EX-10.1
2
exhibit10-1.htm
THIS LEASE (the
"Lease") is made and entered into as of the 2nd day of May, 2007, by
and between THE PALMETTO BANK ("Tenant") and XXXXXXX X. XXXXXX AND
XXXXX X. XXXXXX, or their designee ("Landlord").
RECITALS:
WHEREAS, Tenant
presently leases 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx (the
"Original Premises"), from Landlord pursuant to the terms and conditions of a
Lease dated May 1984, as amended; and,
WHEREAS, Tenant
presently owns parcels of land and improvements thereon adjacent to the
Original Premises located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx,
and 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx (the "Tenant
Property"); and,
WHEREAS, Tenant and
Landlord have agreed to enter into this Lease whereby Landlord will construct
the Improvements (as hereinafter defined) and complete Site Work (as
hereinafter defined), Tenant will convey the Tenant's Property to Landlord for
a purchase price of One Million Six Hundred Fifty-One Thousand and One Hundred
Seventy-Four and 00/100 Dollars ($1,651,174.00), Landlord will combine the
Original Premises and the Tenant Property (the "Premises" as more particularly
described hereinafter), and lease the Premises to Tenant under the terms and
conditions as hereinafter set forth;
NOW, THEREFORE, in
consideration of their mutual covenants and other valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, Landlord hereby leases
to Tenant, and Tenant hereby leases from Landlord, the Premises upon the
following terms, covenants, conditions and stipulations:
1. THE
PREMISES. Landlord leases to Tenant and Tenant leases from Landlord that
certain real property owned or to be acquired by Landlord hereunder, containing
approximately 1.508 acres, more or less, located at the intersection of Xxxx
Xxxxx Xxxxxx xxx Xxxxx Xxxxxx Xxxxxx as more particularly described on Exhibit
"A" attached hereto and incorporated herein, including the Improvements
(hereinafter defined) to be constructed thereon by Landlord as provided in this
Lease (the "Premises").
2. CONSTRUCTION OF IMPROVEMENTS.
2.1 The
Improvements. As used in this Lease, the "Improvements" shall mean and
refer to an approximately 42,000 square foot building to be constructed by Landlord on the
Premises in accordance with the Plans and Specifications identified
hereinafter, together with all appurtenant "Site Work" which shall mean,
without limitation, demolition of the existing improvements and grading, curbs
and gutters, storm water detention system, paved drives, entrance ways, exit
ways, delivery and service areas, loading areas, parking areas, sign locations,
curbing, walkways, sidewalks and landscaping to be constructed by Landlord on
the Premises in accordance with the Plans and Specifications, all of which
(when completed) shall enable Tenant to operate a financial institution for
savings accounts, loans, checking accounts and other financial services upon the
Premises. The Landlord's budgeted cost of the Improvements and Site Work
required under this Lease (including interest on funds advanced during
construction) is $10,000,000.00. If, after Landlord gets final plans and bids
for construction of the Improvements and Site Work, the actual costs exceed the
budgeted cost of $10,000,000.00, such overages will be determined to be
upfitting costs for which the Tenant shall be responsible for paying.
1
2.2 Plans
and Specifications. Landlord, at Landlord's sole cost and expense, shall
engage XxXxxxxx Xxxxx and Partners to design the Improvements in compliance
with all applicable governmental requirements, which design shall be set forth
in the Plans and Specifications to be reviewed and approved by Landlord and
Tenant. As soon as practicable after execution hereof, Landlord shall prepare
or cause to be prepared Plans and Specifications for construction of the
Improvements, and shall submit the same to Tenant for approval. Tenant shall
have a period of twenty (20) days within which to either approve such Plans and
Specifications or to make comments or changes thereon. If Tenant does not
respond to Landlord's submission of Plans and Specifications within such twenty
(20) day period, Tenant shall be deemed to have approved the same. If Tenant
responds by making reasonable comments to the proposed Plans and
Specifications, Landlord shall revise the Plans and Specifications in
accordance with Tenant's comments and resubmit them to Tenant for approval
within fifteen (15) business days from the date of receipt of written comments
from Tenant. Tenant shall then have ten (10) days to approve such revised
Plans and Specifications. If Tenant disapproves the Plans and Specifications
and Landlord declines to make changes required by Tenant, Tenant may terminate
this Lease as a Permitted Termination by giving written notice to Landlord
within five (5) business days after receipt of Landlord's written disapproval
of such Plans and Specifications. If the Lease is terminated as provided
hereunder, then Tenant shall promptly reimburse Landlord for the actual costs
incurred by Landlord in preparing the Plans and Specifications and the
Engineering Plans, Landlord and Tenant shall have no further obligations under
the terms of this Lease and Tenant shall continue to lease the Original
Premises from Landlord pursuant to the terms and conditions of a Lease dated
May 1984, as amended. Once the Plans and Specifications have been approved, no
changes to or alterations of the Plans and Specifications shall be made unless
agreed upon by both parties, duly prepared by XxXxxxxx Xxxxx and Partners
Architects, and executed by both Landlord and Tenant. Landlord shall not be
responsible or liable in any way for any defects in any Plans and Specifications
approved by Tenant.
2
2.3 Engineering
Plans. Landlord, at Landlord's sole cost and expense, shall engage Site Design, Inc. (the "Engineers") for the design of the Site
Work in compliance with all applicable governmental requirements, which design
shall be set forth in the Engineering Plans to be reviewed and approved by
Landlord and Tenant. As soon as practicable after execution hereof, Landlord
shall prepare or cause to be prepared Engineering Plans for construction of the
Site Work, and shall submit the same to Tenant for approval. Tenant shall have
a period of twenty (20) days within which to either approve such Engineering
Plans or to make comments or changes thereon. If Tenant does not respond to
Landlord's submission of Engineering Plans within such twenty (20) day period,
Tenant shall be deemed to have approved the same. If Tenant responds by making
reasonable comments to the proposed Engineering Plans, Landlord shall revise
the Engineering Plans in accordance with Tenant's comments and resubmit them to
Tenant for approval within fifteen (15) business days from the date of receipt
of written comments from Tenant. Tenant shall have ten (10) days to approve
such revised Engineering Plans. If Tenant disapproves the Engineering Plans
and Landlord declines to make changes required by Tenant, Tenant may terminate
this Lease as a Permitted Termination by giving written notice to Landlord
within five (5) business days after receipt of Landlord's written disapproval
of such Engineering Plans. If the Lease is terminated as provided hereunder,
then Tenant shall promptly reimburse Landlord for the actual costs incurred by
Landlord in preparing the Plans and Specifications and the Engineering Plans,
Landlord and Tenant shall have no further obligations under the terms of this
Lease and Tenant shall continue to lease the Original Premises from Landlord
pursuant to the terms and conditions of a Lease dated May 1984, as amended.
Once the Engineering Plans have been approved, no changes to or alterations of
the Engineering Plans shall be made unless agreed upon by both parties, duly
prepared by the Engineers, and executed by both Landlord and Tenant and
attached as an additional Exhibit to this Lease. Landlord shall not be
responsible or liable in any way for any defects in any Engineering Plans
approved by Tenant.
2.4 Construction.
Promptly following the approval Plans and Specifications and the Engineering
Plans, Landlord will, at its own cost and expense,
demolish, remove, and dispose of all existing buildings and structures that may
be on the Premises (with the exception of the building and parking facilities
located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx, which
shall be used by Tenant during construction for the operation of its business
pursuant to Section 3.1 hereof), complete the Site
Work and install the Improvements as contemplated in this Lease. For purposes
hereof, Tenant hereby grants Landlord an easement on over across and under the
Tenant Property to complete the Landlord's construction and lease obligations
hereunder. Landlord and Tenant shall cooperate with each other in determining
the exact date when Landlord shall commence removal of the buildings and
structures on the Premises. Thereafter, Landlord shall promptly
commence and with due diligence proceed to complete the Site Work and construct
the Improvements on the Premises at its sole cost and expense (except for the
components of the Improvements as are Tenant's responsibility, as identified in
Section 2.5 of this Lease), at the locations upon the Premises specified in the
Plans and Specifications and the Engineering Plans, in a good and workmanlike
manner, in the manner and with the materials and workmanship specified in the
Plans and Specifications and the Engineering Plans, and in accordance with all
building and grading permits and other governmental approvals and requirements,
including without limitation the building, utility lines, drainage facilities,
lighting facilities, grading and paving, approaches, entrances, drives, exits,
ramps, sidewalks, curbs and gutters, retaining walls, loading areas, delivery
and service areas. Landlord shall be responsible, at its sole cost, for
obtaining all building, grading and other permits necessary to complete the
Site Work and construct the Improvements in accordance with the Plans and
Specifications and the Engineering Plans, and for installing, connecting and
hooking up telephone, water, sanitary sewer, gas, electric power, and such
other utility service to the Improvements in accordance with the Plans and
Specifications and the Engineering Plans, in such amounts and capacities as
shall be sufficient to support the business activities of Tenant upon the
Premises, and for builders' risk and all other insurance coverage required to
be maintained until possession of the Premises is turned over to Tenant
following completion of construction. Landlord shall be responsible for making
any modifications to the Plans and Specifications or Engineering Plans required
by a governmental authority for the issuance of a permit necessary to construct
the Improvement. Such modifications shall be paid for by Landlord, agreed
upon by both parties, executed by both Landlord and Tenant and attached to the
approved Plans and Specifications or Engineering Plans, as the case may be, as
an addendum thereto. If any permit is not obtained through no fault of
Landlord, Landlord may terminate this Lease by giving written notice to
Tenant. If the Lease is terminated as provided hereunder, Landlord and Tenant
shall have no further obligations under the terms of this Lease, Tenant shall
promptly reimburse Landlord for the actual costs incurred by Landlord in
preparing the Plans and Specifications and the Engineering Plans and applying
for governmental permits and approvals, Landlord and Tenant shall have no
further obligations under the terms of this Lease and Tenant shall continue to
lease the Original Premises from Landlord pursuant to the terms and conditions
of a Lease dated May 1984, as amended.
3
2.5 Tenant Construction
Responsibilities. The Tenant's construction responsibilities, as outlined
in Section 2.1 shall be performed in accordance with the guidelines outlined in
Exhibit "C" attached hereto and incorporated herein by reference. In
addition to the Tenant's construction responsibilities as outlined in Section
2.1, the Tenant will be responsible for all furniture, equipment and signage
necessary to operate a financial institution upon the Premises.
2.6 Tenant's
Right Of Entry. During the course of construction of the Improvements,
Tenant may, at such times as are reasonable and convenient for Landlord, enter
upon the Premises at Tenant's own risk and peril for the purpose of inspecting
the Landlord's work. Tenant shall not unreasonably interfere with Landlord's
construction work and further agrees that Landlord shall have no liability to
Tenant for damages to property of Tenant except for damages caused by
Landlord's negligence or willful act. Tenant hereby expressly assumes full
responsibility for all damages and injury that may result to any person or
entity or to adjoining property by reason of such entry on the Premises and
shall indemnify and hold harmless the Landlord against any claim arising
therefrom.
2.7 Completion
of Construction. At such time as Landlord shall complete construction of
the Improvements and Site Work in accordance with the Plans and Specifications
and Engineering Plans, Landlord shall deliver to Tenant (a) a current
"as-built" survey of the Premises, (b) Landlord's written Certification that
construction of the Improvements and Site Work has been completed in accordance
all applicable governmental requirements, accompanied by the certification of
XxXxxxxx Xxxxx and Partners that such construction has been completed in
accordance with the Plans and Specifications, the certification of the
Engineers that such construction has been completed in accordance with the
Engineering Plans, and (c) satisfactory evidence that the Premises is free of
liens or claims of lien arising from the construction of the Improvements by
Landlord. Landlord and Tenant shall then conduct a final joint inspection of
the Improvements and Site Work and shall agree that construction is complete or
agree upon a minor "punchlist" of items with the cost of completion not
exceeding Ten Thousand and 00/100 Dollars ($10,000.00) to be completed, which
in such case Landlord shall promptly and diligently complete.
4
Upon completion
of construction as outlined above (excluding agreed upon minor punchlist items
to be completed by Landlord), Landlord shall be deemed to have assign to Tenant
all applicable warranties granted Landlord by Landlord's contractors,
subcontractors, suppliers and agents during and after the construction of the
Premises; provided, however, if any of such warranties are not assignable and
it becomes necessary to enforce such warranties, Landlord covenants that, upon
notice from Tenant, it will promptly and fully enforce such warranties on
behalf of Tenant and remit any proceeds (net of enforcement costs) to Tenant.
2.7.A. Conveyance
of Tenant Property. Upon completion of the construction as outlined above,
Tenant shall promptly convey the Tenant Property to Landlord for the purchase
price outlined in the recitals, together with the structures and improvements
thereon and all of the appurtenances thereunto belonging, by appropriate
General Warranty Deed, free and clear of all monetary liens and encumbrances of
Tenant. All costs, fees and expenses associated with the transfer of the
Tenant Property to Landlord shall be paid by the Tenant. For purposes of
complying with the terms of this Lease and until such time as the Tenant
Property is conveyed to Landlord as required hereunder, Tenant hereby leases to
Landlord and Landlord hereby leases from Tenant the Tenant Property subject to
the terms and conditions of this Lease.
2.8 Delivery
of Possession. Landlord shall be deemed to have delivered possession of
the Premises to Tenant on the date on which the latest of the following shall
have occurred:
A. Completion of the Improvements in
accordance with Section 2.7; and,
B. Actual
possession of the Premises has been delivered to Tenant free of all tenancies
or occupancies; and,
C. Tenant
has conveyed the Tenant Property to Landlord in accordance with Section 2.7.A.
3. TERM OF LEASE.
3.1 Construction
Rental. Tenant presently leases and operates its business on the Original
Premises located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx, from the
Landlord under a Lease dated May 1984, as amended. During the completion of
the Site Work and construction of the Improvements on the Premises, Tenant
shall operate its business, at its sole costs and expense, in the building
currently located on the Tenant Property at 000 Xxxxx Xxxxxx Xxxxxx.
Notwithstanding the foregoing, during the construction of the Improvements
hereunder on the Premises, Tenant will continue to lease the Original Premises
from the Landlord in accordance with the terms and conditions of the Lease
dated May 1984 and any amendments thereto, and shall continue to pay rental and
other charges required thereunder.
3.2 Rent
Commencement. The Rent Commencement Date shall be the earlier of (i) the
date of Delivery of Possession of the Improvements in accordance with Section
2.8, or (ii) the date Tenant opens the Premises to the public for business.
5
3.3 Term.
The term of this Lease shall commence on the Rent Commencement Date and shall
extend for a period of fifteen (15) years thereafter, unless earlier terminated
as hereinafter provided.
3.4 Extension
Options. Provided that then existing Lease be in full force and effect,
and that Tenant not be in default thereunder at the end of the then existing
term, Tenant shall have the right and option to extend the term of this Lease
for five (5) successive periods of five (5) years each, all upon the same terms
and subject to the same conditions of this Lease. Each extension term
hereunder shall be deemed to have automatically been exercised by Tenant
hereunder upon the expiration of the then applicable term, unless Tenant
provides Landlord with a written notice of termination of the Lease at least
ninety (90) days prior to the expiration of the original term or the then
current extension term. If such written notice is timely given by Tenant, the
Lease shall terminate upon the expiration of the original term or the then
current extension term. Upon the commencement of each extension term, all
provisions of this Lease shall remain in effect, except for extension options
already exercised and Base Rent which shall increase as provided in Exhibit
"B" attached hereto and incorporated herein by reference.
4. RENT.
4.1 Base
Rent. Beginning on the Rent Commencement Date, Tenant agrees to pay to
Landlord in equal monthly installments, the annual Base Rent as set forth in
the Base Rent schedule attached hereto as Exhibit "B". Base
Rent shall be due and payable each month, in advance, on the first day of each
calendar month without demand, setoff, or deduction, except as otherwise set
forth herein, to Landlord at the address set forth herein, or as otherwise
designated by subsequent written notice.
4.2 Renewal
Term Base Rent. Beginning on the first day of any extension term, Tenant
agrees to pay to Landlord in equal monthly installments, the annual Base Rent
for such extension term as set forth in the Base Rent schedule attached hereto
as Exhibit "B". Base Rent shall be due and payable each
month, in advance, on the first day of each calendar month without demand,
setoff, or deduction, except as otherwise set forth herein, to Landlord at the
address set forth herein, or as otherwise designated by subsequent written
notice.
6
4.3 Late Payment. Any installment of Base Rent
not paid within ten (10) days of the due date shall be subject to a late charge
of five percent (5%) per month. All other payments becoming due Landlord
hereunder shall bear interest at the rate of ten (10%) per annum from and after
the tenth (10th) calendar day from the date the same shall be due.
4.4 Pro-Rata Rent. Any base rent payable for a
portion of a month shall be prorated based upon the number of days in the
applicable calendar month.
4.5 Net
Rent. All rent and other sums payable hereunder shall be net to Landlord,
so that the Lease shall yield to Landlord the rents and other sums specified
herein during the term, as extended, and that all costs, expenses and
obligations of every kind and nature whatsoever relating to the Premises shall
be paid by Tenant. All rent and other sums which Tenant is required to pay
hereunder shall be payable in full when due without right of set-off against
any other claim of indebtedness to Landlord. All rent payable to Landlord shall
be net of taxes, insurance, repairs, maintenance or other costs or charges
attributable to the Premises. Tenant shall promptly pay Landlord for all ad
valorem taxes upon the tax parcel of which the Premises forms a part, prior to
the date upon which such taxes shall become past due.
5. USE AND MAINTENANCE OF PREMISES.
5.1 Zoning.
Landlord represents and warrants to Tenant that the zoning of the Premises on
the execution date of this Lease permits, or will permit, the construction
thereon of a financial institution for savings, loans, checking accounts and
other financial services upon the Premises, and the use and occupancy of the
Premises, upon completion of the Improvements, for the operation of a financial
institution for savings, loans, checking accounts and other financial services
upon the Premises in accordance with the Plans and Specifications.
5.2 Use.
Tenant shall use, occupy and maintain the Premises for use as a financial
institution for savings, loans, checking accounts and other financial services
upon the Premises and for no other purposes. Any other use of the Premises
must first be approved in writing by Landlord. Tenant agrees to open as a
financial institution for savings, loans, checking accounts and other financial
services upon the Premises and to continuously operate such business for the
original term of this Lease. Notwithstanding the foregoing, with prior written
notice to Landlord in each case, Tenant may cease operations in the Premises in
connection with the Permitted Cessations. APermitted
Cessations shall mean (i) the active, diligent, continuous and good faith
repair and maintenance of the Improvements and Premises, (ii) the taking of
inventory, (iii) the active, diligent, continuous and good faith repair or
maintenance of the Improvements and Premises following an event of casualty or
eminent domain, or (iv) the active, diligent, continuous and good faith
remodeling of the Improvements and Premises for a period not to exceed ninety
(90) days.
5.3 Illegal.
Tenant shall not use or permit the use of the Improvements and/or the Premises
for any disorderly, unlawful or illegal purpose.
7
5.4 Maintenance.
Tenant shall keep and maintain the Premises and the interior and exterior of
the Improvements in good order, condition and repair. Tenant shall, at
Tenant's sole costs and expense, (i) operate the Premises and the Improvements
in an efficient manner, (ii) repair, replace, and maintain the Premises and the
interior and exterior of the Improvements in a manner consistent with the
upkeep and operation of a first class retail business, and (iii) perform
routine maintenance of the Premises and the Improvements, including, but not
limited to the repair, replacement and maintenance of the exterior of the
Improvements, the roof, the foundation, and the structural components of the
Improvements and the utility systems lying inside of the Premises and the
Improvements; and (iv) maintain the Premises and the Improvements in compliance
with all governmental laws, ordinances or regulations. Tenant shall store all
trash and garbage within the Premises in a trash dumpster or similar container
and Tenant shall arrange for the regular pick-up of such trash and garbage at
Tenant's expense. It is expressly understood that Landlord shall not be
required to make any repairs to the Premises and the interior or exterior of
the Improvements thereon during the Term, as extended.
5.5 Requirements
of Public Authorities. Tenant shall at all times comply with and shall
maintain the Premises and the Improvements so as to comply with all present and
future laws, ordinances, and regulations of all applicable governmental bodies
having jurisdiction over the Premises or Tenant, and with all licenses and
permits pertaining to the Premises. Tenant agrees to give Landlord written
notice of any violation or alleged violation by Tenant of the provisions of
this section and to provide Landlord with access to all documentation pertinent
to such violation.
5.6 Landlord's Right
Inspect. Landlord may at its own expense, and upon reasonable notice to
Tenant to enter upon the Premises to inspect the Premises and the Improvements
to determine compliance with the terms of the Lease, provided that such audit
or inspection does not unreasonably interfere with Tenant's continuing
operations.
5.7 Improvements
and Alterations. Alterations to the Premises or the Improvements require
the prior written approval of Landlord which can be withheld in Landlord's sole
discretion. Tenant shall provide Landlord with Tenant's proposed Alteration
Plans. Alteration Plans shall consist of plans illustrating elevations,
materials, colors and dimensions, and the layout of the alterations on the
Premises and in relation to other adjoining property. If Landlord disapproves
any aspect of Tenant's proposed Alteration Plans, such disapproval and the
reasons for disapproval, including a statement of changes Landlord requires in
order to grant approval, shall be delivered to Tenant within twenty (20)
business days after receipt by Landlord or within ten (10) business days after
receipt of any resubmittals . If Landlord fails to approve or disapprove
Tenant's Alteration Plans within twenty (20) business days after receipt or ten
(10) business days after receipt of any resubmittals, Landlord shall be deemed
to have approved Tenant's Alteration Plans as submitted. All construction work
in connection with the Alteration Plans done by Tenant upon the Premises or
within the Improvements shall be performed in a good workmanlike manner,
lien-free and in compliance with all governmental requirements, and in such
manner as to cause a minimum of interference with other construction in
progress on adjoining property.
8
5.8 Trade
Fixtures and Equipment. Tenant shall have the right, at its sole cost and
expense, to place or install in or upon the Premises and/or the Improvements
such trade fixtures and equipment as it shall deem desirable for the conduct of
its business. All such trade fixtures and equipment shall remain the property
of Tenant. Prior to termination or expiration of this Lease, Tenant shall
remove all trade fixtures and equipment from the Premises and/or the Improvements.
Tenant shall, and it covenants and agrees to, make all repairs, at Tenant's
sole cost and expense, to the Premises and Improvements required because of
such removal and to restore the Premises and the Improvements to good order,
repair and condition all within thirty (30) days after the expiration or
termination of this Lease.
5.9 Signs.
So long as the premises is used for the operation of a financial institution
for savings, loans, checking accounts and other financial services, Tenant may
install and maintain on the Premises such identification, advertising and
directional signs and media as Tenant determines with the maximum size and
height permitted pursuant to the appropriate governmental requirements. Tenant
shall comply with all laws applicable to Tenant's signs on the Premises. All
construction work in connection with the Sign Plans done by Tenant upon the
Premises, shall be performed in a good workmanlike manner, lien-free and in
compliance with all governmental requirements, and in such manner as to cause a
minimum of interference with other construction in progress on adjoining
property. In the event that the Use of the Premises changes as allowed under
this Lease, Tenant shall provide Landlord with an opportunity to review and
approve Tenant's proposed Sign Plans prior to erecting or replacing any signs
on the Premises. Such Sign Plans shall consist of plans illustrating
elevations, materials, colors and dimensions, and the layout of the sign on the
Premises and in relation to other adjoining property. If Landlord disapproves
any aspect of Tenant's proposed Sign Plans, such disapproval and the reasons
for disapproval, including a statement of changes Landlord requires in order to
grant approval, shall be delivered to Tenant within twenty (20) business days
after receipt by Landlord or within ten (10) business days after receipt of any
resubmittals . If Landlord fails to approve or disapprove Tenant's Sign Plans
within twenty (20) business days after receipt or ten (10) business days after
receipt of any resubmittals, Landlord shall be deemed to have approved Tenant's
Sign Plans as submitted.
5.10 Condition
at Surrender. At the expiration or other termination of this Lease, Tenant
agrees, at its sole costs and expense, to surrender and deliver up the
Premises, in good and clean condition, normal wear and tear excepted. Tenant
shall remove all of its trade fixtures and equipment at or prior to delivery of
the Premises to Landlord and repair any damage caused to the Premises as a
result of Tenant's removal of its trade fixtures and equipment as provided
herein. Tenant shall defend, indemnify and hold Landlord harmless from and
against all claims, losses and liabilities (including reasonable attorney's
fees and costs) incurred by Landlord as a result of such removal of its trade
fixtures and equipment. The provisions of this section of the Lease shall
survive the expiration or termination of the Lease.
9
6. LIABILITY.
6.1 Public
Liability. Landlord shall have no liability or responsibility whatsoever
with respect to the conduct and operation of Tenant's business on the Premises
or to the condition, maintenance, or repair of the interior or exterior of the
Premises and the Improvements. Tenant agrees to indemnify and hold Landlord,
its employees and agents, harmless from and against all claims, suits, losses
or liability to Tenant and any third parties for or on account of damages to
property or injuries (including death) to persons (including reasonable
attorney's fees and costs) caused by, arising out of or occurring during
Tenant's use, conduct, maintenance, operation or occupancy of the Premises and
Improvements, except any such injury, death or damage which has resulted from
the gross negligence or intentional acts or omissions of Landlord, its agents
or employees, without any fault or negligence of Tenant, its agents or
employees. Landlord shall defend, indemnify and hold harmless Tenant from and
against all losses, costs (including reasonable attorney fees), claims,
damages, liabilities and expenses that result from or arise out of Landlord's
ownership of the Premises, Landlord's obligations under this Lease, or
environmental contamination on the Premises caused by Landlord, Landlord's
employees, agents, or contractors, except any such loss, cost, claim, damage,
liability or expense that results from or arises out of the negligence or
willful misconduct of Tenant or Tenant's officers, employees, agents or
contractors.
6.2 Liability
Insurance. Tenant at its cost shall procure and maintain during the term
of this Lease, public liability and property damage insurance with a single
combined liability and property damage limit of no less than Five Million and
no/100 ($5,000,000.00) Dollars, insuring against all liability of Tenant, its
agents or employees, to any persons whomsoever arising out of and in connection
with Tenant's use, conduct, maintenance, operation, or occupancy of the
Premises and the Improvements. At the request of Landlord, Tenant shall furnish
Landlord with a certificate showing that such insurance is in effect, together
with evidence of payment of premiums, and shall likewise furnish Landlord with
renewal certificates therefor as the same are procured.
6.3
Fire and Casualty Insurance. Tenant, at its cost, shall procure and
maintain throughout the term of this Lease, all-risk, fire, casualty and
extended coverage insurance covering the Premises and Improvements in an amount
which shall be not less than one hundred percent (100%) of the full insurable
replacement cost, as the same may from time to time be determined, of all
Improvements on the Premises above their foundation, and which shall designate
Tenant, Landlord and Landlord's mortgagee as the named insureds, as their
interests appear. In the event that the Improvements to the Premises are
partially or wholly damaged or destroyed by fire or any other casualty, all
insurance proceeds shall be applied to the prompt and full repair and
restoration of the Improvements and the Premises or such portion thereof as
shall have been damaged or destroyed, with due allowance being given for
reasonable time required for adjustment and settlement of insurance claims.
10
6.4 Failure
to Maintain Insurance. Failure of Tenant to maintain the insurance
required by this Lease shall be a material default. If Tenant shall fail to
procure and maintain any insurance required to be carried pursuant to this
Lease, then Landlord may, but shall not be obligated to, in addition to the
other remedy's available under this Lease, procure and maintain the same, but
at the expense of Tenant, and Tenant shall reimburse Landlord the cost therefor
on demand, together with interest thereon at the rate of ten percent (10%) per
annum.
6.5 Additional
Provisions:
(A) Tenant
shall maintain Worker's compensation, employer liability and such other
insurance as may be necessary to comply with applicable law.
(B)
All insurance policies required by this Lease shall: (i) provide that
such insurance cannot be unreasonably canceled, invalidated or suspended on
account of conduct of Tenant, its officers, directors, employees or agents;
(ii) provide that any "no other insurance" clause in the policy shall exclude
any policies of insurance maintained by Landlord and that the insurance policy
shall not be brought into contribution with insurance maintained by Landlord;
(iii) provide that the policy will not be canceled, terminated or substantially
modified without thirty (30) days prior written notice to Landlord; (iv) name
Landlord as an additional insured; and (v) provide that the insurer shall not
have the option to restore the Premises if Landlord elects to terminate this
Lease in accordance with the terms hereof.
7. DAMAGE
OR DESTRUCTION OF PREMISES.
7.1 Obligation
to Repair. In the event that the Improvements are partially or wholly
damaged or destroyed by fire or any other casualty, Landlord shall have no
obligation to repair such damage. Tenant shall be solely responsible for all
repairs and all insurance proceeds shall be applied to the prompt and full
repair and restoration of the Premises or such portion thereof as shall have
been damaged or destroyed, with due allowance being given for reasonable time
required for adjustment and settlement of insurance claims; provided that
should such damage or destruction occur in the final two (2) years of the
initial term or any extension term of this Lease, Tenant shall not be obligated
to rebuild the permanent Improvements. In such event, Tenant shall give
written notice to Landlord within thirty (30) days following such damage or
destruction that Tenant elects not to rebuild and assigns insurance proceeds
equal to the unamortized value of the Improvements damaged or destroyed over to
Landlord.
8. TAXES.
8.1 Payment
of Taxes. Tenant shall be responsible for payment of all real estate taxes
and assessments levied, assessed and imposed on the Premises and the
Improvements thereon. Failure of Tenant to pay such taxes required by this
Lease shall be a material default. Should Tenant fail to pay the same within
ten (10) days prior to such taxes becoming delinquent, Landlord shall have the
right, but not the obligation, to pay the same and to require the amount so
paid, together with any penalty, to be reimbursed with the next regular
installment of rent due Landlord hereunder, together with interest thereon at
the rate of ten percent (10%) per annum.
11
8.2 Right
to Contest. If the Premises are a separate tax parcel, Tenant shall have
the right at its sole cost and expense, to contest in good faith the validity
or amount of any tax or assessment levied against the Premises by appropriate
proceedings, provided that it shall bear all costs incurred therein. Landlord
agrees to cooperate with Tenant and to execute and deliver such documents and
instruments as may assist Tenant in contesting such tax or assessment. If the
Premises is taxed as part of a larger parcel, Tenant shall have the right to
request that Landlord contest any tax or assessment by providing Landlord with
written objections to the same within ten (10) days of Tenant's receipt of a
tax xxxx. Landlord shall in its sole good faith and reasonable judgment
determine whether to contest such tax or assessment and shall notify Tenant of
its decision within ten (10) days of Landlord's receipt of Tenant's request.
If Landlord agrees, in its sole, good faith and reasonable judgment, to contest
any such tax or assessment, Tenant shall be responsible for paying its
proportionate share of the costs and expense of such action, including
reasonable attorney's fees.
8.3 Prorata
Taxes. Any real estate taxes and assessments payable for the first and
final years during which Tenant shall have occupied the Premises (if less than
the full calendar year represented by such taxes) shall be prorated between
Landlord and Tenant based upon the number of days in each such calendar year
during which this Lease shall have been in effect.
9. CONDEMNATION.
9.1 Notice
of Taking. Upon receipt by either Landlord or Tenant of any notice of the
institution of any subsequent proceeding for the taking of the Premises or any
part thereof by the exercise of any power of condemnation or eminent domain, or
for any street widening or change of grade affecting the Premises or any part
thereof, the party receiving notice thereof shall notify the other party in
writing within ten (10) days following receipt of such notice.
9.2 Right
To Award. If the Premises, or any part thereof, is taken or condemned by
any competent public authority, Landlord and Tenant shall each have a right,
exercisable independent of the other, to seek and recover a separate award of
just compensation from the condemning authority for the injury caused by such
taking. In the event of any condemnation or taking as aforesaid, whether whole
or partial, Landlord shall be entitled to that portion of the award
attributable to the land and Improvements.
10.
ASSIGNMENT OR SUBLETTING. Tenant
may sublet the Premises in whole or in part without Landlord's consent, but the
making of any sublease shall not release Tenant from, or otherwise affect in
any manner, any of Tenant's obligations under this Lease. Tenant shall not
assign or transfer this Lease, or any interest in this Lease, without the
prior, express, and written consent of Landlord, and a consent to an assignment
shall not be deemed to be a consent to any subsequent assignment. Landlord's
approval of an assignment of this Lease shall not operate to relieve Tenant of
its obligations under this Lease. For purposes of this Section 10, by way of
example and not limitation, Landlord shall be deemed to have reasonably
withheld consent if Landlord determines (i) that the prospective assignee is
not of a financial strength similar to Tenant as of the date of the Lease, (ii)
that the prospective assignee has a poor business reputation, or (iii) that the
proposed use of the Premises by such prospective assignee (including, without
limitation, a use involving the use or handling of Hazardous Substances) will
negatively affect the value or marketability of the Premises. Notwithstanding
the foregoing provisions, Tenant shall have the right to assign this Lease
without the consent of Landlord, provided that no default by Tenant then exists
with respect to Tenant's obligations hereunder, Tenant has paid all rentals and
other payments or charges due to the date thereof and the use or proposed use
of the Leased Premises is in full compliance with the terms and provisions
hereof, to (a) any corporation that is a parent, subsidiary or affiliate of
Tenant; (b) a person, corporation or other entity to which substantially all of
Tenant's assets are transferred; or (c) a person, corporation or other entity
to which fifty percent (50%) or more of the capital stock of Tenant is
transferred.
12
Within
fifteen (15) days of the effective date of any such assignment or sublease,
Tenant shall provide Landlord with a copy of the assignment or sublease which
shall specifically provide that the assignee has assumed the obligations and
liabilities of Tenant under the Lease and that Tenant shall remain liable under
the Lease for payment of all amounts due under this Lease if unpaid by the
assignee. In the event of such assignment, Landlord, its successors or assigns,
will not be bound by any amendment or modification of the Lease made without
Landlord's consent.
11. ACCESS.
11.1 Landlord's
Access. Landlord, its agents or employees, shall have the right to enter
upon the Premises during Tenant's normal hours of operation to inspect the same
and for any other purposes permitted herein, so long as such inspection shall
not interfere with the conduct of business thereat, and shall have the right of
access at any other time in case of emergency.
11.2 Upon
Non-renewal. In the event either party gives notice to the other of
non-renewal of this Lease as provided herein, Landlord may post suitable
notices on the Premises during the final ninety (90) days of the leased term
that the same are "for rent" or "for sale" and may show the
Premises to prospective Tenants or purchasers during Tenant's normal hours of
operation.
12. DEFAULT AND REMEDIES
12.1 Events of
Default. Each of the following occurrences shall constitute an
"Event of Default" by Tenant under this Lease: (a) Tenant
fails to pay any rental or other monetary amounts coming due hereunder; (b)
Tenant fails to perform any other of the terms, conditions, provisions or
covenants of this Lease to be observed and performed by Tenant within thirty
(30) days following Tenants receipt of written notice from Landlord specifying
the nature of such failure (or if the nature of such failure is such that it
cannot reasonably be cured or corrected within thirty (30) days, Tenant fails
to diligently commence the cure or correction of same within said thirty (30)
day period, and fails to diligently prosecute the curing or correction until
completed); (c) Tenant becomes bankrupt or insolvent, or files any debtor
protection proceedings, or files or has filed against Tenant in any court
pursuant to any statute, either of the United States or of any state, a
petition in bankruptcy or insolvency or for reorganization, or Tenant makes an
assignment for the benefit of creditors (d) a receiver or trustee shall be
appointed for the Leased Premises or for all or substantially all of the assets
of Tenant and such receiver or trustee is not discharged within sixty (60) days
following the appointment.
12.2 Remedies. Upon occurrence of any such events of default, Landlord shall have the option
to pursue any one or more of the following remedies:
13
A.
Without further notice or demand whatsoever, Landlord may take any one
or more of the actions at law or equity to insure performance by Tenant of
Tenants covenants and obligations under this lease or to enforce the remedies
afforded Landlord under this lease.
B. Without
further notice or demand whatsoever and without terminating the Lease, Landlord
may enter upon and take possession of the Premises and continue to demand from
Tenant the monthly rentals and other charges provided for in this Lease. Until
Landlord re-lets the Premises, Tenant shall pay to Landlord on or before the
first day of each calendar month, the monthly rentals and other charges provide
for in this Lease. If and after the Premises have been re-let by Landlord,
Tenant shall pay to Landlord on the 20th day of each calendar month
and amount equal to the difference between the monthly rentals and other
charges provided for in this lease for such calendar month and that actually
collected by Landlord for such month. If it becomes necessary for Landlord to
bring suit to collect any deficiency, Landlord shall have the right to allow
such deficiencies to accumulate and bring an action on several or all of the
accrued deficiencies at one time. Any such action shall not prejudice in any
way the right of Landlord to bring a similar action for any subsequent
deficiency or deficiencies. Any amount collected by Landlord from subsequent
tenants for any calendar month in excess of the monthly rentals and other
charges provided in this Lease, shall be credited to Tenant in reduction of
Tenant's liability for any calendar month for which the amount collected by
Landlord will be less than the monthly rental and other charges provided for in
this Lease; but Tenant shall have no right to such excess other than the above
credit. Landlord shall not be liable in any manner, nor shall Tenant's
obligations hereunder be diminished by any failure of Landlord to re-let the
Premises, or in the event of re-letting, to collect rent or other charges.
C. Without
further notice or demand whatsoever, Landlord may terminate this lease by
written notice to Tenant and re-enter and take possession of the Premises,
including the improvements thereon, in which event Tenant shall immediately
surrender possession of the Premises to Landlord. In the event of such
termination, Landlord may, at its option, declare the entire amount of the rent
which would become due and payable during the remainder of the term of this
Sublease to be due and payable immediately, in which event Tenant agrees to pay
the same at once, together with all rents theretofore due, at the office of the
Landlord, or at such other place as Landlord may designate in writing;
provided, however, that such payments shall not constitute a penalty or
forfeiture or liquidated damages, but shall merely constitute payments in
advance of the rent for the remainder of the said term. Upon making such
payment, Tenant shall become entitled to receive from Landlord all rents
received by Landlord from other tenants on account of said Premises during the
remaining term of this Sublease, less any expense incurred by the Landlord in
readying the Demised Premises for occupancy, in obtaining a new tenant or
tenants, such as advertising expense and brokerage, and any legal expenses and
court costs in collecting rents from the new tenant or tenants; provided,
however, that the monies to which the Tenant shall so become entitled shall in
no event exceed the entire amount payable by Tenant to Landlord under the
preceding sentence of this subparagraph.
14
D. If, after
written notice from Landlord as provided for in this Section, Tenant fails to
maintain the Premises as required herein or fails to maintain proper insurance
as required herein, Landlord shall have the right to enter upon the Premises to
perform or discharge any such obligation. Should Landlord elect to perform any
such obligations of Tenant, Landlord shall have the right to assess, and Tenant
shall pay immediately upon demand, the costs reasonably associated with the
performance of such obligations as additional rent.
In addition to the
payments required pursuant to Sections 12.2.A. through 12.2.D. above, Tenant
shall: (i) compensate Landlord for all expenses incurred by Landlord in
re-entering and repossessing the Premises, (ii) compensate Landlord for all
expenses incurred by Landlord in re-letting the Premises, (iii) pay Landlord a
reasonable allowance for Landlord's administrative efforts attributable to
Tenants default, and (iv) compensate Landlord for all expenses incurred in
pursuing and enforcing Landlord's remedies provided for herein and under
applicable law and including reasonable attorney's fees and expenses.
12.3 In the event of any
default described in Section 12.1.(c), or Section 12.1.(d) of this Lease, and
in the event Landlord is not allowed to terminate this Lease as a matter of
law, any assumption and assignment must conform with the requirements of the
Bankruptcy Code and Tenant must fulfill the following obligations, in addition
to any other reasonable obligations that Landlord may require, before any
assumption of this Lease is effective:
1. All defaults
under this Lease must be cured within ten (10) days after the date of
assumption.
2. All actual
expenses incurred by Landlord (including, but not limited to, reasonable
attorneys fees) must be paid to Landlord with ten (10) days after the
assumption date.
3. At least ten
(10) days prior to the assumption, Landlord must be provided with a financial
statement of the proposed assignee prepared in accordance with generally
accepted accounting principles, which reveals a net worth in an amount
sufficient, in Landlord's reasonable judgment, to assure future performance by
the proposed assignee of Tenant's obligations under this Lease, or, in the
alternative, a written guaranty, in form and content satisfactory to Landlord,
by one or more guarantors with financial ability sufficient to assure the
future performance of Tenant's obligations under this Lease.
15
12.4 Default by
Landlord. Landlord will be in default under this Lease if Landlord
fails to perform any of Landlord's obligations, covenants, representations and
warranties under this Lease. If Landlord fails to (a) commence performance of
any obligation of Landlord within thirty (30) days after receipt of written
notice from Tenant stating the obligation which Landlord has failed to perform
and demanding performance and (b) diligently pursue completion of the required
performance, then Tenant, as it sole and exclusive remedies, shall have the
right to seek specific performance and the recovery of actual damages proven by
Tenant to be a direct result of Landlord's default hereunder in any court of
competent jurisdiction. Notwithstanding anything to the contrary above, Tenant
shall not have a right to obtain consequential or punitive damages from Landlord
in any action to enforce the provisions of this Lease.
13. LANDLORD
MORTGAGE.
13.1 Construction
Financing. Landlord's obligations under this Lease are contingent upon
Landlord obtaining financing of the construction of the Improvements and Site
Work to be performed by Landlord as outlined in Section 2.1 of this Lease from
a Lender of Landlord's choice on terms and conditions acceptable to Landlord,
in Landlord's sole but reasonable discretion. As documented in Section 2.1, the
Landlord's budgeted cost of the Improvements and Site Work required under this
Lease (including interest on funds advanced during constriction) is
$10,000,000.00. If, after Landlord gets final plans and bids for the
construction of the Improvements and Site Work, the actual cost exceeds the
budgeted cost, such overages will be determined to be upfitting costs for which
the Tenant will be responsible for and promptly pay.
13.2 Subordination.
This Lease shall be subject and subordinate to any mortgage of Landlord now
existing and to any mortgage granted hereafter by Landlord which shall
constitute a first lien against the Premises, and to all renewals,
modifications, consolidations, replacements and extensions thereof, so long as
such Mortgagee shall acknowledge and agree to the remaining provisions of this
Section 13 as of the date any such mortgage is granted.
13.3 Estoppel
Certificates. Each party hereto shall execute and return within ten (10)
days any certificate that the other party hereto or any mortgagee of either
party may reasonably request from time to time, stating that this Lease is
unmodified and in full force and effect, or in full force and effect as
modified, and stating the modification. The certificate also shall state the
amount of monthly rent and the dates to which the rent has been paid in
advance; that there is no present default on the part of the other party known
to such party, or that a default exists, with a statement of the nature of such
instance of default; that such party has no right to set off and no defense or
counterclaim against enforcement of its obligations under the Lease; and that
such party has no other notice of any sale, transfer or assignment of this
Lease or of the rentals by the other party. Should a party fail to deliver
such a certificate within such ten (10) day period twice within any twelve (12)
month period during the term of this Lease, such second failure and any failure
thereafter within any twelve (12) month period shall, at the option of the
other party hereto, constitute an event of default hereunder.
13.4 Attornment.
Tenant covenants and agrees to attorn to any successor to Landlord's ownership
of the Premises, and in such event, this Lease shall continue as a direct lease
between Tenant herein and such Landlord or its successor.
16
13.5 Nondisturbance.
Landlord shall cause any mortgagee of its fee title to the Premises to
acknowledge to Tenant in writing that so long as Tenant shall not be in default
under this Lease, neither this Lease nor Tenant's right to remain in exclusive
possession of the Premises pursuant to this Lease shall be affected or
disturbed by reason of any default by Landlord under such mortgage and, if such
mortgage be foreclosed, this Lease shall survive such foreclosure and shall
continue in full force and effect. In such event, Tenant shall be authorized to
make all rent payments hereunder directly to such mortgagee or the purchaser of
the Property at foreclosure to be applied by such mortgagee to Landlord's
indebtedness, which payments shall fulfill all requirements of this Lease for
rent payments by Tenant to Landlord.
14. TENANT
HOLDOVER. Should Tenant hold over the Premises after the expiration of
this Lease, unless otherwise agreed in writing, such holding over shall
constitute a tenancy from month to month only, subject to the terms hereof and
to the payment of monthly rental at the rate of 150% of the base rental payable
for the last month of this Lease prior to such holding over. Each party agrees
to give to the other thirty (30) days prior written notice that the party
giving notice is terminating this Lease, in which case Tenant shall vacate the
Premises prior to expiration of said thirty (30) day period.
15. TITLE
AND QUIET ENJOYMENT. Landlord warrants and covenants to Tenant that Landlord
has the right and lawful authority to enter into this Lease for the term
(including renewal options) and that Landlord is vested with good, unencumbered
and marketable fee title to the Premises, except for such matters which will
not prevent Landlord's performance of its obligations under this Lease or
materially and adversely interfere with Tenant's exercise and enjoyment of its
rights under this Lease. So long as Tenant shall pay all rents and observe and
perform all covenants and provisions hereof, Tenant shall peacefully and
quietly have and enjoy possession of the Premises without any encumbrance or
hindrance by, from or through Landlord, except that Landlord shall have the
right to enter upon the Premises during Tenant's regular business hours for inspection
purposes so long as such entry shall in no way disrupt the conduct of Tenant's
regular business.
16. LICENSES
AND UTILITIES. Tenant shall pay all sums as and when due on account of
utility services provided to the Premises, including but not limited to
electricity, gas, water, sewer, janitorial services, and telephone service and
for all licenses and permits necessary to the operation of Tenant's business on
the Premises. Upon request by Landlord, Tenant shall provide Landlord with
copies of all permits and licenses necessary to the operation of Tenant's
business.
17. NOTICES.
17.1 Method of Notice. All
written notices required or desired to be given hereunder by either party to
the other shall be given by United States certified or registered mail, return
receipt, postage prepaid, addressed to the other party at the following
addresses:
AS TO LANDLORD:
Xx. Xxxxxxx X.
Xxxxxx, Esquire
Xxxxxx, Xxxxxx,
Xxxxxxx & Xxxx
X.X. Xxx 00000
Xxxxxxxxxx, XX
00000
AS TO TENANT:
Xx. Xxxx
Xxxxxxxx
Chairman
and Chief Executive Officer
The
Palmetto Bank
X.X. Xxx
00
Xxxxxxx,
XX 00000
In
the alternative, any notice may be given by personal delivery thereof to the
other party at said party's aforesaid address. Either party may, by like
written notice, designate a new address to which such notices shall thereafter
be directed.
17.2 Effective
Date of Notice. Any required notice herein shall be deemed to have been
given on the date that the same is deposited in the United States mail, or
delivered to the other party, in compliance with the foregoing provisions.
18. ENVIRONMENTAL
COMPLIANCE. Landlord represents to Tenant that to the best of Landlord's
knowledge the Premises is, and will remain on the Date of Delivery, free and
clear of any hazardous substances or hazardous materials as defined under the
terms of any applicable environmental laws, rules or regulations. Tenant
represents, warrants and covenants unto Landlord that Tenant shall not treat,
store or dispose of any hazardous substances, as defined under the terms of any
applicable laws, rules or regulations, upon the Premises; that Tenant will
undertake all cleanup and remediation of the Premises resulting from Tenant's
operations at the Premises in compliance with all applicable governmental rules
and regulations; and that Tenant will indemnify and hold Landlord harmless from
and against all liability, damages, penalties, lawsuits and fines (including
reasonable attorneys fees and costs) to which Landlord may be subjected as a
result of the activities and operations of Tenant upon the Premises.
19. EASEMENTS
RESERVED FOR LANDLORD. Landlord reserves for itself, its successors and
assigns, guests, licensees and invitees, respectively, a non-exclusive easement
for ingress and egress for vehicular and pedestrian traffic over and across the
driveways or parking area now or hereafter established by Tenant and situated
upon the Premises, and it is further provided that nothing herein shall
prohibit the relocation or rearrangement of the driveways on the Premises from
time to time by Tenant as provided for in this Lease, now existing on the
Premises. Landlord and Tenant agree that if the rights granted by this Article
are exercised for permanent access or parking by or through Landlord, Landlord
and Tenant will negotiate in good faith an agreement requiring each user of the
driveways and parking area to share pro-rata in the cost and maintenance of the
driveways and parking areas.
20. PREMISES
LIGHTING. The Tenant covenants that it will maintain, at its own
cost and expense, lighting in all common areas of the Premises in a manner
consistent with lighting of a first class retail business and that all such
lighting shall be in operation during all operating hours of the Tenant and for
not less than one hour after the Premises are closed to the public on a daily
basis.
18
21. MISCELLANEOUS.
21.1 Captions.
All section and paragraph captions are for the convenience of the parties only,
and neither limit nor amplify the provisions of this Lease.
21.2 Entire
Agreement. This Lease contains all the agreements and conditions made
between the parties with respect to the Premises and may not be modified orally
or in any manner other than by an agreement in writing, signed by the parties
and attached hereto.
21.3 No
Partnership. Landlord does not in any way or for any purpose become a
partner of Tenant in the conduct of its business, or otherwise, joint venturer
or a member of a joint enterprise with Tenant.
21.4 Force
Majeure. In the event that either party shall be delayed or hindered in or
prevented from doing or performing any act or thing required hereunder by
reason of strikes, lockouts, casualties, acts of God, labor troubles, failure
of power, governmental laws or regulations, riots, insurrection, war or other
causes beyond the reasonable control of either party, then such party shall not
be liable or responsible for any such delays in the doing or performing of any
such act or thing, shall be excused for the period of the delay and for the
period of the performance of any such acts shall be extended for a period
equivalent to the period of such delay.
21.5 Severability.
The unenforceability, invalidity or illegality of any provision therein shall
not render any other provision herein unenforceable, invalid or illegal.
21.6 Successors
and Assigns. All rights, remedies and liabilities herein given to or
imposed upon either of the parties hereto, shall extend to their respective
heirs, personal representatives, successors and assigns.
21.7 Applicable
Law. This Lease is entered into and shall be construed in accordance with
the laws of the State of South Carolina and any action or Proceeding arising
hereunder shall be brought in the County of Greenville, State of South
Carolina.
21.8 Memorandum
of Lease. The parties agree that this Lease shall not be recorded, but
upon request of either party, Landlord and Tenant shall execute and record a
Memorandum of this Lease which shall identify the parties, the Premises, the
term (including renewal options) of this Lease, the foregoing Restrictive
Covenants, and any other matters contained herein that the parties may then
agree to stipulate.
21.9 Americans
with Disabilities Act (ADA). After completion of the construction of the
Improvements on the Premises by Landlord, Tenant covenants that it will
maintain, at its own cost and expense, the Premises in compliance with the
Americans with Disabilities Act of 1990 and such other federal and state
statutes and regulations as may exist from time to time.
19
21.10 Limitation of
Landlord's Liability. If Tenant in any action or proceeding against
Landlord obtains a money judgment, Tenant will look only to Landlord's interest
in the Premises for satisfaction and recovery thereof. Landlord, and no officer,
director, employee or agent of Landlord, shall be personally liable for any
such judgment.
21.11 Interpretation
of Lease. This Lease shall be interpreted to give effect to its fair
meaning and shall be construed as though it was prepared by both parties. This
Lease contains the entire agreement of Landlord and Tenant, and all prior
negotiations, documents, and discussions are superseded by this Lease. The
invalidity of any provision of this Lease shall not affect the validity of any
other provision of this Lease. Paragraph headings in this Lease are for
convenience only and shall not be used in interpreting its provisions. This
Lease shall be interpreted in accordance with the laws of the state in which
the Premises are located.
21.12
Waiver. No right or remedy under this Lease will be waived
unless the waiver is in writing and signed by the party claimed to have made
the waiver. One waiver will not be interpreted as a continuing waiver.
21.13
Attorney's Fees. If it is necessary for a party to employ attorneys for
the collection of amounts payable hereunder, or for any other breach by a party
hereto resulting in a default of the provisions of the Lease, or to enforce any
indemnity by a party to the Lease, then the prevailing party in any such action
shall be entitled to recover from the non-prevailing party all costs and
expenses incident to such action, including without limitation reasonable fees
of such attorneys, which amounts shall be added to the amount payable hereunder
and be collected as a part thereof.
21.14
Regulatory. If a prohibition is imposed by any regulatory entity with
jurisdiction over Tenant, Tenant shall have the right to terminate this Lease
by giving Landlord thirty (30) days prior written notice of the regulatory
prohibition and the termination of the Lease. The Lease shall terminate on the
thirtieth (30th) days after Landlord received the written notice.
In such event, Tenant shall promptly and with due diligence forgive the
outstanding balance due on the Construction Loan identified in Section 13.1 of
this Lease as of the date of the termination as full liquidated damages, and
Landlord and Tenant shall have no further obligations to the other under this
Lease. LANDLORD AND TENANT AGREE THAT FORGIVENESS OF SUCH DEBT IS A REASONABLE
SUM FOR LIQUIDATED DAMAGES CONSIDERING ALL CIRCUMSTANCES AS OF THE EFFECTIVE
DATE, AND SUCH FORGIVENESS OF DEBT SHALL BE LANDLORD'S SOLE AND EXCLUSIVE
REMEDY IN LIEU OF ANY OTHER RIGHT OR REMEDY AT LAW OR IN EQUITY TO WHICH
LANDLORD SHALL OTHERWISE BE ENTITLED FOR THE EARLY TERMINATION OF THIS LEASE
UNDER THE PROVISIONS OF THIS SECTION 24.14.
20
21.15
Liens. Tenant shall not create or permit to be created or to remain,
and shall discharge any mechanic's lien or any other lien, claim or damage
which might be or become a lien, encumbrance or charge upon the Premises. If
any such lien shall be recorded against the Premises or any part thereof,
Tenant, within thirty (30) days after the filing thereof, shall cause the same
to be discharged of record by payment, deposit, bond or order of court or
otherwise. If Tenant shall fail to cause any such lien to be discharged within
the period aforesaid, then tenant shall be default under this Lease and, in
addition to any other right or remedy, Landlord may, but shall not be obligated
to, discharge the same by any means. Any amount so paid by Landlord and all
reasonable costs and expenses, including but not limited to attorneys' fees,
incurred by Landlord in connection therewith, together with interest thereon at
the rate of ten percent (10%) per annum from the respective dates of Landlord's
making of the payment or incurring of the cost and expense, shall constitute
additional rent payable by Tenant under this Lease and shall by paid by Tenant
to Landlord within ten (10) days after notice.
21.16 Consents.
All consents to be given under this Lease shall not be unreasonably withheld,
denied, delayed or conditioned unless and except where expressly provided
otherwise in this Lease.
IN WITNESS
WHEREOF, Landlord and Tenant have executed this Lease on the day and year first
written above.
WITNESSES: |
LANDLORD:
|
|
|
___________________________ |
By: By: /s/ Xxxxxxx X. Xxxxxx
|
|
Xxxxxxx X.
Xxxxxx
|
| |
___________________________ |
By: /s/ Xxxxx X. Xxxxxx
|
|
Xxxxx
X. Xxxxxx
|
| |
|
TENANT:
|
|
|
|
THE PALMETTO
BANK
|
| |
___________________________ |
By: Xxxx X. Xxxxxxxx
|
___________________________ |
Title: Chairman and CEO
|
21
EXHIBIT "A"
Legal
Description of The Premises
All that certain piece, parcel,
or lot of land, situate, lying and being in the City of Greenville, State of
South Carolina, designated as "0.867 Acres" containing 37,755 sq. ft., and
being more particularly described on a plat of survey entitled, "Survey for
Palmetto Bank," prepared by Site Design, Inc., dated September 26, 2006, last
revised April 30, 2007, Reference to said plat is hereby made for a more
complete metes and bounds description thereof.
And
All that certain piece, parcel,
or lot of land, situate, lying and being in the City of Greenville, State of
South Carolina, designated as "0.333 Acres" containing 14,523 sq. ft., and
being more particularly described on a plat of survey entitled, "Survey for
Palmetto Bank," prepared by Site Design, Inc., dated September 26, 2006, last
revised April 30, 2007, Reference to said plat is hereby made for a more
complete metes and bounds description thereof.
And
All that certain piece, parcel,
or lot of land, situate, lying and being in the City of Greenville, State of
South Carolina, designated as "0.308 Acres" containing 13,407 sq. ft., and
being more particularly described on a plat of survey entitled, "Survey for
Palmetto Bank," prepared by Site Design, Inc., dated September 26, 2006, last revised
April 30, 2007, Reference to said plat is hereby made for a more complete metes
and bounds description thereof.
Together with and subject to any and all existing
reservations, easements, rights of way, zoning ordinances and restrictive
covenants that may appear of record or on the premises.
The above described real estate
being the same property shown in the public records for Greenville County,
South Carolina, as Tax Map Number ("TMS No.") 0043000100200, owned by Xxxxxxx
X. Xxxxxx and Xxxxx X. Xxxxxx, TMS No. 0043000100400, owned by Xxxxxxx X.
Xxxxxx and Xxxxx X. Xxxxxx, TMS No. 0043000100500, owned by Xxxxxxx X. Xxxxxx
and Xxxxx X. Xxxxxx, TMS No. 0043000100100, owned by The Palmetto Bank, TMS No.
0043000100600, owned by The Palmetto Bank, and TMS No. 0043000100700, owned by
The Palmetto Bank.
22
EXHIBIT "B"
Original Term:
During the original term of this
Lease, the Base Rent will be in the amounts as follows:
1. | Years 1 through 5 |
$1,430,347.00
annually or $119,195.58 monthly
|
2. | Years 6 through 10 |
$1,490,347.00
annually or $124,195.58 monthly
|
3. | Years 11 through 12 |
$1,553,347.00
annually or $129,445.58 monthly
|
4. | Year 13 |
$1,568,347.00
annually or $130,695.58 monthly
|
5. | Year 14 |
$1,598,347.00
annually or $133,195.58 monthly
|
6 | Year 15 |
$1,648,347.00
annually or $137,362.25 monthly
|
Extension Terms:
Ground Lease
Payments and Building Lease Payments will be combined during the extension
terms and Base Rent will be the "Fair Rental Rate" as determined under the
provisions outlined in Exhibit B-1, attached hereto and incorporated
herein by reference. Notwithstanding the foregoing, in no event shall the Base
Rent for First through Third extension terms exceed the floor and ceiling
limits for each applicable extension term as set forth below:
a. | First Extension Term |
no less than $15.00 per
square foot of the Improvements and no greater than $25.00 per square foot of
the Improvements
|
b. | Second Extension Term |
no less than $18.00 per
square foot of the Improvements and no greater than $28.00 per square foot of
the Improvements
|
c. | Third Extension Term |
no less than $20.00 per
square foot of the Improvements and no greater than $31.00 per square foot of
the Improvements
|
d. | Fourth Extension Term |
Fair Market Rental Rate as determined
pursuant to Exhibit "B-1" of this Lease.
|
e. | Fifth Extension Term |
Fair Market Rental Rate
as determined pursuant to Exhibit "B-1" of this Lease.
|
23
EXHIBIT "B-1"
The
term "Fair Market Rental Rate" shall mean the market rental rate for the time
period such determination is being made for a commercial parcel of land located
in Greenville, South Carolina of equivalent quality, size, utility, and
location.
Landlord
shall deliver to The Palmetto Bank notice of the Fair Market Rental Rate for
the premises for the applicable term in question within thirty days of current
term expiration or within thirty days after The Palmetto Bank exercises the
option giving rise for the need to determine the Fair Market Rental Rate.
Landlord's notice of the Fair Market Rental Rate for said premises shall fall
within the following floor and ceiling limits for the option periods noted
within the Lease Agreement between the parties dated May 2, 2007. If The
Palmetto Bank disagrees with Landlord's assessment of the Fair Market Rental
Rate, then it shall so notify the Landlord in writing within fifteen days after
delivery of such notice; otherwise, the rate set forth in such notice shall be
Fair Market Rental Rate. If The Palmetto Bank timely delivers to Landlord
written notice that The Palmetto Bank disagrees with Landlord's assessment of
the Fair Market Rental Rate, Landlord and The Palmetto Bank shall meet to
attempt to determine the Fair Market Rental Rate. If The Palmetto Bank and
Landlord are unable to agree on such Fair Market Rental Rate within ten days
after The Palmetto Bank notified Landlord of The Palmetto Bank's disagreement
with Landlord's assessment thereof, then Landlord and The Palmetto Bank shall
each appoint an independent real estate appraiser with at least five year's
commercial real estate appraisal experience in the area market. The two
appraisers shall then, within ten days after their designation, select an
independent third appraiser with like qualifications. If the two appraisers
are unable to agree on the third appraiser within ten days, either Landlord or
The Palmetto Bank, by giving five days prior written notice thereof to the
other, may apply to Clerk of Court of Greenville County for selection of a
third appraiser who meets the qualifications stated above. Within twenty days
after the selection of the third appraiser, a majority of the appraisers shall
determine the Fair Market Rental Rate. If the majority of the appraisers are
unable to agree upon the Fair Market Rental Rate by such time, then the two
closest appraisals shall be averages and the average will be the Fair Market
Rental Rate. The Palmetto Bank and Landlord shall each bear the entire cost of
the appraiser by it and shall share equally the cost of the third appraiser.
24
EXHIBIT
"C"
DESCRIPTION
OF TENANT'S WORK
A. Tenant's Plans and Specifications ‑ Tenant shall prepare
and deliver to Landlord a complete plans and specifications (including all
engineering, mechanical, plumbing and electrical work if applicable) covering
all of Tenant's work concerning the Premises certified by a licensed and
registered architect and, if applicable, a licensed and registered professional
engineer. Landlord's written approval shall be obtained by Tenant prior to the
undertaking of any construction work which materially deviates from or modifies
in any way Tenant's plans and specifications or any other work not explicitly
shown on said plans and specifications. Tenant shall be solely responsible for
such plans and specifications meeting the requirements of any statutes,
ordinances, rules, regulations, and codes or for their fitness as to their
intended use or purpose. Tenant shall not commence Tenant's Work until Tenant
has received full and final approval from Landlord.
B. Materials ‑ Only new first class materials shall be used
in the performance of Tenant's Work.
C. Settlement of Disputes ‑ It is understood and agreed that
any disagreement or dispute which may arise between Landlord and Tenant with
respect to Tenant's Work shall be resolved by the decision of Landlord's
Architect.
D. Coordination of Tenant's Work ‑ Tenant shall coordinate
its work with all work being performed or to be performed by Landlord, its
architects, engineers or contractors. Tenant's contractors, or subcontractors
shall not at any time damage, injure, interfere with or delay the completion of
the Improvements. Tenant shall be responsible for all of Tenant's costs
incurred in coordinating his plans with Landlord's Architect and Engineers.
E. Tenant shall secure, pay for and maintain or cause its contractors
to secure, pay for and maintain prior to commencement of Tenant's work the
following insurance coverages:
a. Worker's
Compensation in statutory amounts and employer's liability insurance with
limits of not less than $100,000 each accident, $500,000 disease, policy limit,
and $100,000 disease, per employee, and other insurance as required by any
Employee Benefit Act or other statute applicable where the work is to be
performed as will protect the contractor and subcontractors from any and all
liability under the aforementioned acts.
b. Builder's Risk
completed value form affording "all risks of physical loss of damage" on its
work in the Premises.
All such insurance
coverage shall name Landlord, Landlord's mortgagee and beneficiaries and their
respective agents and employees as additional insureds and all such policies
shall provide that they shall not be canceled except upon (10) days prior
written notice to Landlord.
F. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall, and hereby does, protect, indemnify, defend, and hold
harmless Landlord, Landlord's beneficiary, and Landlord's lenders from and
against any and all claims, damages, liabilities, losses, causes of action,
liabilities, obligations, judgments, costs and expenses (including, but not
limited to, reasonable attorneys' fees and court costs), suffered or incurred
by any or all of the indemnified parties as a result of, or due to, or arising
from, any actions or omissions by Tenant, its contractor, subcontractors, agents,
and employees occurring in the course of, or as a part of, or in preparation
for, the performance of the Tenant's Work, as contemplated and required under
this Lease.
THIS
ADDENDUM TO LEASE (the "Addendum") is made and entered into as of the 2nd
day of May, 2007, by and between THE PALMETTO BANK ("Tenant") and
XXXXXXX X. XXXXXX AND XXXXX X. XXXXXX, or their designee ("Landlord").
RECITALS:
WHEREAS, Landlord and Tenant hereby acknowledge that the current site plan for
the Improvements on the Premises, a copy of which is attached hereto as
Exhibit A-1 and incorporated herein by reference, shows that location of
a portion of the driveway for the Improvements to the Premises to be located
within an area that is not now owned by Landlord, but instead is the subject of
an ingress and egress easement benefiting the Premises found in deed recorded in
Deed Book 1213, at page 588 in the Office of the Register of Deed for Greenville
County, South Carolina, and being described therein as "Easement B," a copy of
which is attached hereto as Exhibit B-1 and incorporated herein by
reference.
WHEREAS, the provisions found in said deed provide that Easement B shall
terminate in the event that the servient property is not longer used for a
drive-in banking facility or in the event that leasehold estate on the servient
property for the drive-in banking facility expires, which ever occurs first.
WHEREAS, Landlord and Tenant wish to set forth certain agreements concerning the
responsibilities for relocating a portion of the driveway for the Improvements
on the Premises in the event that Easement B expires or terminates.
NOW THEREFORE, for good and valuable consideration, and the mutual covenants
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
-
Landlord shall promptly give Tenant copies of any written notices provided
to Landlord concerning the use, termination or expiration of Easement B.
-
In the event that Easement B shall terminate or expire, Tenant shall remove
and relocate, at its sole expense, the portion of the driveway, to an
alternative location on the Premises in accordance with plans and
specifications therefor to be approved by Landlord before Tenant commences
construction, with the construction to be completed with all due diligence
following the expiration or termination of Easement B.
-
Otherwise, the terms of the Lease Commercial Lease executed by Landlord and
Tenant simultaneously herewith shall remain unchanged and in full force and
effect.
-
The Recitals are incorporated herein by reference.
IN WITNESS
WHEREOF, Landlord and Tenant have executed this Addendum to Lease on the day and
year first written above.
WITNESSES: |
LANDLORD:
|
|
|
___________________________ |
By: /s/ Xxxxxxx X. Xxxxxx
|
|
Xxxxxxx X. Xxxxxx
|
| |
___________________________ |
By:
/s/ Xxxxx X. Xxxxxx
|
|
Xxxxx X. Xxxxxx
|
| |
|
TENANT:
|
|
|
|
THE PALMETTO BANK
|
| |
___________________________ |
By:
Xxxx X. Xxxxxxxx
|
___________________________ |
Title:
Chairman and CEO
|
![](https://www.sec.gov/Archives/edgar/data/706874/000100329707000153/a1.jpg)
![](https://www.sec.gov/Archives/edgar/data/706874/000100329707000153/pg1.jpg)
![](https://www.sec.gov/Archives/edgar/data/706874/000100329707000153/pg2.jpg)
![](https://www.sec.gov/Archives/edgar/data/706874/000100329707000153/pg3.jpg)
![](https://www.sec.gov/Archives/edgar/data/706874/000100329707000153/pg4.jpg)
![](https://www.sec.gov/Archives/edgar/data/706874/000100329707000153/pg5.jpg)