Exhibit 10.1
LEASE
THIS LEASE made and entered into this _____ day of __________, 2005,
(the "Effective Date") between MCW-RC-SC-North Pointe, L.L.C., a Delaware
limited liability company ("Landlord"), and Carolina National Bank and Trust
Company, a national banking association ("Tenant").
ARTICLE 1
DEMISE
Premises. Landlord for an in consideration of the covenants and
agreements hereinafter set forth to be kept and performed does hereby demise and
lease to Tenant, subject to the Shopping Center Documents and the Permitted
Encumbrances for the Term (each as defined below) the premises (the "Premises"),
being that land having an area of approximately 0.803 acres and attached
building shown on the site plan attached hereto and made a part hereof as
Exhibit A (the "Site Plan") as an outparcel in the North Pointe Shopping Center
(the "Shopping Center") in Columbia, South Carolina, and as legally described in
Exhibit B attached hereto and made a part hereof. Landlord hereby grants to
Tenant, its customers, guests, invitees, employees, agents and licensees all
easements, rights and privileges appurtenant thereto, including the right to use
the parking areas, driveways, roads, means of ingress and egress and other
portions of the "Common Areas" (herein so called) as reflected in the Site Plan.
Landlord and Tenant hereby acknowledge and agree that the Premises shall be
encumbered by and is subject and subordinate to that certain Declaration of
Easement, Covenants and Restrictions as more particularly set forth in Article
50 hereof (the "DEC" or the "Shopping Center Documents"), and (ii) other
easements and restrictions of record ("Permitted Encumbrances"). Landlord
covenants that neither the DEC nor the Permitted Encumbrances shall impair
Tenant's ability to utilize the Premises for the purposes described in this
Lease, shall materially restrict Tenant's ability to design and construct its
building, site work, appurtenances and signage as contemplated hereunder, or
shall materially modify or countermand any of the provisions contained in this
Lease.
ARTICLE 2
TERM AND USE
2.1 Primary Term. The "Primary Term" (herein so called) of this Lease
shall begin on the Rent Commencement Date (as defined in Section 4.1 hereof) and
shall end at midnight on the last day of the tenth (10th) Lease Year (defined
below) following the Rent Commencement Date. For purposes of this Lease, a
"Lease Year" shall be defined as that twelve (12) month period during the
Primary Term or any Extension Term (hereinafter defined) commencing on the Rent
Commencement Date or the annual anniversary thereof, as may be applicable;
provided, however, that if the Rent Commencement Date is a day other than the
first day of a calendar month, then the first Lease Year shall include that
period of time from the Rent Commencement Date up to the first day of the next
calendar month and the period of twelve months thereafter, and any subsequent
Lease Year shall be the twelve (12) month period beginning on the first day of
such month. For purposes of this Lease, a "Lease Month" shall be defined as
those successive calendar month periods beginning with the Rent Commencement
Date and continuing through the Primary Term or any Extension Term of this
Lease; provided, however, if the Rent Commencement Date is a day other than the
first day of a calendar month, then the first Lease Month shall include that
period of time from the Rent Commencement Date up to the first day of the next
calendar month, and each subsequent Lease Month shall be a calendar month period
beginning on the first day of such month. The Primary Term and any Extension
Terms are sometimes collectively referred to herein as the "Term."
2.2 Extension Terms. Provided Tenant has not been in monetary default
of any term, condition or covenant contained in this Lease at the time of
exercise of an option to renew the Primary Term beyond any period for curing
same, Tenant shall have the option of extending this Lease for two (2)
additional terms (hereinafter, collectively referred to as "Extension Terms," or
individually as an "Extension Term") of (5) years on the same terms and
conditions as provided herein at the Base Annual Rent set forth in Section 4.2
hereof. Notice of the exercise of such option shall be delivered by Tenant to
Landlord, in writing, not later than one hundred eighty (180) days prior to the
expiration of the Primary Term or the previous Extension Term, as the case may
be.
2.3 Use. Tenant shall have the right to conduct its business in the
Demised Premises under the name Carolina National Bank, or such trade name as is
used by a majority of Tenant's other branches in the State of South Carolina.
The Premises shall be occupied and used by Tenant for the purpose of
conducting therein the business of the operation of a banking and financial
institution (including the existing drive-thru and walk-up Automatic Teller
Machines ("ATM") and offering related services as are permitted by law to Tenant
or any of its subsidiaries or affiliates and for any other lawful purpose with
Landlord's prior written consent, subject to restrictions or record and
exclusive uses at the Shopping Center, but for no other purpose. Tenant shall
have the right to cause the operation of the Premises to conform to Exhibit F
and operation of the majority of its branch locations in the State of South
Carolina. Such right shall include, but shall not be limited to, the right to
install Tenant's standard automated teller machines ("ATMs") through the
exterior wall(s) of the Premises, and the right to maintain Tenant's standard
ATM environment as such may from time to time be changed. Such right shall also
include the right to install a night depository through the exterior wall of the
Premises. Upon removal of its ATMs and depository, Tenant shall repair any
damage to the exterior wall.
ARTICLE 3
EXHIBITS AND ORGINAL CONSTRUCTION
3.1 Exhibits. The exhibits listed below and attached to this Lease are
incorporated herein by reference:
EXHIBIT A Site Plan of Premises
EXHIBIT B Legal Description of the Premises
EXHIBIT C Subordination, Attornment and Non-Disturbance Agreement
EXHIBIT D Term Expiration Agreement
EXHIBIT E Memorandum of Lease
EXHIBIT F Architectural Rendering and footprint of Tenant's Building
EXHIBIT G Sign Drawing
EXHIBIT H Shopping Center Site Plan
EXHIBIT I Intentionally Deleted
EXHIBIT J Intentionally Deleted
3.2 Delivery of Premises. Landlord estimates delivery of the Premises
to Tenant by August 15, 2005. Tenant is responsible for all sidewalks and
landscaping within the building limit line as allocated on the Site Plan of the
Premises.
3.3 Initial Construction. Within thirty (30) days following the date of
Lease execution, Tenant's architect shall prepare and submit to Landlord a
concept plan (the "Preliminary Plans") for the modifications proposed by Tenant
to the exterior of the existing building on the Premises ("Tenant's Building")
which shall conform in all material respects to the applicable law, rules,
regulations and restrictions of record. Within two (2) business days of receipt
of the Preliminary Plans, Landlord shall deliver to Tenant its written comments
on the Preliminary Plans. The Preliminary Plans shall be revised by Tenant's
architect to incorporate Landlord's reasonable comments within ten (10) days of
delivery of such comments to Tenant. The revised Preliminary Plans shall again
be submitted to Landlord, and Landlord and Tenant shall continue the review and
approval process as hereinabove provided; provided, however, the response time
by each party shall be shortened to five (5) days until the Preliminary Plans
have been finally approved by the Landlord, thereupon the Preliminary Plans
shall be the "Plans." Once approved by the Landlord, the Plans shall not be
materially changed without the prior written approval of Tenant and Landlord.
Within sixty (60) days of approval of the Plans by Landlord and Tenant and
receipt by Tenant of all permits and approvals required therefor, Tenant shall
commence the work described on the Plans ("Tenant's Work") and shall thereafter
prosecute Tenant's Work with due diligence and without interruption to
completion. Tenant shall endeavor to open to the public as a financial
institution for at least one full business day, fully staffed and fixtured,
within one hundred twenty (120) days of delivery and Tenant's receipt of all
necessary permits (which Tenant shall be obligated to use its best efforts to
procure so as to permit construction to commence as soon as possible following
delivery of the building pad to Tenant), subject to force majeure and receipt of
a certificate of occupancy.
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3.4 Quality of Work. Tenant shall, at its expense, perform Tenant's
Work in a good and workmanlike manner. Tenant shall utilize first-quality new
materials in compliance with all applicable laws, ordinances, rules and
statutes.
3.5 Insurance During Construction. During construction on the Premises,
Tenant, at its expense, shall obtain and maintain builder's risk insurance and
public liability insurance and worker's compensation insurance adequate to fully
protect Tenant, as well as Landlord, from and against any and all liability for
death or injury in person, or damage to property, caused by the construction of
Tenant's Work.
3.6 Mechanic's Liens. Tenant shall not permit any mechanic's or other
lien to be filed against the Premises and shall indemnify and defend Landlord
against the same. If any such lien is filed against the Premises, Tenant shall
cause such lien to be bonded off within thirty (30) days after the filing of
such lien. Tenant may contest such lien so long as Tenant bonds off the lien
prior to such contest. Should Tenant fail to remove, discharge or bond off the
lien within the required time period, then Landlord may bond off or pay off the
lien and Tenant shall reimburse Landlord for the cost of doing so upon demand as
provided in Article 13.
ARTICLE 4
DATE ON WHICH RENT BEGINS
4.1 Rent Commencement Date. The Base Annual Rent and all Additional
Rent shall commence on August 15, 2005 (the "Rent Commencement Date"). Landlord
and Tenant shall complete and execute the Term Expiration Agreement, in
accordance with the form attached hereto as Exhibit D. Real Estate Taxes, if
payable to Landlord, and common area maintenance charge under the Shopping
Center Documents are herein referred to as "Additional Rent." Base Annual Rent
and Additional Rent are sometimes collectively referred to herein as "Rent."
4.2 Base Annual Rent. Tenant hereby covenants and agrees to pay
Landlord, for the use and occupancy of the Premises, at the times and in the
manner provided herein, the following sums of money ("Base Annual Rent").
(a) The Base Annual Rent for each of Lease Years 1 through 5 shall
be $36,000.00.
(b) The Base Annual Rent for each of Lease Years 6 through 10
shall be $40,000.00.
(c) The Base Annual Rent for each of Lease Years 11 through 15
shall be $44,800.00 should Tenant provide one hundred eighty
(180) days prior written notice of its intent to exercise this
option.
(d) The Base Annual Rent for each of Lease Years 16 through 20
shall be $50,000.00 should Tenant provide one hundred eighty
(180) days prior written notice of its intent to exercise this
option.
Base Annual Rent shall be paid in U.S. dollars, in advance, without set-off or
deduction except as set forth herein, and without notice or invoice from
Landlord in equal monthly installments, on the first day of each and every month
during the Term hereof, commencing upon the Rent Commencement Date and ending
upon the termination date of this Lease. In the event the Rent Commencement Date
shall commence on a day other than the first day of a month, then the Base
Annual Rent for the period from such Rent Commencement Date until the first day
of the month next following shall be prorated accordingly. All payments provided
for in this Lease (those hereinafter stipulated as well as Base Annual Rent)
shall be paid or mailed to: North Pointe, c/o MCW-RC-SC-North Pointe, LLC, P.O.
Box 534295, Atlanta, Georgia 30353-4295, (Federal Tax Identification Number:
20-1356728), or to such other payee or address as Landlord may designate in
writing to Tenant. All amounts due under this Lease that are not received by
Landlord within ten (10) days after being due and payable shall thereafter
accrue interest from the due date until the date paid at a rate equal to two
percent (2%) in excess of the so-called Prime Rate of major United States
financial institutions as published in the Wall Street Journal (or successor
publication), which rate shall change as and when such Prime Rate shall be
changed (the "Default Rate") but not to exceed the maximum rate allowable by
law.
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ARTICLE 5
TAXES
In addition to the Base Annual Rent provided for herein, Tenant agrees
to pay Landlord additional payments, as follows:
5.1 Real Estate Taxes. Tenant shall be responsible for all real
property taxes and general and special assessments, foreseen and unforeseen
("Real Estate Taxes"), which may be levied or assessed against the Premises for
any tax year which is wholly or partly within any Lease Year. As used herein,
the term "Real Estate Taxes" shall mean all real estate taxes, assessments,
metropolitan district charges, sewer rents, ad valorem charges, water rents,
front foot benefit charges, and all other governmental impositions in the nature
of the foregoing, including any sums levied pursuant to the Shopping Center
Documents. If at any time during the Term the method of taxation prevailing at
the commencement of the Term shall be altered so as to cause the whole or any
part of the items constituting Real Estate Taxes to be levied, assessed or
imposed wholly or partly as a capital levy, or otherwise, on the rents received
from the Premises, wholly or partly in lieu of the imposition of, or the
increase of, taxes in the nature of Real Estate Taxes issued against the
Premises, then the charge to Landlord resulting from such altered method of
taxation shall be deemed to be within the definition of Real Estate Taxes.
Landlord will have the Premises separately assessed and billed for the purpose
of Real Estate Taxes. Should at any time during the Term the Premises not be
separately assessed, then Tenant shall be responsible for payment of its "pro
rata share" of the bill for Real Estate Taxes levied against the tax parcel or
parcels of which the Premises is a part (the "Tax Parcel"). Tenant's "pro rata
share" shall be defined as the percentage that the gross leasable area of all
the buildings located within the Tax Parcel. In making such determination, the
records of the tax assessor shall prevail. In the event the Premises is not
separately assessed, Tenant shall pay its "pro rata share" of Real Estate Taxes
to Landlord at least thirty (30) days before such Real Estate Taxes become
delinquent. Also, in such event Landlord shall provide to Tenant the computation
of and supporting documentation for Tenant's "pro rata share" of Real Estate
Taxes at least thirty (30) days prior to the date upon which Tenant must pay
such "pro rata share" of Real Estate Taxes to Landlord.
5.2 Payment. Real Estate Taxes during the Term hereof shall be paid
annually by Tenant to either the taxing authority or Landlord (if the Premises
is not separately assessed) prior to the date upon which penalties or interest
for late payment shall be assessed. If the Premises are separately assessed,
Tenant shall deliver a copy of the tax bill(s) and Tenant's payment to Landlord
concurrently with its payment of Real Estate Taxes. Tenant's obligations under
this Section 5.2 for periods within the Term shall survive the expiration of the
Term of this Lease. In the event Landlord shall fail to provide Tenant with a
statement or invoice for any Additional Rent pursuant to this Article within one
(1) year after accrual of the obligation represented by such statement or
invoice, then Landlord shall be deemed to have waived its right to collect such
Additional Rent. In addition, in the event that Landlord shall fail to invoice
Tenant or any Additional Rent pursuant to this Article within twelve (12) months
following the expiration or termination of the term, then Landlord shall be
deemed to have waived its right to collect the same rent. No Real Estate Taxes,
assessments, fees or charges referred to in this Section 5.2 shall be considered
taxes under Article 11 hereof.
5.3 Contest of Real Estates Taxes. If the Premises are separately
assessed, Tenant may, upon the receipt of prior written approval of Landlord,
such approval not to be unreasonably withheld, contest any Real Estate Taxes
against the Premises and attempt to obtain a reduction in the assessed valuation
of the Premises for the purpose of reducing any such tax assessment. In the
event Landlord approves, and upon the request of Tenant, but without expense or
liability to Landlord, Landlord shall cooperate with Tenant and execute any
document which may be reasonable, necessary and proper for any proceeding. In
the event Landlord desires to contest any Real Estate Taxes, Tenant agrees to
cooperate with Landlord and execute any document which may be reasonably
necessary and proper for any proceeding, at not cost to Tenant.
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ARTICLE 6
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
6.1 Subordination. Upon written request of Landlord, or any mortgagee
or beneficiary of Landlord, Tenant will in writing, subordinate its rights
hereunder to the interest of any ground lessor of the Premises and to the lien
of any mortgage or deed of trust, now or hereafter in force, against the
Premises and to all advances made or hereafter to be made upon the security
thereof, provided, however, that the ground lessor, or the mortgagee or trustee,
as applicable, named in said mortgage or trust deed shall agree that Tenant's
peaceable possession of the Premises and its rights under this Lease will not be
diminished on account thereof provided Tenant is not in default of this Lease
beyond any applicable cure period.
6.2 Foreclosure. In the event (i) any proceedings are brought for
foreclosure, or (ii) if the exercise of the power of sale under any mortgage or
deed of trust, then, upon any such foreclosure or sale, Tenant agrees to
recognize such beneficiary or purchaser as Landlord under this Lease, provided
that Tenant's right to possession continues unabated and Tenant's rights under
this Lease continue undiminished.
6.3 Subordination, Non Disturbance and Attornment Agreement. Landlord
agrees to request a Subordination, Non Disturbance and Attornment Agreement
substantially in accordance with the form attached hereto as Exhibit C ("SNDA")
from any future lender within thirty (30) days after Landlord obtains financing
from such lender but Landlord cannot guarantee delivery of an SNDA; provided
that if such SNDA is not so delivered, Tenant shall not be required to
subordinate its rights under this Lease to such future lender's mortgage or deed
of trust.
ARTICLE 7
STUDY PERIOD
Intentionally Omitted.
ARTICLE 8
REPAIRS AND MAINTENANCE
Tenant covenants and agrees at its expense to maintain and repair
(including replacements) in first class condition, all of the improvements on
the Premises as cross hatched on Exhibit A, including, without limitation, the
structure, roof, walls, floor slab, foundation, exterior paint, plumbing system,
electrical system, utility lines, hearing, ventilating and air conditioning
systems, non-structural portions of Tenant's Building, the storefront, plate
glass, doors and locks and landscaping, and as otherwise required under
applicable law or the Shopping Center Documents. During the Primary Term and any
Extension Term of this Lease, Landlord shall maintain and repair (including
replacement) the area outside the Tenant's Control Area, as set forth in the
Shopping Center's Documents and identified in the Site Plan.
ARTICLE 9
ENVIRONMENTAL MATTERS
Tenant shall not use the Premises for the production, sale or storage
of any Hazardous Materials (as defined by any applicable governmental authority,
and including petroleum products and asbestos), shall not use any Hazardous
Materials on the Premises, and shall not cause any Hazardous Materials to be
disposed of from, in or on the Premises by the acts of Tenant, unless said
Hazardous Materials are of the type normally used in the ordinary course of
operating and maintaining the Premises for their then current use and are
stored, used and disposed of in strict accordance with all such laws, statutes,
ordinances, codes, rules and regulations which are applicable to the Premises
("Environmental Regulations"). Tenant shall not cause any Hazardous Materials to
be emitted, discharged, released, spilled or deposited from, in or on the
Premises by the acts of Tenant. Tenant shall obtain and maintain all licenses
and permits, and shall maintain all material safety data sheets with respect to
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such Hazardous Materials, which are required by any Environmental Regulation.
Landlord shall have the right to enter the Premises during regular business
hours upon reasonable prior notice, but in no event less than twenty-four (24)
hours (except in the case of an emergency), to inspect the same for compliance
with the provisions of this Article. The obligation of Tenant hereunder shall
survive the expiration or earlier termination of this Lease. Tenant agrees to
indemnify, defend and hold Landlord and its officers, partners, employees and
agents harmless from any claims, judgments, damages, fines, penalties, costs,
liabilities (including sums paid in settlement of all claims) or loss, including
attorneys' fees, consultants fees, and experts fees, which arise during or after
the Term in connection with the presence of any Hazardous Materials in the
Premises or around the Premises to the extent caused by the acts of Tenant, its
agents, employees or contractors, except to the extent such hazardous or toxic
substances are present due to the negligence or willful misconduct of Landlord,
its officers, employees, agents, or contractors.
ARTICLE 10
ALTERATIONS
Tenant shall not make any exterior or structural alterations in
Tenant's Building without first obtaining the written consent of Landlord which
consent shall not be unreasonably withheld, conditioned or delayed. Tenant shall
be permitted to make interior non-structural alterations, additions and
improvements in the Tenant's Building without Landlord's prior consent.
ARTICLE 11
FIXTURES AND PERSONAL PROPERTY AND PERSONAL PROPERTY AND BUSINESS TAXES
Any trade fixtures, vault doors, business equipment, inventory,
trademarked items, signs, decorative soffit, counters, shelving, showcases,
mirrors and other removable property installed in or on the Premises by Tenant
at its expense ("Tenant's Property"), shall remain the property of Tenant.
Landlord agrees that Tenant shall have the right, at any time or from time to
time, to remove any and all of Tenant's Property. Tenant at its expense shall
immediately repair any damage occasioned by the removal of Tenant's Property
from Tenant's Building and upon expiration or earlier termination of this Lease,
shall leave the Premises in a neat and clean condition, free of debris, normal
wear and tear expected. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed upon
its business operation on the Premises as well as upon Tenant's Property. No tax
assessments, fees or charges referred to in this paragraph shall be considered
as Real Estate Taxes under the provisions of Article 5 hereof.
ARTICLE 12
SIGNAGE
Subject to governmental approvals, the Shopping Center Documents, and
prior written approval of Landlord, Tenant shall have the right to install its
prototypical signage on the exterior of its building as well as appropriate
drive-thru signage in accordance with Exhibit G. Tenant agrees that its signage
must comply with the Shopping Center Documents and with applicable governmental
requirements. Landlord makes no representations or warranties concerning
Tenant's ability to obtain signage approval from governing authorities. All
signage shall be maintained at Tenant's sole cost. Tenant shall have the right
to display the FDIC seal and its days and hours of operation on the interior of
the exterior glass surfaces of the Demised Premises or on the interior of the
front door of the Demised Premises. Tenant may temporarily display a "Grand
Opening" or "Coming Soon" sign, provided that Landlord approves of its design,
location, content and time period during which same may be displayed.
ARTICLE 13
LIENS
Tenant shall discharge any lien, encumbrance or charge arising out of
the work of any contractor, mechanic, laborer or material contracted for by
Tenant. If any lien or notice of lien on account of an alleged debt of Tenant or
any notice of contract by a party engaged by Tenant or Tenant's contractor to
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work in the Premises shall be filed against the Premises, Tenant shall, within
thirty (30) days after notice of the filing thereof, cause the same to be
discharged of record by payment, deposit or bond. If Tenant fails to cause any
such lien to be discharged of record within said thirty (30) day time period,
Landlord may do so and Tenant shall, promptly, upon demand, reimburse Landlord
for the reasonable costs and expenses associated therewith together with
interest at the Default Rate.
ARTICLE 14
LAWS AND ORDINANCES
14.1 Compliance with Laws. Tenant shall, at its sole cost and expense,
comply with all laws, ordinances, orders and regulations regarding the Premises.
Tenant shall comply with the reasonable regulations and requirements of any
insurance underwriter, inspection bureau or similar agency with respect to the
Premises. Tenant shall not use or occupy the Premises for any purpose or in any
manner which shall violate any of the terms and provisions of the Shopping
Center Documents.
14.2 Restrictions on Use. Tenant agrees not to (i) permit any illegal
practice to be carried on or committed on the Premises; (ii) make use of or
allow the Premises to be used for any purpose that might invalidate or increase
the rate of insurance therefore; (iii) use the Premises for any purpose
whatsoever which might create a nuisance; (iv) deface or injure the building on
the Premises; (v) overload the floor; (vi) commit or suffer any waste; or (vii)
install any electrical equipment that overloads lines.
ARTICLE 15
SERVICES
15.1 Utility Service. Tenant shall be solely responsible for, and
promptly pay, all charges for the use, temporary use and consumption of sewer,
gas, electricity, water, phone, trash removal and all other utility services
used within the Tenant's Building (including, without limitation, deposit,
connection or tap-in charges or fees).
15.2 Interruption of Services. Landlord shall not be liable to Tenant
in damages or otherwise if utilities or services are interrupted or terminated
because of necessary repairs, installations, or improvements, or any cause other
than the negligence or willful misconduct of Landlord or its agents, contractors
or employees nor shall any such interruption or termination relieve Tenant of
the performance of any of its obligations hereunder. Notwithstanding the
foregoing, nothing shall adversely affect Tenant's business or Tenant's right to
quiet and peaceful enjoyment of the Premises. In the event Tenant is unable to
operate its business in the Premises or any portion thereof due to the
negligence of Landlord, during the majority of the building operating hours for
two (2) consecutive business days, then rent and all other rent due under this
Lease shall abate thereafter in the proportion that the Premises are unusable
until the entire Premises (or portion thereof that was rendered unusable) are
again usable.
ARTICLE 16
SHOPPING CENTER DOCUMENTS
16.1 Compliance with Shopping Center Documents. Notwithstanding
anything in this Lease to the contrary (but subject to the last sentence of
Article 1 hereof and to Article 50 hereof), Landlord and Tenant acknowledge and
agree that this Lease shall be subject and subordinate to, and Tenant shall
comply with, the terms and conditions set forth in the Shopping Center
Documents. Accordingly, Tenant hereby covenants and agrees that during the
Primary and any Extension Term it shall be responsible for all performance of
obligations and all payments and common area maintenance costs and insurance,
and shall be responsible to take at its expense all actions required under the
Shopping Center Documents in respect of the Premises, including, without
limitation, obtaining architectural approval of Tenant's Building, with Landlord
having no responsibility therefor. Tenant acknowledges that ingress and egress
to the Premises is provided pursuant to the Shopping Center Documents. Should
Tenant elect to be open for business for hours greater than the majority of the
other tenants or occupants of the Shopping Center, Tenant shall be responsible
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for any increased costs of operation, maintenance and repair of the Common Area
caused thereby.
16.2 Maintenance by Tenant. Subject to the Shopping Center Documents.
Tenant covenants and agrees that it shall maintain or cause to be maintained
Tenant's Control Area in good class order and repair.
ARTICLE 17
COMMON AREA
17.1 Use by Tenant; Maintenance. Subject to the Shopping Center
Documents, Tenant and its employees and invitees are, except as otherwise
specifically provided in this Lease, authorized, empowered and privileged during
the Term to use the Common Areas for their respective intended purposes in
common with other persons. Landlord agrees to maintain, as par of the Common
Area Costs, the Common Areas in good condition and keep the same properly
lighted during the periods that a majority of the GLA in the Shopping Center is
open and for a reasonable period thereafter; provided, however, that the manner
in which the Common Areas shall be maintained shall be solely determined by
Landlord. If any owner or tenant of any portion of the Shopping Center maintains
Common Areas located upon its parcel or premises (Landlord shall have the right,
in its sole discretion, to allow any purchaser or tenant to so maintain Common
Areas located upon its parcel or premises and to be excluded from participation
in the payment of Common Area Costs), Landlord shall not have any responsibility
for the maintenance of that portion of the Common Areas and Tenant shall have no
claims against Landlord arising out of any failure of such owner or tenant to so
maintain its portion of the Common Areas.
17.2 Common Areas Defined. "Common Areas" means all areas, facilities,
and improvements provided in the Shopping Center from time to time for the
convenience and use of tenants and patrons of the Shopping Center, and shall
include, but not be limited to, the parking areas and facilities, sidewalks,
stairways, service corridors, truckways, ramps, loading docks, delivery areas,
landscaped areas, access and interior roads, lighting facilities and similar
areas and facilities situated within the Shopping Center which are not reserved
for the exclusive use of any Shopping Center occupants.
17.3 Rules and Regulations. Tenant agrees to comply with such
reasonable rules and regulations as Landlord may deem necessary or advisable for
the proper efficient use, operation and maintenance of the Common Areas and all
reasonable non-discriminatory modifications thereof and additions thereto from
time to time put into effect and furnished to Tenant by Landlord. Landlord shall
endeavor to enforce such rules and regulations, but shall have no liability to
Tenant for the violation or non-performance by any other tenant or occupant of
the Shopping Center of any such rules and regulations. Notwithstanding anything
in the rules and regulations to the contrary, armored cars shall be permitted to
operate, park, load and unload in any reasonable manner deemed appropriate by
the armored car service in order to properly and safely perform its duties.
17.4 Landlord's Control. Subject to the terms of the Shopping Center
Documents, Landlord shall at all times during the Term have the sole and
exclusive control, management and direction of the Common Areas and the right to
make reasonable changes to the Common Areas, and may at any time and from time
to time during the Term exclude and restrain any person from use or occupancy
thereof, excepting, however, Tenant and other tenants of Landlord and bona fide
invitees of either who make use of the said areas in accordance with the rules
and regulations established by Landlord from time to time with respect thereto.
Notwithstanding the foregoing, Landlord shall not alter, modify, diminish or
relocate the Common Areas in such a manner as to materially and adversely impact
the visibility of the Premises, or access to or parking or traffic circulation
within Tenant's Control Area as shown on Exhibit A-1. The rights of Tenant in
and to the Common Areas shall at all times be subject to the terms of the
Shopping Center Documents and the rights of others to use the same in common
with the Tenant. Landlord may at any time and from time to time close all or any
portion of the Common Areas to make repairs, improvements, alterations or
changes and, to the extent necessary in the opinion of Landlord, to prevent a
dedication thereof or the accrual of any rights to any person or to the public
therein. Landlord may close temporarily any or all portions of the Common Areas
to discourage noncustomer parking and use and to do and perform such other acts
in and to the Common Areas as, in the exercise of good business judgment,
Landlord shall determine to be advisable with a view to the improvement of the
convenience and use thereof by occupants and tenants, their employees and
invitees.
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17.5 Landlord's Use of Common Areas. Subject to the Shopping Center
Documents, Landlord shall at all times have the right to utilize the Common
Areas, or any part thereof, for promotions, exhibits, carnival type shows,
rides, outdoor shows, displays, automobile and other product shows, the leasing
of kiosks and food facilities, landscaping, decorative items, and any other such
use, which, in Landlord's judgment, tends to attract customers to or benefit the
customers of the Shopping Center and does not materially interfere with Tenant's
business or the parking available for use by Tenant's customers.
17.6 Common Area Costs. "Common Area Costs" mean all costs incurred in
a manner deemed by Landlord to be reasonable and appropriate and for the best
interests of the Shopping Center in connection with the management, operation,
maintenance, replacement and repair of the Common Areas, including but not
limited to security, landscaping, utilities, painting, striping, lighting,
management fee (4% of gross revenues), administration fee of fifteen percent
(15%) of Common Area Costs and pest control among other items.
Common Area Costs shall not include depreciation of costs or expenses
in connection with the original construction and installation of the Common
Areas or Common Area Costs which are classified as capital expenditures under
generally accepted accounting principles, provided, however, that the costs of
improvements to the Common Areas intended to reduce Common Area Costs or as may
from time to time be required by any newly enacted (after the date of this
Lease) laws, ordinances, rules or regulations of any governmental authority or
agency having jurisdiction thereof shall be includable in Common Area Costs to
the extent of the annual amortization thereof over the useful life of the
improvements.
Common Area Costs shall not include principal or interest payments on
any mortgage or deed of trust or ground rent payments under any ground lease;
costs or expenses associated with leasing space in the Shopping Center or the
sale of any interest in the Shopping Center, including marketing costs and
brokerage commissions; costs of preparing, improving or altering space for a
specific tenant; costs relating to maintaining Landlord's legal existence,
either as a corporation, partnership or other entity; payments made to any
entities that are related to Landlord to the extent such payments exceed the
market rate customarily paid to unrelated entities for comparable goods or
services; costs incurred because Landlord or any tenant violated the terms of
any lease; costs that are reimbursed to Landlord by any source (other than
additional rent provisions such as this one) (e.g., by way of warranties,
insurance or condemnation proceeds, or payment by any other tenant); and costs
incurred to remove or otherwise deal with any Hazardous Materials in, upon or
under the Shopping Center that were not introduced by Tenant or any party for
which Tenant is responsible.
In view of the fact that Tenant is solely bearing the cost of
maintaining, repairing, insuring and replacing all elements of its building,
Landlord agrees that any share of Common Area Costs allocated to the Premises
shall not include any costs associated with the maintenance, repair, insurance
or replacement of any other buildings in the Shopping Center or the furnishing
to any other premises in the Shopping Center of any work, service or utility the
cost of which is being borne by Tenant with respect to the Premises.
17.7 Tenant's Proportionate Share of Common Area Costs. Tenant agrees
to pay to Landlord, as Additional Rent, Tenant's pro rata share of Common Area
Costs in the following manner:
(a) Tenant shall pay Landlord on the Commencement Date and on the
first day of each calendar month of the Term thereafter an
amount of $300.00 a month subject to annual CPI increases.
(b) CPI means the index of changes of prices and services
purchased by urban wage earner and clerical worker families to
maintain their level of living - all items - all cities - as
compiled and published by the United States Department of
Labor, Bureau of Labor Statistics. If at any time such index
is no longer compiled or published by the Department of Labor,
Landlord will select such other index or standard as shall
most clearly reflect changes in the cost of living for urban
wage earners and which is generally recognized as
authoritative by financial and insurance institutions.
Thereafter the substitute index shall be the CPI.
The CPI for the month in which the Commencement Date occurs
shall be the Base CPI for the purpose of all rent adjustments.
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The CPI for the month of September preceding the next January
adjustment date shall be the "Adjustment CPI."
If the Adjustment CPI exceed Base CPI, the difference is the
"CPI Increase." The CPI Increase shall be divided by the Base
CPI. The quotient shall be multiplied by the annual Common
Area Costs and the result shall be added to the Common Area
Costs for the period from the Adjustment Date until the end of
the term or the next Adjustment Date, as the case may be.
ARTICLE 18
DAMAGE TO PREMISES
If the Tenant's Building is hereafter damaged, destroyed or rendered
partially untenantable Tenant shall, within ninety (90) days after such
casualty, commence repair of Tenant's Building, and within one hundred eighty
(180) days after commencement of such repair (or such additional time as may
reasonably be required), restore Tenant's Building to substantially the same
condition in which it was immediately prior to the occurrence of the casualty.
In the event that fifty percent (50%) or more of the Tenant's Building is
destroyed or rendered untentantable by fire or other casualty during the last
two (2) years of the Primary or any Extension Term of this Lease (based upon the
cost to replace the Tenant's Building as compared with the market value of
Tenant's Building immediately prior to such fire or other casualty, as shown by
certificate of Tenant's architect), then Landlord or Tenant shall have right to
terminate this Lease effective as of the date of the casualty, by giving written
notice of termination to the other within thirty (30) days of such casualty;
provided, however, Tenant shall have the right to nullify any Landlord
termination by exercising an option to extend this Lease (if available). If said
notice of termination is given within this thirty (30) day period, this Lease
shall terminate. If said notice is not given and Tenant is required or elects to
repair or rebuild the Tenant's Building as herein provided, then Tenant shall
repair and replace Tenant's Building, to at least its condition prior to the
damage or destruction. In the event of a termination, the proceeds of any
applicable insurance policies shall be distributed to Landlord or that amount
equal to the amount of such insurance proceeds Landlord would have received
pursuant to Section 19 but for Tenant's failure to properly insure the Premises
as required herein.
In the event that a Demised Premises shall be rendered wholly or
partially untenantable by a casualty and this Lease is not terminated pursuant
to the terms hereof, Tenant shall have the right (but not the obligation) to
maintain a trailer at a location in the Shopping Center reasonably satisfactory
to Landlord and Tenant, and shall have the right to conduct business therefrom
during the time required to reconstruct the Demised Premises; it being
acknowledged by Landlord that the ability to continue operation during any such
period is of substantial importance to Tenant.
ARTICLE 19
INSURANCE
19.1 Tenant's Property Insurance. Tenant shall carry, at its expense
during the Term hereof, Special Form insurance (hereinafter, "Tenant's Property
Insurance") covering fire and extended coverage, vandalism and malicious
mischief, sprinkler leakage and all other perils of direct physical loss or
damage insuring the improvements and betterments located within the building
limit line, including all appurtenances thereto (including Tenant's Property)
for the full replacement value thereof and with insurance companies having a
Best's Insurance Guide rating of A:X or better qualified to do business in South
Carolina as well as business interruption insurance. Tenant shall deliver to
Landlord a certificate of Tenant's Property Insurance and Tenant's Liability
Insurance prior to any entry by Tenant onto the Premises and thereafter prior to
the expiration of any coverages in a certificate previously provided to
Landlord.
19.2 Tenant's Liability Insurance. Tenant shall carry Commercial
General Liability ("Tenant's Liability Insurance") insurance on the Premises
during the Term, with companies qualified to do business in South Carolina and
naming Landlord (and, if requested, Landlord's mortgagee) as an additional
insured, with companies reasonably satisfactory to Landlord and giving Landlord
and Tenant a minimum of thirty (30) days written notice by the insurance company
prior to cancellation, termination or change in such insurance. Such insurance
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shall be for limits of not less than One Million Dollars ($1,000,000.00)
combined Bodily Injury and Property Damage Liability. Tenant shall have the
right to self-insure solely with respect to plate glass insurance for the
Demised Premises, provided Tenant maintains a minimum net worth of
$50,000,000.00.
19.3 Waiver of Subrogation. Landlord and Tenant, and all parties
claiming under them, mutually release and discharge each other from all claims
and liabilities arising from, or caused by, any casualty or hazard, covered, or
required hereunder to be covered, in whole or in part by insurance on the
Premises or in connection with property on, or activities conducted on, the
Premises and waive any right of subrogation which might otherwise exist in, or
accrue to, any person on account thereof.
19.4 Failure to Insure. In the event that Tenant fails to cause the
aforesaid insurance policies to be written and to pay the premiums for the same
and deliver all such certificates of insurance or duplicate policy originals to
Landlord within the time provided herein, Landlord shall have the right, without
being obligated to do so, to obtain such insurance and pay the premiums
therefor, and all such premiums paid by Landlord shall be promptly repaid to
Landlord by Tenant as additional rent with interest at the Default Rate.
ARTICLE 20
INDEMNIFICATION
20.1 Tenant's Indemnity. Tenant hereby indemnifies and holds harmless
from, and against any and all claims, demands, liabilities, and expenses,
including reasonable and actual attorney's fees, arising from any breach or
default by Tenant of this Lease or from any negligence or willful misconduct of
Tenant or its agents, employees or contractors in or about the Premises and the
Shopping Center, except to the extent caused by Landlord's negligence or willful
misconduct. In the event any action or proceeding shall be brought against
Landlord by reason of any such claim, Tenant shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord.
20.2 Landlord's Indemnity. Landlord hereby indemnifies and holds Tenant
harmless from and against any and all claims, demands, liabilities, and
expenses, including reasonable and actual attorney's fees, arising from any
breach or default by Landlord of this Lease or from any negligent act or
intentional act of Landlord or any act of Landlord or any of its agents,
contractors or employees, occurring in or about the Shopping Center (exclusive
of the Premises) except to the extent caused by Tenant's negligence or willful
misconduct. In the event any action or proceedings shall be brought against
Tenant by reason of any such claim, Landlord shall defend the same at Landlord's
expense by counsel reasonably satisfactory to Tenant.
ARTICLE 21
ASSIGNMENT AND SUBLETTING
21.1 Right to Sublet and Assign. As long as Tenant's Use is not
changed, Tenant shall have the right to sublet, assign or otherwise transfer its
interest in this Lease to any parent or operating wholly-owned subsidiary of
Tenant or to a corporation with which Tenant may merge or consolidate, without
Landlord's approval, written or otherwise but with written notice to Landlord
and assumption of all obligations by the assignee. In the vent of any such
subletting, assignment or other transfer, Tenant shall remain primarily liable
for the obligations of Tenant under this Lease. In no event shall Tenant assign
to a multiple use.
21.2 Restrictions on Sublet and Assignment. The consent by Landlord to
any other transfer, assignment or subletting shall not be unreasonably withheld,
conditioned or delayed. It will not be deemed unreasonable to Landlord to demand
financials and all other items required herein. Landlord's review shall include,
without limitation, the subtenant's or assignee's intended use of the Premises,
which intended use, shall not violate the Shopping Center Documents on any
exclusives and/or restrictions on the Shopping Center. In the event that Tenant
proposes any transfer of this Lease or transfer of Tenant's leasehold interest
and if the consent of Landlord is required for such transfer, Tenant shall
notify Landlord in writing by certified mail or other nationally recognized
overnight delivery service having tracking ability at least thirty (30) days
before the date on which the transfer is to be effective and, included with such
notice, Tenant shall furnish Landlord with: (i) the name of the entity receiving
such transfer (the "Transferee"); (ii) a detailed description of the business of
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the Transferee; (iii) audited financial statements of the Transferee (provided
that unaudited financial statements shall be accepted if audited financial
statements are not readily available, if signed by an officer of the company);
(iv) all written agreements governing the transfer; (v) any information
reasonably requested by Landlord with respect to the transfer or the Transferee;
and (vi) a fee of One Thousand and 00/100 Dollars ($1,000.00) to compensate
Landlord for legal fees, costs of administration, and other expenses to be
incurred in connection with the review and processing of such documentation
(whether or not such transfer is consummated). Landlord shall respond to
Tenant's request for approval or disapproval of the transfer within thirty (30)
days after Landlord receives the request and the documents and information set
forth above. No transfer will release Tenant of Tenant's obligations to be
performed by Tenant hereunder. Consent by Landlord to one (1) transfer will not
be deemed consent to any subsequent transfer. In the event of default by
Transferee of Tenant or any successor tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such Transferee or successor. No such transfer,
assignment or subletting shall relieve Tenant from its obligations under this
Lease.
ARTICLE 22
ACCESS TO PREMISES
Upon reasonable prior notice and compliance with Tenant's security
requirements, but in no event less than twenty-four (24) hours (except in the
case of an emergency when no notice is required), Landlord may enter the
Premises (exclusive of secured areas) during Tenant's business hours for
purposes of inspection or to show the Premises to prospective purchasers and
lenders.
ARTICLE 23
DEFAULTS BY TENANT
23.1 Defaults. The occurrence of any of the following shall constitute
a default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay Rent or make any other payment required to be
made by Tenant hereunder within five (5) business days after Tenant's receipt of
written notice from Landlord.
(ii) A failure by Tenant to observe and perform any other material provision of
this Lease to be observed or performed by Tenant, where such failure continues
for thirty (30) days after Tenant's receipt of written notice thereof from
Landlord, except that this thirty (30) day period shall be extended for a
reasonable period of time if the alleged default is not reasonably capable of
cure within said thirty (30) day period and Tenant proceeds to diligently cure
such failure.
(iii) Any general assignment made by Tenant for the benefit of creditors, the
filing by, or against, Tenant of a petition to have Tenant adjudged a bankrupt,
or a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Tenant, the same is
dismissed within sixty (60) days), the appointment of a trustee or receiver to
take possession that is not restored to Tenant within thirty (30) days, or the
attachment, execution or other judicial seizure that is not discharged within
thirty (30) days.
23.2 Remedies. In the event of any such default by Tenant, Landlord
shall be entitled to all the following remedies and any other remedy available
at law or in equity, except as otherwise provided herein:
(i) Landlord may terminate this Lease by delivering written notice of
termination to Tenant, in which event Tenant shall immediately
surrender the Premises to Landlord; provided that, if Tenant fails to
surrender the Premises, then Landlord may, without prejudice to any
other remedy it has for possession of the Premises or arrearages in
Rent or other damages, re-enter and take possession of the Premises
and expel or remove Tenant and any other person occupying the Premises
or any part thereof, in accordance with applicable law.
(ii) Landlord may re-enter and take possession of the Premises, without
terminating the Lease, in accordance with applicable law, and relet
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the Premises, applying the rent received to the account of Tenant. No
reletting by Landlord is considered to be for Landlord's own account
unless Landlord has notified Tenant in writing that this Lease has
been terminated. In addition, no such reletting is to be considered an
acceptance of Tenant's surrender of the Premises unless Landlord so
notifies Tenant in writing.
(iii) Landlord may re-enter the Premises, without terminating the Lease or
being liable for any damages, whether caused by the negligence of
Landlord or otherwise, and do whatever Tenant is obligated to do under
this Lease, in which event Tenant shall pay to Landlord, upon demand,
the reasonable expenses paid by Landlord in satisfying Tenant's
obligations under this Lease. Any sums so expended by Landlord shall
bear interest at the Default Rate from the date expended until the
date Landlord is repaid.
(iv) Landlord may demand and Tenant shall pay the Rent due for the balance
of the Term of this Lease in a lump sum, such lump sum payment being
reduced to present value using a discount factor of six percent (6%)
and being reduced by the then fair market rent for the Premises, also
reduced to present value using a discount factor of six percent (6%).
23.3 No Termination. If Landlord obtains possession of the Premises as
a result of Tenant's abandonment of same or by a decree from a court of
competent jurisdiction, this shall not be construed as an election by Landlord
to terminate this Lease, unless Landlord provides Tenant with a written notice
of such election.
23.4 Landlord's Self-Help. If Tenant at any time fails to perform any
of its obligation under this Lease in a manner reasonably satisfactory to
Landlord, Landlord shall have the right, but not the obligations, upon giving
Tenant at lease ten (10) days prior written notice of its election to do so (in
the event of an emergency, no such prior notice shall be required), to perform
such obligations on behalf of and for the account of Tenant and to take all such
action necessary to perform such obligations without liability to Tenant for any
loss or damage which may result to Tenant's stock or business by reason of the
performance of such obligations by Landlord. In such event Landlord's costs and
expenses incurred therein shall be paid by Tenant forthwith upon demand therefor
with interest thereon from the date Landlord performs such obligations to the
date of payment by Tenant at the Default Rate. The performance by Landlord of
any such obligation shall not constitute a release of Tenant therefrom or a
waiver by Landlord of Landlord's right to enforce such obligation.
ARTICLE 24
SURRENDER OF PREMISES
Tenant shall, upon the expiration of the Term granted herein, or any
earlier termination of this Leas for any cause, surrender the Premises to
Landlord, as well as, transfer and quitclaim all interest in Tenant's Building
and equipment then upon the Premises without need of any further legal
documentation, and further surrender all alterations, improvements and other
additions which may be made or installed to, in, upon or about the Premises,
other than Tenant's Property (which shall remain the property of Tenant), broom
clean, without any damage, injury or disturbance thereto (reasonable wear and
tear, loss due to condemnation, and damage due to casualty excepted), or payment
therefor, and shall remove all of its signage and repair any damage caused by
such removal.
ARTICLE 25
EMINENT DOMAIN
25.1 Total Taking. If all of the Premises shall be appropriated or
taken under the power of eminent domain by any public or quasi-public authority
("Taking") or a material portion of Tenant's Building shall be lost in a taking
rendering the Premises unsuitable for the then current use of the Premises in
the reasonable judgment of Landlord and Tenant, then, this Lease shall terminate
and expire as of the date of such Taking, and both Landlord and Tenant shall
thereupon be released from any liability thereafter accruing hereunder.
25.2 Parking Taking. If more than twenty percent (20%) of the square
footage of the parking area on the Premises is lost in a Taking then Tenant
shall have the right to terminate this Lease as of the date of the Taking.
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25.3 Timely Notice. Any termination notice pursuant to this Article
must be delivered within sixty (60) days after the date the applicable property
is taken by the condemning authority.
25.4 Release on Taking. In the event of such termination, both Landlord
and Tenant shall thereupon be released from any liability thereafter accruing
hereunder.
25.5 Tenant's Award. Whether or not this Lease is terminated, nothing
herein shall be deemed to affect Tenant's right to receive compensation for
damages to Tenant's Property. If this Lease is terminated pursuant to this
Article 25, all Rent and other charges for the last month of Tenant's occupancy
shall be prorated and Landlord shall refund to Tenant any Rent or other charges
paid in advance.
25.6 Partial Taking. If less than all of the Premises is lost in a
Taking but the remaining portion of the Premises in the reasonable judgment of
Landlord and Tenant may be used for the use of the Premises at the date of the
Taking, Tenant shall remain in that portion of the Premises which shall not have
been appropriated or taken, and Tenant shall, at its cost and expense restore
the remaining portion of the Premises to a complete unit of like quality and
character as existed prior to such appropriation or taking and thereafter, all
Rent and payment obligations of Tenant shall be adjusted on an equitable basis,
taking into account the relative value of the portion taken as compared to the
portion remaining. For purposes of this Article 25, a voluntary sale or
conveyance in lieu of condemnation but under threat of condemnation shall be
deemed a Taking.
25.7 Tenant's Claims. On such entire or partial taking, Landlord and
Tenant shall pursue, in their respective individual and separate names and
rights, unless otherwise required by law, such remedies and make such claims as
they may have against the authority exercising such right of eminent domain or
other lawful taking as if this Lease and the term hereof had not expired
(whether or not such expiration shall have occurred on account of such taking),
and for the purpose of determining the respective rights and remedies of the
parties, or for the purpose of an equitable apportionment of the award for
damages if made to the Landlord and Tenant jointly, or if made to Landlord or
Tenant, Landlord shall be deemed to be the owner of the land constituting the
Premises and Tenant shall be deemed to be the owner of the buildings and all
other vertical improvements situated upon the Premises. Rent shall be
apportioned and adjusted to the date possession is required to be surrendered.
The award for the value of land taken as if unencumbered by this Lease shall be
paid first and in its entirety to Landlord. The award for the value of the
building and improvements shall be paid to Tenant. Landlord and Tenant shall
each have a right to claim a right of its loss of leasehold estate or rent.
Tenant shall be responsible for and there shall be deducted from the amount
payable to Tenant any amount payable or apportioned to any mortgagee or
sublessee of Tenant as their interests may appear.
ARTICLE 26
ATTORNEYS' FEES
If at any time during the Term of this Lease either Landlord or Tenant
shall institute any action or proceeding against the other relating to the
provisions of this Lease or any default hereunder, then the unsuccessful party
in such action or proceeding agrees to reimburse the successful party for the
reasonable expenses for attorneys' fees, paralegal fees and disbursements
incurred therein by the successful party. Such reimbursement shall include all
legal expenses incurred prior to trial, at trial and at all levels of appeal and
post judgment proceedings.
ARTICLE 27
NOTICES
Notices and demands required, or permitted, to be sent to those listed
hereunder shall be sent by certified mail, return receipt requested, postage
prepaid, or by Federal Express or other reputable overnight courier service
having tracking service and shall be deemed to have been delivered on the
earlier to occur of the date of delivery or the date after attempt to deliver
(as disclosed by the records of the carrier), to address shown below:
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LANDLORD: TENANT:
Regency Centers Corporation Carolina National Bank & Trust Company
121 West Forsyth Street, Suite 200 1350 Main Street
Jacksonville, Florida 32202 Columbia, SC 29201
Attention: Lease Administrator Attention: Roger B. Whaley
With a copy to:
Regency Centers Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Legal Department
or at such other address requested in writing by either party upon thirty (30)
days notice to the other party.
ARTICLE 28
REMEDIES
All rights and remedies of Landlord and Tenant herein created or
otherwise extending at law are cumulative and the exercise of one or more rights
or remedies may be exercised and enforced concurrently or consecutively and
whenever and as often as deemed desirable.
ARTICLE 29
LIMITATION OF LANDLORD LIABILITY
Landlord shall not be liable to Tenant for any damage or liability of
any kind or for any injury to or death of any persons or damage to any property
on or about the Premises from any cause whatsoever, except to the extent any
such matter is not covered by insurance required to be maintained by Tenant
under this Lease and is attributable to Landlord's gross negligence or willful
misconduct. If Landlord defaults under this Lease and if, as a consequence of
such default, Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only out of the proceeds of sale received upon
execution of such judgment against the right, title and interest of Landlord in
the Shopping Center as the same may then be constituted and encumbered, and
Landlord shall not be liable for any deficiency. Notwithstanding anything
contained in this Lease to the contrary, the obligations of Landlord under this
Lease (including any actual or alleged breach or default by Landlord) do not
constitute personal obligations of the individual partners, directors, officers,
members or shareholders of Landlord or against Landlord's partners or any other
persons or entities having any interest in Landlord, or any of their personal
assets for satisfaction of any liability with respect to this Lease.
ARTICLE 30
SUCCESSORS AND ASSIGNS
All covenants, promises, conditions, representations and agreements
herein contained shall be binding upon, apply and inure to the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
ARTICLE 31
WAIVER
The failure of either Landlord or Tenant to insist upon strict
performance by the other of any of the covenants, conditions and agreements of
this Lease shall not be deemed a waiver of any subsequent breach or default in
any of the covenants, conditions and agreements of this Lease. No surrender of
the Premises by Tenant shall be affected by Landlord's acceptance of Rent or by
other means whatsoever, unless the same is evidenced by Landlord's written
acceptance of the surrender.
15
ARTICLE 32
HOLDING OVER
If Tenant, or any party claiming under Tenant, remains in possession of
the Premises, or any part thereof, after any termination or expiration of the
Term of this Lease, without Landlord's consent, Landlord may treat such holdover
as an automatic extension of this Lease for a month to month tenancy, subject to
all the terms and conditions provided herein; provided, however, the monthly
Base Annual Rent shall be one hundred fifty percent (150%) of the monthly Base
Annual Rent during the last month of Tenant's occupancy prior to the expiration
or earlier termination of this Lease. Landlord may terminate this month to month
tenancy with thirty (30) days prior written notice to Tenant. Tenant's further
holdover after Landlord's notice shall be an unlawful detainer subject to
immediate eviction.
ARTICLE 33
INTERPRETATION
The parties hereto agree that it is their intention hereby to create
only the relationship of Landlord and Tenant, and no provision hereof, or act of
either party hereunder, shall ever be construed as creating the relationship
between the parties of (i) principal and agent, (ii) partners, or (iii) joint
venturers.
ARTICLE 34
COVENANT OF TITLE AND QUIET ENJOYMENT
Landlord represents and warrants that: (i) Upon its acquisition of
title to the Shopping Center, it will be the fee simple owner and record title
holder of the Premises, (ii) Landlord has not received any notice, and does not
have any knowledge, of any eminent domain or similar proceeding which would
affect all, or any portion, of the Premises, (iii) Landlord has the full right,
power and authority to make this Lease, (iv) except for Shopping Center
Documents, no restrictive covenant, easement, lease or other written agreement
restricts, prohibits or otherwise affects Tenant's rights set forth in this
Lease, and (v) that Tenant upon the payment of the Rent and performance of the
covenants hereunder, shall and may peaceably and quietly have, hold and enjoy
the Premises and improvements thereon during the Primary Term or any Extension
Term.
ARTICLE 35
ESTOPPEL
At any time and from time to time either party, upon request of the
other party, will execute, acknowledge and deliver an instrument, stating, if
the same be true, that this Lease is a true and exact copy of the Lease between
the parties hereto, that there are no amendments hereof (or, if not so, stating
what amendments there may be), that this Lease is then in full force and effect
and that, to the best of its knowledge, there are no offsets, defenses or
counterclaims with respect to the payment of Rent reserved hereunder or in the
performance of the other terms, covenants and conditions hereof on the part of
Tenant or Landlord, as the case may be, to be performed (or, if not so, setting
forth those offsets, defenses or counterclaims existing) and that, as of such
date, no default has been declared hereunder by either party or, if a default
has been declared, such instrument shall specify same. Such instrument will be
executed by the other party and delivered to the requesting party within fifteen
(15) days of receipt, or else the statements made in the proposed estoppel
request shall be deemed current.
ARTICLE 36
RECORDING
Upon satisfaction or removal of all Contingencies as set forth in
Article 49, at the request of either party, the parties shall execute and record
a Memorandum of Lease in the form attached hereto as Exhibit E. Any recording or
16
other costs or taxes associated with or caused by the recordation of such
Memorandum of Lease shall be borne entirely by the party requesting execution
and recordation of such Memorandum of Lease. This Lease shall not be recorded.
ARTICLE 37
FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in
or prevented from the performance required hereunder (other than the payment of
any monetary obligation due hereunder) by reason of strikes, lockouts, labor
troubles, failure of power, riots, insurrection, war, acts of God, or other
reason of like nature, not the fault of the party delayed in performing work or
doing acts (hereinafter, "Permitted Delay" or "Permitted Delays"), such party
shall be excused for the period of time equivalent to the delay caused by such
Permitted Delay. Notwithstanding the foregoing, any extension of time for a
Permitted Delay shall be conditioned upon the party seeking an extension of time
by delivering written notice of such Permitted Delay to the other party within
ten (10) days of the event causing the Permitted Delay.
ARTICLE 38
OBLIGATIONS PRIOR TO COMMENCEMENT OF TERM
All of the provisions of this Lease, with the exception of Tenant's
obligation to pay Rent, shall be in full force and effect from the date hereof
to the Rent Commencement Date.
ARTICLE 39
WAIVER OF LANDLORD'S LIEN
Landlord hereby waives any contractual, statutory or other Landlord's
lien on Tenant's Property.
ARTICLE 40
SEVERABILITY
Any provision of this Lease which shall prove to be invalid, void or
illegal shall in no way affect, impair or invalidate any other provision hereof
and such other provisions shall remain in full force and effect.
ARTICLE 41
GOVERNING LAW AND VENUE
This Lease shall be governed by the laws of the State of South
Carolina.
ARTICLE 42
BROKERS
Landlord and Tenant represent and warrant one to the other that they
have not had any dealings with any real estate brokers or agents in connection
with the negotiation of this Lease. In addition, Landlord and Tenant agree to
indemnify and hold each other harmless from and against any and all liability
and cost which Landlord or Tenant, as applicable, may suffer in connection with
any other real estate brokers claiming by, through, or under Landlord or Tenant,
as applicable, seeking any commission, fee or payment in connection with this
Lease.
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ARTICLE 43
TENANT'S CONDUCT
Subject to applicable law, Tenant shall conduct its business on the
Premises on all usual hours and days of Tenant's other branches in South
Carolina. Tenant shall not be required to be open for business for any hours in
excess of such standard business hours as are in force from time to time at a
majority of Tenant's other branches in South Carolina. The Premises may be
closed on all Federal and State bank holidays and, further, during reasonable
periods of alteration, repair and renovation (not to exceed thirty (30) days) or
as a result of snow and ice, interruption of utilities or for other similar
causes beyond Tenant's control. Notwithstanding the foregoing, in the event
Tenant shall fail to operate its business in the Premises for more than one
hundred eighty (180) consecutive days and such failure is not due to casualty or
repair, condemnation, remodeling or other cause beyond Tenant's control, then
Landlord shall have the right to (i) continue to accept Tenant's payment of Rent
and allow Tenant to remain in possession of the Premises or (ii) terminate this
Lease, in which event Tenant shall immediately surrender the Premises to
Landlord and be released from all obligations under this Lease thereafter.
ARTICLE 44
OBLIGATIONS WHICH SURVIVE EXPIRATION OF THE LEASE
The following obligations of Landlord and Tenant shall survive the
expiration or termination of this Lease: (a) any obligation herein permitted to
be performed after the expiration or termination of this Lease; (b) any
obligation not reasonably susceptible to performance prior to the expiration or
termination of this Lease; and (c) any obligation, required hereunder to be
performed at or before the expiration or termination of this Lease, not so
performed. In addition, in the event that Landlord shall fail to invoice Tenant
for any Additional Rent pursuant to this Lease within twelve (12) months
following the expiration or termination of the term, then Landlord shall be
deemed to have waived its right to collect the same rent.
ARTICLE 45
TIME OF THE ESSENCE
Time shall be of the essence in interpreting the provisions of this
Lease.
ARTICLE 46
ENTIRE AGREEMENT
This Lease contains all of the agreements of the parties hereto with
respect to matters covered or mentioned herein and no prior agreement, letters,
representations, warranties, promises or understandings pertaining to any such
matters shall be effective for any such purpose. This Lease may be amended or
added to only by an agreement in writing signed by the parties hereto or their
respective successors in interest.
ARTICLE 47
PRELIMINARY NEGOTIATIONS
The submission of this lease form to Tenant for examination does not
constitute an offer to lease or a reservation of an option to lease. In
addition, Landlord and Tenant acknowledge that neither of them shall be bound by
the representations, promises or preliminary negotiations with respect to the
Premises made by their respective employees or agents. It is their intention
that neither party be legally bound in anyway until this Lease has been fully
executed by both Landlord and Tenant.
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ARTICLE 48
WAIVER OF JURY TRIAL
Landlord and Tenant hereby knowingly, voluntarily and intentionally
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on account of any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant hereunder, Tenant's use or occupancy of the Premises, the
entry into this Lease and/or any claim of injury or damage resulting therefrom.
ARTICLE 49
CONTINGENCY
This Lease shall be contingent upon satisfaction of the following
conditions:
Termination of the existing Lease with Wachovia.
ARTICLE 50
DEC
Tenant shall not be required to comply with any provision of the DEC to
the extent that the same prevents Tenant from operating its business at the
Premises, in accordance with this Lease, in a commercially reasonable manner.
Tenant acknowledges and agrees that, notwithstanding anything to the contrary in
this Lease, except for the immediately preceding sentence, this Lease shall be
subject and subordinate to the terms and conditions of the DEC, and that Tenant
shall comply with all provisions of the DEC. As between Landlord and Tenant, the
terms of this Lease shall control in the event of any conflict between the terms
of the recorded DEC and the terms of this Lease. Tenant acknowledges and agrees
that, notwithstanding anything to the contrary in this Lease, to the extent that
this Lease imposes obligations with respect to the management, maintenance,
control, and/or operation of the Common Areas or any other portion of the
Shopping Center, Landlord shall only be responsible for complying with such
provisions to the extent that (a) Landlord then owns the subject portion of the
Shopping Center, and (b) whether or not Landlord owns the subject portion of the
Shopping Center, Landlord is the party then obligated, pursuant to DEC or any
other similar instrument to perform or comply with the subject obligations. In
the event that, under the DEC or any other similar instrument, a party other
than Landlord is obligated to perform or comply with any particular obligation,
then Landlord shall be deemed to have complied with the provisions hereof so
long as Landlord uses commercially reasonable and diligent efforts to cause the
responsible party to perform or comply with the subject obligation (provided
that the commencement of litigation or form legal proceedings shall not be
required of Landlord pursuant hereto).
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
day and year first mentioned, the corporate party or parties by its or their
proper offices thereto duly authorized.
WITNESSES: TENANT:
Carolina National Bank and Trust Company
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Print Name: Roger B. Whaley
Title: President/CEO
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WITNESSES: LANDLORD:
MCW-RC-SC-Northpointe, LLC,
a Delaware limited liability company
FEIN: 20-1356728
By: Macquarie CountryWide - Regency, LLC,
a Delaware limited liability company
By: Regency Centers Corporation,
a Florida corporation
Its: General Partner
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By:
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Its:
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