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THIS LEASE AGREEMENT ("Lease") made and entered into on this 24 day of March, 2004, by and between Savings Associates ("Landlord") and Tidelands Bank (f/k/a Liberty Bankshares, Inc.) ("Lessee"). 1. Summary of Terms and Certain Definitions. (a) Building: The property hereby leased to the Lessee is the land (the "Land") and the improvements (the "Improvements") located at 875 Lowcountry Boulevard, in Mount Pleasant, South Carolina, as more particularly described in Exhibit "A" attached hereto. The Land and Improvements leased hereunder, together with Landlord's rights, if any, in and to all easements and other appurtenances thereto, hereinafter sometimes collectively referred to as the "Leased Property," are demised and let to Lessee subject to the herein stated terms and conditions. Lessee accepts the Leased Property from Landlord in "as is" "where is" and "with all faults" condition except as noted herein. Landlord shall deliver the Leased Property to Lessee in "broom clean" condition. Landlord agrees to provide Lessee with a termite inspection letter dated within thirty (30) days of the execution of this Lease stating that the building at 875 Lowcountry Boulevard, Mount Pleasant, has been inspected and that the inspector either (i) found no evidence of termite infestation or (ii) if infestation was observed there is either no damage or the damage has been repaired at the expense of the Landlord. (b) Term: Ten (10) years plus any partial month from the Commencement Date until the first day of the first full calendar month during the Term. (c) Renewal Term: Two (2) renewal terms of five (5) years each. Landlord must be notified of Lessee's intent to exercise each renewal six (6) months prior to the termination of the preceding term. (d) Expiration Date: See Section 5 (e) Minimum Annual Rent: $178,076.40 (One Hundred Seventy-Eight Thousand Seventy-Six and no/100) payable in monthly installments of $14,839.70 (Fourteen Thousand Eight Hundred Thirty-Nine and no/100) increased Nine (9%) Per Cent for one (1) year after the first three (3) years and Three (3%) Per Cent for every year after as follows:
If the Lease Agreement is renewed by Lessee, then the annual Three (3%) Per Cent increases as stated above will continue yearly during such renewal periods. (f) Use: The property is to be used for a savings and loan or other banking or financial service facility or general office facility, as may be permitted, from time to time, by the governmental regulatory agencies which exercise control over the Lessee, and subject to such other use restrictions, if any, as set forth in this Lease. Lessee agrees not to use the Leased Property or any part thereof for any disorderly or unlawful purpose and agrees to comply with all governmental laws, ordinances, rules and regulations applicable to its use, possession and operation 1 of the Leased Property. Lessee agrees not to use the Leased Property in such a way as to diminish its value, reasonable wear and tear excepted. (g) Contents: This Lease consists of pages 1 through 11 containing sections 1 through 31 and the following, which is attached hereto and made a part of this lease: Exhibit A—Legal Description 2. Building. Lessee hereby leases from Landlord the Building specified in Section 1(a) and shown on attached Exhibit "A" within the Building (the Building and the lot on which it is located, the "Property"), together with the right to use all areas and facilities provided by Landlord including any driveways, sidewalks and parking, loading and landscaped areas. TO HAVE AND TO HOLD THE Building upon the terms and conditions hereinafter set forth. 3. Landlord's Representations. The Landlord makes the following representations as the basis for the undertakings on its part herein contained: (a) The Landlord is a corporation duly organized and existing under the laws of the State of South Carolina and is authorized to enter into this Lease Agreement. (b) Landlord warrants that (i) it has full right and authority to lease the Building upon the terms and conditions herein set forth; (ii) it has good and marketable title to the Building; (iii) subject to the terms and conditions of this Lease Agreement, Lessee will have exclusive possession of the Building, free from all claims of any third parties claiming by, through or under Landlord; (iv) the Building is not subject to the lien of any mortgage or other similar encumbering instrument, except a mortgage to one financial institution, which is not subordinated to this Lease Agreement, unless Lessee has received a non-disturbance agreement from such lien holder; (v) the Building is properly zoned for the operation of a bank and first-class office building and related uses in the Building by Lessee; (vi) the Building contains parking facilities as required by applicable codes or ordinances for the Building, and the Building will be operated in accordance with the provisions of this Lease Agreement; (vii) as of the Commencement Date, the Building will be in substantial compliance with all applicable federal, state and local statutes, codes, ordinances and rules, including without limitation, those with respect to (1) hazardous and toxic material and (2) the Americans with Disabilities Act of 1990, as amended; and (viii) the building is free from defect, in sound condition, and suitable for use as a bank/office building as of the time of execution of this agreement. 4. Lessee's Representations. The Lessee makes the following representations as the basis for the undertakings on its part herein contained: (a) The Lessee is a corporation organized under the laws of South Carolina and is in good standing under the laws of the State of South Carolina, and by proper action has been duly authorized to execute and deliver this Lease Agreement, to enter into the transactions contemplated hereby, and to carry out its obligations hereunder. 5. Term. (a) Initial Term. The term of this lease shall commence on the Commencement Date and shall end at 11:59 pm on the last day of the Term (the "Expiration Date") unless sooner terminated in accordance with the terms hereof. At Landlord's request, Lessee shall confirm the Commencement Date and Expiration Date by executing a lease commencement certificate. (b) Renewal Term. Lessee shall have the option to renew per Section 1(c) above upon the same terms and conditions contained herein. In order to exercise the option to renew, Lessee shall provide Landlord written notice of its election to renew the Lease within the time as stated in Section 1(c) above. 2 (c) At the expiration of the term of this Lease, the Lessee shall surrender the Leased Property in as good condition and repair as it was as of the Commencement Date, reasonable wear and tear excepted, and shall repair any and all damage caused by the removal of any of Lessee's fixtures, furnishings, equipment and signs. Lessee agrees that no waste of any kind, solid or liquid, shall remain on the Leased Property upon termination of the Lease. Any personal property of Lessee which shall remain on the Leased Property after the termination of this Lease may, at the option of the Landlord, be deemed to have been abandoned by Lessee and, may either be retained by Landlord as its property or be disposed of without accountability. The provisions of this section shall survive the termination of this Lease. 6. Rental. (a) Lessee agrees to pay Landlord the Minimum Annual Rent in equal monthly installments in the amount set forth in Section 1(e) (as increased at the beginning of each lease year beginning with the fourth year of the Lease as set forth in Section 1(e), in advance, on the first day of each calendar month during the Term, without notice, demand or setoff, at Landlord's address designated in Section 25 of this lease unless Landlord designates otherwise; Base Rent for any partial month shall be prorated based on the number of days of the Lease and the total number of days of the partial month. As used in this lease, the term "lease year" means the period from the Commencement Date through the succeeding 12 full calendar months (including for the first lease year any partial month from the Commencement Date until the first day of the first full calendar month) and each successive 12 month period thereafter during the Term. (b) Additional Rent. The Lessee shall be responsible for the payment of Lessee's Pro Rata Share of all property taxes for the leased premises during the term hereof, including the building and all other improvements thereon. Landlord represents and warrants that there are no other taxes or other assessments affecting the Leased Property, other than those of a normal and recurring nature on property substantially similar to the Leased Property, at the time of the execution of this Lease. All such other taxes or assessments affecting the Leased Property accruing after the Commencement Date but prior to the termination of this Lease shall not coincide with the end of a Real Estate Tax Year, then in computing the amount payable under this Section 6 for the period between the commencement of the applicable Real Estate Tax Year in question and the Termination Date or sooner termination of this Lease, the amount that would have been due from Lessee for the full year, if Lessee had been a tenant for the entire Real Estate Tax Year, shall be prorated over the portion of the Real Estate Tax Year that Lessee is a tenant in the Leased Property. Lessee's obligation to pay increased Real Estate Taxes under this Section 6 for the final period of the Lease (as well as for any earlier period not paid as of the expiration or sooner termination of the Lease) shall survive the expiration or sooner termination of this Lease. (c) During the term of the Lease, Lessee agrees to arrange for and pay all services and charges for any and all utilities used on the Leased Property, including, but not limited to water and sewer, electricity, gas, waste disposal, telephone and security related services, which may be charged or assessed by a utility or service company or political or utility subdivision. In no event shall Landlord be liable for any interruption or failure in the supply of any utilities or services to the Leased Property, unless caused by the willful acts or misconduct of the Landlord. To the extent utilities are not separately metered for the Leased Property, Lessee shall pay Lessee's Pro Rata Share for such utilities furnished to the Leased Property (all the foregoing, together with any and all penalties, fines and/or interest thereon, being hereinafter sometimes collectively referred to as "Impositions"). (d) Landlord shall furnish or cause to be furnished to Lessee, promptly after receipt of same, copies of any notices, statements or invoices with respect to any Impositions. 3 7. Use. The Lessee shall use and occupy the Building solely for the Use specified in Section 1(f) above and for no other purposes without the express written consent of the Landlord, which consent shall not be unreasonably withheld. Lessee shall comply with all laws, ordinances, orders, or regulations of any lawful authority having jurisdiction over the Building and the use thereof. 8. Assignment and Subletting. The Lessee shall not, without the prior written consent of the Landlord, which consent shall not be unreasonably withheld, assign or sublet the Building or any part thereof, or permit the use of the Building by any party other than the Lessee. Any permitted assignee shall be liable to landlord for all obligations of the Lessee hereunder, but the Lessee shall not be thereby relieved of such obligations except where, in Landlord's sole discretion, Lessee has equal or better credit. Lessee shall be entitled to retain any net profits and/or gains as a result of any permitted Lease or assignment by the Lessee. Notwithstanding the foregoing, the prohibition against assignment and subletting without Landlord's consent shall not apply to transactions with (i) a corporation into or with which Lessee is merged or consolidated or with a person to which substantially all of Lessee's assets or stock are transferred, provided such merger or transfer of assets or stock is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease Agreement and provided further, that the assignee shall have a net worth of not less than Lessee's net worth on the date immediately preceding the transaction, or (ii) any entity that controls Lessee or is controlled by Lessee or is under common control with Lessee [(either of (i) or (ii) being referred to herein as "Related Transferee"] Lessee shall notify Landlord before any such transaction is consummated and furnish to Landlord documentation that such assignee or Lessee qualifies as Related Transferee hereunder. The term "control" as used in this Section 8 shall mean (1) in the case of a corporation, ownership or more than 50% of the outstanding stock of that corporation and control over the management of such corporation, (2) in the case of a general partnership, ownership of more than 50% of the general partnership interests of the partnership and control over the management of such partnership, (3) in the case of a limited partnership, ownership of more than 50% of the general partnership interests of the partnership and control over the management of such limited partnership, and (4) in the case of a limited liability company, ownership of more than 50% of the membership interests and control over the management of the limited liability company. Further, notwithstanding the provisions of this Section, the transfer of the outstanding capital stock of any corporate tenant or subtenant as part of an initial public offering of stock registered under the Securities Act of 1933, as amended, and the increase in the amount of issued and/or outstanding stock of any corporate tenant or of a corporate subtenant, as part of a registered initial public offering of such capital stock, shall be deemed an assignment of this Lease. Lessee shall notify Landlord that such transaction is contemplated promptly after the registration statement with respect to such transaction is filed, and thereafter Lessee shall notify Landlord prior to the actual consummation of such transaction. Lessee shall furnish to Landlord documentation indicating that such transaction meets the above criteria. All parties acknowledge and agree that Lessee shall have various subtenants as of the time of execution of this agreement. 9. Lessee's Improvements. Lessee shall not be allowed to make any alterations, additions, or improvements ("Lessee's Improvements") to the Leased Property, without first obtaining the written consent of the Landlord, which consent will not be unreasonably withheld, provided same are consistent with the use of the Leased Property described herein and provided that same do not diminish the market value of the Leased Property or conflict with this Lease. If the improvements, alterations or additions are to be made by a contractor other than Landlord's, Landlord approval shall be required, which approval shall not be unreasonably withheld. In the event any of the Lessee's Improvements are to be installed on the roof of the Improvements, Lessee shall assume full responsibility for all maintenance and repair of the roof which may be attributed to such installation. All Lessee Improvements shall be constructed at Lessee's expense and shall be and remain the 4 property of Lessee, until the termination of this Lease, at which time the Lessee Improvements shall become the property of Landlord. Provided, however, at the option of the Landlord, Landlord may require Lessee, at the termination of this Lease, to remove any and all of the Lessee Improvements, Lessee shall be responsible for payment of the cost of repairing any damage arising from such removal. The provisions of this section shall survive the termination of this Lease. It is understood by both parties that this Section shall not require Lessee to obtain Landlord's permission for Lessee to remove Lessee's fixtures and equipment from the Leased Property before or after the termination of this Lease. 10. Casualty and Insurance. (a) If the Lease Property is damaged or destroyed by fire, flood, tornado or other element, or by any other casualty, this Lease shall continue in full force and | ||||||||||||||||||||||||||||||||||||||||
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