(ELBERTA, ALABAMA BRANCH)
B ANKING F ACILITIES
Gulf Shores, Alabama
TABLE OF CONTENTS
Exhibit A Floor Plan of Leased Premises
STATE OF ALABAMA
COUNTY OF BALDWIN
This Lease Agreement made and entered into on this the 1 st day of November, 2004, between Elberta Holdings, LLC , an Alabama limited liability company (hereinafter called (“ Landlord” ), and VISION BANK , an Alabama banking corporation (hereinafter called (“ Tenant” ). Tenant’s address for purposes hereof is P. O. Box 4649, Gulf Shores, Alabama 36547.
W I T N E S S E T H:
1. LEASED PREMISES.
Subject to and upon the terms, provisions and conditions hereinafter set forth, and each in consideration of the duties, covenants and obligations of the other hereunder, Landlord does hereby lease, demise and let to Tenant and Tenant does hereby lease from Landlord those certain premises (the “ Leased Premises ”) in the buildings (the “ Buildings ”) located at 24989 State Street and 13027 Main Street, Elberta, Alabama, such Leased Premises being approximately 4,618 square feet and 800 square feet of Rentable Area, respectively, as reflected on the floor plan of such Leased Premises attached hereto and made a part hereof as Exhibit A.
2. LEASE TERM.
2.1 Continuance During Term . This Lease Agreement shall continue in force during a period beginning on the Commencement Date (hereafter defined) and ending on midnight on the date which is ten (10) years after the first day of the first calendar month immediately following the calendar month in which the Commencement Date occurs (the “ Lease Term ”), unless this Lease Agreement is sooner terminated or extended to a later date under any other term or provision of this Lease Agreement. For purposes of this Lease, the term “ Commencement Date ” shall mean the earlier of (a) the date the Leased Premises are ready for occupancy by Tenant for the operation of its business, or (b) November 1, 2004.
2.2 Renewal Options . Provided that no Event of Default has occurred under this Lease and is continuing, Tenant shall have an option to renew this Lease for two additional terms of five (5) year each on the same terms and conditions as set forth herein, except that Landlord shall be entitled to raise the Base Rental for such extension period, in its sole discretion, and Tenant shall thereafter have sixty (60) days to agree or terminate following receipt of notification from Landlord not less than ninety (90) days prior to expiration of the original lease term.
3.1 Permitted Use . The Leased Premises are to be used and occupied by Tenant solely for general office purposes, including but not limited to the operation of a bank.
3.2 Legal Use and Violation of Insurance Coverage . Tenant agrees not to occupy or use, or permit any portion of the Leased Premises to be occupied or used for any business or purpose that is unlawful, disreputable or deemed to be extra-hazardous. Tenant will not keep any substance or carry on or permit any operation which might emit offensive gas, smoke, fumes, dust, odors, waste products or conditions into other portions of the Buildings, or use any apparatus which might make undue noise or set up vibrations in the Buildings. Tenant will not permit anything to be done which would increase the fire and extended coverage insurance rate on the Buildings or contents, and if there is any increase in such rates by reason of acts of Tenant, then Tenant agrees to pay such increase promptly upon demand therefor by Landlord.
3.3 Nuisance . Tenant agrees to conduct its business and control its agents, employees, invitees and visitors in such manner as not to create any nuisance, or interfere with, annoy or disturb any other tenant or Landlord in the operation of the Buildings.
4. BASE RENTAL.
Tenant hereby agrees to pay a base annual rental (herein called the “ Base Rental ”) of $65,016 at the rate of $12.00 per square foot of Rentable Area. The Tenant shall also pay, as additional rent, all such other sums of money as shall become due and payable by Tenant to Landlord under this Lease Agreement. The Base Rental shall be due and payable in twelve (12) equal installments of $5,418 on the first day of each calendar month during the initial term and any extensions or renewals thereof, and Tenant hereby agrees to pay such rent to Landlord monthly in advance without demand and without any reduction, abatement, counterclaim or setoff, at such address as may be designated by Landlord. The “Base Rental,” and any other additional rental shall be collectively referred to as “ Rent ” or “ rent .” If the term of this Lease Agreement as heretofore established commences on other than the first day of a month or terminates on other than the last day of a month, then the Rent provided for herein for such month or months shall be prorated and the installment or installments so prorated shall be paid in advance. The Base Rental shall be adjusted twice during the Lease Term: (1) upon the first day of the fourth year of the Lease Term; and, (ii) upon the first day of the seventh year of the Lease Term (collectively, the “Adjustment Dates”). Upon each of the Adjustment Dates, the Base Rental shall be adjusted to a figure determined to be “market rent” by a MAI-designated appraiser. The Tenant shall bear the expense of such appraiser. All past due installments of rent shall bear interest at the lesser of (i) the maximum rate permitted by applicable law, or (ii) three (3) percentage points above the Prime Rate (hereinafter defined), from the date due until paid. The term “ Prime Rate ” for purposes of this Lease Agreement, shall mean the rate as published in the W ALL S TREET J OURNAL on the date or dates on which reference to the Prime Rate is being made (or in the event no such quotation is available on such date, as quoted on the day most immediately preceding the date of determination on which such a quotation was available), and shall not be subject to adjustment, but shall in no event exceed the maximum rate provided by applicable law.
Tenant shall bear the expense of all insurance on the Property and Buildings, common area expenses, and all real estate taxes. Tenant agrees to pay Landlord within fifteen (15) days of receipt of invoice from Landlord or direct billing for any charges not directly invoiced to Tenant. Any payments advanced by Landlord shall be fully reimbursed by Tenant. Tenant acknowledges this is a triple net lease.
6. SERVICES TO BE FURNISHED BY LANDLORD.
6.1 Defined Services . Tenant agrees no services are to be provided by Landlord.
Landlord shall provide and install, at Tenant’s cost, all letters or numerals at doors to the Leased Premises. All such letters and numerals shall be in the standard graphics for the Buildings, and no others shall be used or permitted on the Leased Premises without Landlord’s prior written consent. No signs, symbol or identifying mark shall be put upon the Buildings, or in the halls, elevators, staircases, entrances, parking areas or upon the doors or walls, without prior written consent of Landlord.
8. CARE OF THE LEASED PREMISES BY TENANT.
8.1 Condition of Leased Premises at Commencement; Notice to Landlord . The taking of possession of the Leased Premises by Tenant shall be conclusive evidence as against Tenant (a) that it accepts the Leased Premises as suitable for the purposes for which same are leased, subject to “punch list” items to be installed or repaired by Landlord contained in a punch list which must be submitted, if at all, to Landlord by Tenant within ten (10) days after the Commencement Date; (b) that it accepts the Property as being in a good and satisfactory condition; and (c) that Tenant waives any defects in the Leased Premises and its appurtenances and in all other parts of the Property. Any subsequent modifications to the Leased Premises required by governmental laws, rules or regulations, including without limitation
modifications required under the Americans with Disabilities Act of 1990 and similar legislation, shall be the sole responsibility of Tenant. Landlord shall not be liable to Tenant or any of its agents, employees, licenses, servants or invitees for any injury or damage to person or property due to the condition or design of or any defect in the Buildings or its mechanical systems and equipment which may exist or occur, or due to the leaking of gas, water, sewer, or steam unless such injury or damage is due to the gross negligence or willful misconduct of Landlord (but not including the negligence or willful misconduct of Landlord’s contractors); and Tenant, with respect to itself and its agents, employees, licensees, servants and invitees shall have the responsibility for all risks of injury or damage to person or property, either proximate or remote, by reason of the condition of the Leased Premises or the Property except for injury or damage caused by the gross negligence or willful misconduct of Landlord. Except as specifically set forth herein, no promises of the Landlord to alter, remodel, repair or improve the Leased Premises or the Buildings and no representations respecting the condition of the Leased Premises or the Buildings have been made by Landlord to Tenant. At all times during the Lease Term, including any extensions thereof, Tenant agrees to give Landlord prompt notice of any apparent defective condition in or about the Leased Premises.
8.2 No Waste; Regulated Materials . Tenant shall not commit waste or allow any waste to be committed on any portion of the Leased Premises, and at the termination of this Lease Agreement, Tenant shall deliver the Leased Premises to Landlord in as good condition as at the date of the commencement of the term of this Lease Agreement, ordinary wear and use excepted. Tenant shall not treat, store, handle, generate, locate on, discharge from, or dispose on the Leased Premises or the Buildings any materials regulated, controlled, limited or restricted by governmental laws, rules, regulations or ordinances.
9. REPAIRS AND ALTERATIONS BY TENANT.
9.1 Repair by Tenant . Tenant shall, at Tenant’s own cost and expense, repair any damage done to the Buildings, or any part thereof, including replacement of damaged portions or items, caused by Tenant or Tenant’s agents, guests, employees, invitees, licensees, customers or visitors, and Tenant covenants and agrees to make all such repairs as may be required to restore the Buildings to as good a condition as it was in prior to such damage. Tenant further agrees to maintain and keep the interior of the Leased Premises in good repair and condition at Tenant’s expense. Repair and replacement parts, materials and equipment shall be of a quality equivalent to those initially installed in the Buildings or Leased Premises.
9.2 Compliance with Laws; Repair by Landlord . All such work or repairs by Tenant shall be effected in compliance with all applicable laws; provided, however, if Tenant fails to make such repairs or replacements promptly, Landlord may, at its option, make repairs or replacements, and Tenant shall pay to Landlord the cost thereof, within ten (10) days of Landlord’s demand therefor, as additional rent.
9.3 Alterations or Additions by Tenant . Tenant agrees with Landlord not to make or allow to be made any alterations to the Leased Premises except in compliance with the provisions of this Section.
9.4 Property of Landlord . Any and all alterations to the Leased Premises shall become the property of Landlord upon termination of this Lease Agreement (except for movable equipment or furniture owned by Tenant).
10. LAWS, REGULATIONS AND RULES.
10.1 Applicable Ordinances . Tenant shall comply with all applicable laws, ordinances, rules and regulations of any governmental entity, agency or authority having jurisdiction over the Leased Premises or Tenant’s use of the Leased Premises.
10.2 Building Rules . Tenant shall comply with the Building Rules adopted by Landlord and set forth in Schedule 2 hereto, as they may be amended by Landlord from time to time (the “ Building rules ”), and will cause all of its agents, employees, invitees and visitors to do so. All changes to the Building rules will be furnished by Landlord to Tenant in writing.
11. ENTRY BY LANDLORD.
Tenant shall permit Landlord or its agents or representatives to enter into and upon any part of the Leased Premises upon prior notice and at all reasonable hours (and in emergencies at all times) to inspect the condition, occupancy or use, to show the Leased Premises to prospective purchasers, mortgagees, tenants or insurers, or to clean or make repairs, alterations or additions. Tenant shall not be entitled to any abatement or reduction of rent by reason of this right of entry.
12. FURNITURE, FIXTURES AND PERSONAL PROPERTY.
Tenant may remove its trade fixtures, office supplies and movable office furniture and equipment not attached to the Buildings provided: (a) such removal is made within (30) days after the termination of the Term of this Lease; (b) Tenant is not in default of any obligation or covenant under this Lease at the time of such removal at Tenant’s sole cost and expense. All other property at the Leased Premises and alterations and additions to the Leased Premises (including wall-to-wall carpet, paneling or other wall covering) and any other article attached or affixed to the floor, wall or ceiling of the Leased Premises shall become the property of Landlord and shall remain upon and be surrendered with the Leased Premises as a part thereof at the termination of this Lease, by lapse of time or otherwise, Tenant hereby waiving all rights to any payment or compensation therefor. If, however, Landlord so requests in writing, Tenant will, immediately prior to termination of this Lease, remove any and all alterations, additions, fixtures, equipment and property placed or installed by it in the Leased premises, and not permanently affixed thereto, and will repair any damage caused by such removal, all at Tenant’s cost.
13. TAXES ON TENANT’S PROPERTY.
Tenant shall be liable for all taxes levied or assessed against personal property, furniture or fixtures placed by Tenant in the Leased Premises. If any such taxes for which Tenant is liable are levied or assessed against Landlord or Landlord’s property and if Landlord elects to pay the same or if the assessed value of Landlord’s property is increased by inclusion of personal property, furniture or fixtures placed by Tenant in the Leased Premises, and Landlord elects to pay the taxes based on such increase, then Landlord shall notify Tenant, and Tenant shall pay to Landlord upon demand that part of such taxes for which Tenant is liable hereunder.
14. ASSIGNMENT AND SUBLETTING.
14.1 No Assignment Without Consent . Tenant shall not assign, sublease, transfer, pledge, or encumber this Lease Agreement or any interest therein without Landlord’s prior written consent. Any attempted assignment, sublease or other transfer or encumbrance by Tenant in violation of the terms and covenants of this paragraph shall be void.
14.2 Assignment or Sublease . In the event Tenant shall desire to assign this Lease Agreement or sublet the Leased Premises or any part thereof, Tenant shall give Landlord written notice of such desire, along with the name of the proposed assignee or sublessee and a copy of the proposed assignment or sublease instrument, at least ninety (90) days in advance of the date on which Tenant desires to make such assignment or sublease. Landlord shall then have a period of thirty (30) days following receipt of such notice within which to notify Tenant in writing that Landlord elects either (i) to permit Tenant to assign or sublet such space, (ii) to refuse such request to assign or sublease such space (which refusal may be made by Landlord without regard to any commercially reasonable standard), or (iii) to terminate this Lease Agreement as to the space so affected as of the date so specified by Tenant in which event Tenant will be relieved of all obligations arising thereafter as to such space. Any rent or other payments otherwise due Tenant as a result of assignment or subletting of all or any portion of the Leased Premises in excess of the rent due Landlord by Tenant on such space hereunder shall be payable as additional rent to Landlord by Tenant promptly upon receipt by Tenant, and Tenant hereby assigns all rights it might have or ever acquire in any such proceeds to Landlord. If Landlord should fail to notify Tenant in writing of such election within said thirty (30) day period, Landlord shall be deemed to have elected option (i) above. No assignment or subletting by Tenant shall relieve Tenant of any obligation under this Lease Agreement. Any consent of Landlord hereunder is subject to receipt by Landlord of an executed copy of the sublease or assignment.
14.3 Further Assignment . Notwithstanding Landlord’s consent on any one occasion, the rights of Landlord set forth in Section 14.2 shall apply to any further subletting or assignment.
14.4 Assigns and Sublessees . The provisions of this Section shall be binding on any permitted assigns or sublessees of Tenant.
14.5 Transfers by Landlord . Landlord shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder and in the Buildings and the Leased Premises referred to herein, and in such event and upon such transfer Landlord shall be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of Landlord for the performance of such obligations.
15. MECHANIC’S LIEN.
15.1 Tenant Not to Permit Liens . Tenant will not create or permit to be created or to remain, and will discharge, any lien (including, but not limited to, the liens of mechanics, laborers, artisans or materialmen for work or materials alleged to be done, furnished or delivered in connection with the Leased Premises), encumbrance, or other charge upon the Leased Premises or any part thereof, upon Landlord’s interest therein, or upon Tenants leasehold interest; provided, that Tenant shall not be required to discharge any such liens, encumbrances or charges as may be placed upon the Leased Premises or Buildings by the act of anyone other than Tenant or Tenant’s agents, employees, servants or contractors. Provided that any Landlord’s Mortgagee consents thereto in writing and Tenant complies with all requirements of such Landlord’s Mortgagee with respect thereto and provided further, Tenant furnishes security reasonably acceptable to Landlord and any such Landlord’s Mortgagee, Tenant shall have the right to contest, in good faith by appropriate legal proceedings, the validity or amount of any mechanics’, laborers’, artisans’ or materialmen’s lien or other claimed lien. On final determination of such lien or such claim for lien, Tenant will immediately pay any judgement rendered with all proper costs and charges and shall have such lien released or judgement satisfied at Tenant’s sole expense. Tenant will pay, protect and indemnify Landlord, within ten (10) days after demand therefor, from and against all liabilities, losses, claims, damages, costs and expenses, including reasonable attorneys’ fees, incurred by Landlord by reasons of the filing of any lien and/or removal of same.
15.2 Rights of Landlord; Additional Rent . If any such lien is claimed against the Leased Premises, then, in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, discharge the same. Any amount paid by Landlord for such purposes shall be paid by Tenant to Landlord as additional rent within ten (10) days of Landlord’s demand therefor.
16.1 Tenant . Tenant shall, during the Term and at its sole expense, obtain and keep in force, with Tenant, Landlord, and the mortgagees of Landlord, named as insureds, as their respective interests may appear, (i) comprehensive
general liability insurance coverage, personal injury, bodily injury, broad form property damage, operations hazard, owner’s protective coverage, contractual liability and products and completed operations liability in limits not less than $1,000,000.00 inclusive, and (ii) fire and extended coverage i