EXHIBIT 10-8
SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT (the "Sublease") made and entered into this
first day of December, 2001, by and between CAROLINA FIRST BANK, a South
Carolina bank (hereinafter called "Landlord"), and Carolina National Bank and
Trust Company, a national bank, (hereinafter called "Tenant"). The "Effective
Date" of this Sublease shall be the date the Sublease is signed by both parties,
and if both parties do not sign on the same date, the date on which signed by
the last party to sign.
WHEREAS, Landlord, as successor Lessee, is currently a party to that
certain lease agreement (the "Prime Lease") dated August 31, 1971, whereby
Landlord is leasing from Xxxxxxxx Road Shopping Center, Inc. that certain land
with improvements located at 0000 Xxxxxx Xxxxx, in Forest Acres, South Carolina
(the "Prime Lease Property"), a copy of which is attached hereto as Exhibit C
and
WHEREAS, Landlord desires to sublease to Tenant the Prime Lease
Property.
NOW, FOR AND IN CONSIDERATION of the rents and of the mutual covenants
and agreements of the parties hereto, as are hereinafter set forth and made a
part of this Sublease, Landlord and Tenant do hereby agree as follows:
1. The Subleased Property. The property hereby leased to the Tenant is the
land (the "Land") and the branch bank improvements (the "Improvements") located
at 0000 Xxxxxx Xxxxx in the Xxxxxxxx Plaza Shopping Center, in Forest Acres,
South Carolina, as more particularly described in Exhibit "A" attached hereto.
The Land and Improvements leased hereunder, together with Landlord's rights, if
any, in and to all easements and other appurtenances thereto, hereinafter
sometimes collectively referred to as the "Subleased Property", are demised and
let to Tenant subject to the herein stated terms and conditions, and subject to
Landlord's rights under the Prime Lease. Tenant accepts the Subleased Property
from Landlord in "as is" "where is" and "with all faults" condition except as
noted herein. Landlord shall deliver the Subleased Property to Tenant is "broom
clean" condition and shall provide Tenant no later than the Effective Date with
a letter(s) dated within thirty (30) days of the Effective Date stating that (i)
the mechanical system has been serviced and is in good working order and (ii)
the roof has been inspected and is in a good state of repair.
2. Use of Subleased Property. Tenant shall be permitted to use the
Subleased Property as a branch bank or for such other related business or
businesses of the Lessee, its part or subsidiaries, as may be permitted, from
time to time, by the governmental regulatory agencies which exercise control
over the Lessee, and subject to such other use restrictions, if any, as set
forth in the Prime Lease. Tenant agrees not to use the Subleased Property or any
part thereof for any disorderly or unlawful purpose and agrees to comply with
all governmental laws, ordinances, rules and regulations applicable to its use,
possession and operation of the Subleased Property. Tenant agrees not to use the
Subleased Property in such a way as to diminish its value, reasonable wear and
tear excepted.
3. Sublease Term. The term of this Sublease shall begin on December 1, 2001
(the "Commencement Date") and end on January 31, 2012.
4. Base Rent.
a) Tenant shall pay to the Landlord an annual base rent (the "Base
Rent") in the sum of forty-eight thousand Dollars ($48,000), payable in
twelve (12) equal monthly installments of $4,000 Dollars ($4,000) for the
first sixty (60) months of this Sublease or for the period December 1, 2001
to November 30, 2006 and for the remaining terms of this Sublease the sum
of fifty-two thousand eight hundred Dollars ($52,800), payable in twelve
(12) monthly installments of $4,400 Dollars for the period December 1, 2006
through January 31, 2012, in advance on the first day of each month during
the Term; provided, however, that the installment of Base Rent payable for
the first full calendar month of the Term (and if the Term commences on a
day other than the first day of a calendar month, that portion of Base Rent
which is payable for such month) shall be due and payable on the execution
of this Sublease.
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b) Base Rent and all Additional Rent as provided for under this
Sublease shall be paid promptly when due, in cash or by check, in lawful
money of the United States of America, without notice or demand and without
deduction, diminution, abatement, counterclaim or set off of any amount or
for any reason whatsoever, payable to Landlord and delivered to its offices
at the address as stated in the "Notice" section of this Sublease or to
such other person and place as may be designated by notice in writing from
Landlord to Tenant from time to time. If Tenant shall present to Landlord
more than twice during the Term checks or drafts not honored by the
institution upon which they are issued, then Landlord may require that
future payments of Rent and other sums thereafter payable be made by
certified or cashier's check or wire transfer.
5. Additional Rent.
a) It is the purpose and intent of the Landlord and Tenant that the
rent payable hereunder shall be absolutely net to the Landlord so that this
Sublease shall yield, net to the Landlord, the Base Rent due with respect
to each year during the term of this Sublease. For purposes of this
Sublease, it is agreed that the Subleased Property comprises one hundred
percent (100%) ("Tenant's Pro Rata Share") of the Prime Lease Property.
b) The Tenant shall be responsible for the payment of Tenant's Pro
Rata Share of all property taxes for the Prime Lease Property during the
term hereof, including the building and all other improvements thereon.
Landlord represents and warrants that there are no other taxes or other
assessments affecting the Subleased Property, other than those of a normal
and recurring nature on property substantially similar to the Subleased
Property, at the time of the execution of this Sublease. All such other
taxes or assessments affecting the Subleased Property accruing after the
Commencement Date but prior to the termination of this Sublease shall be
the responsibility of the Tenant. If the Termination Date or sooner
termination of this Sublease shall not coincide with the end of a Real
Estate Tax Year, then in computing the amount payable under this Section 5
for the period between the commencement of the applicable Real Estate Tax
Year in question and the Termination Date or sooner termination of this
Sublease, the amount that would have been due from Tenant for the full
year, if Tenant had been a tenant for the entire Real Estate Tax Year,
shall be prorated over the portion of the Real Estate Tax Year that Tenant
is a tenant in the Subleased Property. Tenant's obligation to pay increased
Real Estate Taxes under this Section 5 for the final period of the Sublease
(as well as for any earlier period not paid as of the expiration or sooner
termination of the Sublease) shall survive the expiration or sooner
termination of this Sublease.
c) Tenant shall pay to appropriate utility companies, when due, all
charges for utility services furnished to the Subleased Property during the
term of this Sublease, and to the extent utilities are not separately
metered for the Subleased Property, Tenant shall pay Tenant's Pro Rata
Share for such utilities furnished to the Prime Lease Property (all of the
foregoing, together with any and all penalties, fines and/or interest
thereon, being hereinafter sometimes collectively referred to as
"Impositions").
d) Landlord shall furnish or cause to be furnished to Tenant, promptly
after receipt of same, copies of any notices, statements or invoices with
respect to any Impositions.
6. THIS SECTION 6 WAS INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION.
7. Maintenance And Repair. Tenant shall, at its risk, cost, and expense,
during the term of this Sublease or any extension thereof, be responsible for
the maintenance, replacement and repair of the Subleased Property including, but
not limited to, (i) all permanent, non-removable improvements or additions made
by Tenant, (ii) all structural, interior and exterior replacements and repairs
and improvements including, but not limited to paint, redecoration and
renovation, (iii) utility systems, including, but not limited to fixtures,
equipment, lines and connections associated with the heating, air conditioning,
ventilating, electrical, plumbing, and sprinkler systems, (iv) all windows,
doors (including operational mechanisms and door mountings), (v) floors, (vi)
grass, landscaping, and fences, etc., as same become necessary and are required
to maintain the Subleased Property in as good and proper condition, and in good
appearance, as at the date of the Commencement Date, subject to normal wear and
tear for the uses permitted herein. Tenant shall be required to have the HVAC
systems kept under a maintenance service contract, which is reasonably
satisfactory to Landlord. Tenant shall keep sidewalks and personnel entranceways
free from obstruction of all nature, properly swept, and snow and ice removed
therefrom. Tenant agrees that Landlord shall have no obligation under this
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Sublease to make any repairs or replacements (including the replacement of
obsolete components) to the Sublease Property or the buildings or improvements
thereon, or any alteration, addition, change, substitution or improvement
thereof or thereto, whether structural or otherwise. The terms "repair" and
"replacement" include the replacement of any portions of the Sublease Property
which have outlived their useful life during the term of the Sublease (or any
extensions thereof). Landlord and Tenant intend that the rent received by
Landlord shall be free and clear of any expense to Landlord for the
construction, care, maintenance (including common area maintenance charges and
charges accruing under easements or other agreements relating to the Sublease
Property), operation, repair, replacement, alteration, addition, change,
substitution and improvement of or to the Sublease Property and any building and
improvement thereon. Upon the expiration or earlier termination of this Lease,
Tenant shall remain responsible for, and shall pay to Landlord, any cost, charge
or expense for which Tenant is otherwise responsible for hereunder attributable
to any period (prorated on a daily basis) prior to the expiration or earlier
termination of this Sublease.
8. Utilities. Tenant agrees to arrange for and pay all services and charges
for any and all utilities used on the Subleased Property, including, but not
limited to water and sewer, electricity, gas, waste disposal, telephone and
security related services, which may be charged or assessed by a utility or
service company or political or utility subdivision. In no event shall Landlord
be liable for any interruption or failure in the supply of any utilities or
services to the Subleased Property, unless caused by the willful acts or
misconduct of the Landlord. To the extent utilities are not separately metered
for the Subleased Property, Tenant shall pay Tenant's Pro Rata Share for such
utilities furnished to the Subleased Property
9. THIS SECTION 9 WAS INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION.
10. Casualty and Insurance.
(a) If the Sublease Property is damaged or destroyed by fire, flood,
tornado or other element, or by any other casualty , this Sublease shall
continue in full force and effect and Tenant shall, as promptly as
possible, restore, repair or rebuild the Sublease Property to substantially
the same condition as it existed before the damage or destruction. Tenant
shall for this purpose use all, or such part as may be necessary, of the
insurance proceeds received from insurance policies carried on the Premises
under the provision of subparagraph 10(b) hereinbelow. If such insurance
proceeds are not sufficient to pay such costs, Tenant shall pay such
deficit. Notwithstanding the foregoing, in the event there is damage or
destruction to the Improvements on the Subleased Property to the extent of
fifty percent (50%) or more of the then existing value thereof, the Tenant
may, at its option, terminate this Sublease and elect not to repair and
rebuild the damaged Improvements; but in any such event, all of the
proceeds from the insurance policies required to be obtained pursuant to
the provisions of Subparagraph 10(b) herein below shall belong exclusively
to the Landlord. If Tenant elects to so terminate this Sublease, written
notice must be given to Landlord within thirty (30) days following the
damage or destruction to the Improvements.
(b) Tenant shall procure and maintain at all times during the terms of
this Sublease from companies authorized to do business in South Carolina,
and reasonably acceptable to Landlord, hazard insurance against all risk of
physical loss in an amount not less than the full replacement value of the
improvements of the Subleased Property and shall include loss of rent
coverage. The Landlord, landlord under the Prime Lease and Tenant, as their
interest may appear shall be named as insured. Before Tenant takes
possession of the Subleased Property, Tenant shall deliver to Landlord an
original insurance policy or a certificate of insurance evidencing coverage
as set forth herein. If a certificate is delivered, Tenant agrees to
provide to Landlord a true copy of the policy when issued and upon any
renewal thereof. Tenant also agrees to provide a paid statement at the time
of occupancy reflecting that all premiums have been paid. Each insurance
policy required to be carried under this Sublease Agreement by Tenant shall
provide at least thirty (30) days written notice to Landlord of any
cancellation of insurance for any reason or any material change in the
policy and failure to provide such notice will preclude the company from
canceling the coverage. The proceeds from any claim made pursuant to any
such hazard insurance coverage shall be payable to Landlord; provided,
however, if Tenant is required by the terms of this Lease to rebuild or
repair the Sublease Property, the insurance proceeds shall be used to pay
for the cost of replacing and repairing the damaged improvements. In the
event the proceeds from such insurance are insufficient to repair or
rebuild, additional funds shall be furnished by the Tenant to the end that
the improvements shall be repaired and replaced by Tenant subsequent to any
damage and/or destruction thereto. If Tenant fails to comply with the above
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property insurance requirement, Landlord may obtain such insurance and keep
the same in effect, and Tenant shall pay the Landlord, as Additional Rent,
the premium cost thereof upon demand.
Tenant agrees that it will not do or permit anything to be done on the Subleased
Property which may prevent the obtaining of any insurance on the Subleased
Property including, but without limitation, fire, extended coverage and public
liability insurance.
11. Liability Insurance. During the full term of this Sublease or any
renewal or extension thereof, Tenant shall, at its sole expense, procure and
maintain in full force Public Liability Insurance (Comprehensive General
Liability or Commercial General Liability) including Contractual Liability
Insurance, with a combined personal injury and property damage limit of not less
than One Million Dollars ($1,000,000.00) for each occurrence and not less than
Two Million Dollars ($2,000,000.00) in the aggregate, insuring against all
liability of Tenant and its representatives arising out of and in connection
with Tenant's use or occupancy of the Subleased Property. Said insurance policy
shall name the Landlord as an additional insured, and the policy shall provide
that it not be canceled for any reason unless and until Landlord is given thirty
(30) days notice in writing by the insurance company of the pending
cancellation. Tenant's insurance company shall provide Landlord with a
certificate of insurance indicating the terms and conditions of the policy. All
insurance required under this Sublease shall be issued by insurance companies
licensed to do business in the jurisdiction where the Subleased Property is
located. Such companies shall have a policyholder rating of at least "A" and be
assigned a financial size category of at least "Class X" as rated in the most
recent edition of "Best's Key Rating Guide" for insurance companies. Each policy
shall contain an endorsement requiring thirty (30) days written notice from the
insurance company to Landlord before cancellation or any change in the coverage,
scope or amount of any policy. Each policy, or a certificate showing it is in
effect, together with evidence of payment of premiums, shall be deposited with
Landlord on or before the Commencement Date, and renewal certificates or copies
of renewal policies shall be delivered to Landlord at least thirty (30) days
prior to the expiration date of any policy.
12. Tenant's Licenses, Personal Property Taxes and Insurance. Tenant shall
be responsible for the payment of its business license fees and costs, and any
and all taxes and assessments on its Leasehold improvements and all personal
property, which it locates within the Subleased Property, including, but not
limited to furniture, fixtures, equipment and merchandise.
Tenant shall carry, at its own expense, insurance to cover all of its leasehold
interest in the Subleased Property, and personal property, including, but not
limited to, trade fixtures and equipment, and merchandise located on the
Subleased Property. All of Tenant's Leasehold interest in the Subleased Property
and personal property on the Subleased Property shall be and remain at Tenant's
sole risk, and Landlord shall not be liable whatsoever for any damages, loss, or
casualty of such personal property or Subleasehold, unless caused by the willful
acts or misconduct of the Landlord.
13. Tenant's Improvements. Tenant shall not be allowed to make any
alterations, additions, or improvements ("Tenant's Improvements") to the
Subleased Property, without first obtaining the written consent of the Landlord,
which consent will not be unreasonably withheld, provided same are consistent
with the use of the Subleased Property described herein and provided that same
do not diminish the market value of the Subleased Property or conflict with the
Prime Lease. In the event any of the Tenant's Improvements are to be installed
on the roof of the Improvements, Tenant shall assume full responsibility for all
maintenance and repair of the roof which may be attributed to such installation.
All Tenant Improvements shall be constructed at Tenant's expense and shall be
and remain the property of Tenant, until the termination of this Sublease, at
which time the Tenant Improvements shall become the property of Landlord.
Provided, however, at the option of the Landlord, Landlord may require Tenant,
at the termination of this Sublease, to remove any and all of the Tenant
Improvements. Tenant shall be responsible for payment of the cost of repairing
any damage arising from such removal. The provisions of this section shall
survive the termination of this Sublease. It is understood by both parties that
this Section shall not require Tenant to obtain Landlord's permission for Tenant
to remove Tenant's fixtures and equipment from the Subleased Property before or
after the termination of this Sublease.
14. Surrender Upon Termination. At the expiration of the term of this
Sublease the Tenant shall surrender the Subleased Property in as good condition
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and repair as it was as of the Commencement Date, reasonable wear and tear
excepted and shall repair any and all damage caused by the removal of any of
Tenant's fixtures, furnishings, equipment and signs.
Tenant agrees that no waste of any kind, solid or liquid, shall remain on the
Subleased Property upon termination of the Sublease. Any personal property of
Tenant which shall remain on the Subleased Property after the termination of
this Sublease may, at the option of the Landlord, be deemed to have been
abandoned by Tenant and, may either be retained by Landlord as its property or
be disposed of without accountability. The provisions of this section shall
survive the termination of this Sublease.
15. Tenant's Default. Tenant agrees to pay the Base Rent and the Additional
Rent at the time, in the amount and in the manner herein described. Any one of
the following events shall be deemed a default by Tenant and a breach of this
Sublease, namely:
a) If Tenant fails to pay any installment of Base Rent or to pay any
Additional Rent within ten (10) days of the due date; or
b) If Tenant fails to observe or perform any of the other terms,
covenants or conditions of this Sublease other than paying rents when due,
and such failure continues after the expiration of thirty (30) days from
the date Landlord gives written notice to Tenant calling attention to the
existence of such failure, provided however, that if Tenant cannot
reasonably correct the default (other than non-payment) within said thirty
(30) day period, Tenant shall be given a reasonable period of time to
correct the default; or
c) If Tenant is declared bankrupt or insolvent by judicial decree; or
d) If Tenant takes the benefit of any federal reorganization or
composition proceedings; or
e) If Tenant makes a general assignment for benefit of creditors; or
f) If Tenant's Leasehold interest in this Sublease is sold under any
process of law, or
g) If a trustee in bankruptcy or a receiver is appointed or elected
for the Tenant; or
h) If Tenant abandons the Subleased Property and fails to pay any
installment of Base Rent or to pay any Additional Rent; or
i) If any materialman's, mechanic's or other lien is filed against the
Subleased Property in connection with any improvements, alterations or
additions made by Tenant, and Tenant permits the lien or liens to stand
against the Subleased Property, not securing the discharge of the Subleased
Property from such liens by filing an appropriate bond within thirty (30)
days from date of lien filing, pursuant to applicable law. Should Tenant
file a bond and elect to contest the lien or liens, no default shall be in
effect pending final legal determination of the disputed lien; or
j) If any act or omission of Tenant would cause a default under the
Prime Lease.
16. Landlord's Right's in Event of Default by Tenant. In the event of any
default by Tenant as herein provided, andlord at any time thereafter, shall have
the following rights:
a) The right to terminate this Sublease by giving Tenant written
notice of such termination, whereupon, this Sublease shall be regarded as
canceled as of the date of Landlord's termination notice and Tenant shall
then quit and surrender the Subleased Property to Landlord, however, Tenant
shall remain liable to Landlord for all rentals, charges, payments and
other obligations which have accrued prior to the time of such termination;
and
b) Upon such termination by Landlord as described herein, Landlord
shall have the right to immediately re-enter and take possession of the
Subleased Property and to hold said Subleased Property and upon re-entry,
may remove all persons and personal property of the Tenant from the
Subleased Property; and
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c) The right to declare the full rental amounts for the entire
remaining term of this Sublease immediately due and payable; and
d) The full right to recover from the Tenant all past due rents and
any and all damages, including reasonable court costs and attorneys fees,
as a result of the default; and
e) Upon such re-entering and taking of possession of the Subleased
Property by Landlord, Landlord shall attempt to re-let said Subleased
Property. Landlord's only responsibility shall be to offer the Subleased
Property for rent and make the usual and normal best efforts to re-let said
Subleased Property. Tenant shall be liable to Landlord for any deficiency
between the amount of rental received, if any, and the amount which Tenant
is obligated to pay under the terms of this Sublease and for any other
reasonable damages, including reasonable court costs and attorneys fees and
real estate commissions, incurred by Landlord in its attempt to re-let the
Subleased Property. Tenant shall be entitled to a credit against the
amounts owed by it hereunder of the net proceeds from such reletting, or in
the event Tenant has paid all such amounts, such net proceeds shall be paid
over to Tenant.
Landlord may utilize and pursue such other actions and rights as it may have to
protect its interests under the terms of this Sublease, the laws of the United
States and the State of South Carolina as may be applicable. The mention in this
Sublease of any specific right or remedy of Landlord, or the waiver thereof,
shall not preclude Landlord from exercising any other right or from having any
other remedy or from maintaining any action to which it may otherwise be
entitled in law or in equity. No endorsement or statement on any check or
accompanying any payment accepted by Landlord shall be without prejudice to
Landlord's right to obtain the balance due or pursue any other remedy available
to Landlord both in law and in equity.
Tenant shall be liable for all reasonable court costs and attorneys fees and
other reasonable expenses incurred by Landlord in enforcing any of the
obligations of this Sublease.
Tenant's delinquent payments hereunder shall bear interest at a rate two percent
(2%) per annum higher than the average rate announced from time to time by major
United States banks in the Wall Street Journal as a prime rate (the "Prime
Rate") (but in no event higher than the maximum rate allowed by law) until paid
in full, which interest shall be deemed Additional Rent.
17. Waiver of Trial by Jury. Landlord and Tenant each agree to and they
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Sublease the relationship of
landlord and tenant, tenant's use or occupancy of the Subleased Property and any
claim or injury or damage, and any statutory remedy.
18. Right of Entry. The Landlord and its agents may, after giving Tenant
prior notice, enter the Subleased Property at any reasonable time for the
purpose of inspecting the Subleased Property, performing its obligations under
this Sublease, performing any work which the Landlord elects to undertake for
the safety, preservation, benefit or welfare of the Subleased Property or its
occupants, for performing any work which the Landlord elects to undertake made
necessary by reason of the Tenant's default, or to show the Subleased Property
to prospective purchasers, tenants and lenders.
Except for negligence on the part of Landlord, Landlord shall not be liable for
inconvenience, annoyance, disturbance, loss of business or other damage of
Tenant by reason of making such inspections, visits, repairs or the performance
of any such work, so long as such actions on Landlord's part are not
unreasonable.
19. THIS SECTION 19 INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION
20. Condemnation. If all of the Subleased Property is taken by
condemnation, this Sublease shall terminate on the date when the Subleased
Property shall be so taken; and the rent shall be apportioned as of that date.
If part of the Subleased Property is taken by condemnation and the Subleased
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Property is thereby rendered not reasonably suitable for the continued conduct
of Tenant's business, taking into consideration the nature, size and scope of
such business immediately prior to the taking, then either party may elect by
giving written notice to the other, to terminate this Sublease, and in the event
of such termination, all charges and rentals shall be apportioned as of the date
of taking. If the taking involves a part of the Subleased Property and if
neither party elects to terminate this Sublease, then, with respect to the part
not taken, the rent shall be reduced by the value that the condemned part bears
to the total value of the Subleased Property, in which event the Landlord shall
restore the Subleased Property to an architecturally-complete unit. Both
Landlord and Tenant shall have the right to assert a separate claim in any
condemnation proceedings, as their interests may appear. Landlord shall have the
right to assert a claim for, but not be limited to, the loss of the Subleased
Property and the rental thereof, Tenant shall have the right to assert a claim
for, but not be limited to, the loss of use of the Subleased Property, moving
expenses and any personal property erected on the Subleased Property by Tenant.
Tenant and Landlord shall each bear their own cost and expense in prosecuting
their separate claims. Any award made to either the Tenant or the Landlord shall
belong entirely to the Tenant or Landlord, respectively.
21. Assignment and Subletting. Tenant shall not assign this Sublease.
Tenant shall not mortgage or encumber this Sublease. Tenant shall be allowed to
sublet the Subleased Property under the same terms and conditions contained in
this Sublease provided that the sublet parties cannot include NBSC, First Union
National Bank or their related entities or their successors. The interest of the
Tenant in this Sublease is not assignable by operation of law, without the
written consent of Landlord.
22. Liability, Indemnity and Hold Harmless. Landlord shall not be liable
for any damage to, or loss of, property in the Subleased Property belonging to
Tenant, its employees, agents, visitors, licensees or other persons in or about
the Subleased Property, or for damage or loss suffered by the business of
Tenant, from any cause whatsoever, including, without limiting the generality
thereof, such damage or loss resulting from fire, steam, smoke, electricity,
gas, water, rain, ice or snow, which may leak or flow from or into any part of
the Subleased Property, or from the breakage, leakage, obstruction or other
defects of the pipes, wires, appliances, plumbing, air-conditioning or lighting
fixtures of the same, whether the said damage or injury results from conditions
arising upon the Subleased Property, or from other sources. Landlord shall not
be liable in any manner to Tenant, its agents, employees, invitees or visitors
for any injury or damage to Tenant, Tenant's agents, employees, invitees or
visitors, or their property, caused by the criminal or intentional misconduct,
or by any act or neglect of third parties or of Tenant, Tenants agents,
employees, invitees or visitors, or of any other tenant of the Subleased
Property. Tenant covenants that no claim shall be made against Landlord by
Tenant, or by any agent or servant of Tenant, or by others claiming the right to
be in the Subleased Property through or under Tenant, for any injury, loss or
damage to the Subleased Property or to any person or property occurring upon the
Subleased Property from any cause other than the gross negligence of Landlord.
In no event shall Landlord be liable to Tenant for any consequential damages
sustained by Tenant arising out of the loss or damage to any property of Tenant.
If any of Landlord's insurance policies shall be canceled or cancellation shall
be threatened or the coverage thereunder reduced or threatened to be reduced in
any way because of the use of the Subleased Property or any part thereof by
Tenant or any assignee or subtenant of Tenant or by anyone Tenant permits on the
Subleased Property, and if Tenant fails to remedy the condition within
forty-eight (48) hours after notice thereof, Landlord may at its option either
terminate this Sublease or enter upon the Subleased Property and attempt to
remedy such condition, and Tenant shall promptly pay the cost thereof to
Landlord. Landlord shall not be liable for any damage or injury caused to any
property of Tenant or of others located on the Subleased Property from such
entry.
All policies covering real or personal property which either party obtains
affecting the Subleased Property shall include a clause or endorsement denying
the insurer any rights of subrogation or recovery against the other party to the
extent rights have been waived by the insured before the occurrence of injury or
loss. Landlord and Tenant hereby waive any rights of subrogation or recovery
against the other for damage or loss to their respective property due to hazards
covered or which should be covered by policies of insurance obtained or which
should be or have been obtained pursuant to this Sublease, to the extent of the
injury or loss covered thereby assuming that any deductible shall be deemed to
be insurance coverage.
23. Definition and Liability of Landlord.
a) The term "Landlord" as used in this Sublease means only the lessee
for the time being under the Prime Lease, so that in the event of a
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transfer of Landlord's interest in the Prime Lease, Landlord shall be and
hereby is entirely freed and relieved of all obligations of Landlord
hereunder and it shall be deemed that the transferee has assumed and agreed
to observe and perform all obligations of the Landlord hereunder.
b) Notwithstanding anything to the contrary provided in this Sublease,
if Landlord or any successor in interest of Landlord or any parent
corporation or principal of Landlord (as, for example, where Landlord is
the nominee of another party) shall be an individual, partnership,
corporation, trust, tenant in common or mortgagee, there shall be
absolutely no personal or corporate liability on the part of such Landlord
or any individual, joint venture or member of Landlord or any stockholder,
director, officer, employee, partner or trustee of Landlord with respect to
the terms, covenants, or conditions of this Sublease and Tenant shall look
solely to the interest of Landlord in the Subleased Property for the
satisfaction of each and every remedy which Tenant may have for the breach
of this Sublease, such exculpation from personal or corporate liability
shall be absolute and without any exception whatsoever.
24. Prime Lease. Tenant acknowledges that it has read and examined the
Prime Lease including all Schedules and Amendments as of the date hereof and is
fully familiar with the terms, covenants and conditions on the Landlord's part
as tenant to be performed thereunder. All the obligations contained in the Prime
Lease conferred and imposed upon Landlord (as lessee therein) except as modified
and amended by this Sublease, are hereby conferred and imposed upon Tenant. Any
rights granted to Landlord (as lessee under the Prime Lease) are not necessarily
granted to Tenant, as Tenant shall have only those rights as are specifically
set forth in this Sublease. Tenant covenants and agrees to fully and faithfully
perform the terms and conditions of the Prime Lease and this Sublease on its
part to be performed. Tenant shall not do or cause to be done or suffer or
permit any act to be done which would cause the Prime Lease, or the rights of
Landlord, as tenant, under the Prime Lease, to be endangered, canceled,
terminated, forfeited or surrendered, or which would cause Landlord to be in
default thereunder or liable for any damage, claim or penalty. Tenant agrees, as
an express inducement for Landlord's executing this Sublease, that if there is
any conflict between the provisions of this Sublease and the provisions of the
Prime Lease which would permit Tenant to do or cause to be done or suffer or
permit any act or thing to be done which is prohibited by the Prime Lease then
the provisions of the Prime Lease shall prevail except for the limitations set
forth herein in Section 1 and 4. If the Prime Lease terminates or is terminated
for any reason whatsoever, then this Sublease shall terminate simultaneously
therewith. If Tenant is not in default under the terms and conditions hereof,
any such termination shall be without liability between Landlord and Tenant,
except such liability theretofore accruing; however, if Tenant is in default,
the default provisions hereof shall control as to Tenant's liability. Landlord
may not voluntarily or otherwise consent to the termination of the Prime Lease
without the consent of Tenant, said consent not to be unreasonably withheld,
conditioned or delayed. In the event of a bankruptcy, dissolution, or
reorganization which might preclude Landlord from performing under the Prime
Lease, Tenant, at its option, shall be entitled to consider this Sublease as an
assignment of Landlord's right, title and interest in and to the Prime Lease as
of the date and time of such event. Tenant shall have the right to exercise this
option by written notice to the Lessor under the Prime Lease and from and after
the date of such notice, Tenant shall be deemed to be the Lessor under the Prime
Lease.
B. Landlord shall have no duty to perform any obligations of the "landlord"
under the Prime Lease and shall under no circumstances be responsible for or
liable to Tenant for any default, failure or delay on the part of the landlord
in the performance of any obligations under the Prime Lease, nor shall such
default of the landlord affect this Sublease or waive or defer the performance
of any of Tenant's obligations hereunder; provided, nevertheless, that in the
event of any such default or failure of performance by landlord, Landlord
agrees, upon notice from Tenant, to make demand upon landlord to perform its
obligations under the Prime Lease.
25. Environmental Hazards. Landlord represents, as of the Commencement Date
(i) to the best of its knowledge, that the building or other structures on the
Subleased Property contain no asbestos nor have asbestos-containing materials
and (ii) to the best of its knowledge, no hazardous waste, materials or
substances, as defined by applicable federal, state or local law have been
heretofore disposed of on the Subleased Property and that no other environmental
hazards exist on the Subleased Property.
8
Tenant agrees that it shall not, nor shall it permit others, in violation of
environmental laws and regulations, to use, release, store, or dispose of any
Hazardous Materials (as defined by environmental law and regulations) on the
Subleased Property nor shall Tenant contaminate the Subleased Property or the
environment.
If Tenant or its agents, contractors, or employees, have actual knowledge of any
release of any Hazardous Materials on the Subleased Property, or of any inquiry
or action by a government agency regarding such materials, Tenant shall
immediately notify Landlord. Tenant agrees to abide by all applicable
environmental laws and regulations as they apply to Tenant's possession,
operation and use of the Subleased Property.
In the event that the Subleased Property or the environment becomes contaminated
with Hazardous Materials as a result of Tenant's use, occupation, or possession
of the Subleased Property, it shall be Tenant's sole responsibility and cost to
remediate and take from the Subleased Property said contamination. Further,
Tenant shall indemnify and hold harmless Landlord from all reasonable claims,
costs and damages as a result of any environmental problems which are the result
of Tenant's use, occupation, or possession of the Subleased Property.
Landlord specifically prohibits Tenant from installing, or allowing others to
install, any underground bulk storage tanks on the Subleased Property.
All representations, warranties and indemnification provisions of this Section
shall survive the termination of this Sublease.
26. Notice. A notice which may or shall be given under the terms of this
Sublease shall be either delivered by facsimile, by hand or by Federal Express
or another similar national, reputable, overnight courier or sent by United
States Registered or Certified Mail, postage prepaid; if for Landlord, to the
address given below, or if for Tenant, to the Subleased Property. Such address
may be changed from time to time by either party by giving notice as provided
herein. Notice shall be deemed given when received (if by facsimile), when
delivered (if delivered by hand) or one (1) day after sending it via overnight
courier or three (3) days after depositing in the mails, return receipt
requested (if delivered by mail).
Notice to Landlord: Xxxx Xxxxx Xxxxxx, Corporate Real Estate
Carolina First Bank
000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile #: 000-000-0000
Notice to Tenant: Xxxxx Xxxxxx, President
Carolina National Bank and Trust Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile #: 000-000-0000
27. Severability. If any clause or provision of this Sublease is illegal,
invalid or unenforceable, under present or future laws effective during the term
hereof, then it is the intention of the parties hereto that the remainder of
this Sublease shall not be affected thereby and it is also the intention of both
parties that in lieu of each clause or provision that is illegal, invalid or
unenforceable, there be added, as a part of this Sublease, a clause or provision
as similar in terms to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and enforceable; provided
however, that both parties must agree in writing to such substitute language and
provisions before such will become binding on either party.
28. Compliance with Laws, Ordinances and Regulations. Tenant shall, except
as herein required by Landlord, and at Tenant's sole expense, promptly comply
with and carry out all orders, requirements, or conditions now or hereafter
imposed upon Tenant by the ordinances, laws and/or regulations of any
Governmental authorities, as may apply to a Tenant of the Subleased Property,
insofar as they are occasioned by or required in the conduct of Tenant's
business or Tenant's possession and use of the Subleased Property.
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29. Successors and Assigns. The covenants, conditions and agreements
contained in this Sublease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and assigns; but this provision shall in no way alter the restrictions and
requirements herein in connection with assignment and subletting by Tenant.
30. Whole Contract. This Sublease, together with all exhibits which are
attached hereto and by reference made a part hereof, constitutes the sole and
entire contract between the parties relative to the Subleased Property. No prior
written or contemporaneous oral promises or representations shall be binding. No
subsequent alteration, amendment, change or addition to this Sublease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by both
parties.
31. Waiver. Neither acceptance of rent by Landlord nor failure by Landlord
to complain of any action, non-action or default of Tenant shall constitute a
waiver of any of Landlord's rights hereunder. Waiver by Landlord of any right
for any default of Tenant shall not constitute a waiver of any right for either
a subsequent default of the same obligation or any other default. Receipt by
Landlord of Tenant's keys to the Subleased Property shall not constitute an
acceptance of surrender of the Subleased Property.
Neither a failure by Tenant to exercise any of its options hereunder, nor
failure to enforce its rights or to seek its remedies upon any default, shall
effect or constitute a waiver of Tenant's right to exercise such option, to
enforce such right, or to seek such remedy with respect to that default or to
any prior or subsequent default.
32. Liens and Encumbrances. Tenant shall not encumber or subject the
interest of the Landlord in the Subleased Property to any mechanics',
materialmen's or other liens of any nature whatsoever and shall indemnify
Landlord against all such liens, charges and encumbrances, including reasonable
court costs and attorneys fees incurred in any legal action brought in
discharging the Subleased Property from any liens, judgments or encumbrances
caused by Tenant.
33. Subordination. Tenant agrees that this Sublease shall be subordinate
and subject to any mortgages now or hereafter placed upon the Subleased
Property. Tenant shall, without charge, and from time to time, within fifteen
(15) days after request by Landlord, duly execute, acknowledge and deliver to
Landlord, or any other person or firm specified by Landlord, a Sublease
Subordination Agreement or Estoppel Agreement as reasonably requested by
Landlord. However, any such subordination shall be upon the express condition
that this Sublease shall be recognized by the mortgagee, that the rights of the
Tenant shall remain in full force and effect during the term of this Sublease,
notwithstanding any default by Landlord with respect to said mortgage or any
foreclosure thereof as long as Tenant shall perform all of Tenant's covenants
and conditions of this Sublease.
34. Attornment. In the event of assignment of Landlord's interest in the
Subleased Property, Tenant shall attorn to such successor of Landlord's interest
therein and recognize such successor as Landlord under this Sublease and shall
promptly execute and deliver any instrument that may be necessary to evidence
such attornment. Such successor shall provide Tenant with an instrument
recognizing Tenant's rights under this Sublease, including Tenant's right of
quiet enjoyment and non-disturbance.
35. Tenant Estoppel. The Tenant shall, from time to time, no later than
fifteen (15) days following the written request of the Landlord, furnish
Landlord a written statement, signed by Tenant concerning the status of any
matter pertaining to the Sublease.
36. Holding Over. In the event Tenant continues in possession after the end
of the term, without any written agreement as to such possession, it is agreed
that the tenancy thus created shall be month to month and can be terminated by
either party giving to the other party not less than thirty (30) days written
notice. In so continuing, Tenant agrees to pay a monthly rental equal to two
hundred percent (200%) of the last rental payment made under the terms of this
Sublease or any renewal or extension thereof, and to keep and fulfill all the
other covenants conditions and agreements of this Sublease. There shall be no
renewal of this Sublease or exercise of any option by operation of law.
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37. Quiet Possession. It is understood and agreed that subject to the terms
of this Sublease, and to all covenants, additions, easements, liens and
mortgages of record, that Tenant, paying the rent hereby reserved, and
performing and observing the covenants hereof, may peacefully hold and enjoy the
said Subleased Property throughout the duration of this Sublease without any
interruptions by the Landlord, its successors or assigns.
38. Landlord Not A Partner. It is expressly understood that Landlord shall
not be construed or held to be a partner, joint venturer or associate of Tenant
in the conduct of its business; it being expressly understood that the
relationship between parties hereto is and shall remain at all times that of
Landlord and Tenant.
39. Commissions. Landlord agrees to pay to Xxxxx & Avant Realty, Inc.
("Agent") a leasing commission equal to the first month's Base Rent and five
percent (5%) percent of the Base Rent payable hereunder as such rent is
collected. Notwithstanding the foregoing, Landlord may, at it sole discretion,
pay a lump sum commission to Agent equal to four percent (4%) of the Base Rent
for the terms of this Sublease Agreement. Landlord and Tenant represent and
warrant each to the other that they have not dealt with any other brokers in
connection with this transaction. Either party guilty of a breach of this
representation and warranty shall indemnify the other party for any claims,
suits, liabilities, costs, judgments and expenses, including reasonable
attorneys' fees for commissions resulting from or arising out of such party's
actions in violation of this representation and warranty. These warranties shall
survive the execution of this Sublease.
40. Miscellaneous Provisions.
a) The captions appearing in this Sublease are inserted only as a
matter of convenience and in no way define, limit, or affect the scope or
intent of such Paragraphs or Sections of this Sublease. Any gender used
herein shall be deemed to refer to any other gender. The use of singular
herein shall be deemed to include the plural and, conversely the plural
shall be deemed to include the singular.
b) Time is of the essence in this agreement.
c) This agreement shall be construed and interpreted under the laws of
the State of South Carolina.
d) Nothing herein contained shall be deemed to require the Tenant to
pay or discharge any liens or mortgages of any character whatsoever which
may be placed upon the Subleased Property by the act of the Landlord, or to
perform or pay for any of Landlord's obligations herein.
e) Tenant may, during the term of this Sublease, upon first obtaining
any and all necessary permits from governmental authorities and Landlord's
written approval, paint or erect and maintain, at its cost and expense,
signs of such dimensions and materials as it may reasonably deem
appropriate in or about the Subleased Property. Such signs shall be removed
by Tenant upon the termination of its occupancy of the Subleased Property
and Tenant shall repair any damage caused by such removal, all at Tenant's
sole cost and expense.
f) The parties agree to fully cooperate with each other with respect
to securing any necessary approvals, permits or licenses necessary for the
construction and operation of the Leased Property as contemplated hereby.
g) Tenant agrees that at or prior to the Effective Date of this
Sublease, it shall have its parent company, Carolina National Corporation,
sign a Letter of Guaranty in substantially the form attached hereto as
Exhibit "B".
41. Authorization. Each individual executing this Sublease on behalf of a
corporation or partnership represents nd warrants that he has been authorized to
do so by such entity.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals:
IN THE PRESENCE OF: TENANT:
CAROLINA NATIONAL BANK AND TRUST COMPANY
_____________________________ By:_____________________________________
Its Authorized Officer
_____________________________
Date signed by Tenant: ___________, 2001
LANDLORD:
CAROLINA FIRST BANK
_____________________________ By: ___________________________________
Its Authorized Officer
_____________________________ Date signed by Landlord: ________, 2001
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EXHIBIT "A"
DESCRIPTION OF SUBLEASED PROPERTY
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EXHIBIT "B"
GUARANTY
This Guaranty (the "Guaranty") confirms that Carolina National Corporation, a
South Carolina corporation (the "Guarantor") and owner of all the issued and
outstanding capital stock of Carolina National Bank and Trust Company (the
"Subsidiary"), does hereby guarantee all of the Subsidiary's obligations, as
"Tenant", set forth in that certain Sublease Agreement, dated December 1, 2001,
by and between Carolina First Bank and the Subsidiary for the purpose of
subleasing that certain tract of land with improvements located in Xxxxxxxx
Plaza, Columbia, South Carolina and more particularly described in Exhibit "A"
of the attached lease agreement. Notwithstanding the foregoing, the obligations
of Guarantor under this Guaranty shall terminate upon the satisfaction of the
following provisions: (i) Tenant shall have received a charter from the Office
of the Comptroller of Currency (the "OCC") and (ii) Tenant has been open for
business at the Subleased Property for a period of ninety (90) days.
WITNESS the following signature and seal:
(Name of Parent Company)
By:______________________________(Seal)
Its: ______________________________
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EXHIBIT "C"
PRIME LEASE
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