Exhibit 10.29
GROUND LEASE AGREEMENT
THIS AGREEMENT OF LEASE (referred to hereinafter as the "Lease") made
and entered into effective the 31st day of March, 1999, by and between
NORTHSIDE, LTD., an Alabama Limited Partnership (herein called "Landlord")
and SOUTH ALABAMA BANK, an Alabama State Banking Association whose address is
000 Xx. Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx, 00000, "Tenant"):
WITNESSETH:
1.01. LEASED PREMISES. Landlord, in consideration of the rents to which
reference is made herein and upon the covenants and conditions contained,
hereby leases to Tenant, and Tenant hereby leases from Landlord, the real
property located at the Northwest corner of the intersection of Northgate
Drive and Dauphin Street in the City and County of Mobile, and marked "Bank
Site" on Exhibit "A" attached hereto and by reference made a part hereof, the
legal description of which is marked Exhibit "B" and attached hereto. The said
real property, [excluding however all buildings, structures and other
improvements located thereon, all of which Tenant has purchased from Landlord
concurrently herewith (collectively, the "Improvements")], shall be referred
to hereinafter as the "Leased Premises". All oil, gas, hydrocarbons and
mineral rights with respect thereto in and under the said property have been
previously reserved by prior owners and are excepted herefrom. Landlord
reserves all minerals not previously reserved such minerals and are excepted
from this Lease; provided however that Landlord hereby waives all surface
rights appurtenant to its ownership of said minerals.
1.02. COVENANT OF TITLE. AUTHORITY AND QUIET POSSESSION. Landlord
represents and warrants to Tenant that Landlord has full right and lawful
authority to enter into this Lease for the full term hereof and to perform all
of its obligations hereunder, and that it has good and marketable title to
the Leased Premises in fee simple, free and clear of all contracts, leases,
tenancies, agreements, violations, mortgages, and other liens, encumbrances
or defects of every nature whatsoever, subject however to zoning regulations,
the easements and restrictive covenants described in Exhibit A hereto, rules
and ordinances, building restrictions and other laws and regulations now in
effect or hereafter adopted by any governmental authority having jurisdiction.
If Tenant shall discharge the obligations herein set forth to be performed by
Tenant, Tenant shall have and enjoy during the term hereof quiet and
undisturbed possession of the Leased Premises without hindrance or molestation
by anyone claiming by, through or under Landlord, subject, however, to the
exceptions, reservations and conditions in this Lease.
2.01. PURPOSES AND USE OF PREMISES. The Leased Premises shall be used for
the sole purposes of operating a full service banking business, unless such
other use is consented to by Landlord in writing. It is agreed that part of
the consideration for this Lease is Landlord's belief that Landlord's other
properties on the North side of Dauphin Street will be benefitted as a result
of having a full service operating bank at this location and the rents set
forth are fixed accordingly. Consequently, any requests for a change in use
of the premises would contemplate an increased rent including a percentage
rent clause. In the event Tenant ceases to operate a full service bank on
the Leased Premises for a period of one hundred eighty (180) consecutive days
for any reason other than casualty loss, Landlord shall have the right to
terminate this Lease upon sixty (60) days written notice to Tenant, subject
to the following conditions:
(a) Landlord's right to terminate shall be exercised, if at all, not
later than six (6) months from date of the cessation of operation of a full
service bank as aforesaid; and
(b) Landlord shall purchase, and Tenant sell, all of Tenant's right,
title and interest in the Improvements and any additions thereto made by
Tenant on the following terms and conditions:
(i) The purchase price for the Improvements and any
such additions shall be computed as follows: The sum of Sixty-Five
Thousand and No/100 Dollars ($65,000.00) shall be amortized
over a term of thirty (30) years and the purchase price shall be
the unamortized portion remaining at the time of the effective
date of the termination of the Lease. For example, if the Lease
is terminated on a date which is ten(10) years and six (6) months
after the Commencement Date, the purchase price would be
Forty-Two Thousand Two Hundred Fifty and No/100 Dollars
($42,500.00), computed as follows: $65,000.00 minus ($65,000/30 x
10.5) equals $42,250.00.
(ii) Conveyance shall be made by warranty deed
subject to no liens or encumbrances other than those set forth in
Landlord's deed of conveyance of the Improvements to Tenant
concurrently herewith.
(iii) The closing date of the purchase and sale
and the effective date of the termination of the Lease shall
occur not later than sixty (60) days after date of Landlord's
notice to terminate the Lease.
(iv) Rent and other sums paid to Landlord for
periods subsequent to the termination date of this Lease shall be
prorated and credited to Tenant.
3.01. PRIMARY TERM. The primary term of this Lease shall be for a period
of fifteen (15) years commencing on April 1, 1999 ("Commencement Date"), and
expiring at midnight on March 31, 2014, unless the term is extended as
provided herein.
3.02. LEASE YEAR. As used in this Lease, "Lease Year" shall mean the
consecutive twelve (12) calendar month period beginning (i) on the first day
of the calendar month next succeeding the Commencement Date, unless the
Commencement Date falls on the first day of the calendar month (but if not,
then including in the first Lease Year the period, if any, between said
Commencement Date and the first day of the next succeeding calendar month),
and (ii) if this Lease is extended as herein provided, on the first day of
each Extended Term.
3.03. EXTENDED TERM. "Extended Term" as used in this Lease, shall mean
each five year period for which Tenant shall have effectively elected to
extend this Lease as provided herein.
4.01. RENTAL DURING PRIMARY TERM. Tenant shall pay to Landlord as rental
for the Leased Premises for the Primary Term of the sum reflected in the
following schedule, payable in monthly installments, in advance, the first
installment being due on the first day of the Commencement Date, and another
installment on the first day of each calendar month thereafter throughout the
Primary Term, as follows:
Per Year Per Month
(a) Years 1-5 plus 15 days $55,000.00 $4,583.33
(b) Years 6-10 $63,250.00 $5,270.83
(c) Years 11-15 $72,737.50 $6,061.46
If the Commencement Date shall fall on a day other than the first day of the
month, rent for such partial period shall be prorated and paid with the first
installment of rent.
4.02. RENT REDUCTION DURING FIRST TWO YEARS. Commencing with the Primary
Term of the Lease and extending for a period up to but not exceeding two (2)
years, the Tenant shall pay to Landlord, as rent, the sum of $4,583.33 per
month less and except the monthly rental it is then paying to its present
Landlord under the terms of that certain Lease dated May 2nd, 1997 by and
between Dauphin 65 Partners, LTD., as Landlord and The Bank of Mobile, as
Tenant, said rent being a maximum of $3,648.83 per month. Tenant agrees to
use Tenant's best efforts to sublease said premises under lease with Dauphin
65 Partners, LTD. and agrees to obtain from Dauphin 65 Partners, LTD. full
cooperation to sublease the property. In the event said premises are
subleased or Tenant is otherwise released from the obligation to pay rent
under said lease, then and in either event, this rent reduction shall cease
and Tenant shall commence paying the full monthly rental of $4,583.33. In any
event, at the end of the first two (2) years, the annual minimum rent payable
to Landlord will be $55,000.00 per year, payable $4,583.33 per month.
5.01. OPTIONS TO EXTEND.
(a) Provided this Lease is in effect at the end of the Primary term and
Tenant is not then in default hereunder, and provided that Tenant shall have
given Landlord written notice at least six (6) months prior to the expiration
of the Primary Term of its election to extend this Lease for a "First Extended
Term", the term of this Lease shall be extended for a first five (5) year
extended term commencing at the expiration of the Primary Term and ending at
midnight on the last day of the twentieth Lease Year (the "First Extended
Term") on the same terms and conditions herein set forth except that the
monthly rental shall be $6,970.68.
(b) Provided this Lease is in effect at the end of the First Extended
Term and Tenant is not then in default hereunder, and provided that Tenant
shall have given Landlord written notice at least six (6) months prior to the
expiration of said First Extended Term of its election to extend this Lease
further for a "Second Extended Term" the term of this Lease shall be extended
for a second five (5) year extended term commencing at the expiration of the
First Extended Term and ending at midnight on the last day of the twenty
fifth Lease Year (the "Second Extended Term") on the same terms and
conditions herein set forth except that the monthly rental shall be
$8,016.28.
(c) Provided this Lease is in effect at the end of the Second Extended
Term and Tenant is not then in default hereunder, and provided that Tenant
shall have given Landlord written notice at least six (6) months prior to the
expiration of said Second Extended Term of its election to extend this Lease
further for a "Third Extended Term", the term of this Lease shall be extended
for a third five (5) year extended term commencing at the expiration of the
Second Extended Term and ending at midnight on the last day of the thirtieth
Lease Year (the "Third Extended Term") on the same terms and conditions
herein set forth except that the monthly rental shall be $9,218.72.
6.01. TAXES AND ASSESSMENTS.
(a) The Leased Premises shall be assessed separately from other
property of Landlord. Throughout the Primary Term and all applicable extended
terms, in addition to the rental payments specified above, and provided that
Landlord furnishes Tenant prompt notice of all tax bills for same, Tenant
shall pay before the same become delinquent, all ad valorem taxes, user fees
and other charges which may be levied or assessed against, upon or with
respect to the Leased Premises by any state, county, city or other
governmental agency or taxing authority, whether levied against Landlord or
Tenant at any time or times and whether levied against the land, buildings or
improvements of the Leased Premises, and shall furnish written evidence
satisfactory to Landlord that all of same have been paid. Also, Tenant shall
pay all taxes and assessments that may be lawfully charged, assessed, or
levied upon or with respect to the Improvements and any trade fixtures,
equipment or other property of Tenant situated in or upon the Leased Premises
at any time or times and all license fees, sales and use taxes which may be
lawfully imposed upon or with respect to the business or operations of Tenant
in or on the Leased Premises, and save Landlord harmless from same. All
taxes and charges levied or assessed against, upon or with respect to the
Leased Premises and the Improvements for the first and last years of this
Lease shall be prorated between the parties as of the date of this Lease and
the date of termination, respectively.
(b) Tenant shall have the right to contest or protest any assessment
for taxes for which Tenant is liable hereunder, provided that Tenant takes
such action as is necessary to postpone foreclosure of any tax lien resulting
from any non-payment of taxes, and Tenant agrees to pay all or any portion of
such taxes which may be finally determined to be due and payable.
6.02. TAXES ON RENTALS. Except as provided in Section 20.01 hereof, in
the event that any federal, state, local or other governmental authority
shall impose or assess any tax, levy or other charge on or against all or any
part of the rentals paid or to be paid by Tenant under the terms of this
Lease, and Landlord is thereby required to collect from Tenant and/or pay
such tax, levy or charge to such authority, Tenant shall, within ten (10)
days from written demand therefor, pay to or reimburse Landlord (as the case
may be) all such taxes, levies, and charges as may be imposed or assessed
which for the purpose of this Lease, shall be deemed to be due from Tenant as
additional rent.
7.01. IMPROVEMENTS AND ALTERATIONS.
(a) Simultaneously with the execution of this Lease, Landlord has
conveyed the Improvements to Tenant by separate instrument, including the
existing building located thereon (the "Building"). Tenant agrees that Tenant
will not make any structural or exterior changes to the Building without first
obtaining Landlord's written consent in accordance with the provisions of
subparagraph (b) herein. In the event Tenant desires to make structural or
exterior changes or modifications to the Building, Tenant shall submit to
Landlord plans and specifications for such changes, including front, rear and
side elevations (collectively, the "Plans"), said Plans to be submitted and
authorization obtained prior to any structural or exterior work being
performed. The Improvements on the Leased Premises and any additions thereto
made during the term of the Lease or any extension thereof, shall remain the
property of the Tenant until the expiration or termination of the Lease and
Tenant shall have the right to remove any of Tenant's personal property,
trade fixtures or furnishings, and exterior signage at any time during the
term of this Lease or at its expiration or other termination, subject to the
terms and conditions of the Lease. Tenant may, without Landlord's consent,
obtain financing for such improvements and insure its interest in same.
Landlord does not agree to subordinate any of Landlord's rights to any
financing institution of Tenant.
(b) Landlord agrees that the consent required by subparagraph (a) above
will not be unreasonably withheld or delayed. Unless within thirty (30) days
from receipt by Landlord of any Plans submitted by Tenant, Landlord has
furnished Tenant written approval or disapproval of same, said Plans shall be
deemed approved. Should Landlord disapprove said Plans or any part thereof,
Landlord shall specifically set forth the reason forming the basis of such
disapproval.
(c) In no event shall exterior changes to the Building be deemed to
mean or include signs, logos or similar identifying structures and symbols,
or decorative improvements. A structural change shall mean any enlargement
in or reduction of the size of the Building or any modification to or in the
roof or load bearing walls which affects the structural integrity thereof.
7.02. TITLE TO BUILDING AND FIXTURES.
(a) Title to the Improvements of whatever nature at any time located on
the Leased Premises shall be and remain in Tenant throughout the term of this
Lease and at the expiration or other termination thereof title to any building
and improvements then located on the Leased Premises shall vest in Landlord,
free and clear of any and all liens and encumbrances which may have been
placed on the Leased Premises by Tenant or as a result of the act or acts of
Tenant.
(b) Title to all trade fixtures, equipment, signs, appliances,
furniture and other personal property of any nature at any time installed by
or for Tenant on the Leased Premises shall be and remain in Tenant and none
of such items shall be deemed a part of the realty. Any of such items may be
removed from the Leased Premises at any time during the term hereof provided
Tenant shall repair any damage to the Improvements, including but not limited
to the Building, occasioned by such removal. Any such item not removed during
the term hereof shall become the property of Landlord unless Landlord
notifies Tenant in writing prior to the end of the term to remove such items,
in which event Tenant shall cause such items to be removed before the end of
the term.
7.03. CONDITION ON EXPIRATION OR TERMINATION. At the expiration hereof,
or upon any termination of this Lease, Tenant shall surrender the Improvements
to Landlord in the same condition they were in on the Commencement Date of
this Lease save and except for alterations and additions as permitted herein,
loss by fire or other casualty, reasonable wear and tear, and less any
portion which may have been taken pursuant to condemnation proceedings;
however, it is understood that all trade fixtures, including without
limitation any bank vault doors and steel linings; bank alarm systems and
bank safe deposit systems supplied and installed at the sole cost and expense
of Tenant may be removed from the property at any time if Tenant shall not be
in default hereunder. If so removed, Tenant, at its sole expense, shall
promptly repair all damages to the Improvements resulting from such removal.
8.01. LIENS. Tenant shall cause all work performed on the Improvements
and the Leased Premises to be performed in a good and workmanlike manner and
shall promptly discharge upon notice from Landlord, in order to prevent
foreclosure thereof, any lien upon the same created or permitted to be created
by Tenant. Tenant shall pay all assessments against the Improvements or the
Leased Premises, including without limitation, water, sewer and other utility
connection fees and charges, whether now or hereafter placed against the
Improvements or the Leased Premises, when the same shall become due and
whether or not the same are charged in lieu of hookup or connection fees.
9.01 UTILITIES. Tenant shall pay for all water, sewage, service charges,
fuels, electricity, steam, gas and other utilities used in, on or for the
Leased Premises for any purpose. In no event shall Landlord be obligated to
supply, or be liable for any interruption or failure in the supply of any
such utilities to the Leased Premises. Any connection or "hookup" fees or
other fees or charges that are charged by any governmental authority with
respect to any drainage, sewer, water, gas, electric or other utilities used
in connection with the Improvements or the Leased Premises shall be paid by
Tenant.
10.01. MAINTENANCE. During the term and any extended term hereof, Tenant
shall keep the buildings, parking and drive ways, landscaping, signage,
subsurface improvements and all other improvements on the Leased Premises in
a state of good order, condition and repair. Tenant shall from time to time,
make any necessary and proper repairs, replacements, and/or restorations to
buildings and/or improvements, it being understood that Landlord shall under
no circumstances be responsible for the making of any such repairs,
restoration and/or maintenance of any kind or nature upon the Leased
Premises. Structural and exterior changes in the Building are subject to the
provisions of paragraph 7.01 hereof.
11.01. LANDLORD'S RIGHT TO INTERVENE. If Tenant refuses or neglects to
repair property as required hereunder and to the reasonable satisfaction of
Landlord as soon as reasonably possible after written demand, Landlord may make
such repairs during reasonable times without liability to Tenant for any loss or
damage that may accrue to Tenant's merchandise, fixtures or other property or to
Tenant's business by reason thereof and upon completion thereof, Tenant shall
pay Landlord's reasonable costs of making such repairs upon presentation of
the xxxx therefor, as additional rent.
12.01. FIRE AND CASUALTY INSURANCE. Tenant shall keep the buildings and
all permanent improvements on the Leased Premises insured for their full
replacement value against loss or damage by fire, windstorm, explosion, and
other risks covered by the standard bureau form of "all risk" coverage
insurance policies currently in use in Alabama. Tenant shall cause Landlord
to be named as a loss payee on such policies, as its interest may appear.
13.01. DESTRUCTION OF IMPROVEMENTS. In the event that the Improvements
on the Leased Premises are damaged or destroyed or rendered untenable in
whole or in part by any fire, the elements or any other cause, Tenant, at its
sole expense, shall promptly restore the Improvements as nearly as possible
to their condition prior to such damage or destruction or in accordance with
such Plans as Landlord may approve as provided in paragraph 7.01 (a) and (b),
and the proceeds of the aforesaid fire and casualty insurance shall be
applied to the costs of such repair or restoration. In the event at any time
within 24 months of the expiration of the primary term or any Extended Term,
and provided the Tenant shall not have given notice of renewal or extension,
the Improvements are completely destroyed or so damaged by fire or other
casualty as to render them unfit for their intended use, and repair or
restoration is not economically feasible, the Tenant may, in lieu of
restoration, elect to remove the remnants of such damaged building to the
satisfaction of Landlord. In such event, the proceeds of such insurance
shall be applied first to the balance remaining, if any, of any mortgage upon
the leasehold estate, second to the cost of removing the remnants and debris,
and the balance, if any, shall be paid to the Landlord. In all events, there
shall be no abatement or reduction in the rental payable hereunder, and this
Lease shall not terminate on account of such damage or destruction.
14.01. LEASEHOLD MORTGAGES. Tenant is hereby given the right, without
Landlord's prior written consent, to mortgage its interest in this Lease, and
to assign this Lease and any sublease as collateral security for such
leasehold mortgage, upon the condition that all rights acquired under any
such leasehold mortgage shall be subject to each and all of the covenants,
conditions and restrictions set forth in this Lease. If Tenant shall mortgage
this leasehold, and if the holder of any such leasehold mortgage shall send
to Landlord a certified copy thereof, specifying the name and address of the
mortgagee, Landlord agrees that so long as any such leasehold mortgage shall
remain unsatisfied of record, or until written notice of satisfaction is
given by the holder to Landlord, the following provisions shall apply:
(a) There shall be no cancellation, surrender, or modification of this
Lease by joint action of Landlord and Tenant, without the prior written
consent of the leasehold mortgagee.
(b) Landlord shall, upon serving Tenant with any notice of default,
simultaneously serve a copy of such notice upon the holder of such leasehold
mortgage. The leasehold mortgagee shall thereupon have the same period, after
service of such notice upon it, to remedy or cause to be remedied the
default(s) complained of, and Landlord shall accept such performance by or at
the instigation of such leasehold mortgagee as if the same had been done by
Tenant.
(c) Anything herein contained to the contrary notwithstanding, if any
default shall occur which, pursuant to any provision of this Lease entitles
Landlord to terminate this Lease, or regain possession of the Leased Premises,
and if before the expiration of thirty (30) days from the date of such
leasehold mortgagee's receipt of service of notice of termination or of
Landlord's regaining possession of the Leased Premises, such leasehold
mortgagee shall have notified Landlord of its desire to nullify such notice
and shall have brought current all rent and other payments herein provided
for, and then in default, and shall have complied or shall commence the work
of complying with all of the other requirements of this Lease, if they are
then in default, and shall prosecute the same to completion with reasonable
diligence, then in such event, Landlord shall relinquish any possession
thereof.
(d) If the Landlord shall elect to terminate this Lease by reason of any
default of Tenant, the leasehold mortgagee shall not only have the right to
nullify any notice of termination by curing such default, as aforesaid, but
shall also have the right to postpone and extend the specified date for
termination of this Lease or the regaining of possession of the Leased
Premises, as fixed by Landlord in its notice of termination, for a period of
not more than six (6) months, provided that such leasehold mortgagee shall
cure or cause to be cured any then existing monetary default and meanwhile
pay the rent and comply with and perform all of the other terms, conditions
and provisions of this Lease on Tenant's part to be complied with and
performed, other than defaults which can only be cured by one in possession
of the Leased Premises; and provided further that the leasehold mortgagee
shall forthwith take steps to acquire or sell Tenant's interest in this Lease
by foreclosure of the leasehold mortgage or otherwise, and shall prosecute
the same to completion with all due diligence. If at the end of said six (6)
month period the leasehold mortgagee shall be actively engaged in steps to
acquire or sell Tenant's interest herein, the time for said leasehold
mortgagee to comply with the provisions of this Subsection (d) shall be
extended for such period as shall be reasonably necessary to complete such
steps with reasonable diligence and continuity. In the event of foreclosure,
provided this Lease is not then in default, the Landlord agrees that the
purchaser at foreclosure sale may assume this Lease, and in the event it is
purchased by the leasehold mortgagee, or acquired by assignment in lieu of
foreclosure, that the leasehold mortgagee may assign its interest to a
subsequent purchaser, who will also be permitted to assume this Lease.
(e) If the Tenant declines to allow the automatic renewal of any option
provided to it in this Lease, Landlord agrees to notify any such leasehold
mortgagee in writing of such failure, and any such leasehold mortgagee may
exercise any such extension or renewal option on behalf of Tenant by
notifying Landlord to this effect in writing within thirty (30) days of
receipt of such notice.
(f) Nothing herein contained shall require any leasehold mortgagee to
cure any default of Tenant.
(g) Landlord shall upon request, execute, acknowledge, and deliver to
each leasehold mortgagee an agreement prepared at the sole cost and expense
of Tenant, in form satisfactory to such leasehold mortgagee, confirming the
agreements in all of the provisions of this Section 14.01. The term
"mortgage", whenever used herein, shall include whatever security instruments
are used in the locale of the Leased Premises, such as, without limitation,
deeds of trust, security deed and conditional deeds, as well as chattel
mortgages and security agreements, and said term shall also include any
instruments required in connection with a sale-leaseback transaction.
14.02. ENVIRONMENTAL MATTERS.
(a) Tenant will not introduce or cause to be introduced on the Leased
Premises any toxic or hazardous materials, pollutants, contaminants or
hazardous wastes in violation of any Environmental Law, as defined
hereinafter. As used herein, "Environmental Law" shall mean any one or more
of all federal, state and local environmental protection, occupational,
health, safety and similar laws, ordinances, restrictions, licenses, and
regulations, including, without limitation, the Federal Water Pollution
Control Act (33 U.S.C. Sec. 1251, et. seq.), Resource Conservation and
Recovery Act (42 U.S.C. Sec. 6901, et. seq.), Safe Drinking Water Act
(42 U.S.C. Sec. 300f, et. seq.), Toxic Substances Control Act (15 U.S.C. Sec.
2601, et. seq.), Clean Air Act, (42 U.S.C. Sec. 7401 et seq.), Comprehensive
Environmental Response, Compensation and Liability Act, (42 U.S.C. Sec. 9601
et. seq.), Hazardous Materials Transportation Act (49 U.S.C. Sec. 1802, et.
seq.), and other comparable federal, state or local laws, statutes,
ordinances, orders, decrees, rules, and/or regulations, regulating, relating
to or imposing liability or standards or conduct concerning any hazardous,
toxic or dangerous waste substance or material as now or at any time
hereafter in effect. In the event remediation of any environmental matter
(other than an environmental matter caused by Tenant's negligence) shall cause
the Leased Premises to be rendered unusable for Tenant's business, in whole
or in part, the rent shall be equitably abated. Tenant, at its election and
at its expense may cause a "phase one" or other environmental test,
inspection or examination of the Leased Premises to be made.
(b) In the event of any discharge, spillage, or other introduction on
the Leased Premises of any toxic or hazardous materials, pollutants,
contaminants, or hazardous wastes as a result of any conduct of or omission
by Tenant or any employee or agent of or independent contractor engaged by
Tenant, Tenant shall promptly contain, remove, or mitigate the same in
accordance with applicable Environmental Law.
(c) Landlord indemnifies, agrees to defend, and shall hold Tenant
harmless from and against all liability, laws, claims, damages and expenses,
including, but not limited to, reasonable attorneys' and experts' fees, clean
up or other remediation costs and expenses, and governmental fines, arising
out of or in connection with the existence of any toxic or hazardous materials,
pollutants, contaminants, or hazardous wastes on the Leased Premises, or of
the violation of any Environmental Law in connection with the Leased Premises
occurring on or before the date of this Lease. Landlord has no knowledge of
the existence of any toxic or hazardous materials, pollutants, contaminants
or hazardous wastes on the Leased Premises, or of the violation of any
Environmental Law in connection with the Leased Premises.
(d) Tenant indemnifies, agrees to defend and shall hold Landlord
harmless from and against all liability, laws, claims, damages and expenses,
including, but not limited to, reasonable attorneys' and experts' fees, clean
up or other remediation costs and expenses, and governmental fines, arising
out of or in connection with the existence of any toxic or hazardous
materials, pollutants, contaminants or hazardous wastes on the Leased
Premises first occurring after the date hereof, or of the violation of any
Environmental Law in connection with the Leased Premises first occurring
after the date of this Lease, except and excluding in all events any and all
liability, laws, claims, damages and expenses occurring at any time
heretofore or hereafter which arise or have arisen from the presence, whether
known or unknown on the date hereof, of any toxic or hazardous materials,
pollutants, contaminants, or hazardous wastes on the Leased Premises or which
occur after the date hereof as the result of the violation of any
Environmental Law prior to the date of this Lease. Tenant has no knowledge
of the existence of any toxic or hazardous materials, pollutants,
contaminants, or hazardous wastes on the Leased Premises, or of the violation
of any Environmental Law in connection with the Leased Premises.
15.01. PUBLIC LIABILITY INSURANCE.
(a) Tenant will provide and maintain public liability and property
damage and commercial general liability insurance policy or policies which
will (x) insure Tenant and Landlord against all claims (including all costs
and expenses of defending same) for the loss of life or injuries to persons
or damage to property occurring upon, in or about the Leased Premises, and
(y) contain a contractual liability clause insuring Tenant's indemnity in
subparagraph (d) herein, in at least the following amounts:
(i) $2,000,000.00 in respect to each injury or
death, each accident or disaster;
(ii) $2,000,000.00 in respect to personal injury or
death of each person;
(iii) $2,000,000.00 in respect to damage or
destruction of property in each accident or disaster.
(b) Unless otherwise agreed by Landlord and Tenant from time to time,
commencing with the sixth (6th) Lease Year, the minimum insurance requirements
set forth above for each five (5) year period during the remainder of the
Primary Term and each Extended Term shall be one hundred ten (110%) percent
of the minimum insurance required for the immediately preceding five (5)
year period.
(c) Tenant agrees that the insurance company issuing such policy shall
have an A.M. Best rating of AA or better, or be reasonably approved by Landlord.
Tenant shall furnish Landlord with certificates of such insurance and all
renewals thereof, including certificates evidencing the contractual liability
coverage as required in clause (y) of subparagraph (a) of this paragraph
15.01.
(d) Tenant shall indemnify and save Landlord harmless from and against
any and all claims, actions, damages, liability and expense in connection with
the loss of life, personal injury and/or damage to property arising from or
out of any occurrence in, upon or about the Leased Premises, occurring after
the date hereof which is occasioned wholly or in part by the negligence or
wilful or wanton misconduct of Tenant, its agents, contractors or employees
acting within the scope of their employment or by its guests or invitees
while on the Leased Premises. Tenant's indemnification of Landlord hereunder
shall not apply or extend to liabilities of Landlord arising from the
negligence or misconduct of Landlord or its agents or employees, nor shall it
apply to any liabilities arising from ownership, possession or use of the
Leased Premises prior to the date hereof. Tenant's liability for indemnity
under this subparagraph shall be limited to an aggregate of $500,000.00 in
respect of each claim, which shall be in addition to and not in lieu of the
coverage afforded Landlord under the policies to be maintained by Tenant
under subparagraph (a) of this paragraph 15.01., which policies shall be
deemed to be primary coverage to the extent insured under this indemnity.
16.01. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall have the right to assign its interest in this Lease and
to sublet all or any portion of the Building and Leased Premises without the
consent of Landlord, but it is expressly agreed that any assignment or
subletting shall not release Tenant from any liability hereunder nor modify
any terms or conditions of this Lease; provided, however, that no assignment
shall be effective against Landlord until there is delivered to Landlord a
duplicate original of the assignment, in recordable form, containing the
assignee's name and address and the assignee's assumption of this Lease and
all of Tenant's obligations hereunder.
(b) Anything in subparagraph (a) to the contrary notwithstanding, it is
expressly agreed and understood by the parties that any assignment of the
Lease or subletting of the Building shall be subject to the limitations on
use of the Leased Premises as set forth in paragraph 2.01 of this Lease and
shall require the consent of Landlord as provided in said paragraph.
17.01. CONDEMNATION.
(a) Should the Leased Premises be taken by condemnation (or sold under
threat of condemnation) in its entirety in the exercise of the power of
eminent domain, this Lease shall automatically terminate and be of no further
force and effect as of the date that possession of the Leased Premises is
surrendered to the condemning authority.
(b) Should the Building or the Leased Premises be partially condemned
or taken in the exercise of the power of eminent domain (or a part sold in
lieu thereof) to the extent that (i) the portion of the Building or the
Leases Premises remaining after such taking does not, in the reasonable
judgment of Tenant, constitute an economically viable unit affording Tenant
substantially the same economic benefit as enjoyed by Tenant prior to such
taking or sale, or (ii) any portion of any driveways or other access way
which is reasonably necessary to the business on the Leased Premises is taken
and as a result thereof Tenant is denied material access to the Leased
Premises, then and in each of said events, Tenant shall have the option to
terminate this Lease upon written notice to Landlord within three (3) months
after the date that the possession of the property so taken is surrendered to
the condemning authority, such termination to be effective thirty (30) days
after date of Tenant's notice of election to terminate.
(c) In the event of a taking by condemnation and Tenant is not entitled to
or does not elect to exercise its right to terminate, then this Lease shall
continue in full force and effect, except that the rental shall be reduced as
of the date the condemning authority takes possession, so that for the
remainder of the term and all extensions thereof, Lessee shall pay only such
portion of the rental as the rental value of the part remaining after
condemnation bears to the rental value of the entire Leased Premises at the
date of condemnation. In the event the parties are unable to agree upon such
rental values, such values shall be determined by appraisal as set forth in
paragraph 30.01 hereinafter.
(d) In the event that this Lease is automatically terminated as a result
of condemnation as provided hereinabove, the award made by the condemning
authority, or the compensation made or paid by such authority, in lieu of
condemnation, shall be allocated between Landlord and Tenant as provided in
subparagraph (e) hereunder. In the event of any partial condemnation or
taking which does not effect a termination of this Lease, then the award made,
or compensation paid shall be applied to the costs of repairing or restoring
the improvements and the rent shall be reduced as provided in subparagraph
(c) above; or if Tenant has the right and elects to terminate, allocated to
Landlord and Tenant as provided in subparagraph (e) hereinbelow.
(e) The award made or proceeds paid (the "Award") as a result of any
condemnation or sale in lieu thereof shall be allocated as follows:
(i) In the event this Lease is not terminated, then
the Award shall be applied as provided in subparagraph (d)
above.
(ii) In the event this Lease is terminated, then the
value of each of the Leased Premises and the Improvements
shall be separately determined, and the Award shall be
apportioned between the respective values of the Leased
Premises and the Improvements and paid as follows:
(A) The amount of the Award apportioned to
the Leased Premises shall be paid to Landlord; and
(B) The amount of the Award apportioned to
the Improvements shall be allocated between Landlord and
Tenant in accordance with the formula used in
subparagraph (b)(i) of paragraph 2.01 for computing the
purchase price in the event of termination of this Lease
and purchase of the Improvements by Landlord.
(iii) In the event the parties cannot reach
mutual agreement as the respective values of the Leased
Premises and/or the Improvements, then such values shall
be determined by appraisal as set forth in paragraph
30.01 hereinafter.
18.01. DEFAULT OF TENANT. The happening of any one or more of the
following events shall separately and severally constitute a default
hereunder, viz:
(a) In the event the Tenant should fail to pay any one or more of said
installments of rent as and when the same becomes due and does not pay same
within ten (10) days after Tenant's receipt of written notice of such failure,
or to fail to pay any amount due Landlord and secured as additional rent
hereunder within ten (10) days after Tenant's receipt of written notice of such
failure;
(b) In the event Tenant removes, attempts to remove or permits to be
removed from said Leased Premises, except in accordance with this Lease or in
the usual course of trade or with the prior written consent of Landlord, the
goods, furniture, effects or other property of the Tenant brought thereon;
(c) In the event an execution or other legal process be levied upon the
goods, furniture, effects or other property of the Tenant brought on said
Leased Premises, or upon the interest of the Tenant in this Lease;
(d) In the event a petition in bankruptcy or a petition under the
Bankruptcy Act, or any amendment thereto, is filed by or against the Tenant
or the Tenant is adjudged a bankrupt;
(e) In the event any assignment creditors is made by the Tenant; for
the benefit of creditors is made by the Tenant;
(f) In the event of the appointment of a Receiver of Tenant's property;
(g) In the event the Tenant, before the expiration of the Primary Term or
any Extended Term, vacates said Leased Premises or abandons the possession
thereof, without having first provided notice to Landlord at least ninety (90)
days in advance thereof;
(h) In the event that Tenant shall cause or allow a mechanics' and
materialmans' lien to accrue against the Leased Premises; or
(i) In the event the Tenant violates any of the other terms, conditions or
covenants on the part of the Tenant herein contained.
Notwithstanding any other provision to the contrary, Tenant shall not be deemed
in default under this Lease if with respect to any non-monetary default, Tenant
cures such default within thirty (30) days from the date Tenant is deemed to
have received written notice thereof from Landlord (or if such default cannot
be cured within said thirty (30) day period, Tenant commences to cure such
default within such thirty (30) day period and diligently pursues the same).
19.01. REMEDIES OF LANDLORD. In the event of default by Tenant under this
Lease, Tenant shall not be relieved of its obligation to make the monthly
payments of rent and other payments herein reserved, at the time and in the
manner provided. In such event, Landlord may, at Landlord's option, relet the
Leased Premises, as agent for and in the name of Tenant, at any rental and
for any term obtainable, applying the proceeds thereof, first, to the payment
of such expenses as Landlord may incur in reletting, second, to the payment of
said rent or other payments as the same may from time to time become due, and
lastly, toward the fulfillment of the other covenants and obligations of the
Tenant herein contained. Any balance then remaining shall be paid over to
Tenant. Should the Landlord recover or take possession of said premises and
be unable to relet the same so as to realize a sum equal to the rent and
other payments hereby reserved, Tenant shall pay to Landlord any and all loss
or difference for the residue of the term. Nothing mentioned in this Section
shall be construed to waive Landlord's right to cancel this Lease in event of
any default on the part of Tenant, all of which rights of cancellation are
herein specifically reserved by Landlord. The remedies herein provided for
shall be cumulative and the exercise of any one or more of which shall not be
a bar to the exercise of any other remedies herein specified, nor of any
remedies to which Landlord may be entitled under the laws of the State of
Alabama.
19.02. LATE CHARGES. In addition to the foregoing remedies, if Tenant
fails to pay Landlord the monthly rent herein specified for more than ten
(10) days after the same becomes due and payable, then Tenant shall pay
Landlord a late charge of five (5%) percent for each month that the rent was
not paid within ten (10) days of its due date.
20.01. NET LEASE CLAUSE. It is the intention of these presents that the
Landlord shall receive the rents and additional costs chargeable to Tenant
herein reserved and any sum or sums which shall or may become payable
hereunder by the Tenant under any contingency, free from all taxes, charges,
improvements, assessments, expenses, damages, and deductions of every kind or
sort whatsoever, and that Tenant shall and will hereby expressly agree to pay
all such sums as "additional rent", and such other sums which, except for the
execution and delivery of these presents, would have been chargeable against
said premises and payable by the Landlord. Tenant, however, shall not be
under any obligation to pay any franchise or income tax or withholding tax
which is or may become payable by Landlord, or any gift, inheritance,
transfer, estate, or succession tax by reason of any existing law or any law
which may hereafter be enacted, or any commission for collection or rentals
hereunder.
21.01. GOVERNMENT REGULATIONS. Tenant will, at Tenant's sole cost and
expense, comply with all the requirements of all county, municipal, state,
federal and other applicable governmental authorities, now in force, or which
may hereafter be in force, pertaining to the Leased Premises, and shall
faithfully observe in the use of the Leased Premises all municipal and county
ordinances and state and federal statutes now in force or which may hereafter
be in force.
22.01. ATTORNEY'S FEES.
(a) In the event of any default by Tenant and the subsequent employment
by Landlord of an attorney for the collection of any amount due hereunder or
for the institution of any suit filed for the purpose of enforcing the
correction of any default hereunder or seeking possession of the Leased
Premises, or on account of bankruptcy proceedings by or against Tenant,
Tenant agrees to pay and shall be taxed with a reasonable attorney's fee for
the services of such attorney.
(b) Notwithstanding the foregoing, in case either Landlord or Tenant
commences any litigation against the other involving this Lease or any
provisions hereof or any rights hereunder, the non-prevailing party to such
litigation shall pay to the prevailing party the reasonable attorney's fees
and other expenses incurred by the prevailing party in any such litigation.
23.01. LIMITATION OF LIABILITY. Anything to the contrary contained in
this Lease notwithstanding, it is specifically understood and agreed that
there shall be absolutely no personal liability on the part of the Landlord
or any distributee, assignee or grantee in the event of any of Landlord's
interest in the Leased Premises be distributed, assigned or conveyed
("successors and assigns") with respect to any of the terms, covenants,
conditions and provisions of this Lease, and Tenant shall look solely to the
equity of Landlord, its successors and assigns, in the Leased Premises for
the satisfaction of each and every remedy of Tenant in the event of any
breach of Landlord, its successors and assigns, of any of the terms,
conditions, covenants and provisions of this Lease to be performed by
Landlord, such exculpation of personal liability being absolute and without
exception whatsoever.
24.01. NOTICES AND PAYMENTS.
(a) All notices to be given to Landlord hereunder shall be in writing
and mailed to Xxxxxxxx & White-Spunner, Inc. 0000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxx, 00000, until Tenant is notified otherwise in writing. All notices
to be given to Tenant hereunder shall be in writing and mailed to Tenant at
its address hereinabove stated until such time as Landlord is notified
otherwise in writing. The mailing of all such notices shall be by U. S.
Registered or Certified Mail, postage prepaid, and receipt requested.
(b) Landlord hereby designates Xxxxxxxx & White-Spunner, Inc. as its
agent to collect all rents and other payments due or to become due Landlord
under this Lease, and payment to said agent shall constitute payment to
Landlord, until such time as Tenant is notified otherwise in writing by
Xxxxxxxx & White-Spunner, Inc. or by Landlord and a new rental agent is
appointed by Landlord and said agent accepts such appointment in writing
delivered to Landlord and Tenant. Under no circumstances shall Tenant be
obliged or expected to see to the proper application by Landlord or Landlord's
designated rental agent or substitute rental agent of any rentals or other
payments made by Tenant to Landlord or to such agent or substitute agent.
25.01. SUCCESSIVE INTERESTS. The provision hereof shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns.
26.01. ZONING RESTRICTIONS ETC. The Leased Premises and this Lease are
subject to all applicable zoning restrictions and other city, county, state,
federal or other governmental rules, regulations, laws or requirements to
the lien for current ad valorem taxes; and to all easements and other matters
shown on Exhibit A. Landlord represents and warrants that the Leased Premises
is currently zoned B-3 and that such zoning classification permits Tenant's
permitted and intended use of the Leased Premises hereunder.
27.01. WARRANTIES OF LANDLORD. The Landlord hereby represents and
warrants to the Tenant that Landlord is the sole owner of the Leased Premises,
and has taken all necessary action to authorize the execution, delivery, and
performance of this Lease, which constitutes its legally valid and binding
agreement enforceable against Landlord in accordance with the terms of this
Lease.
28.01. COVENANTS RUNNING WITH THE LAND. All of the covenants,
agreements, conditions and restrictions set forth in this Lease are intended
to be and shall be construed as covenants running with the land, binding upon,
inuring to the benefit of and enforceable by the parties hereto and their
successors and assigns during the term of this Lease and all extensions
hereof.
29.01. MEMORANDUM OF LEASE. Upon the request of Tenant, Landlord will
execute, acknowledge and deliver to Tenant a short form or memorandum of
Lease in recordable form setting forth the parties hereto, the legal
description of the Leased Premises, the term of this Lease, the options
granted to Tenant hereunder and such other provisions as Tenant may elect to
incorporate therein. Tenant shall pay all charges in connection with the
recording of said document.
30.01 APPRAISAL OF VALUE.
(a) In the event Landlord and Tenant are unable to mutually agree upon
the amount of any reduction in rental to be made or the amount of any
condemnation award or payment to be made by reason of any condemnation of the
Improvements or Leased Premises as provided in paragraph 17.01 hereinabove,
then such reduction or values shall be determined by arbitration in accordance
with the provisions of subparagraph (b) herein.
(b) Either Landlord or Tenant may initially nominate one (1) person who
is a qualified MAI appraiser doing business in Mobile, Alabama. Any nomination
must be in writing and delivered to the other party. Any nomination made by the
other party must be made within thirty (30) days from receipt of the initiating
party's nomination. If only one party shall so nominate an appraiser, then that
appraiser shall have the power to act alone, and his decision shall be binding
on both parties as if in fact it were made by appraisers selected by each
party. If the two appraisers nominated and appointed by the parties shall
differ in judgment, then they shall appoint an impartial qualified MAI
appraiser to be umpire between them, and said two appraisers and umpire shall
serve their written decision upon the parties within thirty (30) days after
the selection of such umpire, which decision shall be final and be conclusive
and binding on the parties. Each party shall bear the expense of its own
appraiser, but the fees and expenses of the umpire shall be shared equally.
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused this
Lease to be executed in their respective names, and their respective seals to
be affixed hereto, individually or by their duly authorized signatories to
this Lease, effective the day and year first above written, in multiple
counterparts, each of which shall be an original.
LANDLORD: NORTHSIDE, LTD. an Alabama Limited
Liability Company
By:/s/ B. Whitespunner
B. WHITESPUNNER, Surviving General
Partner
TENANT:
SOUTH ALABAMA BANK, an Alabama
State Banking Association
By:/s/ Xxxxxxx X. Xxxxxxxx
XXXXXXX X. XXXXXXXX, President And
Chief Operating Officer
STATE OF ALABAMA
COUNTY OF MOBILE
I the undersigned Notary Public in and for said State and County, do
hereby certify that B. WHITESPUNNER, whose name as Surviving General Partner
of NORTHSIDE, LTD., an Alabama Limited Partnership, is signed to the
foregoing Lease and who is known to me, acknowledged before me on this day,
that being informed of the contents of said instrument, he, in his capacity
as such Surviving General Partner executed the same voluntarily, for and as
the act of said partnership on the day the same bears date.
GIVEN UNDER my hand and seal this the 31st day of March , 1999.
/s/ illegible
NOTARY PUBLIC
STATE OF ALABAMA
COUNTY OF MOBILE
I the undersigned Notary Public in and for said State and County, do
hereby certify that XXXXXXX X. XXXXXXXX, whose name as President and Chief
Operating Officer of SOUTH ALABAMA BANK, an Alabama State Banking Association
is signed to the foregoing Lease and who is known to me, acknowledged
before me on this day, that being informed of the contents of said instrument,
he, as such officer and with full authority, executed the same voluntarily,
for and as the act of said association on the day the same bears date.
GIVEN UNDER my hand and seal this the 31st day of March 1999.
/s/ illegible
NOTARY PUBLIC
THIS INSTRUMENT WAS PREPARED BY:
XXXX XXXXXXX, XX. ATTORNEY AT LAW
0000 XXX XXXXXXX XXXXXXXX
XXXXXX, XXXXXXX 00000
