1
-------------------------------
EXHIBIT 10.1
LEASE AGREEMENT
MAY 31, 2000
BY AND BETWEEN
REM, LLC,
AND
COMMUNITY BANK
-------------------------------
2
STATE OF ALABAMA
COUNTY OF XXXXXX
LEASE AGREEMENT
This Lease Agreement effective as of May 31, 2000, between REM, LLC, an
Alabama limited liability company hereinafter known as and referred to as
"Lessor" and Community Bank, an Alabama banking corporation hereinafter known as
and referred to as "Lessee."
R E C I T A L S
A. Whereas, the Lessor is the owner of certain land in the City of Xxxxxxxx,
Xxxxxx County, Alabama, and
B. Whereas, Lessor and Lessee desire to enter into this Lease Agreement.
NOW, THEREFORE, in consideration of the premises recited above, the mutual
covenants expressed below, the sum of Ten Dollars paid to Lessor and other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, Lessor and Lessee hereby agree as follows:
1. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor the
following described real property located in the City of Xxxxxxxx, Xxxxxx
County, Alabama, more particularly described as follows, to-wit:
A part of the SE 1/4 of the NE 1/4 and a part of the SW 1/4 of the NE 1/4 all in
Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 14 Xxxx, Xxxxxx County, Alabama, and being
more particularly described as follows: Commence at the southeast corner of said
SE 1/4 of the NE 1/4; thence N 87 degrees 28 minutes 17 seconds W 718.18 feet,
to the point of intersection of the west right of way line of U.S. highway No.
78 and the north right of way line of Tenth Avenue South, said point also being
the point of beginning; Thence along the west right of way line of said X.X.
Xxxxxxx Xx. 00 the following courses; thence N 7 degrees 43 minutes 36 seconds W
67.39 feet, thence N 8 degrees 02 minutes 27 seconds W 46.23 feet, thence N 7
degrees 09 minutes 38 seconds W 52.61 feet, thence N 8 degrees 20 minutes 20
seconds W 49.59 feet, thence N 8 degrees 46 minutes 09 seconds W 51.40 feet,
thence N 9 degrees 07 minutes 33 seconds W 631.13 feet, thence N 8 degrees 18
minutes 59 seconds W 50.73 feet, thence N 7 degrees 25 minutes 44 seconds W
54.30 feet, thence N 5 degrees 54 minutes 00 seconds W 45.91 feet: leaving said
right of way line, thence S 62 degrees 25 minutes 24 seconds W 486.00 feet,
thence S 39 degrees 09 minutes 16 seconds E 2.60 feet, thence S 32 degrees 49
minutes 15 seconds W 73.60 feet, thence S 20 degrees 42 minutes 25 seconds E
793.31 feet, to a point on the north right of way line of Tenth Avenue South;
thence S 88 degrees 54 minutes 48 seconds E 344.89 feet, along said right of way
line to the point of beginning containing 9.23 acres more or less. Subject to
existing rights of way for public roads, utility lines, easements and
restrictions of record, if any. This shall include any fixtures located in the
dwelling house and old law office building, attached wall coverings and mirrors,
but does not include any furniture or furnishings.
2. The leased property shall be used by the Lessee for a commercial banking
operations office and other uses related thereto. Lessee shall comply with all
laws, ordinances, orders, restrictive covenants, rules, regulations and
requirements of governmental authorities regulating the use by Lessee of the
leased property.
3. The initial term of this lease shall be thirty (30) years, commencing upon
date hereof and continuing thereafter for thirty (30) years; provided, however,
that in no event shall the term of this lease expire prior to the time when the
loan obtained by the Lessor to purchase the leased property is paid in full.
4. The Lessee shall pay the Lessor rent each month, payable in advance on the
5th day of each month, commencing upon the date agreed upon by the parties, in
an amount equal to (a) the Lessor's monthly debt amortization of funds which
Lessor borrows to purchase the leased property plus (b) $10,000; provided that
the amount set forth in clause (a) shall remain the same during the term of the
lease, but the amount set forth in clause (b) shall be adjusted periodically to
coincide with the cost to the Lessor of the real estate taxes and other items
(as provided in Paragraph 6) and insurance (as provided in Paragraph 7).
5. Lessee covenants and agrees that it will protect, save and keep Lessor
forever harmless and indemnified against and from:
a. any penalty, damage or charges imposed for any violation of any laws
or ordinances occurring during the term hereof, whether occasioned by acts of
Lessee or of others.
3
b. any and all claims, loss, costs, damage or expense arising during
the term hereof, out of or from any accident or occurrence in, on or about the
leased property causing injury to any person or property whomsoever or
whatsoever; and
c. any and all claims, loss, costs, damage or expense arising out of
any failure of Lessee in any respect to comply with and perform all the
requirements and provisions of this lease.
6. Lessor shall pay all real estate taxes, assessments (including but not
limited to, all assessments for public improvement, whether or not commenced or
completed prior to the date hereof and whether or not to be completed during the
term of this lease), water rates and water charges, drainage assessments, sewer
charges and other governmental levies and charges, general and special, ordinary
and extraordinary, unforeseen as well as foreseen, of any kind and nature
whatsoever, which during the term of this lease are assessed, levied or imposed
upon the leased property or any part thereof or which otherwise become payable
during the term hereof; provided, that the Lessor may elect to pay in
installments any such assessments which shall be so payable without penalty.
a. Notwithstanding any other provisions of this agreement, Lessee shall
have the right to contest in good faith and by appropriate and timely legal
proceedings the legality, assessed valuation and/or amount of any taxes or other
assessment imposed in respect of the leased property if Lessor chooses not to
contest such valuation or amounts; Lessor shall reasonably cooperate with Lessee
in the prosecution of such contest, provided that all expenses of same
(including without limitation all attorneys fees, court and other costs) shall
be paid solely by Lessee. Notwithstanding the preceding sentence, Lessor shall
pay without contest any tax or other assessment unless:
1. such contest shall suspend the collection thereof;
2. no part of the leased property or of any rents therefrom would
be subject to loss, sale or forfeiture before termination of
such contest;
3. neither Lessor nor Lessee would be subject to any criminal
liability for failure to pay;
4. such proceedings shall not affect the payment of rent
hereunder or prevent the Lessee from using the property for
its intended purpose;
5. Lessor shall notify Lessee of any such proceedings within
twenty days after the commencement thereof, and shall describe
such proceedings in reasonable detail.
c. Nothing contained in this lease shall require the Lessee to pay any
Franchise, Income, Estate, Inheritance, Succession, Capital Levy, or Transfer
Tax of Lessor; provided, however, that if, at any time during the term of the
lease, there shall be levied, assessed or imposed upon Lessor a capital levy,
gross receipts, ad valorem tax directly on the rents received hereunder then
such tax shall be deemed to be included within the amount which Lessee is
required to pay hereunder.
7. Lessor shall procure and continue in force throughout the term of this lease,
at its own cost and expense in the names of Lessor and Lessee, Fire and Extended
Coverage Insurance upon the building and improvements, General Liability
Insurance against any and all claims for injuries to person and property
occurring in, upon, about or from the leased property, including all damage from
signs, glass, awnings, fixtures, or other appurtenances now or hereafter erected
upon the leased property. Such insurance shall at all times be an amount deemed
to be adequate in the considered opinion of Lessee or Lessee's insurance
advisor.
8. The Lessee shall at all times, at its own expense, keep and maintain in a
good and safe condition and in good repair the leased property and building
including without limitation all windows, doors, floor covering, plumbing,
heating, electrical, air conditioning, equipment, appurtenances, utility
systems, driveways, parking area and paving and landscaping, roof, outside
walls, foundation and structural portions of the leased property. The term
(repairs), as used herein shall include all necessary replacements, renewals,
alterations, additions and betterments. Lessee shall, at its own expense,
maintain all portions of the leased property in a clean and orderly condition,
free of dirt, rubbish, snow, ice and unlawful obstructions. Upon the expiration
or termination of this lease, Lessee will surrender to Lessor the leased
property in as good condition and repair as the same shall be at the
commencement of the term of this lease ordinary wear and tear, damage from fire
or other casualty excepted.
9. Lessee shall furnish at its own expense all utilities of every type and
nature required by it in its use of the leased property and shall pay or cause
to be paid before any interest or penalty shall be added thereto all bills for
sewer, water, heat, gas, electricity and other utilities, if any, are used on,
in connection with or chargeable against the leased property until the
termination of this lease.
10. a. In the event the building constituting a portion of the leased property
shall be damaged or destroyed by fire or
4
other casualty to the extent that the cost of repairing the same will exceed
fifty percent (50%) of the then replacement value, either party may, within
thirty (30) days after the occurrence of such casualty, terminate this Lease by
written notice. In the event neither party cancels the Lease, Lessor shall
proceed with diligence to restore said building to the substantial condition in
which it existed immediately prior to such casualty, upon which latter event
this Lease shall continue in full force and effect, except that the rent payable
hereunder shall be equitably abated from the date of such damage until the
completion of repairs or restoration.
b. In the event the building constituting a portion of the leased property is
partially damaged by fire or other casualty but not to the extent described in
Paragraph 10(a) above, then in such event, Lessor shall proceed forthwith to
repair and restore the leased property or said building substantially to its
former condition. The rent payable hereunder shall be equitably abated from the
date of the damage until the completion of repairs or restoration.
11. a. All compensation awarded or paid upon a total or partial taking of the
leased property shall belong to and be the property of the Lessor without any
participation of the Lessee. Nothing contained herein shall be construed to
preclude the Lessee from prosecuting any claim directly against the condemning
authority in such condemnation proceedings for damage to, or cost of removal of,
or for the value of trade fixtures, furniture and other personal property
belonging to the Lessee; provided, however, that no such claim shall diminish or
otherwise adversely affect the Lessor's award or the award of the holder of any
mortgage or deed of trust upon the real estate to which this Lease is
subordinate.
b. If the whole of the leased property shall be taken for any public or any
quasi-public use under any statute or by right of eminent domain, or by private
purchase in lieu thereof, then this Lease shall automatically terminate as of
the date that title shall be taken. If any part of the leased property shall be
so taken as to render the remainder thereof not reasonably suitable for the
purposes for which the leased property is then used, then the Lessor and Lessee
shall each have the right to terminate this Lease on thirty (30) days' written
notice to the other given within ninety (90) days from the date of such taking.
12. a. Lessor recognizes that, from time to time throughout the term hereof,
Lessee will place upon the leased property, and within the building located
thereon, certain machinery, equipment, fixtures and trade fixtures (collectively
"Lessee's Trade Fixtures"), which may be the subject of a conditional sales
agreement, mortgage or other security interest. Lessee's Trade Fixtures shall
not at any time be deemed a part of the realty. (As used herein and hereinafter,
the term "Lessee's Trade Fixtures" shall not include or be deemed to include any
item now or hereafter installed in or on the leased property that is an integral
part of the building, including, without limiting the generality of the
foregoing, any heating, ventilating, and air conditioning plant or system,
electrical and plumbing fixtures or systems and other like equipment and
fixtures, it any.)
x. Xxxxxx shall have a lien upon any such personal property, second only to the
lien of the holder of a properly perfected security interest, securing the
payment of any rentals or other amounts owing to the Lessor from the Lessee
under the terms of this Lease and extending to the proceeds of the sale of any
such personal property after any prior perfected security interest has been
satisfied.
c. Nothing in this Agreement shall be construed to provide that Lessee's Trade
Fixtures may not be removed from the leased property by Lessee, or its secured
party, at any time before the termination of this Lease, provided that all
terms, conditions and covenants of this Lease have been complied with by Lessee
and also provided that Lessee, or its said secured party, shall repair any
damage caused by such removal.
13. Lessee, after consultation with Lessor, shall have the right to make changes
or alterations to the building constituting a part of the leased property,
subject to the following conditions:
a. No change or alteration shall at any time be made which shall impair the
structural soundness of the building or which shall diminish the value of the
leased property;
b. No change or alteration shall be made involving an expenditure in excess of
$10,000.00 in any one year without the written consent of Lessor;
c. Except in the case of minor changes or alterations, before commencing any
change or alteration, the Lessee shall procure and deliver to Lessor the written
consent of the holder of any mortgage or deed of trust covering the leased
property;
5
d. All work in connection with any change or alteration shall be done in a good
and workmanlike manner and in accordance with any building and zoning or other
laws, ordinances, orders, rules, regulations and requirements of appropriate
governmental authorities having jurisdiction over the leased property; and
e. All improvements and additions to the leased property shall adhere thereto
and become the property of Lessor, with the exception of Lessee's Trade
Fixtures.
f. In connection with any change or alteration made by the Lessee, the Lessee
shall pay, from time to time when the same shall become due, all lawful claims
and demands of mechanics, materialmen, laborers, and others which, if unpaid,
might result in, or permit the creation of, a lien on the leased property or any
part thereof, or on the revenues, rents, income or profits arising therefrom. In
the event the Lessee fails to make payment of such claims and demands, the
Lessor may, but shall not be obligated to, make payments thereof, and the Lessee
shall, on demand, reimburse the Lessor for all sums so expended. Notwithstanding
the foregoing, the Lessee may bond or otherwise discharge any such claim or
demand which is contested, in form and substance satisfactory to Lessor.
14. Each and every transfer or assignment of this Lease, or any interest
therein, and each and every sublease of the leased property, or any part
thereof, shall be null and void unless the written consent of Lessor thereto be
first obtained, which consent shall not be unreasonably withheld. Any such
assignment or sublease made by Lessee as herein provided shall not relieve
Lessee from any liability hereunder.
15. Upon the happening of any one or more of the following events, the Lessor
shall have any and all of the rights and remedies set forth in Paragraph 16:
a. In the event Lessee should fail to pay any one or more of said monthly
installments of rent, or any other sums required to be paid hereunder, as and
when the same become due, and such default continues for ten (10) days after
written demand for the payment thereof is made by Lessor upon Lessee;
b. In the event a case in bankruptcy under the U.S. Bankruptcy Code, Xxxxx 00,
Xxxxxx Xxxxxx Code, is filed by or against the Lessee and such case is not
dismissed within sixty (60) days from the filing thereof, or in the event of the
insolvency of the Lessee;
c. In the event an assignment for the benefit of creditors is made by Lessee;
d. In the event an execution or other legal process is levied upon the goods,
furniture, effects or other property of Lessee brought on the leased property,
or upon the interest of Lessee in this Lease, and the same is not satisfied or
dismissed within ten (10) days from such levy;
e. In the event Lessee violates any other terms, conditions or covenants on the
part of Lessee herein contained, and Lessee fails to remedy the same within
sixty (60) days after written notice thereof is given by Lessor to Lessee.
16. a. In the event of such default or breach, the Lessor shall have the right,
at its option, to terminate this Lease upon ten (10) days written notice to
Lessee, and to thereupon reenter and take possession of the leased property,
with or without legal process.
b. In the event of any such default or breach, Lessor shall have the right, at
its option, from time to time, without terminating this Lease, to reenter and
relet the leased property, or any part hereof, with or without legal process, as
agent for, and for the account of Lessee, upon such terms and conditions as
Lessor may deem advisable or satisfactory. In such event the rents received on
such reletting shall be applied first to the expenses of such reletting and
collection, including necessary renovation and alterations of the leased
property, reasonable attorney's fees and any real estate commissions paid. Such
rents shall thereafter be applied toward payment of all sums due or to become
due Lessor hereunder. If a sufficient sum shall not be thus realized or secured
to pay such sums due Lessor and other charges:
(i) at Lessor's option, Lessee shall pay Lessor any deficiency monthly,
notwithstanding Lessor may have received rental in excess of the rental
stipulated in this Lease in previous or subsequent months, and Lessor may bring
an action therefor as such monthly deficiency shall arise; or
(ii) at Lessor's option, the entire deficiency which is subject to
ascertainment for the remaining term of this Lease shall be immediately due and
payable by Lessee.
Nothing herein, however, shall be construed to require Lessor to reenter and
relet in any event. The Lessor shall not,
6
in any event, be required to pay Lessee any surplus of any sums received by
Lessor on a reletting of the leased property at a rental in excess of the rent
provided in this Lease.
c. In the event of any such default or breach, the Lessor shall have the right,
at its option, to declare immediately due and payable (1) the rents for the
entire remaining term and (2) any other indebtedness of Lessee to Lessor,
without regard to whether or not possession shall have been surrendered to or
taken by Lessor; Lessor may commence action immediately thereupon and recover
judgment therefor.
d. The Lessor, in addition to other rights and remedies it may have, shall have
the right to remove all or any part of the Lessee's property from the leased
property. Any property so removed may be stored in any public warehouse, or
elsewhere, at the cost of, and for the account of Lessee; Lessor shall not be
responsible for the care or safekeeping thereof, and Lessee hereby waives any
and all claims against Lessor in connection with any loss, destruction and/or
damage or injury which may be occasioned by any of the aforesaid acts.
e. No such reentry or taking possession of the said leased property by Lessor
shall be construed as an election on Lessor's part to terminate this Lease
unless a written notice of such intention is given to Lessee. Notwithstanding
any such reletting without termination, Lessor may, at any time thereafter,
elect to terminate this Lease for such previous default or breach. Any such
reentry shall be allowed by Lessee without hindrance, and Lessor shall not be
liable in damages for any such reentry, nor guilty of trespass or of forcible
entry on account thereof.
f. Any and all rights, remedies and options given in this Lease to Lessor shall
be cumulative, in addition to and without waiver of, or in derogation of, any
right or remedy given to it under any law now or hereafter in effect.
17. The failure of Lessor to insist, in any one or more instances, upon the
strict performance of any of the covenants of this Lease shall not be construed
as a waiver, or as a relinquishment for the future, or such covenant, and any
such covenant shall continue and remain in full force and effect. The receipt by
Lessor of rent with knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach and no waiver by Lessor of any provision hereof
shall be deemed to have been made unless the same shall be expressed in writing
and signed by Lessor.
18. In the event of the employment by Lessor of any agent to collect any rents
or sums due hereunder by Lessee, to enforce the performance of any obligation
hereunder, or on account of the breach by Lessee of any of the terms, conditions
or covenants hereof, Lessee will pay all costs and expenses thereof, including
reasonable attorneys' fees.
19. Lessor covenants and agrees with Lessee that, upon Lessee paying the rent
herein provided and performing all the covenants and conditions hereof, Lessee
may peaceably and quietly have, hold and enjoy the leased property hereby
demised for the entire term hereof; provided, however, that Lessor's liabilities
under this Lease shall be only for the period during which it shall be the owner
of the leased property.
20. Lessee, upon request of Lessor, will subordinate this Lease to any first
mortgage or deed of Trust which now or hereafter affects the leased property,
and will subordinate to any renewals, modifications or extensions of any such
mortgage or deed of trust. Lessee shall execute and deliver such instruments
subordinating this Lease to any first mortgage or deed of trust or confirming or
evidencing such subordination; provided, however, that the holder of any such
mortgage or deed of trust shall execute an agreement providing that, so long as
Lessee shall faithfully discharge its obligations under this Lease, its tenancy
will not be disturbed, or this Lease otherwise affected, by any default under
such mortgage or deed of trust; said agreement shall also provide that in the
event of a sale of the leased property in foreclosure, or in the event of any
sale, transfer or conveyance in lieu thereof, the leased property will be sold,
transferred or conveyed subject to this Lease and subject to such agreement. In
the event Lessor defaults on any mortgage or deed of trust, Lessee may make
payments on the mortgage or deed of trust, and any payment so made shall be a
credit against the rental due under this Lease.
21. The Lessor does hereby further grant to the Lessee the option to purchase
the leased premises (including land, building, fixtures and equipment owned by
Lessor) at any time during the term of this lease for an amount equal to
Lessor's cost in acquiring and/or constructing such leased premises If the
Lessee determines to purchase the property, it shall give written notice of that
fact to the Lessor. In the event of the election of the Lessee to purchase the
leased premises the closing of the purchase and sale shall occur on/or before
the 30th business day following the written notice.
7
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of the
day and year first above written.
REM, LLC
By: /s/ Xxxxx Xxxxxxx Dollar
------------------------------------
Its: Operating Member
COMMUNITY BANK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Its: Senior Executive Vice President
STATE OF ALABAMA
COUNTY OF
I, Xxxxxxx Xxxxxxxxx, a Notary Public in and for said County, in said
State, hereby certify that Xxxxx Xxxxxxx Dollar whose name as Operating Member
of REM, LLC, an Alabama limited liability company, is signed to the foregoing
conveyance, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the conveyance, that he, as such officer and
with full authority, executed the same voluntarily.
Given under my hand and official seal, this the 31st day of May, 2000.
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
NOTARY PUBLIC
STATE OF ALABAMA
COUNTY OF
I, Xxxxxxx Xxxxxxxxx, a Notary Public in and for said County in said
State, hereby certify that Xxxxxx X. Xxxxxx, Xx. whose name as Senior Executive
Vice President of Community Bank, an Alabama banking corporation, is signed to
the foregoing instruments and who is known to me, acknowledged before me on this
day, that, being informed of the contents of the instrument, he as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and seal of office this the 31st day of May, 2000.
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
NOTARY PUBLIC
