<PAGE> 1
As filed with the SEC on October 13, 1999
Registration No. 333-83851
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
AMENDMENT NO. 2
FORM SB-2
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------------
GREENVILLE FIRST BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
South Carolina 6021 58-2459561
--------------------------- ------------------ ----------
(State or other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
1805 Laurens Road
Greenville, South Carolina 29607
(864) 241-7806
(Address and Telephone Number of Intended Principal Place of Business)
----------------------------
R. Arthur Seaver, Jr.
Chief Executive Officer
1805 Laurens Road
Greenville, South Carolina 29607
(864) 241-7806
(Name, Address, and Telephone Number of Agent For Service)
----------------------------
Copies of all communications, including copies of
all communications sent to agent for
service, should be sent to:
<TABLE>
<S> <C>
Neil E. Grayson, Esq. Boyd C. Campbell, Jr., Esq.
C. Russell Pickering, Esq. Smith Helms Mulliss & Moore, L.L.P.
J. Brennan Ryan, Esq. 201 North Tryon Street
Nelson Mullins Riley & Scarborough, L.L.P. 30th Floor
999 Peachtree Street, N.E., Suite 1400 Charlotte, North Carolina 28202
Atlanta, Georgia 30309 (704) 343-2000
(404) 817-6000 (704) 334-8467 (Fax)
(404) 817-6225 (Fax)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this Registration Statement becomes effective.
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of 1933, check the
following box and list the Securities Act of 1933 registration statement number
of the earlier effective registration statement for the same offering. [ ]
___________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [ ] ___________________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [ ] ___________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, check the following box. [ ]
--------------------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value.... 1,380,000 $10.00 $13,800,000 $3,836*
</TABLE>
* Previously paid
- -------------------------------------------------------------------------------
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to such Section 8(a),
may determine.
<PAGE> 2
PART II
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Item 24. Indemnification of Directors and Officers
Greenville First Bancshares' articles of incorporation contain a
provision which, subject to certain limited exceptions, limits the liability of
a director to Greenville First Bancshares or its shareholders for any breach of
duty as a director. There is no limitation of liability for: a breach of duty
involving appropriation of a business opportunity of Greenville First
Bancshares; an act or omission which involves intentional misconduct or a
knowing violation of law; any transaction from which the director derives an
improper personal benefit; or as to any payments of a dividend or any other
type of distribution that is illegal under Section 33-8-330 of the South
Carolina Business Corporation Act of 1988 (The "Corporation Act"). In addition,
if at any time the Corporation Act shall have been amended to authorize further
elimination or limitation of the liability of director, then the liability of
each director of Greenville First Bancshares shall be eliminated or limited to
the fullest extent permitted by such provisions, as so amended, without further
action by the shareholders, unless the provisions of the Corporation Act
require such action. The provision does not limit the right of Greenville First
Bancshares or its shareholders to seek injunctive or other equitable relief not
involving payments in the nature of monetary damages.
Greenville First Bancshares' bylaws contain certain provisions which
provide indemnification to directors that is broader than the protection
expressly mandated in Sections 33-8-510 and 33-8-520 of the Corporation Act. To
the extent that a director or officer has been successful, on the merits or
otherwise, in the defense of any action or proceeding brought by reason of the
fact that such person was a director or officer, Sections 33-8-510 and 33-8-520
of the Corporation Act would require Greenville First Bancshares to indemnify
those persons against expenses (including attorney's fees) actually and
reasonably incurred in connection with that action or proceeding. The
Corporation Act expressly allows Greenville First Bancshares to provide for
greater indemnification rights to its officers and directors, subject to
shareholder approval.
Insofar as indemnification for liabilities arising under the
Corporation Act may be permitted to directors, officers, and controlling
persons in the articles of incorporation or bylaws, or otherwise, we have been
advised that in the opinion of the SEC for matters under the securities laws,
such indemnification is against public policy as expressed in the Corporation
Act and is, therefore, unenforceable.
The board of directors also has the authority to extend to officers,
employees and agents the same indemnification rights held by directors, subject
to all of the accompanying conditions and obligations. The board of directors
has extended or intends to extend indemnification rights to all of its
executive officers.
We have the power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent against any
liability asserted against him or incurred by him in any such capacity, whether
or not we would have the power to indemnify him against such liability under
the bylaws.
II-1
<PAGE> 3
Item 25. Other Expenses of Issuance and Distribution.
Estimated expenses (other than underwriting commissions) of the sale
of the shares of common stock are as follows:
<TABLE>
<S> <C>
Registration Fee $ 3,836
NASD Filing Fee 1,880
Printing and Engraving 25,000
Legal Fees and Expenses 40,000
Accounting Fees 5,000
Blue Sky Fees and Expenses 15,000
Miscellaneous Disbursements 15,284
----------
TOTAL $ 106,000
==========
</TABLE>
Item 26. Recent Sales of Unregistered Securities.
From inception, Greenville First Bancshares has issued a total of 10
shares of its common stock to one of its organizers. The price per share was
$10.00 for a total purchase price of $100.00. There were no underwriting
discounts or commissions paid with respect to these transactions. These shares
will be redeemed at $10.00 per share after the offering. All sales were exempt
under Section 4(2) of the Securities Act of 1933.
<TABLE>
<CAPTION>
Item 27. Exhibits.
<S> <C>
1. Form of Underwriting Agreement between Greenville First Bancshares and
Wachovia Securities*
3.1. Articles of Incorporation, as amended*
3.2. Bylaws*
4.1. See Exhibits 3.1 and 3.2 for provisions in Greenville First
Bancshares's Articles of Incorporation and Bylaws defining the rights
of holders of the common stock*
4.2. Form of certificate of common stock*
5.1. Opinion Regarding Legality*
10.1. Employment Agreement dated July 27, 1999 between Greenville First
Bancshares and Art Seaver*
10.2. Form of Lease Agreement between Greenville First Bank and Halton
Properties, LLC, formerly Cothran Properties, LLC
10.3 Data Processing Services Agreement dated June 28, 1999 between
Greenville First Bancshares and the Intercept Group*
10.4 Form of Stock Warrant Agreement*
10.5 Promissory Note dated February 22, 1999 from Greenville First
Bancshares, Inc. in favor of John J. Meindl, Jr.*
23.1. Consent of Independent Public Accountants*
23.2. Consent of Nelson Mullins Riley & Scarborough, L.L.P. (appears in its
opinion filed as Exhibit 5.1)*
24.1. Power of Attorney (filed as part of the signature page to the
Registration Statement)*
27.1. Financial Data Schedule (for electronic filing purposes)*
</TABLE>
* Previously filed
II-2
<PAGE> 4
Item 28. Undertakings.
The undersigned Company will:
(a)(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration
statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the registration statement; and
(iii) Include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act of 1933,
treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of Greenville First Bancshares pursuant to the provisions
described in Item 24 above, or otherwise, Greenville First Bancshares has been
advised that in the opinion of the SEC for matters under the securities laws,
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
If a claim for indemnification against such liabilities (other than
the payment by Greenville First Bancshares of expenses incurred or paid by a
director, officer or controlling person of Greenville First Bancshares in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities
being registered, Greenville First Bancshares will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of
Greenville, State of South Carolina, on October 12, 1999.
GREENVILLE FIRST BANCSHARES, INC.
By: /s/ R. Arthur Seaver, Jr.
----------------------------
R. Arthur Seaver, Jr.
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints R. Arthur Seaver, Jr. and he is the true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
*
- ------------------------------------
Andrew B. Cajka Director October 12, 1999
*
- ------------------------------------
Mark A. Cothran Director October 12, 1999
*
- ------------------------------------
Leighton M. Cubbage Director October 12, 1999
*
- ------------------------------------
Tecumseh Hooper, Jr. Director October 12, 1999
*
- ------------------------------------
Rudolph G. Johnstone, III, M.D. Director October 12, 1999
*
- ------------------------------------
Keith J. Marrero Director October 12, 1999
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
*
- ------------------------------------
James B. Orders, III Director, Chairman October 12, 1999
*
- ------------------------------------
William B. Sturgis Director October 12, 1999
/s/ R. Arthur Seaver, Jr.
- ------------------------------------
R. Arthur Seaver, Jr. Director, Chief Executive October 12, 1999
Officer and President
(principal executive officer)
(principal financial
and accounting officer)
*
- ------------------------------------
Fred Gilmer, Jr. Director, Senior Vice President October 12, 1999
/s/ R. Arthur Seaver, Jr.
- ------------------------------------
* As Attorney-in Fact
</TABLE>
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
1. Form of Underwriting Agreement between Greenville First Bancshares and
Wachovia Securities*
3.1. Articles of Incorporation, as amended*
3.2. Bylaws*
4.1. See Exhibits 3.1 and 3.2 for provisions in Greenville First
Bancshares's Articles of Incorporation and Bylaws defining the rights
of holders of the common stock*
4.2. Form of certificate of common stock*
5.1. Opinion Regarding Legality*
10.1. Employment Agreement dated July 27, 1999 between Greenville First
Bancshares and Art Seaver*
10.2. Form of Lease Agreement between Greenville First Bank and Halton
Properties, LLC, formerly Cothran Properties, LLC
10.3 Data Processing Services Agreement dated June 28, 1999 between
Greenville First Bancshares and the Intercept Group*
10.4 Form of Stock Warrant Agreement*
10.5 Promissory Note dated February 22, 1999 from Greenville First
Bancshares, Inc. in favor of John J. Meindl, Jr.*
23.1. Consent of Independent Public Accountants*
23.2. Consent of Nelson Mullins Riley & Scarborough, L.L.P. (appears in its
opinion filed as Exhibit 5.1)*
24.1. Power of Attorney (filed as part of the signature page to the
Registration Statement)*
27.1 Financial Data Schedule (for electronic filing purposes)*
</TABLE>
* Previously filed
<PAGE> 1
EXHIBIT 10.2
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter this "Lease Agreement") is made and
entered into as of the _______ day of __________________, 19___, by and between
COTHRAN PROPERTIES, LLC, hereafter called the "Lessor" and GREENVILLE FIRST
BANK, N.A., hereafter called the "Lessee".
W I T N E S S E T H:
For and in consideration of the rent provided herein and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree for
themselves. their successors and assigns, as follows:
ARTICLE I
GRANT AND TERM
1.01 DESCRIPTION OF PREMISES. Lessor hereby leases to Lessee, and Lessee
hereby accepts and rents from Lessor, that certain Building commonly known as
the "Leased Premises" containing approximately 10,000 square feet, located at
the corner of Haywood Rd. and Halton Rd. situated in Greenville County, South
Carolina, and more fully described on the site plan as EXHIBIT 1 attached
hereto and incorporated herein by reference. The Leased Premises is more
particularly shown and outlined in the Building plans attached hereto as
EXHIBIT 2 and EXHIBIT 3 (the specifications) incorporated herein by reference.
1.02 TERM. The period beginning upon the execution of this Lease Agreement
and continuing until the occupancy date shall be hereinafter referred to as the
"Initial Term." The twenty (20) year period beginning on the first day of the
first complete calendar month following the occupancy date (the "Lease
Commencement Date") shall be hereinafter referred to as the "Base Term." Every
twelve (12) calendar month period following the Lease Commencement Date shall
constitute a lease year.
An Addendum shall be executed by Lessor and Lessee prior to occupancy
of the space by Lessee giving the Rental Commencement Date of the Base Term
hereof and shall be attached hereto and incorporated herein by reference.
1.03 RENEWAL OPTION. Providing Lessee has not defaulted in the performance
of any condition of this Lease Agreement, Lessee shall have the option to
extend the term of this Lease Agreement for three (3) additional periods of
five (5) years from the expiration date of the Base Term (the "Renewal Term"),
provided however that written notice is given Lessor of such intention to
extend the Lease Agreement one hundred eighty (180) days prior to the
expiration date, and further provided that all conditions of said Lease
Agreement except the rental rate which shall be adjusted as provided herein
shall continue in full force and effect for the period of such extension, and
there shall be no privilege to extend the terms of this Lease Agreement for any
period of time beyond the expiration of the agreed upon extended terms.
1
Lessor_____ Lessee_____
<PAGE> 2
1.04 CONSTRUCTION OF PREMISES. Prior to the Rental Commencement Date (as
defined in Paragraph 2.01), Lessor, at Lessor's sole expense, shall construct
improvements to the Leased Premises substantially in accordance with the floor
plan (hereinafter the "Floor Plan") included herein as EXHIBIT 2 and
specifications (hereinafter the "Specifications") included herein as EXHIBIT 3
(collectively defined as the "Improvements"). Lessee shall bear any expense in
excess of Improvements specified in the within referenced Floor Plan and
Specifications together with an additional charge of twenty percent (20%) of
such excess to cover Lessor's overhead, by payment to Lessor prior to
commencement of such work. All improvements made to the Leased Premises shall
be the property of the Lessor during the term of this Lease Agreement and shall
remain the property of Lessor upon termination of this Lease Agreement. Lessor
will use its best efforts to have the space completed within three hundred
(300) days of the full execution of the Lease Agreement.
1.05 OCCUPANCY: LEASE COMMENCEMENT DATE. There shall be no delay in the
commencement of the Term of this Lease Agreement and/or payment of the rent.
The Leased Premises shall be ready for occupancy on such date that the
improvements are substantially completed which shall be defined as either (i)
the supervising architect certifies the Improvements have been substantially
completed in accordance with the Floor Plan and Specifications and a
Certificate of Occupancy has been issued, or, (ii) the Improvements have been
substantially completed in accordance with the Floor Plan and Specifications
and a Certificate of Occupancy has not been issued where Lessee causes a delay
in preparing the Leased Premises for occupancy by changing the Floor Plan and
Specifications, fails to make other decisions necessary for preparation of the
Leased Premises for occupancy, Lessee fails to complete work Lessee has
contracted for that is necessary for issuance of a Certificate of Occupancy or
the date of occupancy by Lessee.
If Lessor fails to have the Leased Premises ready for occupancy by the
scheduled Lease Commencement Date, then (i) the Lease Commencement Date shall
be extended to the date five (5) days after Lessor shall notify Lessee that the
Leased Premises are ready for occupancy (ii) neither Lessor nor Lessors agent,
officers, employees, or contractors shall be liable for any damage, loss,
liability or expense caused thereby, (iii) nor shall this Lease Agreement
become void or voidable (unless such failure continues for more than one
hundred eighty (180) days, in which case Lessee may, upon twenty (20) days
written notice to Lessor, terminate this Lease). Prior to occupying the Leased
Premises, Lessee shall execute and deliver to Lessor, a letter, in form and
substance satisfactory to Lessor in its sole discretion, acknowledging the
Lease Commencement Date and certifying that the Improvements have been
completed and that Lessee has examined and accepted the Leased Premises. Lessee
hereby authorizes any agent or employee who receives the keys to the Leased
Premises on behalf of Lessee to execute and deliver such letter. Lessee shall
conclusively be deemed to have made such acknowledgment and certification by
occupying the Leased Premises.
ARTICLE II
RENT
2.01 RENT. Beginning on the Rental Commencement Date (as hereinafter
defined) and continuing throughout the full term of this Lease Agreement,
Lessee shall pay to Lessor
2
Lessor_____ Lessee_____
<PAGE> 3
without notice, demand, reduction, abatement, set off or any defense, minimum
base rent (the "Base Rent") in equal monthly installments, in advance, on or
before the first day of each month. Lessee's obligation to begin the payment of
Base Rent shall be the "Rental Commencement Date" which shall be the first
business day following the date on which (a) the supervising architect
certifies that Lessor has substantially completed construction of the Leased
Premises in accordance with the Floor Plan and Specifications in EXHIBIT 2 AND
EXHIBIT 3 attached hereto or (b) the date of occupancy by the Lessee, whichever
is sooner. If the Rental Commencement Date is a date other than the first day
of a calendar month, the Base Rent shall be prorated daily from such date to
the first day of the next calendar month and paid on the Rental Commencement
Date.
a. INITIAL TERM. During the Initial Term, Lessee shall not be
required to pay Rent.
b. BASE TERM. The rent during the first five (5) years of the
Base Term shall be as follows: ---------
<TABLE>
<CAPTION>
ANNUAL MONTHLY
------ -------
<S> <C> <C>
Year 1: $200,000.00 $16,666.67
Year 2: $206,900.00 $17,166.67
Year 3: $212,180.00 $17,681.67
Year 4: $218,545.00 $18,212.08
Year 5: $225,102.00 $18,758.50
</TABLE>
c. ADJUSTMENT FOR BASE RENT DURING YEARS SIX (6) THROUGH TEN
(10) OF THE BASE TERM. At the end of the fifth (5th) lease year during the Base
Term hereof and effective simultaneously with the commencement of beginning of
the sixth (6th) lease year of the Base Term, the Base Rent shall be the greater
of the following:
$225,102.00
OR
any increase as determined in accordance with the following provisions:
(i) As promptly as practical after the end of the
expiring term of this Lease Agreement, the Lessor shall compute the
increase, if any, in the cost of living for the preceding initial
lease period based upon the "Consumer Price Index-All Items, All Urban
Consumers (1982-84 = 100)" (hereinafter defined*), published by the
Bureau of Labor Statistics of the United States Department of Labor.
(ii) The Index number indicated for the month of the
rental commencement date under "All Items, All Urban Consumers" shall
be "base Index number" and the corresponding Index number for the
month preceding the rental commencement date for the fifth year of the
Base Term shall be the current Index number."
3
Lessor_____ Lessee_____
<PAGE> 4
(iii) The current index number shall be divided by the
base Index number. From the quotient thereof, there shall be
subtracted the integer 1, and any resulting positive number shall be
deemed to be the percentage of increase in the cost of living.
(iv) The percentage of increase multiplied by $200,000.00
(initial rent) shall be the amount of rent increase payable during the
Renewal Term.
(v) The fixed rent, as so determined (i.e., the
aggregate of $200,000.00 and the "increase" as calculated herein)
shall be due and payable to the Lessor in the same manner as the rent
was payable for the original term.
If publication of the Consumer Price Index shall be discontinued, the parties
hereto shall thereafter accept comparable statistics on the cost of living for
the City of Greenville, South Carolina, as they shall be computed and published
by an agency of the United States or by a responsible financial periodical of
recognized authority then r to be selected by the parties hereto. In the event
of (i) use of comparable statistics in place of the Consumer Price Index as
above mentioned, or (ii) publication of the Index figure at other than monthly
intervals, there shall be made in the method of computation herein provided for
such revisions as the circumstances may require to carry out the intent of this
Article.
d. ADJUSTMENT FOR BASE RENT DURING YEARS ELEVEN (11) THROUGH
FIFTEEN (15) OF THE BASE TERM. At the end of the tenth (10th) lease year during
the Base Term hereof and effective simultaneously with the commencement of
beginning of the eleventh (11th) lease year of the Base Term, the Base Rent
shall be adjusted to reflect any increases in the Consumer Price Index (CPI-U)
by multiplying the Base Rent in effect immediately prior to such adjustment by
a fraction, the numerator of which shall be the Consumer Price Index (CPI-U) as
of the most recent publication date prior to the beginning of the eleventh
(1lth ) lease year and the denominator of which shall be the Consumer Price
Index (CPI-U) as of the most recent date prior to the beginning of the
preceding five (5) year period (but in no event shall the Base Rent be reduced
as a result of such adjustment); and the Base Rent thereby established by such
adjustment shall continue in effect as the Base Rent required to be paid
hereunder throughout the eleventh (11th ) through the fifteenth (15th) lease
years of the Base Term.
e. ADJUSTMENT FOR BASE RENT DURING YEARS SIXTEEN (16) THROUGH
TWENTY (20) OF THE BASE TERM. At the end of the fifteenth (15th) lease year
during the Base Term hereof and effective simultaneously with the commencement
of beginning of the sixteenth (16th) lease year of the Base Term, the Base Rent
shall be adjusted to reflect any increases in the Consumer Price Index (CPI-U)
by multiplying the Base Rent in effect immediately prior to such adjustment by
a fraction, the numerator of which shall be the Consumer Price Index (CPI-U) as
of the most recent publication date prior to the beginning of the sixteenth
(16th) lease year and the denominator of which shall be the Consumer Price
Index (CPI-U) as of the most recent date prior to the beginning of the
preceding five (5) year period (but in no event shall the Base Rent be reduced
as a result of such adjustment); and the Base Rent thereby established by such
adjustment shall continue in effect as the Base Rent required to be paid
hereunder throughout the sixteenth (16th) through the twentieth (20th) lease
years of the Base Term.
4
Lessor_____ Lessee_____
<PAGE> 5
f. BASE RENT DURING RENEWAL TERMS. For each lease year of the
extended terms, the Base Rent shall be subject to adjustment for increases in
the Consumer Price Index as follows:
ADJUSTMENT FOR FIRST EXTENDED TERM: At the end of the twentieth (20th)
lease year during the Base Term hereof and effective simultaneously with the
commencement of the First Renewal Term, the Base Rent shall be adjusted to
reflect any increases in the Consumer Price Index (CPI-U) by multiplying the
Base Rent in effect immediately prior to such adjustment by a fraction, the
numerator of which shall be the Consumer Price Index (CPI-U) as of the most
recent publication date prior to the beginning of the First Extended Term and
the denominator of which shall be the Consumer Price Index (CPI-U) as of the
most recent date prior to the beginning of the preceding five (5) year period
(but in no event shall the Base Rent be reduced as a result of such
adjustment); and the Base Rent thereby established by such adjustment shall
continue in effect as the Base Rent required to be paid hereunder throughout
the First Renewal Term.
ADJUSTMENT FOR SECOND EXTENDED TERM: At the end of the fifth (5th)
lease year of the First Renewal Term and effective simultaneously with the
commencement of the Second Renewal Term, the Base Rent shall be adjusted to
reflect any increases in the Consumer Price Index (CPI-U) by multiplying the
Base Rent in effect during the First Renewal Term by a fraction, the numerator
of which shall be the Consumer Price Index (CPI-U) as of the most recent
publication date prior to the beginning of the Second Renewal Term and the
denominator of which shall be the Consumer Price Index (CPI-U) as of the most
recent date prior to the beginning of the preceding five (5) year period (but
in no event shall the Base Rent be reduced as a result of such adjustment); and
the Base Rent thereby established by such adjustment shall continue in effect
as the Base Rent required to be paid hereunder throughout the Second Renewal
Term.
ADJUSTMENT FOR THIRD EXTENDED TERM: At the end of the fifth (5th)
lease year of the Second Renewal Term and effective simultaneously with the
commencement of the Third Renewal Term, the Base Rent shall be adjusted to
reflect any increases in the Consumer Price Index (CPI-U) by multiplying the
Base Rent in effect during the Second Renewal Term by a fraction, the numerator
of which shall be the Consumer Price Index (CPI-U) as of the most recent
publication date prior to the beginning of the Third Renewal Term and the
denominator of which shall be the Consumer Price Index (CPI-U) as of the most
recent date prior to the beginning of the preceding five (5) year period (but
in no event shall the Base Rent be reduced as a result of such adjustment); and
the Base Rent thereby established by such adjustment shall continue in effect
as the Base Rent required to be paid hereunder throughout the Third Renewal
Term.
(*Consumer Price Index for All Urban Consumers (CPI-U), U.S. City Average, all
items, 1982-1984 = 100, as published by the U.S. Department of Labor, Bureau of
Labor Statistics, or if such index be discontinued, the generally recognized
successor index.)
2.02 ADDITIONAL RENT. Lessee shall be responsible for the payment of
certain cost relating to the operation of the Project. These costs include
operating expenses, real estate taxes, and
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insurance premiums, each being specifically detailed in Paragraph 2.02a, 2.02b,
2.02c, 2.02d, respectively.
a. OPERATING EXPENSES. Lessee, during the Base Term and any renewal or
extension periods, agrees to pay as additional rent (hereinafter the
"Additional Rent") its proportionate share of the amount paid by Lessor for
operation and maintenance of the Common Area (collectively "Operating
Expenses"). Operating Expenses shall include, but not be limited to, the
following: (i) all expenses for operation, repair, replacement and maintenance
as necessary to keep the common area of the Project and the grounds, and
parking areas and private roads associated therewith in good order, condition
and repair, including but not limited to, utilities for the common areas of and
relating to the Project expenses associated with the driveways and parking
areas (including re-paving and snow, trash and ice removal, lighting
facilities, landscaped areas, walkways, directional signage, curbs, drainage
strips, sewer lines, all charges assessed against the Project pursuant to any
applicable easements, covenants or development standards, administrative fees
(including property management fees) and (ii) all insurance premiums paid by
Lessor with respect to the Project, including public liability insurance. The
cost for all capital improvements that would be capitalized or depreciated
under generally accepted accounting principles shall not be included in
calculating Operating Expenses; provided, however, notwithstanding the
foregoing, that Operating Expenses shall include amortization of all costs of
capital improvements which are for the purpose of reducing Operating Expenses
and which ultimately result in a reduction in Lessee's proportionate share of
Operating Expenses.
b. REAL ESTATE TAXES. As Additional Rent, Lessee shall pay its
proportionate part of any ad valorem taxes assessed and allocable to the real
estate and improvements of which the Leased Premises form a part.
c. REIMBURSEMENT OF LESSOR'S COST OF INSURANCE. As Additional Rent,
Lessee shall pay its proportionate part of the cost of any insurance premiums
which Lessor is required to carry under Paragraph 4.01.
d. OTHER ADDITIONAL RENT PROVISIONS. Any amounts required to be paid by
Lessee under this Paragraph 2.02 and any charges or expenses incurred by Lessor
on behalf of Lessee (including any construction costs incurred by Lessor beyond
the. Lessee Improvement Allowance and amortized over the term of the Lease
Agreement) shall be considered Additional Rent payable in the same manner and
upon the same terms and conditions as the Base Rent reserved hereunder. Any
failure on the part of Lessee to pay such Additional Rent when and as the same
shall become due shall entitle Lessor to the remedies available to it for
non-payment of Base Rent. Lessee's obligations for payment of Additional Rent
shall begin to accrue on the Rental Commencement Date. As used in this Lease
Agreement, the term "Rent" shall include Base Rent and Additional Rent, except
as otherwise expressly provided to the contrary.
Lessor reserves the right at any time to separate the Project -
consisting of several acres - into separate tax parcels. Upon separation into
parcels, Additional Rent for the Project to date shall be allocated to each
parcel according to the respective acreage for each site as a
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percentage of the total acreage in the Project. Subsequently, the total acreage
of only the demised premises shall be used to calculate Lessee's pro rata share
of Additional Rent.
2.03 ADDITIONAL RENT ESTIMATED AND PAID MONTHLY. The pro rata share of
Operating Expenses, Real Estate Taxes, and Insurance Premiums to be paid by
Lessee shall be a percentage of each based upon the proportion that the square
footage of the Leased Premises bears to the total square footage of the
Project. Lessor shall estimate the total-amount of Operating Expenses, Real
Estate Taxes, and Insurance Premiums to be paid by Lessee during each calendar
year and promptly after the beginning of each calendar year or partial calendar
year during the Base Term and Lessee shall pay to Lessor one-twelfth (1/12) of
such sum on the first day of each calendar month during each such calendar
year, or part thereof, during the Base Term. Lessor shall submit to Lessee a
statement of the actual amount of Operating Expenses, Real Estate Taxes, and
Insurance Premiums for such calendar year, and within thirty (30) days after
receipt of such statements, Lessee shall pay any deficiency between the actual
amount owed and the estimates paid during such calendar year, or in the event
of overpayment, Lessor shall, at Lessor's option, credit the amount of such
overpayment toward the next installment of Operating Expenses, Real Estate
Taxes, or Insurance Premiums, or refund the amount of such overpayment to
Lessee. If the Rental Commencement Date of the Base Term shall fall on other
than the first day of the calendar year, or if the Expiration Date shall fall
on other than the last day of the calendar year, Lessee's share of the
Operating Expenses, Real Estate Taxes, and Insurance Premiums for such calendar
year shall be apportioned pro rata.
2.04 PRO RATA SHARE.
CALCULATION. Lessee's pro rata share shall be calculated by using the
acreage on the Site Plan (Exhibit 1) as the numerator and the total acreage as
the denominator, from which the resulting percentage figure shall represent
Lessee's current pro rata share. At the commencement of this Lease, said
numerator is 1.3 acres and said denominator is 10 acres, resulting in Lessee's
pro rata share of thirteen percent (13%).
2.05 SUMMARY OF TOTAL ESTIMATED RENT FOR YEAR 1. The summary of the first
year's total annual Base Rent and Additional Rent payments are shown on Exhibit
5, attached hereto.
2.06 LATE PAYMENTS. All unpaid Rent and other sums of whatever nature owed
by Lessee to Lessor under this Lease Agreement and remaining unpaid ten (110)
days after the due date shall bear a late penalty equal to five (5%) percent of
the then amount due which shall be Additional Rent hereunder. Acceptance by
Lessor of any payment from Lessee hereunder in an amount less than that which
is currently due shall in no way affect Lessor's rights under this Lease
Agreement and shall in no way constitute an accord and satisfaction.
ARTICLE III
PERSONAL PROPERTY TAXES
Lessee shall pay any taxes, documentary stamps or assessments of any
nature imposed or assessed upon Lessee's occupancy of the Leased Premises or
upon Lessee's furniture,
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furnishings, trade fixtures, equipment, machinery, inventory, merchandise or
other personal property located on the Leased Premises and owned by or in the
custody of Lessee promptly as all such taxes or assessments may become due and
payable without any delinquency. If applicable in the jurisdiction where the
Leased Premises are located, Lessee shall pay and be liable for all rental tax
(only to the extent such rental tax is levied in lieu of ad valorem property
taxes against the Leased Premises), sales, use and inventory taxes or other
similar taxes, if any, levied or imposed by any city, state, county or other
governmental body having authority, such payments to be in addition to all
other payments required to be paid by Lessor by Lessee under the terms of this
Lease Agreement. Such payment shall be made by Lessee directly to such
governmental body if billed to Lessee, or if billed to Lessor, such payment
shall be paid concurrently with the payment of the Base Rent, Additional Rent,
or such other charge upon which the tax is based, all as set forth herein.
Notwithstanding the foregoing, Lessee shall have the right, at its sole cost
and expense, to contest such taxes, and upon contesting the amount of such
taxes, Lessee shall deposit the amount of such taxes into an escrow account
reasonably acceptable to Lessor.
ARTICLE IV
INSURANCE
4.01 REQUIRED COVERAGE BY LESSEE. Lessee covenants and agrees that from and
after the date of occupancy by the Lessee, Lessee will carry and maintain, at
its sole cost and expense, the insurance required under Paragraph 4.01(a) and
4.01(b) below. All such policies of the insurance shall be issued in form
acceptable to Lessor by insurance companies with a rating of not less than "A",
if available, in the most current available "Best's Insurance Reports", and
licensed to do business in the state in which the Building is located.
Throughout the Term of this Lease Agreement, Lessee shall carry and maintain
the following types of insurance:
a. Liability insurance in the Commercial General Liability form
(or reasonable equivalent thereto) covering the Leased Premises and Lessee's
use thereof against claims for personal injury or death, property damage and
product liability occurring upon, in or about the Leased Premises, such
insurance to be written on an occurrence basis (not a claims made basis), to be
in combined single limits amounts not less than $1,000,000.00 and to have
general aggregate limits of not less than $1,000,000.00 for each policy year.
The insurance coverage required under this Paragraph 4.01 (a) shall, in
addition, extend to any liability of Lessee arising out of the indemnities
provided for in Article 5 and, if necessary, the policy shall contain a
contractual endorsement to that effect. The general aggregate limits under the
Commercial General Liability insurance policy or policies must apply separately
to the Leased Premises and to Lessee's use thereof (and not to any other
location or use of Lessee) and such policy shall contain an endorsement-to that
effect. Notwithstanding the foregoing, Lessee shall have the right to carry the
liability insurance provided above in the form of a blanket insurance policy,
covering additional items or locations or insureds, provided, however, that:
(i) Lessor, and any other parties in interest designated by Lessor to Lessee,
from time to time, shall be named as additional insureds thereunder as its
interests may appear; (ii) the coverage afforded Lessor and such other parties
designated by Lessor will not be reduced or diminished by reason of use of such
blanket policy of insurance; and (iii) any such policy shall provide, at a
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minimum, for the minimum liability limitations hereinabove provided in this
Article 4 with respect to Lessee's interests in and to the Leased Premises and
the Project.
b. Insurance covering all of the items included in Lessee's
leasehold improvements, heating, ventilating and air conditioning equipment,
trade fixtures, merchandise and personal property from time to time in, on or
upon the Leased Premises, in an amount not less than one hundred percent (100%)
of their full replacement value from time to time during the Term, providing
protection against perils included within the standard form of "all-risks" fire
and casualty insurance policy, together with insurance against sprinkler
damage, vandalism and malicious mischief.
c. Each of Lessee's insurance policies required above shall: (i)
name Lessor, as well as any mortgagee or ground lessor of Lessor, as an
additional insured and the coverage described in Paragraph 4.01(b) shall also
name Lessor as loss payee; (ii) provide that a certificate evidencing such
insurance shall be delivered to Lessor prior to possession of the Leased
Premises by Lessee and thereafter within thirty (30) days prior to the
expiration of each such policy, and, as often as any such policy shall expire
or terminate; (iii) contain a provision that the insurer will give to Lessor
and such other parties in interest at least thirty (30) days notice in writing
in advance of any material change, cancellation, termination or lapse, or the
effective date of any reduction in the amounts of insurance; and (iv) be
written as a primary policy which does not contribute to and is not in excess
of coverage which Lessor may carry. Notwithstanding the provisions of
subparagraph (iii) of the preceding sentence, Lessee shall be responsible for
providing Lessor with at least twenty-five (25) days notice in advance of any
material change, cancellation, termination or lapse, or the effective date of
any reduction in the amount of insurance.
4.02 REQUIRED COVERAGE BY LESSOR. During the Base Term, and any renewal
term, Lessor covenants and agrees, at its own expense, to maintain in full force
a policy or policies of insurance on the Leased Premises, including Improvements
thereon or contents thereof, providing insurance protection against risks of
direct physical loss, specifically including protection against damage or
destruction by fire and other casualties excluding flood and earthquake, and
vandalism insurance (formerly known as "All Risk Insurance"). Said insurance
shall be in the amount equal to the full replacement value of the permanent
improvements thereon under a policy or policies issued by responsible insurance
companies approved by both parties and authorized to do business in the State of
South Carolina. The Lessee agrees that it will not do or keep anything in or
about the Leased Premises which will contravene the Lessor's policies insuring
against loss or damage by fire or other hazards, or which will prevent the
Lessor from procuring such policies in companies acceptable to the Lessor.
4.03 WAIVER OF SUBROGATION. Lessee hereby waives its rights it may have
against the Lessor on account of any loss or damage occasioned to Lessee, its
property, the Leased Premises, its contents o r to its portions of the Building,
arising from any risk covered by all risks fire and extended coverage insurance,
and to the extent of recovery under valid and collectible policies of such
insurance, provided that such waiver does not invalidate such policies or
prohibit recovery thereunder. The Lessee on behalf of its insurance companies
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insuring the property of Lessee against any such loss, waive any right of
subrogation that such insurers may have against Lessor.
ARTICLE V
INDEMNIFICATION
Lessee shall defend, indemnify and hold harmless the Lessor from and
against any and all claims, losses, liabilities, causes of action, damages, or
expenses, whether due to damage to the Leased Premises, claims for injuries to
persons or property, or administration or criminal action by a governmental
authority, where such claims arise out of or from or related to the use or
occupancy of the Leased Premises by Lessee, its agents, employees, invitees,
visitors, customers, or licensees, including costs and attorney fees incurred
by Lessor to defend itself against any such claims, damages or expenses.
Lessor shall not be liable to Lessee for any damages, losses or
injuries to the persons or property of Lessee which may be caused by the acts,
neglect, omissions or faults of any persons, firms or corporations, except when
such injury, loss or damage results from the sole gross negligence of Lessor,
his agents or employees. All personal property placed or moved into the Leased
Premises or Building shall be at the risk of Lessee or the owner thereof, and
Lessor shall not be liable to Lessee for any damage to said personal property.
Lessee shall maintain at all times during the Term of this Lease Agreement or
any extensions thereof, an insurance policy or policies in any amount or
amounts sufficient to indemnify Lessor or pay Lessor's damages, if any,
resulting from any matters set forth hereinbefore.
In case Lessor shall be made a party to any litigation commenced
against Lessee, then Lessee shall protect and hold Lessor harmless and shall
promptly pay all costs, expenses and reasonable attorney fees incurred or paid
by Lessor in connection with such litigation.
Notwithstanding any contrary provision of this Lease Agreement, Lessee
will look solely (to the extent insurance coverage is not applicable or
available) to the interest of Lessor (or its successor as Lessor hereunder) in
the Building for the satisfaction of any judgment or other judicial process
requiring the payment of money as a result of any negligence or breach of this
Lease Agreement by lessor or its successor or of Lessor's managing agent
(including any beneficial owners, partners, corporations and/or others
affiliated or in any way related to Lessor or such successor or managing
agent).
ARTICLE VI
MAINTENANCE AND REPAIRS
6.01 REPAIRS BY LESSOR. During the Term of the Lease Agreement, Lessor
shall not be responsible for any repairs.
6.02 REPAIRS BY LESSEE. Lessee shall be responsible for the repair,
replacement and maintenance in good order and condition of all parts and
components of the Leased Premises, including but not limited to any approved
signage, including, without limitation, the plumbing, wiring, electrical
systems, heating systems, air conditioning systems, glass and plate glass,
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equipment and machinery constituting fixtures. Lessee's duty to maintain the
heating and air conditioning systems shall specifically include the duty to
enter into and maintain at Lessee's sole expense during the entire Term of this
Lease Agreement a contract for the routine and periodic maintenance and regular
inspection of such heating and air conditioning systems, the replacement of
filters as recommended and the performance of other recommended periodic
servicing in accordance with applicable manufacturer's standards and
recommendations. Lessee shall provide Lessor a copy of said HVAC maintenance
contract within thirty (30) days of occupancy and upon each renewal of said
maintenance agreement. Such contract shall (i) be with a reputable contractor
reasonably satisfactory to Lessor; (ii) satisfy the requirements for routine
and periodic maintenance, if any, necessary to keep all applicable
manufacturer's warranties in full force and effect; and (iii) provide that in
the event this Lease Agreement expires or is earlier terminated for any reason
whatsoever that said contract shall be immediately terminable by Lessor or
Lessee without any cost, expense or other liability on part of Lessor. In the
event Lessee fails to perform its obligations under this paragraph in a prompt
manner, Lessor shall give Lessee ten (10) days' prior written notice to perform
such obligations, and thereafter, if Lessee fails to perform such obligations
within said ten (10) day period, or if the performance of such obligations will
take more than ten (10) days to complete, and Lessee fails to commence
performance of such obligations within ten (10) days of Lessor's written notice
or if Lessee fails to promptly and diligently pursue the performance of such
obligation until completion, Lessor shall have the right to perform such
obligations on behalf of Lessee, in which event the cost of such performance,
together with a service charge equal to fifteen percent (15%) of such cost,
shall be due and payable by Lessee to Lessor immediately upon demand as
Additional Rent hereunder.
ARTICLE VII
UTILITIES AND SERVICES
As of the Rental Commencement Date, the Leased Premises will be
separately metered for utilities. Except as expressly set forth in this Lease
Agreement, Lessee shall pay for all utilities or services related to its use of
the Leased Premises including, but not limited to, electricity, gas, heat,
water, sewer, telephone and janitorial services, together with all deposits and
fees in connection therewith. If Lessee fails to pay any utility bills or
charges, Lessor may, at its option, upon reasonable notice to Lessee pay the
same and in such event, the amount of such payment, together with interest
thereon at eighteen percent (18%) from the date of such payment by Lessor, will
be added to Lessee's next due payment as Additional Rent. Lessor shall not be
responsible for the stoppage or interruption of utilities services nor shall
Lessor be liable to Lessee or any other person for any damage occasioned by
failure in any utility system or by the bursting or leaking of any vessel or
pipe in or about the Leased Premises (except to the extent of liability or
casualty insurance proceeds actually recovered by Lessor or paid on account of
Lessor), or for any damage occasioned by water coming into the Leased Premises
or arising from the acts or neglects of occupants of adjacent property to the
Leased Premises, unless the same is caused by the negligent or willful
misconduct of Lessor.
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ARTICLE VIII
USE OF PREMISES
Lessee shall use the Leased Premises only for general office space and
all use of the Leased Premises shall comply with all laws, ordinances, orders,
rules and regulations (including without limitation, the zoning classifications
existing as of the Rental Commencement Date of any lawful governmental
authority, agency or other public or private regulatory authority having
jurisdiction over the Leased Premises. The Lessee shall use and occupy the
Leased Premises in a careful, safe and proper manner and shall keep the Leased
Premises in a clean and safe condition in accordance with this Lease Agreement.
Without limiting the generality of the above provision, the Leased Premises
shall not be used for the treatment, storage, use or disposal of toxic or
hazardous waste or substances, or any other substance, that is prohibited,
limited or regulated by any governmental or quasi- governmental authority.
Notwithstanding the foregoing, Lessee shall have the right to use ordinary
cleaning supplies and solvents in the ordinary course of business. Lessee shall
save Lessor harmless from any penalties, fines, costs, expenses or damages
resulting from failure so to comply. Lessee or Lessor shall not do any act or
follow any practice relating to the Leased Premises which shall constitute a
nuisance or detract in any way from the reputation of the Project as a first
class office/warehouse development. Lessee's duties in this regard shall
include making arrangements at Lessee's expense for the proper storage and
timely disposition of garbage and refuse, and allowing no noxious or offensive
odors, fumes, gases, smoke, dust, steam or vapors, or any loud or disturbing
noise or vibrations to originate in or emit from the Leased Premises. Lessee
shall save Lessor harmless from any claims, liabilities, penalties, fines,
costs, expenses or damages resulting from the failure of Lessee to comply with
the provisions of this Article VIII. Notwithstanding the foregoing provision of
this Article VIII with respect to the exterior of the Buildings and the Common
Areas of the Project, Lessor shall comply with all laws, ordinances, orders,
rules and regulations (including without limitation, the zoning classifications
existing as of the Rental Commencement Date) of any lawful authority having
jurisdiction over the Project.
ARTICLE IX
ALTERATIONS AND IMPROVEMENTS RY LESSEE
9.01 LESSOR'S CONSENT REQUIRED. Lessee shall not make or permit to be made
any non-structural changes, alterations, additions or improvements to the
Leased Premises, ("Lessee Alteration") without first obtaining the prior
written consent of Lessor, which consent shall not be unreasonably withheld or
delayed. Lessee shall not make any structural changes. If Lessor fails to
reject any requested Lessee Alteration within thirty (30) days after Lessor's
receipt of written detailed and final plans, specifications or drawings
depicting the desired Lessee Alteration, such requested Lessee Alteration shall
be deemed approved in accordance with the plans, specifications or drawings
submitted by Lessee. Further, Lessor shall have the right to approve the
general contractor to be used by Lessee in connection with such work, which
approval shall not be unreasonably withheld or delayed. Lessee shall deliver to
Lessor a copy of all plans for nonstructural work and shall comply with the
requirements of Paragraphs 9.03 and 9.05.
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9.02 REQUIREMENTS. In the event Lessee desires to make any Lessee
Alteration, Lessee shall, prior to the commencement thereof, furnish Lessor
with an original Builder's Risk policy of insurance in form and amount of
coverage reasonably acceptable to Lessor, showing Lessee as named insured and
Lessor as loss payee and additional insured. All Lessee Alterations shall be
performed in accordance with all legal requirements applicable thereto and in a
good and workmanlike manner with first class materials.
9.03 LESSOR'S PROPERTY ON EXPIRATION. All Lessee Alterations, including,
but not limited to, all walls, railings, carpeting, floor and wall coverings
and other permanent real estate fixtures (excluding, however, Lessee's trade
fixtures and equipment) made by, for, or at the direction of Lessee, shall when
made, become the property of Lessor and shall remain upon the Leased Premises
at the expiration or earlier termination of this Lease Agreement; provided,
however, that if Lessor at the time of giving its approval to any Lessee
Alteration notifies Lessee that approval is conditioned upon restoration, then
prior to the expiration of the Term of this Lease Agreement, Lessee shall, at
its sole cost and expense, remove such Lessee Alterations and restore the
Leased Premises to its condition prior to the making of such Lessee Alteration.
9.04 PROTECTION AGAINST LIENS. Lessee shall post a large and conspicuous
notice that the Lessor is not responsible for the materials and labor furnished
to the Lessee and shall otherwise comply with the provisions of Section
29-5-80, Code of Laws of South Carolina, 1976, as amended to protect the Lessor
from liability for any mechanic liens which may result from the Lessee's work.
Lessee agrees to keep the Leased Premises free and clear of all mechanic liens.
In the event that a lien is filed against the Leased Premises or the Lessor's
property as a result of labor or material supplied to the Leased Premises, the
Lessee agrees to within thirty (30) days either obtain the release and
discharge of such mechanic lien or to bond off such mechanic lien. In the event
that the Lessee shall fail to discharge such lien within such period of time,
the Lessor shall have the right to either discharge or bond such lien and
Lessee shall immediately reimburse Lessor for all costs and expenses relating
thereto. In all events, the Lessee shall be responsible for all expenses
incurred by the Lessor as a result of the filing of a mechanic's lien against
the Leased Premises, including reasonable attorney fees and expenses.
ARTICLE X
TRADE FIXTURES AND EQUIPMENT
Any trade fixtures or equipment installed by Lessee in the Leased
Premises at Lessee's expense shall remain Lessee's personal property and Lessee
shall have the right at any time during the Term of this Lease Agreement to
remove such fixtures or equipment. Upon removal of any fixtures or equipment,
Lessee shall immediately restore the Leased Premises to substantially the same
condition as they were when received by Lessee, ordinary wear and tear and acts
of God alone excepted. Upon termination of this Lease Agreement, provided that
Lessee is not then in default hereunder, Lessee shall have fifteen (15) days
after the effective date of such termination to remove any of Lessee's trade
fixtures and equipment from the Leased Premises and repair all damage to the
Leased Premises caused by such removal, in which event Lessee shall be
obligated to pay Rent at the then-current per them rate for every
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day Lessee fails to remove such fixtures or equipment after the expiration or
effective termination date of this Lease Agreement. In addition,
notwithstanding any such termination, the indemnifications of Lessor by Lessee
provided in this Lease Agreement shall expressly survive such termination of
this Lease Agreement. Subject to the foregoing provisions of this paragraph,
any trade fixtures or equipment not removed by Lessee at the expiration or an
earlier termination of the Lease Agreement shall become the property of Lessor,
at the Lessor's option.
ARTICLE XI
DAMAGE OR DESTRUCTION OF PREMISES
If, during the Base Term of this Lease or any extension thereof, the
Leased Premises is:
a. destroyed by fire or any other casualty whatsoever, or;
b. partially destroyed so as to render the Premises unfit for
occupancy or Lessee's reasonable beneficial use and enjoyment
or conduct of Lessee's usual business therein, or;
c. destroyed by a casualty which is not covered by Lessor's
insurance, or if such casualty is covered by Lessor's
insurance but a mortgagee of Lessor or other party entitled
to insurance proceeds fails to make such proceeds available
to Lessor in an amount sufficient for restoration of the
Leased Premises (provided, however, that Lessor agrees to
make a good faith effort to have such mortgagee make such
proceeds available for full restoration or rebuilding);
then Lessor shall make its reasonable determination as to the length of time to
complete such repairs within thirty (30) days of the casualty and shall notify
Lessee of same as provided herein. In the event restoration is reasonably
estimated by Lessor to take more than one hundred twenty (120) days from the
date of the destruction or casualty, or in the event the above described
destruction or casualty should occur within the last two (2) years of the Base
Term or extension thereof, then Lessor or Lessee shall have the right to
terminate this Lease. In the event that the Lease is terminated in accordance
with the foregoing provisions, Lessee shall surrender within thirty (30) days
of notification the Leased Premises and interest therein, and Lessee shall pay
rent only to the time of such destruction or casualty.
In case of the total or partial damage or destruction to the Leased
Premises, Lessor shall re-enter and repossess the same or any part thereof for
the purpose of removing or repairing the loss or damage and shall proceed with
due diligence to the repair of same unless, under the foregoing provisions of
this Section the Lease shall have been terminated. The Rent during the period
of such repairs shall be wholly abated if all of the Premises have been thus
repossessed by Lessor or otherwise made unavailable to Lessee for Lessee's
reasonable beneficial use and enjoyment or Lessee's conduct of Lessee's usual
business therein for the purpose of repair for the period that Lessee has been
dispossessed; and if only a portion of the Premises is thus repossessed or
otherwise unavailable to Lessee for Lessee's reasonable
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beneficial use and enjoyment or Lessee's conduct of Lessee's usual business
therein, the Rent shall be abated for such dispossession or unavailability pro
rata, based on the portion of the Leased Premises thus repossessed or rendered
unavailable during the period of repossession or unavailability. Any Rent
abatement under this Section _______ shall commence as of the date of the
destruction.
Lessor shall not be required to rebuild, repair, or replace any part
of the personal property , furniture, equipment, fixtures, and other
improvements which may have been placed by Lessee or other lessees within the
Building or Leased Premises, unless the damage thereto is caused by the sole
negligence or willful act or omission or default hereunder of Lessor or
Lessor's agents, employees, subtenants, assignees, or independent contractors.
Any insurance which may be carried by Lessor or Lessee for damage to the
Building or to the Leased Premises or to any personal property, fixtures, and
related items therein shall be for the sole benefit of the party carrying such
insurance and under its sole control; provided, however, Lessor shall carry
insurance for the benefit of Lessor and Lessee sufficient to cover the full
replacement cost of the shell of the Leased Premises and an amount equal to the
initial Lessee improvements and related allowances set forth in Section ____ of
this Lease as well as insurance sufficient to cover Lessee's furniture,
equipment, fixtures, personal property, and other improvement that Lessor shall
have liability therefor under this Section ____.
Should the Building or the Premises be destroyed or damaged by fire or
other casualty that is due to the direct negligence or willful or wanton
conduct of Lessee or Lessee's agents, employees, subtenants, assignees or
independent contractors, Lessor may repair such damage, and there shall be no
apportionment or abatement of Rent.
ARTICLE XII
CONDEMNATION
If all of the Leased Premises or the Project is taken or condemned for
a public or quasi-public use, or if a material portion of the Leased Premises
is taken or condemned for a public or quasi-public use and the remaining
portion thereof is not usable by Lessee, in the reasonable judgment of Lessee
and Lessor, this Lease Agreement shall terminate as of the earlier of the date
title to the condemned real estate vests in the condemnor and the date on which
Lessee is deprived of possession of the Leased Premises. In such event, the
Base Rent herein reserved and all Additional Rent and other sums payable
hereunder shall be apportioned and paid in full by Lessee to Lessor to that
date, all Rent and other sums payable hereunder prepaid for periods beyond that
date shall forthwith be repaid by Lessor to Lessee, and neither party shall
thereafter have any liability hereunder, except that any obligation or
liability of either party, actual or contingent, under this Lease Agreement
which has accrued on or prior to such termination date shall survive. If only
part of the Leased Premises is taken or condemned for a public or quasi-public
use and this Lease Agreement does not terminate as provided above, Lessor to
the extent of the award it receives, shall restore the Leased Premises to a
condition and to a size as nearly comparable as reasonably possible to the
condition and size thereof immediately prior to the taking, and there shall be
an equitable abatement of the Rent according to the value of the Leased
Premises before and after the taking. Pending such determination, if Lessee is
entitled to a refund because of an overpayment of Rent, Lessor shall
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Lessor_____ Lessee_____
<PAGE> 16
make the same promptly, or in lieu thereof credit the amount thereof to future
installments of Rent as they become due at Lessee's option. Lessor shall be
entitled to receive the entire award in any proceeding with respect to any
taking, without deduction therefrom for any estate vested in Lessee by this
Lease Agreement, and Lessee shall receive no part of such award. Nothing herein
contained shall be deemed to prohibit Lessee from making a separate claim,
against the condemnor, to the extent permitted by law, for the value of
Lessee's moveable trade fixtures, machinery and moving expenses.
ARTICLE XIII
GOVERNMENTAL ORDERS
13.01 LESSEE'S COMPLIANCE WITH LAWS. Lessee shall be responsible for
compliance with all the laws which are applicable to Lessee's particular use
and manner of use of the Leased Premises and the Common Area Facilities.
In the event that Lessee's particular use of the Leased Premises and
the Common Area Facilities violates any provision of the laws, including but
not limited to the ADA, Lessee shall bear all expense, cost and liability for
compliance with such Laws. Lessee hereby agrees to indemnify, defend and hold
Lessor harmless from any and all loss, cost, liability or expense, including
without limitation reasonable attorney fees, resulting from Lessee's failure to
comply with all the laws relating to its particular use and manner of use of
the Leased Premises and the Common Area Facilities.
ARTICLE XIV
LESSOR'S ACCESS TO PREMISES
Lessor's property manager and Lessor's officers and authorized
employees, or any other party authorized by Lessor of whom Lessee has received
prior notice and to whom Lessee has not objected, shall have the right to enter
the Leased Premises at all reasonable times and upon reasonable notice;
provided, however, that except in the case of an emergency, Lessor shall give
Lessee reasonable prior written notice not less than two (2) days in advance of
Lessor's intended entry upon the Leased Premises. Further, during the last six
(6) months of the Term Lessor and those persons authorized by it shall have the
right at reasonable times and upon reasonable notice to show the Leased
Premises to prospective tenants.
ARTICLE XV
ASSIGNMENT AND SUBLETTING
Lessee shall not assign, sublet, mortgage, pledge or encumber this
Lease Agreement, the Leased Premises, or any interest in the whole or in any
portion thereof, without the prior written consent of Lessor whose consent
shall not be unreasonably withheld; provided, however, that Lessee shall have
the right, upon prior written notice to Lessor, to assign this Lease Agreement
to a parent, affiliate or subsidiary corporation of Lessee with written notice
to Lessor. If Lessee makes any assignment, mortgage, sublease or pledge of this
Lease Agreement or the Leased Premises, Lessee will still remain liable for the
performance of all terms of this Lease Agreement and any rental or any fees or
charges received by Lessee in
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excess of the Rent payable to Lessor hereunder shall be also paid to Lessor as
Additional Rent under this Lease Agreement, unless Lessee is expressly released
in writing by Lessor.
ARTICLE XVI
HOLDING OVER
Lessee agrees to surrender to Lessor, at the end of the Term of this
Lease Agreement and/or upon any cancellation of the Lease Agreement, said
Leased Premises in as good condition as said Leased Premises was at the
beginning of the Term of this Lease Agreement, ordinary wear and tear, and
damage by fire or other casualty not caused by Lessee's negligence, excepted.
Lessee agrees that if Lessee does not surrender said Leased Premises to Lessor
at the end of the Term of this Lease Agreement, then Lessee will pay to Lessor
double the amount of the current rental for each month or portion thereof that
Lessee holds over plus all damages the Lessor may Lessor suffer on account of
Lessee's failure to so surrender to Lessor possession of said Leased Premises,
and will indemnify and save Lessor harmless from and against all claims made by
any succeeding Lessee of said Leased Premises against Lessor on account of
delay of Lessor in delivering possession of said Leased Premises to said
succeeding Lessee so far as such delay is occasioned by failure of Lessee to so
surrender said Leased Premises in accordance herewith or otherwise.
No receipt of money by Lessor from Lessee after termination of this
Lease Agreement or the service of any notice of commencement of any suit or
final judgment for possession shall reinstate, continue or extend the Term of
this Lease Agreement or affect any such notice, demand, suit or judgment.
No agreement to accept a surrender of the Leased Premises shall be
valid unless made in writing and subscribed by a duly authorized officer or
agent of Lessor.
ARTICLE XVII
COVENANT OF QUIET ENJOYMENT
Lessor represents that it has full right and authority to lease the
Leased Premises and that Lessee shall peacefully and quietly hold and enjoy the
Leased Premises for the full term hereof so long as it does not default in the
performance of any of the terms hereof.
ARTICLE XVIII
ENVIRONMENTAL MATTERS
Lessee hereby agrees to indemnify and hold Lessor harmless from and
against any and all claims, liabilities, and costs, (including reasonable
attorney fees) relating to the use of the Leased Premises by the Lessee which
is caused by the use, storage, release, disposal, or generation by Lessee or
its agents, employees, contractors, or invitees of any Hazardous Materials (as
hereinafter defined) in, on, or about the Project or the Leased Premises.
If the Lessee shall become aware of, or have reasonable cause to
believe, that any Hazardous Materials have come to be located on or beneath the
Leased Premises or the Project, the Lessee shall give written notice of such
condition to the Lessor. In addition, the
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Lessee shall immediately notify the Lessor in writing of: (i) any governmental
or regulatory action instituted or threatened relating to any Hazardous
Materials on or about the Leased Premises; (ii) any claim made or threatened by
any person relating to any Hazardous Materials that have come to be located on
or about the Leased Premises or the Project; (iii) any reports made to any
local, state or federal environmental agency arising out of or in connection
with any Hazardous Materials on or about the Leased Premises or the Project,
including any complaints, notices, warnings, or asserted violations in
connection therewith, of which the party becomes aware; and (iv) any presence,
use or disposal of any Hazardous Materials on or about the Leased Premises,
even if such activities are in full compliance of applicable regulations and
laws.
As used in this Lease Agreement, the term "Hazardous Materials" means
any substance, material, or waste now or hereafter determined by any federal,
state or local governmental authority to be capable of posing a risk of injury
to health, safety, or property. As used in this Lease Agreement, the term
"Environmental Law" means any federal, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or Hazardous Materials.
ARTICLE XIX
PARKING
The Lessee, its employees, visitors and guests are authorized to make
reasonable use of the parking facilities which form part of the Project,
subject to posted rules and regulations and at the sole risk of each driver and
user of said facility. The parking facility shall not be used for the storage
of abandoned or defective vehicles or for any other purpose except transient
parking.
ARTICLE XX
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Lease Agreement is subject and subordinate to any and all deeds
to secure debt, mortgages, deeds of trust or other security instruments
("security Instruments") now or hereafter placed on the property of which the
Leased Premises are a part, and this clause shall be self-operative without any
further instrument necessary to effect such subordination; however, if
requested by Lessor, Lessee shall promptly execute and deliver to Lessor any
such certificate or certificates reasonably acceptable to Lessee as Lessor may
reasonably request evidencing subordination of this Lease Agreement to or the
assignment of this Lease Agreement as additional security for such mortgages or
deeds of trust. Provided, however, in each case the holder of any Security
Instrument shall agree that this Lease Agreement shall not be divested by
foreclosure or other default proceedings thereunder so long as no Event of
Default by Lessee shall then be subsisting under the terms of this Lease
Agreement and that such holder or acquirer shall be bound hereby and
responsible to perform all obligations of Lessor under this Lease Agreement.
Provided such holder or acquirer shall so agree as provided in the preceding
sentence, Lessee shall continue its obligations under this Lease
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<PAGE> 19
Agreement in full force and effect notwithstanding any such default proceedings
under a Security Instrument and shall attorn to the mortgagee, trustee or
beneficiary of such Security Instrument, and their successors or assigns, and
to the transferee under any foreclosure or default proceedings. Lessee will,
upon request by Lessor, execute and deliver to Lessor or to any other person
designated by Lessor, any instrument or instruments in form and content
reasonably acceptable to Lessee evidencing its agreement to so attorn and
perform under this Lease Agreement. Further, Lessee will simultaneously with
the execution of this Lease Agreement, execute the Subordination,
Non-disturbance and Attornment Agreement attached hereto as EXHIBIT 7.
ARTICLE XXI
LIABILITY FOR DAMAGE
The Lessor shall not be liable for any damage done or occasioned by or
from the electrical system, the heating or cooling system, the plumbing and
sewer systems; nor for damage occasioned by water, snow or ice being upon or
coming through the roof, trapdoor, walls, windows, doors or otherwise, in, upon
or about the Leased Premises or the Project of which the Leased Premises are a
part, nor for any damage arising from acts of negligence of third parties. The
Lessor shall not be liable for any damage occasioned by reason of the
construction of the Leased Premises. The Lessor shall not be liable for any
damage to the Lessee's stock-in-trade, trade fixtures, furniture, furnishings,
floor and wall coverings, ceiling-hung chandeliers and other adornments,
special equipment and all other items of personal property of the Lessee
resulting from fire or other hazards, unless occasioned by action or inaction
of the Lessor, and the Lessee hereby releases the Lessor from all liability for
such damage. The Lessee agrees to procure a waiver of subrogation endorsement
from its insurer, so long as the same shall not void any insurance policy of
the Lessee, and to furnish evidence of such waiver to the Lessor upon request.
ARTICLE XXII
TRANSFER OF LESSOR'S INTEREST
If Lessor shall sell, assign or transfer all or any part of its
interest in the Leased Premises or in this Lease Agreement to a successor in
interest which expressly assumes the obligations of Lessor hereunder and
provides Lessor and Lessee with proof of adequate insurance (which covers the
risk and liabilities and is not less in covered amounts than Lessor's
insurance) at the time of such transfer, then Lessor shall thereupon be
released or discharged from all covenants and obligations hereunder, and Lessee
shall look solely to such successor in interest for performance of all of
Lessor's obligations; provided, that the Lessor shall not be relieved of its
liability, if any, to the Lessee for acts or omissions that occurred prior to
the transfer. Lessee's obligations under this Lease Agreement shall in no
manner be affected by Lessor's assignment hereunder, and Lessee shall
thereafter attorn and look solely to such successor in interest as the Lessor
hereunder.
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ARTICLE XXIII
LESSOR LIABILITY
No owner of the Leased Premises, whether or not named herein, shall
have liability hereunder after he ceases to hold title to the Leased Premises,
except for obligations which may have theretofore accrued. Neither Lessor nor
any officer, director, shareholder, partner or principal, whether disclosed or
undisclosed, of Lessor shall be under any personal liability with respect to
any of the provisions of this Lease Agreement, and if Lessor is in breach or
default with respect to Lessor's obligations or otherwise under this Lease
Agreement, Lessee shall look solely to the equity of Lessor in the Leased
Premises for the satisfaction of Lessee's remedies.
ARTICLE XXIV
ESTOPPEL CERTIFICATE
Within ten (10) days after a request by Lessor or any mortgagee or
ground lessor of Lessor, Lessee shall deliver a written Estoppel certificate,
in form supplied by or acceptable to Lessor, certifying any facts that are then
true with respect to this Lease Agreement, including, but not limited to, that
this Lease Agreement is in full force and effect, that no default exists on the
part of Lessor or Lessee, that Lessee is in possession, that Lessee has
commenced the payment of Rent, and that there are no defenses or offsets
claimed by Lessee with respect to payment of Rent under this Lease Agreement
or, if such defense or offsets exist, setting forth the same. Likewise, within
ten (10) business days after a request by Lessee, Lessor shall deliver to
Lessee a similar Estoppel certificate covering such matters as are reasonably
required by Lessee.
ARTICLE XXV
FORCE MAJEURE
In the event Lessor or Lessee shall be delayed, hindered or prevented
from the performance of any act required hereunder, by reason of governmental
restrictions, scarcity of labor or materials, strikes, fire, or any other
reasons beyond their control, the performance of such act shall be excused for
the period of delay, and the period for performance of any such act shall be
extended as necessary to complete performance after the delay period. However,
the provisions of this Article 26 shall in no way be applicable to the
obligations of Lessee or Lessor to pay, repay or reimburse any sums, monies,
costs, charges or expenses owing from one to the other under this Lease
Agreement,- including without limitation, Lessee's obligations to pay Rent
hereunder.
ARTICLE XXVI
LESSEE DEFAULT
26.01 EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute a default under this Lease Agreement:
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Lessor_____ Lessee_____
<PAGE> 21
a. Lessee fails to pay any installment of Rent within ten (10)
business days after such installment is due, and fails to cure such delinquency
within three (3) business days after actual receipt of written notice thereof
by Lessee from Lessor:
b. Lessee fails to pay any additional item or any other charge
or sum required to be paid by Lessee hereunder within thirty (30) days after
actual receipt of written notice thereof by Lessee from Lessor; or
c. Lessee fails to perform or commence in good faith and proceed
with reasonable diligence to perform any of its covenants under this Lease
Agreement within thirty (30) days after actual receipt of written notice
thereof by Lessee from Lessor.
d. Lessee shall become bankrupt or insolvent or file any debtor
proceedings, or file pursuant to any statute a petition in bankruptcy or
insolvency or for reorganization, or file a petition for the appointment of a
receiver or trustee for all or substantially all of its assets, and such
petition or appointment shall not have been set aside within sixty (60) days
from the date of such petition or appointment, or if such party makes an
assignment for the benefit of creditors, or petitions for or enters into such
an arrangement.
e. Lessee vacates the Leased Premises at any time or fails to
occupy within thirty (30) days of the date for occupying as set forth herein.
26.02 LESSOR'S REMEDIES. In the event Lessee is in default pursuant to the
conditions set forth in Paragraph 27.01 above, Lessor, during the continuation
of such default, shall have the option of pursuing either of the following
remedies:
a. Lessor may terminate this Lease Agreement, in which event
Lessee immediately shall surrender possession of the Leased Premises. All
obligations of Lessee under the Lease Agreement, including Lessee's obligation
to pay Rent under the Lease Agreement, shall cease upon the date of termination
except for Lessee's obligation to pay Rent due and outstanding as of the date
of termination.
b. Lessor, without terminating the Lease Agreement, may require
Lessee to remove all property from the Leased Premises within thirty (30) days
so that Lessor may re-enter and relet the Leased Premises to minimize Lessor's
damages. In the event Lessee shall fail to remove all property within thirty
(30) days after said demand, Lessor shall be entitled to remove Lessee's
property to a storage facility, and all reasonable costs of such removal and
storage shall be deemed Additional Rent under the Lease Agreement for which
Lessee is responsible for payment. Lessor may enforce all of its rights and
remedies under this Lease Agreement, including the right to recover the Rent as
it becomes due hereunder, provided that Lessor shall have an affirmative
obligation to use Lessor's best efforts to re-let the Leased Premises and to
mitigate its damages under the Lease Agreement.
c. Lessor may accelerate and declare the entire remaining unpaid
Rent for the balance of this Lease Agreement to be immediately due and payable
forthwith and may, at once, take legal action to recover and collect the same,
such amount being discounted to present value using the prime rate published by
a national bank acceptable to Lessee and
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Lessor and such amount reduced by the amount of rent Lessor will receive by
reletting the Leased Premises for the remainder of the Term or portion thereof.
d. If this Lease Agreement is terminated as set forth, Lessor
may relet the Leased Premises (or any portion thereof) for such Rent and upon
such terms as Lessor is able to obtain (which may be for lower or higher rent,
and for a shorter or longer term), and Lessee shall be liable for all damages
sustained by Lessor, including but not limited to any deficiency in Rent for
the duration of the Lease Term (or for the period of time which would have
remained in the Term of this Lease Agreement in the absence of any termination,
leasing fees, attorney fees, other marketing and collection costs and all
expenses of placing the Leased Premises in first class rentable condition).
e. Nothing contained herein diminishes any right Lessor may have
under South Carolina law to sue Lessee for damages in the event of any default
by Lessee under this Lease Agreement, or from pursuing any other remedy
available to Lessor at law or in equity.
ARTICLE XXVII
LESSOR DEFAULT
In the event that the Lessor shall breach its obligations under this
Lease Agreement, the Lessee shall give the Lessor written notice and thirty
(30) days to cure such default. In the event the Lessor shall fail to cure such
default within the thirty (30) day period, the Lessee shall have the right to
exercise any rights or remedies available in this Lease Agreement, at law or in
equity unless such matter would take longer than thirty (30) days to cure and
Lessor is reasonably proceeding to cure the breach.
ARTICLE XXVIII
REMEDIES CUMULATIVE - NON-WAIVER
Unless otherwise specified in this Lease Agreement no remedy of Lessor
or Lessee shall be considered exclusive of any other remedy, but each shall be
distinct, separate and cumulative with Other available remedies. Each remedy
available under this Lease Agreement or at law or in equity may be exercised by
Lessor or Lessee from time to time as often as the need may arise. No course of
dealing between Lessor and Lessee, or any delay or omission of Lessor or Lessee
in exercising any right arising from the other party's default, shall impair
such right or be construed to be a waiver of default.
ARTICLE XXIX
NOTICES
Any notice allowed or required by this Lease Agreement shall be in
writing, and shall be deemed effective upon deposit, with proper postage
attached or fee paid when sent by either (i) United States mail, via certified
mail or registered mail, return receipt requested, with proper postage prepaid,
or (ii) nationally recognized overnight courier (for example, Federal Express).
Notices shall be addressed as follows:
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Lessor_____ Lessee_____
<PAGE> 23
As TO LESSOR: Cothran Properties, LLC
9 Caledon Court
Suite B
Greenville, SC 29615
Attn: Mark A. Cothran
AS TO LESSEE: Greenville First Bank, N.A.
The addresses of Lessor and Lessee and the party, if any, to whose
attention a notice or copy of same shall be directed may be changed or added
from time to time by either party giving notice to the other in the prescribed
manner. Upon request, Lessee shall also send a copy of all notices from Lessee
to any mortgagee or ground lessor of Lessor; provided, however, that in no
event shall Lessee be required to send more than two (2) additional notices to
any mortgagees or ground lessors.
ARTICLE XXX
SURRENDER OF PREMISES
At the expiration or earlier termination of the Term of this Lease
Agreement, Lessee shall surrender the Leased Premises and, subject to the terms
of this Lease Agreement, All improvements, alterations and additions thereto,
and keys therefor to Lessor, clean and neat, and in the same condition as the
Rental Commencement Date, natural wear and tear only excepted.
ARTICLE XXXI
NO REPRESENTATIONS
Neither Lessor nor Lessor's agent has made any representations or
promises, except such as are contained herein or endorsed hereon, to the Lessee
respecting the condition of the Leased Premises or any other matter or thing
relating to the Leased Premises or the Lease Agreement. The taking possession
of the Leased Premises by the Lessee shall be conclusive evidence against the
Lessee or anyone holding under this Lease Agreement that the Leased Premises
were in good and satisfactory condition when possession of the Leased Premises
was so taken.
ARTICLE XXXII
LEASING COMMISSION
Lessor and Lessee represent and warrant each to the other that they
have not dealt with any broker or other person claiming any entitlement to any
commission in connection with this transaction. The Lessor and the Lessee each
respectively represents and warrants to the other that no real estate broker or
other person is entitled to a fee, commission, or any other enumeration in
respect of the execution or performance of this Lease Agreement created hereby;
and each of the Lessor and the Lessee hereby covenants and agrees to hold the
other harmless from any fee, commission, cost or damage incurred as a result of
any breach of the foregoing warranties.
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Lessor_____ Lessee_____
<PAGE> 24
ARTICLE XXXIII
SECURITY DEPOSIT
Lessee shall pay to Lessor simultaneously with the execution of this
Lease Agreement a sum that is equal to Nineteen Thousand One Hundred Sixty Six
Dollars and Sixty Seven/100's ($19,166.67) (the "Security Deposit") as security
for the full and faithful performance by Lessee of each and every term,
covenant and condition of this Lease Agreement. Lessor shall deposit the
Security Deposit in an interest bearing account with a banking institution
having federally insured deposits. Upon an Event of Default by Lessee under
this Lease Agreement, or if Lessee fails to perform any of the terms,
provisions and conditions of this Lease Agreement, Lessor may use, apply, or
retain the whole or any part of the Security Deposit so deposited for the
payment of any sum due Lessor or which Lessor may expend or be required to
expend by reason of the Lessee's Event of Default or failure to perform
including, but not limited to, any damages or deficiency in the reletting of
the Leased Premises, provided, however, that any such use, application or
retention by Lessor of the whole or any part of the Security Deposit shall not
be or be deemed to be an election of remedies by Lessor or viewed as liquidated
damages, it being expressly understood and agreed that, notwithstanding such
use, application or retention, Lessor shall have the right to pursue any and
all other remedies available to it under the terms of this Lease Agreement or
otherwise. In the event that Lessee shall comply with all of the terms,
covenants and conditions of this Lease Agreement, the Security Deposit shall be
returned to Lessee within thirty (30) days after Lessee has vacated and
surrendered the Leased Premises in accordance with the terms hereof, so long as
no Event of Default by Lessee shall then be existing under the terms of this
Lease Agreement. In the event of a sale of the Building or the Project, Lessor
shall have the right to transfer the Security Deposit to the purchaser, and
Lessor shall thereupon be released from all liability for the return of such
Security Deposit. Lessee shall look solely to the new landlord for the return
of such Security Deposit. If Lessee shall fail to pay Rent or other sums when
due under this Lease Agreement more than three (3) times in any twelve (12)
month period, irrespective of whether or not such delinquencies have been
cured, then the Security Deposit shall, within ten (10) days after demand by
Lessor, be increased to an amount equal to the greater of (i) three (3) times
the aforesaid amount or (ii) three (3) months rent.
ARTICLE XXXIV
MISCELLANEOUS
34.01 EVIDENCE OF AUTHOR. If requested by either party, the other party
shall furnish appropriate legal documentation evidencing the valid existence
and good standing of such other party and the authority of any parties signing
this Lease Agreement to act for such other party.
34.02 NATURE AND EXTENT OF AGREEMENT. This Lease Agreement, together with
all exhibits hereto, contains the complete Lease Agreement of the parties
concerning the subject matter, and there are no oral or written understandings,
representations, or agreements pertaining thereto which have not been
incorporated herein. This Lease Agreement creates only the relationship of
Lessor and Lessee between the parties, and nothing herein shall impose upon
either party any powers, obligations or restrictions not expressed herein. This
Lease
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<PAGE> 25
Agreement shall be construed and governed by the laws of the state in which the
Project is located.
34.03 BINDING EFFECT. This Lease Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns. This Lease Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which
taken together shall constitute one and the same agreement. This Lease
Agreement shall not be binding on Lessor until executed by Lessor and delivered
to Lessee.
34.04 CAPTIONS AND HEADINGS. The captions and headings in this Lease
Agreement are for convenience and reference only, and they shall in no way be
held to explain, modify, or construe the meaning of the terms of this Lease
Agreement.
34.05 RULES AND REGULATIONS. The Rules and Regulations attached as Exhibit 8
("Rules and Regulations") are Lessor's Rules and Regulations for the Project
and Buildings. Lessee shall faithfully observe and comply with such Rules and
Regulations and such changes therein (whether by modification, elimination,
addition or waiver) as Lessor may hereafter make and communicate in writing to
Lessee, which shall be necessary or desirable for the reputation, safety, care
or appearance of the Project and Buildings or the preservation of good order
therein or the operation or maintenance of the Project and Buildings or the
equipment thereof or the comfort of tenants or others in the Project and
Buildings.
34.06 SEVERABILITY. If any term, covenant, condition or provision of this
Lease Agreement, or the application whereof to any person or circumstance,
shall ever be held to be invalid or unenforceable, then in each such event the
remainder of this Lease Agreement or the application of such term, covenant,
condition or provision to any other person or any other circumstance (other
than those as to which it shall be invalid or unenforceable) shall remain valid
and enforceable to the fullest permitted by law.
34.07 GOVERNING LAW. This Lease Agreement shall be construed according to,
and be governed by, the laws of the State of South Carolina.
34.08 TIME OF ESSENCE. Time shall be of the essence in the performance of
the terms and conditions of this Lease Agreement.
34.09 RECORDING. It is not intended that this Lease Agreement be recorded,
but at the request of either party the other party shall execute a Memorandum
or Short Form Lease Agreement and the Lease Agreement shall be recorded with
the requesting party paying the recording costs.
34.10 ADDENDUM. Modifications to this Lease Agreement, if any, are presented
in Exhibit which is attached to and made a part of this Lease Agreement. In the
event of any inconsistency between the provisions contained within the body of
this Lease Agreement and the Addendum, the provisions of the Addendum shall
control.
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<PAGE> 26
IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be
duly executed and sealed pursuant to authority duly given, as of the day and
year first above written.
LESSOR: COTHRAN PROPERTIES, LLC
By:
- ------------------------- --------------------------------
Witness Mark A. Cothran, Member
Date of Execution:
- ------------------------- -----------------
LESSEE: GREENVILLE FIRST BANK, N.A.
By:
- ------------------------- --------------------------------
Witness
Print Name:
------------------------
- ------------------------- Its:
Witness --------------------------------
Date of Execution:
------------------
26
