EXHIBIT 9
STATE OF GEORGIA,
COUNTY OF COBB:
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 6th day of April, 1999 by and between PAUL
L. ERWIN (hereinafter called "Landlord"), and THE JEWEL I, INC. D/B/A
PRIMROSE COUNTRY DAY SCHOOL, A GEORGIA CORPORATION, (hereinafter called
"Tenant").
WITNESSETH:
WHEREAS, Landlord owns certain real property located in Marietta, Georgia,
located at 5121 Roswell Road, Cobb County, Marietta, Georgia, which is more
particularly described in Exhibit "A", attached hereto and made a part hereof
(the "Real Property"); and
WHEREAS, there are certain improvements located on the Real Property, the
same being an office building (the Real Property and said building and parking
lot being hereinafter referred to collectively as the "Premises"); and
WHEREAS, Landlord wishes to lease the Premises to Tenant and Tenant wishes
to take the Premises from Landlord under the terms and conditions as stated
herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, Ten ($10.00) Dollars, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
SECTION 1
THE PREMISES
1.01. Landlord does hereby demise and lease the Premises to Tenant and
Tenant does hereby accept and lease the Premises from Landlord, for the term,
and subject to the covenants, agreements, and conditions herein. It is agreed
that Landlord reserves a right of ingress and egress across the existing drive
located on the Premises for reaching additional property of Landlord, for the
benefit of Landord and Landlord's tenants.
1.02. Tenant paying the rent and other charges hereby reserved, and
performing and observing all of the several covenants by it to be kept and
performed, may peaceably hold and enjoy the Premises with exclusive control and
possession during the term of this Lease.
1.03. Tenant acknowledges that it has inspected the Premises, knows the
condition
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thereof, and accepts the Premises in its present condition as suitable for the
purposes which the Premises are leased, subject to its right to make alterations
and to remodel as provided in paragraph 8.01 herein.
SECTION 2
THE TERM AND MONTHLY RENTAL
2.01. The term of this Lease will commence on the 6th day of April, 1999
("the Commencement Date"), and shall continue for a period of three (3) years
from and after the Commencement Date (such period being hereinafter called the
"Term"). Provided this Lease is in full force and effect, Tenant shall have the
option to renew this Lease for three, one-year terms. Tenant shall exercise each
option by notice to Landlord on or before the date which is one hundred twenty
(120) days prior to the then expiration date of this Lease, as the same may have
been extended. If Tenant shall exercise a renewal option, this Lease shall be
extended for an additional one-year term on the same covenants and conditions of
this Lease except that the annual rent shall be as set forth in Section 2.03
below and Tenant shall have one less option to renew this Lease for an
additional one-year term.
2.02. During the initial term, the annual rent paid by Tenant to Landlord
shall be the sum of Nine Thousand and No/100 ($9,000.00) Dollars, payable in
equal monthly installments of Seven Hundred Fifty and No/100 ($750.00) Dollars.
All rental payments shall be due and payable on the tenth (10th) day of each
month at Landlord's principal office located at 5555 ave Spring Road, Cave
Spring, Georgia 30124, or at such other place as Landlord may designate in
writing. Any payment not made by the due date shall be subject to a late fee of
two percent (2%) of such rental payment.
2.03. During any renewal term the annual rent shall be increased by the
percentage increase, if any, in the Index (as hereinafter defined). The new
annual fixed rent during such renewal term shall equal the sum of (i) the then
current annual rent for the then expired term and (ii) the product of the annual
rent for the then expired term and the percentage change, if any, in the Index
for the month immediately preceding the month in which the then current renewal
term commences and the Index for the month immediately preceding the
commencement of the then expired term. The term "Index" shall mean the
"All-Items Figures for All Urban Consumers" in
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the "Consumer Price Index U.S. City Average (1982-84=100)" issued by the Bureau
of Labor Statistics of the United States Department of Labor. If the Index, as
published by the Bureau of Labor Statistics, is discontinued, then the "Index"
published by the United States Department of Commerce shall be used (with proper
adjustment), and if the Department of Commerce Index is discontinued, then the
parties shall agree on a suitable substitute. If Landlord and Tenant are unable
to agree on a suitable substitute, the substitute shall be determined by
arbitration in the manner provided by law. As soon as practicable after the
publication of the Index or the determination of a substitute index, Landlord
shall determine the change in the Index, if any. Pending such determination,
Tenant shall continue to pay annual rent at the same rate as the then expired
term. When the change has been determined, Tenant shall promptly pay the
increase to Landlord.
SECTION 3
USE OF THE PREMISES
3.01. During the continuation of this Lease, including any assignment or
subletting, the Premises may be used and occupied only as office space and a
child care facility; provided, that Tenant will not knowingly use or permit any
person to use the Premises or any part thereof for any use or purposes in
violation of any applicable laws, ordinances, or other regulations, including,
but not limited to, environmental laws. During the continuation of this Lease,
Tenant shall keep the Premises and every part thereof in a clean and wholesome
condition and generally will comply with all laws, rules, ordinances and
regulations; provided, however, Tenant shall not be required to perform
structural repairs unless such structural repairs are required as a result of
Tenant's manner of use. Tenant and its assignees and sub-lessees shall have the
right to display signs on the Premises, but only such as advertise the business
carried on in the Premises by the Tenant and its assignee or sub-lessee and such
signs shall comply in all respects with applicable laws, regulations and
ordinances. Upon termination of this Lease, Landlord may require Tenant to
remove, at Tenant's sole expense, all signs erected by Tenant on the Premises
during the continuation of this Lease.
SECTION 4
TAXES, ASSESSMENTS & UTILITIES
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4.01. Tenant shall pay 65% of all of the ad valorem and other taxes
assessed against the Premises during the term of this Lease.
4.02. Tenant shall pay 100% of all of the ad valorem and other personal
property taxes assessed against the furniture, fixtures and equipment placed or
located in the Premises by Tenant during the term of the Lease.
4.03. Tenant agrees to pay all charges made against the Premises for gas,
water, heat, electricity, and all other utilities as and when due during the
continuation of the Lease, and shall pay all charges for trash collection, if
any.
SECTION 5
INSURANCE; WAIVER OF SUBROGATION
5.01. Tenant will obtain and maintain fire and casualty insurance on the
Premises during the term of the Lease in the amount equal to the amounts
maintained on the date hereof, naming Landlord and Tenant as insureds thereunder
as their respective interest may appear, and also naming all lienholders as
mortgagees.
5.02. Tenant shall procure and maintain throughout the term of this lease
a policy of insurance, at its sole cost and expense, insuring Tenant, Landlord,
and all other persons designated by Landlord against any and all liability for
injury to or death of a person, or persons, and for damage to or destruction of
property occasioned by or arising out of or in connection with the use and
occupancy of the Premises, or by the condition of the Premises, the limits of
such policy or policies shall be equal to the amounts currently maintained by
Tenant.
5.03. Tenant shall insure the contents of the Premises. Landlord shall
not, except in the event of his gross negligence, have any liability or
obligations to Tenant, its employees, agents, customers, contractors or any
other third party for the contents of the Premises.
5.04. The insurance policy or policies to be provided by Tenant hereunder
shall be issued by an insurance company or companies authorized to do business
in the State of Georgia. At Landlord's request, certificates of insurance
evidencing the insurance coverage will be delivered by Tenant to Landlord prior
to the Commencement Date, together with receipts, evidence and payment of the
premiums therefor.
5.05. If Tenant fails to provide all or any of the insurance required by
this Section, or
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subsequently fails to maintain such insurance in accordance with the
requirements of this Section, Landlord may (but will not be required to), and
without waiving or releasing Tenant from any of Tenant's obligations, procure or
renew such insurance, and any amounts paid by Landlord for such insurance will
be additional rental due and payable on or before the next rental date, together
with late charges and interest, if any, as provided in Section 2.
5.06. Landlord and Tenant shall each cause all policies of insurance
maintained with respect to the Premises, respectively, to contain provisions
that the insurance shall not be invalidated by each releasing the other of
liability if such a provision is obtainable without any additional premium
therefor or if such provision is obtainable with an additional premium therefor
and the released party elects to pay and does pay such additional premium. If
such provision is contained in such policies and is in force, Landlord and
Tenant shall each be deemed to have released the other for damage normally
covered by such insurance.
SECTION 6
DAMAGE BY FIRE OR OTHER CASUALTY
6.01. If the Premises are totally destroyed by storm, fire, lightning,
earthquake or other casualty, this Lease shall terminate as of the date of such
destruction, and rental shall be accounted for as between Landlord and Tenant as
of that date. If the Premises are damaged, but not wholly destroyed by any such
casualties, rental shall abate in such proportion as use of the Premises has
been destroyed, and Landlord shall restore the Premises as quickly as possible
to the same condition as before the damage was incurred, whereupon full rental
shall recommence. Notwithstanding the foregoing if more than 35% of the Premises
are damaged by storm, fire, lightning, earthquake or other casualty then either
party may terminate this Lease by notice to the other party given not later than
thirty (30) days after the date of such casualty.
SECTION 7
REPAIRS
7.01. Tenant shall be responsible for all non structural repairs to the
Premises, all ordinary maintenance or repairs to the building systems and all
repairs to the Premises resulting from the negligence or willful misconduct of
Tenant.
7.02. Except as set forth in Section 7.01, Landlord shall be responsible
for all repairs to
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the roof, the structural elements of the Premises and the building systems.
SECTION 8
ALTERATIONS
8.01. Tenant shall have the right to make such alterations, additions, or
improvements to the Premises only with the consent of Landlord. Notwithstanding
the foregoing, Landlord shall not unreasonably withhold its consent in
connection with any nonstructural alterations, additions or improvements to the
Premises and Landlord's consent shall not be required in connection with
decorative changes to the Premises (such as painting, carpeting, etc.). All
alterations, additions, and improvements made by Tenant shall remain the
property of the Tenant until the termination of the Lease; provided, that said
alterations, additions, or improvements shall become the property of Landlord at
the termination of the Lease and shall remain on and be surrendered with the
Premises.
SECTION 9
EMINENT DOMAIN
9.01. If all or a portion of the Premises is taken in any manner for any
public or quasi-public use, and the remainder of the Premises is unsuitable for
the conduct of Tenant's business in Tenant's reasonable opinion then Tenant
shall have the option to terminate this Lease within 30 days after the date
title is vested in the condemning authority.
SECTION 10
ASSIGNMENT OR SUBLETTING
10.01. Tenant may not assign this Lease or sublet the whole or any part of
the Premises without the written consent of Landlord which consent shall not be
unreasonably withheld. Notwithstanding anything contained herein to the contrary
the foregoing shall not apply to and Tenant may, without Landlord's written
consent, assign this Lease or sublet all or any portion of the Premises to (i)
any entity that merges with Tenant, (ii) any entity that acquires all or
substantially all of the stock or assets of Tenant or (iii) any entity which is
controlled by, controls or under common control with Tenant.
SECTION 11
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INSPECTION OF PREMISES
11.01. Tenant agrees to permit Landlord and his authorized representatives
to enter the Premises at all reasonable times, upon reasonable notice for the
purpose of inspecting the same. Landlord and its authorized representatives
shall have the right to enter the Premises at any time without prior notice (but
Landlord shall promptly notify Tenant after such entry) in the event of an
emergency (i.e. imminent danger to persons or property).
SECTION 12
FIXTURES AND EQUIPMENT
12.01. All furnishings and equipment, which are paid for and placed in or
on the Premises by Tenant from time to time will remain the property of Tenant.
Provided however, all fixtures placed in or on the Premises shall become a part
of the Premises and the property of Landlord upon termination of this Lease.
SECTION 13
NOTICE OR DEMANDS
13.01. All bills, notices, statements, communications to or demands
(collectively, "notices or demands") upon Landlord or Tenant desired or required
to be given under any of the provisions hereof must be in writing. Any such
notices or demands from Landlord to Tenant will be given by personal delivery or
by United States certified mail, return receipt requested, in an envelope
properly stamped and addressed to Tenant at Primrose Holdings, c/o Capital
Partners, 1 Pickwick Plaza, Suite 310, Greenwich, Connecticut 06830, Attention:
James G. Anderson, with a copy to Morgan, Lewis & Bacchus LP, 101 Park Avenue,
New York, New York, 10178, Attention: Christopher Jensen, Esq., or such other
address as Tenant may have last furnished by written notice to Landlord, and any
such notices or demands from Tenant to Landlord will be given by personal
delivery or by United States certified mail, return receipt requested, in an
envelope properly stamped and addressed to Landlord at 5555 Cave Spring Road,
Cave Spring, Georgia 30124, or such other address as Landlord may have last
furnished by written notice to Tenant. The effective date of such notice or
demand will be deemed to be the time when personally delivered or three (3)
business days after so mailed as herein provided.
SECTION 14
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BREACH: INSOLVENCY: RE-ENTRY
14.01. If any rent payable by Tenant to Landlord remains unpaid for more
than ten (10) days after it is due, and if such default continues for a period
of five (5) days after written notice thereof to Tenant or if Tenant violates or
defaults in the performance of any of its obligations in this Lease and the
violation of default continues for a period of thirty (30) days after written
notice, by Landlord to Tenant, (or if such default is not capable of being cured
within such thirty (30) day period and Tenant fails to commence to cure such
default within said thirty (30) day period and thereafter diligently prosecute
such cure to completion) then Landlord may (but will not be required to) declare
this Lease forfeited and the term ended, or re-enter the Premises, or may
exercise all other remedies available under Georgia law. Landlord will not be
liable for damages to person or property by reason of any legitimate re-entry or
forfeiture, and Landlord will be aided and assisted by Tenant, its agents,
representatives, and employees. Tenant, by the execution of this Lease, waives
notice of re-entry by Landlord. In the event of re-entry by Landlord without
declaration of forfeiture, the liability of Tenant for the rent provided herein
will not be relinquished or extinguished for the balance of the Lease term, and
any rentals prepaid may be retained by Landlord and applied against the costs of
re-entry, or as liquidated damages, or both. Tenant will pay, in addition to the
rentals and other sums agreed to be paid hereunder, reasonable attorneys' fees,
costs and actual expenses incurred by or on behalf of Landlord in any suit or
action instituted by or involving Landlord to enforce the provisions of, or the
collection of the rentals due Landlord under this Lease, including any
proceeding under the Federal Bankruptcy Code.
In the event of declaration of forfeiture at or after the time of
re-entry, Landlord may re-lease the Premises or any portion(s) of the Premises
for a term or terms and at a rent which may be less than or exceed the balance
of the term of and the rent reserved under this Lease. In such event, Tenant
will pay to Landlord as liquidated damages for Tenant's default any deficiency
between the total rent reserved herein and the net amount, if any, of the rents
collected on account of the lease or leases of the Premises which otherwise
would have constituted the balance of the Lease term. In computing such
liquidated damages, there will be added to the deficiency any expenses which
Landlord may incur in connection with releasing, such as legal
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expenses, attorneys' fees, brokerage fees and expenses, advertising and for
keeping the Premises in good order or for preparing the Premises for re-leasing.
Any such liquidated damages will be paid in monthly installments by Tenant on
the Rent Day and any suit brought to collect the deficiency for any month will
not prejudice Landlord's right to collect the deficiency for any subsequent
month by a similar proceeding. In lieu of the foregoing computation of
liquidated damages, Landlord may elect, at its sole option, to receive
liquidated damages in one payment equal to any deficiency between the total rent
reserved hereunder and the fair and reasonable rental of the Premises, both
discounted at ten percent (10%) per annum to present value at the time of
declaration of forfeiture.
Whether or not forfeiture has been declared, Landlord will not be obliged
or be responsible in any way for failure to re-lease the Premises or, in the
event that the Premises are released, for failure to collect the rent under such
re-leasing, provided that Landlord shall attempt to re-lease the Premises. The
failure of Landlord to re-lease all or any part of the Premises will not release
or affect Tenant's liability for rent or damages.
SECTION 15
SURRENDER OF PREMISES ON TERMINATION
15.01. At the expiration (or earlier termination) of this Lease, Tenant
will surrender the Premises broom clean and in as good condition and repair as
they were on the date of this Lease, reasonable wear and tear and damage by
casualty excepted, and promptly upon surrender will deliver all keys for the
Premises to Landlord at the place then fixed for payment of rent.
SECTION 16
PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT
16.01. If Tenant fails to pay any sum of money, other than rental,
required to be paid hereunder or fails to perform any act on its part to be
performed hereunder, and such failure shall continue for a period of thirty (30)
days (or a reasonable period of less than thirty (30) days when life, person, or
property are in jeopardy) after notice thereof by Landlord, Landlord may (but
shall not be required to), and without waiving or releasing Tenant from any of
Tenant's obligations, make any such payment or perform any such other act. All
sums so paid by Landlord and all necessary incidental costs, including without
limitation the cost of repair,
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maintenance or restoration of the Premises, if so performed by Landlord
hereunder, shall be deemed additional rental and shall be payable to Landlord
within five (5) days after receipt of invoice by Tenant. On default in such
payment, Landlord shall have the same remedies as on default in payment of rent.
The rights and remedies granted to Landlord under this Section 17 shall be in
addition to, and not in lieu of all other remedies, if any, available to
Landlord under this Lease or otherwise, and nothing herein contained shall be
construed to limit such other remedies of Landlord with respect to any matters
covered herein.
SECTION 17
SUBORDINATION: ESTOPPEL CERTIFICATES
17.01. Tenant agrees that Landlord may choose to make this lease
subordinate or paramount to any mortgages and ground or underlying leases now or
hereafter affecting the Premises and to any and all advances to be made
thereunder or to be secured thereby and to the interest and charges thereon, and
all renewals, replacements and extensions thereof, provided the mortgagee or
lessor named in any such mortgages or leases agrees to recognize the lease of
Tenant in the event of foreclosure if Tenant is not in default. Without limiting
the foregoing Landlord shall use its reasonable efforts to obtain a
Subordination, Non-Disturbance and Attornment agreement in form and substance
reasonably acceptable to Tenant from the holder of any such mortgage or lease.
17.02. Either party shall, without charge, within ten (10) business days
after request of the other, certify by written instrument to the best of their
knowledge: (a) as to whether this Lease has been modified or amended, and if so,
the substance and manner of such modification or amendment; (b) as to the
validity and force and effect of this Lease, in accordance with its tenor as
then constituted; (c) as to the existence of any default under this Lease; (d)
as to the existence of any offsets, counterclaims or defenses thereto on the
part of either party; (e) as to the commencement and expiration dates of the
term of this Lease; and (f) as to any other matters as may reasonably be so
requested. Any such certificate may be relied upon by the party requesting it
and any other person, firm or corporation to whom the same may be exhibited or
delivered, and the contents of such certificate shall be binding on the party
executing same.
SECTION 18
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QUIET ENJOYMENT
18.01. Landlord agrees that at all times when Tenant is not in default
under any of the terms or provisions of this Lease beyond any applicable notice
and cure period, Tenant's quiet and peaceable enjoyment of the Premises will not
be disturbed or interfered with by Landlord or any person claiming by, through
or under Landlord.
SECTION 19
HOLDING OVER
19.01. Tenant shall pay to Landlord an amount as minimum rent equal to the
regular monthly rental rate in effect each month or portion thereof for which
Tenant shall retain possession of the Premises after the expiration or
termination of the Initial Term or the Option Term, or of Tenant's right of
possession, whether by lapse of time or otherwise.
to have released the other for damage normally covered by such insurance.
SECTION 20
ENTIRE AGREEMENT
20.01. This Lease and the Exhibits attached hereto and forming a part
hereof, set forth all of the covenants, agreements, stipulations, promises,
conditions and understandings among Landlord and Tenant concerning the Premises
and there are no covenants, agreements, stipulations, promises, conditions or
understandings, either oral or written, between them other than herein set
forth.
SECTION 21
ENVIRONMENTAL
21.01. Landlord represents and warrants that to the best of its knowledge
no Hazardous Substance (as hereinafter defined) has been used, manufactured,
generated, stored, treated, processed or released at, in, on, over, under, to or
from any portion of the Premises or any contiguous real property.
21.02. Tenant shall not cause or permit, as the result of any act or
omission on the part of Tenant, its agents, employees, tenants, subtenants or
other occupants of the Premises to release Hazardous Substances in, on, over,
under, to or from any portion of the Premises in violation of any Environmental
Laws.
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21.03. "Hazardous Substance" shall mean "solid waste" or "hazardous
waste", "hazardous material", "hazardous substance", and "petroleum product" as
defined in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Hazardous Material
Transportation Act, the Federal Water Pollution Control Act and the Superfund
Amendments and Reauthorization Act of 1986, any laws relating to underground
storage tanks, and any similar or successor federal law or applicable state and
local statutes and ordinances and any rules, regulations and policies
promulgated thereunder, as any of such federal, state and local statutes,
ordinances and regulations may be amended from time to time (collectively,
"Environmental Laws").
SECTION 22
GENERAL
22.01. Many references in this Lease to persons, entities and items have
been generalized for ease of reading. Therefore, references to a single person,
entity or item shall also mean more than one person, entity or thing whenever
such usage is appropriate. Similarly, pronouns of any gender should be
considered interchangeable with pronouns of other genders.
22.02. Any waiver or waivers by Landlord of any of the provisions of this
Lease will not constitute a waiver of any later breach of that provisions and
any consent or approval given by Landlord with respect to any act, neglect or
default by Tenant will not waive or make unnecessary Landlord's consent or
approval with respect to any later similar act, neglect or default by Tenant.
22.03. Topical headings appearing in this Lease are for convenience only.
They do not define, limit or construe the contents of any paragraphs or clauses.
22.04. This Lease can be modified or amended only by a written agreement
signed by Landlord and Tenant.
22.05. All provisions of this Lease are and will be binding on the heirs,
executors, administrators, personal representatives, successors and assigns of
Landlord and Tenant.
22.06. This Lease shall be governed by, construed and enforced in
accordance with the laws of the State of Georgia and any action brought
hereunder shall be brought in Georgia, notwithstanding any conflict of laws
provision.
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IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease as of
the date set forth above.
LANDLORD:
Subscribed before me PAUL L. ERWIN
this 6th day of April, 1999.
/S/ STEPHEN P. EWALD
WITNESS
/S/ PAUL L. ERWIN
Paul L. Erwin
/S/ MAN WAI LAU
NOTARY PUBLIC
My Commission Expires:______
{SEAL}
TENANT:
Subscribed before me THE JEWEL I, INC. d/b/a Primrose Country
this 6th day of April, 1999. Day School
/S/ STEPHEN P. EWALD
WITNESS BY: /S/ PAUL L. ERWIN (SEAL)
TITLE: PRESIDENT
/S/ MAN WAI LAU
NOTARY PUBLIC
My Commission Expires:______
{SEAL}
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EXHIBIT "A"
All that tract or parcel of land lying and being in the City of Cartersville,
Bartow County, Georgia, located at the northwest intersection of South Erwin
Street and Leake Street and being TRACT NO. FOUR, of plat of William C. Smith,
G.R.L.S., recorded in plat book 32, page 1, Clerk's Office, Superior Court of
Bartow County, Georgia, to which reference is made for a more full and complete
description of the land conveyed. Said property more particularly described as
follows:
BEGINNING at an iron stake located at the southeast corner of Tract No. Two, as
shown on the plat above referred to, which iron pin is located on the west right
of way line of South Erwin Street and running thence along said right of way
line of South Erwin Street south 20 degrees 19 minutes 16 seconds east 92.05
feet to a point located on the west right of way of South Erwin Street; thence
southerly, southwesterly and westerly along the arc of the curvature of the
intersection of the west right of way of South Erwin Street and the north right
of way of Leake Street 27.86 feet to a point located on the north right of way
line of Leake Street, which point is located 25.01 feet south 25 degrees 13
minutes 55 seconds west of the previous point; thence along the north right of
way line of Leake Street south 70 degrees 47 minutes 05 seconds west 175 feet to
an iron pin; thence north 17 degrees 11 minutes 50 seconds west 114.85 feet to
an iron pin; thence north 72 degrees 17 minutes 09 seconds east 186.77 feet to
the beginning point. Said tract containing 0.488 acres.
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