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Exhibit 10.4
PREMISES LEASE AGREEMENT
Between
PLATINUM PLAZA LIMITED LIABILITY COMPANY
Lessor
and
CENTRA BANK
Tenant
2ND FLOOR COMPRISING 2,700 SQUARE FEET, MORE OR LESS,
PLATINUM PLAZA, MORGANTOWN, WEST VIRGINIA
Premises
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TABLE OF CONTENTS
I. Parties.................................................1
II. Defined Terms...........................................1
III. Premises................................................3
IV. Term and Possession.....................................4
X. Xxxxxx'x Warranty.......................................4
VI. Use.....................................................4
VII. Assignment or Subletting................................4
VIII. Rent....................................................5
IX. Taxes...................................................6
X. Insurance...............................................6
XI. Common Area Maintenance.................................7
XII. Utilities and Services..................................9
XIII. Alterations, Improvements, and Construction.............9
XIV. Repairs................................................10
XV. Rules and Regulations..................................11
XVI. Mortgages..............................................13
XVII. Tenant's Property......................................13
XVIII. Insurance & Indemnification............................13
XIX. Environmental..........................................15
XX. Condemnation...........................................16
XXI. Defaults...............................................16
XXII. Surrender..............................................18
XXIII. Miscellaneous..........................................18
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PREMISES LEASE AGREEMENT
ARTICLE I
PARTIES
1.1 This lease ("Lease") is made on or as of this ____ day of
August,1999, by and between PLATINUM PLAZA LIMITED LIABILITY COMPANY,
(hereinafter "Lessor"), and CENTRA BANK, (hereinafter referred to as "Tenant").
1.2 The parties hereto, for and in consideration of the mutual
covenants contained herein and with the specific intention of being legally
bound hereby and of so binding their respective heirs, administrators,
executors, successors and assigns, jointly and severally, agree as follows:
ARTICLE II
DEFINED TERMS
2.1 Any word or combination of words set forth herein within
quotation marks and with the first letter(s) of the word(s) capitalized shall be
a defined term, and when thereafter used herein with the letter(s) capitalized
shall have the meaning first indicated.
2.2 "Premises": 0xx Xxxxx, Xxxxxxxx Xxxxx Building, comprising
2,700 square feet, more or less, as further described in Article III.
2.3 " Proportionate Share ": The fraction or decimal
equivalent obtained by dividing 2,700 square feet by the total number of square
feet of floor area within the entire Premises.
2.4 "Term": Commencing on August 1, 1999, Tenant shall be
permitted to occupy the premises on a month-to-month basis. Lessor or Tenant may
terminate this Lease upon giving the non-terminating party 30-days written
notice of such intent to terminate the lease.
2.5 "Use": Tenant will use the Premises for the purposes of
the operation of a lending institution and ancillary financial services. Tenant
will not use the Premises for any other purpose without Lessor's prior written
consent, not to be unreasonably withheld.
2.6 "Fixed Rent": for each "Month" (as defined in Article 8):
Rental Rate: $15.50 per square feet
2.7 "Tenant's Share of Taxes": The Proportionate Share of:
(a) All "Taxes" (as defined in Section 9.2).
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(b) Tenant agrees to pay to Lessor each month in
advance, during the first calendar year of this Lease, Tenant's proportionate
share of Real Estate Taxes pertaining to the Platinum Plaza Building as defined
in Article 9. After the first year and any time thereafter, Lessor may advise
Tenant of any increase in said monthly payment which increased payment shall be
one twelfth (1/12) of the estimated real estate taxes for the current year.
Tenant shall thereafter pay said increased amount to Lessor each month in
advance. The increased payment shall be applied toward Tenant's proportionate
share of real estate taxes pertaining to the Platinum Plaza Building.
(c) Estimated monthly tax expense: $233.00 per month.
2.8 "Tenant's Share of Insurance": The Proportionate Share of:
(a) All "Insurance" (as defined in Section 10.2).
(b) Tenant agrees to pay to Lessor each month in advance,
during the first calendar year of this Lease, Tenant's proportionate share of
Insurance pertaining to the Platinum Plaza Building as defined in Article 10.
After the first year and any time thereafter, Lessor may advise Tenant of any
increase in said monthly payment which increased payment shall be one twelfth
(1/12) of the estimated insurance premiums for the current year. Tenant shall
thereafter pay said increased amount to Lessor each month in advance. The
increased payment shall be applied toward Tenant's proportionate share of
insurance premiums pertaining to the Platinum Plaza Building.
(c) Estimated monthly insurance expense: $34.00 per month.
2.9 "Tenant's Share of Lessor's Operating Costs of Common
Area": Amount Equal to:
(a) Proportionate Share of "Lessor's Operating Costs" (as
defined in Article 11).
(b) Tenant agrees to pay to Lessor each month in advance,
during the first calendar year of this Lease the sum of $1,299.00 per month and
the total amount of said monthly payments accumulated in Tenant's account shall
be applied towards Tenant's proportionate share of Lessor's Operating Costs
pertaining to the Platinum Plaza Building as defined in Article 11. After the
first year and any time thereafter, Lessor may advise Tenant of any increase in
said monthly payment which increased payment shall be one twelfth (1/12) of the
estimated Lessor's Operating Costs for the current year. Tenant shall thereafter
pay said increased amount to Lessor each month in advance. The increased payment
shall be applied toward Tenant's proportionate share of Lessor's Operating Costs
pertaining to the Platinum Plaza Building.
2.10 " Security Deposit": None
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2.11 "Tenant's Trade Name and Notice Address": Centra Bank,
Xxxx Xxxxxx Xxx 000, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000.
2.12 "Lessor's Notice Address": Platinum Properties, c/o
Petroplus and Associates, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxxx, XX
00000
ARTICLE III
PREMISES
3.1 Lessor hereby leases to Tenant, and Tenant hereby rents
from Lessor, the Premises as defined in Section 2.2, including all Improvements,
as hereinafter defined, and together with all appurtenances, including use with
others of the Common Areas, as hereinafter defined, to have and to hold unto
Tenant for and during the term hereinafter set forth.
3.2 Lessor reserves the sole and exclusive right, from time to
time, to change the Premises in any way it may desire, including, but not
limited to, construction of additions, removal of building or parts of buildings
and alteration of Common Areas.
3.3 Lessor reserves the sole and exclusive right to use all or
any part of the roof of the Premises for any purpose; to erect additional
stories or other structures over all or any part of the Premises; to erect in
connection with the construction thereof temporary scaffolds and other aids to
construction on the exterior of the Premises, provided that access to the
Premises shall not be denied; to install, maintain, use, repair and replace
within the Premises pipes, ducts, conduits, wires and all other mechanical
equipment servicing other parts of the Premises, the same to be in locations
within the Premises as will not deny Tenant's use thereof; and to make any use
it desires of the side or rear walls of the Premises, provided that such use
shall not encroach on the interior of the Premises.
3.4 The Premises have been inspected by Tenant, and Tenant
agrees to accept the same in their present "AS IS" condition and in the
condition in which the Premises may be on the commencement date of this Lease,
with the understanding that the Premises will be subject to ordinary wear and
tear from the date hereof until commencement of the term.
ARTICLE IV
TERM AND POSSESSION
4.1 The term of this Lease shall commence on August 1, 1999,
and shall be for a period of time set forth in Section 2.4.
4.2 Lessor, its agents, employees and contractors, shall have
the right to enter all parts of the Premises during Tenant's operating hours to
inspect the same, to enforce and carry out any provision of this Lease, and,
without assuming responsibility to do so, to
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make repairs or alterations. In the event of an emergency endangering life or
property or in the event of desertion of the Premises, Lessor shall have the
right to enter by force.
ARTICLE V
LESSOR'S WARRANTY
5.1 Lessor hereby warrants that it and no other person or
corporation has the right to lease the Premises. Tenant shall have quiet and
peaceful possession of the Premises without hindrance on the part of Lessor, and
Lessor shall warrant and defend Tenant in such quiet and peaceful possession
against the claims of all persons claiming by, through or under Lessor, so long
as Tenant shall not be in default hereunder.
ARTICLE VI
USE
6.1 Tenant shall use the Premises only in a safe and lawful
manner for the purpose set forth in Section 2.5.
6.2 At all times and in all respects Tenant shall comply with
all statutes, laws, ordinances and regulations of every governmental authority
having jurisdiction.
6.3 Tenant will conduct business on the Premises only in the
Tenant's Trade Name as specified in Section 2.11, unless the use of some other
name is approved in writing by Lessor.
6.4 Lessor reserves the right to completely close the entire
Premises and Common Area to all traffic for a period of 24 hours once every 10
years after 30 days notice to all Tenants. Said closure shall not occur during
normal business operating hours.
ARTICLE VII
ASSIGNMENT OR SUBLETTING
7.1 Tenant will not assign this Lease, in whole or in part,
nor sublet all or any part of the Premises, nor license concessions or lease
departments therein, without first obtaining the written consent of Lessor,
which consent shall not be unreasonably withheld, any attempts at assigning or
subletting without Lessors consent shall be null and void. Consent by Lessor to
any assignment or subletting shall not constitute a waiver of the necessity for
such consent to any subsequent assignment or subletting. This prohibition
includes any subletting or assignment, which would otherwise occur by operation
of law, merger, consolidation, reorganization, transfer or other change of
Tenant's corporate or proprietary structure.
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7.2 If Tenant is a corporation and if at any time during the
Term, any part or all of the corporate shares shall be transferred by sale,
assignment, bequest, inheritance, operation of law or other disposition so as to
result in a change in the present control of said corporation by the person or
persons now owning a majority of said corporate shares, Tenant shall notify
Lessor of this event within fifteen (15) days from the date of such transfer and
if Lessor's financial risk is increased or if the operation of the business is
significantly altered as a result of such change in control Lessor may terminate
this Lease at any time after such change by giving Tenant sixty (60) days
written notice.
7.3 If Lessor consents to assignment or sublease the following
shall be applicable:
(a) The proposed Tenant will not be violating any
prohibitive use in this lease or with any existing Tenant in the Premises at the
time of said assignment; and
(b) The new Tenant assumes in writing, in a form
satisfactory to Lessor, the obligations under this lease on behalf of Tenant;
and
(c) Tenant and any guarantor shall remain fully liable as
the primary obligor under this lease.
(d) The Tenant has not violated any terms or conditions of
this Lease Agreement.
ARTICLE VIII
RENT
8.1 Tenant covenants and agrees to pay to Lessor, as rent for
the Premises the Fixed Rent set forth in Section 2.6.
8.2 Fixed Rent shall be payable without deduction or setoff in
equal monthly installments in advance on the first day of each full calendar
month during the Term, the first such payment to include any prorated Fixed Rent
for the period from the date of the commencement of the Term to the first day of
the first calendar month in the Term. The first such payment of the Fixed Rent
shall be due and payable on August 1, 1999.
8.3 It is understood and agreed that the basic consideration
for this Lease is Tenant's covenant to pay the total sum of the Fixed Rent set
forth in Section 2.6 for the original Term, and other amounts payable by Tenant
hereunder. The reason that the rates of installments may differ is to defer
payment of some of the rent from the early part of the Term to the latter part
for the convenience of the Tenant. Under these circumstances, it is not
contemplated that any governmental rent control or freeze will excuse Tenant
from paying any part of the rent as agreed.
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8.4 All rent and other amounts payable by Tenant hereunder
shall be paid to Lessor without demand or deduction at the Lessor's Notice
Address set forth in Section 2.12 or such other place as Lessor from time to
time may designate.
8.5 Anything in this Lease to the contrary notwithstanding, at
Lessor's option, Tenant shall pay, as additional rent, a late charge in the
amount of Fifty ($50.00) Dollars for any rent payment not made within seven (7)
days after the due date thereof to cover the extra expense involved in handling
delinquent payments.
ARTICLE IX
TAXES
9.1 Tenant shall pay monthly, in addition to rent hereunder,
Tenant's pro-rata Share of Taxes (as specified in Section 2.7 and as defined in
Section 9.2).
9.2 "Taxes" include all real estate and other ad valorem taxes
and assessments applicable to the Premises and any other tax imposed against
Lessor with respect to the Premises by federal, state or local taxing
authorities as a substitution for or in addition to the current method of
property taxation used for the funding of governmental services and the cost,
including attorneys and appraisers' fees, of any contest or appeal pursued by
the Lessor in an effort to reduce the amount of tax or assessment with respect
to the Premises.
9.3 "Tax Year" means each twelve (12) month period (deemed,
for the purpose of this Article, to have 365 days) established as the real
estate Tax Year by the taxing authorities having lawful jurisdiction over the
Premises.
9.4 The tax payment if required hereunder shall be paid by
Tenant monthly.
9.5 Within sixty (60) days after Lessor's receipt of tax bills
for each Tax Year, or within a reasonable time thereafter in Lessor's
determination, Lessor will certify to Tenant:
(a) The amount of Taxes as specified above, and
(b) The amount of Tenant's Share of Taxes.
9.6 The failure of Lessor to Provide such certification within
the time prescribed above shall not relieve Tenant of its obligations generally
or for the specified Tax Year in which any such failure occurs.
9.7 For the Tax Year in which the Term commences or
terminates, the provisions of this Article shall apply, but Tenant's liability
for its proportionate share of any Taxes for such year shall be subject to a
pro-rata adjustment based upon the number of days of such Tax Year falling
within the Term.
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ARTICLE X
INSURANCE
10.1 Tenant shall pay monthly, in addition to rent hereunder,
Tenant's pro-rata Share of Insurance (as defined in Section 2.8 and defined in
Section 10.2).
10.2 "Insurance" includes all insurance premiums and costs of
any kind or payable by the Lessor under or for any insurance policies applicable
during the Term in any respect to the Premises and the Common Area.
10.3 "Insurance Period" means each period established by
Lessor or its insurers as the period during which any insurance policies may be
in effect.
10.4 The insurance payment if required hereunder shall be paid
by Tenant in monthly installments.
10.5 Within sixty (60) days after Lessor's receipt of
insurance bills for each Insurance Period, Lessor will certify to Tenant:
(a) The amount of Insurance;
(b) The amount of Tenant's Share of Insurance; and
(c) The Insurance Period for which such Insurance is paid
or payable.
10.6 The failure of Lessor to provide such certification or to
provide bills under this Lease within the time prescribed therefore shall not
relieve Tenant of its obligations generally or for the specific Insurance Period
in which any such failure occurs.
ARTICLE XI
COMMON AREA MAINTENANCE
11.1 The Common Area which may be furnished by Lessor in or
near the Premises for the general common use of Tenants, their officers, agents,
employees and customers ("Common Area") including, without limitation, all
parking areas, access roads, employee parking areas, the truck way or ways,
driveways, pedestrian sidewalks, landscaped and planted areas, retaining walls,
stairways, bus stops, lighting facilities, and other areas and improvements,
shall at all times be subject to the exclusive control and management of Lessor.
Lessor shall have the right to establish, modify and enforce reasonable rules
and regulations with respect to the Common Area; to change the areas, locations
and arrangement thereof; to enter into, modify and terminate easement and other
agreements pertaining to the use and maintenance thereof; to restrict parking by
Tenants, their officers, agents, and employees to employee parking areas; to
close all or any portion of said parking areas or other Common Area to such
extent as may, in the opinion of Lessor be necessary to prevent
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a dedication thereof or the accrual of any rights to any person or to the public
therein; to close temporarily any or all portions of the said areas or
facilities; to discourage non customer parking; and to do and perform such other
acts in and to said areas and improvements as, in the exercise of good business
judgment, Lessor shall determine to be advisable with a view to the improvement
of the convenience and use thereof by Tenants, their officers, agents, employees
and customers.
11.2 Lessor will operate and maintain the Common Area which
may be provided pursuant to this Section.
11.3 Lessor reserves the right in its sole discretion to
change, rearrange, alter, modify, reduce or supplement any or all of the Common
Area so long as adequate facilities in common are made available to the Tenant
herein.
11.4 The "Lessor's Operating Costs" shall be the cost and
expense of operating and maintaining the Common Area which may be provided
whether or not located on land within the Premises Area in a manner deemed by
Lessor to be reasonable and appropriate and for the best interests of the
Premises; including, without limitation, all costs and expense of operating,
repairing, lighting, cleaning, painting, striping, policing and providing
security (including the cost of uniforms, equipment and all employment taxes);
operating, maintenance, repairs and replacements of signs, displays, and
decorations; removal of snow, ice and debris; regulation of traffic; inspections
and depreciation of machinery and equipment used in the operation and
maintenance of the Common Area and personal property taxes and other charges
incurred in connection with such equipment; replacement of paving, curbs,
sidewalks, landscaping, drainage, pipes, ducts, conduits and similar items, and
lighting facilities; planting, replanting and replacing flowers, shrubbery and
planters; rental of music program services and loudspeaker systems, including
furnishing electricity therefore; and administrative costs equal to fifteen
percent (15%) of the total cost of operating and maintaining the Common Area.
11.5 Tenant shall pay to Lessor, in addition to rent
hereunder, Tenant's share of Lessor's Operating Costs of Common Area Maintenance
(as specified in Section 2.9) for and during each calendar year.
11.6 The charge required hereunder shall be paid by Tenant in
monthly installments.
11.7 If Tenant's Share of Lessor's Operating Costs of Common
Area is specified under Subsection 2.10 (a), then within ninety (90) days after
Lessor's calculation of such costs, or within a reasonable time thereafter in
Lessor's determination, Lessor will certify to Tenant:
(a) The amount of Lessor's Operating Costs;
(b) The amount of Tenant's Share of Lessor's Operating
Costs; and
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(c) The calendar year for which such Operating Costs are
paid or payable.
11.8 The failure of Lessor to provide such certification under
this Lease or to provide bills under this Lease within the time prescribed
therefor shall not relieve Tenant of its obligations generally or for the
specific calendar year for which any such failure occurs.
11.9 For the calendar year in which the Lease commences or
terminates, the provisions of this Article shall apply, but Tenant's liability
for Lessor's Operating Costs of Common Area for such calendar year shall be
subject to a pro-rata adjustment based upon the number of days of such calendar
year falling within the Term.
ARTICLE XII
UTILITIES AND SERVICES
12.1 Lessor shall incur no liability whatsoever should any
utility become unavailable from any public utility company, public authority or
any other person, firm or corporation, including Lessor, supplying such utility.
Discontinuance of any service shall not constitute an eviction, constructive or
otherwise.
12.2 In the event that the charges for water, sewage, waste
disposal, any utilities or services to or for the Premises are included in a
charge for property of which the Premises are only a part and allocation of
which charge or charges is not readily ascertainable, the determination of the
portion thereof applicable to the Premises shall be made by Lessor on the basis
of its best estimate of the amount of use by respective users and such other
factors as may be pertinent for a reasonable division and allocation of the
same.
12.3 If Tenant fails to pay any charge for water, sewage or
other utility or service payable by Tenant hereunder, Lessor may elect to pay
the same and shall have the right to collect the same and any expense incurred
by Lessor in connection therewith from Tenant by exercising all remedies
provided by law and provided herein for collection of rent. In addition to other
remedies, Lessor reserves and shall at all times have the right to cut off and
discontinue, without notice to Tenant, water, electricity, heating and air
conditioning, or other utilities and services whenever Tenant has failed to pay
in accordance with the terms of this Lease any amounts due by Tenant for rent or
otherwise. Lessor shall not be liable for any such discontinuance and the same
shall not constitute a termination of this Lease, or eviction, constructive or
otherwise.
ARTICLE XIII
ALTERATIONS, IMPROVEMENTS, AND CONSTRUCTION
13.1 Tenant shall not make any alterations or improvements to,
erect any sign on, or remove anything except Tenant's Property (as herein
defined) from the Premises without first obtaining the approval in writing of
Lessor, and Lessor's approval thereof shall
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not be withheld unreasonably. Plans and specifications for alterations,
improvements and exterior signs shall be submitted to Lessor prior to the
commencement of any work on the premises.
13.2 All construction work and materials attached to, affixed
to, or installed in, the Premises by any party or person, including but not
limited to heating, air conditioning, ventilating, plumbing and electrical
equipment and facilities, floor, wall and ceiling covering, store fronts,
additions, renovations and replacements (separately and collectively the
"Improvements") immediately shall become part of the Premises and property of
Lessor. However, improvements made by Tenant that do not become permanent
fixtures shall remain the property of Tenant.
13.3 All plans and specifications required hereunder shall be
prepared by, and the Improvements to be made pursuant thereto shall be performed
by, persons duly qualified to do the work in the jurisdiction wherein the
Premises are situate and shall comply with all applicable codes, rules,
regulations and ordinances.
13.4 Tenant shall secure all permits and licenses necessary or
required for construction, operation, signage and occupancy of the Improvements.
Lessor shall have final approval of all signage. Lessor shall cooperate with
Tenant but shall not be obligated to obtain or be responsible for failure to
obtain such permits and licenses.
13.5 All contracts for labor and/or material in excess of Two
Thousand Dollars ($2,000.00) shall be in writing, and shall contain a waiver of
lien provision. Tenant shall not permit mechanic liens to be placed upon the
Premises.
13.6 Tenant agrees to pay for all work and materials and
nothing contained in this Lease shall authorize or empower Tenant to do any act
which shall in any way encumber Lessor's title to any claim by way of lien or
encumbrance whether claimed by operation of law or by virtue of any expressed or
implied contract of Tenant, and any claim to a lien upon the Building or
Premises arising from any act or omission of Tenant shall attach only against
Tenant's interest and shall in all respects be subordinate to Lessor's title to
the Building and Premises. If Tenant has not removed any such lien or
encumbrance within fifteen (15) days after written notice to Tenant by Lessor,
Lessor may, but shall not be obligated to pay the amount necessary to remove
such lien or encumbrance, without being responsible for making any investigation
as to the validity or accuracy thereof, and the amount so paid together with all
costs and expenses (including attorneys' fees) incurred by Lessor shall be
deemed additional rent reserved under this Lease due and payable forthwith.
13.7 All Improvements approved by Lessor shall be made at the
sole cost and expense of Tenant.
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ARTICLE XIV
REPAIRS
14.1 Lessor shall be responsible for all repair to the roof,
exterior, foundation and structural portions of the building not a result of any
action or negligence on the part of the Tenant. The Lessor shall repair any roof
leaks within seven (7) days after receipt of notice from Tenant to Lessor.
14.2 Tenant shall keep and maintain the Premises and every
part thereof clean and in good order and condition and shall make all repairs
and replacements thereto and to each and every part thereof which may be
necessary, required or desired. Without limiting the generality of the
foregoing, Lessor shall establish a capital reserve account into which Lessor
shall deposit $.50 per square foot of Tenants rent into said account. The
capital revenue account shall be utilized in the sole discretion of Lessor to
maintain or replace the heating, ventilating, and air conditioning system and
any other capital improvements to the Platinum Plaza Building or Common areas.
14.3 Tenant shall install and replace such signs, decorations,
lettering, advertising matter and other things as may be approved by Lessor,
said approval not to be unreasonably withheld, and keep and maintain the same in
good condition and repair and in keeping with the image, character and standards
as may be established from time to time by Lessor for the Premises and shall
make such replacements as may be necessary.
14.4 In the event that Tenant shall fail, within thirty (30)
days after notice in writing by Lessor, to make repairs or replacements to the
Premises, the Improvements, the signs or any part thereof which may be necessary
or required, Lessor may make the same and collect the costs thereof and expenses
incurred in connection therewith, together with interest thereon at the then
prevailing commercial rate from Tenant, by exercising all remedies provided by
law and provided herein for collection of rent.
14.5 In the event that the portion of the Premises which
Tenant has agreed to maintain, if any, shall be damaged or destroyed as a result
of fire, casualty or other occurrence, Tenant shall remove any resulting debris
and repair or replace such damaged structure promptly, and if Tenant fails to
commence required restoration work within ninety (90) days from the date of such
damage or destruction or fails to diligently proceed to complete the same,
Lessor's remedy shall be the right and option to terminate the Term of this
Lease by giving Tenant written notice of Lessor's election to do so at any time
prior to completion of the repairs or replacements if Tenant shall not then be
actively undertaking such restoration work.
ARTICLE XV
RULES AND REGULATIONS
15.1 In regard to use and occupancy of the Premises and Common
Area, Tenant shall at its expense: (a) keep the inside and outside of all glass
in the doors and windows of the Premises clean; (b) keep all exterior store
surfaces of the Premises clean; (c) replace promptly any cracked or broken glass
of the Premises with glass of like kind and quality; (d) maintain the Premises
in a clean, orderly and sanitary condition and free of
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insects, rodents, vermin and other pests; (e) keep any garbage, trash, rubbish
or refuse in rat-proof containers within the interior of the Premises until
removed; (f) have such garbage, trash, rubbish and refuse removed on a daily
basis; (g) keep all mechanical apparatus free of vibration and noise which may
be transmitted beyond the Premises; (h) comply with all laws, ordinances rules
and regulations of governmental authorities and all recommendations of the Fire
Underwriters Rating Bureau now or hereafter in effect; (i) maintain window
displays, advertising matter, signs, merchandise and store fixtures in keeping
with the image, character and standards of the Premises, as determined by
Lessor; (j) maintain such regular service contracts with professionals for
air-conditioning maintenance, pest extermination, refuse removal, cleaning, etc.
as may be required by and subject to the approval of Lessor; and (k) conduct its
business in all respects in a dignified manner in accordance with high standards
of store operation consistent with the quality of operation of the Premises as
determined by Lessor and to provide an appropriate mercantile quality within the
entire Premises.
15.2 In regard to use and occupancy of the Premises and Common
Area, Tenant shall not: (a) use or permit the use of any objectionable
advertising medium such as, without limitation; loudspeakers, phonographs,
public address systems, sound amplifiers, reception of radio or television
broadcasts within the Premises which is in any manner audible or visible outside
of the Premises; (b) permit accumulations of garbage, trash, rubbish or other
refuse within or without the Premises; (c) cause or permit objectionable odors
to emanate or be dispelled from the Premises; (d) solicit business in the
parking or other Common Area; (e) distribute handbills or other advertising
matter to, in or upon any automobiles parked in the parking area or in any other
Common Facility; (f) permit the parking of delivery vehicles so as to interfere
with the use of any driveway, foot walk, parking area or other Common Facility
in the Premises; (g) place or suffer to be placed or maintain on the exterior of
the Premises any sign, advertising matter or any other thing of any kind or
maintain any decoration, lettering or advertising matter on the glass of any
window or door of the Premises, or paint or decorate any part of the exterior of
the Premises, or any part of the interior visible from the exterior thereof,
without first obtaining Lessor's written approval; (h) use of foot walk or any
other Common Facility adjacent to the Premises for the sale or display of any
merchandise for any other business, occupation or undertaking; (i) conduct or
permit to be conducted any action, fire, going out of business, bankruptcy, or
other similar type sale in or connected with the Premises; or (j) use or permit
the use of any portion of the Premises for any unlawful purpose.
15.3 Tenant shall comply with other rules and regulations
which may be adopted by Lessor from time to time and which are reasonably and
uniformly applied.
15.4 Tenant shall at all times fully comply with the Americans
With Disabilities Act, as the same may be amended from time to time or any
successor statute and any rules and regulations promulgated thereunder
(collectively, the "Act") and shall, at its sole cost and expense, make any and
all alterations and improvements to the Premises necessary to comply with the
Act. However, before Tenant shall make any alterations or improvements to the
Premises in order to comply with the Act, Tenant shall first obtain the approval
in writing of Lessor for such alterations or improvements, which approval shall
not be unreasonably withheld. Tenant shall further comply with Sections 15.1,
15.2, and 15.4
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with respect to any alterations or improvements made pursuant to this Section.
Tenant shall fully indemnify Lessor from and against any and all claims or
demands of any person or entity (including, but not limited to, any governmental
entity) arising out of Tenant's failure to fully comply with the terms of the
Act.
ARTICLE XVI
MORTGAGES
16.1 This Lease and the rights of Tenant hereunder shall be
subordinate to the lien of any mortgage or security interest on the Premises or
any part thereof or on the property of which the Premises are a part, and shall
be subordinate to the Lessor; provided, however, that subordination to liens
created hereafter shall be contingent upon agreement by the holder or holders of
any subsequent liens that this Lease shall not be divested by foreclosure or
execution on such subsequent mortgage or security interests and that Tenant's
possession of the Premises shall not be disturbed so long as Tenant should not
be in default hereunder.
ARTICLE XVII
TENANT'S PROPERTY
17.1 All property, other than Improvements (as defined in this
Lease) placed on the Premises by Tenant, including signs, inventory, furniture,
trade fixtures, appliances, expendable, books, records, cash and personal items
of clothing and sundries, shall be deemed to be "Tenant's Property".
17.2 So long as Tenant is not in default under this Lease,
Tenant may remove any of Tenant's Property without Lessor's consent, provided
such removal does not damage the Premises.
ARTICLE XVIII
INSURANCE AND INDEMNIFICATION
18.1 Tenant shall maintain and keep in force policies of
public liability insurance against claims for personal injury, death and
property damage occurring in or about the Premises or arising out of the use or
occupancy thereof, naming both Lessor and Tenant as Insured with coverage in the
amounts of not less than Five Hundred Thousand Dollars ($500,000.00) for bodily
injury or death to one person, not less than One Million Dollars ($1,000,000.00)
for bodily injuries or deaths arising out of one occurrence and not less than
One Hundred Thousand Dollars ($100,000.00) for property damage.
18.2 Tenant shall maintain and keep in force policies of
insurance against loss to the contents on the Premises, including but not
limited to Tenant's Property as a result of fire, theft or other insurance
casualty, in adequate amounts, including any damages
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resulting from environmental pollutant discharges caused by Tenant's negligence
in the operation of the Premises, the clean up of such spills or discharges
and/or any resulting liability for the spill, discharge, or remediation shall be
the sole responsibility of the Tenant. In addition, it is further agreed that
the Tenant shall fully indemnify the Lessor from any fines or penalties assessed
by any governmental agency, damages and losses that the Lessor may incur as the
result of any environmental pollutant or hazard discharges caused by the
Tenant's negligence or from any other sources or acts of third parties not the
result of any acts or negligence of the Lessor.
18.3 Tenant shall maintain and keep in force policies of
insurance against loss by vandalism, malicious mischief or breakage of glass in
adequate amounts.
18.4 All policies of insurance required to be maintained by
Tenant hereunder shall be obtained from insurance companies authorized to engage
in business in the Commonwealth or State in which the Premises are located.
Copies of the policies and certificates evidencing the effective dates and that
they will not be canceled without at least ten (10) days notice in writing shall
be delivered to Lessor.
18.5 All losses resulting from vandalism, malicious mischief
or broken glass not covered by insurance shall be the sole responsibility of
Tenant.
18.6 Tenant hereby waive any right of subrogation that
Tenant's insurance carrier at any time may have against Lessor or Lessor's
agents and employees, and shall release Lessor from any liability for any loss
of or damage to any property or person on the Premises.
18.7 Lessor hereby waive any right of subrogation that
Lessor's insurance carrier at any time may have against Tenant or Tenant's
agents and employees, and shall release Tenant from any liability for any loss
of or damage to any property or person on the Premises.
18.8 Tenant shall keep and save Lessor harmless from any
penalty, claim, demand, loss, damage, charge, cost or expense including but not
limited to attorneys' fees imposed or incurred for violation of any ordinance or
law, whether occasioned due to the neglect of Tenant or any agent of or
contractor under Tenant then upon or using the Premises, or otherwise howsoever,
or arising or allegedly arising out of any accident or other occurrence causing
injury to any person or property and due directly or indirectly to the condition
of or the use or occupancy of the Premises.
18.9 Tenant will not do or suffer to be done, or keep or
suffer to be kept, anything in, upon or about the Premises which will contravene
Lessor's policies insuring against loss or damage by fire or other hazards
(including, without limitation, public liability) or which will prevent Lessor
from procuring such policies in companies acceptable to Lessor. If anything
done, omitted to be done or suffered by Tenant to be kept in, upon or about the
Premises shall cause the rate of fire or other insurance upon the Premises or on
other property of Lessor or of others within the Premises to be increased beyond
the minimum rate from time to time applicable thereto, Tenant will pay, as
additional rent, the amount of any such increase upon Lessor's demand.
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ARTICLE XIX
ENVIRONMENTAL
19.1 In the event Tenant will be using any materials in the
operation of its business on the Premises which are or may be deemed to be toxic
or hazardous materials, Tenant's storage and use of such materials on the
Premises shall be subject to all laws and regulations now in effect or hereafter
enacted which deal with or relate to the regulation or protection of the
environment (Environmental Laws), including the ambient air, ground water,
surface water, and land use, including substrata land. In addition, Tenant
agrees to the following:
(a) Tenant shall, at Tenant's own expense, comply with
all present and hereafter enacted Environmental Laws, and any amendments
thereto, affecting Tenant's use or occupancy of the Premises or any operation of
Tenant thereon or therefrom.
(b) Tenant shall immediately notify Lessor of any of the
following:
(i) Receipt of any correspondence or any other
communication from any governmental entity regarding the
application of any Environmental Laws to the Premises or
Tenant's use or occupancy of or operation on the
Premises.
(ii) Any change in Tenant's operation on the Premises
which will change or has the potential to change Tenant's
or Lessor's obligations or liabilities under any of the
Environmental Laws.
(c) Tenant shall indemnify, protect, defend, and hold
Lessor, its partners, officers, directors, employees, and agents, and their
successors and assigns, harmless from and against any and all losses,
liabilities, damages, expenses (including, but not limited to, reasonable
investigation and legal fees and expenses), claims, and actions resulting from
or relating to any alleged or actual injury, liability, or damage to persons or
property; and any and all claims or actions brought by any person, firm,
governmental body, or other entity alleging or resulting or arising from or in
connection with contamination or adverse effects on the environment, or
violation of any Environmental Law or other statute, law, ordinance, rule,
regulation, judgment, or order of any governmental or judicial entity; and from
and against any and all damages, liabilities, costs, fines, and penalties
assessed as a result of any activity or operation on the Premises during the
term of this Lease, except for damage or injury caused by Lessor or Lessor's
agents. Tenant's obligations and liabilities under this section shall continue
as long as Lessor bears any liability or responsibility under the Environmental
Laws or any other statute or law for any act which occurred on the Premises
during the term of this Lease. Tenant's failure to abide by the terms of this
Section shall be restrainable by injunction. The obligations set forth in this
section shall survive the
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expiration or sooner termination of this Lease. Tenant shall require all of its
Subtenants and licensees to agree to the provisions of this Section in favor of
Lessor and the other persons set forth above.
19.2 Lessor has received no written notice from any
governmental authority having jurisdiction over the Premises that the Premises
are in violation of the Comprehensive Environmental Response, Compensation and
Liability Act of 1989, as amended (CER-CLA(c)), the Resources Conservation and
Recovery Act of 1976, as amended (ARCRA(c)), the Toxic Substance Control Act, as
amended, the Hazardous Materials Transportation Act, as amended, or any statute
governing underground storage tanks or asbestos. Lessor shall indemnify and hold
Tenant harmless from and against any and all claims, demands, or losses in
connection with the release of hazardous materials caused by Lessor.
ARTICLE XX
CONDEMNATION
20.1 If the whole or any part of the Premises shall be taken
under the power of eminent domain, this Lease shall terminate as to the part so
taken on the date Tenant is required to yield possession thereof to the
condemning authority. Lessor shall make such repairs and alterations as may be
necessary in order to restore the part not taken to useful condition and the
Annual Basic Rental shall be reduced proportionately as to the portion of the
Premises so taken. If the portion of the Premises so taken substantially impairs
the usefulness of the Premises for the purposes set forth in Section 2.6 in the
opinion of either party, either party may terminate this Lease as of the date
when Tenant is required to yield possession. Tenant shall not be entitled to any
portion of the award for the fee or leasehold of the Premises, the property of
Lessor of which the Premises are a part or any part thereof, and the entire
award shall belong to Lessor; provided, however, Tenant may apply for
reimbursement from the condemning authority for moving expenses, dislocation
damages and other special benefits, if any allowed by law, with the
understanding that Lessor's portion of any award shall not be diminished by any
claim on behalf of Tenant to a bonus value as a result of the amount of rent
payable hereunder being less than the fair market rental value of the Premises
or by any other claim of Tenant.
ARTICLE XXI
DEFAULTS
21.1 If Tenant shall fail at any time to make any payment or
to perform any act on its part to be made or performed under this Lease in
accordance with the terms hereof, Lessor, at its sole discretion, without notice
or demand, and without waiving or releasing Tenant from any obligation of Tenant
hereunder may make such payment or perform such act to the extent that Lessor
may deem desirable, and in connection therewith may employ attorneys and pay
expenses. All sums so paid by Lessor and all reasonable expenses in connection
therewith and all rent and other charges payable by Tenant hereunder shall bear
interest thereon at the then prevailing commercial rate from the date of such
payment by
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Lessor or the date such payment by Tenant was due, as the case may be, and shall
be deemed to be payable by Tenant to Lessor and may be collected by exercising
all remedies provided by law and provided herein for collection of rent.
21.2 If Tenant shall default in the payment of any installment
of rent, additional rent or other amount provided for under this Lease as the
same becomes due and payable, or should an execution be issued against the
Tenant and a levy made upon the Tenant's interest in the Premises or any part
thereof, or bankruptcy proceedings be commenced by or against Tenant, or an
assignment be made by Tenant for the benefit or creditors, or a receiver be
appointed for Tenant, then and in such event the entire rent for the balance of
the term, at the option of Lessor, shall become due and payable at once as if by
the terms of this Lease it were all payable in advance.
21.3 Lessor shall have the right to distrain upon any property
on the Premises for unpaid rent, additional rent and other amounts payable by
Tenant hereunder.
21.4 If Tenant shall default in the payment of any installment
of rent, additional rent or other amount provided for under this Lease or in the
performance of any covenant or condition of this Lease and fail to cure or
commence and diligently proceed to cure such default within ten (10) days after
written demand by Lessor that the default be cured, Lessor, at its option, may
enter upon the Premises without process of law and take possession thereof,
together with all Improvements and appurtenances.
21.5 No waiver by Lessor of any breach by Tenant of any
covenants or conditions contained herein shall be construed to be a waiver of
any other covenant or condition or any succeeding breach of the same covenant or
condition. Termination of the Term, or the receipt of rent after default or
after judgment or after execution shall not deprive Lessor of any other actions
against Tenant for possession or for rent or for damages. Lessor may use the
remedies herein given or other prescribed by law, or both, as often as it may
deem necessary.
21.6 Bankruptcy of Tenant.
(a) Insolvency -If, at or before the commencement date of
the term of this lease, or if at any time during the term, there shall be filed
by or against Tenant in any Court pursuant to any statute, either of the United
States or of any state, a petition in bankruptcy or insolvency or for
reorganization of for the appointment of a receiver or trustee of all or a
portion of the Tenant'S property, and if within sixty (60) days thereof Tenant
fails to secure a discharge thereof, or if Tenant makes an assignment for the
benefit of creditors or petitions for or enters into an arrangement, then this
lease, at the option of Lessor, may be terminated, in which event neither Tenant
nor any person claiming through or under Tenant by virtue of any statute or of
an order of any Court, shall be entitle to possession or to remain in possession
of the Premises, but shall forthwith quit and surrender the Premises, and
Lessor, in addition to the other rights and remedies it has by virtue of any
other provision herein or else where in this lease contained, or by virtue of
any statute or rule of law, may
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retain as liquidated damages any rent or monies received by Lessor from Tenant
or others in behalf of Tenant.
(b) Acceleration - It is agreed that in the event of the
termination of this lease pursuant to paragraph (a) of this Section, Lessor
shall forthwith, notwithstanding any other provisions of this lease to the
contrary, be entitled to recover from Tenant as and for liquidated damages an
amount equal to the then cash value of the rent and other charges payable by
Tenant hereunder for the unexpired portion of the term demised, less they then
cash rental value of the Premises for the same period. Nothing herein contained
shall limit or prejudice the right of Lessor to prove for and obtain as
liquidated damages by reason of such termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, such damages are to be proved, whether or not such
amount is greater, equal to, or less than the amount of the difference referred
to above.
ARTICLE XXII
SURRENDER
22.1 Tenant may, and at Lessor's request shall, remove all
Tenant's Property as defined herein, and Tenant agrees to repair any damage
caused by such removal promptly and at its sole cost and expense. Any property
not removed from the Premises at the expiration or earlier termination of this
Lease, at the option of Lessor, may forthwith become the property of Lessor.
ARTICLE XXIII
MISCELLANEOUS
23.1 In the event Tenant does not receive authorization to
operate a lending institution in the State of West Virginia, Tenant may upon
thirty (30) days written notice to Lessor, terminate this Lease.
23.2 Notwithstanding any other provisions contained in this
lease, in the event a) Lessee 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 process, or b) the depository
institution then operating on the Premises is closed, or is taken over by any
depository institution supervisory authority ("Authority"), Lessor 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
Lessor for rent, damages, or indemnity for injury resulting from the
termination, rejection, or abandonment of the unexpired Lease shall by law in no
event be in an amount equal to all accrued and unpaid rent to the date of
termination.
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23.3 Permit the Lessor and its agents to enter upon the
Premises at all reasonable times to examine the condition thereof.
23.4 All notices, demands and requests which may be or are
required to be given hereunder shall be given in writing and shall be deemed to
have been duly given if sent by United States Registered or Certified Mail
addressed to Tenant as set forth in Section 2.12 and to Lessor as set forth in
Section 2.13 or to such other places as the parties hereto may for themselves
designate in writing from time to time for the purpose of receiving notices
hereunder.
23.5 This Lease shall be deemed to be executed and delivered
at the County in which the Premises are situate, and the laws of the State or
Commonwealth in which the Premises are situate shall be applicable thereto. The
division of this Lease into Articles and Sections and the use of headings for
said Articles is for the purpose of convenience only and not for the purpose of
construing this Lease.
23.6 If any term or provision, or any portion thereof, of this
Lease, or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
23.7 Tenant shall, at any time and from time to time upon not
less than ten (10) days prior written request by Lessor execute, acknowledge and
deliver to Lessor an estoppel certificate stating whether or not this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), and, if the Lease is in full force and effect, the dates to
which the rent and other charges have been paid in advance, and such other
matters relating to this Lease as reasonably may be requested by Lessor, it
being intended that any such statement delivered pursuant to this Section may be
relied upon by any prospective purchaser, assignee or encumbrancer of the
Premises or the Property of which the Premises are a part.
23.8 Tenant agrees to attorn to any successor in interest to
Lessor whether by purchase, foreclosure, sale in lieu of foreclosure, power of
sale, termination of ground lease or otherwise, if so requested or required by
such successor in interest, and Tenant agrees, upon demand, to execute
agreements in confirmation of such attornment.
23.9 All provisions of this Lease shall apply during the Term
of this Lease, during any and all extensions hereof and during all periods
before and after the Term hereof while Tenant occupies or has the right to
occupy the Premises.
23.10 If two or more individuals, corporations, partnerships
or other business associates (or any combination of two or more thereof) shall
sign this Lease as Tenant, the liability of each such individual, corporation,
partnership or other business associate to pay
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rent and perform all other obligations hereunder shall be deemed to be joint and
several. In like manner, if the Tenant named in this Lease shall be a
partnership or other business association, the members of which are, by virtue
of statute or general law, subject to personal liability, the liability of each
such member shall be joint and several.
23.11 To secure payment of all amounts payable by Tenant under
this Lease, Lessor shall have a security interest in all Tenant's Property,
goods, equipment, inventory, accounts receivable, contract rights, licenses,
permits, other general intangibles and all assets and proceeds thereof of
Tenant, and upon request of Lessor, Tenant shall sign, deliver and pay for
filing any instruments reasonably requested by Lessor to separately document,
perfect and/or continue such security interest. Lessor shall sign such documents
as required to assist Tenant in obtaining loans or credit.
23.12 This Lease constitutes the entire contract between the
parties hereto, and there are no other understandings, oral or written, relating
to the subject matter hereof. This Lease may not be changed, modified or
amended, in whole or in part, except in writing signed by the parties.
23.13 The submission of this Lease to Tenant for examination
does not constitute a reservation of any rights to Tenant or option and this
Lease becomes effective only upon execution and delivery thereof by Lessor.
23.14 Advertisement of Premises - In the event the parties
hereto have not executed a renewal lease within one hundred eighty (180) days
prior to the termination of this lease, then the Lessor or its agents shall have
the right to enter the Premises at all reasonable times for the purpose of
exhibiting the same to others.
23.15 Sale of Property by Lessor - In the event of the sale of
the real estate by Lessor, it shall be sold subject to this lease, but the
original Lessor shall then be released of all obligations under this lease and
the new owner shall be responsible, as the new Lessor, under the terms and
conditions of this lease. It is the intent that this lease shall run with the
land and not be personal to the landowners.
23.16 Limitation of Lessor's Liability - Notwithstanding
anything to the contrary contained herein, any liability incurred by the Lessor
to the Tenant shall not be of a personal nature and Tenant's sole means of
recovery shall be against the real estate owned by Lessor at the location herein
leased, it being the specific intention to not encumber other assets of the
Lessor in this regard.
23.17 Force Majeure - In the event that there is a strike,
riot, shortage of material or other thing or item beyond the control of the
Lessor preventing the Lessor from performing under this lease, it shall not
constitute a breach or other violation of this lease for so long as the Lessor
is disabled by such act or governmental regulation from performing hereunder.
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23.18 Relationship of Parties - Nothing contained in this
Lease shall be deemed or construed by the parties hereto or by any third party
to create a relationship of principal and agent or of partnership or of joint
venture or of any association whatsoever between Lessor and Tenant, it being
expressly understood and agreed that neither the computation of rent nor any
other provisions contained in this Lease nor any act or acts of the parties
hereto shall be deemed to create any relationship between Lessor and Tenant
other than the relationship of Lessor and Tenant.
IN WITNESS WHEREOF, the parties have duly executed and sealed
this Lease as of the date first above written.
WITNESS: Lessor:
PLATINUM PROPERTIES, LIMITED
LIABILITY COMPANY
/s/ XXXX X. XXXXXX By: /s/ PARRY PETROPLUS
------------------------------------ -------------------------------------
Its: Member
---------------------------------
WITNESS: Tenant:
CENTRA BANK
/s/ XXXXXXX X. SAAB By: /s/ XXXXXXX XXXXX
------------------------------------ -------------------------------------
Its: President & CEO
---------------------------------
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