EXHIBIT 10.8
STATE OF NORTH CAROLINA
COUNTY OF XXXXXXXXX
LEASE AGREEMENT
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THIS LEASE AGREEMENT made as of the 25th day of June , 1997, by and
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between XXXX X. XXXXX, a citizen and resident of the County of Xxxxxxxxx, State
of North Carolina (hereinafter called "Lessor"), and MOUNTAINBANK, INC.,
(hereinafter called "Lessee");
W I T N E S S E T H:
THAT, subject to the terms and conditions hereinafter set forth, the Lessor
does hereby let and lease unto the Lessee those certain premises in the County
of Xxxxxxxxx and State of North Carolina situated at Hendersonville, North
Carolina and being more particularly described as located off U.S. Highway 64
East, Four Seasons Boulevard, Hendersonville, North Carolina, and as is shown
more particularly by metes and bounds on "Exhibit A" attached hereto and
incorporated herein.
TO HAVE AND TO HOLD the said demised premises and appurtenances upon the
terms and conditions hereinafter set forth.
1. Initial Term and Option to Renew: The initial twenty (20) year term
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of this lease shall begin July 1, 1997 and end on June 30, 2017. At the
expiration of the initial twenty (20) year term of the lease, Lessee shall have
the option of extending the term of this lease for two (2) consecutive five (5)
years periods. Lessee shall give Lessor written notice at least ninety (90) days
prior to the expiration of the initial term if Lessee decides to exercise the
first option to renew. The Lessee shall also be obligated to give to the Lessor
written notice at least ninety (90) days prior to the expiration of the first
renewal term if Lessee decides to exercise the option to renew for the second
renewal term. The rentals for the renewal terms shall be as hereinafter set out
in Paragraph "3".
2. Rental: During the initial five (5) years of this lease, the Lessee
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shall pay to the Lessor for the use and occupancy of the demised premises rental
at the rate of $80,400.00 per year, payable in equal monthly installments of
$6,700.00 in advance on or before the first day of each and every calendar
month.
3. Rental Adjustments: During the initial lease term the rental shall be
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fixed for the first five (5) years. Rent for rental year six (6) through rental
year ten (10) shall be adjusted by the South East Consumer Price Index (the CPI)
as follows:
Year Six = Base Rent ($6,700.00 per month)
Through Adjusted @ 100% of the accumulated
Year Ten CPI for year one through year five,
The "accumulated CPI" shall be defined and determined as follows: the annual
increases or decreases in the consumer price index for each year. The annual
rental payment at the end of year five (5) shall be determined by taking 100% of
the "accumulated CPI", treating that number as a percentage, multiplying the
annual rental payment from the previous five (5) year period by that percentage,
and
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adding the resulting figure to the last annual rent figure to arrive at the new
annual rent payment figure (to apply for the upcoming five year term).
The same method for calculating rental increases shall be utilized for each five
year increment to determine the increases for (a) years six (6) through ten
(10), (b) eleven (11) through fifteen (15), and (c) years sixteen (16) through
twenty (20) of the initial lease term. Should Lessee exercise its options to
renew the lease, the renewal rent shall increase one hundred percent (100%) of
the accumulated CPI during the prior lease term as is set out above.
4. Payment of Rental: All rental payments provided herein shall be made
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payable to Lessor at ___________________________________________________________
notice to the contrary is given by Lessor or his agent.
5. Taxes and Assessments: Lessee shall pay all city and county ad
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valorem taxes levied against the demised property.
6. Insurance: At all times during the lease term:
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(a) Lessee shall carry a liability policy in the minimum sum of
$1,000,000.00 naming the Lessee, Lessor, and any mortgagee of the premises as an
insured party. Certification of such general liability insurance with a combined
single limit of One Million Dollars ($1,000,000.00) protecting Lessor, Lessee,
or any mortgagee from any occurrence resulting in bodily injury or property
damage shall be provided to the Lessor at least annually.
(b) Lessee shall assume the complete risk of loss for Lessee's
personal property and fixtures located in the demised premises, and Lessor shall
have no interest in the proceeds of insurance upon that personal property, if
any insurance exists.
(c) Lessee shall maintain a fire and casualty policy insuring Lessee
and Lessor from loss upon terms and conditions satisfactory to Lessor.
7. Use of Demised Premises: Lessee shall use the demised premises to
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construct a temporary and/or permanent banking facility including drive in
facilities. Lessor represents that the demised premises may lawfully be used for
such purpose under current zoning, and that property is otherwise suitable for
such use. Lessee shall comply with all laws, ordinances, orders or regulations
of any lawful authority having jurisdiction over the demised premises; provided,
however, that Lessor warrants and covenants that, at the time of delivery to the
Lessee, the demised premises shall comply with all such laws, ordinances, orders
and regulations, and that Lessee shall have no responsibility for preexisting or
structural conditions. Without limiting the generality of the foregoing, Lessee
shall make such arrangements for the storage and disposition of all garbage and
refuse as may be required to keep the demised premises and all adjoining entry
ways, sidewalks and delivery areas in the manner required by law and in as neat
and orderly conditions as may be reasonably obtainable given the nature of
Lessee's business.
8. Maintenance: Lessee shall be responsible for all maintenance and
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repairs to the structural portion (including the roof) and common areas of the
demised premises, and the heating,
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ventilation, air conditioning, plumbing, electrical and other utility systems
servicing the premises and for maintaining the exterior landscaping and parking
lots (as applicable).
9. Damage or Destruction by Casualty:
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(a) Except as provided in subparagraphs (b) and (c) of this paragraph
9, in the event of damage to or destruction of the demised premises by fire or
other insured casualty, the Lessor, from the proceeds of the fire and casualty
policy set out in 6(c) above will promptly restore the demised premises as
nearly as possible to its condition prior to such damage or destruction.
(b) If the demised premises are destroyed or so damaged by fire or
other casualty such that repair of such damage shall require 120 days or more,
the Lessee may terminate this lease on notice of at least ten (10) days and no
more than thirty (30) days.
Such notice shall be given within sixty (60) days after the date of such damage
or destruction. If the lease shall so terminate, all rent shall be apportioned
to the date of termination and all insurance proceeds shall belong to the
Lessor.
(c) Rent shall xxxxx during the time the demised premises are being
restored. Lessor shall be free to insure against loss of rent due to casualty or
other cause, and in the event of such loss proceeds of that insurance shall be
for the sole benefit of Lessor.
10. Utilities: During the term of this lease, Lessee shall provide and
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pay for all lights, heat, water, sanitary sewer fees, janitor service and other
utilities required by it in the use of the demised premises. Lessor represents
that city water and sewer are available to the demised property.
11. Signs: Lessee may install such signs on the demised premises as may
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be approved by Lessor. Such approval shall not be unreasonably withheld. Any
sign erected by the Lessee shall be at Lessee's sole cost and expense. Lessee
will maintain such sign during the term of the lease and remove same upon
termination of the lease. In no event shall any signage violate any local, state
or governmental laws.
12. Indemnity: Lessee covenants and agrees that it will defend,
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indemnify, protect and save harmless the Lessor from the claims of all persons
arising from or out of the use or occupancy of the demised premises by or under
Lessee or Lessee's agents, employees, customers or specific invitees. In any
event, Lessee agrees to and shall indemnify Lessor for any loss which Lessor
suffers as a result of Lessee's use and occupancy of the demised premises.
Lessee agrees to and shall defend at its sole expense any and all legal actions,
with the exception of actions brought to establish the liability of Lessee's
Directors, brought against Lessor, caused by, relating to, or arising from
Lessee's use and occupancy of the demised premises, including reimbursing Lessor
for all reasonable attorney's fees and court costs expended by Lessor in the
defense of any such actions.
13. Lessor's Entry: The Lessor shall have the right to enter upon the
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demised premises during business hours for purposes of inspection of the
property but the inspection will be performed in a manner so as not to
unreasonably interfere with the Lessee's business operations.
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14. Assignment and Sublease: Lessee may, only after obtaining written
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consent of the Lessor, assign this Lease or sublet the premises or any part
thereof unless the assignment is to a banking institution that has obtained all
necessary State and/or Federal Regulatory Approval. Assignment or subletting is
not permitted without the written consent of the Lessor unless to another
financial institution with State and/or Federal Regulatory Approval. However,
such assignment or subletting shall not in any way release Lessee from its
liability to carry out and perform in the manner therein set forth any of the
other covenants and conditions of this Lease.
15. Default:
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(a) Lessee's Default: If Lessee shall be in default in the payment of
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any rent due hereunder or in the performance of any of the covenants or
conditions hereof, and shall fail to correct and rectify such default within
thirty (30) days from the receipt of written notice thereof from Lessor, or if
Lessee shall be adjudicated bankrupt, or make any assignment for the benefit of
creditors, or if the interest of Lessee herein shall be sold under execution or
other process, Lessor may enter into said premises, and again have and repossess
the same as if the Lease had not been made and shall thereupon have the right to
cancel this Lease, without prejudice, however, to the right of Lessor to recover
all rent due to the time of such entry. Such re-entry shall not prejudice any
right that Lessor has under North Carolina law or waive any cause of action
Lessor may have against Lessee for default upon the terms of this contract. In
case of any such default and entry, Lessor shall make a reasonable effort to
relet said premises from time to time during the term hereof for the highest
rent obtainable and may recover from Lessee any deficiency between such amount
and the rent herein reserved. In the event of default, until such time as Lessee
has totally vacated the demised premises, including removing therefrom all
personal property of Lessee, Lessor shall have no obligation to relet the
premises and Lessee shall be fully responsible for the rent provided for in this
lease. Further, in the event of Lessee's default, Lessor shall be entitled to
recover from Lessee Lessor's reasonable attorneys fees incurred in any action in
law or equity brought by Lessor to obtain possession of the premises or to
determine the amount of Lessor's damage.
(b) Lessor's Default: If Lessor defaults in performance of its
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obligations hereunder, Lessee shall have such rights and remedies as shall be
provided by law and in equity and Lessor shall reimburse Lessee for its
reasonable attorney's fees in prosecuting any successful suit against Lessor for
enforcement of this lease.
16. Remedies Cumulative - Nonwaiver: No remedy not otherwise conferred
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upon or reserved to Lessor or Lessee shall be considered exclusive of any other
remedy, but the same shall be distinct, separate and cumulative and shall be in
addition at law or in equity or by statute; and every power and remedy given by
this lease to Lessor or Lessee may be exercised from time to time as often as
occasion may arise or as may be deemed expedient. No delay or omission of Lessor
or Lessee to exercise any right or power arising from any default on the part of
the other shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence thereto.
17. Eminent Domain: If any part of the building and/or leased premises on
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the demised premises is taken under the power of eminent domain (including any
conveyance made in lieu thereof), and such taking shall in the reasonable
judgement of Lessee make the operation of Lessee's
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business on the demised premises impractical, then Lessee shall have the right
to terminate this lease by giving Lessor written notice of such termination
within thirty (30) days after such taking; and if Lessee does not so elect to
terminate this lease, the rental to be paid by Lessee hereunder shall be
equitably modified. An appraisal shall then be conducted of the fair market
rental value of the property by a professional real estate appraiser possessing
the MAI designation of the Appraisal Institute. That value shall become the new
rent, but in no event shall that rent be more than the previous rent. If the new
rent is less than the original base rent, less ten percent (10%), Lessor may
terminate this lease. All proceeds and awards from any such taking shall be the
sole property of Lessor except that Lessee shall have the right to make a
separate claim for compensation for moving expenses and any of its personal
property.
18. Notices: All notices provided for in this Lease Agreement shall be in
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writing and shall be deemed to be given when sent by prepaid registered or
certified mail to the parties as follows:
Lessor: Xx. Xxxx X. Xxxxx
________________________________
________________________________
Telephone: (704) _______________
Lessee: MountainBank, Inc.
XX Xxx 0000
Xxxxxxxxxxxxxx, XX 00000-0000
Telephone: (704) _______________
Either party may, from time to time by notice as herein provided, designate
a different address to which notices to it shall be sent.
19. Holding Over: If the Lessee shall for any reason hold over at the end
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of their term of this Lease or any renewal thereof, the Lessee shall become a
Tenant from month to month at the rental payable hereunder and otherwise upon
the covenants and conditions contained herein.
20. Possession and Warranty: The Lessor covenants that it is seized of
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the Leased Premises in fee simple free of all liens, encumbrances, easements,
claims, leases, restrictions and restrictive covenants which would in any way
prevent or hinder Lessee in Lessee's intended use, and has the good right and
lawful authority to enter into this Lease Agreement for the full term hereof;
that it will put Lessee in actual possession of the Leased Premises at the
beginning of the aforesaid term; that Lessee, upon paying the said rental and a
performing of the covenants herein agreed by it to be performed, shall peaceably
and quietly have, hold and enjoy the Leased Premises and use the appurtenances
thereto as hereinabove referred to for the full term hereof; and there are no
restrictions in the chain of title, ordinances, regulations or other laws that
are presently binding and enforceable and which prohibit the use of the Leased
Premises for the purpose hereinbefore set out.
21. Environmental: Lessee covenants and warrants that, other than what is
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reasonably necessary in carrying out its business in the Leased Premises, it
will not permit transportation, storage, placement, handling, treatment,
discharge, generation, production or disposal of any waste,
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petroleum product, waste products, radioactive waste, poly-chlorinated biphenyl,
asbestos, hazardous materials of any kind, or any substance which is regulated
by any law, statute, ordinance, rule or regulation ("Hazardous Substance"), by
Lessee or any other person or entity in, on, or around the Leased Premises. In
any event any such substances shall be at all times handled and disposed of by
Lessee in accordance with existing law. If said substances are not disposed of
in accordance with existing law, Lessee shall be strictly liable to Lessor for
any loss or damage Lessor suffers as a result of such failure.
22. Nature and Extent of Agreement: This instrument contains the complete
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agreement of the parties regarding the terms and conditions of the lease of the
demised premises, and there are no oral or written conditions, terms
understanding or other agreements pertaining thereto which have not been
incorporated herein. This instrument creates only the relationship of Landlord
and Tenant between the parties hereto as to the demised premises; and nothing
herein shall in any way be construed to impose upon either party hereto any
obligations or restrictions not herein expressly set forth.
23. Binding Effect: This Lease Agreement shall be binding upon and shall
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inure to the benefit of the parties hereto and their respective successors and
assigns.
24. Condition Precedent: All parties hereto acknowledge and agree that
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the obligation of the Lessee to perform is conditioned upon receiving regulatory
approval from all appropriate state and federal regulatory agencies and upon
receipt of FDIC insurance.
IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement
under seal as of the day and year first above written.
LESSOR:
/s/ Xxxx X. Xxxxx (SEAL)
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XXXX X. XXXXX
LESSEE:
ATTEST: MOUNTAINBANK, INC.
BY: /s/ Xx Xxxxxxxxx BY: /s/ X. X. Xxxxx
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(Assistant) SECRETARY PRESIDENT
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XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXXXXX
Xx this 25th day of June , 1997, before me personally appeared XXXX
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X. XXXXX me known to be the person described in and who executed the foregoing
instrument, and acknowledge that he executed the same as his free act and deed.
WITNESS my hand and notarial seal this 25th day of June , 1997.
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My Commission Expires: /s/ Xxxxxxx X. Xxxxxxx
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April 28, 2002 NOTARY PUBLIC
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(AFFIX NOTARY SEAL/STAMP)
STATE OF NORTH CAROLINA
COUNTY OF XXXXXXXXX
I, a Notary Public of the County and State aforesaid, certify that
Xxxxxxx X. Xxxxxxxxx , personally appeared before me this day and acknowledged
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that ____ he is _________ Secretary of MOUNTAINBANK, INC., a state chartered
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Bank, and that by authority duly given and as an act of the corporation, the
foregoing instrument was signed in its name by its __________ President, sealed
with its corporate seal and attested by him as its ________________ Secretary.
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WITNESS my hand and official stamp or seal, this 25th day of June ,
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1997.
My Commission Expires: /s/ Xxxxxxx X. Xxxxxxx
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April 25, 1997 NOTARY PUBLIC
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EXHIBIT A
BEGINNING at a point in the center of Xxxx Street (S.R. 1520), said point being
the point where the City of Hendersonville City Limits line crosses Xxxx Street,
and moving thence from said beginning point along and with the City of
Hendersonville City Limits line, South 48 deg. 01 min. 04 sec. West 13.62 feet
to a point; thence South 31 deg. 16 min. 02 sec. East 57.81 feet to a point;
thence turning and running, South 46 deg. 47 min. 58 sec. West 202.17 feet to a
point in the center of Xxxxx Street (S.R. 1521), also known as Xxxxx Vista
Drive; thence along and with the centerline of Xxxxx Street (S.R. 1521), also
known as Xxxxx Xxxxx Xxxxx, Xxxxx 00 deg. 54 min. 41 sec. West 89.10 feet to a
point; thence North 40 deg. 09 min. 30 sec. West 100.76 feet to a point; thence
turning and leaving the center of Xxxxx Street (S.R. 1521) and traveling North
46 deg. 47 min. 58 sec. East 249.67 feet to a point in the center of Xxxx Street
(S.R. 1520); thence along and with the center of Xxxx Street (S.R. 1520), South
30 deg. 49 min. 09 sec. East 136.61 feet to the point and place of BEGINNING,
and containing 43,489 square feet according to a survey by Xxxxx Xxxx Xxxxxx,
XXX #X0000, under date of November 21, 1996, and being Job No. 96-263SU, and
said survey being entitled "Site Plan for MountainBank - Owner/Developer: Xxxx
X. Xxxxx".
There is RESERVED by Xxxx X. Xxxxx for the purpose of allowing and providing
ingress, egress, and regress to other remaining property of Xxxx X. Xxxxx a
right of way along the northwestern boundary of the tract hereinabove described
between Xxxxx Street (S.R. 1521) and Xxxx Street (S.R. 1520).
In the event the Lessor develops the property lying to the North of the Northern
boundary of the tract being leased, Lessor grants to Lessee a right of way
between Xxxxx Street and Xxxx Street for ingress, egress, and regress.
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