COMMERCIAL LEASE AGREEMENT TRIPLE NET WITH COMMON AREA MAINTENANCE ANNUAL COST OF LIVING ESCALATOR
TRIPLE
NET WITH COMMON AREA MAINTENANCE
ANNUAL
COST OF LIVING ESCALATOR
THIS
COMMERCIAL LEASE AGREEMENT ("Lease")
is made effective May 3, 2004 by and between PLATINUM
COMMERCIAL REAL ESTATE, INC. a
South
Carolina corporation whose address is 00 Xxxxxxxxxx, Xxxxxx Xxxx Xxxxxx, Xxxxx
Xxxxxxxx 00000 ("Landlord") and THE
SAVANNAH BANK, N.A.,
a
banking company organized under the laws of the United States, whose address
is
00 Xxxx Xxxxxx, 0xx
Xxxxx,
Xxxxxxxx, Xxxxxxx, 00000 ("Tenant").
WHEREAS,
Landlord
is the owner of a parcel of real property with certain improvements located
in
Beaufort County, South Carolina, which real property contains commercial
improvements and is more particularly described on Exhibit "A" attached hereto
and incorporated herein ("Project"), and
WHEREAS,
Tenant
wishes to lease a portion of the Project under certain terms and
conditions.
NOW,
THEREFORE, in
consideration of the sum of the rent to be paid by Tenant to Landlord, the
covenants and agreements herein, and for other good and valuable consideration,
the receipt and legal sufficiency of which both parties acknowledge, the
Landlord and Tenant agree as follows:
1.
LEASED
PREMISES. In
consideration of the rent hereinafter reserved and of the covenants hereinafter
contained, Landlord does hereby lease to Tenant, and Tenant does hereby lease
from Landlord, 15,500 square feet of interior space within the Project and
a two
lane drive through facility. The 15,500 square feet of floor space is shown
on
the floor plan attached hereto as Exhibit "B" ("Leased Premises"). The Leased
Premises includes all interior space, including walls, fixtures and equipment.
The Leased Premises shall also include Tenant's proportional share of the common
areas of the Project as defined below. The Landlord has not yet named the
Building or the Project and Tenant reserves the right to name the Building
and/or the Project at its sole discretion. The Landlord shall construct the
Leased Premises with design, finished interior walls to include paint, ceiling
tiles, all HVAC finish work, finishes, electrical, voice and data communication,
vault construction and specialized equipment accommodations as specified by
Tenant and to be documented by an Addendum to this Lease within an allowance
of
$100,000.00 to be used for interior finish work. In the event the parties can
not reach an agreement regarding the construction and final details of the
Leased Premises and execute an Addendum as set forth above within 90 days after
the effective date above, this Lease shall terminate, and neither party shall
have any further rights or obligations hereunder. Tenant shall provide the
vault
door, drive through equipment and other specialized equipment at its expense
after the Commencement Date, as defined below, and Landlord shall install such
equipment to specifications provided. The vault door, drive through equipment
and other specialized equipment provided by Tenant shall remain the property
of
Tenant and be removable upon the termination of this Lease.
2. TERM.
a. Term.
The
term of this Lease (the "Lease Term") shall commence on the
first
day
of the second calendar month immediately following the day the Landlord obtains
a Certificate
of Occupancy for the Project (the "Commencement Date") and shall terminate
at
12:00
o'clock midnight, local time, on September 30, 2024 (the "Termination Date").
Landlord shall
use
its best efforts to obtain a Certificate of Occupancy for the Project
by September 15, 2004;
however, Landlord shall not be liable to Tenant for any claims, damages, or
liability whatsoever
for any delays in obtaining a Certificate of Occupancy for the Project by such
date except
for delays resulting from Landlord's negligence. If the Landlord is unable
for
any reason to
obtain
a building permit for the Project and the Leased Premises with the
specifications agreed to
by the
parties in the Addendum referred to above, Landlord may unilaterally terminate
this Lease
by
written notice to Tenant; after which neither party shall have any further
rights or obligations
hereunder.
b.
Renewal
Lease Term Options. Upon the expiration of the initial Lease Term,
Tenant shall have three 5-year renewal options which, if all are exercised,
may
extend the Lease
Term until September 30, 2039. Tenant shall notify Landlord in writing not
less
than ninety
days before the expiration of the initial Lease Term and, if applicable, any
and
all renewal terms
if
Tenant chooses to exercise Tenant's renewal options. The agreements, covenants
and provisions provided in this Lease shall control and apply to any renewal
Lease Term. If Tenant fails
to
notify Landlord of its decision to exercise its renewal rights within the time
specified hereunder,
Tenant shall have no rights to renew the Lease Term. Said notice requirement
may
be waived
by
Landlord.
c.
Right
of First Refusal to Lease Additional Space. During the term of the Lease,
Tenant 11
have a
right of first refusal ("Right of First Refusal") to lease
the
remaining rentable
area within the Project as portions
of it become available from
time
to time (each such portion
being referred to herein as
an
"Additional Space"), on the same terms and conditions of this
Lease. If Landlord receives an offer to lease the Additional Space from a third
party which Landlord
desires to accept, Landlord shall present the same, in writing, to Tenant,
and
Tenant shall
thereafter have thirty (30) business days in which to accept or reject that
offer by notice to Landlord. The Right of First Refusal shall apply only with
respect to the entire Additional Space subject
of the third-party offer, and may not be exercised with respect to only a
portion thereof. If Tenant
rejects that offer or fails to accept the same in writing within that time,
then
Landlord shall be
free
to lease the Additional Space to the third party on substantially similar terms
and conditions
to those offered to Tenant in the foregoing manner.
i.
Each
Right of First Refusal shall, at Landlord's election, be
null
and
void
if Tenant is in default
under the Lease at the date Landlord would otherwise notify Tenant of the offer
concerning the Additional Space. After Tenant validly exercises a Right of
First
Refusal provided in this Lease, the parties shall execute an amendment to the
Lease
adding the
Additional Space, or a new lease
for
the Additional Space,
or
such
other
documentation as Landlord
shall require, promptly after Landlord shall have prepared the same, confirming
the leasing of such Additional Space to Tenant. An otherwise valid exercise
of
the Right of First Refusal
contained in this Lease shall not be fully effective
until such confirmatory documentation is
executed.
ii.
If
Tenant
shall exercise a Right of
First
Refusal granted in
this
Lease,
Landlord does not guarantee that the Additional Space will be available on
the
commencement
date for the Lease thereof if the then-existing occupants of the Additional
Space shall
hold over, or for any other reason beyond Landlord's reasonable control. In
that
event, Tenant's
sole recourse shall be that the rent with respect to the Additional Space shall
be abated
-1-
until
Landlord legally delivers the same to Tenant. Tenant's exercise of that Right
of
First
Refusal
shall
not
operate to cure any default by Tenant of any of the terms or provisions in
the
Lease, nor to extinguish or impair any rights or remedies of Landlord arising
by
virtue of such default. Each and all Rights of First Refusal are personal to
Tenant and may not be exercised or enjoyed by any other
Person. If the Lease or Tenant's right to possession of the Leased Premises
shall terminate in
any
manner whatsoever before Tenant shall exercise a Right of First Refusal,
immediately upon
such
termination, the Right of First Refusal shall simultaneously terminate and
become null and
void.
Under no circumstances whatsoever shall a subtenant under a sublease of the
Leased
Premises
have an right to exercise a Right of First Refusal granted in this
Lease.
d.
Right
of
First
Refusal to Purchase
Project.
During the term of
the
Lease,
Tenant
shall have
right of
first refusal ("Right of First Refusal to Purchase") to purchase the
Project
based on an average appraised
value as submitted by two certified appraisers selected by Tenant. If Landlord
receives an offer to purchase the Project from a third party which Landlord
desires to accept, Landlord shall present the same, in writing, to Tenant,
and
Tenant shall thereafter have thirty (30) business
days in
which to accept or reject that offer by notice to Landlord.
The Right of First Refusal to Purchase shall apply to any portion of the Project
offered for
sale
by Landlord. If Tenant rejects that offer or fails to accept the same in writing
within that time,
then Landlord shall be free to sell the Project to the third party on
substantially similar terms and
conditions to those offered to Tenant in the foregoing manner.
i.
Each
Right of First Refusal to Purchase shall, at Landlord's election,
be null and void if Tenant is in default under the Lease at the date Landlord
would otherwise
notify Tenant of the offer concerning
the offer to purchase.
After
Tenant validly exercises
a Right of First Refusal to Purchase, the parties shall execute a sales
agreement for the Project,
and Landlord shall prepare the same, confirming the obligation of the Tenant
to
purchase the
Project. Said sale agreement shall contain the terms and conditions of the
original third party offer to purchase, shall require an xxxxxxx money deposit
of no less than five percent (5%) of the Project
purchase price, shall contain terms and conditions customary for Hilton Head
Island, South
Carolina, and shall obligate Tenant to close the purchase within ninety (90)
days of the Tenants
exercise of its Right of First Refusal to Purchase. An otherwise valid exercise
of the Right
of
First Refusal contained in this Lease shall not be fully effective until such
confirmatory documentation is executed.
ii.
Each
and all Rights of First Refusal to Purchase are personal to Tenant
and may not be exercised
or
enjoyed by any other person. If the Lease or Tenant's right to possession
of the Leased Premises shall terminate in any manner whatsoever before Tenant
shall exercise a Right of First
Refusal to Purchase, then immediately upon such termination, Right
of
First
Refusal to Purchase shall simultaneously terminate and become null and void.
Under no circumstances
whatsoever shall a subtenant under a sublease of the Leased Premises have any
right
to
exercise a Right of First Refusal to Purchase granted in this
Lease.
e.
Tenant
shall have the option, after the expiration of ten (10) years from the
Commencement Date
of
this Lease, to buy-out Tenant's remaining obligations under this Lease.
If
Tenant
chooses to exercise this option, such buy-out shall be at commercially
reasonable
terms to be agreed upon by both Landlord and Tenant. After such option has
been
exercised,
Tenant shall have no
further obligations
to Landlord under this Lease.
-2-
3. RENT.
a. Rent.
Tenant hereby covenants and agrees to pay to Landlord as rent for the
Leased Premises (all of which is collectively referred to as "Rent") all of
the
following:
i.
Annual
basic rent ("Basic Rent") in the sum of Three Hundred Seventy
Two Thousand and No/100 Dollars ($372,000.00), payable in twelve (12) equal
monthly installments
of Thirty One Thousand and No/100 Dollars ($31,000.00), in advance on the first
day
of
each month during each calendar year during the Lease Term beginning on the
first day of the
calendar month eighteen (18) months from the Commencement Date which date shall
be entered
into this Section upon the establishment of the Commencement Date
here:
;
and,
ii.
Additional
rent ("Additional Rent") in the amount of any payment
referred to as such in any portion of this Lease which accrues while this Lease
is in effect
(which shall include any and all charges or other amounts which Tenant is
obligated to pay Landlord under this Lease, other than Basic Rent). Additional
rent shall be due and payable upon the
Commencement Date, and shall be prorated for any partial calendar month in
the
event the Commencement
Date does not fall on the first day of a calendar month. Only Basic Rent shall
be abated
for up to eighteen (18) months as set forth in Section 3(a) above.
b. Rent
Adjustment. Basic Rent shall be adjusted in each calendar year beginning
with 2010, as provided in Section 5 hereof.
c.
Method
of
Payment. Basic Rent and all Additional Rent as provided for under
this Lease 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
Platinum
Commercial Real Estate, Inc., and delivered to Platinum Commercial Real Estate,
Inc. at
its
offices at the address as stated in Section 26 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 Lease 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.
d.
Charge
for Late Payment. Other
remedies for non-payment of rent notwithstanding,
any installment of Rent which is not paid within ten (10) days after the due
date shall
be
subject, at Landlord's option each month, to a late charge equal to five percent
(5%) of the
amount due, which shall be payable as Additional Rent. Any installment of Basic
Rent or Additional
Rent not paid within thirty (30) days from the date due shall accrue interest
at
the rate of
eighteen (18%) percent per annum (but in no event higher than the maximum rate
allowed by law)
until paid in full, which interest shall be deemed Additional Rent.
e.
Partial
Payments. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installments of Rent herein stipulated shall be deemed
to be other than
on
account of the earliest stipulated Rent nor shall any endorsement or statement
on any check
or
any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction,
and Landlord may accept such check for payment without prejudice to Landlord's
right
to
recover the balance of such Rent or to pursue any other remedy provided in
this
Lease.
-3-
f.
Rent
Not
Based on Income. It is agreed by Landlord and Tenant that no Rent
for
the use, occupancy or utilization of the Leased Premises shall be, or is, based
in whole or in part on the net income or profits derived by any person from
the
Building, Project or the Leased Premises.
4. USE
OF LEASED PREMISES.
a.
Permitted
Uses. Tenant covenants to use the Leased Premises only for banking
purposes or professional office, subject to and in accordance with all
applicable zoning and
other
governmental regulations. Tenant, at its own expense, shall comply with and
promptly carry out all orders, requirements or conditions imposed by the
ordinances, laws and regulations of
all of
the governmental authorities having jurisdiction over the Leased Premises,
which
are occasioned
by or required in the conduct of Tenant's business within the Leased Premises
and to obtain
all licenses, permits and the like required to permit Tenant to occupy the
Leased Premises.
b.
As-Is
Condition. Upon
the
issuance of a Certificate of Occupancy, Tenant
accepts the Leased Premises and the rest of the Project from Landlord in "as
is"
condition, except
to
the extent specifically provided elsewhere in this Lease.
c.
Prohibited
Uses. Tenant shall not permit the Leased Premises, or any part thereof,
to be used for any unlawful or hazardous purpose, nor for any purpose other
than
herein before
specified, nor for the manufacture of any commodity therein, without the prior
written consent
of Landlord.
5. COST
OF LIVING ADJUSTMENT.
a.
Annual
Adjustment of Rent. Effective on the first day of each January beginning
with 2010, so long as this Lease remains in effect, the Basic Rent set forth
in
Section 3 shall
be
increase on an annual basis; and Tenant thereafter covenants to pay Landlord,
during each
ensuing calendar year, new adjusted Basic Rent in an amount which, in each
calendar year, is
equal
to that amount determined by multiplying the Basic Rent payable at the end
of
the preceding
year by a multiplier equal to the number one plus a fraction, the numerator
of
which shall
be
the difference in the Consumer Price Index ("CPI"), now
known
as the "United States Department
of Labor, Bureau of Labor Statistics, Consumer Price Index, U.S. City Average
for all
Urban
Consumers, Seasonally Adjusted, All items", between the month of December of
the
preceding
calendar year and the month of December of the year immediately prior to the
preceding
calendar year ("Base CPI"), and the denominator of which shall be such Base
CPI,
provided
that the new adjusted Basic Rent shall not exceed 105% of the prior year Basic
Rent.
b.
Payment
of Adjusted Rent. The resulting adjusted Basic Rent, shall be payable,
in equal monthly installments, each in advance, on the first day of each month
of the applicable
calendar year.
c.
Substitute
Adjustment Formula Determined by Arbitration. In the event the
CPI
is discontinued,
ceases
to
incorporate a significant number of
the
items now incorporated therein, or if a substantial change is made in such
CPI,
the parties hereto shall agree to a substitute formula
and if they are unable to agree, shall rely upon arbitration under the rules
of
the American
Arbitration Association then in effect to determine the analogous adjustment
formula.
-4-
6. OPERATING
EXPENSES AS ADDITIONAL RENT.
a.
Operating
Expenses Defined. The term "Operating Expenses" shall mean expenses
incurred by Landlord in connection with the operation, maintenance and repair
of
the Building
and the Project in the following categories: electricity, fuel, water, sewer,
gas, oil and other
utilities; security; pest control; cleaning of windows and exterior curtain
walls; landscaping and repair and maintenance of grounds; the cost, amortized
over its useful life or payback period, of
any
capital improvement made to the Project which is required under governmental
law
or regulation
that was not applicable to the Project at the time it was
constructed.
b.
During
the term of this Lease, Tenant shall pay as Additional Rent a percentage of
the
Operating Expenses for the Building and the Project.
i.
Tenant's
percentage of Operating Expenses for the Project shall be
calculated as follows: The Project's Operating Expenses shall be multiplied
by a
fraction equal to
the
Tenant's square footage of the Project, which square footage totals 15,500
square feet, divided
by the total square footage of the Project, which square footage totals 17,000
square feet.
c.
No
Reduction in Rent. Nothing contained in this Section shall be construed
at any time to reduce the Rent payable hereunder below the amount stipulated
in
Sections 3 and 5 of this Lease.
d.
Proration
and Adjustments for Partial Year. If the Commencement Date, Termination
Date or sooner termination of this Lease shall not coincide with the beginning
or end of
a
calendar year, then in computing the amount payable under this Section for
the
period between the commencement of the applicable year and the Termination
Date
or sooner termination
of this Lease, operating expenses incurred during Tenant's occupancy of the
Leased premises
shall be prorated as outlined in (i) above. Tenant's
obligation to pay Operating Expenses
under this Section 6 for the final period of the Lease (as well as for any
earlier period not
paid
as of the expiration or sooner termination of the Lease) shall survive the
expiration or sooner
termination of this Lease.
e.
Rights
Reserved to Require Monthly Installments. Landlord reserves the right,
throughout the Lease Term, to require that Tenant pay each month in advance,
as
Additional
Rent, one-twelfth of Landlord's estimate of Tenant's annual obligation under
this Section 6. Such payments shall in no way limit Tenant's annual obligation.
If the total of such monthly
installments paid is less than Tenant's total obligation, Tenant shall promptly
pay the difference upon receipt of Landlord's statement. Any overpayment shall
be credited to Tenant's obligation
for the next succeeding period.
7. REAL
ESTATE TAXES AS ADDITIONAL RENT
a.
Real
Estate Taxes Defined. The term "Real Estate Taxes" means all personal
and real property taxes, rates and assessments, general or special, levied
or
imposed with respect
to the Project and improvements constructed thereon (including all taxes, rates
and assessments,
general or special, levied or imposed for school, public betterment and/or
general or local
improvements). Reasonable expenses incurred by Landlord in obtaining or
attempting to obtain
a
reduction of any Real Estate Taxes shall be added to and included in the amount
of any such
Real
Estate Taxes. Real
Estate Taxes which are being contested by Landlord shall nevertheless
be included for purposes of the computation of the liability of Tenant; provided
however,
that in the event that
Tenant shall have paid any amount of Additional Rent pursuant to this
Section 7 and Landlord shall thereafter receive a refund of any portion of
any
Real Estate
-5-
Taxes
on
which
such payment shall have been based, Landlord shall pay to Tenant the appropriate
portion of such refund. Landlord shall have no obligation to contest, object
or
litigate the
levying or imposition of any Real Estate Taxes and may settle, compromise,
consent to, waive or
otherwise determine in its discretion any Real Estate Taxes without consent
or
approval of Tenant.
b.
During
the term of this Lease, Tenant shall pay as Additional Rent a percentage
of the Real Estate Taxes for the Project. Tenant's percentage of Real Estate
Taxes for the
Project shall be calculated as follows: The Project's Real Estate Taxes shall
be
divided by the total
amount of square feet of space to be leased, or leased, within the Project.
That
amount shall be
the
Real Estate Tax due per square foot of rentable space within the Project, and
Tenant's percentage
shall be equal to the square footage of the Leased Premises as set forth
in
Section 1 multiplied times the Real Estate Tax due per square foot of rentable
space within the Project.
c.
No
Reduction in Rent. Nothing contained in this Section 7 shall be construed
at any time to reduce the Rent payable hereunder below the amount stipulated
in
Sections
3 and 5 of this Lease.
d.
Certain
Increase Not Included. Tenant shall not be liable for any addition to the Real
Estate Taxes solely by. reason
of
Landlord's failure to pay Real Estate Taxes when due.
e.
Proration
of Adjustment for Partial Year. If the Commencement Date, Termination
Date or sooner termination of this Lease shall not coincide with the beginning
or end of
a Real
Estate Tax Year, then in computing the amount payable under this Section 7
for
the period
between the commencement of the applicable Real Estate Tax Year in question
and
the Termination
Date or sooner termination of this Lease, the amount that would have been due
from the
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 Project. Tenant's
obligation to pay Real Estate Taxes under this Section 7 for the final period
of
the Lease (as
well
as for any earlier period not paid as of the expiration or sooner termination
of
the Lease) shall
survive the expiration or sooner termination of this Lease.
f.
Rights
Reserved to Require Monthly Installments. Landlord reserves the right,
throughout the Lease Term, to require that Tenant pay each month in advance,
as
Additional
Rent, one-twelfth of Landlord's estimate of Tenant's annual obligation under
this Section 7. Such payments shall in no way limit Tenant's annual obligation.
If the total of such monthly
installments paid is less than Tenant's total obligation, Tenant shall promptly
pay the difference upon receipt of Landlord's statement. Any overpayment shall
be credited to Tenant's obligation
for the next succeeding period.
8. REPAIRS
AND MAINTENANCE
a.
Landlord's
Responsibility to Maintain and Repair. Subject
to the provisions
hereinafter contained with regard to damage by fire or other casualty, Landlord
agrees to
maintain the Leased Premises in good order and repair during the Lease Term,
unless damage thereto shall have been caused by the act or neglect of Tenant,
its agents, employees, contractors or
invitees, in which case, the same shall be repaired by and at the expense of
Tenant. If Tenant fails
to
make such repairs promptly, Landlord, at its option, may make such repairs
and
Tenant shall
pay
Landlord on demand Landlord's actual costs in making such repairs plus a fee
of
ten percent
(10%) to cover Landlord's overhead. Landlord shall not be liable to Tenant
for
any
-6-
damage
or
inconvenience and Tenant shall not be entitled to any abatement or reduction
of
Rent by
reason
of any repairs, alterations or additions made by Landlord under this Lease,
unless said repairs,
alterations or additions substantially impair Tenant's ability to conduct
business.
b.
Tenant's
Responsibility to Maintain and Repair. Tenant shall maintain all
non-structural portions of the interior of the Leased Premises in good repair
and condition, normal
wear and tear expected.
9. LANDLORD'S
OBLIGATIONS AND ACCESS RIGHTS
a.
Landlord
shall provide maintenance and landscaping to the Project and the
exterior of the improvements thereon. Landlord shall also be responsible for
garbage pickup and
janitorial services to the Project, excluding the interior of the Leased
Premises. Tenant
acknowledges
and agrees that Landlord shall not be liable in any way for any damage or
inconvenience
caused by the cessation or interruption of such services occasioned by fire,
accident,
strikes, necessary maintenance, alterations or repairs, or other causes beyond
Landlord's control
and Tenant shall not be entitled to any abatement or reduction of Rent by reason
thereof.
b.
Landlord's
Right to Access Service Lines. Landlord reserves the right to erect,
use, connect to, maintain and repair pipes, ducts, conduits, cables, plumbing,
vents and wires
in,
to and through the Leased Premises as and to the extent that Landlord deems
necessary or
appropriate for the proper operation and maintenance of the Project (including
the
servicing
of other
tenants in the Project) and the right at all times to transmit water, heat,
air-conditioning and electric
current through such pipes, ducts, conduits, cables, plumbing, vents and
wires.
10.
TENANT'S
AGREEMENTS
a.
Utilities.
Tenant shall pay its prorated share of utility costs, including electrical,
water, and sewer applicable to the Leased Premises, as well as all utilities
occasioned by
equipment such as telephones, televisions, security systems, and computers
with
high electrical consumption, including without limitation, the cost of
installing, servicing and maintaining any special or additional inside or
outside wiring or lines, meters or sub-meters, transformers,
poles, air conditioning costs, or the cost of any other equipment necessary
to
increase
or determine the amount or type of electricity or power available to the Leased
Premises.
b. Covenants
of Tenant. Tenant covenants and agrees:
i.
not
to
obstruct or interfere with the rights of other tenants, or those
having business with them, or conflict with the fire laws or regulations, or
with any insurance policy upon said Project or any part thereof, or with any
statutes, rules or regulations now
existing or subsequently enacted or established by the local, state or federal
governments and Tenant
shall be answerable for all nuisances caused by Tenant in the Project or on
the
approaches thereto;
ii.
not
to
place a load on any floor exceeding the floor load which such floor was designed
to carry in accordance with the plans and specifications of the Project, and
not
to install, operate or maintain in the Leased Premises any safe or heavy item
of
equipment except in such manner and in such location as Landlord shall prescribe
so as to achieve the proper distribution of weight;
-7-
iii.
not
to
strip, overload, damage or deface the Leased Premises, hallways,
stairways, elevators, parking facilities or other public areas of the Project,
or the fixtures
therein or used therewith;
iv.
not
to
suffer or permit any trade or occupation to be carried on or use
made
of the Leased Premises which shall be unlawful, noisy, offensive, or injurious
to any person
or
property, or such as to increase the danger of fire or affect or make void
or
voidable any insurance
on the Project, or which may render any increased or extra premium payable
for
such insurance, or which shall be contrary to any law or ordinance, rule or
regulation from time to time established by any public authority;
v.
not
to
place upon the interior or exterior of the Project, or any
window
or
any part thereof or door of the Leased Premises, any placard, sign, lettering,
window covering
or drapes, except such and in such place and manner as shall have been first
approved in writing
by Landlord, and to use Project standard signage on its suite entry door, which
shall be installed
at Tenant's cost; to park vehicles only in the area from time to time designated
by Landlord;
vi.
to
conform to all rules and regulations from time to time established
by the appropriate insurance rating organization and to all reasonable rules
and
regulations from time to time established by the Landlord;
vii.
to
be
responsible for the cost of removal of Tenant's bulk trash at
time
of move-in, during occupancy and move-out;
viii.
not
to
conduct nor permit in the Leased Premises either the generation, treatment,
storage or disposal of any hazardous substances and materials or toxic
substances
of any kind as described in any federal, state or local laws, ordinances or
regulations regarding
environmental or hazardous wastes, and Tenant shall prohibit its assignees,
sublessees, employees,
agents and contractors (collectively: "Permitees") from doing so; and Tenant
shall indemnify,
defend and hold Landlord and its agents harmless from all loss; costs,
foreseeable and unforeseeable,
direct or consequential; damages; liability; fines; prosecutions; judgments;
litigation;
and expenses, including but not limited to, clean-up cost, court costs and
reasonable attorneys' fees arising out of any violation of the provisions of
this Section by Tenant or its Permitees.
11. ALTERATIONS.
Tenant
shall not make any alterations, additions, or other improvement in or to the
Leased Premises or install any equipment of any kind that shall require any
alterations or additions or affect the use of the Project's water system,
heating system, plumbing system, air -conditioning
system, electrical system or other mechanical system, or install any telephone
antennae
on the roof, in the windows, or upon the exterior of the Project without the
prior written consent
of Landlord. If any such alterations or additions are made by Tenant without
Landlord's consent,
Landlord may correct or remove them and Tenant shall be liable for any and
all
costs and
expenses incurred by Landlord in the connection or removal of such work. All
plans and specifications
for any such work shall be prepared by Tenant at Tenant's expense and shall
thereafter
be submitted to Landlord for its review. Tenant or Tenant's contractor used
to
complete
such alteration or addition must evidence insurance coverage to include (a)
Worker's Compensation
Coverage and (b) Comprehensive General Liability and Property
Damage
-8-
insurance
in the amount of not less than One Million Dollars ($1,000,000.00) in the
aggregate. All
work
with respect to such alterations and additions shall be done in a good and
workmanlike manner
and diligently prosecuted to completion to the end that Leased Premises shall
at
all times be
a
complete unit except during the period necessarily required for such work.
Tenant shall not permit
a
mechanic's lien(s) to be placed upon the Leased Premises or the Project as
a
result of any
alterations or improvements made by it and agrees, if any such lien be perfected
on account of
the
act of Tenant, promptly to pay the same. If Tenant fails to discharge such
lien
within fifteen
(15) days of its perfection, then, in addition to any other right or remedy
of
Landlord, landlord
may, at its election, discharge the lien. Tenant shall pay on demand any amount
paid by Landlord for the discharge or satisfaction of any such lien, and all
attorneys' fees and other costs and expenses of Landlord incurred in defending
any such action or in obtaining the discharge of such
action or in obtaining the discharge of such lien, together with all necessary
disbursements in connection therewith. Tenant hereby expressly recognizes that
in no event shall it be deemed the
agent
of Landlord and no contractor of Tenant shall by virtue of its contract be
entitled to assert
any lien against the Leased Premises or Project. All alterations or additions
shall become a part
of
the realty and surrendered to Landlord upon the expiration or termination of
this Lease, unless Landlord shall at the time of its approval of such work
require removal or restoration on the part of Tenant as a condition of such
approval.
12.
HOLD
HARMLESS.
a.
Limitations
of Landlord's Liability. Except in the event of gross negligence
by Landlord or landlord's agents, Landlord shall not be liable for any damage
to, or loss
of,
property in the Leased Premises belonging
to
Tenant,
its employees, agents, visitors, licensees
or other persons in or about the Leased Premises, 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 Leased Premises, 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
Leased Premises or upon other portions of the Project of which the Leased
Premises are a
part,
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, Tenant's agents, employees, invitees
or
visitors, or of any
other
tenant of the Project. 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 Leased Premises
or in the Project through or under Tenant, for any injury, loss or damage to
the
Leased Premises or to any person or property occurring upon the Leased Premises
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
except in the event of gross negligence of Landlord.
b.
Tenant's
Indemnification of Landlord. Tenant covenants and agrees
to
save Landlord harmless and indemnified, and to defend Landlord from all loss,
damage, liability
or expense of any kind, including without limitation attorneys' fees and court
costs incurred,
suffered or claimed by any person whomsoever, or for any damage or injury to
any
persons
or property from any cause whatsoever, by reason of the use or occupancy by
Tenant, its agents,
employees, invitees or visitors of the Leased Premises, or of the Project unless
caused solely
by
the gross negligence of Landlord.
-9-
c.
Tenant
Solely Responsible for
Deliveries
to Tenant. It
is
understood that employees of Landlord are prohibited as such from receiving
any
packages or other
articles delivered to the Project for Tenant and that should any such employee
receive any packages
or articles, he or she in so doing shall be the agent of Tenant and not of
Landlord.
d.
The
provisions of this Section 12 shall survive the expiration or sooner
termination of the Lease Term.
13.
LIEN
ON TENANT'S PROPERTY.
To
protect Landlord in the event Tenant defaults hereunder, Tenant hereby grants
to
Landlord a continuing security interest for all Rent and other sums of money
becoming due hereunder
from Tenant, and upon all goods, wares, chattels, fixtures, furniture and other
personal property
of Tenant which are or may be located on the Leased Premises so long as any
Rent
or other
such sum from time to time owed to Landlord hereunder remains unpaid. Tenant
shall, on its
receipt of a written request therefore from Landlord, execute such financing
statements, continuation
statements and other instruments and as are necessary or desirable, in
Landlord's judgment,
to perfect such security interest.
14.
INSURANCE.
a.
Public
Liability Insurance. Tenant shall, at its cost and expense, obtain
and maintain at all times during the Lease Term, for the protection of Landlord
and Tenant,
Public Liability Insurance (Comprehensive General Liability or Commercial
General Liability)
including Contractual Liability Insurance, with a personal injury limit of
not
less than One
Million Dollars ($1,000,000) for injury or death to any one person and not
less
than Two Million
Dollars ($2,000,000) for injury and/or death to any number of persons for each
occurrence
and not less than Five Hundred Thousand Dollars ($500,000) property damage
coverage,
insuring against all liability of Tenant and its representative arising out
of
and in connection
with Tenant's use or occupancy of the Leased Premises. Landlord shall be named
as an
additional insured.
b.
Fire
and
Extended Coverage Insurance. Tenant shall, at its cost and
expense, obtain and maintain at all times during the Lease Term, fire and
extended coverage insurance
on the Leased Premises and its contents, including any leasehold improvements
made by Tenant, in an amount sufficient so that no co-insurance penalty shall
be
invoked in case of loss.
c.
Periodic
Increases of Coverage Limits. Tenant shall increase its insurance coverage,
as
required,
but not more frequently than each calendar year if, in the opinion of
Landlord or any mortgagee of Landlord, the amount of public liability and/or
property damage insurance
coverage at that time is not adequate.
d.
Insurance
Company Standards and Prior Notice of Change in Coverage.
All
insurance required under this Lease shall be issued by insurance companies
licensed
to do business in the jurisdiction where the Project
is located. Such companies shall have a policy holder 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
-10-
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 of any policy.
e.
Jeopardizing
Insurance by
Misuse
of
Leased
Premises Prohibited.
If any of Landlord's insurance policies shall be cancelled or cancellation
shall
be threatened
or the coverage thereunder reduced or threatened to be reduced in any way
because of the
use
of the Leased Premises or any part thereof
by Tenant or any assignee or subtenant of Tenant
or
by anyone Tenant permits on the Leased Premises, and if Tenant fails to remedy
the condition
within thirty (30) days after notice thereof, Landlord may at its option, either
terminate this
Lease or enter upon the Leased Premises 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
Leased Premises from such entry.
f.
Insurer
Not to Have Subrogation Rights. All policies covering real
or
personal property which either party obtains affecting the
Leased Premises 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
Lease, to the
extent of the injury or loss covered thereby assuming that any deductible shall
be deemed to be
insurance coverage.
15.
ASSIGNMENT
&
SUBLETTING.
Tenant
shall not assign, transfer, mortgage or encumber this Lease or sublet the Leased
Premises other
than to an entity affiliated with Tenant without obtaining the prior written
consent of Landlord,
nor shall any assignment or transfer of this Lease be effectuated by operation
of law or otherwise without the prior written consent of Landlord, which consent
shall not be unreasonably withheld
by Landlord. In the event that Tenant desires to assign this Lease, sublet
the
Leased Premises,
or permit occupancy or use of the Leased Premises or any part
thereof by another party or
parties, Tenant shall provide Landlord with thirty (30) days advance written
notice of Tenant's bona
fide
proposed assignment or subletting of all or any part of the Leased Premises.
The
consent
by Landlord to any assignment, transfer, or subletting to any party other than
Landlord shall not be construed as a waiver or release of Tenant from any
covenant or obligation under this Lease,
nor shall the collection or acceptance of Rent from any such assignee,
transferee, subtenant
or occupant constitute a waiver or release of Tenant from any covenant or
obligation contained
in this Lease, nor shall such assignment or subletting be construed to relieve
Tenant from
giving Landlord said thirty (30) days notice, nor from obtaining the consent
in
writing of Landlord
to any further assignment or subletting. In the event that Tenant defaults
hereunder, Tenant
hereby assigns to Landlord any and all rent due from any subtenant of Tenant
and
hereby authorizes
each such subtenant to pay said rent directly to Landlord. Without
limiting the generality
of the foregoing, if Landlord consents to an assignment
or sublease
pursuant to this Section
15,
Landlord
may
condition
its consent upon the entry by such transferee into an
agreement
(in form and substances satisfactory to Landlord) with Landlord, by which such
transferee
assumes all of Tenant's
obligations hereunder.
-11-
16.
LANDLORD'S
RIGHT OF ACCESS.
a.
Landlord's
General Right of Access. Landlord may, at any time during Tenant's
occupancy, during reasonable business hours and upon reasonable advance notice,
enter either
to
view the Leased Premises or to show the same to others, or to facilitate repairs
to the Project,
or to introduce, replace, repair, alter or make new or change existing
connections from any
fixtures, pipes, wires, ducts, conduits or other construction therein, or
remove, without being held
responsible therefore, placards, signs, lettering, window or door coverings
and
the like not expressly consented to by Landlord.
b.
Access
Through Floor Covering Permitted. If Tenant shall carpet over the
access panels of the under floor duct system in the floor of the Leased Premises
(if applicable),
Landlord is hereby authorized and permitted to cut such carpeting to reach
the
ducts in such panels in order to make any necessary connections therefrom to
service other parts of the Project.
Landlord shall have the carpeting restitched in a workmanlike manner and Tenant
agrees to
promptly reimburse Landlord for the cost of such cutting and restitching upon
demand therefore.
c.
Landlord's
Right to Show Leased Premises. Landlord may, during the last
one
hundred and twenty (120) days of the Lease Term, during reasonable business
hours and upon
reasonable advance notice enter the Leased Premises free from hindrance or
control of Tenant
to
show the Leased Premises to prospective tenants at times which shall not
unreasonably interfere with Tenant's business. If
Tenant
shall vacate the Leased Premises during the last month
of
the Lease Term, Landlord shall have the unrestricted right to enter the same
after Tenant's
moving to commence preparation for the succeeding tenant or for any other
purpose whatsoever,
without affecting Tenant's obligation to pay Rent for the full Lease
Term.
17.
FIRE
CLAUSE.
a.
General
Rights and Obligations in Case of Fire. In the event the Leased Premises
or any part thereof, the elevators, hallways, stairways or other approaches
thereto, becomes
damaged or destroyed by fire or other casualty from any cause so as to
render
said Leased
Premises and/or approaches unfit for use and occupancy, a just and proportionate
part of the
Rent
according to the nature and extent of the damage or injury to said Leased
Premises and/or
approaches, shall be suspended or abated until said Leased Premises and/or
approaches have been put in as good condition for use and occupancy as at the
time immediately prior to such damage
or
destruction. Landlord shall proceed, at its expense and as expeditiously
as
may
be
practicable,
to repair the damage, unless, because of the substantial extent of the damage
or
destruction,
Landlord should decide not to repair or restore the Leased Premises or the
Project, in which
event and at Landlord's sole option, Landlord may terminate this Lease forthwith
by giving
Tenant a written notice of its intention to terminate within ninety (90) days
after the date of
the
fire or other casualty. Landlord shall not be obligated to repair, restore
or
replace any fixture,
improvement, alteration, furniture or other property owned, installed or made
by
Tenant, all
of
which shall be repaired, restored or replaced by Tenant.
b. Notice
of
Damage to Leased Premises. Tenant shall immediately notify Landlord of any
damage to the Leased Premises caused by fire or any other casualty.
c. Landlord
Not Liable for Business Interruption.
No
damages,
compensation,
or claim shall be payable by Landlord for inconvenience, loss of business,
or
-12-
annoyance
arising from any repair or restoration of any portion of the Leased Premises
or
the Project.
Subject to the provisions of Section 17.1, Landlord shall diligently proceed
to
have such repairs
made promptly.
18.
CONDEMNATION
a.
Lease
Terminated by Substantial Condemnation. At
the
election of Tenant,
and in Tenant's sole discretion, this Lease shall be terminated and the Rent
shall be abated
to
the date of such termination upon condemnation of the Leased Premises, the
Project or any
part
thereof by any competent authority under right of eminent domain for any public
or quasi-public
use or purpose if said condemnation substantially impairs Tenant's ability
to
conduct business.
In case of any taking or condemnation, whether or not the Lease Term shall
cease
and terminate,
the entire award shall be the property of Landlord, and Tenant hereby assigns
to
Landlord
all right, title and interest in and to any such award. Tenant however, shall
be
entitled to
claim,
prove and receive in the condemnation proceeding such awards as
may
be
allowed for fixtures and other equipment installed by it, but only if such
awards shall be made by the court in addition
to (and shall in no manner whatsoever reduce) the award made by it to Landlord
for the land
and
improvements or part thereof so taken.
b.
Temporary
or Partial Condemnation. In the event of a temporary taking or condemnation
of
all or any part of the Leased Premises for any public or quasi-public use or
purpose,
this Lease shall be unaffected and Tenant shall continue to pay in full Basic
Rent and all Additional
Rent payable for any such period. In the event of any such temporary taking,
Tenant shall
be
entitled to claim, prove and receive the portion of the award for such taking
that represents
compensation for use or occupancy of the Leased Premises during the Lease Term,
and Landlord
shall be entitled to appear, claim, prove and receive the portions of the award
that represent
the cost of restoration of the Leased Premises and the use or occupancy of
the
Leased Premises
after the end of the Lease Term.
19.
DEFAULTS
AND REMEDIES.
a.
Events
of
Tenant Default. It is hereby mutually agreed that: (a) if Tenant shall
fail (i) to pay Rent or other sums which Tenant is obligated to pay by any
provision of this Lease,
when and as it is due and payable hereunder and without demand therefore, or
(ii) to keep and
perform each and every covenant, condition and agreement herein contained on
the
part of Tenant
to
be kept and performed; or (b) if Tenant shall abandon or evidence any intention
to abandon
all or any portion of the Leased Premises; or (c) if the estate hereby created
shall be taken
by
execution or other process of law; or (d) if Tenant shall (i) generally fail
to
pay Tenant's debts as such debts become due, (ii) become insolvent, (iii) make
an assignment for the benefit of creditors,
(iv) file, be the entity subject to, or acquiesce in a petition in any court
(whether or not filed
by
or against Tenant pursuant to any statute of the United States or any state
and
whether or not for a trustee, custodian, receiver, agent, or other officer
for
Tenant or for all or any portion of Tenant's
property) in any proceeding whether bankruptcy, reorganization, composition,
extension,
arrangement, insolvency proceedings, or otherwise, which is not dismissed within
180 days
of
filing; then, and in each and every case, from thenceforth and at all times
thereafter, at the sole option of Landlord, Landlord may exercise any or all
of
the below remedies:
i.
Terminate
this Lease, in which event Tenant shall immediately surrender
the Leased Premises to Landlord. If Tenant fails to do so, Landlord may without
notice and without prejudice to any other remedy Landlord may have, enter upon
and take possession of the
Leased Premises and expel or remove Tenant and its effects
without
being liable to
-13-
prosecution
or any claim for damages therefore; and Tenant shall indemnify Landlord for
all
loss and
damage which Landlord may suffer by reason of such termination whether through
the inability
to relet the Leased Premises or otherwise including any loss of Rent for the
remainder of
the
Lease
Term;
ii.
Terminate
this Lease, in which event Tenant's default should be considered
a total breach of Tenant's obligation under this Lease and Tenant immediately
shall become
liable for such damages for such breach, in an amount equal to the total of
(1)
costs of recovering
the Leased Premises; (2) the unpaid Rent earned as of the date of termination,
plus interest
thereon from the due date at a rate equal to eighteen percent (18%) per annum,
provided, however,
that such interest shall never exceed the highest lawful rate; and (3) all
other
sums of money
and
damage owing by Tenant to Landlord. Tenant's right of possession shall cease
and
terminate
and Landlord shall be entitled to the possession of the Leased Premises and
shall remove
all persons and property therefrom and reenter the same without further demand
of Rent or
demand
of possession of the Leased Premises, either with or without process of law
and
without
becoming liable to prosecution therefore, any notice to quit or intention to
reenter being hereby
expressly waived by Tenant;
iii.
Declare
the present worth (as of the date of such default) of the entire
balance of Rent for the remainder of the Lease Term to be due and payable,
and
collect such
balances in any manner not inconsistent with applicable law. For the purpose
of
this Section 19,
"present worth" shall be computed by discounting the entire balance to present
worth at a discount
rate equal to one (1) percentage point above the discount rate then in effect
at
the Federal
Reserve Bank nearest the location
of
the
Project;
and/or
iv. Pursue
any combination of such remedies and/or other remedy available to Landlord
on
account of such default under applicable law.
b.
In
the
event of any reentry or retaking of the Leased Premises by Landlord
and/or any termination of this Lease by Landlord, Tenant shall nevertheless
remain in all
events liable and answerable for the Rent to the date for such retaking, reentry
or termination and
Tenant shall also be and remain answerable in damages for the deficiency or
loss
of Rent as well
as
all related expenses which Landlord may thereby sustain in respect to the
balance of the Lease Term, and, in such case, Landlord reserves full power,
which is hereby acceded to by Tenant, to let said Leased Premises for the
benefit of Tenant, in liquidation and discharge, in whole
or
in part, as the case may be, of the liability of Tenant under the terms and
provisions of this
Lease, and such damages and related expenses, at the option of Landlord, may
be
recovered by it at the time of the retaking and reentry, or in separate actions,
from time to time, as Tenant's obligation
to pay Rent would have accrued if the Lease Term had continued, or from time
to
time as
said
damage and related expenses shall have been made more easily ascertainable
by
reletting of
the
Leased Premises, or such action by Landlord may, at the option of Landlord,
be
deferred until
the
expiration of the Lease Term, in which latter event the cause of action shall
not be deemed to have accrued until the date of the termination of the Lease
Term.
c.
Interpretation
of Agreement Under Bankruptcy Laws. The provisions of this Section 19 are
subject to the Bankruptcy Laws of the United States of America and the State
of
South
Carolina which may, in certain cases, limit the rights of Landlord to
enforce some of
the
provisions
of this Section in proceedings thereunder. To the extent that limitations exist
by virtue thereof,
the remaining provisions hereof shall not be affected thereby but shall remain
in full force
and
effect. The provisions of this Section 19 shall be interpreted in
a
manner which results in
a
termination of this Lease in each and every instance, and to the fullest extent
and at the
-14-
earliest
moment that such termination is permitted under the federal and state bankruptcy
laws, it being of prime importance to Landlord to deal only with tenants who
have, and continue to have, a
strong
degree of financial strength and financial stability.
d.
Application
of Rents After Reletting. All rents received by Landlord
in any
reletting after Tenant's
default shall be applied, first to the payment of such reasonable expenses
as Landlord may have incurred in recovering possession of the Leased Premises
and in reletting the same (including brokerage fees), second to the payment
of any reasonable costs and expenses
incurred by Landlord, either for making the necessary repairs (including fitting
up the space
for
such reletting) to the Leased Premises or in curing any default on the part
of
Tenant of any
covenant or condition herein, made binding upon Tenant. Any remaining rent
shall
then be applied
toward the payment of Rent due from Tenant, together with interest and penalties
as defined
in Section 3.4, and Tenant expressly agrees to pay any deficiency then
remaining. Landlord
shall in no event be liable in any way whatsoever (nor shall Tenant be entitled
to any set off) for Landlord's failure to relet the Leased Premises, and
Landlord, at its option, may refrain from
terminating Tenant's right of possession, and in such case may enforce against
Tenant the provisions
of this Lease for the full Lease Term.
20.
SUBORDINATION
CLAUSE.
Lease
Subordinate to Mortgages. This Lease shall be subject and subordinate at all
times to
the
lien of any mortgage or other encumbrances(s) which may now or which may at
any
time hereafter
be made upon the Project of which the Leased Premises is a part or any portion
thereof, or
upon
Landlord's interest therein. This clause shall be self operative, and no further
instrument of
subordination shall be required to effect the subordination of this
Lease.
Nonetheless,
in confirmation of such subordination, Tenant shall execute and deliver
such
further instrument(s) subordinating this Lease to the lien of any such mortgage
thereby, and Tenant
hereby appoints Landlord the attorney-in-fact of Tenant, irrevocably, to execute
and deliver
any such instrument(s) for Tenant. If the interests of Landlord under this
Lease
shall be transferred
by reason of foreclosure or other proceedings for enforcement of any mortgage
on
the Leased
Premises or Project, Tenant shall be bound to the transferee at the option
of
the transferee, under
the
terms, covenants and conditions of this Lease for the remaining Term, including
any extensions or renewals, with the same force and effect as if the transferee
were Landlord under this
Lease, and, if requested by such transferee, Tenant agrees to attorn to the
transferee as its landlord.
The holder of any mortgage encumbering the Project shall have the right,
unilaterally, at
any
time to subordinate fully or partially its mortgage or other security instrument
to this Lease on
such
terms and subject to such conditions as such holder may consider appropriate
in
its discretion.
Upon request Tenant shall execute and deliver an instrument confirming any
such
full or
partial subordination. Likewise, if the interests of the Landlord under this
Lease shall be transferred
by sale or any other voluntary action of Landlord, then Landlord agrees to
use
it's best efforts
to have such transferee attorn to Tenant as its tenant under this
Lease.
21.
SURRENDER
OF POSSESSION.
Upon
the
expiration or earlier termination of the Lease Term, Tenant shall surrender
the
Leased Premises
and all keys, gate cards, parking passes, security cards, and locks connected
therewith to Landlord
in good order and repair (ordinary wear and tear excepted). Subject to the
provisions of Section
1, any and all improvements, repairs, alterations and all other property
attached to, used in connection with or otherwise installed upon the Leased
Premises (i),
shall, immediately upon the
completion of the installation thereof, be and become Landlord's property
without payment
-15-
therefore
by Landlord, and (ii) shall be surrendered to Landlord upon the expiration
or
earlier termination
of the Lease Term, except that any machinery, equipment or fixtures installed
by
Tenant
and used in the conduct of the Tenant's trade or business (rather than to
service the Leased
Premises or any of the remainder of the Project generally) and all other
personalty of Tenant
shall remain Tenant's property and shall be removed by Tenant upon the
expiration or earlier
termination of the Lease Term, and Tenant shall promptly thereafter fully
restore any part
of
the
Leased Premises damaged by such installation or removal thereof.
22.
TENANT
HOLDING OVER.
If
Tenant
or any person claiming through Tenant shall not immediately surrender possession
of the
Leased Premises at the expiration or earlier termination of the Lease Term,
Landlord shall be entitled
to recover compensation for such use and occupancy at one hundred and fifty
percent (150%)
of
the Basic Rent and Additional Rent payable hereunder just prior to the
expiration or earlier
termination of the Lease Term. Landlord shall also continue to be entitled
to
retake or recover
possession of the Leased Premises as herein before provided in case of default
on the part of
Tenant, and Tenant shall be liable to Landlord for any loss or damage it may
sustain by reason of
Tenant's failure to surrender possession of the Leased Premises immediately
upon
the expiration
or earlier termination of the Lease Term. Tenant hereby agrees that all the
obligations of
Tenant
and all rights of Landlord applicable during the Lease Term shall be equally
applicable during such period of subsequent occupancy.
23. ESTOPPELS.
Tenant
shall, without charge therefore, at any time and from time to time, within
ten
(10) days
after request by
Landlord,
execute, acknowledge and deliver to Landlord a written estoppel certificate
certifying to Landlord, any mortgagee, assignee of a mortgagee, or any purchaser
of the
Project, or any other person designated by Landlord, as of the date of such
estoppel certificate:
(a) that Tenant is in possession of the Leased Premises: (b) that this Lease
is
unmodified
and in full force and effect (or if there have been modifications, that this
Lease is in full
force and effect as modified and setting forth such modification); (c) whether
or not there are then
existing any setoffs or defenses against the enforcement of any right or remedy
of Landlord, or
any
duty or obligation of Tenant hereunder (and, if so, specifying the same in
detail); (d) the amount
of
the Basic Rent and the dates through which Basic Rent and Additional Rent have
been paid;
(e)
that Tenant has no knowledge of any then uncured defaults on the part of
Landlord under
this Lease (or if Tenant has knowledge of any such uncured defaults, specifying
the same in
detail); (f) that Tenant has no knowledge of any even having occurred that
authorizes the termination
of this Lease by Tenant (or if Tenant has such knowledge, specifying the same
in
detail);
(g) the amount of any Security Deposit held by
Landlord;
and (h) such reasonable other information
requested by Landlord, such mortgagee, assignee of such mortgagee, such
purchaser or
such
other person. Failure to deliver the certificate within the ten (10) days after
request by Landlord
shall be conclusive upon Tenant for the benefit of Landlord and any successor
to
Landlord
that this Lease is in full force and effect and has not been modified except
as
may be represented
by the party requesting the certificate. If Tenant fails to deliver the
certificate within the
ten
(10) days after requested by Landlord, then by such failure Tenant shall
irrevocably constitute
and appoint Landlord as its attorney-in-fact to execute and deliver the
certificate to any third
party.
-16-
24.
MISCELLANEOUS
a.
Interpretation
of
"Tenant". The term "Tenant" shall include legal representatives,
successors and permitted assigns. All
covenants herein made binding upon Tenant
shall be construed to be equally applicable to and binding upon its agents,
employees and others
claiming the right to be in or on the Leased Premises or in the Project through
or under Tenant.
b.
Interpretation Generally. If more than one individual, firm, or corporation
shall join as Tenant, singular context shall be construed to be plural wherever
necessary and the covenants of Tenant shall be the joint and several obligations
of each party signing
as Tenant and when the parties signing as Tenant are partners, shall be the
obligation of the
firm
and of the individual members thereof.
c.
Gender
and Number. Feminine or neuter pronouns shall be substituted for
those
of the masculine form and the plural shall be substituted for the singular,
wherever the context
shall require. It is also agreed that no specific words, phrases or clauses
herein used shall be
taken
or construed to control, limit or cut down the scope or meaning of any general
word, phrases
or clauses used in connection therewith.
d.
No
Waiver. No waiver or breach of any covenant, condition or agreement
herein contained shall operate as a waiver of the covenant, condition or
agreement itself, or of any subsequent breach thereof.
e.
Nonrecourse
Against Landlord. Notwithstanding anything to the contrary
contained in this Lease, Tenant shall look only to Landlord's ownership in
the
Project for satisfaction of Tenant's remedies for the collection of a judgment
(or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder, and
no
other property or assets of the partners or principals of Landlord, disclosed
or
undisclosed, shall
be
subject to levy, execution or the enforcement procedure for the satisfaction
of
Tenant's remedies
under or with respect to this Lease, the relationship of Landlord and Tenant
hereunder or
Tenant's use or occupancy of the Leased Premises. No
personal liability or personal responsibility
is assumed by, nor shall at any time be asserted or enforceable against
Landlord, its partners
or its principals, or their respective heirs, legal representatives, successors
and assigns on account
of this Lease or any covenant, undertaking, or agreement of Landlord contained
herein. If
any
provision of this Lease either expressed or implied obligates Landlord not
to
unreasonably withhold
its consent or approval, an action for declaratory judgment or specific
performance shall be
Tenant's sole right and remedy in any dispute as to whether Landlord has
breached such obligation.
f.
No
Warranties Implied. TENANT
AND LANDLORD EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANOTHER KIND ARISING OUT
OF
THIS LEASE, AND THERE ARE NO WARRANTIES WHICH
EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
g.
Binding
Effect. This Lease shall be binding upon and shall inure to the benefit of
the
parties hereto and their respective heirs, personal representatives, successors
and
-17-
assigns.
This provision shall not be deemed to grant Tenant any right to assign this
Lease or sublet the Leased Premises or any part thereof other than as provided
in Section 15 hereof.
h.
Entire
Agreement; Amendment. It
is
understood and agreed by and between
the parties hereto that this Lease contains the final and entire agreement
between said parties, and that they shall not be bound by any terms, statements,
condition or representations, oral
or
written, express or implied, not herein contained. This Lease may not be
modified orally or
in any
manner other than by written agreement signed by the parties
hereto.
i.
Partial
Invalidity. Every agreement contained in this Lease is, and shall be construed
as a separate and independent agreement. If
any
term of this Lease of the application
thereof to any person or circumstances shall be invalid and unenforceable,
the
remaining provisions of this Lease, the application of such term to persons
or
circumstances other than those as to which it is invalid or unenforceable,
shall
not be affected.
j.
Force
Majeure. Whenever
a period of time is herein prescribed for action
to
be taken by either party to this Lease, neither shall be liable or responsible
for, and there shall
be
excluded from the computation for any such period of time, any delays due to
strikes, riots,
acts of God, shortages of labor or materials, war, governmental laws,
regulations, or restrictions,
or any other cause of any kind whatsoever which is beyond the reasonable control
of said
party.
k.
Agreement
Not Effective Until Executed by Landlord. The submission of
this
Lease to Tenant shall not be construed as an offer nor shall Tenant have any
rights with respect
thereto unless Landlord executes a copy of this Lease and delivers same to
Tenant.
1.
Tenant
to Cooperate with Project Lenders, et al. If, in connection with obtaining
financing for the Project (including syndications or sale/leasebacks), any
lender or ground
lessor shall request modifications to this Lease as a condition for such
financing, Tenant will
not
unreasonably withhold, delay, or defer its consent thereto, provided that such
modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect either
the leasehold interest hereby created or Tenant's use and enjoyment of the
Leased Premises.
m.
Time
of
Essence. All times, whenever stated in this Lease, are declared to
be of
the essence of this Lease.
n.
Enforcement
Expense. Tenant
and Landlord agree that all costs, including
reasonable attorney's fees, of any legal action or suit in law or equity arising
out of the mutual
covenants, promises and agreements of this Lease, shall be paid by the
unsuccessful party to
such
legal action, both prior to and on appeal.
o.
Counterparts.
This Agreement may be signed in counterparts, and when each
required signatory hereunder shall have signed an original copy of this
Agreement and delivered
same to the other party, all such signatures shall be taken collectively as
though each party
hereto had executed in full a single document, and same shall be binding and
of
full force and
effect.
p.
Titles
and Paragraph Headings. The titles and paragraph headings used herein
are for purposes of convenience only and are not to be considered substantive
in
matters of construction.
-18-
q.
Business
Days. If the final day of any period or any date of performance under
this Lease falls on a Saturday, Sunday or legal holiday, then the final day
of
the period or the
date
of performance shall be extended to the next day which is not a Saturday, Sunday
or legal
holiday
25. BROKERS.
Tenant
represents and warrants that it has not entered into any agreement with, or
otherwise had any dealings with, any broker or agent in connection with the
negotiation or execution
of this Lease which could form the basis of any claim by any such broker or
agent for a brokerage
fee or commission, finder's fee, or any other compensation of any kind or nature
in connection
herewith, and Tenant shall indemnify, defend and hold Landlord harmless from
and
against
any costs (including, but not limited to, court costs and attorneys' fees),
expenses, or liability
for commissions or other compensation claimed by any broker or agent other
than
those listed
above in this Section 25 with respect to this Lease which arises out of any
agreement or dealings,
or alleged agreement or dealings, between Tenant and any such agent or broker.
Landlord
agrees to pay said commission to those agents or brokers listed above in this
Section 25 in
accordance with a separate letter agreement.
26.
NOTICES
AND DEMANDS.
All
notices required or permitted hereunder shall be
deemed
to have been given if mailed in any United States Post Office by certified
or
registered mail,
postage prepaid, return receipt requested, or by express commercial courier,
addressed to Landlord
or Tenant respectively at the following addresses or to such other addresses
as
the parties
hereto may designate to the other in writing from time to time:
a. LANDLORD:
Platinum
Commercial Real Estate, Inc.
00
Xxxxxxxxxx
Xxxxxx
Xxxx Xxxxxx, XX 00000 Attn:
Xxxxxx Xxxxxxxx
b. TENANT:
The
Savannah Bank, N.A. P.
O. Xxx
000
Xxxxxxxx,
XX 00000
Attn:
G.
Xxxx Xxxx, Xx.
27.
JURISDICTION.
Tenant
hereby elects South Carolina for the purpose of service
of all notices, writs of summons, or other legal documents or process, in any
suit, action or
proceeding which Landlord or Tenant may undertake under this Lease. This Lease
shall be construed
and governed by the laws of the State of South Carolina. Should any provision
of
this Lease
and/or its
conditions be
illegal
or
not
enforceable
under the laws of said state, it or they shall
be
considered severable, and the Lease and its conditions shall remain in force
and
be binding
upon the parties hereto as though the said provision had never been
included.
-19-
28.
QUIET
ENJOYMENT.
Landlord
covenants and agrees that upon Tenant paying
the Rent and any other charges due and payable and observing and performing
all
the terms, covenants and conditions, on Tenant's part to
be
observed and performed, Tenant may peaceably
and quietly enjoy the Leased Premises hereby demised, subject, nevertheless,
to
the terms
and
conditions of this Lease and to any mortgages hereinbefore
mentioned.
29.
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 LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE LEASED PREMISES AND/OR ANY
CLAIM
OR INJURY OR DAMAGE, AND ANY STATUTORY REMEDY.
30.
PARKING.
While
Tenant is occupying the Leased Premises and is
not
in
default under
the
terms of this Lease, Tenant shall have the right to the use of parking spaces
in
the Project's parking area, without Additional Rent subject to rules and
regulations promulgated from time
to
time by Landlord. Nothing herein contained shall be construed to grant to Tenant
any estate
in
real property nor the exclusive right to a particular parking space, but rather
as a license only.
-20-
IN
WITNESS WHEREOF, Landlord
has hereunto set its hand and seal, or has caused its name to be hereunto
subscribed and Tenant has hereunto set its hand and seal, or has caused its
corporate name to be hereunto subscribed and its corporate seal to be hereunto
affixed and attested by its duly authorized officers, as the case may be, as
of
the day and year first above written.
WITNESSES:
LANDLORD:
Platinum
Commercial Real Estate, Inc.
/s/
Xxxxxx Xxxxxxxx
By:
Xxxxxx
Xxxxxxxx
President
WITNESSES:
TENANT:
THE
SAVANNAH BANK, N.A.
/s/
Xxxxxx X. Xxxxx
By:
Xxxxxx X. Xxxxx
Its:
Senior
Vice President
M:\RMD\.Leases\platinum
commercial real estate w cam.wpd
-21-
ADDENDUM
TO COMMERCIAL
LEASE AGREEMENT
This
addendum
to that certain
Commercial Lease Agreement ("Agreement") made
effective
May 3, 2004 by and between Platinum Commercial Real Estate, Inc.,
("Landlord")
and The Savannah
Bank, N.A,
("Tenant")
is made effective February 24, 2006.
Landlord
and Tenant hereby acknowledge and agree as follows:
1. The
design and construction details for the Leased Premises as documented
in
the
plans and specifications prepared by Xxxx Xxxxx Architect have been approved
by
Tenant, initialed and attached hereto as Exhibit A. The parties
have
agreed
upon those items which shall be considered "interior finish work"
and
included within the
$100,000.00 allowance
for interior finish as provided
for in Section 1 of the Agreement, and concurrently with the execution
of this Addendum, Tenant shall pay Landlord the sum of S216,000.00
as full payment of all amounts owed for changes to the
construction
of the Leased Premises and additional interior finish work.
2. The
Commencement Date shall be March 1, 2006.
3. The
Termination Date shall be February 28, 2026.
4. Section
2(b) is revised to reflect that the Lease may be extended until February 28,
2041 if all three 5-year renewals are exercised.
5. Sections
2(c) and 2(e) are hereby deleted.
6. The
first
sentence
of Section 2(d) is revised to state. "During
the term of this Lease,
Tenant shall have a right
of
first refusal ("Right of First Refusal to Purchase")
to purchase the Project based on an average appraised value as submitted
by two certified appraisers, one selected by Tenant and the other by
Landlord."
7.
The
Leased Premises, as defined in Section 1 of the Agreement, is hereby
modified
to include the entire square footage as shown on the revised floor plan attached
hereto as Exhibit A, which is 17,400 square feet.
8.
Section 3 of the Lease is revised as follows:
a.
Basic
Rent is revised to be Four Hundred
Seventeen Thousand
Six Hundred
and
no/
100 Dollars ($417,600.00) payable
in twelve (12) equal
monthly installments of
Thirty
Four Thousand Eight Hundred
and
no/100 Dollars
($34,800.00) in advance on the first day of each
month
commencing
October
1, 2007.
b. Subsection
3(a)(i) is hereby revised to reflect that March 1, 2006 is
the
Commencement Date.
-22-
9.
Landlord
hereby consents to the Tenant assigning all of
its
rights and obligations
under the Agreement to Harbourside Community Bank, a Federal Stock
Saving Bank. As a condition precedent to such consent to assignment,
The
Savannah
Bancorp. Inc.
shall
execute a
Lease
Guaranty
in the form attached
hereto as Exhibit B.
10. The
Savannah Bank, N.A. is released from all obligations under the Lease.
Executed
by Landlord and Tenant as of the date first above written:
|
WITNESS:
/s/
signature not legible
/s/
Xxxxx Xxxxxx
|
LANDLORD:
Platinum Commercial Real
Estate, Inc.
By:
/s/Xxxxxxx Xxxxxx
Its:
Xxxxxxx Xxxxxx,
President
|
| WITNESS:
/s/
Xxxxxx X. Xxxx
/s/
Xxxxx Xxxxx
|
TENANT:
The Savannah Bank, N.A.
By: /s/Xxxxxx X. Xxxxx
Its: Senior Vice
President
|
-23-
EXHIBIT A
Figure
6:
First floor plan graphical layout
(1)
EXHIBIT
A
Figure
7:
Second floor plan graphical layout
(2)
EXHIBIT
"B"
LEASE
GUARANTY
THIS
LEASE
GUARANTY
is
made
effective February 6, 2006, by
THE SAVANNAH BANCORP, INC.,
a
Georgia corporation having an address of 00 Xxxx Xxxxxx, Xxxxxxxx, XX 00000
("Guarantor')
and PLATINUM
COMMERCIAL REAL ESTATE, INC.,
000
Xxxxx
Xxxx Xxxx, Xxxx X, Xxxxxx Xxxx Xxxxxx,
Xxxxx
Xxxxxxxx 00000, a South Carolina corporation ("Landlord").
WHEREAS,
Harbourside Community Bank ('Tenant") has been assigned all rights and
obligations as the Tenant under that certain
Commercial
Lease
Agreement with Landlord dated May 3, 2004, the terms and conditions of which
are
incorporated herein as if restated verbatim; and,
WHEREAS,
the Guarantor is a shareholder of the Tenant, and Guarantor agreed to guaranty
Tenant's
performance under the
Commercial Lease Agreement
in consideration
of Landlord's
consent to the assignment
to
Tenant.
NOW,
THEREFORE, in
consideration
of the terms
and
conditions set forth herein, and of Landlord’s consent, to the assignment of the
Commercial Lease Agreement to Tenant, the legal sufficiency of which both
parties expressly acknowledge, the parties agree as follows:
Section
1.
Consideration.
The
consideration for this continuing and unconditional guaranty is the Landlord's
consent to the assignment of the Commercial Lease Agreement to the Tenant.
Far
the consideration described in the preceding sentences and for other good and
valuable consideration, the Guarantor does hereby unconditionally guarantee
to
the Landlord, its successors, heirs and assigns, the full performance of terms,
conditions and obligations of the Commercial Lease Agreement of the Tenant,
Guarantor agrees that upon any default of the Tenant in any obligation under
the
Commercial Lease Agreement or in payment of any amount due to Landlord under
the
Commercial Lease Agreement, the Guarantor will cure such breach or pay to the
Landlord, upon demand, all amounts owed to the Landlord by the Tenant under
the
Commercial Lease Agreement, or otherwise perfect the performance of all
obligations, terms and conditions of the Commercial Lease Agreement.
Section 2. Landlord's
Rights in Dealing with Tenant.
The
Guarantor consents to any and all modifications of terms and extensions of
time
for the payment of sums due to the Landlord under the Commercial Lease
Agreement. The Guarantor authorizes the Landlord, without notice or demand
and
without affecting his liability hereunder, from time to time to renew,
compromise, extend, accelerate or otherwise change the terms of the Commercial
Lease Agreement. The Guarantor further waives: (a) presentment and demand for
payment of any rent of theTenant, (b) protest and notice of dishonor or default
with respect to any rent of the Tenant, (c) all other notices to which the
Guarantor might otherwise be entitled, and (d) any demand for payment or
performance under this Guaranty.
Section
3.
Waiver
of Acceptance of/or Reliance on Guaranty.
This
Guaranty shall take effect when signed by
the
Landlord and
the
Guarantor hereby waives any requirement of acceptance or reliance by the
Landlord.
Section
4. Effect
of
Certain
Events. Without
limiting the generality of say other provisions hereof, this Guaranty shall
remain in full force and effect and shall not be in any way affected by nor
shall the Guarantor be exonerated or the Guarantor's liabilities and obligations
discharged in whole or in part by any of the following events; (a) any merger,
acquisition, consolidation or change in structure of the Tenant or any sale,
lease, transfer or other disposition of any or all of the assets or capital
stock of the Tenant; (b) any claim, defense, counterclaim or setoff which the
Tenant may have or assert; or (c) any action by the Landlord which impairs
collateral or limits any rights of the Guarantor to seek subrogation,
reimbursement, contribution or indemnity against, or recourse to, the Tenant
or
any other person with respect to payments made by the Guarantor pursuant to
this
guaranty, including but not limited to any failure by the Landlord to perfect
a
security interest in any collateral or relating to the Landlord's custody and
preservation of collateral.
Section
5. Subordination of Guarantor's Rights.
In the
event of the payment by the Guarantor to the
Page
1 of 3
Landlord
of any amount whatsoever and the resultant subrogation of the Guarantor to
the
rights of the Landlord
by reason of
such
payment.
The
amount
of
the remaining rent of the Tenant to the Landlord after the
payment by the
Guarantor pursuant
to
this
Guaranty shall have priority over any claim that the Guarantor
may
have
against the Tenant, whether or not the Tenant is at such time or thereafter
becomes insolvent. The Guarantor
further expressly
subordinates any claim against
the Tenant upon any account whatsoever to any claim that
the
Landlord may have against the Tenant at any time and for any
reason.
Section
6. Guarantor's
Familiarity with Tenant.
The
Guarantor hereby acknowledges that the Guarantor is making this Guaranty at
the
Tenant’s request based solely on his familiarity with and independent
investigation of the Tenant's financial condition, affairs and circumstances
and
not in reliance upon any investigation or knowledge of the Landlord. The
Guarantor represents that the Guarantor is fully aware of such conditions,
affairs and circumstances and acknowledges that as between the Guarantor and
the
Landlord, the Guarantor will have full responsibility to become informed as
to
any changes in such condition, affairs and circumstances. The Guarantor hereby
waives any duty on the part of the Landlord, and acknowledges that the Guarantor
is not relying upon and is not expecting the Landlord, to disclose to the
Guarantor any fact now or hereafter known by the Landlord relating to such
condition, affairs or circumstances.
Section
7. Enforceability
of Guaranty Not Conditional.
The
enforceability of this Guaranty is not conditioned upon
any
other
person or entity also guarantying the performance of the Tenant to the Landlord
or upon
any
other
act to be performed by the Landlord or Tenant or any other person or entity
as a
condition to
the
full enforceability of this Guaranty.
Section
8.
Duration
of
Guaranty. This
Guaranty shall continue during the term as may be extended of
the
Commercial Lease Agreement and shall continue in full force and effect until
terminated by written notice
of
termination of the Commercial Lease Agreement delivered by the Landlord by
mail.
Section
9. Writing
Required.
Guarantor understands and agrees that this Guaranty cannot be waived, abandoned,
terminated, released or modified in any way by the Landlord except in writing
signed by an authorized agent of the Landlord. Guarantor further understands
and
agrees that the Guarantor cannot rely in any respect upon any oral statements
or
representations relating to this Guaranty and hereby warrants that the Guarantor
has not so relied.
Section
10. Waiver.
Any
waiver of a provision of this Guaranty must be in writing signed by the
party
waiving
its rights and shall apply only in the specific instance and for the specific
purpose given. The giving
of
a
waiver in one instance or for one purpose shall not create any implied
obligation to give a waiver in another instance or for another
purpose.
Section
11. Not
Affected by Bankruptcy Code.
The
Guarantor agrees that this Guaranty shall remain
in
full
force
and
effect notwithstanding
any action
by
or against the Landlord or concerning any collateral which
is
secured to the Landlord in connection with the Indebtedness of the Tenant in
any
proceeding in the United
States Bankruptcy Court including, but not limited to; (a) matters relating
to
valuation of collateral; (b) election or imposition of secured or unsecured
claim status upon claims by the Landlord; or (c) confirmation of any
reorganization plan or other payment plan pursuant to any Chapter of the
Bankruptcy Code. In the event any payment received upon this obligation and
paid
by any person or entity including the Guarantor shall be deemed by final order
of a court to have been a voidable preference under the bankruptcy laws of
the
United States, or a court otherwise declares that the Landlord is not entitled
to retain any such payment for any reason, the obligation of the Guarantor
shall
remain as an obligation due hereunder and shall not be considered as having
been
extinguished by said payment or payments notwithstanding any purported
cancellation of this Guaranty by the Landlord or return of this Guaranty by
the
Landlord to the Guarantor.
Section
12.
Guarantor's
Direct Benefit.
The
Guarantor hereby represents and warrants that it is the Guarantor's direct
interest to assist the Tenant because of the undersigned's interest(s) in and
relationship(s) with the Tenant.
Section
13. Governing
Law.
This
Guaranty shall be construed and governed by the laws of the State of South
Carolina. Should any provision of this Guaranty be unenforceable under the
laws
of South
Page
2 of 3
Carolina,
such condition shall be considered
severable, and
the
remaining terms of
the
Guaranty shall
remain in
force
and be binding upon the parties hereto.
Section 14. Attorney's
Fees.
In
the
event
either party must
commence
legal action to enforce
the
terms
of
this
Guaranty, the unsuccessful party to such legal action, arbitration, mediation,
lawsuit, or other such legal
action shall pay all costs incurred by the successful party to such action,
including reasonable attorney's
fee
and
court costs both prior to and on appeal.
IN
WITNESS
WHEREOF, the
Parties have set their Hands and Seals the date first above
written.
|
WITNESSES:
/s/ Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxx
|
GUARANTOR:
THE SAVANNAH BANCORP, INC.
/s/
Xxxxx Xxxxx SVP
By:
Xxxxx Xxxxx
Its
Senior Vice President
|
|
WITNESSES:
/s/ Signature not legible
/s/ Xxxxx Xxxxxx
|
APPROVED:
PLATINUM COMMERCIAL
REAL ESTATE, INC.
/s/ Xxxxxx Xxxxxxx
By: Xxxxxx Xxxxxxxx, Its Vice
President
|
Page
3
of
3
