High Country Financial Corporation
EXHIBIT (10)(vi)
LEASE AGREEMENT WITH XXXXXX STREET VENTURES, LLC
STATE OF NORTH CAROLINA
COUNTY OF WATAUGA LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this ___ day of July, 2003, by
and between Xxxxxx Street Ventures, LLC, 000 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx (hereinafter referred to as "Landlord"); and High Country
Financial Corp., Inc. 000 Xxxxxxxxx Xx. Xxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
1. Premises. That for and in consideration of the mutual covenants and
agreements contained herein and subject to the terms and conditions
hereinafter set forth, the Landlord does hereby demise and lease unto the
Tenant and the Tenant does hereby lease from Landlord those certain
premises described in Exhibit A attached hereto and incorporated herein by
reference, with shared parking privileges as hereinafter referred to as
the "Demised Premises".
Acceptance of Property. Neither Landlord nor its agents have made any
representations with respect to the Demised Premises except as expressly
set forth herein and no rights, easements, or leases are acquired by the
Tenant by implication or otherwise except as expressly set forth in the
provisions of this lease. The taking of possession of the Demised Premises
by the Tenant shall be conclusive evidence that the Tenant accepts the
same "as is" and that the Demised Premises were in good conditions at the
time possession was taken. (See Addendum A)
Term and Rent. The term of this lease shall be for five (5) years
commencing on August 1, 2003, and ending July 31, 2008. Tenant has the
option for two (2) additional five (5) year lease terms with a Cost of
Living increase based on the Consumer Price Index as published by the
United States Dept. Of Labor. Notice of intent must be given to Landlord
60 days in advance of each 5 year termination.
Tenant shall pay and deliver to Landlord at the address specified
below, as basic rent for the leased premises, $3,500.00 per month,
due on the 1st day of the month and past due after the 10th day, at
which time a late charge will be applied in the amount of 10% of any
unpaid balance.
Each payment shall be delivered to Xxxxxx Street Ventures, LLC,
Landlord, at the following address: 000 Xxxxxx Xxxxxx, Xxxxx, XX
00000
Taxes. The Tenant shall pay 100% of the ad valorem taxes imposed on the
personal property, moveable equipment and contents of the Demised Premises
which the Tenant has provided in the area designated by Addendum A
attached.
Insurance. The Landlord shall keep the Demised Premises adequately insured
against loss of damage by fire and other casualty or act of God which
includes coverage for protection of storefront plate glass, if applicable.
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Tenant shall maintain the following insurance on or in connection with the
Leased Premises:
(a) Insurance against physical loss or damage to the Improvements,
Fixtures, Contents, and Equipment as provided under a standard "All Risk"
property policy including but not limited to fire and flood (if the Leased
Premises is in a flood zone) in amounts not less than the actual
replacement cost of the Improvements and Equipment, or in any event, not
less than _________. Such policies shall contain actual Replacement Cost
and Agreed Amount Endorsements and shall contain deductibles as may be
recommended by Tenant's insurance broker and approved by Landlord, such
approval not to be unreasonably withheld.
(b) Commercial General Liability Insurance and General Business Premises
Insurance against claims for personal and bodily injury, death, or
property damage occurring on, in or as a result of the use of the Leased
Premises, in an amount not less than $1,000,000 per occurrence/annual
aggregate and all other coverage extensions that are usual and customary
for properties of this size and type provided, however, that the Landlord
shall have the right to require such higher limits as may be reasonable
and customary for properties of this size and type.
(c) During any period in which substantial Alterations at the Leased
Premises are being undertaken, builder's risk insurance covering the total
completed value including any "soft costs" with respect to the
Improvements being altered or repaired (on a completed value,
non-reporting basis), replacement cost of work preformed and equipment,
supplies and materials furnished in connection with such construction or
repair of Improvements or Equipment, together with such "soft cost"
endorsements and such other endorsements as Landlord may reasonably
require and general liability, worker's compensation and automobile
liability insurance with respect to the Improvements being constructed,
altered or repaired.
(d) Such other insurance on or in connection with any of the Leased
Premises as Landlord may reasonably require, which at the time is usual
and commonly obtained in connection with properties similar in type of
building size, use and location to the Leased Premises.
(e) The insurance required shall be written by one or more (i) domestic
primary insurer(s) having an investment grade rating of "AA" or a
comparable claims paying ability assigned by S&P or equivalent credit
rating agency approved by Landlord, and approved to write insurance
policies by the State Insurance Department for the State or (ii) such
other insurer(s) as may be otherwise approved by Landlord and Lender, such
approval not to be unreasonably withheld. The insurance policies (i) shall
be for such terms as Landlord may reasonably approve and (ii) shall be in
amounts sufficient at all times to satisfy and coinsurance requirements
thereof. The insurance shall name Landlord as Owner as loss payee and
Tenant as its interest may appear. The insurance shall name Landlord as
additional insureds, and the insurance shall name Landlord (if requested
by Landlord) as loss payee to the extend provided in (v). If said
insurance or any party thereof shall expire, be withdrawn, become void,
voidable, unreliable or unsafe for any reason, including a breach of any
condition thereof by Tenant or the failure or impairment of the capital of
any insurer, or if for any other reason, whatsoever said insurance shall
become reasonably unsatisfactory to Landlord, Tenant shall immediately
obtain new or additional insurance reasonably satisfactory to landlord.
(f) Each policy required shall provide that it may not be canceled or
terminated, substantially modified or allowed to lapse on any renewal date
except after thirty (30) days' prior notice to the Landlord. Each such
policy shall also provide that any loss otherwise payable thereunder shall
be payable notwithstanding (i) any act or omission of Landlord or Tenant
which might, absent such provision, result in a forfeiture of all or part
of such insurance payment, (ii) the occupation or use of any of the Leased
Premises for purposes more
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hazardous than those permitted by the provisions of such policy, (iii) any
foreclosure or other action or proceeding taken by Lender pursuant to any
provision of the Mortgage, Note, Assignment, or other document evidencing
or securing the Loan upon the happening of an event of default therein or
(iv) any change in title to or ownership of any of the Leased Premises.
(g) Tenant shall pay as they become due all premiums for the insurance
required and shall renew or replace each policy and deliver to Landlord
evidence of the renewal or replacement of each such policy prior to the
stated expiration there of (which evidence may consist of a binder,
certificate or replacement policy) and, upon receipt shall promptly
deliver to Landlord all original certificates of insurance.
(h) Anything in this Article 5 to the contrary notwithstanding, any
insurance which Tenant is required to obtain pursuant to Article 5 may be
carried under a "blanket" or umbrella policy or policies covering other
properties or liabilities of Tenant, provided that such "blanket" or
umbrella policy or policies otherwise comply with the provisions of the
Article 5 and provided further that Tenant shall provide to Landlord a
Statement of Values which shall be reviewed annually and amended as
necessary based on Replacement Cost Valuations. A certified copy of each
such "blanket" or umbrella policy shall promptly be delivered to Landlord,
or if requested by Landlord, to Lender.
(i) Tenant shall promptly comply with and conform to (a) all provisions of
each insurance policy required by this Article 5 and (c) all requirements
of the insurers thereunder applicable to landlord, Tenant or any of the
Leased Premises or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration or repair of any of the Leased
Premises, even if such compliance necessitates Alterations or results in
interference with the use of enjoyment of any of the Leased Premises.
(j) Tenant shall not carry separate insurance concurrent in form or
contributing in the event of a Casualty with that required in this Article
5 unless (i) Landlord are included therein as named insureds, with loss
payable as provided herein, and (ii) such separate insurance complies with
the other provisions of this Article 5. Tenant shall promptly notify
Landlord of such separate insurance and shall deliver to Landlord a
certified copy of policies thereof.
(k) All proceeds of insurance payable under clause (5) with respect to
Rent shall be payable to Landlord or, if required by Mortgage, to Lender.
Proceeds of insurance required under clause (a) of Article 5 and proceeds
attributable to Builder's Risk insurance (other that its general liability
coverage provisions) under clause (f) of Article 5 shall be payable to
Landlord. Tenant shall apply the Net Award to restoration of Leased
Premises in accordance with the applicable provisions of this Lease.
Landlord shall not be liable to Tenant for any business interruption or
and loss of damage to property or injury to or death or persons occurring
in the Demised Premises, or in any manner growing out of or connected with
the Tenant's use and occupation of the Demised Premises, or the condition
thereof, whether or not caused by the negligence or other fault of the
Landlord or its agents, employees, sub-tenants, licensees, or assigns.
This release shall apply to the extent that such business interruption,
loss, or damage to property or injury to or death of persons is covered by
insurance, regardless of whether such insurance is payable to or protects
Landlord or Tenant, or both. Nothing herein shall be constructed to impose
any other or greater liability upon Landlord than that would have exited
in the absence of this provision. The applicable insurance policies of the
Tenant shall contain a clause to the effect that this release shall not
affect the right of the insured to recover under such policies. The
release in favor of the Landlord contained herein is in addition to, and
not in substitution for or in diminution of, the hold harmless and
indemnification provisions hereof.
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Tenant shall indemnify Landlord for any cost due to damages, personal
injuries, lawsuits, settlement, claims, reasonable attorney's fees, and
other costs, incurred by Landlord as a result of matters which pertain to
Tenants', customers', or clients' use of the Demised Premises or common
area.
Repairs. Tenant shall, at the Tenant's own expense, make all necessary
repairs, replacements, and capital improvements to the interior of the
Demised Premises including any and all equipment and accessories, except
as stated in paragraph 6,1-6 below. All repairs and replacement shall be
in quality and class at least equal to the original work. Upon default of
the Tenant in making such repairs or replacements, the Landlord may, but
shall not be required to, make such repairs or replacements for the
Tenant's account and the expense thereof shall constitute and be
collectable as additional rent. Landlord shall make, at Landlord's own
cost and expense, and any and all major repairs (exceeding $500) necessary
to the roof, and heating, ventilation and air conditioning system of the
Demised Premises. Notwithstanding the foregoing, the Landlord shall not be
responsible for nor be liable for any such repairs which are necessitated
by the negligent actions or negligent failure to act on the part of the
Tenant or any of the Tenant's agents. Tenant shall be responsible for
changing filters in the HVAC system and any damages caused from
negligence. Tenant shall be responsible for any and all repairs and
maintenance to any and all equipment used by the tenant.
Furthermore, the Landlord will be responsible for the following:
1. Paving and re-lining the parking lot;
2. Facilitate necessary space for drive-thru teller area;
3. Allocate ten parking spaces to facilitate five car wait
for drive-thru;
4. Re-painting any paintable exterior surface;
5. Purchasing and installing four to six front windows;
6. Providing water and sewer services at no charge per
month;
7. Dividing the HVAC, and electrical to provide separate
xxxxxxxx for the tenant;
8. Install interior corridor partition walls as necessary;
9. Remove any furniture and/or equipment that tenant does
not desire to use;
10. Provide toilet facilities and access;
Also, it is agreed that it is the responsibility of the tenant to paint
any and all interior walls and floors as tenant finds desirable and is
agreed upon by the landlord.
7. Rules and Regulations. The Tenant shall not use or knowingly permit any
part of the Demised Premises to be used for any unlawful purpose. Tenant
agrees to operate its business in accordance with local laws; state laws;
federal law; and Landlord's "Rules and Regulations" for the building or
common area, which may be drawn up by Landlord from time to time and made
effective immediately by posting in the building or by delivery to the
Tenant.
Improvement of the Property. No alteration or addition to the improvements
on the Demised Premises shall be made by the Tenant without the written
consent of Landlord. Alterations or improvements to the Demised Premises
shall be at Tenant's expense and shall include all permits, availability
or other fees, up fit charges or costs required by the Town of Xxxxx or
other regulatory or government body as a result of the improvements made.
Any alterations, addition or improvement made by the Tenant after such
consent shall have been given, and any fixtures installed as a part
thereof, shall at Landlord's option become the property of the Landlord
upon the expiration or other sooner termination of this lease; provided;
however, that Landlord shall have the right to require the Tenant to
remove such fixtures at the Tenant's cost upon such termination of this
lease.
Subject to Landlord's approval of sign, style, size, design, or location,
the Tenant shall have the right to construct, erect, place, paint,
maintain and control on the Demised Premises any sign or signs which may
be necessary in the conduct of its business and it shall have the right to
remove the sign or signs at the
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expiration or earlier termination of this lease, provided, that upon the
removal of said sign or signs, the said building shall be put in the same
condition it was in at the time of the placing or painting of said sign,
as far as is reasonably possible.
Utilities. The Tenant shall pay all charges for garbage pick-up, gas,
recycling, electricity, light, heat, power and telephone or other
communication service used, rendered, or supplied upon or in connection
with the premises as designated in Addendum A attached.
Assignment and Subletting. The Tenant may not assign this lease or sublet
any part of the Demised Premises without the prior written consent of
Landlord. It is hereby stipulated that this Lease is assignable to The
Yadkin Valley Bank & Trust Co., in the event the proposed merger between
that bank and High Country Financial Corporation is consummated.
Surrender of the Demised Premises. At the expiration of the lease term,
the Tenant shall surrender the Demised Premises in as good condition as
they were in at the beginning of the term, reasonable use and wear and
damages by the elements excepted.
Damage or Destruction by Fire. In the event that the Demised Premises
shall be damaged or destroyed by fire, the elements or other casualty
during the lease term, then in that event either the Landlord or the
Tenant shall have the right to cancel and terminate this lease with the
rents to be adjusted as of the date said lease is terminated. Upon such
termination, neither party shall have any rights against or obligations to
the other party.
Condemnation. If the whole of the Demised Premises shall be condemned and
taken by any governmental authority or other entity having a power of
eminent domain, then this lease shall immediately terminated, and the
Tenant shall have no interest in any damages and/or monies paid by virtue
of such condemnation.
In the event of a partial appropriation or condemnation of the Demised
Premises that does not materially affect the Tenant's use thereof, the
Tenant shall continue in possession of the unappropriated part of the
Demised Premises under the terms and conditions hereof except that in such
case if the Tenant actually loses the use of part of the Demised Premises,
the Tenant shall be entitled to an equitable reduction in rent payable
hereunder. In the event such partial appropriation or condemnation
materially affects the Tenant's use of the Demised Premises, the Tenant
may, at its option, terminate this lease and Landlord shall refund the
Tenant any unearned rental existing at the time of said termination.
However, the Tenant shall have no interest in any damages and/or monies
paid by virtue of such condemnation.
Notwithstanding the foregoing, Tenant shall be entitled to a separate
award made to Tenant for loss of business, moving expense or the taking of
Tenant's fixtures or equipment if a separate award for such items is made.
Indemnity and Attorney's Fees. The Tenant shall indemnify and save
Landlord harmless from the against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury,
torts, crimes, and/or damage to person or property arising from or out of
any occurrence in, upon or at the Demised Premises or the occupancy or use
by the Tenant of the Demised Premises or any part thereof, or occasioned
wholly or in part by any act or omission of the Tenant, its agents,
employees or invitees. In case Landlord shall, without fault on its part,
be made a party to any litigation by reason of the Tenant's use or
occupancy of the Demised Premises, then the Tenant shall protect and hold
Landlord harmless and shall pay all cost, expenses and reasonable
attorney's fees that may be incurred or paid
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by Landlord in such litigation. In addition, Tenant shall pay all costs,
expenses and reasonable attorneys' fees that may be incurred or paid by
Landlord in enforcing the covenants and agreements of the Tenant contained
in this lease. In case Tenant shall, without fault on its part, be made a
party to any litigation by reason of Landlords's failure to keep demised
premises in a reasonable condition for occupancy, then the Landlord shall
protect and hold Tenant harmless and shall pay all cost, expenses, and
reasonable attorney's fees that may be incurred or paid by Tenant in such
litigation.
Damages. If the Demised Premises shall be deserted or vacated, or if
proceedings are commenced against the Tenant in any court under a
bankruptcy act or for the appointment of a trustee or receiver of the
Tenant's property either before or after the commencement of the lease
term, or if there shall be a default in the payment of rent or any part
thereof for more than five (5) days after said rent is due, or if there
shall be default in the performance of any other covenant, agreement,
condition, rule or regulation herein contained in hereafter established on
the part of the Tenant for more than twenty (20) days after written notice
of such default by Landlord, this lease (if Landlord so elects) shall
thereupon become null and void, and Landlord shall have the right to
re-enter or repossess the Demised Premises, either by force, summary
proceedings, surrender or otherwise, and dispossess and remove therefrom
the Tenant, or other occupants thereof, and their effects, without being
liable to any prosecution therefor. In such case, Landlord may, at its
option, relet the Demised Premises or any part thereof, as the agent of
the Tenant, and the Tenant shall pay Landlord the difference between the
rent hereby reserved and agreed to be paid by the Tenant for the portion
of the term remaining at the time of re-entry or repossession and the
amount, if any, received or to be received under such reletting for such
portion of the term. The Tenant waives and shall waive all right to trail
by jury in any summary proceeding hereafter instituted by Landlord against
the Tenant in respect of the Demised Premises.
Quiet Enjoyment. Landlord covenants that if and so long as Tenant pays the
rent, other charges herein, and performs all of the terms, covenants, and
conditions of this lease on Tenant's part to be performed, Tenant shall
peaceably and quietly have, hold and enjoy the Demised Premises for the
term of this lease, but always subject to the provisions of the lease.
Notice. All notices, consents, requests, instructions or other
communications provided for herein shall be deemed validly given, made and
served if in writing and either delivered personally or sent by certified
or registered mail, postage prepaid and, pending the designation of
another address, addressed as shown on the last page of the Lease.
Should the property be available for sale, Tenant shall have the first
right of refusal on any bonafide offer.
Notwithstanding any other provisions contained in this lease, in the event
the Lessee is closed or taken over by the North Carolina Commissioner of
Banks, or other bank supervisory authority, the Lessor may terminate the
lease only with the concurrence of The Commissioner of Banks, or other
bank supervisory authority, and any such authority shall in any event have
the election either to continue or to terminate the lease: Provided, that
in the event this lease is terminated, the maximum claim of Lessor for
damages or indemnity for injury resulting from the rejection or
abandonment of the unexpired term of the lease shall in no event be in an
amount exceeding the rent reserved by the lease, without acceleration, for
the year next succeeding the date of the surrender of the premises to the
Lessor, or the date of reentry of the Lessor, whichever first occurs,
whether before or after the closing of the bank, plus an amount equal to
the unpaid rent accrued, without acceleration up to such date.
Landlord acknowledges Tenant's business needs as a bank commissioned by
the North Carolina Commissioner of Banks to maintain an image of safety
and soundness in keeping with its role and public trust. Landlord will not
lease other parts of its building to other tenants without the prior
approval of Tenant, such approval not to be unreasonably withheld.
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Upon request by either Landlord or Tenant, the parties hereto agree to
execute a short form lease (Memorandum of Lease) in recordable form,
setting forth such provisions hereof (other than the amount of Base
Monthly Rent and other sums due) as either party may wish to incorporate.
The cost of recording such memorandum of lease shall be borne by the party
requesting execution of the same.
Landlord acknowledges that Tenant must obtain approval by the North
Carolina Commissioner of Banks in order to operate a branch in the Demised
Premises. In the event that the North Carolina Commissioner of Banks does
not grant a certificate for the proposed branch within 120 days from date,
this lease is null and void. Tenant forfeits any rents paid through that
period.
IN TESTIMONY OF THIS CONTRACT, the parties have set their hands to this Lease
Agreement, in duplicate originals, one of which is retained by each of the
parties.
/s/ Xxxxx X. Xxxxxx M/M
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Xxxxx X. Xxxxxx, Member/Manager
for Xxxxxx Street Ventures, LLC
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, CEO, President
High Country Financial Corp., Inc.
High Country Financial Corporation
Exhibit A to
Lease Agreement
The lease premises are located at 000 Xxxxxx Xxxxxx, Xxxxx, Xxxxx Xxxxxxxx
00000, (beside The Xxxxxx Emporium Warehouse, Inc.) and more specifically
described as approximately 1,200 +/- square feet of handicapped accessible floor
space facing King Street with over 100 linear feet of frontage, including area
for off-premises, road-frontage signage as designated in Addendum A attached.
Plus shared use of the Landlord's parking lot located on the North side of
Xxxxxx Street.
High Country Financial Corporation
NORTH CAROLINA
WATAUGA COUNTY
I, Xxxxxxx X. Xxxxxx, a Notary Public for said County and State, do hereby
certify that Xxxxx X. Xxxxxx, Member/Manager of Xxxxxx Street Ventures, LLC, a
limited liability company, personally appeared before me and acknowledged the
execution of this Agreement, and I do certify that they acknowledged before me
that they carefully read and fully understood the contents of this agreement,
and the purpose and meaning of it. Witness my hand and notarial seal, this 1st
day of August, 2003.
/s/ Xxxxxxx X. Xxxxxx Notary Public
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My Commission expires: 2/22/06
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NORTH CAROLINA
WATAUGA COUNTY
I, Xxxxxxx X. Xxxxxx, a Notary Public for said County and State, do hereby
certify that Xxxx Xxxxxxxx personally appeared before me and acknowledged the
execution of this Agreement, and I do certify that they acknowledged before me
that they carefully read and fully understood the contents of this agreement,
and the purpose and meaning of it. Witness my hand and notarial seal, this 1st
day of August, 2003.
/s/ Xxxxxxx X. Xxxxxx Notary Public
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My Commission expires: 2/22/06
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