EXHIBIT 10.9
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE LEASE AGREEMENT
This LEASE AGREEMENT (the "Lease") is made and entered into in
duplicate originals as of this 12 day of April, 2000, by and between
SHE-CAN, CO., XXXXXX X. XXXXXX, XX. AND XXXXXXXX X. XXXXXX,
general partners, a North Carolina General Partnership (the "Landlord"),
and HIGH STREET BANKING COMPANY, A NORTH Carolina Banking Corporation
formed pursuant to the laws of the State of North Carolina (the "Tenant");
WITNESSETH:
The Landlord, for and in consideration of the rents, covenants,
agreements and stipulations hereinafter mentioned, reserved and contained; to be
paid, kept and performed by the Tenant, has leased, let and demised, and by
these presents does lease, let, and demise unto the said Tenant, and the Tenant
hereby agrees to lease, let, and demise and take upon the terms and conditions
which hereinafter appear, the property located at 000 Xxxxxxxx Xxxxxx, XX
Xxxxxxx 00, Xxxxxxxxx, Xxxxxxxx Xxxxxx, North Carolina, described on a survey
dated 20 March 2000 entitled "Revised Survey for SHE-CAN COMPANY" by Xxxx X.
Xxxxxx & Associates, P.A., and described more particularly in Exhibit A attached
hereto and by reference thereto made a part hereof; together with the
improvements, equipment, fixtures, installations, and appurtenances to be
placed, installed, and constructed upon said property in accordance with the
plans, drawings, and specifications (hereinafter "Plans") attached hereto as
Exhibit B and by reference thereto made a part hereof; all of said real and
personal property being sometimes hereinafter referred to as the "Leased
Premises."
TO HAVE AND TO HOLD all and singular the Leased Premises unto the
Tenant for the terra hereinafter specified upon the conditions, terms and
covenants set forth in this Lease.
This Lease is made subject to the following further conditions, terms,
covenants, and agreements which are mutually agreed upon by and between the
parties hereto, to wit:
1. Conditions Precedent and Landlord's Representation.
A. Condition Precedent.
(i) An environmental audit of the improvements now
existing on premises to be leased shall be made by Landlord at its expense which
shall be added as Unfit Expense under the
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terms of the Lease to be paid as a part of Rent by Tenant, and the results of
the audit must be satisfactory to Tenant. If the results of the environmental
audit are not satisfactory to Tenant, then Tenant has the right to immediately
terminate this Lease, in which event it shall be void, or to accept the Premises
"as is."
(ii) Lessee, prior to beginning of any construction and renovation of
the premises to be leased hereunder, shall have the right to inspect, bore,
test, analyze and investigate the soil, fill, compaction, and sub-surface
conditions of the real property to be leased to determine if said real property
can be used without substantial additional site preparation costs for the
purposes described. In the event Lessee's inspection, investigation, etc.,
determines that there exists on or beneath or within said property conditions
which require extraordinary site preparation, environmental "cleanup," or other
site preparation in addition to that described in the Plans, the Lessee has a
right to immediately terminate this Lease in which event it shall be void, or to
accept the Premises and Temporary Premises "as is".
B. Landlord's Representation. Landlord acknowledges to the best
of Landlord's knowledge:
(i) The Leased Premises is now free from contamination by
Hazardous Materials, and said premises and the activities conducted thereon to
the best of Landlord's knowledge do not pose any significant hazard to human
health or the environment or violate any Environmental Laws. There is no
evidence of any existing release of Hazardous Materials at said premises.
(ii) There has been no generation, treatment or storage of any
Hazardous Materials at the Leased Premises, nor any activity at said premises
which could have produced Hazardous Materials.
(iii) There are no surface impoundments, lagoons, waste piles,
landfills, injection xxxxx, underground storage areas, tanks, storage vessels,
drums, containers or other man-made facilities which may have accommodated
Hazardous Materials at the Leased Premises. Neither Landlord not to Landlord's
knowledge has any third person, has stored, placed, buried or released Hazardous
Materials at the said premises including the soil, surface water and ground
water.
(iv) There has been no treatment, storage or release of any
Hazardous Materials on land adjacent or near to the Leased Premises which may
constitute a risk of contamination of said premises or surface water, or ground
water flowing to said premises.
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(v) No inspection, audit, inquiry or other investigation has
been or is being conducted by any Governmental Authority or other third person
with respect to the presence or discharge of Hazardous Materials at the Leased
Premises or the quality of the air, or surface or subsurface conditions at the
said premises except for the environmental audits, if any, performed on behalf
of Tenant or a lender, copies of which will be delivered to Tenant pursuant to
this Agreement. Landlord has not received any other notice that any such
inspection, audit, inquiry or investigation is pending or proposed. Neither
Landlord nor to Landlord's knowledge, any previous owner of the said premises
has received any warning, notice, notice of violation, administrative complaint,
judicial complaint or other formal or informal notice or REQUEST FOR INFORMATION
ALLEGING that Hazardous Materials have been stored or released at said premises
or that conditions at the said premises are in violation of any Environmental
Laws or requesting information regarding the use, storage, release or potential
Release of Hazardous Materials at the Property.
(vi) For purposes herein, "Environmental Laws" shall mean any
federal, state or local statute, regulation or ordinance or any judicial or
administrative decree or decision, whether now existing or hereinafter enacted,
promulgated or issued, with respect to any Hazardous Materials as defined in the
Comprehensive Environmental Response and Liability Act. "Hazardous Materials"
shall mean each and every element, compound, pollutant, chemical mixture,
contaminant, mixture, waste or other substance which is defined, determine or
identified as hazardous or toxic under any Environmental Law.
2. Commencement and Term. Landlord and Tenant acknowledge that this Lease
for the Leased Premises described in Exhibit A be for an initial term, referred
to as the "Initial Lease Term" of fifteen (15) years. The Initial Lease Term
shall begin (herein the "Commencement Date") on the first day of the calendar
month after notice to Landlord and Tenant by Tenant's Architect of substantial
completion of the building and site improvements pursuant to the Plans.
Provided, however, pursuant to mutual agreement of the Parties, Tenant may
occupy the Leased Premises (building and site) prior to or after notice of
substantial completion and, if said occupancy is otherwise allowed by law, the
said date of such occupancy shall become the Commencement Date.
Following the Initial Lease Term, and provided Tenant is not then in
default, Tenant, at its option, may renew and extend the Lease for three (3)
additional terms of ten (10) years each, (herein the "Extended Term or Terms")
provided however, written notice of such renewal and extension shall be given
Landlord no less than six months before the end of the Initial Lease Term and
each Extended Term.
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3. Rental.
A. Rent for the first five lease years of the Initial Lease Term
shall be determined as follows: Prior to any alteration, renovation and
improvement to the Leased Premises according to the Plans, the existing building
and site has been appraised by a qualified MAI appraiser at the then fair market
value of $300,000.00 which is agreed to by the parties. Such fair market value
of the then existing premises (herein the "Value Basis") shall be added to the
sum of direct improvement costs, fees, permits and expenses paid by Landlord
which arise out of construction improvements to the building and site according
to the Plans (herein, the "Upfit Expense"). The sum thus determined shall then
be multiplied by. 10 (10/100ths). The quotient thus determined (herein, the
"Base Annual Rent") shall be the annual rent for each of the first five years of
the Initial Lease Term. Such Base Annual Rent shall be paid in twelve equal
monthly installments (herein "Monthly Rent") during each lease year of said
first five years of the Initial Lease Term. By example, the following formula
shall express the determination of Base Annual Rent and Monthly Rent:
Value Basis + Upfit Expense = SUM
.1 x SUM = Base Annual Rent
Base Annual Rental / 12 = Monthly Rent
B. Beginning with the first month of the sixth year of the
Initial Lease Term and beginning the first month of each lease year thereafter
during the Initial Lease Term, Annual Rent shall increase by two percent (2%) of
the prior lease year's Annual Rent. Such Annual Rent shall be paid in twelve
equal monthly installments during each remaining lease year of the Initial Lease
Tenn.
C. Rent for each lease year of each Extended Term hereunder shall
be the then prevailing fair market rent as agreed to by Landlord and Tenant. If
Landlord and Tenant cannot agree to the then fair market rent, then each shall
select a qualified MAI appraiser who shall determine the then fair market rent
for the First Lease Year of the Extended Term. The cost of each such appraisal
shall be paid by the party who retains the appraiser. In the event the MAI
appraisals differ, then the mean of the two appraisals shall be the rental for
the First Lease Year of the Extended Term. Annual Rent for each lease year of
each Extended Term shall be paid in twelve (12) equal monthly installments of
the lease year beginning on the first day of the first month of each lease year
of each extended term.
Rent for the second through tenth year of each Extended Term shall be
the then prevailing fair market rent as agreed to by Landlord and Tenant at the
beginning of each such lease year based
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upon then customary annual adjustments to rent in commercial properties
similarly situated to the Leased Premises located in Asheville, N.C. If the
parties cannot agree to an annual adjustment thirty (30) days in advance of the
beginning of each such lease year, then each shall select an MAI appraiser who
shall determine the adjustment in Rent for such Lease Year. The cost of such
appraisal shall be paid by the party who retains the appraiser. In the event the
MAI determined adjustments differ, the mean of the two adjustments shall be the
adjustment to Annual Rent for the next Lease Year.
D. Tenant covenants and agrees to pay to the Landlord, its
successors and assigns, all the Monthly Rent aforesaid in advance, the first
month's installment of the Initial Lease Term being due on or before the
Commencement Date and subsequent installments on the first day of each and every
month during the Initial Lease Term and Extended Lease Terms.
E. In the event Upfit Expense is not finally determined by
Landlord and Tenant on the Commencement Date, then the actual costs incurred by
Landlord as of the Commencement Date shall be the basis for calculation of rent.
Thereafter upon Upfit Expense being finally determined, Annual Rent shall be
adjusted accordingly.
F. As provided herein, Tenant agrees to pay Landlord rent based
on Upfit Expenses expended by Landlord in Tenant's behalf associated with the
construction of the building and site improvements according to the Plans.
Landlord and Tenant agree to keep each other informed of such Upfit Expenses
during the construction of improvements, additions and site improvements at the
Leased Premises.
4. Construction of Improvements Additions Site Improvements
A. Promptly after the execution and delivery of this Lease or
prior thereto if the parties so agree, Landlord and Tenant shall take all steps
necessary to obtain the permits required for construction of improvements,
additions, site improvements, etc. upon the Premises in accordance with the
Plans, said planned improvements being herein referred to as "the Facility."
Landlord agrees to cooperate with Tenant in obtaining such permits and to take
such reasonably necessary actions requested by Tenant to obtain such permits
from the issuing authorities.
B. Promptly after obtaining the necessary permits, the architect
and contractor approved by Tenant and Landlord shall commence, and diligently
proceed with, the construction of the facility and installation of such other
items as may be required in the Plans, and complete the same in
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accordance with the Plans. The architect shall be required by Tenant to give
Tenant and Landlord at least thirty (30) days prior written notice of the
anticipated date of Substantial Completion of the work in accordance with the
Plans. "Substantial Completion" shall have the meaning set forth in AIA Document
A201, General Conditions of the Contract for Construction, current as of the
date of the signing of this Lease, the architect for such purpose to be the
architect responsible for preparation of the Plans. Landlord and his
representative shall inspect the work at reasonable times during the
construction period.
Within ten (10) business days after Landlord and Tenant are notified of
Substantial Completion, a representative of both parties together with the
architect and the contractor shall inspect and survey the Leased Premises for
the purpose of determining which items of work in accord with the Plans remain
to be completed, which they shall reduce to an itemized agreed "punch list."
Landlord and Tenant shall cause the Contractor to complete these items within a
reasonable time thereafter.
C. During construction, Landlord and Tenant shall each give full
cooperation to complete a quality project. Landlord or its representative shall
be available upon reasonable notice from Tenant to consult, as necessary, if
problems arise during construction.
D. No change in the Plans shall be permitted, except with the
agreement of Landlord and Tenant, which neither shall unreasonably withhold. Any
request for change shall be in writing, approved by the Architect, signed by
Tenant or its representative and must be agreed to (in writing) by Landlord
before being implemented.
E. The parties agree that for purposes of the Agreement between
Owner and Architect and other contractual documents (construction agreement(s))
which are part of the Plans, both Tenant and Landlord shall be included as
"Owner", therein, and both shall have the duty and responsibility to carry out
the activities of owner under said contractual documents and Plans with the
exception of actually paying for construction of the improvements and site
improvements which shall be the sole responsibility of Landlord. Notwithstanding
the foregoing, Tenant shall be exclusively responsible for paying Architect's
fees pursuant to the agreement between Owner and Architect. For purposes of
payment to contractors and subcontractors, and for payment to suppliers for
materials, etc., under the construction agreements, payment shall be timely made
by Landlord after submission of the appropriate AI A form which has been signed
by Architect, Tenant and Landlord. Upon payment Landlord shall immediately
notify Tenant with a copy of the payment voucher or
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check. Upon the building and site improvements being completed, Tenant shall
have the right to inspect, audit or otherwise verify Total Costs incurred by
Landlord.
F. Notwithstanding anything herein to the contrary, Tenant shall
have the right to choose and install at its own cost, decorative items to the
improved building on the Lease Premises, said decorative items including carpet,
wallpaper, window treatment and curtains, etc. Tenant shall make direct payment
for such items without the same being included in the cost of Upfit Expense.
5. Net Rental Provisions - Taxes, Insurance, Repairs and Maintenance.
A. It is the intention of the Landlord and the Tenant that the
Annual Rent hereinabove specified shall be net to the Landlord in each year
during the Initial Lease Term and Extended Terms, if any, and that, except as
otherwise provided in this Lease Agreement, all costs, expenses, and obligations
of every kind relating to the Leased Premises (including specifically real
estate taxes and insurance premiums) which may arise or become due during the
Initial Lease Term and Extended Terms of this Lease shall be paid by the Tenant.
Tenant shall furnish Landlord with satisfactory proof of payment of any of such
items within a reasonable time after Landlord's demand.
B. The Tenant shall pay all taxes and assessments upon the Leased
Premises, and upon the buildings and improvements thereon, which are assessed
during the Initial Lease Term and Extended Terms, if any. All taxes assessed
prior to the Commencement Date of the Initial Lease Term, payable after the date
of this Lease Agreement, and all taxes assessed during the Initial Lease Term
and any Extended Term but payable after the expiration of the Lease, or any
extension thereof, shall be adjusted and prorated, so that the Landlord shall
pay its prorated share for the period prior to the Commencement Date of the
Initial Lease Term and for the period subsequent to the expiration of the Lease
and the Tenant shall pay its prorated share in accordance with the terms of this
Lease.
C. The Tenant, during the Initial Lease Term and Extended Terms,
if any, of this Lease, shall pay all premiums for fire and extended coverage
insurance on the Leased Premises, and vandalism and malicious destruction
insurance, which Tenant shall secure for the benefit of Landlord and Tenant as
named insured as their interests appear (or if the Leased Premises is subject to
a mortgage or deed of trust, including customary mortgagee clauses in favor of
mortgagee or trustee) and shall request the insurer to give Landlord thirty (30)
days notice prior to cancellation of such insurance.
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The amount of such insurance to be paid for by Tenant shall not be less
than one hundred percent (100%) of the full insurable value of the Leased
Premises and such insurance to be with companies acceptable to Landlord. The
Tenant shall provide contents casualty insurance for its said premises located
at the Leased Premises, as Tenant deems appropriate. Certificates of insurance
shall be made available to Landlord upon request.
D. The Tenant agrees to keep in force liability insurance
policies covering public liability, claims for personal and bodily injury,
including death, and property damage, under a policy of general public liability
insurance policy with limits of not less than $2,000,000.00 single limit
coverage naming the Landlord as an additional insured party and shall request
the insurer to give Landlord thirty (30) days notice prior to cancellation of
such insurance.
E. The Tenant shall, as of the Commencement Date and throughout
the Initial Lease Term and Extended Term(s), at its sole expense, keep and
maintain the Leased Premises (including the structural portions) in good order
and repair. The Tenant shall deliver up the said Leased Premises to the Landlord
at the end of the last term (including the Initial Term and Extended Terms, if
any) of this Lease, or upon sooner termination, in as good order and repair as
the same is at the time of the commencement of the Tenant's occupancy (the
Commencement Date of the Initial Lease Term), ordinary wear and tear expected.
F. Notwithstanding anything to the contrary in any other
provisions of this Lease, the Landlord and the Tenant covenant and agree that:
(i) Each is hereby released from liability to the other on account of any loss
or damage occurring during any term of this Lease to the extent that such loss
or damage is coverable by insurance whether or not the same is caused in whole
or in part by, the Landlord or the Tenant and whether or not attributable to the
negligence of the Landlord or the Tenant; and (ii) there shall be no subrogation
of any insurer; provided, however, that the mutual release of liability and
provision for no subrogation shall not be operative in any case where the effect
thereof is to invalidate any insurance coverage or increase the cost thereof.
6. Fire or Other Casualty Losses - Restoration of Leased Premises. In case
of damage to or destruction of the Leased Premises by fire, windstorm, or other
casualty to such an extent as to render them untenantable, the Tenant or
Landlord may, by written notice to the other given within thirty (30) days after
such damage or destruction, (i) elect to terminate the Lease, or (ii) they may
jointly elect to have Landlord repair or rebuild the improvements subject to
receipt of insurance proceeds necessary for such construction. If the damage is
not such as to render the Leased Premises untenantable or if the parties elect
to rebuild, the Landlord at its expense shall repair the
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damage with reasonable dispatch; and if the damage has rendered the Leased
Premises untenantable, in whole or in part, there shall be an abatement and
apportionment of the annual rental (until the damage has been repaired) to the
extend that the Tenant's activities are curtailed in the damaged portion of the
building upon the Leased Premises. In determining what constitutes reasonable
dispatch, consideration shall be given to delays caused by strikes, adjustments
of insurance, and other causes beyond the Landlord's control.
7. Eminent Domain. If the Leased Premises, or any part thereof, shall be
taken in any proceeding by the public authorities by condemnation, threat of
condemnation or otherwise, for any public or quasi-public use, the Tenant shall
be entitled to an abatement of rent hereinabove reserved to the landlord based
upon the extent to which such taking causes curtailment of the Tenant's business
and activities upon the Leased Premises. If such taking shall render the Leased
Premises unusable by Tenant as determined by Tenant for the purposes of its
business then, and in that event, the Tenant may at its option forthwith cancel
this Lease as of the date upon which it was required to cease business upon the
Leased Premises. All compensation and damages for the taking of the any portion
of the Leased Premises shall belong to the Landlord, without prejudice, however,
to such rights, if any, as the Tenant may have to claim from the condemning
authority any damage suffered by it to its leasehold interest or leasehold
improvements as the result of such taking.
8. Assignment or Subletting. The Tenant may not sublet the Leased Premises
or any portion thereof or assign this Lease for the whole or any part of any
term hereof without Landlord's written consent which will not be unreasonable
withheld. In the event of any such subletting or assignment, the Tenant shall,
nevertheless, be and remain bound for the payment of all rentals as and when
each shall become due and payable hereunder and of the carrying out and
performing of all of the covenants and agreements on the part of the Tenant to
be done and performed hereunder, unless the Landlord shall specifically agree to
the contrary. In the event Tenant requests permission to assign or sublet
Landlord may, at its option, terminate the Lease Agreement. Upon assignment or
subletting by Tenant any increase in rent over that provided for herein shall
belong to Landlord.
9. Use of Premises; Compliance With Regulations. Ordinances. Etc. The
Tenant shall, throughout the term of this Lease and any extended term(s)
promptly comply, or cause compliance, with all laws and ordinances and the
orders, rules, regulations and requirements of federal, state, county, and
municipal governments and appropriate departments, commissions, boards, and
officers thereof, necessitated by the Tenant's occupancy and use of the Leased
Premises.
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10. Utilities Charges and Permits. The Tenant agrees to pay or cause to be
paid all charges for gas, water, sewer, electricity, light, heat, power,
telephone, or other communication service or other utility or service used,
rendered, or supplied to, upon or in connection with the Leased Premises during
the Initial Lease Term and each Extended Term of this Lease Agreement.
11. Alterations. Subject to Landlord's written consent, which shall not be
unreasonably withheld, Tenant may, at its own cost, make alterations and
expansions of improvements (building and site-improvements) on the Leased
Premises. Tenant may also make non-structural improvements to the interior of
the building on the Leased Premises.
12. Security Interest and Lien on Tenant's Improvements. Landlord or its
assignee shall have a first lien paramount to all others on every right and
interest of Tenant in and to the Leased Premises under this Lease, or any
building or improvement thereon and which hereafter may be placed on the Leased
Premises. The lien is granted of the purposes of securing payment of all sums
due under this Lease and of securing performance of all of Tenant's obligations
under this lease. The lien shall be in addition to all of the rights granted to
Landlord under present or future laws of North Carolina.
13. Subordination of Existing Mortgages or Deeds of Trust. This Lease is
subject to and subordinate at all times to any lien of existing and future
mortgages or deeds of trust on the Leased Premises, provided that Landlord shall
deliver to Tenant a recordable subordination, nondisturbance and attornment
agreement signed by the mortgagee providing in substance that as long as Tenant
shall discharge its obligations under this Lease, the tenancy shall not be
disturbed and shall not be affected by any default under the mortgage or deed of
trust, and in the event of foreclosure, the rights of Tenant shall survive and
the Lease shall continue in full force and effect, including any renewal term(s)
contained herein. Subject to the foregoing, Tenant shall execute any instrument
which may be required to effectuate such subordination.
14. Warrant of Title and Quiet Enjoyment. The Landlord covenants and
warrants that it is lawfully seized of the Leased Premises and has lawful
authority to enter into this Lease for its full term that the Landlord has
terminated the certain Encroachment Agreement described in Deed Book 837 at Page
239, Buncombe County Registry; and that the Landlord will put the Tenant in
actual possession of the Leased Premises described on Exhibit A on the
Commencement Date of the Initial Lease Term. The Landlord further covenants and
agrees that the Tenant, on paying the monthly rent and observing and keeping the
covenants, agreements, and stipulations of this Lease on its part to be kept,
shall lawfully, peaceably, and quietly hold, occupy, and enjoy the Leased
Premises during the Initial Lease Term and all Extended Terms thereof without
hindrance, ejection, molestation.
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Landlord agrees to provide Tenant with a copy of its title insurance policy for
the Leased Premises to allow Tenant, at its cost, to obtain title insurance
coverage for its Leasehold interest. Landlord further agrees to execute a
memorandum of this Lease Agreement in form satisfactory to Tenant to be recorded
in the office of the Register of Deeds for Buncombe County, North Carolina.
15. Tenant's Fixtures and Equipment. Tenant may install at its cost such
fixtures and equipment (including but not limited to, safe deposit boxes,
shelves, drawers, security equipment in the vault, an automatic teller machine
and kiosk, etc.) in the building and grounds upon the Leased Premises as it
desires, so long as such do not affect the structural integrity of the
buildings, and installation is done in a workmanlike manner in keeping with the
original construction, and such fixtures, equipment and installation is in
compliance with all laws, rules, regulations, and requirements of all
authorities having jurisdiction thereof. Any such fixtures and equipment shall
remain the exclusive property of the Tenant, and the Tenant shall have the right
on termination of this Lease Agreement and at any other time, provided it is not
in default under this lease, to remove any and/or all of such fixtures and
equipment; provided, however, that the Tenant shall repair any damage to the
Leased Premises occasioned by the removal of its fixtures and equipment and
shall restore the Leased Premises to substantially the same condition in which
it was at the time Tenant took possession, normal wear and tear expected. Tenant
shall keep the premises free and clear of any liens on account of repairs,
alterations, or improvements to the premises.
16. Inspection of Premises. The Landlord and its representatives shall be
permitted to enter the Leased Premises after notice to Tenant and at reasonable
times for purposes of inspecting the Leased Premises, making any necessary
repairs to the Leased Premises, performing any work therein that may be
necessary under the terms of the Plans and this Lease, or exhibiting the Leased
Premises for sale, lease, or mortgage financing.
17. Parties. All covenants, conditions, agreements and undertakings
contained in this Lease shall inure to, and be binding upon, the Landlord and
the Tenant, and their respective successors, heirs, and assigns.
18. Remedies of Landlord. In the event that during the Initial Lease Term
of this Lease and all Extended Terms hereof, any of the following Events of
Default shall occur:
A. Tenant shall fail to pay any installment of rent by the fifth
(5th) day of the month in which payment is due, no notice being required, and
any other sum herein specified to be paid by Tenant by the fifth (5th) day after
notice from Landlord;
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B. Tenant shall fail to observe any of Tenant's covenants,
agreements, or obligations hereunder, other than rental, and such failure is not
cured within thirty days after Landlord shall have given to Tenant written
notice specifying such failure or failures, or if such failure is not
susceptible of cure within such 30 day period, Tenant fails to diligently pursue
such cure; or
C. Tenant is adjudicated a bankrupt or insolvent, or
D. A receiver is appointed for all or substantially all of
Tenant's business or assets on the ground of Tenant's insolvency; or
E. A Trustee is appointed for Tenant after a petition has been
filed for Tenant's reorganization under the Bankruptcy Act of the United States,
or any future law of the United States having the same general purpose; or
F. Tenant shall make an assignment for the benefit of its
creditors;
then, subject to paragraph 22 below, Landlord shall have the
right, at its election, at any time thereafter, while any such Event of Default
continues, to reenter and take complete and peaceable possession of the Leased
Premises and any and all improvements then forming part of the Leased Premises,
and to declare the term of this Lease ended, whereupon this Lease and all the
right, title and interest of Tenant hereunder shall terminate and be of no
further force or effect. In the event of such declaration, Landlord shall have
the right to xxx for and recover all rents and other sums accrued up to the time
of such termination, and subject to mitigation, future rentals may be provided
for in any final judgment entered in such suit, as well as all other damages
allowed by law on account of any breach on the part of the Tenant. Landlord
shall also have the right, without reentering the Leased Premises, of
terminating this Lease, to xxx for and recover all rents and other sums,
including damages, at any time and from time to time accruing hereunder and,
subject to mitigation, future rentals, may be provided for in any final judgment
entered in such suit.
19. Remedies of Tenant. If Landlord defaults in observing or performing any
of Landlord's obligations under this Lease, Tenant may remedy the default after
giving thirty (30) days written notice to Landlord, setting forth the default of
Landlord, and in connection therewith may pay expenses and employ counsel,
except that Tenant may remedy Tenant's default without notice in case of
emergency. Landlord shall reimburse Tenant on demand for all sums expended or
obligations incurred by Tenant to remedy such default. If Landlord fails to
provide such reimbursement, Tenant,
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in addition to any other rights and remedies, may deduct such amount from rental
thereafter becoming due to Landlord.
20. Cumulative Rights. No right or remedy herein conferred upon or reserved
to Landlord or Tenant is intended to be exclusive of any other right or remedy
herein or by law provided, but each shall be cumulative and in addition to every
other right or remedy given herein or now or hereafter existing at law or in
equity, or by statute.
21. Notices. Whenever under this Lease a provision requires notice of any
kind, it shall be deemed sufficient notice and service thereof if such notice is
in writing, sent by registered or certified mail, return receipt requested and
addressed; if to Tenant, at its offices at the premises leased herein or any
address which Tenant may designate for such purpose, and if to Landlord, at the
last address where rent was paid hereunder, or in the event of assignment of
this Lease by the Landlord, to the latest known address of the assignee as well
as the Landlord.
22. F.D.I.C. Requirement. Notwithstanding anything herein to the contrary,
the parties agree that this Lease Agreement is conditioned upon approval of the
F.D.I.C., the North Carolina Commissioner of Banks, and all other commissions,
agencies, divisions, and governmental authorities of any kind which regulate
banking within the State of North Carolina (herein collectively "Regulatory
Authority"). If for any reason such Regulatory Authority refuses to provide
approval of this Lease Agreement then it shall be void.
Notwithstanding any other provisions contained in this Lease Agreement,
in the event (a) Tenant or its successors or assignees shall become insolvent or
bankrupt, or if it or their interests under this Lease shall be levied upon or
sold under execution or other legal processes, or (b) the depository institution
then operating on the Leased Premises is closed, or is taken over by any
depository institution supervisory authority (Authority), Landlord may, in
either such event, terminate this Lease only with the concurrence of any
Receiver or Liquidator appointed by such Authority; provided that in the event
this Lease is terminated by the Receiver or Liquidator the maximum claim of
Landlord for rent, damages, or indemnify for injury resulting from the
termination, rejection or abandonment of the unexpired Lease shall by law in no
event be greater than in an amount equal to all accrued and unpaid rent to the
date of termination.
Notwithstanding anything herein to the contrary, in the event Tenant
ceases to be in the business of banking then this Lease Agreement may, at the
option of Tenant, be terminated, provided Landlord has notice of such
termination one year in advance of such termination.
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23. Signage. Subject to the ordinances and requirements of the City of
Asheville, Tenant shall have the right to erect free standing signage on the
Leased Premises for the exclusive use of Tenant. Landlord agrees to cooperate
with all governing authorities to assist Tenant in obtaining all necessary
approvals, if any, for such exclusive signage.
24. Easement. In addition to the Leased Premises described herein, and as part
of this Lease Agreement, Landlord gives, grants, bargains and conveys with the
Leased Premises, anon-exclusive right of egress, ingress and regress from U.S.
Highway 25 (Merrimon Avenue) across the lands of Landlord to the Leased
Premises, said easement in accord with Exhibit A attached hereto and to which
reference is made as if fully set out herein.
25. Governing, Law. This Lease Agreement shall be governed by the Law of the
state of North Carolina.
26. Entire Agreement. This Lease contains the entire agreement of the parties
relating to the subject matter and supersedes any previous understandings or
agreements, write or oral, between or among the parties. It may be modified only
by an agreement in writing, signed by both parties, expressly purporting to
modify this Lease.
27. Right of Refusal. The parties agree that in the event Landlord, during the
Initial Lease Term and all Extended Terms(s) of this lease and while Tenant is
in possession of the Leased Premises, either (i) receives a bona fide offer
(from a third party, which offer Landlord is willing to accept) to purchase the
premises described on Exhibit A, or (ii) intends to sell the premises described
on Exhibit A at the fair market value thereof without having received a bona
fide offer to purchase, then Landlord shall immediately notify Tenant in writing
of its intent to accept the third party offer or to sell at the fair market
value and Tenant shall then have the right for a period of 10 days immediately
following receipt of Landlord's written notice, to purchase the described
premises on Exhibit A at the bona fide offer price or at a fair market value
price which shall be determined by two or more MAI qualified appraisers to the
satisfaction of the parties and appropriate regulatory authority. The parties
hereto acknowledge the period of duration of this right to purchase is
reasonable and shall expire, notwithstanding anything herein to the contrary,
within the applicable statutory rule against perpetuities under N.C.G.S.
ss.41-15.
28. Reservations of Rights and Restrictions on a Portion of the Leased Premises.
The Landlord reserves the right unto itself, successors and assigns to go upon
that small portion of the leased premises lying south of the southernmost line
of the property conveyed to First Citizens Bank & Trust Company by Shell Oil
Company by deed dated March 26, 1974, and recorded in Deed Book 1098 at Page 269
in the Office of the Register of Deeds of Buncombe County, North Carolina, for
the purpose of using and maintaining improvements including any vent pipes, oil
tanks, curbs,
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driveway and the concrete pad as shown on a survey of the leased premises
prepared by Xxxx X. Xxxxxx & Associates, P.A., Job File No. 92006-D-256, revised
on April 10, 2000. Said portion of the leased premises shall not be obstructed,
built upon or disturbed in any manner by the tenant without the written consent
of the Landlord which may be withheld for any reason, except Landlord agrees
Tenant may construct and maintain such paving, curbing and site improvements,
including planting, as are part of the Plans and as identified in Exhibit "C",
attached hereto and by reference made a part hereof.
IN WITNESS WHEREOF, the Landlord and the Tenant have caused this Lease
to be duly executed by the property persons, under seal as is their intention,
all as of the day and year first above written.
SHE-CAN, CO., a North Carolina
General Partnership (SEAL)
By: /s/ (SEAL)
-----------------------------------------
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx (SEAL)
-----------------------------------------
General Partner
HIGH STREET BANKING COMPANY
By: (SEAL)
-----------------------------------------
Executive Vice President
Attest: /s/ Xxxxxx X. Xxxxx
----------------------------
Asst. Secretary
(CORPORATE SEAL)
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State of North Carolina
County of Buncombe
The undersigned, a Notary Public for said County and State, does hereby
certify that Xxxxxx X. Xxxxxx, Xx. and Xxxxxxxx X. Xxxxxx personally appeared
before me this day and acknowledged that they are General Partners of SHE-CAN,
CO., a North Carolina General Partnership, and that by authority duly given and
as the act of the partnership, the foregoing instrument was signed by them as
General Partners.
Witness my hand and official seal, this 18th the day of April, 2000.
/s/ Xxxxxxxxx X. Xxxxxxxx (SEAL)
-------------------------
Notary Public
Official Seal
My Commission Expires 11/3/2000
----------
************************
State of North Carolina
County of Buncombe
-----------
The undersigned, a Notary Public, do hereby certify that Xxxxxx X.
Xxxxx personally appeared before me this day and acknowledged that he/she is
Asst. Secretary of High Street Banking Company, a corporation, and that by
authority duly given and as the act of the corporation, the foregoing instrument
was signed in its name by its E.V. President, sealed with its corporate seal and
attested by him/herself as Asst. Secretary.
WITNESS my hand and Notarial Seal, this 12th day of April, 2000.
/s/
--------------------------------
Notary Public (SEAL)
Official Seal
My Commission Expires 2-24-03
-------
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