Terms and Conditions for Host-Occupied Properties
LEASE AGREEMENT TERMS AND CONDITIONS FOR HOST-OCCUPIED PROPERTIES
Article 1. INDEMNIFICATION AND INSURANCE
1.1 Insurance.
(a) Landlord’s Building Insurance. Landlord shall, at Landlord’s sole cost and
expense, keep the Building insured against damage and destruction by fire, vandalism, and other perils so called “All Risks” perils. The amount of the insurance shall be equal to the full replacement value of the Building, as the value may be determined from time to time. The insurance shall include a replacement cost endorsement subject to no co-insurance.
(b) Property Insurance. Each party shall be responsible, at its own cost, for
maintaining any insurance necessary to cover its real and personal property.
1.2 Indemnification of Third Party Claims.
(a) Tenant’s Indemnity. Tenant indemnifies, defends, and holds Landlord harmless from third party claims for personal injury, bodily injury, death, or property damage occurring in or about the Premises and which are caused by the negligence or willful misconduct of Tenant, its agents, employees, or invitees. When the claim is caused by the joint negligence or willful misconduct of Tenant and Landlord or Tenant and a third party unrelated to Tenant, except Tenant’s agents, employees, or invitees, Tenant’s duty to defend, indemnify, and hold Landlord harmless shall be in proportion to Tenant’s allocable share of the joint negligence or willful misconduct.
(b) Landlord’s Indemnity. Landlord indemnifies, defends, and holds Tenant harmless from third party claims for personal injury, bodily injury, death, or property damage occurring in or about the Premises and which are caused by the negligence or willful misconduct of Landlord, its agents, employees, or invitees. When the claim is caused by the joint negligence or willful misconduct of Landlord and Tenant or Landlord and a third party unrelated to Landlord, except Landlord’s agents, employees, or invitees, Landlord’s duty to defend, indemnify, and hold Tenant harmless shall be in proportion to Landlord’s allocable share of the joint negligence or willful misconduct.
Article 2. COMPLIANCE WITH LAWS
2.1 Landlord’s Compliance. Landlord represents and warrants that, to Landlord’s knowledge, upon delivery of the Premises to Tenant all parts of the Premises, shall be in good working condition and comply with all Applicable Laws. Throughout the Lease Term, Landlord shall maintain compliance with all Applicable Laws affecting the Premises, and Landlord shall be responsible for any improvements or modifications necessary to the Premises in order for the Premises to comply with all Applicable Laws.
2.2 Governmental Orders. If Tenant’s use and occupancy of the Premises is ever prohibited or restricted in any material respects by Applicable Laws, Tenant shall have the option, in Tenant’s sole discretion, to terminate this Lease upon at least fifteen (15) days’ prior notice to Landlord. Upon such termination, neither party will have any further rights or obligations hereunder except for such rights and obligations which expressly survive the termination hereof.
Article 3. REPAIRS AND MAINTENANCE
3.1 Maintenance and Repair of Premises. Landlord shall repair and maintain the Premises in the Tenant’s reasonable discretion during the Lease Term. Any capital improvements, capital repairs, or capital replacements will be the sole responsibility of Landlord, including but not limited to replacement of HVAC, water heater, major appliances, roof, or structural modifications. Landlord agrees to respond to all emergency requests within twenty-four (24) hours and all other requests in no less than forty-eight (48) hours. Emergency requests include but are not limited to internal and external lock-outs, non-functioning climate control, plumbing or gas leaks, or any compromise of house security to include broken locks or non-functioning windows. Tenant reserves the right to request services not described in this paragraph.
3.2 Failure to Maintain or Make Capital Repairs. If Landlord fails to maintain or make repairs, replacements, or improvements at the Premises as required by the terms hereof, and Landlord has not cured, or commenced repairs, within forty-eight (48) hours after receipt of notice of such failure, the Tenant, at its option, may put or cause the same to be put in the condition and state of repair required and subtract the amount of the repair from the Market Rent until the cost of such repair, replacement, or improvement has been repaid. Notwithstanding anything contained herein, if Landlord has failed to make required capital repairs, replacements, or improvements as required within thirty (30) days of receipt of notice of such failure, Tenant shall have the right to terminate this Lease without further obligation hereunder. When entering or performing any repair or other work in the Premises, Landlord, its agents, employees, and/or contractors (i) shall give at least twenty-four (24) hours’ prior notice to Tenant, (ii) shall identify themselves to Tenant’s personnel immediately upon entering the Premises, and (iii) shall not, in any way, materially or unreasonably affect, interrupt, or interfere with Tenant’s use or operations on the Premises or obstruct access to the Premises.
Article 4. LIENS AND ENCUMBRANCES
4.1 Encumbering Title. Tenant shall not do any act which shall encumber Landlord’s interest in and to the Premises, nor shall the interest or estate of Landlord in the Premises become subject to any claim by way of lien or encumbrance, whether by operation of law or by virtue of any express or implied contract by Tenant. Any claim to, or lien upon, the Premises arising from any act or omission of Tenant shall accrue only against the leasehold estate of Tenant and shall be subject and subordinate to the paramount title and rights of Landlord in and to the Premises.
Article 5. UTILITIES
5.1 General. From and after the Commencement Date, Landlord will pay, when due, all charges for utilities furnished to the Premises or chargeable against the Premises, including without limitation, all charges for water, sewage, heat, gas, light, garbage, electricity, telephone, internet, power, and other public or private utility services (collectively, the “Utility Costs”).
5.2 Landlord’s Obligations. Landlord agrees to provide adequate capacity for Tenant’s use to make water, sewer, gas, heat, power, internet, and electricity available to the Premises. Landlord is responsible for ensuring all required utilities are operational in the Premises.
Article 5. DESTRUCTION AND RESTORATION
6.1 Restoration. In the event the Premises are damaged by fire, storm or any other casualty to the extent which is less than fifty percent (50%) of the full replacement cost of the Premises, the damage shall be repaired by Landlord, at Landlord’s sole cost, within a reasonable time period thereafter, provided that in no event shall Landlord be required to repair or replace Tenant’s fixtures, furniture, furnishings, floor coverings, equipment or leasehold improvements. In the event of any such damage by fire, storm or any other casualty to the extent of fifty percent (50%) or more of the full replacement cost of the Premises, Tenant may elect to terminate this Lease. Tenant shall make such election by giving notice of such election in writing to Landlord within forty-five (45) days after the date of the event causing the damage. If Tenant elects not to terminate this Lease in accordance with the preceding sentence, Landlord shall repair the damage, at Landlord’s sole cost, in the manner described above. If such repairs or restoration are not, or in Tenant’s reasonable estimation cannot, be completed within three hundred sixty-five (365) days after such casualty, then Tenant may terminate this Lease, provided Tenant gives Landlord notice of termination prior to the date on which Landlord substantially completes such repairs or restoration. In the event of a termination by Tenant in accordance with the terms of this paragraph, neither party will have any further rights or obligations hereunder except for such rights or obligations which expressly survive termination. During the period Landlord is performing any repairs, all Rent shall abate in proportion to that part of the Premises which are rendered untenantable for Tenant’s use.
Article 7. CONDEMNATION
7.1 Complete Taking. In the event that substantially all of the Building or the Premises is taken or condemned by any competent authority for any public use or purpose (including a deed given in lieu of condemnation), this Lease shall terminate as of the date title vests in such authority, and Rent shall be apportioned as of said date. For the purposes hereof, “substantially all” shall mean a taking such that the Building or Premises, in Tenant’s judgment, cannot physically or economically be restored to a complete architectural unit.
Article 8. SURRENDER
8.1 Surrender. Upon termination of this Lease or Tenant’s right to possession, Tenant will at once surrender and deliver up the Premises in good condition and repair, reasonable wear and tear excepted. As provided by law, Landlord and Tenant agree that all personal property and trade fixtures placed in the Premises by Tenant (collectively, “Tenant’s Property”) shall be and remain the property of Tenant and may be removed from the Premises by Tenant at any time and upon the termination of this Lease. Tenant shall reasonably repair any injury or damage to the Premises which may result from such removal, and shall restore the Premises to substantially the same condition as prior to the installation thereof, ordinary wear and tear and damage due to casualty excepted. If Tenant does not remove Tenant’s Property from the Premises, as aforesaid, Landlord may, at its option, remove the same (and repair any damage occasioned thereby) and dispose thereof or deliver the same to any other place of business of Tenant or warehouse the same.
8.2 Holding Over. Tenant’s occupancy subsequent to such expiration or termination of this Lease, whether or not with the consent or acquiescence of Landlord, shall be deemed to be that of a tenancy-at-will, and it shall be subject to all terms, covenants and conditions of this Lease applicable thereto, including, without limitation, those set forth in this holdover provision. For each month or portion thereof Tenant retains possession of the Premises, or any portion thereof, after the expiration or termination of this Lease or Tenant’s right to possession, Tenant shall pay Landlord an amount equal to one hundred percent (100%) of the applicable Market Rent, which may be prorated for any partial month.
Article 9. DEFAULT AND REMEDIES
9.1 Tenant Defaults. Any of the following events shall be deemed to be events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of Rent when due and such failure
remains uncured for ten (10) days after written notice from Landlord to Tenant.
(b) Tenant shall fail to comply with any other term, provision or covenant
made under this Lease by Tenant and such failure remains uncured for thirty (30) days after written notice from Landlord to Tenant; provided, however, that if the nature of Tenant’s obligations is such that more than thirty (30) days are required for performance, then Tenant shall not be in default if Tenant commences performance within such thirty (30) day period and thereafter diligently pursues same to completion. Landlord’s notice of default under this subparagraph shall specify in reasonable detail the nature of Tenant’s default and the actions required to cure.
(c) Tenant shall file a petition under the U.S. Bankruptcy Code, or under any
similar law, or there shall be filed against Tenant a petition in bankruptcy or insolvency or a similar proceeding, or a receiver or trustee shall be appointed for the Premises or for all or substantially all of the assets of Tenant.
9.2 Remedies for Tenant Default. Upon the occurrence of any of the aforesaid events of default which remains uncured beyond any applicable notice-and-cure periods, Landlord shall have the option to terminate this Lease, in which event Tenant shall promptly surrender the Premises to Landlord, and Landlord shall be entitled to recover as damages all Rent and other sums due and payable by Tenant on the date of termination.
9.3 Landlord’s Default. Landlord’s failure to perform or observe any of its obligations under this Lease after a period of fifteen (15) days or the additional time, if any, that is reasonably necessary to promptly and diligently cure the failure after receiving notice from Tenant shall constitute a “Landlord Default.” The Tenant’s notice of default shall give in reasonable detail the nature and extent of the failure and the actions required to cure. After expiration of such cure period, Tenant may, without being obligated and without waiving the default, cure the Landlord Default as specified in the notice to Landlord, and Landlord shall pay Tenant, upon demand, all reasonable costs, expenses and disbursements incurred by Tenant to cure such default. In addition to the foregoing, Tenant shall have any and all other rights and remedies provided at law or in equity for breach of a lease by a landlord, including but not limited to, the right to terminate this Lease and the right to offset against Rent thereafter coming due any sums remaining owed to Tenant from Landlord which remain unpaid after the expiration of any notice-and-cure periods set forth herein.
9.4 Remedies Cumulative. No remedy herein or otherwise conferred upon or reserved to either party shall be considered to exclude or suspend any other remedy, but the same shall be cumulative and shall be in addition to every other remedy given hereunder, or now or hereafter existing at law or in equity or by statute, and every power and remedy given by this Lease to Landlord or Tenant may be exercised from time to time and so often as occasion may arise or as may be deemed expedient. Landlord and Tenant shall use reasonable efforts to mitigate its damages arising out of the other party’s default.
9.5 No Waiver. No delay or omission of Landlord or Tenant to exercise any right or power arising from any default shall impair any such right or power or be construed to be a waiver of any such default or any acquiescence therein. No waiver by Landlord or Tenant of any default of any of the covenants of this Lease shall be construed, taken or held to be a waiver of any other default, or as a waiver, acquiescence in or consent to any further or succeeding default of the same covenant.
Article 10. MISCELLANEOUS
10.1 Quiet Enjoyment. So long as Tenant is not in default under this Lease, Tenant’s quiet and peaceable enjoyment of the Premises shall not be disturbed or interfered with by Landlord, the holder of any Mortgage or anyone claiming through Landlord.
10.2 Notices. All notices required to be given under this Lease shall be in writing signed by or on behalf of the party giving the same, and the same may be served upon the other party personally, by overnight courier or by certified or registered mail, postage prepaid, return receipt requested, or transmitted by email, to the parties addressed as follows:
Tenant:
PS-AA1, LLC
Attn: Charles Grosse
1939 Hosea L Williams Dr. NE Atlanta, Georgia 30317
Email: charles@padsplit.com
With a copy to:
Caiaccio Law Firm LC
Attn: Kevin T. Caiaccio 5605 Glenridge Dr., Suite 1090 Atlanta, Georgia 30342
Email: ktc@clf-attorneys.com
17.4 Relationship of Parties. Nothing contained herein shall be deemed or construed by the parties hereto, or by any third party, as creating the relationship of principal and agent or of partnership, or of joint venture, by the parties hereto, it being understood and agreed that no provision contained in this Lease nor any acts of the parties hereto shall be deemed to create any relationship other than the relationship of Landlord and Tenant.
17.5 Captions. The captions of this Lease are for convenience only and are not to be construed as part of this Lease and shall not be construed as defining or limiting in any way the scope or intent of the provisions hereof.
17.6 Severability. If any term or provision of this Lease shall to any extent be held invalid or unenforceable, the remaining terms and provisions of this Lease shall not be affected thereby, but each term and provision of this Lease shall be valid and shall be enforced to the fullest extent permitted by law so long as the parties receive the essence of their bargain.
17.7 Applicable Law. This Lease shall be construed and enforced in accordance with the laws of the State of Georgia.
17.8 Covenants Binding on Successors. All of the covenants, agreements, conditions and undertakings contained in this Lease shall extend and inure to and be binding upon the parties hereto and their respective heirs, permitted successors and assigns.
17.9 Brokerage. Landlord and Tenant warrant to the other that neither of them has had any dealings with any broker or agent in connection with the transactions contemplated hereby. Landlord and Tenant covenant to pay, hold harmless and indemnify the other from and against any and all costs, expenses or liability for any compensation, commissions and charges claimed by any other broker or agent, with respect to the transactions contemplated hereby or the negotiation thereof and arising by virtue of the acts of the indemnifying party.
17.10 Authority. Landlord and Tenant each represents and warrants that the individual executing this Lease on behalf of said party is duly authorized to execute and deliver this Lease on behalf of said entity.
17.11 Amendments Must Be in Writing. None of the covenants, terms or conditions of this Lease to be kept and performed by either party shall in any manner be altered, waived, modified, changed or abandoned, except by a written instrument, duly signed and delivered by both parties.
17.12 Prevailing Parties. If either party hereto initiates litigation to enforce or interpret the terms and provisions of this Lease, the non-prevailing party in such action shall reimburse the prevailing party for its attorneys’ fees, filing fees, and court costs which are reasonably and actually incurred.
17.13 No Waiver. No failure of Landlord or Tenant to exercise any power given Landlord or Tenant hereunder or to insist upon strict compliance by Landlord or Tenant with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of Landlord’s or Tenant’s rights to demand exact compliance with the terms hereof.
17.14 Judicial Interpretation. Should any provision of this Lease require judicial interpretation, it is agreed that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the same, it being agreed that the agents of all parties have participated in the preparation hereof.
17.15 Force Majeure. Whenever a period of time is herein provided for either party to do or perform any act or thing, such party shall not be liable or responsible for any delays due to strikes, riots, acts of God, shortages of labor or materials, national emergency, acts of a public enemy, governmental restrictions, or application of Applicable Laws.
17.16 Entire Agreement. This Lease contains the entire agreement of the parties hereto and no representations, inducements, promises or agreement, oral or otherwise, between the parties not embodied herein shall be of any force and effect. The masculine (or neuter) pronoun, singular number shall include the masculine, feminine and neuter gender and the singular and plural number.
17.17 Counterparts. This Lease may be executed in multiple counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same agreement. Signatures which are exchanged electronically (including by PFD, Docusign or similar digital services or means) shall be considered original signatures for the purpose of execution and enforcement of the rights delineated in this Lease.
17.18 Jury Waiver. To the maximum extent permitted by law, each of Tenant and Landlord hereby expressly waives any right to trial by jury of any action, cause of action, claim, demand, or proceeding arising under or with respect to this Lease, or in any way connected with, related to, or incidental to the dealings of Landlord and Tenant with respect to this Lease, in each case whether now existing or hereafter arising, and whether sounding in contract, tort, or otherwise.
17.19 Confidentiality of Lease. The parties agree that it is an essential economic element of this Lease that any proprietary, non-public information related to the parties or their affiliates or the Premises revealed, disclosed or discovered in connection with the transactions contemplated by this Lease and the terms of this Lease remain strictly confidential. Therefore, except as otherwise expressly provided in this paragraph, the parties hereby agree to strictly maintain the confidentiality of this Lease and its terms, and any such non-public, proprietary information that may be revealed, disclosed or discovered during the course of the offers, counteroffers and other negotiations relating to this Lease and the Premises. The parties agree for themselves and their agents, and their respective heirs, successors and assigns that they shall not disclose any such non-public information nor suffer, permit, cause or allow, any of their respective representatives, employees and/or agents to disclose, whether intentionally, negligently or otherwise any such nonpublic information. The forgoing provisions shall not preclude: (i) any disclosure as may be required by Applicable Laws or valid legal process, (ii) disclosure to either party’s respective lenders, financial partners, investors, accountants, attorneys and consultants, or (iii) disclosure as necessary in connection with any action to enforce the terms hereof.
17.20 Special Stipulations. The Special Stipulations set forth on Exhibit “B” (if any) are incorporated herein by reference. To the extent of any conflict between the terms and provisions of the Special Stipulations and the terms and provisions of this Lease, the Special Stipulations shall control.
