Exhibit 10.7
LEASE AGREEMENT
This Lease Agreement is made and entered into as of the 18th day of
December, 2002, between UNION PROPERTIES, a West Virginia General Partnership
("Lessor"), and CENTRA BANK, INC., a West Virginia Corporation, party of the
second part, ("Lessee").
WHEREAS, Lessor owns certain unimproved real estate located at the
corner of West Virginia Route 857 and Venture Drive in Union District,
Monongalia County, West Virginia;
WHEREAS, Lessee desires to lease one (1) acre of the real estate
owned by Lessor upon which to construct a banking facility; and
WHEREAS, Lessor desires to lease such real estate to Lessee subject
to the conditions and covenants contained in this Lease Agreement;
NOW, THEREFORE, WITNESSETH: That for and in consideration of, and
subject to, the covenants and conditions herein provided, Lessor hereby leases
to Lessee, and Lessee takes and hires from Lessor, all that certain lot or
parcel of land situate in Union District, Monongalia County, West Virginia,
located at the corner of West Virginia Route No. 857 and Venture Drive,
containing approximately one (1) acre generally depicted on a sketch attached
hereto as "Exhibit A" and incorporated herein by reference, prepared by CTL
Engineering dated ____________, together with all rights and appurtenances
belonging or in anyway appertaining, whether public or private, as more
particularly described and shown on the attached "Exhibit A" (hereinafter "the
Premises") which Premises shall be more particularly described and platted upon
completion of a survey of the Premises which survey and plat shall be to the
satisfaction of each party; and in consideration therefor Lessor and Lessee
agree as follows:
1. EFFECTIVE DATE: This Lease Agreement (hereinafter "Lease") shall become
effective when signed by all parties hereto upon the date of the party last
signing, hereinafter the "Effective Date".
2. COVENANT OF TITLE AND QUIET ENJOYMENT: Lessor covenants and warrants
that it has full right and lawful authority to enter into this lease for the
full term hereof; that Lessor has good title thereto, free and clear of all
tenancies, restrictions, and encumbrances, and that at all times during the term
of this lease and any extensions of said term, Lessee's quiet and peaceful
enjoyment of
the Premises shall not be disturbed or interfered with by anyone. Lessor shall
give Lessee notice of any encumbrance placed against the Premises caused by or
as a result of Lessor's actions. Lessor agrees not to allow any noxious or
offensive activity to be conducted on its real estate that adjoins the Premises;
Lessee has knowledge of, and does not object to, the sanitation/refuse transfer
activity being conducted on the adjoining real estate by Suburban Sanitation.
Lessor covenants and agrees that it will not substantially modify or change the
sanitation/refuse transfer activity on the adjoining real estate.
3. CONSTRUCTION OF IMPROVEMENTS AND TITLE THERETO: Lessee shall have the
right, throughout the Term of this lease, to improve the Premises for use as a
commercial banking property and related activities conditioned upon obtaining
Lessor's consent, which consent shall not be unreasonably withheld. All
furnishings, fixtures, equipment and materials used in making the improvements
shall be purchased and installed at the sole cost of Lessee. Furthermore,
Lessee, at its own cost and expense, shall procure all necessary permits from
all applicable governmental agencies authorizing (i) the razing of existing
improvements, if necessary, (ii) the erection and operation of new improvements
on the Premises, (iii) the construction of roadways, and (iv) the installation
of utility lines. Any such improvements constructed on the Premises, including
additions and alterations thereto, shall be the sole and exclusive property of
Lessee, free and clear of all claims of Lessor until the termination of this
lease. If Lessee's improvements require the removal or excavation of soil or
subsoil, at Lessor's request, Lessee shall transport such soil or subsoil to the
adjoining lands of Lessor as directed by Lessor; provided that Lessee shall not
be responsible for any compaction. Notwithstanding anything contained herein to
the contrary, Lessor shall determine the final grade and elevation of the
Premises. Lessee acknowledges that (i) the Premises have been undermined by
prior deep coal mining activity, and (ii) Lessee shall be responsible, at its
cost and expense, for stabilizing the subsurface of the Premises for any
improvements placed on the Premises.
4. REMOVAL OF IMPROVEMENTS, EQUIPMENT, FIXTURES, AND PERSONAL PROPERTY:
Lessee shall have the right at any time during the Term to enter upon and remove
from the Premises any of Lessee's fixtures, equipment and personal property.
Upon the termination of this lease, Lessee shall remove all fixtures, equipment
and personal property from the Premises within sixty (60) days. Lessee's failure
to do so after the expiration of such sixty (60) day period shall be deemed to
be an
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abandonment thereof. Nothing in this paragraph shall be construed, however, to
require or allow Lessee to remove the permanent building structures, to be
constructed in the future, exclusive of equipment, fixtures and property
attached thereto that do not constitute structural parts of the building, and
such permanent building structures shall become the property of Lessor at the
termination of this lease.
5. TERM: This lease shall be in effect for a term commencing on the
Effective Date and ending ten (10) years from the Effective Date pursuant to the
provisions of this Lease ("Original Term"). Provided that there shall be no
uncured event of default, Lessee shall have the right to renew this lease for
five (5) additional ten (10) year terms ("Renewal Term") upon giving notice to
Lessor no less than one hundred eighty (180) days prior to the expiration of the
Original Term or any Renewal Term.
6. RENT:
A. Commencing on the Effective Date, Lessee shall pay Lessor as
follows:
(i) For that period of the Original Term beginning on the
Effective Date and continuing for a period of
twenty-four (24) months, Lessee hereby agrees to pay
Lessor installments of Two Thousand Five Hundred Dollars
($2,500.00) per month.
(ii) For the balance of the Original Term, Lessee shall pay
Lessor for a period of ninety-six (96) months
installments of Ten Thousand Dollars ($10,000.00) per
month.
(iii) The monthly rent for any Renewal Term, if elected, shall
be the product of the monthly rent for the Original
Term, or previous Renewal Term just completed,
multiplied by a fraction. The numerator of the fraction
on the first adjustment shall be the Consumer Price
Index ("CPI") on the last day of the Original Term and
the denominator shall be the CPI on the first day of the
Original Term. For adjustments other than the first
adjustment, the numerator of the fraction shall be the
CPI on the last day of the most recently completed term
and the denominator shall be the CPI on the last day of
the previous term. For example, if the CPI on the first
day of the Original Term is 100, on the last day of the
Original Term is 105, on the last day of the first
Renewal Term is 108, and on the last day of the second
Renewal Term is 110, the monthly rental shall increase
by the fraction of 105/100 commencing with the first
renewal term, shall increase by the fraction of 108/105
commencing with the second renewal term, and shall
increase by the fraction of 110/108 commencing with the
third Renewal Term. The CPI shall mean the CPI published
by the United States Department of Labor for all urban
consumers for the Pittsburgh, Pennsylvania metropolitan
area, or such successor index as may be in effect at the
relevant time.
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7. EASEMENT FOR ACCESS AND UTILITIES: Lessor hereby reserves the following
rights of way and easements across the Premises for purposes of ingress, egress
and regress to and from other property of Lessor adjacent to the Premises and
for purposes of construction, installation, repair, maintenance and/or
replacement of any and all utilities and signs. Said rights of way are more
particularly described and shown in Exhibits "A" and "B" attached hereto and are
generally described as follows:
A. A right of way approximately twenty (20) feet in width, extending
along the boundaries of the Premises.
B. A right of way consisting of Four Hundred Eighty-Five (485)
square feet for the erection and maintenance of appropriate signage, provided
the signage is placed in a line of sight and size acceptable to Lessee.
Use and enjoyment of said rights of way and easements shall inure to
the benefit of Lessor, Lessor's successors and/or assigns. Lessor and Lessee
shall share proratably in the costs of construction and maintenance of an
asphalt or concrete roadway thirty (30) feet in width extending from Venture
Drive to the northern boundary of the Premises. It is the intention of the
parties that an owners association shall be created in the future to be
responsible for the maintenance and possible replacement of roadways, utilities
and other common services or structures associated with the Premises or Lessor's
adjoining real estate.
8. SEWAGE TREATMENT PLANT:
Lessee acknowledges that no public sewage service or private sewage
treatment plant service currently exists for the Premises. Lessee shall be
responsible for all costs associated with providing sewage services to the
Premises and for maintenance, repair or replacement of such services until such
time as public sewage service is available.
Lessee shall act in strict conformance and compliance with all
Federal, State, County, Municipal and other laws, rules, regulations, ordinances
or permits, and shall indemnify and hold Lessor harmless from any and all loss,
cost, expense, injury, claim, charge and liability of any and every kind and
nature whatsoever, whenever arising, incurred or suffered by Lessor in relation
to Lessee's sewage services.
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In the event that use of the sewage services installed by Lessee is
discontinued for any reason, Lessee shall be responsible for the cost of
removing such services and returning the land where the sewage services were
located to its original condition.
9. USE: The Premises may be used by Lessee for commercial banking and
related purposes. In occupying the Premises, Lessee shall comply with all laws,
ordinances, orders and regulations of any lawful authority and shall keep the
Premises in a neat and clean condition. Lessee shall not permit any nuisance or
disturbance to exist on the Premises. Lessee shall make available to Lessor, its
successors, invitees and assigns, sidewalks established by Lessee on the
Premises. Notwithstanding anything contained herein to the contrary, Lessee may
terminate this Lease Agreement if Lessee is unable to obtain (i) utility service
to the Premises after exhausting all reasonable means; (ii) reasonable and
necessary access rights and easements to and from the Premises from the West
Virginia Department of Highways; or (iii) approval from the FDIC, the West
Virginia Banking Commission, and any other regulatory agency to conduct
commercial banking and related banking activity on the Premises.
10. MAINTENANCE AND REPAIRS: Lessee, at its sole cost and expense, shall
maintain and keep in good repair the Premises and all improvements currently
existing or to be constructed on the Premises, ordinary wear and tear excepted.
11. UTILITIES:
A. Charges: Lessee shall pay for all sewer, water, gas, electric,
telephone, and other utilities used or consumed in or at the Premises as well as
the cost of installation of such utilities, provided that Lessor shall pay its
prorata share of the costs associated with Lessor's request to increase the size
or capacity of any utility. For example, if Lessee plans to install a six inch
diameter water line but Lessor requests the installation of a ten inch diameter
water line, Lessor shall pay the cost of increasing the water line from six to
ten inches.
B. Availability: Lessee shall permit Lessor access and connection to
any utilities that Lessee extends to the Premises. Lessee shall permit Lessor
access and connection to any additional utilities extended to the Premises in
the future. Lessor shall permit Lessee access and connection to utilities on
Lessor's adjoining real estate. Lessee shall cause connections for all utilities
to be installed at a point on the Premises, consented to by Lessor, which
consent shall not be unreasonably withheld, which
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is free from pavement, concrete or other similar "hard cover" and shall cause
sufficient shut-off valves to be installed thereon. Notwithstanding anything
contained herein to the contrary, Lessor shall reasonably determine where on the
Premises the utilities shall be located and extended to, provided the location
of, and Lessor's access to, the utilities shall not interfere with the
operations of Lessee.
12. TAXES AND ASSESSMENTS: Lessee shall bear, pay and discharge all ad
valorem property taxes charged or imposed upon the Premises or any improvements
thereon, or upon the owner or occupier in respect thereof during the term of
this lease or any extensions thereof, including any interim or extended terms,
and upon demand shall deliver to Lessor a proper and sufficient receipt or other
evidence of the payment and discharge of same. Lessee shall be obligated to pay
any assessments for sewer, water, street or other improvements which may be
levied or assessed against the Premises. If, for tax purposes, the Premises and
adjacent property are assessed as a whole, Lessor shall attempt to cause the
Premises to be separately assessed and taxed. If Lessor cannot cause the
Premises to be separately assessed and taxed, such taxes and assessments shall
be equitably allocated. If Lessee shall default in keeping or performing its
obligations hereunder, Lessor shall have the right, after thirty (30) days
written notice to Lessee, to keep and perform the same on Lessee's behalf and
the cost of the same shall be added to the next rent payments as the same become
due, together with interest at the prime rate as published in the Wall Street
Journal.
13. EMINENT DOMAIN:
A. In the event the Premises shall be taken by or pursuant to any
governmental authority or through the exercise of the right of eminent domain,
Lessor and Lessee shall cooperate in resisting such proceeding if such
resistance is feasible and desirable, and if it is not, shall cooperate in
prosecuting their respective claims for damages incurred from the successful
exercise of such right or proceeding.
B. If the whole of the Premises, or such portion thereof as would
render the balance of the Premises not suitable for the use to which the
Premises was intended, shall be taken or condemned by any competent authority
for any public use or purpose during the term of this lease, all obligations of
Lessee shall cease upon the date of the taking and any unearned rent paid by
Lessee shall be refunded.
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C. In the event that only a portion of the Premises shall be taken
or condemned, and the balance of the Premises is not rendered unsuitable for its
intended use, this lease shall not terminate, but the monthly rent due to Lessor
shall be adjusted in proportion to the percentage of the improved Premises which
is taken as compared to the percentage of improved Premises not taken.
D. Any condemnation award shall be paid in the following order of
priority:
(i) To Lessor for the then value of its interest as Lessor
in the land and in the improvements situate thereon and
as fee owner of the Premises subject to this lease, (i)
provided that any award for improvements on the Premises
shall be shared between Lessor and lessee based upon a
sixty (60) year lease (the combined length of the
Original Term and all Renewal Terms) with Lessee
receiving the majority of the award for the first half
of such 60 year period and Lessor receiving the majority
of the award for the second half of such 60 year period
(Examples: If the award for improvements occurs in Year
10, Lessee shall receive 5/6 of such award and Lessor
shall receive 1/6 of such award. If such award occurs in
Year 30, Lessee and Lessor shall each receive -1/2 of
such award. If such award occurs in Year 40, Lessor
shall receive 2/3 of such award and Lessee shall receive
1/3.); and (ii) if Lessee is unable to purchase the
Premises pursuant to paragraph 31 of this Lease
Agreement due to the inability of Lessor to convey title
to Lessee by general warranty deed free and clear of all
encumbrances, any award for improvements shall be paid
to Lessee if such award is made during the Original Term
or any Renewal Term.
(ii) To Lessee for the then value of its leasehold interest.
14. INDEMNITY-LIABILITY INSURANCE:
A. Lessee shall indemnify and save Lessor harmless from all claims,
causes of action, and judgments for personal injury, loss of life or property
damage suffered in, upon and about the Premises as the result of the negligent
act of Lessee, its employees or agents, except such as may be the result of the
willful or negligent acts or omissions of Lessor. Such indemnification shall
also include payment of Lessor's attorney fees incurred in defense of any such
action. Lessee shall provide and keep in force during the Term of this lease,
general public liability insurance in an amount of $2,000,000.00 per person/per
occurrence. Any such policy shall name Lessor as an additional insured and may
be carried under a blanket policy covering the Premises and other locations of
Lessee. Certificates of all such policies of insurance shall be delivered to
Lessor upon written request.
X. Xxxxxx shall indemnify and save Lessee harmless from all claims,
causes of action, and judgments for personal injury, loss of life or property
damage suffered in, upon and about the Premises as the result of the negligent
act of Lessor, its employees or agents, except such as may be the
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result of the willful or negligent acts or omissions of Lessee. Such
indemnification shall also include payment of Lessee's attorney fees incurred in
defense of any such action.
15. FIRE INSURANCE: During the Term of this lease, Lessee shall keep all
buildings and improvements on the Premises insured for its benefit against loss
or damage by fire in an amount sufficient to reconstruct all buildings and
improvements in the event they are damaged or destroyed by fire. Such insurance
may be carried under a blanket policy covering the Premises and any other
locations of Lessee. All proceeds payable at any time by any insurance company
under such policies shall be payable to Lessee and Lessor on a shared basis
similar to the arrangement described in subparagraph D(i) of paragraph 13
(Eminent Domain) of this Lease Agreement. Lessee shall utilize such proceeds to
rebuild or restore any portion of the buildings or improvements on the Premises
so lost, damaged, or destroyed to the condition of the buildings or improvements
prior to the damage. Lessee shall commence reconstruction within one hundred
twenty (120) days after the insurance proceeds have been paid and shall complete
reconstruction within one (1) year of the date on which construction is
commenced. Upon request from Lessor, Lessee shall provide sufficient evidence
that the buildings and improvements are insured and that Lessor is named as a
coinsured or an additional insured under said policy as its interest may appear.
16. DEFAULT BY LESSEE:
A. The following shall be deemed defaults by Lessee hereunder:
(i) Lessee shall become insolvent, or shall make a transfer
to defraud his creditors, or shall make an assignment
for the benefit of creditors.
(ii) Lessee shall file a petition under any section or
chapter of the United States Bankruptcy Code, as
amended, or under any similar law or statute of the
United States or any State thereof.
(iii) Lessee shall be adjudged bankrupt or insolvent in
proceedings filed against Lessee under any section or
chapter of The United States Bankruptcy Code, as
amended, or under any similar law or statute of The
United States or any State thereof.
(iv) A receiver, trustee, or committee be appointed in any
action, suit or proceedings by or against Lessee either
voluntary or involuntary, whether under the United
States Bankruptcy Code or any other law or jurisdiction,
and not removed within ninety (90) days after such
appointment, it being the understanding between the
parties hereto that under no circumstances is
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the lease to be an asset for Lessee's creditors by
operation of law or otherwise.
(v) The interest of Lessee in the Premises is offered for
sale under execution or other legal process or sold
under execution or other legal process.
B. Upon the occurrence of any of the foregoing events of default,
Lessor shall have the option to pursue any one or more of the following remedies
without any further notice or demand whatsoever:
(i) Terminate this lease, in which event Lessee shall
immediately surrender the Premises to Lessor, and if
Lessee fails so to do Lessor may, without prejudice to
any other remedy which its may have for possession or
arrearages in rent, enter upon and take possession of
the Premises and expel or remove Lessee and any other
person who may be occupying the Premises or any part
thereof (by force if necessary) without being liable for
prosecution of any claim or damages therefor; and Lessee
agrees to pay to Lessor on demand the amount of all loss
and damage which Lessor may suffer by reason of such
termination, whether through inability to relet the
premises on satisfactory terms or otherwise.
(ii) Enter upon and take possession of the Premises and expel
or remove Lessee and any person who may be occupying the
Premises or any part thereof (by force if necessary)
without being liable for prosecution of any claim for
damages therefor, and relet the Premises and receive the
rent therefor; and Lessee agrees to pay to Lessor on
demand any deficiency that may arise by reason of such
reletting.
(iii) Enter upon the Premises (by force if necessary) without
being liable for prosecution of any claim for damages
therefor, and do whatever Lessee is obligated to do
under the terms of this lease, and Lessee agrees to
reimburse Lessor on demand for expenses which Lessor may
incur in effecting compliance with Lessee's obligation
under this lease.
C. In the event of default by Lessee under Paragraph 16, Subsections
A(i) through A(v), Lessor agrees to recognize any existing sublease previously
approved by Lessor, provided the sublessee shall begin paying rent directly to
Lessor in the amount described in the sublease and provided that said sublessee
shall be in compliance with all terms and conditions of its sublease.
D. If Lessee fails to pay rent within fifteen (15) days of when due,
and shall not cure such failure within fifteen (15) days after written notice
thereof to Lessee, then such failure shall be an event of default and Lessor
shall have the remedies described above.
E. Nothing contained herein to the contrary, if Lessee fails to
comply with any term, condition or covenant of this lease, other than the events
of default specifically listed in this Paragraph 16,
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Subsections A(i) through A(v) and Subsection D, and shall not cure such failure
within thirty (30) days after written notice thereof to Lessee, or if such
failure cannot reasonably be cured within said thirty (30) days and Lessee shall
not have commenced to cure such failure within thirty (30) days after written
notice thereof to Lessee, then such failure shall be an event of default and
Lessor shall have the remedies described above.
17. SUBORDINATION TO LIEN OF DEEDS OF TRUST:
A. Lessee: Lessee shall subordinate the leasehold estate created
hereby to any deed of trust, and all renewals, modifications, consolidations,
replacements and extensions thereof, which may hereafter affect the real
property of which the Premises form a part, provided that as a condition to such
subordination, Lessor shall first procure from the lender a written agreement
which shall provide that (i) this lease and the leasehold estate created hereby
shall not be terminated or modified in any respect whatsoever should the deed of
trust granted to lender be foreclosed upon, and that this lease and Lessee's
leasehold estate created hereby shall continue in full force and effect
according to the terms and conditions herein set forth, and Lessee's occupancy
shall not be disturbed or affected in any manner whatsoever by any such
foreclosure or other proceeding; and (ii) that such lender shall provide a
partial release of any deed of trust for the Premises upon Lessee's exercise of
the option to purchase pursuant to paragraph 31 of this Lease Agreement and
Lessee's payment of the purchase price described therein.
X. Xxxxxx: In the event that Lessee, or any sublessee, shall pledge
its leasehold estate as security for an indebtedness in any form whatsoever
(this pledge hereinafter referred to as a "mortgage"), and if the holder of the
indebtedness secured by the leasehold estate (hereinafter "mortgagee") notifies
Lessor of the execution of such mortgage, and the name and place for service of
notices upon such mortgagee, then and in such event, Lessor hereby agrees for
the benefit of Lessee, any sublessee and such mortgagee from time to time:
(i) That Lessor will give to any such mortgagee
simultaneously with service on Lessee a duplicate of any
and all notices or demands given by Lessor to Lessee.
(ii) In the event of any default by Lessee hereunder, or
under the terms of the mortgage, such mortgagee shall
have the privilege of performing any of Lessee's
covenants or of curing any defaults by Lessee or of
exercising any
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election, option or privilege conferred upon Lessee by
the terms of this lease.
(iii) Lessor shall not terminate this lease or Lessee's right
of possession for any default of Lessee if, within a
period of thirty (30) days after the expiration of the
period of time within which Lessee might cure such
default, such default is cured or caused to be cured by
such mortgagee or, if within a period of thirty (30)
days after the expiration of the period of time within
which Lessee might commence to eliminate the cause of
such default, such mortgagee commences to eliminate the
cause of such default and proceeds therewith diligently
and with reasonable dispatch.
(iv) No liability for the payment of rental or the
performance of any of Lessee's covenants and agreements
hereunder shall attach to or be imposed upon any
mortgagee, while not in possession of the premises.
(v) The execution and delivery of a leasehold mortgage or
deed of trust and a conditional assignment of this lease
as collateral security therefor shall not be deemed a
lease assignment for any other purpose.
18. ASSIGNMENT, SUBLETTING OR ENCUMBRANCES:
A. Prior Consent: Lessee may not, without the prior written consent
of Lessor, which consent shall not be unreasonably withheld by Lessor, sublet or
assign this lease to any other person whatsoever. Lessee shall provide Lessor
with a proposed sublease, a blueprint, detailed design, and/or all other
sufficient information necessary for Lessor to make an informed decision prior
to consenting or rejecting the sublease or assignment. Lessor shall respond to
the request within thirty (30) days upon receiving such information. If Lessor
does not respond within thirty (30) days, consent is deemed given. In the event
of any sublease of this lease, Lessee shall remain primarily liable for the
keeping and performance of all of its covenants hereunder including, but not
limited to, the prompt and due payment of rent.
B. Performance by Sublessee: In the event Lessee sublets all or any
portion of the Premises to any sublessee, Lessee shall notify Lessor, in
writing, of the existence of the sublessee and the address of the sublessee to
which notices shall be sent. In the event Lessor shall give notice to Lessee
with respect to or in connection with any default under this lease, Lessor shall
also serve a copy of such notice upon such sublessee. Upon the receipt of such
notice by the sublessee, the sublessee shall have the right and opportunity to
cure or remedy or cause to be cured or remedied any breach or default within the
same
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time period provided to Lessee under this lease, and Lessor shall accept such
performance by the sublessee as if the same had been done or performed by
Lessee.
C. Insurance: Lessee hereby covenants and agrees that Lessee shall
include in any sublease entered into and executed by Lessee with any sublessee,
that the sublessee shall obtain adequate property and hazard insurance and
Lessor shall be named as either co-insured or additional insured on any and all
insurance policies obtained by a sublessee.
D. Encumbrances: Lessee shall give Lessor notice of any encumbrance
placed against the Premises caused by or as a result of Lessee's actions.
19. HAZARDOUS MATERIALS:
A. For the purposes of this lease (i) "hazardous materials" means
and includes petroleum products, flammable explosives, radioactive materials,
asbestos or any material containing asbestos, polychlorinated biphenyls or any
hazardous, toxic or dangerous waste, substance or material defined as such or
defined as a hazardous substance or other similar term by, in or for the
purposes of any environmental laws and (ii) "environmental laws" means any
"superfund" or "superlien" law or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree, regulating, relating to
or imposing liability or standards of conduct concerning any hazardous materials
as may now or at any time hereafter be in effect.
X. Xxxxxx represents, covenants and warrants that, to Lessor's
knowledge, the Premises are in compliance with all environmental laws. If it is
determined after the Effective Date that the Premises were not in compliance
with all environmental laws as of the Effective Date, the parties shall, in good
faith, modify their arrangement to consider the environmental condition of the
Premises.
C. Without the written consent of Lessor, Lessee or any sublessee of
Lessee shall not place or permit to be placed on the Premises any hazardous
materials. Lessor agrees to consent to said use of these hazardous materials as
long as the use is in compliance with all applicable environmental laws.
D. If any hazardous materials are placed on the Premises by Lessee,
its agents, employees, or, its sublessees or their agents, or employees in
violation of any applicable environmental laws, Lessee shall, within 30 days
after receiving written notice thereof, take or cause to be taken, at its
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sole expense, such actions as may be necessary to comply with all applicable
environmental laws. If hazardous materials are placed on the Premises by any
party other than Lessee, Lessee shall reasonably cooperate and provide Lessor,
or its agents, with access to the premises to remove the hazardous materials.
E. Lessee shall indemnify Lessor and shall hold Lessor harmless from
and against all loss, damage and expense, including without limitation,
attorneys' fees and costs incurred in the investigation, defense and settlement
of claims, that Lessor may incur as the result of or in connection with the
assertion against Lessor of any claim directly or indirectly, in whole or in
part, as to the presence or removal of any hazardous materials, or relating to
any activities on or affecting the Premises during the term of this lease, if
and to the extent such hazardous material or such activity was carried on by
Lessee, its sublessees or assigns. Lessee shall promptly notify Lessor in
writing of any order or pending or threatened action by any regulatory agency or
other governmental body, or any claims made by any third party relating to
environmental laws or hazardous materials on or emanations from the Premises and
shall promptly furnish Lessor with copies of any correspondence or legal
pleadings in connection therewith. Lessor shall have the right, but absolutely
no duty, to take any action it deems necessary or desirable, including without
limitation appearing in or defending any such claims or actions, all at the cost
of Lessee.
X. Xxxxxx represents and warrants that no underground storage tanks
currently exist on the Premises.
G. Lessee warrants that any underground storage tanks installed on
the Premises in the future by Lessee, its agents or sublessees shall comply with
all obligations imposed by Federal, State, Municipal or local law, including but
not limited to, the provisions of the West Virginia Underground Storage Tank
Act, Article 5H of Chapter 20 of the Code of West Virginia of 1931, as amended.
Lessee further warrants that such tanks, and all lines and connections thereto
shall be properly inspected and tested and all such tanks, lines and connections
shall be tight such that there is no leakage therefrom. Lessee agrees to
indemnify and save Lessor harmless from any and all damage which Lessor may
sustain, or loss to which Lessor may be subjected, by reason of violation of the
provisions of any such law or leakage from any such tank.
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H. As a condition of obtaining Lessor's consent prior to placing or
allowing to be placed any hazardous material on the Premises, Lessee, and the
applicable sublessee, if any, and the principals of the sublessee shall execute
a Hazardous Substance Agreement in a form agreed to in writing by Lessor.
I. If Lessee fails to abide by all terms and conditions of this
Paragraph 19, and such failure continues for thirty (30) consecutive days after
written notice to Lessee, Lessor shall have the right to declare this lease in
immediate default and pursue any one or more of the remedies contained in
Paragraph 16 herein upon written notice to Lessee. If any sublessee of Lessee
violates any applicable environmental laws or fails to abide by the terms and
conditions of the Hazardous Substance Agreement, Lessee, upon receiving written
notice from Lessor, shall immediately pursue any remedial actions necessary to
ensure compliance with all applicable environmental laws; Lessee's failure to
remedy his sublessee's noncompliance within thirty (30) days of receipt of the
written notice from Lessor shall be considered a default by Lessee under the
terms of this lease.
20. CONCRETE AND EXCAVATION:
A. Lessee covenants and agrees that it shall purchase from Magic
Concrete of Morgantown, West Virginia, all concrete, sand, gravel, mortar,
rebar, grout, and the service of hauling gravel used in the construction of
roadways, parking lots, sidewalks, curbs or any other improvements on the
Premises, including grouting any deep mining voids under the Premises, provided
that the price of such products and services shall be at a commercially
reasonable rate. Lessee covenants and agrees that it shall include in any
sublease for the Premises, or any portion thereof, a restrictive provision that
the sublessee shall purchase from Magic Concrete all concrete, gravel, mortar,
grout, rebar, and the service of hauling gravel used in the construction of
roadways, parking lots, sidewalks, curbs or any other improvements on the
subleased property, including grouting any deep mining voids under the Premises,
provided that the price of such products and services shall be at a commercially
reasonable rate.
B. Lessee covenants and agrees that it shall purchase from XXXX
Incorporated of Morgantown, West Virginia, all excavation services on the
Premises, provided that the price of such products and services shall be at a
commercially reasonable rate and the provision of such services complies with
the construction schedule of Lessee's contractor, subject to adverse weather
conditions.
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Lessee covenants and agrees that it shall include in any sublease for the
Premises, or any portion thereof, a restrictive provision that the sublessee
shall purchase from XXXX Incorporated all excavation services on the subleased
property, provided that the price of such products and services shall be at a
commercially reasonable rate.
21. RIGHTS OF PARTIES: Unless stated to the contrary herein, each and
every provision of this lease shall bind and inure to the benefit of the parties
hereto, their respective legal representatives, devisees, heirs, successors and
assigns. Feminine or neuter pronouns shall be substituted for those of the
masculine form and the plural shall be substituted for the singular number in
any place or places herein in which the context may require the same.
22. HOLDING OVER: If Lessee shall remain in possession of all or any part
of the Premises after the expiration of the term of this lease and Lessor elects
to accept rent thereafter, then Lessee shall be deemed a tenant of the Premises
from month-to-month at the same rental and subject to all of the terms and
provisions hereof, except only as to the term of this lease.
23. WAIVER: One or more waivers of any covenant or condition by Lessor
shall not be construed as a waiver of a subsequent breach of the same or any
other covenant or condition, and the consent or approval by Lessor to or of any
act by Lessee requiring Lessor's consent or approval shall not be construed to
waive or render unnecessary Lessor's consent to or approval of any subsequent
similar act by Lessee.
24. NO ACCORD AND SATISFACTION: No acceptance by Lessor of a lesser sum
than the rents or other charges then due shall be deemed to be other than on
account of the earliest of such stipulated rents or charges, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent or other charge be deemed an accord and satisfaction, and Lessor
may accept such check or payment without prejudice to Lessor's right to recover
the balance of such installment or pursue any other remedy provided in this
lease or by law.
25. RIGHT TO INSPECT: Lessor and its authorized agents shall have the
right to enter the Premises for the purpose of making an inspection of the same
during normal business hours of Lessee or any sublessee.
26. NOTICE: All notices authorized or required to be given to Lessor shall
be sent by Certified Mail with prepaid postage addressed to Lessor at Union
Properties, 0000 Xxxxx Xxxxxx Xxxx,
00
Xxxxxxxxxx, XX 00000, with a copy to Xxxxxxx Xxxxxx, 0000 Xxxxxxxx Xxxxxx X. X.
Xxxxxx, XX 00000, and a copy to Xxxxxx X. Xxxxxxx at X.X. Xxx 0000, Xxxxxxxxxx,
Xxxx Xxxxxxxx, 00000-0000, and those authorized or required to be given to
Lessee shall be sent in the same manner to Lessee at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, XX, 00000 (Attention: Xxxxxxx X. Xxxxx), with a copy to Xxxxx X.
Xxxxxx at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx, 00000, subject to
the right of either party to designate by written notice a new address to which
said notices may be sent.
27. RECORDING: Lessee may, at its option, record a memorandum of the
lease. Lessor agrees to execute same provided Lessor agrees to the contents of
the memorandum. The cost of all documentary stamps, or conveyancing transfer tax
or recording fees shall be borne by Lessee.
28. SEVERABILITY: If any provision 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 whose circumstances are other than those as to which it is
held invalid or unenforceable shall not be affected thereby.
29. ENTIRE AGREEMENT: This lease contains all the agreements and
conditions made between the parties and may be modified or amended only by an
agreement in writing signed by the parties or their respective successors in
interest and appended hereto.
30. EXECUTED IN DUPLICATE: This lease has been executed in duplicate by
the parties hereto and each copy thereof shall for all purposes be treated as an
original.
31. OPTION TO PURCHASE: Lessor hereby grants to Lessee, its successors and
assigns, the exclusive right, option and privilege to purchase the Premises
subject to the following terms, covenants and conditions:
A. The option granted herein shall be for a term commencing on the
second anniversary of the Effective Date and terminating at Midnight, thirty
(30) days thereafter ("Option Period").
B. Lessee may exercise the option hereby granted by serving written
notice of its exercise of the same to Lessor at the address of Lessor stated in
this Lease. A notice shall be considered served and received when it is
deposited in the United States Mail, postage prepaid, return receipt requested.
C. The purchase price for the Subject Property shall be Five Hundred
Thousand Dollars ($500,000.00), which shall be payable in cash by Lessee to
Lessor at the closing of the sale of the
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Premises. If the Lessee exercises the option hereby granted to it to purchase
the Premises, Lessee shall be given full credit toward the purchase price for
all the rents paid to Lessor under this lease.
D. In the event a title search of the Premises discloses
restrictions, encumbrances, defects, irregularities or other matters that
prevent Lessor from conveying good and marketable title to the Premises, Lessee
shall provide Lessor with written notice of any objection to title and Lessor
shall have sixty (60) days to attempt to cure the same. The time periods to
exercise Lessee's option to purchase and for closing shall be extended while
Lessor attempts to cure the title matter. Lessor shall use its best efforts to
cure any title objection. In the event Lessor can not cure the title objection,
this lease shall continue pursuant to its terms. If Lessee fails to provide a
written objection to title within thirty (30) days of the commencement of the
Option Period, Lessee waives all rights to object to the title of the Subject
Property.
E. If Lessee exercises its option to purchase, the closing of the
sale of the Premises to Lessee shall take place at a place and at a time
mutually agreeable to the parties hereto and within fifteen (15) days of the
date on which the Lessee exercises its option to acquire the Premises. At the
closing of said sale, Lessor shall deliver to Lessee a good and sufficient deed
for the Premises containing covenants of general warranty, free and clear of all
encumbrances, subject to appropriate rights of way. Lessor shall be responsible
for paying for deed preparation and transfer stamps. Lessee shall be responsible
for recording fees. Upon delivery of the deed to Lessee and receipt of the
purchase price by Lessor, this Lease Agreement shall terminate.
X. Xxxxxx and Lessee further agree as follows:
(i) During the term of the option (and from the date of
exercise of the option until closing), Lessor shall not convey, lease, offer to
sell, alien or encumber the Premises or any part thereof or interest therein.
(ii) This Agreement shall run with the Premises and shall
inure to the benefit of and be binding upon the successors and assigns of the
parties.
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IN WITNESS WHEREOF, Lessor and Lessee have caused their names to be signed
hereto all as of the day and year first hereinabove written.
Lessor: Union Properties, a West Virginia General Partnership
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxxx Xxxxxx, Partner
/s/ Xxxxx Xxxxx
--------------------------------------------------
Xxxxx Xxxxx, Partner
/s/ Xxxxxx Xxxxx
--------------------------------------------------
Xxxxxx Xxxxx, Partner
Lessee: Centra Bank, Inc., a West Virginia corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
Its President & CEO
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THIS LEASE ADDENDUM, Made this the 21st day of February, 2003, by
and between UNION PROPERTIES, a West Virginia General Partnership, Lessor, and
CENTRA BANK, INC, a West Virginia corporation, Lessee.
WHEREAS, by Lease Agreement dated the __ day of _____, 2002, by and
between Lessor and Lessee, the parties entered into an agreement to lease
certain real estate as more fully described in the Lease Agreement;
WHEREAS, the parties inadvertently failed to include a provision in
the Lease Agreement and desire to amend the Lease Agreement;
NOW, THEREFORE, WITNESSETH that for and in consideration of the
foregoing, and the sum of Ten Dollars ($10.00), cash in hand paid, and other
good and valuable consideration, the receipt of all of which is hereby
acknowledged, the Lessors and Lessee hereby agree to incorporate into the Lease
Agreement, a provision as follows:
1. Notwithstanding any other provisions contained in this Lease
Agreement, in the event the Lessee is closed or taken over by the banking
authority of the State of West Virginia, or other bank supervisory authority,
the Lessor may terminate the lease only with the concurrence of such banking
authority or other bank supervisory authority, and any such authority shall, in
any event have the election to either continue or to terminate the lease as
provided in West Virginia Code section 31A-7-10.
2. In all other respects, the Lease Agreement shall remain unchanged
and in full force and effect.
WITNESS the following signatures.
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LESSOR:
UNION PROPERTIES,
a West Virginia general partnership
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx, Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx, Partner
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx, Partner
LESSEE:
CENTRA BANK, INC.
a West Virginia corporation,
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx, President
STATE OF WEST VIRGINIA,
COUNTY OF ___________________, to-wit:
The foregoing instrument was acknowledged before me this the day of
__________, 2002, by Xxxxxxx Xxxxxx, Xxxxx Xxxxx and Xxxxxx Xxxxx, the partners
of Union Properties, a West Virginia general partnership.
My commission expires:_______________________________________
_______________________________
Notary Public
STATE OF WEST VIRGINIA,
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COUNTY OF ______________________, to-wit:
The foregoing instrument was acknowledged before me this the day of
_____________, 2003, by Xxxxxxx X. Xxxxx, the President of Centra Bank, Inc.,
West Virginia corporation, for and on behalf of said corporation, who declared
the same to be the act and deed of the corporation.
My commission expires: __________________________.
________________________________
Notary Public
This instrument was prepared by:
XXXXXXX XXXXXX, BATTLE, PLLC
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
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