Exhibit 10.9
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S. L. NUSBAUM
REALTY CO.
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SHOPPING CENTER
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P.O. DRAWER
2491 Ÿ NORFOLK, VA 23501
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LEASE
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THIS DEED or LEASE (herein called
LEASE), Made this 7th day of October, 2003 by and between SUFFOLK
PLAZA SHOPPING CENTER, L.C., a Limited Liability Co., with its
principal offices in the City of Norfolk, Virginia
(“Landlord”), SUFFOLKFIRST BANK, INC., a Virginia
Corporation (FID #04-3607546) (“Tenant”), and S. L.
NUSBAUM REALTY CO., (“Agent”);
W I T N E S S E T H :
1. PREMISES. Landlord hereby demises
and leases to Tenant, and Tenant hereby takes and leases from
Landlord that certain parcel of land (“Leased Premises”
or “Demised Premises” or “demised
premises”), having a width of approximately 197’ by a
depth of approximately 156’ known and numbered as Unit #30,
1000 North Main Street, located in the City of Suffolk, State of
Virginia, 23434 and is more particularly set forth in Exhibit
“A”, attached hereto and made part hereof. The Leased
Premises include ail improvements thereon, which includes, but is
not limited to, an existing bank building of approximately 2,512
square feet of building area with four (4) drive-through
lanes. Said Premises being a part of Suffolk Plaza Shopping Center,
which is shown on Exhibit “A”. The Leased Premises are
outlined in red on a diagram of the Shopping Center attached hereto
as Exhibit “A”. Exhibit “A” sets forth the
general layout of the Shopping Center and shall not be deemed to be
a warranty on the part of Landlord that the Shopping Center will be
exactly as indicated on said diagram. Landlord may increase, reduce
or change the number, dimensions and locations of roadways, walks,
buildings and parking areas in the Shopping Center, as Landlord
shall from time to time deem proper. Landlord reserves the right to
construct additional floors over and upon other portions of the
Shopping Center.
2. USE OF COMMON AREAS. Occupancy by
Tenant of the Leased Premises shall include the use in common with
others entitled thereto of the parking areas, service roads, and
sidewalks (the “Common Areas”) shown and depicted on
Exhibit A, subject, however, to the terms and conditions of this
Lease and to all rules and regulations for the use thereof as may
from time to time be prescribed by Landlord.
3. LENGTH AND COMMENCEMENT OF TERM.
The term of this Lease shall commence on the date (the
“Commencement Date”) which is thirty (30) days
after Landlord notifies Tenant in writing that the Leased Premises
are ready for occupancy, but not earlier than January 1, 2004.
The term shall expire at the end of ten (10) years following
(i) the Commencement Date if that date is the first day of any
calendar month or (ii) the first day of the calendar month
next succeeding the Commencement Date if that date is not the first
day of a calendar month.
4. RENT. (a) Landlord reserves,
and Tenant covenants to pay to Landlord without prior demand being
made therefore and without offset of any kind, rent for the Leased
Premises as outlined below:
Years One through Five
- The sum of $60,000.00 per annum
(“Minimum Rent”), payable in monthly installments of
$5,000.00 each month, in advance.
Years Six through Ten
- The annual minimum rent payable
shall be adjusted upward only using the Consumer Price Index, now
known as the “Consumer Price Index for All Urban Consumers
(CP1•U), U.S. City Average, All Items, 1982-84 = 100”,
prepared and reported monthly by the U.S. Bureau of Labor
Statistics. The basic annual rent of $60,000.00 shall be multiplied
by a fraction whose denominator is the Index for three
(3) months prior to the commencement of this Lease and whose
numerator is the Index for three (3) months prior to the
commencement of the Sixth Lease Year. In no event shall the annual
rent for this five (5) year period be increased by
less than 15% or more than 20% of the annual rent of the previous
five (5) year Lease.
(b) INTENTIONALLY
OMITTED.
(c) All rental payments shall be made to Agent,
P.O. Drawer 3580, Norfolk, Virginia 23514, until Landlord shall
otherwise direct in writing.
(d) Tenant covenants and agrees to
pay Landlord as a late charge the greater of $100.00 or two percent
(2%) of the amount due on all rents (including percentage
rents and Gross Sales reports) and all other sums due under this
Lease, if said sums have not been paid within ten (10) days of
their due date plus interest at the rate of 12% per annum
calculated from the 31st day following the applicable due date.
Landlord expressly reserves all other rights and remedies provided
herein and by law with respect to nonpayment of the rents provided
for herein.
(e) Tenant covenants and agrees to
pay Landlord as a returned check charge the greater of $25.00 or
two percent (2%) of the amount of any cheek which is returned
by the bank for insufficient funds or any other reason which is not
the fault of the Landlord.
(f) INTENTIONALLY
OMITTED.
5. USE OF LEASED PREMISES. The
Leased premises shall be occupied and used solely for banking
purposes only and for no other purpose. As a material inducement to
Landlord to enter into this Lease, Tenant agrees: (i) to
operate such a business in the Leased Premises at all times during
the term of this Lease, (ii) to keep the Leased Premises
adequately manned and operate the Leased Premises for the uses and
purposes for which it is let continuously throughout the term, and
shall conduct and operate its business therein during normal
banking hours each business day (except bank holidays) during the
term hereof. Tenant shall not be required to operate its business
during any time when such operations must be suspended because of
casualty loss to the building, strike, insurrection, or other cause
beyond the control of Tenant. The provisions of this Paragraph 5
are intended solely for the benefit of Landlord and are not
intended for the benefit of any other tenant of the Shopping
Center. No other tenant of the Shopping Center shall have the right
to enforce or cause Landlord to enforce the provisions hereof; nor
shall Tenant have the right to enforce or cause Landlord to enforce
this or any similar provision in any other lease for space in the
Shopping Center.
6. LEASE YEAR. “Lease
Year” as used in this Lease means the period from the
Commencement Date to the end of the twelfth full calendar month
thereafter and each and every twelve-month period thereafter during
said term.
7. INTENTIONALLY OMITTED.
8. INTENTIONALLY OMITTED.
9. INTENTIONALLY OMITTED.
10. TRADE FIXTURES. Tenant shall
have the right to install its trade fixtures in the Leased Premises
and such installation shall be at the sole risk and expense of
Tenant. All trade fixtures installed in the Leased Premises by
Tenant shall remain the property of, and shall be removable by,
Tenant at the expiration of this Lease, if Tenant is not in default
hereunder, and Tenant agrees promptly to repair or reimburse
Landlord for the cost of repairing all damages to the Leased
Premises occasioned by the removal of said fixtures.
11. USE OF PARKING AREAS.
(a) All automobile parking areas, driveways, entrances and
exits thereto, and other facilities furnished by Landlord in or
near the Shopping Center shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall
have the right from time to time to establish, modify and enforce
reasonable rules and regulations with respect to all such
facilities and areas.
(b) Landlord hereby agrees that
Tenant shall have the right in common with other tenants of Suffolk
Plaza Shopping Center to use all parking areas shown on the site
plan of said Shopping Center. Tenant in turn agrees that any
parking area on the Lease Premises may be used by other Tenants of
said Shopping Center in common with Tenant. Landlord covenants that
it will, during the term hereof, at its own cost and expense,
maintain the Shopping Center common areas in good condition of
repair and will keep the same clean and adequately lighted, all
subject to Tenant’s obligations in Paragraph 14
below.
12. BUILDING INSURANCE. As
additional and further rent, Tenant agrees that during the term of
this Lease it will, at its own cost and expense, obtain and
maintain a policy or policies of insurance against loss or damage
by fire, windstorm and casualty included with the so-called
extended coverage insurance, the buildings or buildings
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hereafter located on said demised premises with
responsible insurance companies authorized to do business in the
Commonwealth of Virginia, and in an amount not less than the full
insurable value thereof, exclusive of foundations. The policies
shall be written to insure Landlord and the holder of any mortgage
as their respective interests may appear, in form satisfactory to
the first mortgage holder, and shall be so payable in ease of loss,
and certificates of such insurance shall be furnished, to Landlord
and first mortgage holder.
13. INTENTIONALLY
OMITTED.
14. MAINTENANCE BY TENANT.
(a) It is Understood and agreed that Tenant is to have the
exclusive charge, custody, control and possession of the demised
premises and every part thereof, and the sidewalk in front of and
bordering said Premises insofar as the owner premises ordinarily
has control of said sidewalk. Landlord shall not be obligated to
furnish heat, light, power or any other service whatsoever other
than as hereinafter agreed. Landlord shall not be liable for any
damage, loss or injury occurring during the term of the Lease to
the personal property or effects of Tenant or any other person
suffered in, on or about the demised premises by reason of at
present, future, latent or other defects in the condition of the
demised premises unless caused or occasioned by the negligence or
willful act of the Landlord or its agents. Likewise, Tenant shall
not be liable for any damage, loss or injury occurring during the
term of this Lease to the personal property or effects of Landlord
or any other person or corporation suffered in, on or about the
Shopping Center premises (excluding demised premises).
(b) Tenant, at as own expense, shall
make all necessary repairs and replacements to the pipes, heating
system, plumbing system, window glass, fixtures, walls, roof,
foundations, mechanical system, and all other appliances and
appurtenances belonging thereto, to all equipment used in
connection with the demised premises, and to all other portions of
the demised premises. Such repairs and replacements, interior and
exterior, ordinary as well as extraordinary, and structural as well
as nonstructural, shall be made promptly, as and when necessary.
All repairs and replacements shall be in quality and class at least
equal to the original work. Tenant also, at all times during the
term, at its own expense, shall put and maintain in thorough repair
and in good and safe condition all portions of the demised premises
and keep them in clean and orderly condition, free of dirt,
rubbish, snow, ice and unlawful obstructions at all
times.
Landlord shall not be required to
furnish any services or facilities or to make any repair or
alteration in or to any building or other improvements contained
within the demised premises. Tenant hereby assumes the full and
sole responsibility for the condition, operation, repair,
replacement, maintenance, and management of the demised premises
with the exception of the common area shown on Exhibit
“A”. Landlord shall have all plumbing, electrical,
heating and air conditioning and electrical inspected by reputable
company prior to the Commencement of this Lease and repair or
replace all defective electrical, plumbing or heating and air
conditioner parts prior to the Commencement of this
Lease.
(c) In connection with the
requirements of this Section, Tenant agrees to obtain and maintain
from a reputable company a maintenance contract on the heating and
air conditioning systems and to furnish Landlord with a copy of
said contract on the Commencement Date.
(d) Tenant agrees that it will, at
Tenant’s expense, comply with any mandatory preventive
maintenance items required by insurance carrier rating authorities,
or public officials to minimize loss frequency and/or severity
within the Leased Premises.
(e) CAREFREE LEASE . It is
the intention and purpose of the parties hereto to create by this
instrument a lease of the kind commonly known as
“Carefree” to Landlord. Accordingly, Tenant agrees to
bear, pay for and discharge not only such items as it has
specifically agreed by the provisions of this Lease to bear, pay
and discharge, but also all other costs, charges and expenses of
every kind and nature whatsoever which must be borne, paid and
discharged in order to accomplish the purposes and objects of this
Lease, namely, (a) that Landlord shall receive from Tenant,
without diminution on account of any matter or thing whatsoever,
the Rent agreed to be paid by Tenant, and (b) that Landlord,
at the expiration of or sooner termination of this Lease, shall
receive possession of the Leased Premises in accordance with the
covenants of Tenant contained herein free and clear of all claims,
liens, charges and encumbrances.
15. SUNDRY COVENANTS OF TENANT.
(a) Tenant agrees that it will, at all times during the term
of this Lease, take any and all steps necessary to prevent the
filing of mechanic’s or CERCLA liens against the Leased
Premises; or, if filed, to have same discharged by payment
or bond immediately. Tenant will comply with all
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federal, state and municipal laws, ordinances
and regulations (including environmental) relating to the Leased
Premises and the business conducted therein, and maintain all
permits necessary to such business conducted therein; Tenant will
pay promptly for all electricity, water and other utilities
consumed therein, all sewage disposal charges assessed against the
Leased Premises, and all front foot benefit charges attributable to
the Leased Premises; Tenant will not use or permit to be used any
advertising medium or device, such as phonograph, radio or public
address system, without the prior written consent of Landlord;
Tenant will not use, or permit to be used, the Leased Premises for
any illegal or immoral purpose; Tenant will not make any
alterations in or to the Leased Premises without the prior written
consent of Landlord; Tenant will not hold any fire, bankruptcy,
going-out-of-business or auction sales; Tenant will not use the
sidewalks or any other portions of the Leased Premises for any
purpose relating to the selling of merchandise or services; and
Tenant will give Landlord prompt written notice of the release in,
on or about the Leased Premises of any Hazardous Materials by any
party.
(b) Tenant shall keep the Leased
Premises free from insects, pests and vermin of all kinds, and for
that purpose Tenant shall use at Tenant’s cost, such pest
extermination contractor at such intervals as Landlord may
require.
(c) Tenant agrees to contain within
the Leased Premises any and all noise, odors, and aromas and any
Hazardous Materials consented to by Landlord an that no nuisance or
environmental risk will be created and all other premises and
common areas within the Shopping Center shall be free from noise,
odors, aromas and Hazardous Materials which originate in the Leased
Premises. The foregoing agreement by Tenant shall be for the
benefit of and specifically enforceable by Landlord and all other
tenants within the Shopping Center.
(d) Tenant agrees to and shall
become a member of, participate fully in, and remain in good
standing in the Merchants’ Association (as soon as the same
has been formed) and will abide by the regulations of such
Association. Tenant agrees to pay minimum dues to said
Merchants’ Association in the amount of $31.40 per month
(calculated on the basis of $0.15 per square foot of area in the
Leased Premises per year); subject, however to annual adjustments
approved by a majority vote of the members of the Association,
increasing said dues to the extent required by increases in the
cost of promotional, public relations and advertising services.
Landlord shall have the right but shall not be obligated to collect
delinquent dues on behalf of the Merchant’s
Association.
(e) The term “Hazardous
Materials” shall mean any equipment which contains dielectric
fluid containing polychlorinated byphenyls
(“PCB’S”) or “PCB items” ( as
defined in 40 CFR Sec. 761.3); stored, leaked or spilled petroleum
products; or any other chemical, material or substance which is
regulated as a “toxic substance” (as defined by the
Toxic Substance Control Act, 15 U.S.C. Sec. 2601 et seq., as
amended), a “hazardous waste” (as defined by the
Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et
seq., as amended), or a “hazardous substance” (as
defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, (“CERCLA”), 42 U.S.C. Sec.
9601 et seq., as amended), or exposure to which is prohibited,
limited, or regulated by any federal, state, county, regional,
local, or other governmental statute, regulation, ordinance or
authority or which, even if not so regulated, may or could pose a
hazard to the health and safety of the occupants of the Leased
Premises or the owners, tenants or occupants of property adjacent
to the Premises.
16. NO ASSIGNMENT OR SUBLEASE.
Tenant will not assign this Lease nor sublet the Leased Premises,
in whole or part, without the prior written consent of Landlord;
and if such consent is granted by Landlord, Tenant will remain
primarily liable for the performance of the covenants herein
contained binding upon Tenant. The transfer of fifty percent
(50%) or more of Tenant’s stock, if Tenant is a
corporation, or the transfer of a twenty-five percent
(25%) partnership interest in Tenant, if Tenant is a
partnership, shall constitute an assignment under the terms of this
Lease. So long as the building continues to operate as a Bank,
Tenant shall not be required to obtain written consent in the event
Tenant forms a hank holding company or is acquired by merger or
sale, or change in ownership in excess of 50% due to a stock split,
stock dividend, sale of additional stock or the purchase of other
financial institutions.
17. EMINENT DOMAIN. If any part of
the Leased Premises shall he taken by governmental authority
pursuant to its power of eminent domain (or Landlord conveys any
part of the Leased Premises pursuant to a threat thereof), then the
Leased Premises shall be reduced in proportion to the amount so
taken or conveyed, unless the amount taken shall be so great that
it would be i