EXHIBIT 10.21
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LEASE AGREEMENT
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THIS INDENTURE made and entered into upon this 2nd day of September, 1996,
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by and between K-V-A-T Food Stores, Inc., a corporation duly created, organized
and existing under and by virtue of the Laws of the Commonwealth of Virginia,
with its registered office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
(hereinafter called "Lessor") of the first part, and Matewan Bancshares, Inc., a
banking corporation duly created, organized and existing under and by virtue of
the Laws of the State of Delaware, with its registered office located at Second
and ▇▇▇▇▇▇▇ Streets, Williamson, West Virginia, (hereinafter called "Lessee") of
the second part,
WITNESSETH: That whereas Lessor is presently constructing a Food City
Supermarket (hereinafter referred to as the "Store") located at Virginia Highway
694 and Pittston Avenue, in the Town of Lebanon, ▇▇▇▇▇▇▇ County, Virginia; and
Whereas, Lessee desires to establish and operate banking and depository
facilities (hereinafter referred to as the "Banking Facility") in said Store on
terms and conditions hereinafter set forth; and
Whereas, Lessor desires that Lessee establish and operate such Banking
Facility in said Store on the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements herein set forth and benefits accruing to the parties
hereto, other good and valuable considerations and the rentals to be paid by
Lessee to Lessor, the parties hereto agree as follows:
1. LEASE OF SPACE. Subject to the terms and conditions of this lease
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agreement (hereinafter referred to as "lease"), Lessor hereby leases and rents
to Lessee and Lessee hereby rents and leases from Lessor a space containing
approximately 645 square feet of floor space in the building occupied by the
Store (hereinafter referred to as the "store building") which space hereinafter
referred to as ("premises") is designated "Bank" and outlined in red on the
diagram (floor plan) hereto attached, marked "Exhibit A" and made a part hereof
by reference. Lessee shall be granted ingress to and egress from said Premises
for Lessee, its officers, employees and customers, by and through the front
entrance, vestibules and sales area of the building occupied by the Store, and
Lessee shall have the right to install a night depository unit and an automated
teller machine, the approximate locations of which are shown on said diagram
(floor plan).
2. TERM. (a) This lease is made and accepted for a term which shall
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begin on the Commencement Date, as hereinafter defined, and run until five (5)
years thereafter, unless extended as hereinafter provided.
(b) The Commencement Date shall be on the first (1st) day of the
calendar month coming next after the following conditions are satisfied:
(1) The Improvement Work, as such term is defined in Section 8 of this
lease, is substantially completed in accordance with the approved Plans and
Specifications; and
(2) All required consents or approvals of the Federal Reserve, the
Comptroller of the Currency, Federal Deposit Insurance Corporation, the
Commissioner of Banking for the state of Lessee's incorporation, or any other
Federal or State regulatory agency having jurisdiction over Lessee (the
"Regulatory Agency") shall have been obtained to open and maintain the Banking
Facility for banking business at the location of the premises hereby leased.
Lessee shall promptly make an application to any such Regulatory Agency for the
issuance of a permit to operate a retail banking and depository facility in the
Store; exercise due diligence to obtain same; and immediately give Lessor notice
when the permit has been issued.
(3) Pursuant to the provisions of Section 2, as hereinabove stated and
in accordance with section 8 hereof, Lessee shall complete all of the aforesaid
conditions and Lessee shall also open and begin normal banking business
concurrent with the opening of the Store. In the event that Lessee suffers a
delay in regulatory approval, through no fault of the Lessee, Lessor shall
extend
the date of commencement of banking operations, an additional period which shall
be the lesser of: (i) the period of said regulatory delay; or (ii) (4) months
after the opening of the Store. Lessor has the exclusive option to terminate
said lease in the event Lessee does not comply completely with all of the
aforesaid provisions and conditions of said lease, by the above specified time.
(c) As soon as the Commencement Date may be determined as hereinabove
provided, the parties hereto agree to execute and deliver in duplicate a
Commencement Date Agreement, using the form, a copy of which is hereto attached,
marked "Exhibit B", and made a part hereof by reference, for the purpose of
being attached to and becoming a part of their respective copy of this lease,
but failure of the parties, or either of them, to execute and deliver such
agreement shall not preclude establishing such date by appropriate evidence
should the need to do so arise.
(d) Lessee shall have the right to occupy the Premises prior to said
Commencement Date for the sole purpose of making the improvements hereinafter
referred to as the Improvement Work, as provided for in Section 8 hereof and not
for the conduct of Lessee's banking business, provided that if contingencies are
not met. Lessee shall be responsible for restoring Premises. Any such occupancy
of the Premises by Lessee shall be subject to the terms and conditions of this
lease. If Lessee begins to conduct business in the Premises prior to the
Commencement Date, Lessee shall pay rent, pro rata, according to the rent stated
in Section 3 hereof for the number of days which Lessee so conducts Lessee's
business.
3. RENT. Lessee shall pay to Lessor as rent for the Premises an amount
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equal to Thirty Thousand Dollars ($30,000) per annum for the original term of
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this lease, which rent shall be payable in equal monthly installments of Two
Thousand Five Hundred Dollars ($2,500) each, in advance, commencing on the
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Commencement Date and continuing to be due on the first day and not later than
the fifth day of each calendar month during the term of this lease. All rent
shall be payable to Lessor at its registered office shown above or as otherwise
directed by Lessor.
4. OPTION TO EXTEND. Lessee shall have the option to extend the term
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of this lease for three (3) successive additional periods of five (5) years
each. Said options shall be exercised automatically unless Lessee, gives Lessor
notice of Lessee's desire not to exercise the option. Such extension rights are
further subject to Lessee's not being in default under any of the terms and
provisions of
this lease. The notice not to exercise the option for any five (5) year
extension shall be given at least one-hundred eighty (180) days prior to the end
of the immediately preceding term of this lease. The first automatic extension
of this lease shall be upon the same rental, terms and conditions as are set
forth in this Lease Agreement. Rental for the second and third renewal terms of
this lease, shall be the an amount equal to the original rental, as defined in
section 3 hereof, multiplied by a fraction. Said fraction shall be defined as
consisting of a numerator, which shall be the index number (the "Index Number")
indicated under the United States index column of the Consumer Price Index for
Urban Wage Earners and Clerical Workers (the "CPI") (1982-1984=100) as
promulgated by the United States Department of Labor, for the month immediately
preceding the month and year in which the said renewal term shall commence and a
denominator, which shall be the Index Number for the CPI for the month and year
in which the original commencement date of this Lease occurs. If there shall at
the time be no such CPI, the parties shall use the most comparable substitute
index in determining rent escalation for said renewal periods. Notwithstanding
the above, all other terms and conditions of this Lease Agreement shall remain
in full force and effect during the second and third renewal periods.
5. USE AND OCCUPANCY. (a) Lessee shall have the right to use and
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occupy the Premises for the sole purpose of establishing and operating a retail
banking and depository facility for the benefit and convenience of the public
and for no other use and purpose, except that Lessee may offer at the Banking
Facility such services or products as are customarily offered by Lessee at its
other retail banking facilities, provided that such services and products are
not in competition and do not compete with services and products customarily
offered for sale by Lessor in its stores. Lessee shall have the exclusive right
to provide or promote retail banking or other depository services in the Store.
Notwithstanding anything to the contrary stated herein, Lessee shall have the
non-exclusive right to provide or promote the following services in the Bank:
the sale of tickets to musical, theatrical, sporting, and other public events;
financial planning; estate planning; sale of insurance; and travel planning and
reservation services, provided that such rights do not violate any terms and
conditions or any exclusive rights granted by Lessor's Landlord in the Prime
Lease. Lessee's exclusive right hereunder to provide retail banking and other
depository services in the Store shall not limit or restrict Lessor's right to
make change, cash checks, verify checks, arrange for check verification, sell
money
orders, or to transact or conduct any other commercial or financial activity or
service which, in Lessor's sole discretion, Lessor deems necessary for the
proper and adequate operation of the Store.
(b) In order to provide Lessee's customers with free and clear access
to the Banking Facility, Lessor shall not place any display case or other
fixture or articles within six (6) feet of the Banking Facility that would
restrict free and clear access to the Banking Facility.
(c) In the event that Lessee desires to include a night depository in
the operation of the Banking Facility, and said night depository is to be
located in an area outside the Banking Facility, then, in that event, Lessee
shall acquire written approval of Lessor regarding the proposed location of said
Night depository prior to commencing any installation of said night depository.
In the event of the installation of a night depository it is agreed that Lessee
shall be responsible, at its sole cost and expense, for the installation,
maintenance, and operation of any such night depository, and the location of any
such night depository shall be deemed to be an appurtenance to the Premises and
a part of the Banking facility for all purposes of this lease. The installation
of any such night depository shall be performed in accordance with the terms and
conditions of Section 8 hereof.
(d) If Lessee elects to include an automated teller machine in the
operation of the Banking Facility, Lessee shall be responsible, at its sole cost
and expense, for the installation, maintenance, and operation of any such
automated teller machine, and the location of any such automated teller machine
shall be deemed to be an appurtenance to the Premises and a part of the Banking
Facility for all purposes of this lease. The installation of any such automated
teller machine shall be performed in accordance with the terms and conditions of
Section 8 hereof. Lessee may make available to any one or more banking or
depository institutions, including savings and loan associations or credit
unions, the use of any such automated teller machine installed by Lessee, and
Lessor shall permit such other banking or depository instituitons, including
savings and loan associations or credit unions, to share the use of any such
automated teller machine.
(e) Lessee shall have the right to use jointly with Lessor a sufficient
part of the parking area serving the building in which Premises are located for
the parking of vehicles of its employees and customers, and vehicles being used
in the normal course of Lessee's business, with the right of ingress to and
egress
from said parking area. No additional rent shall be charged for use of
said parking area.
(f) Lessee shall maintain and conduct the operation of the Banking
Facility in a first-class and proper manner. Lessee shall comply with all
applicable federal, state and local laws, rules, regulations, and ordinances
governing the establishment and operation of the Banking Facility. Lessee shall
not block or restrict the aisles, passageways, vestibules, entrances, exits, or
sidewalks of the Store so as to interfere with Lessor's business. Lessee's
operation of the Banking Facility shall be subject to such limitations,
restrictions, or rules as Lessor may from time to time impose, including,
without limitation, any rule pertaining to the parking of motor vehicles of
Lessee, its employees, agents or representatives, and any rule restricting the
Banking Facility's hours of operation to the same hours the Store is open to the
public. Lessee shall not have a key to the Store. When the Store is closed and
not open to the public for business, Lessee and its employees shall have access
to the Store only with the consent of Lessor and only when an employee or other
representative of Lessor is present. Lessee shall not use the Premises for any
illegal purpose or violate any statute, regulation, rule or order of any
governmental body, nor create or allow to exist any nuisance or trespass, nor
use the Premises in any manner to vitiate Lessor's insurance or increase the
rate of Lessor's insurance premiums, nor deface or injure the Premises nor
overload the floor of the Premises. Lessee agrees that it shall observe and
comply with the "Rules and Regulations" hereto attached, marked "Exhibit C", and
made a part hereof by reference.
6. EMPLOYEES. (a) Lessee shall cause its employees to comply with all
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reasonable rules and regulations from time to time prescribed by Lessor
pertaining to employee ingress, egress, and parking. All persons employed by
Lessee in conncetion with the operation of the Banking Facility shall be and
remain Lessee's employees for all purposes, and Lessee shall, at its own cost
and expense, maintain worker's compensation coverage, unemployment compensation
coverage, and any other insurance which may be required by law with respect to
such employees. Lessee's employees, while working at the Banking Facility,
shall be entitled to use the toilet facilities and break room or lounge provided
by Lessor for the convenience of Lessor's employees. Lessee shall be solely
responsible for all acts and omissions of its employees. Lessor shall provide
an adequate number of parking spaces at the Store for employees of Lessee
working at the Banking Facility. Lessee shall employ all persons
necessary for the operation and maintenance of the Banking Facility and such
employees of Lessee shall at all times conduct themselves toward the customers
and employees of Lessor, and toward all other persons in the Store courteously
and in a manner to promote the best interests of the Store.
(b) Lessee shall be solely responsible for providing security for the
Banking Facility, and acknowledges that Lessor is not an insurer for the Banking
Facility and that Lessor does not undertake to provide any security for the
Banking Facility. Subject to reasonable rules and regulations of Lessor,
Lessee shall have the right to have a security guard in the Banking Facility at
all times that Store is open for business and any such security guard shall be
and remain an employee or contractor of Lessee only.
7. NON-EMPLOYEE SERVICES. It is contemplated that persons not employed
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by Lessee must have access to the Banking Facility for time to time for the
purpose of servicing, maintaining, and otherwise performing services in
connection with the Banking Facility. Any such non-employee shall have access
to the Store and the Banking Facility during the Store's normal business hours,
provided that such non-employees shall not block or restrict the aisles,
passageways, vestibules, entrances, exits or sidewalks of the Store so as to
interfere with Lessor's business.
8. IMPROVEMENT WORK. (a) Lessee shall have the right to improve
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(herein referred to as the "Improvement Work") the Premises by installing
banking and depository facilities therein so that the Premises may be used for
the operation of a retail banking and depository facility in accordance with
Section 5 hereof. The Improvement Work shall be in accordance with the terms
and conditions of this Section 8 of this lease.
(b) The Improvement Work shall be done in accordance with plans and
specifications (hereinafter referred to as the "Plans and Specifications")
provided by Lessee for the use and benefit of Lessor and Lessee. Lessee, within
thirty (30) days from the date of this lease, shall furnish Lessor with said
Plans and Specifications for Lessor's review and approval. The Plans and
Specifications shall be subject to the prior approval of Lessor. Lessor shall
promptly, and not later than five (5) days after receipt of a set thereof,
approve or reject the Plans and Specifications submitted to Lessor by Lessee.
Lessee, within thirty (30) days after the approval of the Plans and
Specifications by Lessor, shall begin the work
to improve the Premises, and the Improvement Work shall be completed by Lessee
in accordance with the approved Plans and Specifications within four (4) months
from the date of this lease. In connection with the Improvement Work, Lessee
specifically agrees that improvements shall not affect the structure, roof, or
floor of the store building except in connection with the installation of a
vault, a night depository unit or any automated teller machine, or otherwise
adversely affect any area of the store building other than the Premises, or
affect the peaceful enjoyment of Lessor.
(c) Lessee shall, at its sole cost and expense, pay the cost of the
Improvement Work, including the cost of the Plans and Specifications therefor.
Neither Lessee nor any contractor engaged by Lessee shall have any right to
create any charge or lien against the store building or the land on which the
store building is located on account of the Improvement Work, and this lease
shall not be construed to authorize any charge or lien against the store
building or the land on which the store building is located on account of the
Improvement Work or any work, services, or materials relating thereto. Lessee
covenants and warrants unto Lessor that Lessee will discharge of record, within
ten (10) days following actual notice by Lessee, from whatever source, of its
filing, any mechanic's, or materialmen's or other similar lien against the
Premises, the store building or the land on which the store building is located
for work or material claimed to have been furnished to Lessee or the Premises.
(d) Lessor shall have the right to approve the contractor or
contractors, as the case may be, selected by Lessee to perform the Improvement
Work, but such approval shall not be arbitrarily nor unreasonably withheld.
(e) Lessor shall have the right to inspect the construction of the
Improvement Work from time to time.
(f) The Plans and Specifications and the contract for the Improvement
Work may contain such other terms and provisions not in conflict with nor
contrary to this Section 8 as Lessee may elect.
(g) Lessee, at its sold cost and expense, shall furnish all
improvements, fixtures, equipment, and furnishings which it deems necessary or
desirable for the establishment and operation of the Banking Facility, and shall
pay all costs of improvement of the Premises necessary for the installation of
such items.
Notwithstanding any attachment or affixation of the Banking Facility or any part
thereof to the Premises, or the manner, mode, extent, or nature of any such
attachment or affixation, the Banking Facility and each part thereof will be,
and shall at all times continue to be, personal property, and shall not at any
time become or be deemed to be fixtures or in any other manner a part of the
Premises or the store building. All permits, licenses and authorizations
required in connection with the Improvement Work shall be obtained and paid for
by Lessee as the same are required.
(h) Lessee shall make no alterations or additions of any kind in or to
the Premises or the Banking Facility without first obtaining Lessor's written
consent, and all such work shall be subject to the provisions of this Section 8.
(i) In event of disagreement between Lessor and Lessee as to whether
any construction complies with the Plans and Specifications or whether any
construction is complete and ready for use and occupancy, the disagreement shall
be determined by any architect selected by Lessee, representing Lessee, and any
architect selected by Lessor, representing Lessor. If said two architects
cannot agree, the two shall select a third person who shall also be an
architect, and the decision of the three, by a majority vote, shall terminate
the disagreement. All of said architects shall be licensed to practice
architecture in the state in which the store building is located. Each party
shall pay its architect and the expense of the third architect shall be shared
equally.
(j) Times stated in this Section 8 shall not be of the essence of the
contract so long as the work or obligation concerned is carried on with
reasonable diligence and without unreasonable daily (delays caused by acts of
God or material shortages beyond the control of the party obligated are
recognized as reasonable).
(k) Lessor shall not be liable for any damage to Lessee's property
arising from the operations of the contractor relating to the Improvement Work.
Said contractor shall provide public liablilty and property damage insurance for
the protection of Lessor and Lessee on account of injuries to persons or damage
to such persons' property (including property of Lessor and Lessee) arising from
the contractor's operations in the amount of One Million Dollars ($1,000,000)
for property damage; One Million Dollars ($1,000,000) for injuries to any one
person; and One Million Dollars ($1,000,000) for injuries occurring in any one
accident. The contractor shall furnish builders' risk insurance on the work
covered by the contract. Upon request by Lessor, Lessee shall obtain from
Lessee's Contractor, and provide to Lessor, any certificates of insurance which
may be necessary to provide evidence of the insurance coverage described herein.
9. MAINTENANCE. (a) Lessee shall, at its sole cost and expense,
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maintain the Banking Facility in good order and repair, including, without
limitation, telephone or other lines for computer/data processing and
transmission for the Banking Facility, and shall, at its sole cost and expense,
provide and maintain janitorial services for the Premises.
(b) Lessee shall be liable for and shall repair or restore any loss or
damage of the Premises or store building caused by the negligence or intentional
acts of Lessee, or by the negligence or intentional acts of its agents,
employees, or representatives when acting in the course of their employment,
except that Lessee shall not be liable for nor required to restore loss or
damage caused by fire or explosion, or resulting from any casualty which
normally may be insured against by fire insurance with extended coverage. Fire
and extended coverage insurance shall be carried and maintained on the store
building pursuant to the terms and conditions of the Prime Lease as that term is
defined in Section 18 hereof.
(c) Anytime that an Automatic Teller or Night Depository shall
malfunction, Lessee shall affect repairs on same within twenty-four (24) hours
of notification of said malfunction.
10. UTILITIES. Lessor agrees to furnish to the Banking Facility at
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Lessor's sole cost and expense all overhead lighting, electricity, heat and air
conditioning for the operation of the Banking Facility. Lessee shall furnish at
Lessee's sole cost and expense all telephone and computer/data processing and
transmission services, including all lines, cables and connections necessary for
the operation of the Banking Facility.
11. INSURANCE. Lessee shall maintain, with respect to the Premises,
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Comprehensive General Liability Insurance with a combined single limit of at
least Five Million Dollars ($5,000,000.00) and Employer's liability insurance of
not less than One Million Dollars ($1,000,000.00) and Lessor shall be made an
additional insured under the Comprehensive General Liablilty policy. Evidence
of such coverage shall be furnished to Lessor at the commencement date. Lessee
shall provide fire insurance and extended coverage for itself on the modular
banking unit, equipment, furnishings, and other items of personalty which it
places in the premises. In the event that Lessor's insurance is increased at
said location because of Lessee's bank facility being located inside said store,
then Lessee agrees to pay the amount of said increase.
12. INDEMNITY. (a) Lessee shall indemnify, protect, and save harmless
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Lessor from damage, loss, liability, or expense, including attorneys fees and
court costs, on account of injuries to persons or damage to property arising or
resulting from the ownership or operation of the Banking Facility during the
term of this lease, except such injuries or damage arising from negligence of
Lessor, its agents, or employees.
(b) Lessor shall indemnify, protect, and save harmless Lessee from
damage, loss, liability, or expense, including attorneys fees and court costs,
on account of injuries to persons or damage to property arising or resulting
from the operation of the Store during the term of this lease, except such
injuries or damage arising from negligence of Lessee, its agents, or employees.
(c) In the event of concurring negligence of Lessor and Lessee, Lessor
and Lessee shall share liabilities and expenses arising thereunder in proportion
to their negligence.
13. TAXES. Lessee shall pay all ad valorem taxes levied or assessed
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against its modular banking unit and other property located in said Premises.
Lessor shall pay all ad valorem taxes levied or assessed against the Premises.
14. SURRENDER. Lessee agrees that it shall, before the termination of
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this lease, remove its modular banking unit, furnishings, equipment, and all
other personal property belonging to and being the property of Lessee from the
premises, provided that at the time of removal Lessee is not in default in the
payment of rent or any other term or provision of this lease, and restore the
Premises to as good a condition as Lessee received same from Lessor, loss or
damage by fire, storm, earthquake, or other casualty, and ordinary wear and tear
from reasonable use excepted. Lessee shall pay Lessor for any physical damage
caused by the installation or removal of Lessee's improvements, fixtures,
furnishings, equipment, or personal property, and surrender peaceful possession
of the Premises to Lessor at the termination of this lease.
15. DEFAULT. (a) In event Lessee shall be in default in the payment of
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rent hereunder in full and shall not cure such default within twenty (20) days
after receipt of written notice from Lessor specifying the default, Lessor shall
have the right, without further notice and legal process (but only during the
continuance of such default), of terminating this lease. Thereupon, this lease
shall be at an end, except for the purposes of enforcing the rights then accrued
hereunder and rights to future rentals to accrue hereunder, and Lessee will at
once surrender, release and turn over possession of said Premises to Lessor. If
such possession is not immediately surrendered, Lessor may re-enter said
Premises and take possession thereof, removing all persons and property
therefrom, using such force as may be necessary without being deemed guilty of
any manner of trespass, or forcible entry, or detainer, all other notice
provided by law for the termination of tenancy and all legal process being
hereby expressly waived.
(b) If Lessee shall default in the performance or observance of any
covenant, agreement or condition contained in this lease to be performed or
observed by Lessee, other than an obligation to pay rent, and shall not cure
such default within thirty (30) days after receipt of written notice from Lessor
specifying the default, or shall not within said period commence to cure such
default and thereafter prosecute the curing of such default to completion with
due diligence, Lessor may, at its option, at once, without notice to Lessee or
anyone else, terminate this lease, and upon the termination hereof at the option
of Lessor as aforesaid, or at the expiration, by lapse of time, of the term
hereby demised, Lessee will, at once, surrender, release and turn over
possession of said Premises to Lessor and, if such possession is not immediately
surrendered, Lessor may re-enter said Premises and take possession thereof,
removing all persons and property therefrom, using such force as may be
necessary without being deemed guilty of any manner of trespass, or forcible
entry, or detainer, all other notice provided by law for the termination of
tenancy and all legal process being hereby expressly waived; or Lessor may, at
its option, without waiving any right to terminate this lease or any claim for
breach of contract, at any time thereafter cure such default for the account of
Lessee and Lessee shall, on demand, reimburse Lessor therefor and save lessor
harmless therefrom, provided that Lessor may cure any such default prior to the
expiration of
said waiting period, but after notice to Lessee, if the curing of such default
prior to the expiration of said waiting period is reasonably necessary to
protect Lessor, or to prevent injury or damage to persons or property.
(c) In case of any default, whether or not this Lease is terminated,
Lessee will indemnify Lessor against all loss of rent and other payments
provided herein, if any, to be paid by Lessee to Lessor between the time of
default or termination and the expiration of the term of this Lease. It is
understood that at the time of termination or reentry, or any time thereafter,
Lessor may rent the Premises for a term which may expire after the expiration of
the term of this Lease without releasing Lessee from any liability whatsoever;
that Lessee shall be liable for expenses incurred by Lessor in connection with
obtaining possession of the Leased Premises and in connection with any re-
letting, including without limitation, reasonable attorneys fees and reasonable
brokers' fees; and that any monies collected for said re-letting shall be
applied first to the foregoing expenses and then to payment of rental and all
other payments which may be due to Lessor from Lessee. Said indemnification of
Lessor by Lessee shall be accomplished by payments made on the days on which
said Rentals and other payments would have been due and payable hereunder if
this agreement had not terminated.
(d) The rights and remedies herein given Lessor on account of default
or breach by Lessee under this lease are cumulative and in addition to the
rights and remedies afforded Lessor by law and/or equity for such defaults or
breaches.
16. DAMAGE. If by fire, storm, earthquake, or other casualty, the
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Premises or any other part of the store building are destroyed or damaged to the
extent that Lessee is deprived of occupancy or use of the Premises, and if such
damage or destruction can be substantially repaired within thirty (30) days from
the date of such damage or destruction, then such damage or destruction shall be
substantially repaired pursuant to the terms and conditions of the Prime Lease
(as such term is defined in Section 18 hereof) within thirty (30) days from the
date of such damage or destruction and all rent payable hereunder by Lessee
shall be abated to the extent that Lessee is unable to occupy and use the
Premises. In the event such damage or destruction cannot be substantially
repaired within such thirty-day period, Lessee and Lessor shall each have the
right and option to terminate this lease by giving ten (10) days' prior written
notice to the other. Notwithstanding anything herein to the contrary, in the
event of any destruction or damage to the store building or the Premises, Lessee
shall be
solely responsible for repairing and/or restoring, at its sole cost and expense,
the modular banking unit, furnishings, equipment and all other property of
Lessee located in the Premises and used in connection with the operation of the
Banking Facility.
17. CONDEMNATION. If a material part of the store building shall be
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taken or condemned under the power of eminent domain or is conveyed or leased in
lieu of such taking, this lease shall terminate as of the date title vests in
the condemning authority. If any portion of the Store parking area is taken or
condemned under the power of eminent domain or is conveyed or leased in lieu of
such taking and, in the opinion of Lessor, continuance of the operation of the
Store is undesirable as a result thereof, Lessor may elect to terminate this
lease concurrently with Lessor's closing of the Store, and if Lessor elects to
so terminate this lease, then this lease shall terminate and all rights and
liabilities of the parties thereafter accruing shall cease and terminate as if
the date of such termination were the date originally set for the expiration of
the term of this lease. Lessee hereby assigns to Lessor any and all right,
title, or interest it may have in and to any award made in any such condemnation
proceeding, except if any award includes an amount in compensation for loss of
business profits by Lessee or for moving the property of Lessee, that part of
such award is not hereby assigned to Lessor and Lessee will be entitled to the
amount paid for Lessee's loss of profits and for the moving of Lessee's
property.
18. PRIME LEASE. (a) The term "Prime Lease", as such term is referred
-----------
to in this lease, means that certain Lease Agreement entered into by and between
Marathon Realty Corporation, as Landlord, and K-VA-T Food Stores, Inc., as
Tenant, covering the land and building occupied by Store in which Premises are
located, and dated August 1, 1987.
(b) This lease is executed by Lessor and Lessee as a sublease under
said Prime Lease, and shall be subject and subordinate to all of the terms and
conditions of said Prime Lease. Subject to the provisions of Section 4 hereof,
upon the termination of said Prime Lease for any reason, this lease shall
terminate. In the event that said Prime Lease is terminated and Lessor
continues to occupy said store building and operate said store, whether as
tenant or owner, this lease shall not terminate, but remain in effect until the
earlier of: 1. Cessation of operation of said store by Lessor, or, 2. Its term,
including any extension thereof, expires. In the event that Lessor ceases
operations in said
store and relocates within a one-mile radius of the store building within one
year of cessation of operations, Lessee shall have the opportunity to relocate
with Lessor. The relocation of Lessee with Lessor shall be contingent upon: 1.
The approval by Lessor of Lessee's bank facility plans, 2. Where applicable,
Lessee's maintaining operations at both the old and new facilities, 3. Monthly
rental from Lessee in the new store building shall increase in proportion to
Lessor's increased occupancy costs and, 4. Said relocation does not violate any
terms and conditions or any exclusive rights granted previously by Lessor's
landlord, pursuant to the Prime Lease for the new store building.
(c) Lessee agrees that this lease is and shall be subordinate and
subject to the lien of any first mortgage, deed to secure debt, deed of trust,
or other instrument in the nature thereof which may now or hereafter affect or
encumber the fee title to the Premises and the land upon which the store
building is located. The preceding sentence pertaining to the subordination of
this lease to any first mortgage, security deed, or other instrument in the
nature thereof shall be self-operative, and no further instrument or
subordination shall be required by the holder of any such instrument affecting
or encumbering the fee title of the Premises or the land upon which the store
building is located. In confirmation of such subordination, Lessee shall, upon
demand, at any time or times, execute, acknowledge, and deliver to Lessor or the
holder of any such mortgage, deed to secure debt, deed of trust, or other
instrument, without expense, any and all instruments that may be requested by
lessor or such holder to evidence the subordination of this lease and all rights
hereunder to the lien of any such mortgage, deed to secure debt, deed of trust,
or other instrument, and each renewal, modification, consolidation, replacement,
and extension thereof.
(d) Lessor covenants and warrants that it has obtained all requisite
consent to the subletting of Premises to Lessee, and that is has the unqualified
right to enter into this lease agreement and sublet Premises to Lessee.
19. ASSIGNMENT. Lessee shall not, without the prior written consent of
----------
Lessor, assign, hypothecate, or otherwise transfer this lease or any interest
hereunder, or sublease the Premises or any part thereof, or permit the use of
the Premises by any party other than Lessee, except that the automated teller
machine may be used by persons other than the Lessee as such sharing is
permitted by Section 5 (d) hereof. Any consent to an assignment or sublease
shall not nullify this provision, and all later assignments or subleases shall
be
made likewise only after the prior written consent of Lessor is obtained in
each instance. Unless otherwise expressly agreed to by Lessor in writing, no
sublease or assignment by Lessee shall relieve Lessee of any liability
hereunder.
20. BANKRUPTCY. (a) For the purpose of this lease, bankruptcy of
----------
Lessee shall mean and include any one or more of the following events or
conditions:
(1) Lessee is adjudicated as bankrupt;
(2) A receiver is appointed for Lessee or a major part of Lessee's
property, including Lessee's interest in Premises, and such receivership is not
vacated and discharged within ninety (90) days;
(3) Lessee shall seek reorganization, arrangement, composition,
readjustment, compromise, or similar debtor relief with respect to its debts or
obligations under any federal or state bankruptcy, insolvency, or debtor relief
statute;
(4) Lessee, whether voluntarily or involuntarily, takes advantage of
any debtor relief proceedings under any present of future law, whereby the rent
or any part thereof is, or is proposed to be reduced, or payment thereof is, or
is proposed to be deferred;
(5) Lessee makes an assignment for the benefit of its creditors;
(6) Lessee's interests hereunder shall be levied upon or sold under
execution or other legal process;
(7) Lessee is found to be insolvent in any proceedings other than
bankruptcy; or
(8) Lessee is closed or taken over by any Regulatory Agency.
(b) Subject to the terms and conditions of subsection (c) of this
section, in the event of bankruptcy of Lessee, Lessor, at any time after the
occurence of the
bankruptcy and during the continuation of the bankruptcy and on thirty (30) days
notice to Lessee and to Lessee's legal representative (which shall include a
trustee in bankruptcy, receiver, or other like officer), if any, may terminate
this lease and retake possession of the Premises.
(c) Notwithstanding any other provision of this lease, in the event the
Lessee or its successors or assignees shall become insolvent, bankrupt,
or make an assignment for the benefit of creditors, or if it or their interests
hereunder shall be levied upon or sold under execution or other legal
process, or in the event the bank to be operated on the premises is closed,
or is taken over by the banking authority of the State or other bank supervisory
authority, the Lessor may terminate the lease only with the concurrence of
said State banking authority or other bank supervisory authority, and any such
authority shall in any event have the election to either continue or terminate
the lease, provided, that in the event this lease is terminated, the maximum
claim of Lessor for damages or indemnity for injury resulting from the rejection
or abandonment of the unexpired lease shall in no event be in an amount
exceeding the rent reserved by the lease, without acceleration, for the year
next succeeding the date of the surrender of the premises to the landlord, or
the date of re-entry of the landlord, whichever first occurs, whether before or
after the closing of the bank, plus an amount equal to the unpaid rent accrued,
without acceleration, up to such date.
21. TRADE NAME. Lessee shall buy and pay for its own supplies and
-----------
other items of personalty in its own trade name and upon its own credit and
shall make no contract of any kind or nature whatsoever in the name of Lessor
or in the name of any other business entity or enterprise owned in whole or in
part by Lessor. Nothing herein contained shall constitute the parties as
partners or co-venturers to render either party liable for the debts or
liabilities of the other.
23. USUFRUCT. This lease shall create the relationship of landlord
--------
and tenant between Lessor and Lessee; no estate shall pass out of Lessor, and
lessee has only a usufruct which is not subject to levy and sale and may not be
assigned except by Lessor's consent.
24. CAPTIONS. Section captions used in this lease are for the
--------
convenience of reference only and do not constitute a substantive part of this
lease.
25. GOVERNING LAW. This lease is deemed to have been executed in
-------------
the state in which the Store is located and shall be governed by and construed
in accordance with the laws of such state.
27. ENTIRE AGREEMENT. This lease constitutes the sole and entire
----------------
agreement between the parties hereto with respect to Lessee's leasing of the
Premises and its establishment and operation of the Banking Facility, and no
amendment or modification of this lease shall be binding unless it is reduced to
writing and signed by both parties hereto. No representation, inducement,
promise, understanding, or agreement regarding such matters not included in this
lease shall be binding upon the parties hereto or either of them. If any term
or provision of this lease shall be invalid or unenforceable, the remaining
terms and provisions hereof shall not be affected thereby. If the application
of any term or provision of this lease to any person or circumstance shall to
any extent be invalid or unenforceable, such term or provision shall remain
applicable as to those persons or circumstances to which it shall be valid and
enforceable and each term and provision of this lease shall be valid and
enforceable to the fullest extent permitted by law.
28. EXECUTION. This lease may be executed in any number of
---------
counterparts, each of which shall be deemed an original and any of which shall
be deemed to be complete in itself and may be introduced into evidence or used
for any purpose without the production of the other counterparts.
29. NOTICES. Any notice herein provided for may be delivered
-------
personally to an officer or the registered agent of the party to be notified, or
by United States certified or registered mail directed as follows:
To Lessor: K-VA-T Food Stores, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
To Lessee: Matewan BancShares Inc.
Second and ▇▇▇▇▇▇▇ Streets
Williamson, West ▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
30. SUCCESSORS AND ASSIGNS. Each of the provisions of this
----------------------
agreement shall extend to, and shall, as the case may require, bind or inure to
the benefit of not only the Lessor and Lessee, but also their respective
successors and assigns, and any bank or other corporation with which Bank may be
merged or consolidated.
(Signature page to follow)
IN WITNESS WHEREOF, Lessor and Lessee have executed this agreement by and
through their duly authorized officers and caused their seals to be hereunto
affixed, upon the day and year first above written.
Signed, sealed, and delivered By:
by the officers of Lessor in -----------------------------------
the presence of:
-----------------------------------
Title
-----------------------------------
Unofficial Witness
Attest:
-------------------------------
Secretary
-----------------------------------
Notary Public
Lessor
(NOTARIAL SEAL)
(CORPORATE SEAL)
My commission expires
--------------
Signed, sealed, and delivered By:
by the officers of Lessee in -----------------------------------
the presence of:
-----------------------------------
Title
-----------------------------------
Unofficial Witness
Attest:
-------------------------------
Secretary
-----------------------------------
Notary Public Lessee
(NOTARIAL SEAL) (BANK/ASSOCIATION SEAL)
My commission expires
"EXHIBIT A"
(TO BE ATTACHED LATER)
"EXHIBIT B"
COMMENCEMENT DATE AGREEMENT
---------------------------
COMMONWEALTH OF VIRGINIA,
▇▇▇▇▇▇▇ COUNTY
THIS AGREEMENT made and entered into upon this day of 1997, by
---- -------
and between K-VA-T Food Stores, Inc., a corporation duly created, organized and
existing under and by virtue of the Laws of the Commonwealth of Virginia,
(hereinafter called "Lessor") , and Matewan BancShares, Inc., a banking
corporation duly created, organized and existing under and by virtue of the Laws
of the State of Delaware, (hereinafter called "Lessee").
WITNESSED: That whereas Lessor and Lessee entered into a lease
agreement (hereinafter referred to as "lease), dated September 2, 1997, for the
use and occupancy of the Premises therein described and located in the building
occupies by the Store operated by Lessor at Virginia Highway 694 and Pittston
Avenue, Lebanon Virginia and all conditions for determination of the
Commencement Date of the term of said lease have been met.
NOW, THEREFORE, pursuant to the provisions of the Section 2 of said lease,
Lessor and Lessee mutually agree that the Commencement Date of the term of said
lease is December 1, 1997, and that said term of said lease shall expire at
midnight Eastern Standard Time on November 30, 2002, unless extended or earlier
terminated as provided for in said lease.
IN WITNESS WHEREOF, Lessor and Lessee have executed this agreement by and
through their duly authorized officers and caused their seals to be hereunto
affixed upon the day and year first above written.
BY: BY:
-------------------------------- -----------------------------------
-------------------------------- -----------------------------------
(Title) (Title)
Attest: Attest:
---------------------------- -----------------------------
Secretary Secretary
"EXHIBIT B"
COMMENCEMENT DATE AGREEMENT
---------------------------
, COUNTY
--------------- -------------------
THIS AGREEMENT made and entered into upon this day of , 19 ,
---- -------- --
by and between (Hereinafter referred to as "Lessor") and
-----------------
(Hereinafter referred to as "Lessee").
---------------
WITNESSED: That whereas Lessor and Lessee entered into a lease agreement
(hereinafter referred to as "lease), dated , 19 , for the use and
---------- ---
occupancy of the Premises therein described and located in the building occupies
by the Store operated by Lessor at and all conditions for
------------------
determination of the Commencement Date of the term of said lease have been met.
NOW, THEREFORE, pursuant to the provisions of the Section 2 of said lease,
Lessor and Lessee mutually agree that the Commencement Date of the term of said
lease is , 19 , and that said term of said lease shall expire at
------------ ----
midnight Time on , 19 , unless extended or earlier
---------- --------- ---
terminated as provided for in said lease.
IN WITNESS WHEREOF, Lessor and Lessee have executed this agreement by and
through their duly authorized officers and caused their seals to be hereunto
affixed upon the day and year first above written.
By: By:
------------------------------- -----------------------------------
(Title) (Title)
Attest: Attest:
--------------------------- ----------------------------------
Secretary Secretary
Lessor Lessee
(Corporate Seal) (Corporate Seal)
"EXHIBIT C"
RULES AND REGULATIONS
---------------------
1. Lessee shall keep open for business and operate the Banking Facility
during such days and hours as have been agreed upon in writing by Lessor and
Lessee under Schedule 1 of this Exhibit C and make no subsequent changes in
store days or hours without Lessor's prior written consent which consent shall
not be arbitrarily nor unreasonably withheld by Lessor.
2. The sidewalks and public portions of the store building such as
entrances, passages, vestibules, and aisles, shall not be obstructed or
encumbered by Lessee or used for any purpose other than ingress and egress to
and from the Premises.
3. No projections shall be attached by Lessee to the outside walls of
the store building without the prior written consent of Lessor.
4. No sign, advertisement, notice, or other lettering shall be
exhibited, inscribed, painted or affixed by Lessee on any part of the outside or
interior walls of the store building without obtaining the prior written consent
of Lessor. Signs on doors to the Premises shall, at Lessee's expense, be
inscribed, Lessee, Lessor may remove same without any liability and may charge
the expenses incurred by such removal to Lessee. Lessee may display on the
exterior of the Banking Facility temporary, tasteful signs giving notice of
holidays and such other information as is required to be posted in the Banking
Facility by any Regulatory Agency.
5. No display cases or other articles shall be put in front of or
affixed to any part of the exterior of the store building, nor placed in the
interior of the Store without the prior written consent of Lessor.
6. Lessee shall not in any way deface any part of the Premises or the
store building.
7. No cooking shall be done or permitted by Lessee in the Premises.
8. No part of the Premises shall be used for manufacturing,
distribution, or the storage of merchandise, or for the sale of merchandise,
goods or property of
any kind at auction.
9. Lessee shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with shoppers in the Store.
10. Neither Lessee, nor any of Lessee's servants, employees, agents,
visitors, or licenses, shall at any time bring or keep in the Premises any
inflammable, combustible or explosive fluid, or chemical substance, other than
reasonable amounts of cleaning fluids or solvents required in the normal
operation of Lessee's business.
11. With the exception of daily money shipments and deliveries, the
moving in or out of any safes, freight, furniture, or bulky matter of any
description must take place during the hours which Lessor or its agent may
determine from time to time.
12. Lessor shall have the right to prohibit any advertising by Lessee
which, in Lessor's opinion, tends to impair the reputation of the Store or its
desirability as a Store for the public to shop, and upon written notice from
Lessor, Lessee shall refrain from or discontinue such advertising.
SCHEDULE 1
EXHIBIT C
---------
DAYS AND HOURS BANKING FACILITY WILL BE OPEN FOR THE CONDUCT OF BUSINESS
1. The Banking Facility will be open for the conduct of business on the days
and no less than the hours hereinafter specified:
Monday 10:00__a.m. - __7__p.m.
Tuesday 10:00__a.m. - __7__p.m.
Wednesday 10:00 a.m. - __7__p.m.
Thursday 10:00__a.m. - __7__p.m.
Friday 10:00__a.m. - __7__p.m.
Saturday 10:00__a.m. - __7__p.m.
Sunday to be determined by Banking Facility
------------------------------------
2. The Banking Facility will be closed for business on the following holidays:
The Bank shall be closed for no more than those holidays observed by the
Banking Industry as set by the Federal Reserve System of the United States.
Note: If a holdiay mentioned above is on a Sunday, then the Banking
Facility may be closed for business on the immediately succeeding Monday.
The foregoing is hereby approved by LESSOR AND LESSEE.
On behalf of LESSOR: On behalf of LESSEE:
---------------------------------- --------------------------------------
Title Title
Date Date
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