
square foot for lighting, normal business machine (110 volt)
outlets, and all other direct electrical consumption by
Tenant.
(b) Standard 2'x4' lay-in fixture to be Lithonia 2pm4gb34018dl20es
with parabolic lenses and 3 cool white lamps, or equal.
(c) Standard downlight to be Halo 5" diameter with DAR-30 lamp and
black step baffle reflector.
(d) All Tenant exit lights, emergency power packs, and electrical
panels to be provided by Tenant as part of Tenant
Improvements.
(e) Electrical Panels to be Siemans, Square "D", ITE, or equal.
(f) Provide engineering drawings as required for permitting, to
record drawings, and submittals for permitting, which shall
indicate panel layout and fixtures controlled by each circuit.
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(4) Sprinkler Head Grid
The standard delivery of unfinished space shall include all those
sprinkler heads installed on a grid pattern sufficient to satisfy the
appropriate governmental authorities as to the fire safety of the Building for
occupancy thereof Included in the Tenant's cost of Tenant Improvements shall be
the relocation of any of those existing sprinkler head locations and the
addition of any new sprinkler head locations caused by Tenant's design and
layout of the Premises. With respect to those tenant's whose construction
documents are completed prior to the construction of the initial grid's
placement, those tenants shall not be responsible for the cost to relocate, but
only for the additional heads and the costs of their placement to the extent it
falls outside the grid as it would have been installed in the Base Building
Condition.
(5) Drywall partitions
(a) Tenant Demising and Corridor Walls
(1) Construction: One (1) layer of 5/8" fire rated
drywall on office side over 25 gauge 3 5/8"
metal studs at 24" O.C. with 1 layer 1/2"
drywall on office side. Wall cavity to contain
3 1/2" batt insulation and built and sealed
to roof deck to obtain a fire rating of 1 hour
(U.L. Design U465).
(b) Standard Office Partitions
(1) Construction: 25 gauge 3 5/8" metal studs at
24" O.C. with 1 layer 1/2" drywall on each
side. Walls to be 9' high or as needed to
fit abutment to windows.
(c) Finishing Out of Exterior Walls in Finished Area
(1) Construction: 25 gauge 3 5/81' metal studs
at 24" O.C. with 1 layer 1/2" drywall on
office side. Wall cavity to have 3 1/2" batt
insulation. Height to be 9' high or as
needed to fit window conditions of Shell Building.
(6) Doors and Hardware
(a) Tenant entry doors: storefront doors to match building shell per
storefront manufacturer.
(b) Standard tenant door: 3'-0" x 8'-0", 1 3/4 " thick, solid core
birch door.
(c) Building Services door: 3'-0" x 8'-0", 1 3/4 " thick, solid core
birch door.
(d) Frame: Knockdown hollow metal, painted.
(e) Hardware sets:
(1) Schlage heavy duty mortise locks L9000 series with 07
lever US26B except USS32B at public corridors
(2) Closers: LCN 1460 US26B at public corridor doors
(f) Typical interior door hardware:
(1) Hinges: 1 1/2 pair 4 1/2x4 US26D
(2) Hardware sets: Schlage AL Series cylinder lock sets US25D
with "Jupiter" lever.
(3) Closers: Not applicable
(g) "B" label door: Same as Building Services door above except it has
1 hr. fire rating, 1 each lever lock set and closer. Frame shall
be welded to have I hr. fire rating.
(h) "C" label door: Same as Building Services door above except it has
20 min. fire rating, 1 each lever lock set and closer.
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(7) Window Treatment
Horizontal blinds to be Bali/Graber 1" mini blinds which shall
be furnished and installed by Landlord as part of Building Shell.
(8) Floor Covering (the following are suggestions and will be used
for all preliminary pricing, but in no way are intended to suggest use or limit
Tenant's ability to chose any floor covering desired by Tenant).
(a) Carpet:
(1) Offices, Open areas: Shaw Commercial Shoal
Creek H 36 oz. or equal $12.00 per yard of
material and installation cost.
(2) Reception, Corridor, Conference: Carnegie
or equal at $20.00 per yard material and
installation cost.
(b) Vinyl composite tile: Kitchen, Break Room/Area, Work
Room: Armstrong or equal at $ 1.10 per square foot
material and installation cost.
(c) Rubber cove base: Roppe or equal 4" standard color at
1.00 linear foot material and installation cost.
(9) Wall Covering (the following are suggestions and will be used for
all preliminary pricing, but in no way are intended to suggest use or limit
Tenant's ability to chose any floor covering desired by Tenant).
(a) Standard tenant wall covering allowance: Corridor,
$1.40 per square foot material and installation cost.
(b) Tenant wall covering allowance upgrade: Reception/
Conference Rooms, etc.: $3.00 per square foot material
and installation cost.
(10) Painting (the following are suggestions and will be used for all
preliminary pricing, but in no way are intended to suggest use or limit Tenant's
ability to chose any floor covering desired by Tenant).
(a) Walls: 2 coats Porter Paints, Duron or approved equal latex
flat paint.
(b) Wood doors: color stained with three coat precatalyze
conversion varnish finish, M. L. Campbell "Magnalac" or
approved equal.
(c) Metal doors: alkyd gloss paint
(d) Door frames: alkyd gloss paint.
(11) Millwork (if applicable) (the following are suggestions and will
be used for a preliminary pricing, but in no way are intended to suggest use or
limit Tenant's ability to chose any floor covering desired by Tenant).
(a) Cabinets
(1) Flush construction cabinets with face frame and
plastic laminate finish complying with AWI Section
400 for "Custom" Grade Cabinets.
(2) Plastic laminate on all exposed surfaces by
Nevamar, Wilsonart, or equal.
(3) Melamine on all interior surfaces: white unless
noted otherwise.
(b) Reception desk and other casework:
(1) Comply with AWI Section 400 and 400A for "Premium"
grade casework and cabinets with natural finish.
(2) Finish to be custom color stain with three coat
precatalyzed conversion varnish, M.L. Campbell
"Magnalac".
(c) Cabinet Hardware
(1) Hinges: Blum concealed clip hinge 125 degrees
full overlay #Blum 77M-558.
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(2) Slides: Blum, epoxy coated European slide 4 Blum
230 M-550 3/4 extension, 100 lb. white bottom
mount.
(3) Pulls: $3.00 allowance per pull.
(d) Countertops: All countertops to be high pressure decorative laminate
complying with AWI standards for "custom grade" countertop from a full range of
manufacturers standard color, patterns and finishes from Laminart, Wilson Art,
Nevamar, Formica, or equal.
(12) Plumbing
(a) Standard breakroom sink to be Polar 4955-5 or equal, with
Kohler double blade handle faucet with 8" spread.
(b) Electric water heaters to be A.O. Smith Model #ELJ-6 or
equal.
(c) Provide riser diagram and other engineering drawings
necessary for permitting. Provide record drawings and
submittals.
Section 2. Drawings and Specifications
Section 2.01. Definition
The term "Drawings and Specifications" shall mean the final drawings,
specifications, and finish schedules for the Tenant Improvements which shall be
prepared and approved by Landlord and Tenant in accordance with the following
procedure:
(a) As soon as possible after execution of this Tenant Finish
Agreement, but in no event later than ten (10) days thereafter, Tenant
shall either inform Landlord that Tenant desires to use the Architect
designated by Landlord ("Landlord's Architect") to prepare final
working drawings as necessary to commence construction of the Tenant
Improvements or inform Landlord of the identity of the architect or
other design specialist whom Tenant desires to use for such work.
Landlord shall have the right of approval over any architect or other
design specialist selected by Tenant and shall advise Tenant promptly
of Landlord's decision either approving or disapproving the person or
firm selected by Tenant.
(b) If Tenant elects to use Landlord's Architect as provided in
subsection (a) above, Tenant shall commence working with said architect
promptly so that final working drawings and specifications can be
prepared for Landlord's approval. If Tenant elects to use an
independent architect or design specialist and if the same is approved
by Landlord, Tenant agrees to commence working with such professional
promptly and further agrees that such work shall be performed in
accordance with professional standards for design and construction
criteria. The architect selected by Tenant, whether Landlord's
Architect or other architect or design specialist selected by Tenant
with Landlord's approval, shall hereinafter be referred to as the
"Tenant's Architect".
(c) As soon as reasonably possible, but no more than thirty (30) days
after making its election under subsections (a) and (b) above, Tenant
shall deliver to Landlord Tenant's proposed final working drawings and
specifications for the Tenant Improvements. Landlord shall promptly
review and resubmit the same to Tenant, either with Landlord's
approval, or with Landlord's approval subject to comments, or with
Landlord's disapproval. If Landlord fails to respond within thirty (30)
days after receiving such proposed final drawings and specifications,
Landlord shall be deemed to have given its disapproval. Tenant shall
resubmit any such draw' s and specifications which are returned by
Landlord without complete approval as promptly as possible, and such
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resubmitted drawings and specifications shall contain the information
or changes required by Landlord. Once Landlord then satisfies itself
that such drawings and specifications are acceptable, Landlord shall so
notify Tenant and the same shall constitute the "Drawings and
Specifications" for purposes of this Tenant Finish Agreement.
(d) Promptly after receipt of the Drawings and Specifications, Landlord
shall obtain from a contractor designated by Landlord ("Landlord's
Contractors") price estimates for the Tenant Improvements and shall
submit the same to Tenant for its selection and approval. If Tenant
disapproves such price estimate, Tenant agrees to work promptly with
Tenant's Architect to value engineer and redraw and reissue
Construction Drawings, which shall be rebid by Landlord's contractors.
Upon receipt of final bids, Tenant shall select Contractor. Selection
of the winning bid shall be based on the lowest price unless Tenant
(with Landlord's reasonable agreement) shall select a high bidder
("Landlord's Contractor" hereinafter). The aggregate cost for the
Tenant Improvements, once approved by Tenant, shall hereinafter be
referred to as "Tenant Improvement Costs". Upon determination of the
Tenant Improvement Costs, Tenant shall be deemed to have given final
approval to the Drawings and Specifications and Landlord shall be
deemed to have been authorized to proceed with the work of constructing
and installing the Tenant Improvements in accordance with the Drawings
and Specifications. See Exhibit "B-I" for the Schedule which outlines
the agreed to dates for this process.
Section 3. Payment of Costs
Section 3.01 Reserved
Section 3.02 Landlord's Allowance for Tenant Improvement Costs.
Landlord shall pay the Tenant Improvement Costs up to, but not
exceeding, the amount of $136,000.00 (the "Landlord's Allowance for Tenant
Improvement Costs") (calculated at the rate of $20.00 per usable square foot of
the Premises, as outlined on Exhibit "A" and attached to this lease).
Section 3.03 Tenant's Costs
Tenant shall pay to Landlord, as additional rental, the following:
(a) The Tenant Improvement Costs over and above the Landlord's
Allowance for Tenant Improvement Costs;
(b) The cost (including fees for architects, engineers, interior
designers and other professionals) for preparing and finalizing all
drawings and specifications as set forth in Sections 2.01 (a) through
(d), and
(c) The cost of making any and all changes in and to the Drawings and
Specifications and any and all increased costs in the Tenant
Improvement Costs, including construction management fees, resulting
therefrom.
The aggregate of all costs described above in subsections (a) through
(c) of this Section 3.03 are hereinafter referred to collectively as "Tenant's
Costs".
Section 3.04 Payment Schedule for Tenant's Costs.
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Tenant shall pay to Landlord the Tenant's Costs as follows:
(a) Fifty percent (50%) of the amount of Tenant's Costs then known to
Landlord and Tenant shall be paid prior to the commencement of any work
of constructing and installing the Tenant Improvements;
(b) Forty percent (40%) of the amount of Tenant's Costs then known to
Landlord and Tenant shall be paid within thirty (30) days after the
commencement of the work of constructing and installing the Tenant
Improvements; and
(c) The balance of Tenant's Costs shall be paid immediately upon
Landlord's notification to Tenant that the work of constructing and
installing the Tenant Improvements has been substantially completed,
and upon the approval of work by Tenant, such approval not to be
unreasonably withheld.
Section 3.05 Changes in Drawings and Specifications
If at any time after the Tenant Improvement Costs are determined Tenant
desires to make changes in the Drawings and Specifications, Tenant shall submit
to Landlord for approval working drawings and specifications for any and all
such desired changes. The process of finalizing and approving such drawings and
specifications shall be in the same manner as set forth in Section 2 above. Once
any and all changes and modifications are approved, Landlord shall promptly
submit the same to Landlord's Contractor for pricing. The procedure for
determining an approval cost for such changes shall be set as set forth in
Section 2 above. Once a cost for such changes has been approved, a references in
this Agreement to "Drawings and Specifications" shall be to the Drawings and
Specifications adopted pursuant to the procedures of Section 2 above, as changed
and modified pursuant to this Section 3.05, and all references to "Tenant
Improvement Costs" shall be deemed to include the aggregate approved costs for
the changes as determined in this Section 3.05. Once the changes and the costs
thereof have been approved, Tenant shall be deemed to have the given full
authorization to Landlord to proceed with the work of constructing and
installing Tenant Improvements in accordance with the Drawings and
Specifications, as changed and modified. Landlord shall have the optional right
to require Tenant to pay one lump sum to Landlord, in advance of commencement of
any work for any and all increases in the Tenant Improvement Costs which result
from approved changes to the Drawings and Specifications.
Section 3.06 Failure to Pay Tenant Costs
Failure by Tenant to pay Tenant's Costs in accordance with this Section
3 will constitute a failure by Tenant to pay rent when due under the Lease and
shall therefore constitute a default by Tenant under the Lease, and Landlord
shall have all of the remedies available to it under the Lease and at law or in
equity for nonpayment of rent.
Section 3.07 Landlord's Disbursement Obligations
Landlord agrees to disburse the Landlord's Allowance for Tenant
Improvement Costs and the Tenant Costs (to the extent deposited by Tenant with
Landlord) to pay the Tenant improvement Costs as and when the same become due
and payable. Landlord shall be entitled to rely on the accuracy of any and all
invoices and fee statements for labor and materials performed on or furnished to
the Premises in
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connection with the Tenant Improvements and to rely, to the extent submitted,
on any and all certifications as to Tenant Improvement Costs submitted by
Landlord's Contractor and/or Tenant's Architect.
Section 3.08 Finish Work in Addition to Tenant Improvements
All work in or about the Premises which is not within the scope of the
work necessary to construct and install the Tenant Improvements, such as
delivering and installing furniture, telephone equipment, wiring, and office
equipment, shall be furnished and installed by Tenant entirely at Tenant's
expense. Tenant shall adopt a schedule for performing such additional work
consistent with the schedule of Landlord's Contractor and shall see that such
work is conducted in such a manner as to maintain harmonious labor relations and
as not to interfere unreasonably with or to delay the work of constructing or
installing the Tenant improvements. Tenant agrees further that such additional
work shall be conducted and accomplished so as not to interfere with Landlord's
ability to obtain a certificate of occupancy for the Premises, and the costs
associated with curing or correcting such interference, if any, shall be part of
Tenant's Costs. Landlord shall give to Tenant and its contract parties
performing such additional work access and entry to the Premises and reasonable
opportunity and time to enable Tenant and such contract parties to perform and
complete such work. All of such additional work and Tenant's use (and the use by
its contract parties) of the Premises for such purposes shall be entirely in
accordance with the Lease, including without limitation this Agreement.
Section 3.09 Schedule
Subject to the terms of this Agreement and the other provisions of the
Lease, Landlord and Tenant agree to use their best efforts to comply with the
Schedule for planning, Pricing and Construction of Tenant Improvements, attached
hereto as Attachment "B-1".
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date and year first above stated.
LANDLORD:
Windward Forest Partners, L.L.C., a Georgia limited liability company
By: /s/ C. Parker Day
------------------------------------
Title: Manager
---------------------------------
TENANT:
Net Bank, Inc.
-------------------
a Georgia corporation
--------------------------------------
By: /s/ D.R. Grimes
------------------------------------
Title: CEO
---------------------------------
By: Robert E. Bowers
Title: CFO
---------------------------------
[CORPORATE SEAL)
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EXHIBIT B-1
SCHEDULE FOR PLANNING, PRICING AND CONSTRUCTION OF
TENANT IMPROVEMENTS
ALL DATES 1997, unless noted otherwise and are deadlines, but to the extent any
can be moved forward (only) through efforts of both parties.and their
subcontractors, these dates flexible:
Done Selection of Tenant's Architect
October 15 Delivery of Construction Drawings
October 16 Issue Documents to three (3) Contractors for Bids
October 26 Receive Bids
October 27-29 Review Bids and Value Engineer
October 30-Nov.3 Redraw Construction Drawings, if Needed
November 4 Reissue to Contractors for Bid Rework
November 6 Receive Reworked Bids
November 7 Select Contractor
November 10 Begin Construction
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EXHIBIT C
ESTOPPEL CERTEFICATE
NOTE: THE FOLLOWING EXHIBIT IS ATTACHED FOR EXAMPLE ONLY. IT IS NOT TO BE FILLED
OUT FOR LEASE SIGNATURE, BUT WILL BE FILLED OUT AT THE TIME OF NEED.
To: ___________________________
___________________________
___________________________
___________________________
Re: Lease Agreement ("Lease") dated _______________ 199___, of __________ square
feet of space known as Suite No. 350 in Windward Forest Office Building, located
at 950 Northpoint Parkway, City of Alpharetta, Fulton County, Georgia
("Premises") between Windward Forest Partners, L.L.C. ("Landlord"), as Landlord,
and Net Bank, Inc. ("Tenant") as Tenant.
Gentlemen:
Tenant hereby certifies to ________________________________ as follows:
1. The term of the Lease commenced on ____________________, 19___, and will
terminate on _____________________, _______.
2. The Lease, as described above, is true, correct and complete, and has
not been modified or amended except as described above, and is in good standing
and is in full force and effect.
3. Tenant is paying monthly rental under the Lease in the amount of
$__________ ($__________ for base monthly rental and $__________ for additional
rent), and such rent has been paid for the period ending on _______________,
19___.
4. Tenant paid a security deposit under the Lease in the amount of
$____________.
5. As far as is known to Tenant, there are no defaults of Landlord under
the Lease, and there are no existing circumstances which with the passages of
time, or notice, or both, would give rise to a default under the Lease.
6. Construction of all tenant improvements required under the Lease has
been satisfactorily completed, and Tenant has accepted and is occupying the
Premises.
7. Tenant has not and will not generate, store, handle or otherwise deal
with any hazardous or toxic waste, substance or material, or contaminants, oil,
pesticides, radioactive or other materials on the Premises, the removal of which
is required or the maintenance of which is prohibited, regulated or penalized by
any local, state or federal agency, authority, or governmental unit.
8. Tenant has no charge, lien, claim of set-off or defense against rents or
other charges due or to become due under the Lease or otherwise under any of the
terms, conditions, or covenants contained therein.
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9. Tenant has not received any concession (rental or otherwise) in
connection with renting the Premises except as follows: ____________________.
10. Tenant has received no notice from any insurance company of any defects
or inadequacies in the Premises or in any part thereof which would adversely
affect the insurability of the Premises.
11. There are no pending suits, proceedings, judgments, bankruptcies, hens
or executions against Tenant or any affiliate of Tenant.
12. Tenant does not have any rights or options to purchase the building in
which the Premises are located.
13. Tenant does not have any rights or options to renew the Lease or to
lease additional space in any building owned by the Landlord except as follows:
_____________________________________.
14. Tenant has not paid, and from and after the date hereof shall not pay,
any rent under the Lease more than one month in advance of its due date.
[The following two paragraphs are appropriate for an estoppel certificate
to be delivered to a lender, but not for a purchaser:]
15. Tenant has no knowledge of any assignment by Landlord of its interest
in the Lease other than to __________________________________________.
16. Upon written notice of the default of Landlord under any of the loan
documents held by ___________________________ and assignment of Landlord's
interest under the Lease by Landlord to _______________________ Tenant shall
recognize ____________________________ as the landlord under the Lease and will
thereafter pay rent and other sums to _______________________________ in
accordance with the terms of the Lease.
17. The certifications contained herein are made with the knowledge that
_______________ _________________________as prospective [purchaser/lender] of
the Premises, will place substantial reliance thereon.
Very truly yours,
Net Bank, Inc.
By:_______________________
Title:____________________
Date:_____________________
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EXHIBIT D
DEFINITION OF OPERATING EXPENSES
"Operating Expenses" shall mean the operating costs and expenses for the
Building delineated as follows:
Building Management and Services
Building Management and Services related to the Common Area expenses
and management of the Building and are billed monthly.
Security
Provide labor, equipment, communication devices, remote central
monitoring, periodic inspections, and office surveys for Building
security.
Landscaping
Provide labor, equipment and supplies necessary for mowing, sweeping,
edging, pruning, fertilizing, spraying and weeding the exterior
grounds. Provide labor, equipment and supplies necessary for watering,
fertilizing and treating the interior landscaping in the Building.
Maintenance and Misc.
Provide labor, equipment and tools necessary for routine maintenance of
electrical, plumbing, lighting, heating and air conditioning systems in
any Building common areas as herein defined, mailroom.
Costs and expenses of maintaining Building common areas and of
redecorating and painting common areas.
Provide labor and materials for annual cleaning of the exteriors of the
office windows.
Provide for any miscellaneous operational cost not covered elsewhere in
this breakdown.
Janitorial Maintenance and Supplies
Provide labor, equipment and supplies to clean the Building common
hallways, restrooms, and mailroom.
Remove trash and deliver to containers for such.
Provide periodic maintenance on a weekly, monthly and quarterly basis.
Provide supervision and periodic inspections of all janitorial
functions and personnel.
Janitorial Maintenance and Supplies are based on occupied square feet.
Provide labor, equipment and supplies to clean offices, and restrooms
five nights a week.
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Remove trash from offices and deliver to the dumpster. Supply hand
towels, toilet tissue, hand soap and plastic liners for trash cans.
Provide supervision and periodic inspections of all janitorial
functions and personnel.
Administration
As an adjunct to building management to provide administrative labor,
accounting and related reports for the Landlord, ad valorem tax review
and reporting, insurance claims and administrative services, utilities
cost review and billing, common area inspections and reports, building
services contracts administration, and occupant surveys and relations
programs.
Electricity
All charges, costs and expenses for electrical power consumed in the
Premises and, without limitation, a pro rata share of Common Area
electrical costs based on the electrical usage in the Premises. (Common
area electrical costs include lights, heating and air conditioning in
the Building common area hallways and restrooms, and parking lot
lighting.)
Water and Sewer
Pay costs of water consumption and sewer for the Building.
Provide trash removal for all occupants of the Building, including all
hauling, landfill fees, and maintenance.
Insurance
The full hazard and extended coverage insurance and comprehensive
liability insurance will be maintained for the Building and all common
areas, but exclusive of insurance on Tenant's improvements or its
personal property.
Taxes
All ad valorem taxes of whatsoever nature assessed against the Premises
and all portions thereof but excluding any taxes on personal property
of Tenant.
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EXHIBIT D-1
PROJECTED 1997 OPERATING EXPENSES FOR WINDWARD FOREST
(Dollars Per Square Foot)
BUILDING MANAGEMENT .58
LANDSCAPING, TRASH REMOVAL AND PARKING LOT .34
MAINTENANCE AND MISC. .23
JANITORIAL MAINTENANCE AND SUPPLIES .62
ADMINISTRATION .15
UTILITIES 1.50
INSURANCE .05
TAXES 1.01
OWNERS ASSOCIATION FEE .02
TOTAL PROJECTED 1997 OPERATING EXPENSES $4.50
ALL OF THE ESTIMATES SET FORTH ABOVE ARE BASED ON INFORMATION BELIEVED TO BE
ACCURATE AND RELIABLE, BUT NO GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, ARE
MADE AS TO THESE ESTIMATES OR PROJECTIONS.
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EXHIBIT E
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This AGREEMENT is made as of this 15th day of September, 1997, between Net
Bank, Inc. ("Tenant") and SUNTRUST BANK, ATLANTA, ("Lender").
Reference is made to the following facts:
A. Under a Lease Agreement (the "Lease") dated September 15, 1997 by
and between WINDWARD FOREST PARTNERS, LLC ("Landord") and Tenant, Tenant win
occupy certain premises (the "Leased Premises") located in Fulton County,
Georgia and more particularly described in Exhibit "A" attached hereto and made
a part hereof (such property being hereinafter referred to as the "Property").
B. Lender has made or has been requested to make a loan (the "Loan") to
Landlord secured by a Deed to Secure Debt and Security Agreement (the "Security
Agreement") encumbering the Property.
C. A condition of making the Loan by Lender to Landlord is that the
Lease be subordinated to the Security Agreement and that Tenant agree to attorn
to Lender.
D. Tenant has agreed that Tenant will subordinate the Lease to the
Security Agreement and attorn to Lender, provided Tenant is assured of continued
and undisturbed occupancy of the Leased Premises under the terms of the Lease.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth below, the parties hereto agree as follows:
1. The Lease and any extensions, renewals, replacements or
modifications thereof, and all right, title and interest of Tenant in and to the
Leased Premises, are and shall be subject and subordinate to the Security
Agreement and all other documents and instruments evidencing, securing or
relating to the Loan (the Security Agreement and such other documents and
instruments being hereinafter collectively referred to as the "Loan Documents"),
to all of the tem-is and conditions contained therein and to any renewals,
modifications, replacements, consolidations and extensions thereof.
2. Lender agrees with Tenant that, in the event the interest of
Landlord in the Property and the Lease shall be acquired by Lender (the term
"Lender" as used in this Paragraph 2 and Paragraphs 3 and 4 following shall
include any purchaser of the Property at a foreclosure sale or other proceeding
brought to enforce the rights of the holder of the Security Agreement or by any
other method) by reason of foreclosure of the Security Agreement or other
proceeding brought to enforce the rights of the holder thereof, by deed in lieu
of foreclosure or by any other method, or in the event of any other action
pursuant to the Loan Documents, then in any such event:
(a) Tenant shall not be joined as a party defendant
in any such foreclosure proceeding which may be instituted by Lender;
and
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(b) The Lease shall not be terminated or affected by any such
action and Lender will recognize Tenant's rights under the Lease, and
Tenant shall peaceably hold and enjoy the Leased Premises for the
remainder of the unexpired term of the Lease and any extensions thereof
upon the same provisions that are set forth in the Lease, except as set
forth in Paragraph 3 below, and without any hindrance or interruption
by Lender so long as Tenant shall not be in default in the performance
of its obligations under the Lease, beyond any applicable period for
notice and cure.
3. In consideration of the foregoing covenants by Lender, Tenant agrees
with Lender that in the event the interest of Landlord in the Property and the
Lease shall be acquired by Lender by reason of foreclosure of the Security
Agreement or other proceeding brought to enforce the rights of the holder
thereof, by deed in lieu of foreclosure or any other method, Tenant shall,
attorn to and recognize Lender as its landlord for the remainder of the
unexpired term of the Lease. Upon any such attornment, the Lease shall continue
in full force and effect as a direct lease between Tenant and Lender and upon
all terms, covenants and conditions contained therein, except that Lender shall
not be:
(a) liable for any breach, act or omission of any prior
landlord;
(b) subject to any offsets, claims or defenses which
Tenant may have against any prior landlord;
(c) bound by any rent or additional rent or other payment in
lieu of rent which Tenant might have paid to any prior landlord more
than thirty (30) days in advance of its due date under the Lease, and
all such rents shall remain due and owing notwithstanding any such
advance payment;
(d) bound by any amendment or modification of the
Lease made without Lender's prior written consent;
(e) liable for any security deposit or other sums held by any
prior landlord, unless actually and separately received by Lender; or
(f) personally liable with respect to performance of the
obligations of the landlord under the Lease.
4. The provisions of Paragraphs 2 and 3 above shall be effective and
self-operative immediately upon Lender's succeeding, as provided above, to the
interest of Landlord under the Lease without the execution of any further
instruments on the part of any of the parties hereto.
5. Tenant agrees to give prompt written notice ("Default Notice") to
Lender of any default by Landlord of its obligations under the Lease which would
entitle Tenant to terminate the Lease or reduce rents, or to credit or offset
any amounts against rents or other payments, specifying the nature of the
default. After receipt of, a Default Notice, Lender shall have the right (but
not the obligation) to correct or cure the default of Landlord within thirty
(30) days, unless the default is of such a nature that cannot be cured within
such thirty (30) day period, in which case no default shall occur so long as
Lender shall commence the curing of the default within such thirty (30) period
and shall diligently and promptly prosecute the curing of the default, but in no
event shall such cure period exceed ninety (90) days unless the default is of
such a nature that Lender cannot cause same to be cured within such period.
Until the expiration of such period within which Lender may correct or cure the
default, Tenant agrees to take no action to terminate the Lease or reduce rents
or to credit or offset any amounts against rents or other
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payments due under the Lease. Nothing in this Paragraph shall be deemed to
impose any obligation on Lender to correct or cure any such default by Landlord.
6. Tenant hereby affirms that the Lease has not been modified or
amended. Tenant agrees not to enter into a modification or amendment of the
Lease without obtaining Lender's prior written consent.
7. Landlord hereby directs Tenant, and Tenant agrees, that after
receiving notice from Lender that the Property is subject to the ownership or
control of the Lender or that Lender has become entitled to collect rents
pursuant to rights granted to Lender in the Loan Documents, Tenant shall pay to
Lender, or to such other person or entity as may be designated by Lender, all
rent, additional rent or other monies and payments due and to become due to the
Landlord under the Lease.
8. Whenever any notice, demand or request is required or permitted
hereunder, such notice, demand or request shall be hand delivered in person or
sent by United States mail, registered or certified, postage prepaid, to the
addresses set forth below:
If to Lender: Suntrust Bank, Atlanta
Real Estate Finance Dept. 081
P.O. Box 4418
Atlanta, Georgia 30302
Attention: C. Paul Henry
If to Tenant: Net Bank, Inc.
9755 Dogwood Road
Suite 310
Roswell, GA 30075
Attention: Chief Financial Officer
Any notice, demand or request which shall be served upon either of the
parties in the manner aforesaid shall be deemed sufficiently given for all
purposes hereunder (i) at the time such notice, demand or request is
hand-delivered in person or (ii) on the third (3rd) day after mailing of such
notice, demand or request in accordance with the preceding portion of this
Paragraph.
9. As used herein, the word "Lender" includes any persons claiming by,
through or under Lender or the Security Agreement, (including but not limited to
any purchaser at foreclosure sale or other proceeding brought to enforce the
rights of the holder of the Security Agreement or by any other method), and the
words "Tenant" and "Landlord" shall include their respective successors and
assigns.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State in which the Leased Premises are located.
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EXECUTED UNDER SEAL on the day and year first above written.
LENDER:
Signed, sealed and SUNTRUST BANK, ATLANTA
delivered in the
presence of
/s/ Jean Hanna
-------------------------------
Unoffficial Witness By: /s/ Paul Henry
-------------------------
Title: First Vice President
----------------------
/s/ Dawn E. McGill
---------------------------------
Notary Public [BANK SEAL]
My commission expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires April 7, 1998
[NOTORIAL SEAL]
TENANT:
Net Bank, Inc.
Signed, sealed and ---------------------------
delivered in the
presence of:
/s/ Robert E. Bowers
-------------------------------
Unofficial Witness By: /s/ D.R. Grimes
-----------------------
Its: CEO
-----------------------
/s/ Dianne D. Chapin
-------------------------------
Notary Public
My commission expires:
Notary Public, Cobb County, Georgia
My Commission Expires March 18, 2001
[NOTORIAL SEAL]
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EXHIBIT F
LEGAL DESCRIPTION
All that lot, tract or parcel of land situate, lying and being in Land Lot
numbered 1260 of the 2nd District, 2nd Section, and in Land Lot 1243 of the 2nd
District, 1st Section, City of Alpharetta, Fulton County, Georgia, being more
particularly described as follows:
Begin at the point of intersection of the westerly line of said Land Lot 1243
with the northwesterly line of the 60-foot right of way of Webb Bridge Road;
from said point of beginning run north 02 degrees 09 minutes 05 seconds east a
distance of 26.90 feet to a one-half inch rebar iron pin found in concrete; run
thence north 89 degrees 44 minutes 10 seconds west a distance of 372.42 feet to
an iron pin set lying on the easterly line of the right of way of North Point
Parkway (which right of way varies in width); run thence north 02 degrees 29
minutes 13 seconds west, along the easterly line of the aforesaid right of way
of North Point Parkway, a distance of 796.34 feet to a point; running thence on
an arc to the right a distance of 311.88 feet to an iron pin set (said arc
having a radius of 586.62 feet and being subtended by a chord 308.22 feet in
length and bearing north 12 degrees 28 minutes 49 seconds east; thence leave the
right of way of North Point Parkway and run south 43 degrees 52 minutes 14
seconds east a distance of 29.42 feet to a one-half inch open top pin found; run
thence south 73 degrees 46 minutes 43 seconds east a distance of 61.86 feet to a
one inch crimp top iron pin found; run thence south 77 degrees 12 minutes 27
seconds east a distance of 126.76 feet to a one-half inch rebar iron pin found;
run thence north 85 degrees 01 minutes 17 seconds east a distance of 136.83 feet
to a one-half inch rebar iron pin found; run thence south 59 degrees 41 minutes
39 seconds east a distance of 33.66 feet to an iron pin set lying on the line
dividing Land Lot 1178, 2nd District, 1st Section, Fulton County, Georgia, from
said Land Lot 1260, 2nd District, 2nd Section, Fulton County, Georgia; run
thence south 01 degrees 25 minutes 28 seconds west, along said land lot dividing
line, a distance of 260.40 feet to a three-quarter inch crimp top iron pin found
lying at the intersection of the easterly line of said Land Lot 1260 with the
southwesterly corner of said Land Lot 1178 and the northwesterly corner of Land
Lot 1243, 2nd District, 1st Section, Fulton County, Georgia; run thence south 01
degrees 32 minutes 07 seconds west, along the line dividing said Land Lot 1260
from said Land Lot 1243, a distance of 547.91 feet to an iron pin found; run
thence south 01 degrees 30 minutes 57 seconds west, continuing along the line
dividing said Land Lot 1260 from said Land Lot 1243, a distance of 84.43 feet to
an iron pin found; thence leave said land lot dividing line and run south 88
degrees 49 minutes 45 seconds east a distance of 272.88 feet to an iron pin set
lying on the northwesterly line of the 60-foot right of way of Webb Bridge Road;
run thence south 60 degrees 51 minutes 47 seconds west, along the northwesterly
line of the aforesaid right of way of Webb Bridge Road, a distance of 319.27
feet to the point of beginning.
The above-described property contains 10.283 acres, and is shown on that certain
plat of survey prepared for Windward Forest Partners, LLC, by Rochester &
Associates, Inc., certified by James C. Jones, Georgia Registered Land Surveyor
No. 2298, dated April 16, 1996, last revised May 6, 1996 (Job No. 96057-2443),
which plat of survey is incorporated herein by this reference and made a part of
this description.
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EXHIBIT G
COMMENCEMENT LETTER
Re: Commencement Letter with respect to that certain Lease dated September 15,
1997 by and between WINDWARD FOREST PARTNERS, LLC., as Landlord, and Net Bank,
Inc., as Tenant, for 7,480 square feet of Rentable Area in Suite 350 of the
Building located at 950 Northpoint Parkway, Alpharetta, Georgia 30005.
In accordance with the terms and conditions of the above referenced Lease,
Tenant hereby accepts possession of the Premises and agrees as follows:
1. The Commencement Date of the Lease is____________________.
2. The Termination Date of the Lease is ____________________, subject to
extension or renewal as provided for in the referenced lease.
3. All Tenant Improvement work has been completed.
4. Paragraph 34, Notices, shall be amended to change the official notice address
to:
Net Bank, Inc.
950 Northpoint Parkway
Suite 350
Alpharetta, GA 30005
Attention: Chief Financial Officer
Please acknowledge your acceptance of possession and agreement to the terms set
forth above by signing all three (3) copies of this Commencement Letter in the
space provided and returning two (2) fully executed copies of the same to my
attention.
Agreed and Accepted:
Tenant: Net Bank, Inc.
By: ____________________________
Name: __________________________
Title: _________________________
Date: __________________________